Page 1 of 53
EN BANC
[G.R. No. 32066. March 15, 1930.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-
Appellee, v. GONA (Mansaca), Defendant-Appellant.
Jose Ma. Capili, for Appellant.
Attorney-General Jaranilla, for Appellee.
SYLLABUS
1. HOMICIDE; MISTAKE AS TO VICTIM. — As a result of a
quarrel, the defendant endeavored to kill D, but by mistake,
killed M. Held, that his mistake in killing one man instead of
another did not relieve him from criminal responsibility and
could not even be considered a mitigating circumstance.
DECISION
OSTRAND, J.:
The defendant was charged before the Court of First
Instance of the Province of Davao with the crime of
homicide, the information reading as follows:
"That on or about October 26, 1928, in the municipal district
of Pantukan, Province of Davao, Philippine Islands, and
within the jurisdiction of the court, the said accused
voluntarily, illegally, and criminally and with a bolo which he
then carried, assaulted the Mansaca Mapudul, causing him a
mortal wound on the left side of the neck and that, as a
consequence of said wound, the said Mapudul died."
Upon trial the court below found the defendant guilty as
charged in the information and taking into consideration the
extenuating circumstance of non-habitual intoxication,
sentenced him to suffer twelve years and one day of
reclusion temporal with the accessory penalties prescribed
by law, to indemnify the heirs of the deceased in the sum of
P1,000, and to pay the costs. From this sentence the
defendant appealed.
It appears from the evidence that on the evening of October
26, 1928, a number of Mansacas celebrated a reunion in the
house of the Mansaca Gabriel. There seems to have been a
liberal supply of alcoholic drinks and some of the men
present became intoxicated, with the result that a quarrel
took place between the Mansaca Dunca and the defendant.
Dunca and his son Aguipo eventually left the house and
were followed by Mapudul and one Awad. The defendant left
the house about the same time with intention of assaulting
Dunca, but in the darkness of the evening and in the
intoxicated condition of the defendant, he mistook Mapudul
for Dunca and inflicted on him a mortal wound with a bolo.
There can be no doubt that the defendant killed Mapudul
and that he is guilty of the crime charged, but his attorney
argues that in view of the fact that said defendant had no
intention to kill the deceased and committed the crime by
mistake, he should have been found guilty of homicide
through negligence under paragraph 1 of article 568 of the
Penal Code and not of the graver crime of intentional
homicide. This contention is contrary to earlier decisions of
this court. In the case of United States v. Mendieta (34 Phil.,
242), the court said:
"Even admitting that the defendant intended to injure Hilario
Lauigan instead of Pedro Acierto, even that, in view of the
mortal wound which he inflicted upon the latter, in no way
could be considered as a relief from his criminal act. That he
made a mistake in killing one man instead of another, when
it is proved that he acted maliciously and willfully, cannot
relieve him from criminal responsibility. Neither do we
believe that the fact that he made a mistake in killing the
wrong man should be considered as a mitigating
circumstance."
The appealed sentence is affirmed with the costs against the
defendant. So ordered.
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-
Real, JJ., concur.
[ GR No. 25459, Aug 10, 1926 ]
PEOPLE v. RAMON MABUG-AT
DECISION
ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros impojed upon
Ramon Mabug-at the penalty of twelve years and one
day cadena temporal, with the accessories of the law, to
indemnify the offended party in the sum of P700 and to pay
the costs, for the crime of frustrated murder.
The appellant appealed from this judgment, making two
assignments of error as committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder,
and
2. In not giving any credit to the evidence presented by the
defense, finding the defendant guilty beyond a reasonable
doubt.
The evidence of the prosecution shows that the accused and
Juana Buralo were sweethearts. Juana had been jealous of
the accused on account of the latter having frequently visited
the house of one Carmen. Their relations were such that the
accused invited Juana to take a walk on the afternoon of
August 9, 1925, Juana refused him, later sending him a note
of excuse. On the third day, or the night of August 11th, the
accused went to the threshold of Cirilo Banyan's house
where Juana Buralo had gone to take part in some devotion.
There the accused, revolver in hand, requested Francisco
Abellon to ask Juana to come downstairs and as Abellon
refused to do so, the accused said: "If you do not want to go
upstairs, I will get Juana and if anyone tries to defend her I
will kill him."
The accused waited until Juana and her niece Perfecta
Buralo came downstairs, when they went in the direction of
their house. The accused, who was seen by the two girls,
followed them without saying a word. It is only a short
distance from the house where the devotion took place to
that of the offended party, the houses being adjacent. As the
two girls were going upstairs, the accused, while standing at
the foot of the stairway, fired a shot from his revolver which
wounded Perfecta Buralo, the bullet passing through a part
of her neck, having entered the posterior region thereof and
coming out through the left eye, which was completely
destroyed. Due to proper medical attention, Perfecta Buralo
did not die and is one of the witnesses who testified at the
trial of this case.
The defense, without abandoning its allegation that the
accused is not responsible for the crime, contends that the
crime proven is not frustrated murder but the discharge of a
firearm, with injuries, it not having been proven that it was
the accused's intention to kill.
The relations existing between the accused and Juana
Buralo, his disappointment at her not accepting his invitation
to take a walk, the fact that the accused, revolver in hand,
went to look for Juana Buralo at the house where the
devotion was being held, later following her to her house,
and especially having aimed at her person the head are
facts which, in our opinion, permit of no other conclusion
than that, in firing the shot, it was the accused's intention to
kill.
In the decision of this court in the case of United States vs.
Montenegro (15 Phil., 1), it was held:

"We do not doubt that there may be cases wherein the
discharge of a firearm at another is not in itself sufficient to
sustain a finding of the intention to kill, and there are many
cases in the books wherein the attendant circumstances
conclusively establish that on discharging a firearm at
another the actor was not in fact animated by the intent to
kill. But, in seeking to ascertain the intention with which a
specific act is committed, it is always proper and necessary
to look not merely to the act itself but to all the attendant
circumstances so far as they are developed by the evidence;
and where, as in the case at bar, a revolver is twice
discharged point-blank at the body of another, and the shots
directed at the most vital parts of the body, it needs but little
additional evidence to establish the intent to kill beyond a
reasonable doubt."
The fact that a person received the shot which was in-tended
for another, does not alter his criminal liability. (Art. 1, par. 3,
Penal Code.)
The circumstances qualifying the murder alleged in the
complaint are evident premeditation and treachery. Even
when there is sufficient proof of premeditation (which we do
not believe has been sufficiently established), yet, it cannot
be considered as a qualifying circumstance in the present
case, because the person whom the accused intended to kill
was not Perfecta Buralo, who was hit by the bullet, but her
aunt Juana Buralo. Had evident premeditation been proven,
and there being no other qualifying circumstance of
frustrated murder present in this case, the acts should be
held to be frustrated homicide and punished with the
maximum degree of the penalty prescribed by law. (Question
2, p. 28, 1890 ed., Viada's Penal Code.) But, the 'fact is that
treachery was proven and must be taken into consideration
in this case, because the accused fired at Perfecta Buralo,
employing means which tended to insure the execution of
the crime without running any risk himself from anyone who
might attempt to defend the said offended party. The
treachery which, according to the evidence, would have
attended the crime had the bullet hit Juana Buralo was
present in this case because the offended party Perfecta
Buralo and Juana were going upstairs with their backs
towards the accused when he fired his revolver. The
Supreme Court of Spain, in a decision of May 7, 1885
(Viada, do., pp. 29, 30), in holding a crime to be murder and
not homicide, stated the following:
"Considering that, according to the concept of treachery as it
is explained in article 10 of the Civil Code dealing with said
circumstance, it is evident that in firing the gun which
Alejandro Sola was carrying which caused the death of
Nazario Inigo, he employed means which tended to insure
the commission of the crime without any risk to himself
arising from any defense that might be made by the offended
party, for neither the wounded party Bartolome Lobejano, at
whom the shot was aimed in order to kill him so that he
might not testify as to the assault committed upon him
shortly before, as held by the trial court, was not in a position
to defend himself in any way, nor could Nazario Inigo
become aware of any attack so unjustified, rapid and
unforeseen; considering, further, that the purely accidental
circumstance that as a result of the shot a person other than
the one intended was killed, does not modify, in the instant
case, the elements constituting the crime of murder qualified
by the treachery with which Alejandro Sola acted, whether
with respect to the wounded Bartolome Lobejano or to the
deceased Nazario Inigo, for which reason the rules of article
65 are not applicable herein, the culprit not having, in fact,
committed a crime different from that which he intended,
taking into consideration the substantial and intrinsical
meaning thereof, etc."
Although the case just cited refers to the crime of
consummated murder, the doctrine sustained therein is
applicable to the case at bar so far as the concurrence of
treachery as a qualifying circumstance is concerned.
The crime now before us is frustrated murder, the accused
having intended to kill and performed all the acts of
execution which would have produced the crime of murder
but which, nevertheless, did not produce it by reason of
causes independent of his Will. (Art. 3, Penal Code.)
We find no merit in the first assignment of error. In regard to
the second, it appears beyond a reasonable doubt that the
facts enumerated above constitute the crime of frustrated
murder. With the exception of the qualifying circumstance of
treachery, we find no other aggravating circumstance. The
judgment appealed from being in accordance with the law
and the facts proven, the same is hereby affirmed in all its
parts, with the costs against the appellant. So ordered.
Avanceña, C. J., Street, Villamor, Ostrand, Johns, and Villa-
Real, JJ., concur.
[ GR No. 38511, Oct 06, 1933 ]
PEOPLE v. FRANCISCO CAGOCO Y RAMONES
DECISION
VICKERS, J.:
The accused was charged in the Court of First Instance of
Manila with the crime of asesinato, committed as follows:
Page 2 of 53
"That on or about the 24th day of July, 1932, in the City of
Manila, Philippine Islands, the said accused did then and
there willfully, unlawfully and feloniously, without any just
cause therefor and with intent to kill and treachery, assault
and attack one Yu Lon by suddenly giving him a fist blow on
the back part of the head, under conditions which intended
directly and especially to insure the accomplishment of his
purpose without risk to himself arising from any defense the
victim Yu Lon might make, thus causing him to fall on the
ground as a consequence of which he suffered a lacerated
wound on the scalp and a fissured fracture on the left
occipital region, which were necessarily mortal and which
caused the immediate death of the said Yu Lon."
After hearing the evidence, Judge Luis P. Torres found the
defendant guilty as charged, and sentenced him to
suffer reclusion perpetua, with the accessory penalties of the
law, to indemnify the heirs of the deceased Yu Lon in the
sum of P1,000, without subsidiary imprisonment in case of
insolvency, and to pay the costs.
Appellant's attorney de oficio makes the following
assignments of error:
"1. The trial court erred in finding that the appellant is the
person who committed the assault on Yu Lon, the victim of
the crime charged in the information.
"2. Assuming that the appellant is the person who committed
the assault on Yu Lon (a fact which we specifically deny), the
trial court erred in finding that the appellant struck his
supposed victim.
"3. Assuming that the appellant is the person who committed
the assault on Yu Lon, and that the appellant did strike his
supposed victim (facts which we specifically deny) the trial
court erred in finding that the blow was dealt from the
victim's rear.
"4. The trial court erred in finding that the identity of the
appellant was fully established.
"5. Assuming that the four preceding errors assigned are
without merit, the trial court erred in convicting the appellant
of the crime of murder, under article 248 of the Revised
Penal Code, instead of convicting him of the crime of
maltreatment, under article 266 of the said Code."
It appears from the evidence that about 8.30 on the night of
July 24, 1932 Yu Lon and Yu Yee, father and son, stopped
to talk on the sidewalk at the corner of Mestizos and San
Fernando Streets in the District of San Nicolas. Yu Lon was
standing near the outer edge of the sidewalk, with his back
to the street. While they were talking, a man passed back
and forth behind Yu Lon once or twice, and when Yu Yee
was about to take leave of his father, the man that had been
passing back and forth behind Yu Lon approached him from
behind and suddenly and without warning struck him with his
fist on the back part of the head. Yu Lon tottered and fell

backwards. His head struck the asphalt pavement; the lower
part of his body fell on the sidewalk. His assailant
immediately ran away. Yu Yee pursued him through San
Fernando, Camba, and Jaboneros Streets, and then lost
sight of him. Two other Chinese, Chin Sam and Yee Fung,
who were walking along Calle Mestizos, saw the incident
and joined him in the pursuit of Yu Lon's assailant. The
wounded man was taken to the Philippine General Hospital,
where he died about midnight. A post-mortem examination
was made the next day by Dr. Anastacia Villegas, who found
that the deceased had sustained a lacerated wound and
fracture of the skull in the occipital region, and that he had
died from cerebral hemorrhage; that he had tuberculosis,
though not in an advanced stage, and a tumor in the left
kidney.
Yu Yee promptly reported the incident to the police, and
about 3 o'clock the next morning Sergeant Sol Cruz and
other detectives, accompanied by Yu Yee, went to the scene
of the crime and found blood stains in the street. Yu Yee
said that he could recognize his father's assailant, and
described him as being about five feet in height, 25 or 30
years old, with long hair and wearing a suit of dark clothes.
After Sergeant Sol Cruz had been working on the case for
three or four days he received information that the accused
might be the person that had assaulted Yu Lon, and on
August 4th the accused was arrested by detectives
Manrique and Bustamante. He was wearing a dark wool suit.
Yu Yee was immediately called to the police station. The
accused was placed near the middle of a line of some
eleven persons that had been detained for investigation.
They were wearing different kinds of clothes. Yu Yee without
hesitation pointed out the defendant as the person that had
assaulted Yu Lon. He identified him not only by his long hair
combed towards the back and worn long on the sides in the
form of side-whiskers (patillas), but also by his high cheek-
bones and the fact that his ears have no lobes. The
defendant was identified at the trial not only by Yu Yee, but
also by Chin Sam and Yee Fung.
With respect to the first four assignments of error, which
raise questions of fact as to the identification of the accused,
and whether or not he struck the deceased, and if he did
assault the deceased, whether he did so in a treacherous
manner, we see no sufficient reason, after considering the
evidence and arguments of counsel, to doubt the
correctness of the findings of the trial judge. The accused
was identified by Yu Yee and two other Chinese, and
although Yu Yee may have overstated at the trial some of
the facial peculiarities in the defendant that he claimed to
have observed at the time of the incident, it must be
remembered that Yu Yee without hesitation picked the
defendant out of a group of eleven persons as his father's
assailant, and that he had exceptional opportunities for
observing his father's assailant, because while that person
was walking back and forth behind Yu Lon, Yu Yee was
facing the assailant.
We find the testimony of the defendant and his witnesses as
to the whereabouts of the defendant on the night in question
unworthy of credit.
The testimony of the three Chinese that a man struck the
deceased and then ran away is corroborated by the
testimony of a 15-year old boy, Dominador Sales.
As to the contention that the deceased would have fallen on
his face if he had been struck on the back of the head, the
expert testimony shows that in such a case a person
instinctively makes an effort to preserve or regain his
balance, and that as result thereof the deceased may have
fallen backwards. Another consideration is that sidewalks
almost invariably slope towards the pavement, and this
being true, when the deceased straightened up, he naturally
tended to fall backwards. The evidence leaves no room for
doubt that the accused struck the deceased on the back of
the head, because when the deceased was assaulted he
and Yu Yee were standing on the sidewalk, facing each
other, and if the accused had not struck the deceased on the
back of the head, it would have been necessary for him to go
between the deceased and Yu Yee. Since the accused
struck the deceased from behind and without warning, he
acted with treachery. "There is treachery when the offender
commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk
to himself arising from the defense which the offended party
might make." (Article 14, No. 16, of the Revised Penal
Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the
appellant if guilty at all, should be punished in accordance
with article 266 of the Revised Penal Code, or for slight
physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code
provides that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done
be different from that which he intended; but in order that a
person may be criminally liable for a felony different from
that which he proposed to commit, it is indispensable that
the two following requisites be present, to wit: (a) That a
felony was committed; and (b) that the wrong done to the
aggrieved person be the direct consequence of the crime
committed by the offender. (U. S. vs. Brobst, 14 Phil., 310;
U. S. vs. Mallari, 29 Phil., 14; U. S. vs. Diana, 32 Phil., 344.)
In the Brobst case, supra, it was held that death may result
from a blow over or near the heart or in the abdominal
Page 3 of 53
region, notwithstanding the fact that the blow leaves no
outward mark of violence; that where death results as the
direct consequence of the use of illegal violence, the mere
fact that the diseased or weakened condition of the injured
person contributed to his death, does not relieve the illegal
aggressor of criminal responsibility; that one is not relieved,
under the law in these Islands, from criminal liability for the
natural consequences of one's illegal acts, merely because
one does not intend to produce such consequences; but that
in such cases, the lack of intention, while it does not exempt
from criminal liability, is taken into consideration as an
extenuating circumstance. (U. S. vs. Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case
at bar. There can be no reasonable doubt as to the cause of
the death of Yu Lon. There is nothing to indicate that it was
due to some extraneous case. It was clearly the direct
consequence of defendants felonious act, and the fact that
the defendant did not intend to cause so great an injury does
not relieve him from the consequence of his unlawful act, but
is merely a mitigating circumstance (U. S. vs. Rodriguez, 23
Phil., 22).
The next question is whether the crime committed by the
defendant should be classified as homicide or murder. Can
the defendant be convicted of murder when he did not intend
to kill the deceased?
We have seen that under the circumstances of this case the
defendant is liable for the killing of Yu Lon, because his
death was the direct consequence of defendant's felonious
act of striking him on the head. If the defendant had not
committed the assault in a treacherous manner, he would
nevertheless have been guilty of homicide, although he did
not intend to kill the deceased; and since the defendant did
commit the crime with treachery, he is guilty of murder,
because of the presence of the qualifying circumstance of
treachery.
The Supreme Court of Spain has held that there is no
incompatibility, moral or legal, between alevosia and the
mitigating circumstance of not having intended to cause so
great an injury:
"Considering that there is no moral or legal incompatibility
between treachery and the mitigating circumstance No. 3 of
article 9 of the Penal Code, because the former depends
upon the manner of execution of the crime and the latter
upon the tendency of the will towards a definite purpose, and
therefore there is no obstacle, in case treacherous means,
modes or forms are employed, to the appreciation of the first
of said circumstances and simultaneously of the second if
the injury produced exceeds the limits intended by the
accused; and for that reason it cannot be held in the instant
case that this mitigating circumstance excludes treachery, or
that the accused, being chargeable with the death of the

offended party, should not be liable for murder, inasmuch as
this was the offense committed due to the voluntary
presence of treachery in the act perpetrated, although with
the mitigation corresponding to the disparity between the act
intended and the act consummated, etc." (Decision of May
10, 1905, Gazette of April 20, 1906; Viada: 5th edition, Vol.
2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104),
this court speaking through Chief Justice Arellano said:
"In tying Jacinto to a tree the three defendants acted
treacherously (alevosamente). Whether it was to prevent him
from making resistance, whether it was to torture him for the
purpose of making him give information, or whether it was
for the purpose of inflicting further punishment, the fact is
that by this means the defendants secured themselves
against any risk which might have arisen from an attempt at
self-defense on the part of the victim. We are of opinion that
they had no intention to cause so great an evil as that which
resulted, but this does not neutralize that other qualifying
circumstance of the resulting death, because if there was
no alevosia for the purpose of killing there was alevosia for
the purpose of illtreating. The means employed were not
made use of for the precise purpose of making certain the
death of Jacinto de Jesus, but as a safe means of illtreating
him without risk to the persons who were doing so. If by this
means the ill treatment was aggravated, it follows that it is a
qualifying circumstance in the death which resulted. It was
not a condition of the purpose, but it was a condition of the
criminal act itself, in whatever sense this be taken."
The penalty for murder (article 248 of the Revised Penal
Code) is reclusion temporal in its maximum period to death,
and there being present in this case one mitigating and no
aggravating circumstance the prison sentence of the
appellant is reduced to seventeen years, four months, and
one day of reclusion temporal. As thus modified, the decision
appealed from is affirmed, with the costs against the
appellant.
Avanceña, C. J., Street, Abad Santos, and Butte, JJ.,
concur.
[ GR No. 34665, Aug 28, 1931 ]
PEOPLE v. DONATO BINDOY
DECISION
VILLAMOR, J.:
The appellant was sentenced by the Court of First In- stance
of Occidental Misamis to the penalty of twelve years and
one day of reclusion temporal, with the accessories of
law, to indemnify the heirs of the deceased in the amount of
P1,000, and to pay the costs. The crime charged against
the accused is homicide, according to the following
information:
"That on or about the 6th of May, 1930, in the barrio of
Calunod, municipality of Baliangao, Province of Occidental
Misamis, the accused Donato Bindoy willfully, unlawfully,
and feloniously attacked and with his bolo wounded
Emigdio Omamdam, inflicting upon the latter a
serious wound in the chest which caused his instant
death, in violation of article 404 of the Penal Code."
The accused appealed from the judgment of the trial
court, and his counsel in this instance contends that the
court erred in finding him guilty beyond a reasonable doubt,
and in convicting him of the crime of homicide.
The record shows that in the afternoon of May 6, 1930, a
disturbance arose in a tuba wineshop in the barrio market of
Calunod, municipality of Baliangao, Province
of Occidental Misamis, started by some of
the tuba drinkers. There were Faustino Pacas
(alias Agaton), and his wife called Tibay. One Donato
Bindoy, who was also there, offered some tuba to Pacas'
wife; and as she refused to drink having already done so,
Bindoy threatened to injure her if she did not accept. There
ensued an interchange of words between Tibay and Bindoy,
and Pacas stepped in to defend his wife, attempting to take
away from Bindoy the bolo he carried. This occasioned a
disturbance which "attracted the attention of Emigdio
Omamdam, who, with his family, lived near the
market. Emigdio left his house to see what was happening*
while Bindoy and Pacas were struggling for the bolo. In the
course of this struggle, Bindoy succeeded
in disengaging himself from Pacas, wrenching the bolo
from the latter's hand towards the left behind the accused,
with such violence that the point of the bolo reached
Emigdio Omamdam's chest, who was then behind Bindoy.
There is no evidence that Emigdio took part in the fight
between Bindoy and Pacas. Neither is there any indication
that the accused was aware of Emigdio Omamdam's
presence in the place, for, according to the testimony of the
witnesses, the latter passed behind the combatants when he
left his house to satisfy his curiosity. There was no
disagreement or ill feeling between Bindoy and Omamdam,
on the contrary, it appears they were nephew and uncle,
respectively, and were on good terms with each
other. Bindoy did not try to wound Pacas, and instead of
wounding him, he hit Omamdam; he was only defending
his possession of the bolo, which Pacas was trying to
wrench away from him, and his conduct was perfectly lawful.
Page 4 of 53
The wound which Omamdam received in the chest, judging
by the description given by the sanitary inspector who
attended him as he lay dying, tallies with the size of the point
of Bindoy's bolo.
There is no doubt that the latter caused the wound which
produced Emigdio Omamdam's death, but the defendant
alleges that it was caused accidentally and without malicious
intent.
Pacas and the widow of the deceased, Carmen Angot,
testified having seen the accused stab Omamdam with his
bolo. Such testimony is not incompatible with that of the
accused, to the effect that he wounded Omamdam by
accident. The widow testified that she knew of her
husband's wound being caused by Bindoy from his
statement to her before his death.
The testimony of the witnesses for the prosecution tends to
show that the accused stabbed Omamdam in the chest
with his bolo on that occasion. The defendant, indeed, in
his effort to free himself of Pacas, who was endeavoring to
wrench his bolo from him, hit Omamdam in the chest; but, as
we have stated, there is no evidence to show that he did so
deliberately and with the intention of committing a crime. If,
in his struggle with Pacas, the defendant had attempted to
wound his opponent, and instead of doing so, had wounded
Omamdam, he would have had to answer for his act, since
whoever willfully commits a felony or a misdemeanor incurs
criminal liability, although the wrongful act done be different
from that which he intended. (Art. 1 of the Penal
Code.) But, as we have said, this is not the case.
The witness for the defense, Gaudencio Cenas,
corroborates the defendant to the effect that Pacas and
Bindoy were actually struggling for the possession of the
bolo, and that when the latter let go, the former had pulled
so violently that it flew towards his left side, at the very
moment when Emigdio Omamdam came up, who was
therefore hit in the chest, without Donato's seeing
him, because Emigdio had passed behind him. The same
witness adds that he went to see Omamdam at his home
later, and asked him about his wound when he replied: "I
think I shall die of this wound." And then
continued: "Please look after my wife when I die: See that
she doesn't starve,'* adding further: "This wound was an
accident. Donato did not aim at me, nor I at him: It was a
mishap." The testimony of this witness was not contradicted
by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this

kind, which, had it existed, would have greatly facilitated
the solution of this case. And we deem it well to
repeat what this court said in United States vs. Carlos (15
Phil., 47), to wit:
"The attention of prosecuting officers, and especially of
provincial fiscals, directed to the importance of definitely
ascertaining and proving, when possible, the motives which
actuated the commission of a crime under investigation.
"In many criminal cases one of the most important aids in
completing the proof of the commission of the crime by the
accused is the introduction of evidence disclosing the
motives which tempted the mind of the guilty person to
indulge the criminal act."
In view of the evidence before us, we are of opinion and so
hold, that the appellant is entitle to acquittal according to
article 8, No. 8, Penal Code. Wherefore, the judgment
appealed from is reversed, and the accused Donato Bindoy
is hereby acquitted with costs de oficio. So ordered.
Avanceña, C. J., Johnson, Street, Malcolm, Romualdez,
Villa-Real, and Imperial, JJ., concur.
[ GR No. 103119, Oct 21, 1992 ]
SULPICIO INTOD v. CA
DECISION
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals[1] affirming in toto the
judgment of the Regional Trial Court, Branch XIV, Oroquieta
City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge
Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan.Thereafter, Mandaya
and Intod, Pangasian, Tubio and Daligdig had a meeting
with Aniceto Dumalagan. He told Mandaya that he wanted
Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four
(4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same
day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all
armed with firearms, arrived at Palangpangan's house in
Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian,
Tubio and Daligdig fired at said room. It turned out; however,
that Palangpangan was in another City and her home was
then occupied by her son-in-law and his family. No one was
in the room when the accused fired the shots. No one was
hit by the gun fire.
Petitioner and his companions were positively identified by
witnesses. One witness testified that before the five men left
the premises, they shouted: "We will kill you (the witness)
and especially Bernardina Palangpangan and we will come
back if (sic) 'you were not injured".[2]
After trial, the Regional Trial Court convicted Intod of
attempted murder. The Court of Appeals affirmed in toto the
trial court's decision. Hence this petition.
This petition questions the decision of the Regional Trial
Court (RTC), as affirmed by the Court of Appeals, holding
that Petitioner was guilty of attempted murder. Petitioner
seeks from this Court a modification of the judgment by
holding him liable only for an impossible crime, citing Article
4(2) of the Revised Penal Code which provides:
ART. 4(2). CRIMINAL RESPONSIBILITY. -- Criminal
Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an
offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on account of
the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her
room on the night he and his companions riddled it with
bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines
argues that the crime was not impossible. Instead, the facts
were sufficient to constitute an attempt and to convict Intod
for attempted murder. Respondent alleged that there was
intent. Further, in its Comment to the Petition, respondent
pointed out that:
x x x. The crime of murder was not consummated, not
because of the inherent impossibility of its accomplishment
(Art. 4(2), Revised Penal Code), but due to a cause or
accident other than petitioner's and his co-accused's own
spontaneous desistance (Art. 3., ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact,
the crime is possible, not impossible.[3]
Article 4, paragraph 2 is an innovation[4] of the Revised Penal
Code. This seeks to remedy the void in the Old Penal Code
where:
x x x it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should
have set about doing the deed, employing appropriate
means in order that his intent might become a reality, and
finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not
Page 5 of 53
present, the law and the courts did not hold him criminally
liable.[5]
This legal doctrine left social interests entirely
unprotected.[6] The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his
formidability,[7] and now penalizes an act which were it not
aimed at something quite impossible or carried out with
means which prove inadequate, would constitute a felony
against person or against property.[8] The rationale of Article
4(2) is to punish such criminal tendencies.[9]
Under this article, the act performed by the offender cannot
produce an offense against persons or property because: (1)
the commission of the offense is inherently impossible of
accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.[10]
That the offense cannot be produced because the
commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment.[11]There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing
the intended act[12] in order to qualify the act as an
impossible crime.
Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime.[13] Thus:
Legal impossibility would apply to those circumstances
where (1) the motive, desire and expectation is to perform an
act in violation of the law; (2) there is intention to perform the
physical act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the
intended act does not amount to a crime.[14]
The impossibility of killing a person already dead[15] falls in
this category.
On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or beyond
his control prevent the consummation of the intended
crime.[16] One example is the man who puts his hand in the
coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty.[17]
The case at bar belongs to this category. Petitioner shoots
the place where he thought his victim would be, although in
reality, the victim was not present in said place and thus, the
petitioner failed to accomplish his end.
One American case has facts almost exactly the same as
this one. In People vs. Lee Kong,[18] the accused, with intent
to kill, aimed and fired at the spot where he thought the
police officer would be. It turned out, however, that the latter
was in a different place. The accused failed to hit him and to
achieve his intent. The Court convicted the accused of an
attempt to kill. It held that:

The fact that the officer was not at the spot where the
attacking party imagined where he was, and where the bullet
pierced the roof, renders it no less an attempt to kill. It is well
settled principle of criminal law in this country that where the
criminal result of an attempt is not accomplished simply
because of an obstruction in the way of the thing to be
operated upon, and these facts are unknown to the
aggressor at the time, the criminal attempt is committed.
In the case of Stokes vs. State,[19] where the accused failed
to accomplish his intent to kill the victim because the latter
did not pass by the place where he was lying-in wait, the
court held him liable for attempted murder. The court
explained that:
It was no fault of Stokes that the crime was not committed. x
x x It only became impossible by reason of the extraneous
circumstance that Lane did not go that way; and further, that
he was arrested and prevented from committing the murder.
This rule of the law has application only where it is inherently
impossible to commit the crime. It has no application to a
case where it becomes impossible for the crime to be
committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the
crime which fails to materialize; in short it has no application
to the case when the impossibility grows out of extraneous
acts not within the control of the party.
In the case of Clark vs. State,[20] the court held defendant
liable for attempted robbery even if there was nothing to rob.
In disposing of the case, the court quoted Mr. Justice
Bishop, to wit:
It being an accepted truth that defendant deserves
punishment by reason of his criminal intent, no one can
seriously doubt that the protection of the public requires the
punishment to be administered, equally whether in the
unseen depths of the pocket, etc., what was supposed to
exist was really present or not. The community suffers from
the mere alarm of crime. Again: 'Where the thing intended
(attempted) as a crime and what is done is a sort to create
alarm, in other words, excite apprehension that the evil
intention will be carried out, the incipient act which the law of
attempt takes cognizance of is in reason committed.
In State vs. Mitchell,[21] defendant, with intent to kill, fired at
the window of victim's room thinking that the latter was
inside. However, at that moment, the victim was in another
part of the house. The court convicted the accused of
attempted murder.
The aforecited cases are the same cases which have been
relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However,
we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of
impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made them
punishable. Whereas, in the United States, the Code of
Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes
enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the
impossibility defense into two categories: legal versus factual
impossibility.[22] In U.S. vs. Wilson[23] the Court held that:
x x x factual impossibility of the commission of the crime is
not a defense. If the crime could have been committed had
the circumstances been as the defendant believed them to
be, it is no defense that in reality the crime was impossible of
commission.
Legal impossibility, on the other hand, is a defense which
can be invoked to avoid criminal liability for an attempt.
In U.S. vs. Berrigan,[24] the accused was indicted for
attempting to smuggle letters into and out of prison. The law
governing the matter made the act criminal if done without
the knowledge and consent of the warden. In this case, the
offender intended to send a letter without the latter's
knowledge and consent and the act was performed.
However, unknown to him, the transmittal was achieved with
the warden's knowledge and consent. The lower court held
the accused liable for attempt but the appellate court
reversed. It held unacceptable the contention of the state
that "elimination of impossibility as a defense to a charge of
criminal attempt, as suggested by the Model Penal Code
and the proposed federal legislation, is consistent with the
overwhelming modern view". In disposing of this contention,
the Court held that the federal statutes did not contain such
provision, and thus, following the principle of legality, no
person could be criminally liable for an act which was not
made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent
plus act plus conduct constitutes the offense of attempt
irrespective of legal impossibility until such time as such
legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to
be committed is factually impossible of accomplishment, the
offender cannot escape criminal liability. He can be
convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears,
therefore, that the act is penalized, not as an impossible
crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of
Page 6 of 53
accomplishment, the actor cannot be held liable for any
crime -- neither for an attempt nor for an impossible crime.
The only reason for this is that in American law, there is no
such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge --
that is, attempt.
This is not true in the Philippines. In our jurisdiction,
impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense,
but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the
Revised Penal Code makes no distinction between factual or
physical impossibility and legal impossibility. Ubi lex non
distinguit nec nos distinguere debemos.
The factual situation in the case at bar presents a physical
impossibility which rendered the intended crime impossible
of accomplishment. And under Article 4, paragraph 2 of the
Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan
was a supervening cause independent of the actor's will, will
render useless the provision in Article 4, which makes a
person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment x x x". In that case, all
circumstances which prevented the consummation of the
offense will be treated as an accident independent of the
actor's will which is an element of attempted and frustrated
felonies.
WHEREFORE, PREMISES CONSIDERED, the petition is
hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is
hereby MODIFIED. WE hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4,
paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to
suffer the penalty of six (6) months of arresto mayor,
together with the accessory penalties provided by the law,
and to pay the costs.
SO ORDERED.
Feliciano, Regalado, and Nocon, JJ., concur.
Narvasa, C.J., (Chairman), on official leave.
[ GR No. 95322, Mar 01, 1993 ]
PEOPLE v. PABLITO DOMASIAN
DECISION

CRUZ, J.:
The boy was detained for only about three hours and was
released even before his parents received the ransom note.
But it spawned a protracted trial spanning all of 8 years and
led to the conviction of the two accused.[1]
The victim was Enrico Paulo Agra, who was 8 years old at
the time of the incident in question. The accused were
Pablito Domasian and Samson Tan, the latter then a
resident physician in the hospital owned by Enrico's parents.
They were represented by separate lawyers at the trial and
filed separate briefs in this appeal.
The evidence of the prosecution showed that in the morning
of March 11, 1982, while Enrico was walking with a
classmate along Roque street in the poblacion of Lopez,
Quezon, he was approached by a man who requested his
assistance in getting his father's signature on a medical
certificate. Enrico agreed to help and rode with the man in a
tricycle to Calantipayan, where he waited outside while the
man went into a building to get the certificate. Enrico
became apprehensive and started to cry when, instead of
taking him to the hospital, the man flagged a minibus and
forced him inside, holding him firmly all the while. The man
told him to stop crying or he would not be returned to his
father. When they alighted at Gumaca, they took another
tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a
jeepney driver and handed him an envelope addressed to
Dr. Enrique Agra, the boy's father. The two then boarded a
tricycle headed for San Vicente, with the man still firmly
holding Enrico, who continued crying. This aroused the
suspicion of the driver, Alexander Grate, who asked the man
about his relationship with the boy. The man said he and the
boy were brothers, making Grate doubly suspicious because
of the physical differences between the two and the wide
gap between their ages. Grate immediately reported the
matter to two barangay tanods when his passengers alighted
from the tricycle. Grate and the tanods went after the two
and saw the man dragging the boy. Noticing that they were
being pursued, the man told Enrico to run fast as their
pursuers might behead them. Somehow, the man managed
to escape, leaving Enrico behind. Enrico was on his way
home in a passenger jeep when he met his parents, who
were riding in the hospital ambulance and already looking for
him.[2]
At about 1:45 in the afternoon of the same day, after Enrico's
return, Agra received an envelope containing a ransom note.
The note demanded P1 million for the release of Enrico and
warned that otherwise the boy would be killed. Agra thought
the handwriting in the note was familiar. After comparing it
with some records in the hospital, he gave the note to the
police, which referred it to the NBI for examination.[3]
The test showed that it had been written by Dr. Samson
Tan.[4] On the other hand, Enrico was shown a folder of
pictures in the police station so he could identify the man
who had detained him, and he pointed to the picture of
Pablito Domasian.[5] Domasian and Tan were subsequently
charged with the crime of kidnaping with serious illegal
detention in the Regional Trial Court of Quezon.[6]
The defense of both accused was denial and alibi. Domasian
claimed that at the time of the incident he was watching a
mahjong game in a friend's house and later went to an
optical clinic with his wife for the refraction of his
eyeglasses.[7] Dr. Tan for his part said he was in Manila.[8]
After trial, Judge Enrico A. Lanzanas found both accused
guilty as charged and sentenced them to suffer the penalty
of reclusion perpetuaand all accessory penalties. They were
also required to pay P200,000.00 to Dr. and Mrs. Enrique
Agra as actual and moral damages and attorney's fees.
In the present appeal, the accused-appellants reiterate their
denial of any participation in the incident in question. They
belittle the credibility of the prosecution witnesses and
submit that their own witnesses are more believable. Tan
specifically challenges the findings of the NBI and offers
anew the opposite findings of the PC/INP showing that he
was not the writer of the ransom note. He maintains that in
any case, the crime alleged is not kidnaping with serious
illegal detention as no detention in an enclosure was
involved. If at all, it should be denominated and punished
only as grave coercion. Finally, both Domasian and Tan
insist that there is no basis for the finding of a conspiracy
between them to make them criminally liable in equal
degree.
First, on the credibility of the witnesses. This is assessed in
the first instance by the trial judge, whose finding in this
regard is received with much respect by the appellate court
because of his opportunity to directly observe the demeanor
of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the
testimony of the victim himself, who positively identified
Domasian as the person who detained him for three hours.
The trial court observed that the boy was "straight-forward,
natural and consistent" in the narration of his detention. The
Page 7 of 53
boy's naiveté made him even more believable. Tirso
Ferreras, Enrico's classmate and also his age, pointed to
Domasian with equal certainty, as the man who approached
Enrico when they were walking together that morning of
March 11, 1982. Grate, the tricycle driver who suspected
Enrico's companion and later chased him, was also positive
in identifying Domasian. All these three witnesses did not
know Domasian until that same morning and could have no
ill motive in testifying against him. By contrast, Eugenia
Agtay, who testified for the defense, can hardly be
considered a disinterested witness because she admitted
she had known Domasian for 3 years.
The defense asks why Domasian openly took Enrico to
several public places if the intention was to kidnap and
detain him. That is for Domasian himself to answer. We do
not have to probe the reasons for the irrational conduct of an
accused. The more important question, as we see it, is why
Domasian detained Enrico in the first place after pretending
he needed the boy's help. That is also for Domasian to
explain. As for Enrico's alleged willingness to go with
Domasian, this was manifested only at the beginning, when
he believed the man sincerely needed his assistance. But he
was soon disabused. His initial confidence gave way to fear
when Domasian, after taking him so far away from the
hospital where he was going, restrained and threatened him
if he did not stop crying.
Domasian's alibi cannot stand against his positive
identification by Enrico, Grate and Ferreras, let alone the
contradictions made by his corroborating witness, Dr. Irene
Argosino, regarding the time he was in the optical clinic and
the manner of his payment for the refraction.[9] Tan's alibi is
not convincing either. The circumstance that he may have
been in Manila at the time of the incident does not prove that
he could not have written the ransom note except at that
time.
Concerning the note, Rule 132, Section 22, of the Rules of
Court provides as follows:
The handwriting of a person may be proved by any witness
who believes it to be the handwriting of such person and has
seen the person write, or has seen writing purporting to be
his upon which the witness has acted or been charged and
has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be
given by a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the party
against whom the evidence is offered or proved to be
genuine to the satisfaction of the judge.

Two expert witnesses were presented in the case at bar, one
from the NBI,[10] who opined that the ransom note and the
standard documents were written by one and the same
person, and another from the PC/INP[11] who expressed a
contrary conclusion. The trial court chose to believe the NBI
expert because his examination and analysis "was more
comprehensive than the one conducted by the PC/INP
handwriting expert, who virtually limited his reliance on the
perceived similarities and dissimilarities in the pattern and
style of the writing, thereby disregarding the basic principle
in handwriting identification that it is not the form alone nor
anyone feature but rather a combination of all the qualities
that identify."
We have held that the value of the opinion of a handwriting
expert depends not upon his mere statements of whether a
writing is genuine or false, but upon the assistance he may
afford in pointing out distinguishing marks, characteristics
and discrepancies in and between genuine and false
specimens of writing which would ordinarily escape notice or
detection from an unpracticed observer.[12] The test of
genuineness ought to be the resemblance, not the formation
of letters in some other specimens but to the general
character of writing, which is impressed on it as the
involuntary and unconscious result of constitution, habit or
other permanent course, and is, therefore itself
permanent.[13]
Presented with the conflicting opinions of the witnesses in
the case at bar, the Court feels that the scales should tilt in
favor of the prosecution. Significantly, the NBI opinion was
bolstered by the testimony of Agra, who believed that the
ransom note was written by Tan, with whose handwriting he
was familiar because they had been working in the hospital
for four years and he had seen that handwriting every day in
Tan's prescriptions and daily reports.[14]
Cesar v. Sandiganbayan[15] is not applicable because that
case involved a forgery or the deliberate imitation of another
person's signature. In the case before us, there was in fact
an effort to disguise the ransom note writer's penmanship to
prevent his discovery.
As for the nature of the crime committed, Article 267 of the
Revised Penal Code provides as follows:
Art. 267. Kidnapping and serious illegal detention. - Any
private individual who shall kidnap or detain another, or in
any manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than
five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted
upon the person kidnapped or detained; or if threats to kill
him shall have been made.
4. If the person kidnapped or detained shall be a minor,
female or a public officer.
The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting ransom
from the victim or any other person; even if none of the
circumstances above-mentioned were present in the
commission of the offense.
Contrary to Tan's submission, this crime may consist not
only in placing a person in an enclosure but also in detaining
him or depriving him in any manner of his liberty.[16] In the
case at bar, it is noted that although the victim was not
confined in an enclosure, he was deprived of his liberty when
Domasian restrained him from going home and dragged him
first into the minibus that took them to the municipal building
in Gumaca, thence to the market and then into the tricycle
bound for San Vicente. The detention was committed by
Domasian, who was a private individual, and Enrico was a
minor at that time. The crime clearly comes under Par. 4 of
the above-quoted article.
Tan claims that the lower court erred in not finding that the
sending of the ransom note was an impossible crime which
he says is not punishable. His reason is that the second
paragraph of Article 4 of the Revised Penal Code provides
that criminal liability shall be incurred "by any person
performing an act which would be an offense against
persons or property, were it not for the inherent imposibility
of its accomplishment or on account of the employment of
inadequate or ineffectual means." As the crime alleged is not
against persons or property but against liberty, he argues
that it is not covered by the said provision.
Tan conveniently forgets the first paragraph of the same
article, which clearly applies to him, thus:
Art. 4. Criminal liability. - Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
xxx
Page 8 of 53
Even before the ransom note was received, the crime of
kidnaping with serious illegal detention had already been
committed. The act cannot be considered an impossible
crime because there was no inherent improbability of its
accomplishment or the employment of inadequate or
ineffective means. The delivery of the ransom note after the
rescue of the victim did not extinguish the offense, which had
already been consummated when Domasian deprived
Enrico of his liberty. The sending of the ransom note would
have had the effect only of increasing the penalty to death
under the last paragraph of Article 267 although this too
would not have been possible under the new Constitution.
On the issue of conspiracy, we note first that it exists when
two or more persons come to an agreement concerning the
commission of a felony and decide to commit it, whether
they act through physical volition of one or all, proceeding
severally or collectively.[17]
It is settled that conspiracy can be inferred from and proven
by the acts of the accused themselves when said acts point
to a joint purpose and design, concerted action and
community of interests.[18] In the instant case, the trial court
correctly held that conspiracy was proved by the act of
Domasian in detaining Enrico; the writing of the ransom note
by Tan; and its delivery by Domasian to Agra. These acts
were complementary to each other and geared toward the
attainment of the common ultimate objective, viz. to extort
the ransom of P1 million in exchange for Enrico's life.
The motive for the offense is not difficult to discover.
According to Agra, Tan approached him six days before the
incident happened and requested a loan of at least
P15,000.00. Agra said he had no funds at that moment and
Tan did not believe him, angrily saying that Agra could even
raise a million pesos if he really wanted to help.[19] The
refusal obviously triggered the plan to kidnap Enrico and
demand P1 million for his release.
The constitutional issues raised by Domasian do not affect
the decision in this case. His claim that he was arrested
without warrant and then tortured and held incommunicado
to extort a confession from him does not vitiate his
conviction. He never gave any confession. As for the
allegation that the seizure of the documents used for
comparison with the ransom note was made without a
search warrant, it suffices to say that such documents were
taken by Agra himself and not by the NBI agents or other
police authorities. We held in the case of People vs. Andre
Marti,[20] that the Bill of Rights cannot be invoked against
acts of private individuals, being directed only against the

government and its law-enforcement agencies as a limitation
on official action.
We are satisfied that Tan and Domasian, in conspiracy with
each other, committed the crime of kidnaping as defined and
penalized under Article 267 of the Revised Penal Code and
so deserve the penalty imposed upon them by the trial court.
WHEREFORE, the appealed decision is AFFIRMED, with
costs against the accused-appellants.
Let a copy of this decision be sent to the Commission on
Human Rights for investigation of the alleged violation of the
constitutional rights of Pablito Domasian.
SO ORDERED.
Griño-Aquino, Bellosillo, and Quiason, JJ., concur.
[ G.R. No. 102596, December 17, 1999 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. NICASIO ENOJA @ “NICK”, JOSE ENOJA @
“MOROS”, ANTONIO GALUPAR @ “TONY”, RONNIE
ENOJA @ “BUD-OY”, AND YOLLY ARMADA, ACCUSED-
APPELLANTS.
DECISION
QUISUMBING, J.:
This is an appeal from the decision dated October 31, 1990,
of the Regional Trial Court, Iloilo City, Branch 26, in Criminal
Case No. 31550, convicting accused-appellants Nicasio
Enoja @ "Nick", Jose Enoja @ "Moros", Antonio Galupar @
"Tony", Ronnie Enoja @ Bud-oy", and Yolly Armada of the
crime of murder, and sentencing them as follows:
"...Nicasio Enoja @ Nick, Jose Enoja @ "Moros", and
Antonio Galupar alias "Tony", each to suffer the penalty of
reclusion perpetua; Yolly Armada to suffer an indeterminate
prison sentence ranging from ten (10) years and one (1) day
of prision mayor as minimum to eighteen (18) years, eight
(8) months and one (1) day of reclusion temporal as
maximum, and Ronnie Enoja alias "Bud-oy" to suffer
indeterminate prison sentence ranging from six (6) years and
one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion temporal as maximum
and all the said accused, to pay, jointly and severally, the
heirs of the deceased Siegfred Insular the sum of
P30,000.00 for his death and P19,200.00 as actual damages
representing expenses, without subsidiary imprisonment in
case of insolvency together with all the accessory penalties
provided for by law and to pay the costs."[1]
The five appellants, all farmers and residents of Barangay
Caraudan, Janiuay, Iloilo, are related to each other. Jose
Enoja @ "Moros", Ronnie Enoja @ "Bud-oy", and Yolly
Armada, are the brother, son and first cousin, respectively,
of appellant Nicasio Enoja, while Antonio Galupar is a
"kumpadre." Three other accused, Joel Enoja @ "Mike",
Melvin Castor, and Antonio Enoja, remain at-large.
The victim, Siegfred G. Insular, was a suspected
commander of the "New People's Army" (NPA). A day
before the incident, the house of Romulo Enoja, brother of
the Enojas, was allegedly sprayed with bullets by the NPA,
killing Romulo's daughter and son. Before that, the house of
Catelina Enoja, mother of the Enojas, at Barangay
Caraudan, was allegedly burned by the NPA.
The facts are not in dispute. In their consolidated brief,
appellants adopted the factual findings of the trial court, as
follows:[2]
"x x x [I]n the afternoon of July 2, 1987, at around 4:30
o'clock, while Siegfred Insular and his wife, Paterna, were on
their way home from the market walking along the ricefield at
Barangay Caraudan, Janiuay, Iloilo, they saw Yolly Armada
with a long firearm in hand, walking on the other side of the
field towards the same direction where the couple were
going.
Paterna did not at first recognize Yolly Armada as the man
on the other side of the ricefield, and so, she called the
attention of her husband saying that the man was carrying a
firearm. Recognizing the man, however, Siegfred told his
wife: "never mind, he is Yolly Armada". The spouses Insular
and Yolly Armada continued walking until they met ways in
front of the ricemill of Teodoro Salamanca near the
chapel. Siegfred greeted Armada by nodding his head to
which Armada responded by also nodding his
head. Siegfred then said "We will leave" but as he and his
wife were about to proceed on their way, Armada blocked
the couple and pointed his firearm to Siegfred with the barrel
of the gun touching the left side of the body of the latter.
Suddenly, Armada fired his gun and as Siegfred turned his
back to run, Armada fired successive shots at him causing
him to fall to the ground, wounded.
Almost simultaneously, several armed men appeared and
took turns in firing at Siegfred. Among these armed men
were Nicasio Enoja alias "Nick," Jose Enoja alias "Moros",
Antonio Galupar alias "Tony," and Ronnie Enoja alias "Bud-
oy." The body of the victim jerked as the accused took turns
in shooting him.
Page 9 of 53
After shooting Siegfred Insular, the accused turned to his
wife, Paterna, and attempted to shoot her but Paterna
Insular hugged Teodoro Salamanca who was then and there
present, thus prompting the latter to shout to the accused:
"do not include the girl." The accused heeded the plea of
Teodoro Salamanca and refrained from shooting Paterna
Insular.
Jose Enoja then turned to his brother Antonio Enoja and
fired at the latter hitting him on the thigh. Thereafter, Jose
Enoja approached Siegfred Insular who was then lying on
the ground and placed the gun he used in shooting his
brother, Antonio, near the hand of Siegfred Insular. Then
Jose Enoja placed some live bullets into the pocket of
Siegfred Insular. Jose Enoja called for a hammock and, in
no time at all, there was a hammock brought to the place
where Antonio Enoja was loaded and, thereafter, brought to
the hospital. The body of Siegfred Insular was, however, left
lying on the ground at the scene of the incident.
Nicasio Enoja announced that they would bring Paterna
Insular and Teodoro Salamanca to the ricefield where they
would be made to spend the night but Paterna pleaded to
Nicasio Enoja to just bring them to the house of Patria
Alcantara about five meters away from the scene of the
incident. The accused granted the request of Paterna and
brought her and Teodoro Salamanca to the house of Patria
Alcantara where they were told to stay with the warning not
to get out or they would be shot. It was only the following
morning, after policemen and PC soldiers had arrived that
Paterna and Salamanca were able to go out of the house of
Alcantara.
The shooting incident reached the police station of Janiuay,
Iloilo upon the report of one Alfredo Galupar, and so, a joint
PC-INP team under P.C. Lt. Pangina and police station
commander, Sgt. Reynaldo Soroñgon went to Barangay
Caraudan and conducted investigation of the incident. That
was already around 8:00 o'clock in the morning of July 3,
1987. The policemen were able to recovery several empty
shells of different caliber of firearms from the crime
scene. One short homemade firearm caliber .30, with one
empty shell inside the chamber was likewise found and
recovered from the ground near the left arm of the victim."
On March 11, 1988, Provincial Fiscal Vicente E. Aragona
filed an Information[3] for murder against appellants and their
three companions who were still at-large. The Information
alleged:
"The undersigned Provincial Fiscal accuses NICASIO
ENOJA alias "Nick", JOSE ENOJA alias "Moros", ANTONIO
GALUPAR alias "Tony", RONNIE ENOJA alias "Bud-oy" and

YOLLY ARMADA of the crime of Murder committed as
follows:
That on or about July 2, 1987, in the Municipality of Janiuay,
Province of Iloilo, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another with JOEL
ENOJA alias "Mike", MELVIN CASTOR and ANTONIO
ENOJA, who are still at large, armed with firearms and
taking advantage of superior strength to better realize their
purpose, with treachery and evident premeditation and with
intent to kill, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot one SIEGFRED
INSULAR with said weapon with which they were then
provided, thereby inflicting upon the latter gunshot wounds
on the vital parts of his body which caused his death
thereafter.
CONTRARY TO LAW."
On August 5, 1988, appellants were arraigned and entered
their respective pleas of not guilty.
During trial, the prosecution presented the following
witnesses: Teodoro Salamanca, an eyewitness to the
shooting; Paterna Insular, widow of Siegred; Dr. Tito D.
Doromal, medico-legal officer who did the autopsy; Pfc. Juan
O. Gañon, and Pfc. Moises C. Reiteracion, Integrated
National Police officers who responded to the shooting
incident.
Dr. Doromal testified that the victim suffered five (5) gunshot
wounds in the head and neck area, six (6) gunshot wounds
in the thoraco-abdominal regions, and two (2) gunshot
wounds in the extremities. The cause of death was
maceration of the brain, secondary to gunshot wounds.[4]
Pfc. Juan O. Gañon stated that he entered the incident in the
police blotter.[5] Pfc. Moises C. Reiteracion said he was part
of the team which responded to the report of the shooting
incident. The team found the body of the victim still lying on
the same spot the following morning. They recovered empty
shells of different calibers and a homemade short firearm
near the left arm of the victim.[6] Pfc. Reiteracion and two
companions brought the body of the victim to the funeral
home.[7]
For the defense, appellants presented Atty. David
Tubongbanua, 4th Assistant Provincial Prosecutor of Iloilo,
who recommended the dismissal of the case but was
overturned by the Provincial Fiscal. Appellants themselves
testified and, except for Armada, interposed the defense of
denial and alibi.
Appellant Armada pleaded self-defense in shooting
Siegfred. He claimed that while he was on his way from
Barangay Quipot to Caraudan, to attend the wake of his
niece and nephew, he heard gunshots near the
chapel. When he went to the place, he saw Galupar lying
wounded on the ground, shot by Siegfred. Siegfred then
attempted to shoot Armada, but the latter beat him to the
draw. Armada fired successive shots at Insular with his M-2
automatic carbine. He did not see Paterna in the
vicinity. After the shooting, Salamanca, Nicasio and Arnold
came out of the rice mill. Salamanca asked what happened
and Armada answered that Siegfred shot Antonio and so, he
shot Siegfred. Armada then left and surrendered to the PC
station at Jibolo, Janiuay, Iloilo City.[8]
The other appellants admitted being in the vicinity of the
crime, but categorically denied any participation in the
shooting.
Nicasio claimed that he was with his son, Arnold, and
Salamanca inside the latter's ricemill, milling palay when the
shooting occurred.[9] However, Salamanca testified that at
the time of the incident, there was no palay milling going
on.[10]
Ronnie testified that he was doing household chores in their
house at Barangay Caraudan, where his brother Rowel and
sister Annelyn were lying in state, when he heard explosions
coming from the direction of the ricemill.[11] Shortly thereafter,
Arnold arrived and told them that Antonio was shot by
Siegfred and requested that a hammock be brought to the
scene so that Antonio could be brought to the
hospital. Ronnie, Jose, and Jonathan Lazo, Ronnie's first
cousin, immediately brought the hammock to the scene of
the incident.[12] Ronnie thereafter saw Paterna arrive and cry
upon seeing her slain husband. Ronnie and his companions
placed Antonio in the hammock, boarded him in a tricycle,
and rushed him to the hospital.[13] On the way, Ronnie heard
explosions and when he looked back, he saw his uncle Joel
Enoja alias "Mike" and his friend, Melvin, shooting the
prostrate body of Siegfred.[14]
Jose testified that he was at his house, about 300 meters
from the scene of the crime. He was weeding in his yard
when he heard gunfire. After a short while, Arnold arrived
and asked him to bring a hammock to the scene of the
incident.[15]
Galupar related that he had just finished plowing his farm
Page 10 of 53
and was resting in his house in Barangay Caraudan when he
heard explosions. He remained at home the whole night and
only learned of the death of Siegfred the following
morning. He claimed that he was implicated in the case
because he refused to act as witness for the prosecution. [16]
On October 31, 1990, the trial court rendered a
decision[17] finding appellants guilty as charged. The trial
court did not give credence to Armada's claim of self-
defense inasmuch as policemen recovered several empty
bullet shells from firearms of different calibers at the scene of
the crime. The short homemade firearm found near the left
arm of the victim could not have been used by the victim
since it only had one empty shell in its chamber, not to
mention that the victim was right-handed. Lastly, the trial
court found it highly suspicious that Antonio, who was
allegedly shot by the victim and who could have
corroborated Armada's story of self-defense, went into hiding
and had not surfaced up to the present.
In this appeal, in their joint brief,[18] appellants raise the
following errors:
I. THE LOWER COURT ERRED IN FINDING
CONSPIRACY;
II. THE LOWER COURT ERRED IN FINDING THE
ACCUSED-APPELLANTS GUILTY;
III. ASSUMING THEM GUILTY, THE LOWER COURT
ERRED, EXCEPT FOR APPELLANT YOLLY ARMADA, IN
NOT FINDING THAT THE OFFENSE COMMITTED WAS
ONLY AN IMPOSSIBLE CRIME.
The records show that appellant Antonio Galupar died
pending appeal. Pursuant to our ruling in People v.
Bayotas, 236 SCRA 239, the death of appellant Galupar
pending appeal extinguished his criminal liability as well as
his civil liability ex delicto in senso strictiore.
Appellant Yolly Armada escaped from the New Bilibid Prison
on September 25, 1996.[19] As a result, his appeal was
dismissed and the judgment against him became final and
executory. Entry of judgment was made on January 9,
1997.[20]
In the meantime, appellant Jose Enoja jumped bail, which
also resulted in the dismissal of his appeal. Judgment
against him became final and executory, and entry of
judgment was made on March 21, 1997.[21] An appellant who
escapes or refuses to surrender to the proper authorities is
deemed to have abandoned his appeal,[22] hence, the
judgment against him becomes a final and

executory. Nonetheless, the appeal proceeds as to the
remaining appellants, Nicasio Enoja and Ronnie Enoja, who
are now detained at the New Bilibid Prison, Muntinlupa
City. Our present review, therefore, concerns only these two
appellants.
Appellants assail the trial court's finding of conspiracy by
pointing out alleged inconsistencies in the testimonies of the
prosecution witnesses Salamanca and Paterna. Appellants
contend that while Salamanca testified that it was
only after Armada shot the victim that the other appellants
came "one after the other" and fired at the victim, Paterna
testified that appellants fired successive shots at the victim,
implying that all appellants were already in the crime scene
when Armada fired at Siegfred. However, close perusal of
the pertinent transcript of stenographic notes (TSN) shows
no inconsistencies in the two testimonies. Paterna actually
testified that after Armada fired at her husband, the other
appellants arrived one after the other ("nag-arabot
abot"),[23] and continued to fire at the prostrate body of her
husband. The two testimonies constitute cumulative
evidence on who participated in the shooting of
Siegfred. Both witnesses pointed to all five accused-
appellants.
On the matter of conspiracy, we have consistently held that
conspiracy need not be shown by direct proof of an
agreement by the parties to commit the crime. The conduct
of the malefactors before, during or after the commission of
the crime is sufficient to prove their conspiracy. Once
proved, the act of one becomes the act of all. All shall be
answerable as co-principals regardless of the extent or
degree of their participation.[24] In this case, circumstances
indubitably show that appellants acted concertedly to kill
Siegfred. First, after appellant Armada fired at the victim
incapacitating the latter, the other accused arrived "almost
simultaneously" and took turns in shooting the victim. The
successive shots riddled the victim's body with
bullets. Several empty cartridges from guns of different
calibers found in the scene and the numerous wounds of the
victim indicate plurality of assailants.[25]Second, appellant
Jose Enoja thereafter fired a shot at the thigh of his brother
Antonio to make it appear that the shooting was in self-
defense. Third, Jose planted a short firearm near the body
of the victim and placed bullets in the pocket of the
victim. Fourth, strangely after Antonio was brought to the
hospital, he conveniently disappeared and could no longer
be located by the authorities. The aforementioned acts of the
appellants clearly point to their common purpose, concert of
action, and community of interest.[26]
Appellants suggest that since Paterna was crying at the time
of the shooting, she could not have clearly witnessed the
commission of the crime. This contention is disingenuous, to
say the least. Paterna's crying does not impair her
credibility. Witnesses of startling occurrences react
differently depending upon their situation and state of mind,
and there is no standard form of human behavioral response
when one is confronted with a strange, startling or frightful
experience. [27] Her powers of observation could even be
heightened by the startling event to imprint the details in her
memory. We have gone over the records and find her
testimony clear, credible and consistent with the testimony of
Salamanca.
Appellants further insist that the trial court erred in finding
that treachery accompanied the killing, considering that the
victim was already forewarned of the impending danger
when he saw appellant Armada carrying a firearm.
Appellants contend that for treachery to exist, the offended
party is completely denied of the opportunity to defend
himself, but it is not so in this case.
As the Solicitor General correctly pointed out, there was
nothing in the behavior of Armada that could have
forewarned the victim of an impending danger. Both the
victim and Armada knew each other. Armada even
acknowledged the greeting of the victim. The latter was
walking along the ricefield with his wife[28] when he was
suddenly gunned down by the appellants. The victim gave
no provocation for the attack. The essence of treachery is
the sudden and unexpected attack without the slightest
provocation on the part of the person attacked.[29] Clearly,
the qualifying circumstance of treachery is present in this
case.
Considering the number of the armed assailants against the
lone unarmed victim, there was also abuse of superior
strength. Since treachery absorbs the aggravating
circumstance of abuse of superior strength this aggravating
circumstance need not be appreciated separately.[30]
As an alternative defense, appellants present the theory that
even assuming they participated in the killing of Siegfred,
they should only be held liable for the commission of an
impossible crime under Article 4, Par. 2 of the Revised Penal
Code, penalized under Article 59 thereof.[31] Appellants
theorize that the shots fired by Armada already resulted in
the death of the victim, and hence, their subsequent
shooting of the victim merely constitutes the impossible
crime of killing an already dead person. The proposition not
only completely contradicts their defense of alibi and denial,
Page 11 of 53
it is also speculative as to cause of death. The defense of
impossible crime is irreconcilable with alibi.
Appellants Nicasio and Ronnie Enoja claim that they were
elsewhere during the offense. For alibi to prosper as a
defense, the accused must show that he was so far away
that he could not have been physically present at the place
of the crime, or its immediate vicinity at the time of its
commission[32] and that his presence elsewhere renders it
impossible for him to be the guilty party.[33] In this case,
Nicasio admitted he was within the vicinity of the crime but
presented the lame excuse that he was inside Salamanca's
rice mill at the time of the shooting. His son, Arnold,
corroborated this testimony. But it was put in doubt by the
testimony of Salamanca, who stated that no milling of palay
in his ricemill was going on at the time of the shooting. Alibi,
especially when it is corroborated mainly by relatives and
friends of the accused, is held by this Court with extreme
suspicion for alibi is easy to fabricate and concoct. [34]
Both Paterna and Salamanca positively identified Nicasio
Enoja as one of those who took part in the shooting
incident. Paterna categorically pointed to Ronnie Enoja as
the person who shot her husband in the right
eye.[35]Appellants could not attribute any motive against
these witnesses to falsely testify against them. In the light of
positive identification by witnesses who have no motive to
falsely testify, the feeble defense of alibi cannot prevail over
the clear and positive identification of the accused as the
perpetrators of the crime.[36]
At the time of the commission of the crime, on July 2, 1987,
the penalty for murder under Article 248 of the Revised
Penal Code was reclusion temporal in its maximum period to
death.[37]
There being no mitigating nor aggravating circumstance,
with respect to Nicasio Enoja's culpability, the trial court
correctly imposed the penalty for murder in its medium
period,[38] which is reclusion perpetua.
With respect to appellant Ronnie Enoja, who was born on
February 21, 1970, and was below 18 at the time of the
commission of the crime, the trial court correctly appreciated
the privileged mitigating circumstance of minority. Thus, the
penalty next lower in degree was imposed on him in its
proper period pursuant to Article 68, second paragraph of
the Revised Penal Code, which is prision mayor maximum
to reclusion temporal medium. Applying the Indeterminate
Sentence Law, the maximum penalty to be imposed upon
appellant Ronnie Enoja shall be taken from the medium

period of the imposable penalty, which is reclusion
temporal minimum or twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months, while the minimum
shall be taken from the penalty next lower in degree, which
is prision correccional maximum to prision mayor medium or
four (4) years and two (2) months to ten (10)
years. Consequently, the trial court correctly imposed upon
Ronnie Enoja the indeterminate sentence of six (6) years
and one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion temporal as maximum.
Pursuant to prevailing jurisprudence, the award of
P30,000.00 as indemnity should be increased to
P50,000.00. However, the award of actual damages in the
amount of P19,000.00 should be deleted. Credence can
only be given to claims, which are duly supported by
receipts.[39] The testimony alone of the widow, that her sister-
in-law incurred about P20,000.00 expenses in connection
with the death of the victim, is insufficient basis to award
actual damages.
WHEREFORE, the decision of the Regional Trial Court of
Iloilo City, Branch 26, in Criminal Case No. 31550, convicting
accused-appellants Nicasio Enoja @ " Nick" and Ronnie
Enoja @ "Bud-oy" of the crime of Murder is
hereby AFFIRMED, with the MODIFICATION that accused-
appellants are ordered to pay the heirs of the victim, jointly
and severally, the amount of P50,000.00 as indemnity. The
award of P19,200.00 as actual damages is deleted. Costs
against appellants.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr.,
JJ., concur.
[ G.R. No. 162540, July 13, 2009 ]
GEMMA T. JACINTO, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by
petitioner Gemma T. Jacinto seeking the reversal of the
Decision[1] 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, 2004 denying 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.
Page 12 of 53
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 didn't 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 petitioner's
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 Valencia and 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 mother's 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 GUILTY beyond 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.
Page 13 of 53
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 the customer'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
owner's 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 done
with grave abuse of confidence - petitioner is admittedly
entrusted with the collection of payments from customers.
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 latter's 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 be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be
unjustly 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
Page 14 of 53
language of the law -- that theft is already "produced" upon
the "tak[ing of] personal property of another without the
latter's 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 one's
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 sentenced to suffer
the penalty of six (6) months of arrresto mayor, and to pay
the costs.
SO ORDERED.
Ynares-Santiago, (Chairperson), Chico-Nazario, Velasco,
Jr., and Nachura, JJ., concur.
[ G.R. Nos. 136592-93, November 27, 2003 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS.
MANOLITO PANCHO, APPELLANT.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision[1] dated June 19,
1998 of the Regional Trial Court, Branch 15, Malolos,
Bulacan, finding appellant Manolito Pancho guilty beyond
reasonable doubt of rape in Criminal Case No. 837-M-96
and attempted rape in Criminal Case No. 838-M-96. In
Criminal Case No. 837-M-96, the trial court sentenced him to
suffer reclusion perpetua, while in Criminal Case No. 838-M-
96, the penalty of 10 years and 1 day, as minimum, to 12
years, as maximum of prision mayor, was imposed upon
him.
The Informations in both Criminal Case Nos. 837-M-96 and
838-M-96 read:
For Criminal Case No. 837-M-96 (For Rape):
"That in or about the month of August, 1994, in the
municipality of Malolos, province of Bulacan, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully
and feloniously, by means of force, threats and intimidation
and with lewd designs, have carnal knowledge of said
Michelle L. dela Torre, 11 years of age, against her will and
without her consent.
"Contrary to law."
For Criminal Case No. 838-M-96 (For Attempted Rape):
"That in or about the month of December, 1995, in the
municipality of Malolos, province of Bulacan, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully
and feloniously, by means of force, threats and intimidation
and with lewd designs, have carnal knowledge of said
Michelle L. dela Torre, 11 years of age, against her will and
without her consent.
"Contrary to law."
Upon arraignment, appellant, assisted by counsel, pleaded
not guilty to the crimes charged.
Thereafter, trial ensued. The evidence for the prosecution
shows that complainant Michelle dela Torre was born on
April 2, 1984[2] to spouses Exequiela Lacanilao and Eduardo
dela Torre. After Michelle's father passed away, her mother
contracted a second marriage with appellant. Michelle and
her two (2) brothers live with the couple at Look First,
Malolos, Bulacan.
On August 1, 1994, at around 6:00 o'clock in the morning,
Michelle, who was then only ten years old, went home after
spending the night at her aunt's house. While she was about
to undress, appellant suddenly dragged her and forced her
to lie down on the floor. Although frightened, she struggled
by kicking and boxing him. However, he forcibly removed her
clothes and underwear. Then he took off his clothing.
Appellant started kissing and holding her breast and
eventually had carnal knowledge of her. She felt pain when
he inserted his organ into her vagina which bled. She tried to
resist but he held her both arms. He was on top of her
making push and pull movements for four (4) minutes. Then
he dressed up, threatening to kill her should she complain or
tell anyone about the incident.
Sometime in December, 1995 at the family's new residence
at Bayugo, Meycauayan, Bulacan, appellant arrived from
work. When Michelle opened the door and saw him, she got
scared. While he was approaching her, she managed to hit
him. Then she attempted to jump out of the window, but he
dragged her by her feet. At that instance, her uncle (Tito
Onio) suddenly arrived. [3] Immediately, appellant stopped,
thus thwarting his bestial desire.
After sometime, Michelle mustered enough courage to report
the incidents to her mother, but the latter casually ignored
her. So, she turned to her grandmother Natividad Lacanilao,
who brought her, sometime in February, 1996, to the
National Bureau of Investigation (NBI) for examination by a
Page 15 of 53
medico-legal officer.[4] Thereafter, they proceeded to the
Malolos Police Station where she executed a sworn
statement.[5]
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified
that she conducted a medico-genital examination of Michelle
dela Torre. Her findings,[6] which she confirmed on the
witness stand, are as follows:
"GENERAL PHYSICAL EXAMINATION:
Height: 132.0 cms
Weight: 78.0 cms
Normally developed, fairly nourished, conscious, coherent,
cooperative, ambulatory subject.
Breasts, developing, conical, firm. Areolae, brown, 2.5 cms
in diameter. Nipples, brown, protruding, 0.5 cm in diameter.
No sign of extragenital physical injury noted.
"GENETAL EXAMINATION:
Pubic hair, fine, scanty. Labia majora and minora, coaptated.
Fourchette, tense. Vestibular mucosa, pinkish. Hymen,
moderately tall, moderately thick, intact. Hymenal orifice,
annular, admits a tube 2.0 cms in diameter with moderate
resistance. Vaginal walls, tight. Rugosities, prominent.
"CONCLUSIONS:
1. No evident sign of extragenital physical injury
noted on the body of the subject at the time of
examination.
2. Hymen, intact and its orifice small (2.0 cms in
diameter) as to preclude complete penetration by
an average sized adult Filipino male organ in full
erection without producing any genital injury."
For his part, appellant strongly denied the charges,
contending that it was impossible for him to commit the
crimes considering that during the incidents, his wife and her
two sons were also inside the house.[7] Moreover, the charge
of rape is totally belied by the finding of the NBI Medico-
Legal Officer that Michelle's hymen has remained intact with
no sign of extra-genital or genital injuries.
After trial, the lower court rendered a Joint Decision dated
June 19, 1998, the dispositive portion of which reads:
"In view of all the foregoing and by proof beyond reasonable
doubt, the Court hereby renders judgment as follows:
1. With respect to Criminal Case No. 837-M-96, the
Court finds the accused guilty beyond reasonable
doubt of the crime charged and hereby sentences
accused MANOLITO PANCHO to suffer the
penalty of RECLUSION PERPETUA.

2. With respect to Criminal Case No. 838-M-96, the
Court finds the accused guilty beyond reasonable
doubt of the crime of Attempted Rape, and hereby
sentences accused MANOLITO PANCHO to
suffer an imprisonment of TEN (10) YEARS and
ONE (1) DAY to TWELVE (12) YEARS.
3. To indemnify the victim Michelle dela Torre the
amount of P20,000.00 - each case.
"The period of the accused's detention is credited in his
favor.
"SO ORDERED."
In this appeal, appellant ascribes to the trial court the
following errors:
"I
THE LOWER COURT ERRED IN FINDING ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIMES OF RAPE AND ATTEMPTED RAPE,
DESPITE INSUFFICIENCY OF EVIDENCE.
"II
THE LOWER COURT ERRED IN DISREGARDING THE
DEFENSE PUT UP BY ACCUSED-APPELLANT."
As alleged in the Informations, the crimes charged were
committed sometime in August, 1994 and December, 1995.
Thus, the governing law is Article 335[8] of the Revised Penal
Code which, as amended by Republic Act No. 7659 (The
Death Penalty Law),[9] provides:
"ART. 335. When and how rape is committed. - Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or
is demented.
"The crime of rape shall be punished by reclusion perpetua.
xxx
"The death penalty shall also be imposed if the crime or rape
is committed with any of the following attendant
circumstances:
1. When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or
affinity within the third civil degree or the common-
law spouse of the parent of the victim.
2. xxx."
A. - G.R. No. 136592 for rape:
Page 16 of 53
Q: And what happened when you went home at Look,
Rape under the above provisions is either simple or Malolos, Bulacan?
qualified. It is qualified when the age of the victim (below 18) A: Manolito Pancho dragged me and forced me to lie on
and her relationship with the appellant are both alleged in the floor.
the Information and proved.[10] In this case, the prosecution
failed to allege in the Information the qualifying circumstance
that appellant is the victim's step-parent. Thus, he may only
Q: And what happened when after Manolito Pancho lay
be convicted of simple rape.
you on the floor?
A: He took off all my clothes.
Simple rape is committed under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and Q: And what clothes you are wearing at that time, Ms.
3. When the woman is under twelve years of age witness?
(statutory rape) or is demented. A: I was wearing a t-shirt and short, sir.
In the Information, appellant is being charged of statutory
rape considering that Michelle was then below 12 years old.
The gravamen of the offense of statutory rape is carnal Q: What else Manolito Pancho removed?
knowledge of a woman below twelve (12) years old. [11] In
statutory rape, force, intimidation or physical evidence of A: My clothes, short and panty, sir.
injury is immaterial.[12] Where the girl is below 12 years of
age, violence or intimidation is not required, and the only
subject of inquiry is whether carnal knowledge took place.[13]
Q: And what was your appearance after these clothes
As shown by her Certificate of Live Birth,[14] Michelle was
were removed by Manolito Pancho?
born on April 2, 1984. Thus, on August 1, 1994 when the
incident took place, she was only 10 years and 3 months old. A: I was naked, sir.
Michelle identified appellant in open court as the culprit who
raped her. She testified as follows:
"FISCAL: Q: How about Manolito Pancho, what did he do after he
removed your dress?
A: He also took-off his clothes, sir.
Q: Ms. Witness, you claim in your testimony that you
were raped by your step father Manolito Pancho last
August 1, 1994, will you please tell this Honorable Q: What clothes did he remove?
Court how Manolito Pancho raped you?
A: About 6:00 o'clock in the morning I went home, sir. A: His t-shirt, short and brief, sir.
Q: And where is your home located? Q: After Manolito removed all these: his short, brief and t-
shirt, what did he do?
A: I went home at Look First, Malolos, Bulacan. A: He placed himself on top of me.

Q: And what happened after he placed himself on top of
you?
A: He inserted his penis on my vagina.
Q: Were you able to see his organ when he inserted it on
your vagina?
A: Yes, sir.
Q: What happened when he inserted his organ on your
vagina?
A: He was kissing me and touching my body, sir.
Q: What particular parts of your body did Manolito
Pancho kiss and touch, Ms. witness?
A: My both breasts, sir.
Q: And what did you feel when Manolito Pancho inserted
his organ on your vagina?
A: It hurts, sir.
Q: What motion did he do if you can still remember when
Manolito Pancho was on top of you?
A: He was kissing me, touching me and then I tried to
struggle against him but he was holding my both
hands so that I could not struggle.
Q: And what happened to your vagina after he inserted
his penis?
A: It bled, sir.
Q: How long did Manolito Pancho stay on top of you?
A: Four (4) minutes, sir.
Q: And after four (4) minutes, what did Manolito Pancho
do?
A: I already dressed up because he already dressed-up,
sir.
Q: And what did Manolito Pancho tell you, if any?
A: He said, do not complain because if you do so, I am
going to kill you.
Q: How are you related with Manolito Pancho, Ms.
witness?
A: My step father, sir.
Q: At the time you claimed that you were raped by
Manolito Pancho, will you please tell this Honorable
Court, how young were you then?
A: Ten (10) years old, sir.
Q: Do you have evidence to show Ms. witness that you
are ten (10) years old at that time?
A: My birth certificate, sir.
Q: Do you have with you your birth certificate?
A: Yes, sir. (The grandmother is producing the Live Birth
Certificate of the complainant Michelle dela Torre.)
Q: Will you please tell this Honorable Court what is your
date of birth, Ms. witness?
A: April 2, 1984.
Q: And you claimed that you were 10 years old when you
were raped by Manolito Pancho?
Page 17 of 53
A: Yes, sir.
xxx."[15]
Michelle's testimony is straightforward, unflawed by
significant inconsistency, and unshaken by rigid cross-
examination. It deserves full faith and credence. In rape
cases, the accused may be convicted solely on the
testimony of the rape victim if her testimony is credible,
natural, and convincing.[16]
When a woman says she was raped, she says in effect all
that is necessary to show that rape had been committed,
and if her testimony meets the test of credibility, the accused
may be convicted on the basis thereof.[17] It bears stressing
that Michelle, a girl of tender years, innocent and guileless,
cannot be expected to brazenly impute a crime so serious as
rape to her step-father if it were not true.
Appellant vigorously denied the charge, contending that per
the Medical Report of Dr. Ida Daniel, Michelle's hymen has
remained intact.[18]
We are not persuaded.
Appellant heavily relies on the virgo intacta theory.[19] He
disregards Dr. Daniel's testimony that there are two types of
hymen: (1) one that remains intact even though there is
penetration; (2) the other is lacerated after penetration.[20]We
have ruled that in rape cases the absence of fresh
lacerations does not preclude the finding of
rape, [21]especially when the victim is of tender
age.[22] Moreover, laceration of the hymen is not an element
of the crime of rape.[23] Hymenal rupture or any indication of
vaginal laceration or genital injury is not necessary for the
consummation of rape.[24] Its absence does not negate a
finding of forced sexual coitus.[25] For the rule is well settled
that rape is consummated by the slightest penile penetration
of the labia majora or pudendum of the female
organ.[26] Indeed, the evidentiary weight of the medical
examination of the victim, as well as the medical certificate,
is merely corroborative in character and is not an
indispensable element for conviction for rape.[27]
Appellant's denial is an inherently weak defense. It has
always been viewed upon with disfavor by the courts due to
the ease with which it can be concocted.[28] Inherently weak,

denial as a defense crumbles in the light of positive
identification of the accused, as in this case. The defense of
denial assumes significance only when the prosecution's
evidence is such that it does not prove guilt beyond
reasonable doubt.[29] Verily, mere denial, unsubstantiated by
clear and convincing evidence, is negative self-serving
evidence which cannot be given greater evidentiary weight
than the testimony of the complaining witness who testified
on affirmative matters. [30]
B. - G.R. No. 136593 for attempted rape:
Appellant also contends that his conviction of attempted rape
in Criminal Case No. 838-M-96 is not supported by
evidence.
Michelle testified that when appellant "was coming near me,
I hit him and I saw that our door was opened. I tried to jump
and that was the time he dragged and he held my
feet." [31] Appellant and Michelle were in this snap situation
when his Tito Onio arrived.[32] Her testimony regarding this
incident is quoted as follows:
"FISCAL:
xxx
Q: And what happened in that place at Bayugo,
Meycauayan, Bulacan?
A: When the door opened I thought it was my mother and
when I saw him I was scared, sir.
Q: And what happened when you saw Manolito Pancho?
A: I closed the door, sir.
Q: Thereafter, what happened?
A: When he was coming near me, I hit him and I saw that
our door was opened. I tried to jump and that was the
time he dragged and he held my feet.
Q: And what happened after Manolito Pancho held your
feet?
A: When he was holding my feet I was not able to jump
from the window and that's the time the door opened
and then I saw my uncle that is why the rape was not
committed.
xxx."[33]
Under Art. 6, in relation to Art. 335, of the Revised Penal
Code, rape is attempted when the offender commences the
commission of rape directly by overt acts, but does not
perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other
than his own spontaneous desistance. [34]
In this second case, the prosecution failed to prove that
appellant started to rape the victim and had commenced the
performance of acts of carnal knowledge. He did not force
her to lie down or remove her garment. In short, there was
no showing that he did commence at all the performance of
any act indicative of an intent or attempt to rape the victim.
What he did was to "drag" her and hold her feet. At this
juncture, we can not safely conclude that he was attempting
to rape her.
In People vs. Campuhan,[35] we held that the thin line that
separates attempted rape from consummated rape is the
entrance of the male organ into the labial threshold of the
female genitalia. In that case, the accused was caught by
the mother of the victim kneeling on top of her. The victim
testified that the accused's organ merely touched but did not
penetrate her vagina. We held that he could not be convicted
of statutory rape but only attempted rape.
In the instant case, appellant was merely holding
complainant's feet when her Tito Onio arrived at the
alleged locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.
Anent the award of damages in G.R. No. 136592, we
observed that the trial court only awarded the victim civil
indemnity in the amount of P20,000.00. This must be
corrected. We have consistently ruled that upon a finding of
the fact of rape, the award of civil indemnity is mandatory. If
the death penalty is imposed, the indemnity ex delictoshould
be P75,000.00. Where, as here, the death penalty is not
Page 18 of 53
decreed, the victim should be entitled to P50,000.00 only.[36]
In line with current jurisprudence, we also award the victim
moral damages in the amount of P50,000.00 without need of
pleading or proof of the basis thereof.[37] The anguish and
pain she has endured are evident.
WHEREFORE, the Decision dated June 19, 1998 of the
Regional Trial Court, Branch 15, Malolos, Bulacan, in
Criminal Case No. 837-M-96, convicting appellant Manolito
Pancho of rape and sentencing him to suffer the penalty
of reclusion perpetua is AFFIRMED, with the modification
that he is ordered to pay the victim, Michelle dela Torre,
P50,000.00 as civil indemnity, and P50,000.00 as moral
damages.
In Criminal Case No. 838-M-96, the trial court's judgment
convicting the appellant of attempted rape is REVERSED
AND SET ASIDE and a new one is entered ACQUITTING
him of the crime charged.
Costs de oficio.
SO ORDERED.
Vitug, (Chairman), Corona, and Carpio Morales, JJ., concur.
[ GR No. 43530, Aug 03, 1935 ]
PEOPLE v. AURELIO LAMAHANG
DECISION
RECTO, J.:
The defendant Aurelio Lamahang is before this court on
appeal from a decision of the Court of First Instance of Iloilo,
finding him guilty of attempted! robbery and sentencing him
to suffer two years and four months of prisidn correctional
and to an additional penalty of ten years and one day of
prisidn mayor for being an habitual delinquent, with the
accessory penalties of the law, and to pay the costs of the
proceeding.
At early dawn on March 2, 1935, policeman Jose
Tomambing, who was patrolling his beat on Delgado and C.
R. Fuentes streets of the City of Iloilo, caught the accused in
the act of making an opening with an iron bar on the wall of a
store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside
with another Chinaman. The accused had only succeeded in
breaking one board and in unfastening another from the wall,
when the policeman showed up, who instantly arrested him

and placed him under custody.
The fact above stated was considered and declared
unanimously by the provincial fiscal of Iloilo, the trial judge
and the Solicitor-General, as constituting attempted robbery,
which we think is erroneous.
It is our opinion that the attempt to commit an offense which
the Penal Code punishes is that which has a logical relation
to a particular, concrete offense; that, which is the beginning
of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and
consummation. The attempt to commit an indeterminate
offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the
Penal Code. There is no doubt that in the case at bar it was
the intention cf the accused to enter Tan Yu's store by
means of violence, passing through the opening which he
had started to make on the wall, in order to commitan
offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing
penal sanction, that an act objectively performed constitute a
mere beginning of execution; it is necessary to establish its
unavoidable connection, like, the logical and natural relation
of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined
and punished by the Codej it is necessary to prove that said
beginning of execution, if carried to its complete termination
following its natural course, without being frustrated by
external obstacles nor by the voluntary desistahce pf the
perpetrator, will logically and necessarily ripen into a
concrete offense. Thus, in case of robbery, in order that the
simple act of entering by means of force or violence another
person's dwelling may be considered an attempt to commit
this offense, it must be shown that the offender clearly
intended to take possession, for the purpose of gain, of
some personal property belonging to another. In the instant
case, there is nothing in the record from which such purpose
of the accused may reasonably be inferred. From the fact
established and stated in the decision, that the accused on
the day in question was making an opening by means of an
iron bar on the wall of Tan Yu's store, it may only be inferred
as a logical conclusion that his evident intention was to enter
by means of force said store against the will of its owner.
That his final objective, once he succeeded in entering the
store, was to rob, to, cause physical injury to the inmates, or
to commit any other offense, there is nothing in the record to
justify a concrete finding.
"It must be borne in mind (I Groizard, p. 99) that in offenses
not consummated, as the material damage is wanting, the
nature of the action intended (action fin) cannot exactly be
ascertained, but the same must be inferred from the nature
of the acts executed {action medio). Hence, the necessity
that these acts be such that by their very nature, by the facts
to which they are related, by the circumstances of the
persons performing the same, and by the things connected
therewith, they must show without any doubt, that they are
aimed at the consummation of a crime. Acts susceptible of
double interpretation, that is, in favor as well as against the
culprit, and which show an innocent as well as a punishable
act, must not and can not furnish grounds by themselves for
attempted nor frustrated crimes. The relation existing
between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the
intention must be ascertained from the facts and therefore it
is necessary, in order to avoid regrettable instances of
injustice, that the mind be able to directly infer from them the
intention of the perpetrator to cause a particular injury. This
must have been the intention of the legislator in requiring
that in order for an attempt to exist, the offender must
commence the commission of the felony directly by overt
acts, that is to say, that the acts performed must be such
that, without the intent to commit an offense, they would be
meaningless."
Viada Vol. I, p. 47) holds the same opinion when he says
that "the overt acts leading to the commission of the offense,
are not punishable except when they are aimed directly to its
execution, and therefore they must have an immediate and
necessary relation to the offense."
"Considering says the Supreme Court of Spain in its decision
of March 21, 1892 that in order to declare that such and
such overt acts constitute an attempted offense it is
necessary that their objective be known and established, or
that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily
intended, said objective and finalityto serve as ground for the
designation of the offense: * * *."
In view of the foregoing, we are of the opinion, and so hold
that the fact under consideration does not constitute
attempted robbery but attempted trespass to dwelling
(People vs. Tayag and Morales, 59 Phil., 606, and decisions
of the Supreme Court of Spain therein cited). Under article
280 of the Revised Penal Code, this offense is committed
when a private person shall enter the dwelling of another
against the latter's will. The accused may be convicted and
sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation
contained in the information: "* * * the accused armed with
Page 19 of 53
an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said,!
store * * * and that the accused did not succeed m entering
the store due to the presence of the policeman on; beat Jose
Tomambing, who upon hearing the noise produced by the
breaking of the wall, promptly approached f$e accused * * V
Under the circumstances of thisicase the prohibition of the
owner or inmate is presumed. (U. S. vs. Ostrea^ 2 Phil., 93;
U. S. vs. SHvano, 31 Phil., 509 ^U. S'. vs. Ticson, 25 Phil.,
67; U. S. vs. Mesina, 21 Phil., 615; U. S. vs. VillanuevaTl8
Phil., 215; U. S, vs. Panes, 25 Phil., 292.) Against the
accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions,
inasmuch as the record shows that several final judgments
for robbery and theft have been rendered against him and in
his favor, the mitigating circumstance of lack of instruction.
The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as
this is the very fact which in this case constitutes the offense
of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the
consummated offense of trespass to dwelling, if committed
with force, is prision correctional in its medium and maximum
periods and a fine not exceeding P1,000 (art. 280, par. 2);
therefore the penalty corresponding to attempted trespass to
dwelling is two degrees lower (art. 51), or, arresto mayor in
its minimum and medium periods. Because of the presence
of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum
period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the
accused1 is hereby held guilty of attempted trespass to
dwelling, committed by means of force, with the aforesaid
aggravating and mitigating circumstances and sentenced to
three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Fickers, JJ., concur.
Judgment revoked and defendant found Muilty of attempted
trespass to dwelling.
[ G. R. NO. 160188, June 21, 2007 ]
ARISTOTEL VALENZUELA Y NATIVIDAD, PETITIONER,
VS. PEOPLE OF THE PHILIPPINES AND HON. COURT
OF APPEALS, RESPONDENTS.

DECISION
TINGA, J.:
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.
[2]
As far as can be told, 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
prosecutor's office where he was charged with
theft.[14] During petitioner's cross-examination, he admitted
Page 20 of 53
that he had been employed as a "bundler" of GMS
Marketing, "assigned at the supermarket" though not at
SM.[15]
In a Decision[16] promulgated on 1 February 2000, the
Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision
correccional as minimum to seven (7) years of prision
mayor as maximum.[17]The RTC found credible the
testimonies of the prosecution witnesses and established the
convictions on the positive identification of the accused as
perpetrators of the crime.
Both accused filed their respective Notices of Appeal,[18] but
only petitioner filed a brief[19] with the Court of Appeals,
causing the appellate court to deem Calderon's appeal as
abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted
of frustrated theft since at the time he was apprehended, he
was never placed in a position to freely dispose of the
articles stolen.[20] However, in its Decision dated 19 June
2003,[21] the Court of Appeals rejected this contention and
affirmed petitioner's conviction.[22] Hence the present Petition
for Review,[23] which expressly seeks that petitioner's
conviction "be modified to only of Frustrated Theft."[24]
Even in his appeal before the Court of Appeals, petitioner
effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a
total value of P12,090.00 of which he was charged.[25] As
such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only
question to consider is whether under the given facts, the
theft should be deemed as consummated or merely
frustrated.
II.
In arguing that he should only be convicted of frustrated
theft, petitioner cites[26] two decisions rendered many years
ago by the Court of Appeals: People v. Diño[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 Diño 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, Diño and Floreshave
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 Diño 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 Diño and Flores. The
fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates
that Diñoand 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 Diño 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
Page 21 of 53
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 latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall
fail to deliver the same to the local authorities or to
its owner;
2. Any person who, after having maliciously
damaged the property of another, shall remove or
make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a
field where trespass is forbidden or which belongs
to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather
cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and
three alternative and highly idiosyncratic means by which
theft may be committed.[41] In the present discussion, we
need to concern ourselves only with the general definition
since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition,
there is only one operative act of execution by the actor

involved in theft ─ the taking of personal property of
another. It is also clear from the provision that in order that
such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was
with intent to gain; without force upon things or violence
against or intimidation of persons; and it was without the
consent of the owner of the property.
Indeed, we have long recognized the following elements of
theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property;
(2) that said property belongs to another; (3) that the taking
be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or
intimidation of persons or force upon things.[42]
In his commentaries, Judge Guevarra traces the history of
the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass
"any kind of physical handling of property belonging to
another against the will of the owner,"[43] a definition similar
to that by Paulus that a thief "handles (touches, moves) the
property of another."[44] However, with the Institutes of
Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of
acquiring gain from the object, thus: "[f]urtum est contrectatio
rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam
usus ejus possessinisve."[45] This requirement of animo
lucrandi, or intent to gain, was maintained in both the
Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded
with apoderamiento, or "unlawful taking," to characterize
theft. Justice Regalado notes that the concept
of apoderamiento once had a controversial interpretation
and application. Spanish law had already discounted the
belief that mere physical taking was constitutive
of apoderamiento, finding that it had to be coupled with "the
intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing."[47] However, a
conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the
taking[48] or an intent to permanently deprive the owner of the
stolen property;[49] or that there was no need for permanency
in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary
rights of the owner already
constituted apoderamiento.[50] Ultimately, as Justice
Regalado notes, the Court adopted the latter thought that
there was no need of an intent to permanently deprive the
owner of his property to constitute an unlawful taking. [51]
So long as the "descriptive" circumstances that qualify the
taking are present, including animo
lucrandi and apoderamiento, the completion of the operative
act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the
attempted stage. As applied to the present case, the
moment petitioner obtained physical possession of the cases
of detergent and loaded them in the pushcart, such seizure
motivated by intent to gain, completed without need to inflict
violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM
Super Sales Club, petitioner forfeited the extenuating benefit
a conviction for only attempted theft would have afforded
him.
On the critical question of whether it was consummated or
frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that
provision, the theft would have been frustrated only, once
the acts committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, "do not produce [such theft]
by reason of causes independent of the will of the
perpetrator." There are clearly two determinative factors to
consider: that the felony is not "produced," and that such
failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the
evidence at hand in each particular case. The first, however,
relies primarily on a doctrinal definition attaching to the
individual felonies in the Revised Penal Code[52] as to when
a particular felony is "not produced," despite the commission
of all the acts of execution.
So, in order to ascertain whether the theft is consummated
or frustrated, it is necessary to inquire as to how exactly is
the felony of theft "produced." Parsing through the statutory
definition of theft under Article 308, there is one apparent
answer provided in the language of the law – that theft is
already "produced" upon the "tak[ing of] personal property of
another without the latter's consent."
U.S. v. Adiao[53] apparently supports that notion. Therein, a
customs inspector was charged with theft after he abstracted
a leather belt from the baggage of a foreign national and
secreted the item in his desk at the Custom House. At no
time was the accused able to "get the merchandise out of
the Custom House," and it appears that he "was under
observation during the entire transaction."[54] Based
Page 22 of 53
apparently on those two circumstances, the trial court had
found him guilty, instead, of frustrated theft. The Court
reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated
theft, finding that "all the elements of the completed crime of
theft are present."[55] In support of its conclusion that the theft
was consummated, the Court cited three (3) decisions of the
Supreme Court of Spain, the discussion of which we
replicate below:
The defendant was charged with the theft of some fruit from
the land of another. As he was in the act of taking the fruit[,]
he was seen by a policeman, yet it did not appear that he
was at that moment caught by the policeman but sometime
later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft
instead of frustrated theft inasmuch as nothing appears in
the record showing that the policemen who saw the accused
take the fruit from the adjoining land arrested him in the act
and thus prevented him from taking full possession of the
thing stolen and even its utilization by him for an interval of
time." (Decision of the Supreme Court of Spain, October 14,
1898.)
Defendant picked the pocket of the offended party while the
latter was hearing mass in a church. The latter on account of
the solemnity of the act, although noticing the theft, did not
do anything to prevent it. Subsequently, however, while the
defendant was still inside the church, the offended party got
back the money from the defendant. The court said that the
defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and
by means of a key opened up a case, and from the case
took a small box, which was also opened with a key, from
which in turn he took a purse containing 461 reales and 20
centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards
who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x]
The accused [x x x] having materially taken possession of
the money from the moment he took it from the place where
it had been, and having taken it with his hands with intent to
appropriate the same, he executed all the acts necessary to
constitute the crime which was thereby produced; only the
act of making use of the thing having been frustrated, which,
however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of
Spain, June 13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3)
Spanish decisions cited therein, that the criminal actors in all
these cases had been able to obtain full possession of the
personal property prior to their apprehension. The interval
between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later"
in the 1898 decision; to the very moment the thief had just
extracted the money in a purse which had been stored as it
was in the 1882 decision; and before the thief had been able
to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision.
Still, such intervals proved of no consequence in those
cases, as it was ruled that the thefts in each of those cases
was consummated by the actual possession of the property
belonging to another.
In 1929, the Court was again confronted by a claim that an
accused was guilty only of frustrated rather than
consummated theft. The case is People v.
Sobrevilla,[57] where the accused, while in the midst of a
crowd in a public market, was already able to abstract a
pocketbook from the trousers of the victim when the latter,
perceiving the theft, "caught hold of the [accused]'s shirt-
front, at the same time shouting for a policeman; after a
struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman."[58] In
rejecting the contention that only frustrated theft was
established, the Court simply said, without further comment
or elaboration:
We believe that such a contention is groundless. The
[accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was
afterwards recovered, such recovery does not affect the
[accused's] criminal liability, which arose from the [accused]
having succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the
Spanish Supreme Court cases cited in the latter, in that the
fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions
cited therein contradict the position of petitioner in this case.
Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when
theft is consummated, as reflected in
the Diño and Flores decisions.
Diño 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]
Diño 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
Page 23 of 53
frustrated. This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no
substantial variance between the circumstances [herein] and
in [Diño]."[64] Such conclusion is borne out by the facts
in Flores. The accused therein, a checker employed by the
Luzon Stevedoring Company, issued a delivery receipt for
one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of
the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of
the terminal. However, the guards insisted on inspecting the
van, and discovered that the "empty" sea van had actually
contained other merchandise as well.[65] The accused was
prosecuted for theft qualified by abuse of confidence, and
found himself convicted of the consummated crime. Before
the Court of Appeals, accused argued in the alternative that
he was guilty only of attempted theft, but the appellate court
pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that "literally frustrated
the theft." However, the Court of Appeals, explicitly relying
on Diño, 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 Diño and Flores then before it.
The prosecution in Flores had sought to distinguish that case
from Diño, 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 Diño 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 Diño 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 Diño ruling:
There is a ruling of the Court of Appeals that theft is
consummated when the thief is able to freely dispose of the
stolen articles even if it were more or less momentary. Or as
stated in another case[[69]], theft is consummated upon the
voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the
thing whereby the thief places it under his control and in
such a situation that he could dispose of it at once. This
ruling seems to have been based on Viada's opinion that in
order the theft may be consummated, "es preciso que se
haga en circumstancias 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 Diño 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 Diño, 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 Diño 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 Court's 1984 decision in Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut plantation
had espied four (4) persons in the premises of his plantation,
in the act of gathering and tying some coconuts. The
accused were surprised by the owner within the plantation
as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested
after the owner reported the incident to the police. After trial,
the accused were convicted of qualified theft, and the issue
they raised on appeal was that they were guilty only of
simple theft. The Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal Code,[79] but
further held that the accused were guilty only of frustrated
qualified theft.
It does not appear from the Empelis decision that the issue
of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is
that the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified
theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as
Page 24 of 53
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 Diño, 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 España 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 ánimo de lucrarse, y sin volencia o
intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.
2. Los que encontrándose una cosa perdida y
sabiendo quién es su dueño se la apropriaren co
intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los
frutos u objeto del daño causado, salvo los casos
previstos en los artículos 606, núm. 1.0; 607,
núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo 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 Codigo
Penal Español de 1995, the the crime of theft is now simply
defined as '[e]l que, con ánimo de lucro, Codigo Penal
Español de 1995,tomare las cosas muebles ajenas sin la
voluntad de su dueño será 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
España. Therein, he raised at least three questions for the
reader whether the crime of frustrated or consummated theft
had occurred. The passage cited in Diño 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, viéndose
sorprendido, la arroja al suelo."[83] Even as the answer was
as stated in Diño, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decision's
factual predicate occasioning the statement was apparently
very different from Diño, 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 Calén pointed out the
inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las
guardias cuando llevaban los sacos de harino del carro que
los conducia a otro que tenían preparado, 22 febrero 1913;
cuando el resultado no tuvo efecto por la intervención de la
policia situada en el local donde se realizó la sustracción
que impidió pudieran los reos disponer de lo sustraído, 30
de octubre 1950. Hay "por lo menos" frustración, si existe
apoderamiento, pero el culpale no llega a disponer de la
cosa, 12 abril 1930; hay frustración "muy próxima" cuando el
culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustración 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, éstos,
conforme a lo antes expuesto, son hurtos consumados.[86]
Ultimately, Cuello Calón 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
disposición del agente. Con este criterio coincide la doctrina
sentada últimamente porla jurisprudencia española que
generalmente considera consumado el hurto cuando el
culpable coge o aprehende la cosa y ésta quede por tiempo
más o menos duradero bajo su poder. El hecho de que éste
pueda aprovecharse o no de lo hurtado es indiferente. El
delito no pierde su carácter de consumado aunque la cosa
hurtada sea devuelta por el culpable o fuere recuperada. No
se concibe la frustración, pues es muy dificil que el que
hace cuanto es necesario para la consumación del hurto
no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara hurtos
frustrados son verdaderos delitos
consumados.[87] (Emphasis supplied)
Cuello Calón's submissions cannot be lightly ignored. Unlike
Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Calón
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 consumación del
hurto no lo consume efectivamente." Otherwise put, it would
Page 25 of 53
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 Diño 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
Calón's position.
Accordingly, it would not be intellectually disingenuous for
the Court to look at the question from a fresh perspective, as
we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we
ask the question whether there is a mandate of statute or
precedent that must compel us to adopt
the Diño 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 Diño/Flores dictum. The ability of the offender to freely

dispose of the property stolen is not a constitutive element of
the crime of theft. It finds no support or extension in Article
308, whether as a descriptive or operative element of theft or
as the mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the crime of
theft as provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or
intimidation of persons or force upon things.[90]
Such factor runs immaterial to the statutory definition of theft,
which is the taking, with intent to gain, of personal property
of another without the latter's consent. While
the Diño/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft is susceptible
of commission in the frustrated stage, the question is again,
when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when
there is deprivation of personal property due to its taking by
one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is
able or unable to freely dispose of the property stolen since
the deprivation from the owner alone has already ensued
from such acts of execution. This conclusion is reflected in
Chief Justice Aquino's commentaries, as earlier cited, that
"[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the
thing was frustrated."[91]
It might be argued, that the ability of the offender to freely
dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the
actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade
the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been
completed, the "taking not having been accomplished."
Perhaps this point could serve as fertile ground for future
discussion, but our concern now is whether there is indeed a
crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We are
satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he
acquired physical possession of the stolen cases of
detergent for a considerable period of time that he was able
to drop these off at a spot in the parking lot, and long enough
to load these onto a taxicab.
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 lucrandiand
without the consent of the owner; and it will be here noted
that the definition does not require that the taking should be
effected against the will of the owner but merely that it
should be without his consent, a distinction of no slight
importance.[94]
Insofar as we consider the present question, "unlawful
taking" is most material in this respect. Unlawful taking,
which is the deprivation of one's personal property, is the
element which produces the felony in its consummated
stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under
Article 308 of the Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be attempted or
consummated.
Neither Diño 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
Page 26 of 53
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 Diño?
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 Diño/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. Diño itself did not rely on Philippine laws or
jurisprudence to bolster its conclusion, and the
later Flores was ultimately content in relying on Diño 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 Diño 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.
Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, Chico-
Nazario, Garcia, Velasco, Jr., and Nachura, JJ., concur.
Quisumbing, J., on official leave.
[ G.R. No. 206442, July 01, 2015 ]
JOVITO CANCERAN, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse
and set aside the August 10, 2012 Decision[1] and the March
7, 2013 Resolution[2] of the Court of Appeals (CA), in CA-
G.R. CR No. 00559, which affirmed and modified the
September 20, 2007 Judgment[3] of the Regional Trial Court,
Branch 39, Misamis Oriental, Cagayan de Oro City (RTC), in
Criminal Case No. 2003-141, convicting petitioner Jovito
Canceran (Canceran) for consummated Theft.
The records disclose that Caneeran, together with Frederick
Vequizo and Marcial Diaz, Jr., was charged with "Frustrated
Theft." The Information reads:
That on or about October 6, 2002, at more or less 12:00
noon, at Ororama Mega Center Grocery Department,
Lapasan, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, Jovito Caneeran, conspiring, confederating
together and mutually helping one another with his co-
accused Frederick Vequizo, URC Merchandiser, and Marcial
Diaz, Jr., a Unilever Philippines merchandiser both of
Ororama Mega Center, with intent to gain and without the
knowledge and consent of the owner thereof, did then and
there wilfully, unlawfully and feloniously take, steal and carry
away 14 cartons of Ponds White Beauty Cream valued at
P28,627,20, belonging to Ororama Mega Center,
represented by William Michael N. Arcenio, thus, performing
all the acts of execution which would produce the crime of
theft as a consequence but, nevertheless, did not produce it
by reason of some cause independent of accused's will, that
is, they were discovered by the employees of Ororama Mega
Center who prevented them from further carrying away said
14 cartons of Ponds White Beauty Cream, to the damage
and prejudice of the Ororama Mega Center.
Article 308 in relation to Article 309, and 6 of the Revised
Penal Code.[4]
Version of the Prosecution
To prove the guilt of the accused, the prosecution presented
Damalito Ompoc (Ompoc), a security guard; and William
Michael N. Arcenio (Arcenio), the Customer Relation Officer
of Ororama Mega Center (Ororama), as its witnesses.
Through their testimonies, the prosecution established that
on or about October 6, 2002, Ompoc saw Caneeran
approach one of the counters in Ororama; that Caneeran
was pushing a cart which contained two boxes of Magic
Flakes for which he paid P1,423.00; that Ompoc went to the
packer and asked if the boxes had been checked; that upon
inspection by Ompoc and the packer, they found out that the
contents of the two boxes were not Magic Flakes biscuits,
but 14 smaller boxes of Ponds White Beauty Cream worth
P28,627.20; that Caneeran hurriedly left and a chase
ensued; that upon reaching the Don Mariano gate, Caneeran
stumbled as he attempted to ride a jeepney; that after being
questioned, he tried to settle with the guards and even
offered his personal effects to pay for the items he tried to
take; that Arcenio refused to settle; and that his personal
belongings were deposited in the office of Arcenio.[5]
Version of the Defense
Canceran vehemently denied the charges against him. He
claimed that he was a promo merchandiser of La Tondena,
Inc. and that on October 6, 2002, he was in Ororama to buy
medicine for his wife. On his way out, after buying medicine
and mineral water, a male person of around 20 years of age
requested him to pay for the items in his cart at the cashier;
that he did not know the name of this man who gave him
P1,440.00 for payment of two boxes labelled Magic Flakes;
that he obliged with the request of the unnamed person
because he was struck by his conscience; that he denied
knowing the contents of the said two boxes; that after paying
at the cashier, he went out of Ororama towards Limketkai to
take a jeepney; that three persons ran after him, and he was
caught; that he was brought to the 4th floor of Ororama,
Page 27 of 53
where he was mauled and kicked by one of those who
chased him; that they took his Nokia 5110 cellular phone
and cash amounting to P2,500.00; and that Ompoc took his
Seiko watch and ring, while a certain Amion took his
necklace.[6]
Canceran further claimed that an earlier Information for theft
was already filed on October 9, 2002 which was eventually
dismissed. In January 2003, a second Information was filed
for the same offense over the same incident and became the
subject of the present case.[7]
The Ruling of the Regional Trial Court
In its Judgment, dated September 20, 2007, the RTC found
Canceran guilty beyond reasonable doubt of consummated
Theft in line with the ruling of the Court in Valenzuela v.
People[8] that under Article 308 of the Revised Penal Code
(RPC), there is no crime of "Frustrated Theft." Canceran was
sentenced to suffer the indeterminate penalty of
imprisonment from ten (10) years and one (1) day to ten (10)
years, eight (8) months of prision mayor, as minimum, to
fourteen (14) years, eight (8) months of reclusion temporal,
as maximum.[9]
The RTC wrote that Canceran's denial deserved scant
consideration because it was not supported by sufficient and
convincing evidence and no disinterested witness was
presented to corroborate his claims. As such, his denial was
considered self-serving and deserved no weight. The trial
court was also of the view that his defense, that the
complaint for theft filed against him before the sala of Judge
Maximo Paderanga was already dismissed, was not
persuasive. The dismissal was merely a release order
signed by the Clerk of Court because he had posted bail.[10]
The Ruling of the Court of Appeals
Aggrieved, Canceran filed an appeal where he raised the
issue of double jeopardy for the first time. The CA held that
there could be no double jeopardy because he never
entered a valid plea and so the first jeopardy never
attached.[11]
The CA also debunked Canceran's contention that there was
no taking because he merely pushed the cart loaded with
goods to the cashier's booth for payment and stopped there.
The appellate court held that unlawful taking was deemed
complete from the moment the offender gained possession
of the thing, even if he had no opportunity to dispose of the
same.[12]

The CA affirmed with modification the September 20, 2007
judgment of the RTC, reducing the penalty ranging from two
(2) years, four (4) months and one (1) day of prision
correccional, as minimum, to eight (8) years, eight (8)
months and one (1) day of prision mayor, as maximum.
Canceran moved for the reconsideration of the said decision,
but his motion was denied by the CA in its March 7, 2013
resolution.
Hence, this petition.
As can be synthesized from the petition and other pleadings,
the following are the issues: 1] whether Canceran should be
acquitted in the crime of theft as it was not charged in the
information; and 2] whether there was double jeopardy.
Canceran argues that the CA erred in affirming his
conviction. He insists that there was already double jeopardy
as the first criminal case for theft was already dismissed and
yet he was convicted in the second case. Canceran also
contends that there was no taking of the Ponds cream
considering that "the information in Criminal Case No. 2003-
141 admits the act of the petitioner did not produce the crime
of theft."[13] Thus, absent the element of taking, the felony of
theft was never proved.
In its Comment,[14] the Office of the Solicitor General (OSG)
contended that there was no double jeopardy as the first
jeopardy never attached. The trial court dismissed the case
even before Canceran could enter a plea during the
scheduled arraignment for the first case. Further, the
prosecution proved that all the elements of theft were
present in this case.
In his Reply,[15] Canceran averred that when the arraignment
of the first case was scheduled, he was already bonded and
ready to enter a plea. It was the RTC who decided that the
evidence was insufficient or the evidence lacked the element
to constitute the crime of theft. He also stressed that there
was no unlawful taking as the items were assessed and paid
for.
The Court's Ruling
The Court finds the petition partially meritorious.
Constitutional Right of the Accused to be Informed of the
Nature and Cause of Accusation against Him.
No less than the Constitution guarantees the right of every
person accused in a criminal prosecution to be informed of
the nature and cause of accusation against him.[16] It is
fundamental that every element of which the offense is
composed must be alleged in the complaint or information.
The main purpose of requiring the various elements of a
crime to be set out in the information is to enable the
accused to suitably prepare his defense. He is presumed to
have no independent knowledge of the facts that constitute
the offense.[17]
Under Article 308 of the RPC, the essential elements of theft
are (1) the taking of personal property; (2) the property
belongs to another; (3) the taking away was done with intent
of gain; (4) the taking away was done without the consent of
the owner; and (5) the taking away is accomplished without
violence or intimidation against person or force upon things.
"Unlawful taking, which is the deprivation of one's personal
property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful
taking as an act of execution, the offense could only be
attempted theft, if at all."[18]
"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."[19]
A careful reading of the allegations in the Information would
show that Canceran was charged with "Frustrated Theft"
only. Pertinent parts of the Information read:
x x x did then and there wilfully, unlawfully and feloniously
take, steal and carry away 14 cartons of Ponds White
Beauty Cream valued at P28,627,20, belonging to Ororama
Mega Center, represented by William Michael N. Arcenio,
thus performing ail the acts of execution which would
produce the crime of theft as a consequence, but
nevertheless, did not produce it by reason of some
cause independent of accused's will x x x.
[Emphasis and Underscoring Supplied]
As stated earlier, there is no crime of Frustrated Theft. The
Information can never be read to charge Canceran of
consummated Theft because the indictment itself stated that
the crime was never produced. Instead, the Information
should be construed to mean that Canceran was being
charged with theft in its attempted stage only. Necessarily,
Canceran may only be convicted of the lesser crime of
Attempted Theft.
Page 28 of 53
"[A]n accused cannot be convicted of a higher offense than
that with which he was charged in the complaint or
information and on which he was tried. It matters not how
conclusive and convincing the evidence of guilt may be, an
accused cannot be convicted in the courts of any offense,
unless it is charged in the complaint or information on which
he is tried, or necessarily included therein. He has a right to
be informed as to the nature of the offense with which he is
charged before he is put on trial, and to convict him of an
offense higher than that charged in the complaint or
information on which he is tried would be an unauthorized
denial of that right."[20]
Indeed, an accused cannot be convicted of a crime, even if
duly proven, unless it is alleged or necessarily included in
the information filed against him.[21] An offense charged
necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.[22]
The crime of theft in its consummated stage undoubtedly
includes the crime in its attempted stage. In this case,
although the evidence presented during the trial prove the
crime of consummated Theft, he could be convicted of
Attempted Theft only. Regardless of the overwhelming
evidence to convict him for consummated Theft, because the
Information did not charge him with consummated Theft, the
Court cannot do so as the same would violate his right to be
informed of the nature and cause of the allegations against
him, as he so protests.
The Court is not unmindful of the rule that "the real nature of
the criminal charge is determined, not from the caption or
preamble of the information nor from the specification of the
law alleged to have been violated - these being conclusions
of law - but by the actual recital of facts in the complaint or
information."[23] In the case of Domingo v. Rayala,[24] it was
written:
What is controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or
part thereof allegedly violated, these being mere conclusions
of law made by the prosecutor, but the description of the
crime charged and the particular facts therein recited.
The acts or omissions complained of must be alleged in
such form as is sufficient to enable a person of common
understanding to know what offense is intended to be
charged, and enable the court to pronounce proper
judgment. No information for a crime will be sufficient if it
does not accurately and clearly allege the elements of the
crime charged. Every element of the offense must be stated

in the information. What facts and circumstances are
necessary to be included therein must be determined by
reference to the definitions and essentials of the specified
crimes. The requirement of alleging the elements of a crime
in the information is to inform the accused of the nature of
the accusation against him so as to enable him to suitably
prepare his defense.[25]
In the subject information, the designation of the prosecutor
of the offense, which was "Frustrated Theft," may be just his
conclusion. Nevertheless, the fact remains that the charge
was qualified by the additional allegation, but, nevertheless,
did not produce it by reason of some cause independent of
accused's will, that is, they were discovered by the
employees of Ororama Mega Center who prevented them
from further carrying away said 14 cartons of Ponds White
Beauty Cream, x x x[26] This averment, which could also be
deemed by some as a mere conclusion, rendered the charge
nebulous. There being an uncertainty, the Court resolves the
doubt in favor of the accused, Canceran, and holds that he
was not properly informed that the charge against him was
consummated theft.
No double jeopardy when the first jeopardy never attached
Anent the issue of double jeopardy, the Court finds no
reason to deviate from the ruling of the CA.
No person shall be twice put in jeopardy for punishment for
the same offense. The rule of double jeopardy has a settled
meaning in this jurisdiction. It means that when a person is
charged with an offense and the case is terminated either by
acquittal or conviction or in any other manner without the
consent of the accused, the latter cannot again be charged
with the same or identical offense. This principle is founded
upon the law of reason, justice and conscience.[27]
Canceran argues that double jeopardy exists as the first
case was scheduled for arraignment and he, already
bonded, was ready to enter a plea. It was the RTC who
decided that there was insufficient evidence to constitute the
crime of theft.
To raise the defense of double jeopardy, three requisites
must be present: (1) a first jeopardy must have attached
prior to the second; (2) the first jeopardy must have been
validly terminated; and (3) the second jeopardy must be for
the same offense as that in the first. Legal jeopardy attaches
only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been
entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused.[28]
Here, the CA correctly observed that Canceran never raised
the issue of double jeopardy before the RTC. Even
assuming that he was able to raise the issue of double
jeopardy earlier, the same must still fail because legal
jeopardy did not attach. First, he never entered a valid plea.
He himself admitted that he was just about to enter a plea,
but the first case was dismissed even before he was able to
do so. Second, there was no unconditional dismissal of the
complaint. The case was not terminated by reason of
acquittal nor conviction but simply because he posted bail.
Absent these two elements, there can be no double
jeopardy.
Penalty of Attempted Theft
The penalty for consummated theft is prision mayor in its
minimum and medium periods.[29] The penalty lower by two
degrees than that prescribed by law for the consummated
felony shall be imposed upon principals in an attempt to
commit a felony.[30] The basis for reduction of penalty by two
degrees is the penalty prescribed by law for the
consummated crime. Also, when the offenses defined in the
RPC are punished with a penalty composed of two periods,
like in the crime of theft, the penalty lower by one degree is
formed by two periods to be taken from the same penalty
prescribed.[31]
Here, the products stolen were worth P28,627.20. Following
Article 309 par. 1 of the RPC, the penalty shall be the
maximum period of the penalty prescribed in the same
paragraph, because the value of the things stolen exceeded
P22,000.00. In other words, a special aggravating
circumstance shall affect the imposable penalty.
Applying the Indeterminate Sentence Law, the minimum
penalty should be within the range of Arresto MayorMinimum
to Arresto Mayor Medium. In view of the special aggravating
circumstance under Article 309 (1), the maximum penalty
should be Arresto Mayor Maximum to Prision
Correccional Minimum in its maximum period.
WHEREFORE, the petition is PARTIALLY GRANTED. The
August 10, 2012 Decision and the March 7, 2013 Resolution
of the Court of Appeals m CA-G.R. CR No. 00559 are
hereby MODIFIED, in that, the Court finds accused Jovito
Canceran guilty beyond reasonable doubt of the crime of
Attempted Theft.
Accordingly, the Court sentences the accused to suffer the
indeterminate prison term ranging from Four (4) Months
Page 29 of 53
of Arresto Mayor, as minimum, to Two (2) Years, Four (4)
Months of Prision Correccional, as maximum.
SO ORDERED.
Carpio, (Chairperson), Bersamin*, Del Castillo, and Leonen,
JJ., concur.
[ GR No. 26298, Jan 20, 1927 ]
PEOPLE v. JULIAN ERINIA Y VINOLLA
DECISION
OSTRAND, J.:
This is an appeal from a judgment of the Court of First
Instance of Manila finding the defendant guilty of the crime of
consummated rape and sentencing him to suffer seventeen
years, four months and one day of reclusion temporal, with
the accessory penalties provided by law and to pay the
costs.
The victim of the crime was a child of 3 years and 11 months
old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there
may be some doubt whether he succeeded in penetrating
the vagina before being disturbed by the timely intervention
of the mother and the sister of the child. The physician who
examined the genital organ of the child a few hours after the
commission of the crime found a slight inflammation of the
exterior parts of the organ, indicating that an,effort had been
made to enter the vagina, but in testifying before the court he
expressed doubts as to whether the entry had been effected.
The mother of the child testified that she found its genital
organ covered with a sticky substance, but that cannot be
considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age
that penetration was impossible; that the crime of rape
consequently was impossible of consummation; and that,
therefore, the offense committed should be treated only
as abusos deshonestos. We do not think so. It is probably
true that a complete penetration was impossible, but such
penetration is not essential to the commission of the crime; it
is sufficient if there is a penetration of the labia. In the case
of Kenney vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L.
R. A., 316) where the offended party was a child of the age
of 3 years and 8 months, the testimony of several physicians
was to the effect that the labia of the privates of a child of
that age can be entered by a man's male organ to the hymen
and the defendant was found guilty of the consummated
crime of rape.

There being no conclusive evidence of penetration of the
genital organ of the offended party, the defendant is entitled
to the benefit of the doubt and can only be found guilty of
frustrated rape, but in view of the fact that he was living in
the house of the parents of the child as their guest, the
aggravating circumstance of abuse of confidence existed
and the penalty must therefore be imposed in its maximum
degree.
The judgment appealed from is modified and the defendant-
appellant is hereby found guilty of the crime of frustrated
rape,and is sentenced to suffer twelve years of prision
mayor, with the accessory penalties prescribed by law, and
with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez, and Villa-Real,
JJ., concur.
MALCOLM, J., dissenting:
In my opinion, the accused is guilty of raping a child 3 years
and 11 months of age. It is consummated rape according to
the evidence of record, the findings of the trial judge, and our
decisions. (People vs. Hernandez [1925], 49 Phil., 980;
People vs. Oscar [1925], 48 Phil, 527.) The instant case is
on all fours with the case of Kenney vs. State (65 L. R. A.,
316), cited in the majority decision. In the Kenney case, the
penalty was death, and here for this horrible crime, should
be placed in the maximum degree, or seventeen years, four
months, and one day imprisonment, as imposed by the trial
court. Accordingly, my vote is for affirmance of the judgment.
Judgment modified.
[ GR NO. 88724, Apr 03, 1990 ]
PEOPLE v. CEILITO ORITA
DECISION
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the
crime of rape in Criminal Case No. 83-031-B before the
Regional Trial Court, Branch II, Borongan, Eastern
Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
"The undersigned Second Assistant Provincial Fiscal upon
prior complaint under oath by the offended party, accuses
CEILITO ORITA alias LITO of the crime of Rape committed
as follows:
"That on March 20, 1983, at about 1:30 o'clock in the
morning inside a boarding house at Victoria St., Poblacion,
Borongan, Eastern Samar, Philippines, and within the
jurisdiction of this Honorable Court, above?named accused
with lewd designs and by the use of a Batangas knife he
conveniently provided himself for the purpose and with
threats and intimidation, did, then and there wilfully,
unlawfully and feloniously lay with and succeeded in having
sexual intercourse with Cristina S. Abayan against her will
and without her consent.
"CONTRARY TO LAW."
Upon being arraigned, the accused entered the plea of not
guilty to the offense charged. After the witnesses for the
People testified and the exhibits were formally offered and
admitted, the prosecution rested its case. Thereafter, the
defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the
trial court rendered its decision, the dispositive portion of
which reads (pp. 59-60, Rollo):
"WHEREFORE, the Court being morally certain of the guilt
of accused CEILITO ORITA @ LITO, of the crime of
Frustrated Rape (Art. 335, RPC), beyond reasonable doubt,
with the aggravating circumstances of dwelling and nightime
(sic) with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence
Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum
to TWELVE (12) YEARS PRISION MAYOR,maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
"SO ORDERED."
Not satisfied with the decision, the accused appealed to the
Court of Appeals. On December 29, 1988, the Court of
Appeals rendered its decision, the dispositive portion of
which reads (p. 102, Rollo):
"WHEREFORE, the trial court's judgment is hereby
MODIFIED, and the appellant found guilty of the crime of
rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the
amount of P30,000.00.
"SO ORDERED."
On January 11, 1989, the Court of Appeals issued a
resolution setting aside its December 29, 1988 decision and
forwarded the case to this Court, considering the provision of
Section 9, paragraph 3 of Batas Pambansa Blg. 129 in
Page 30 of 53
conjunction with Section 17, paragraph 3, subparagraph 1 of
the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief
are as follows (pp. 71-75, Rollo):
"Complainant Cristina S. Abayan was a 19-year old
freshman student at the St. Joseph's College at Borongan,
Eastern Samar. Appellant was a Philippine Constabulary
(PC) soldier.
"In the early morning of March 20, 1983, complainant arrived
at her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her
boarding house (p. 5,ibid). All of a sudden, somebody held
her and poked a knife to her neck. She then recognized
appellant who was a frequent visitor of another boarder (pp.
8-9, ibid).
"She pleaded with him to release her, but he ordered her to
go upstairs with him. Since the door which led to the first
floor was locked from the inside, appellant forced
complainant to use the back door leading to the second floor
(p. 77, ibid). With his left arm wrapped around her neck and
his right hand poking a 'balisong' to her neck, appellant
dragged complainant up the stairs (p. 14, ibid). When they
reached the second floor, he commanded her to look for a
room. With the Batangas knife still poked to her neck, they
entered complainant's room.
"Upon entering the room, appellant pushed complainant who
hit her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant
to take off her clothes. Scared, she took off her T-
shirt. Then he pulled off her bra, pants and panty (p.
20, ibid).
"He ordered her to lie down on the floor and then mounted
her. He made her hold his penis and insert it in her
vagina. She followed his order as he continued to poke the
knife to her. At said position, however, appellant could not
fully penetrate her. Only a portion of his penis entered her
as she kept on moving (p. 23, ibid).
"Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his
penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought of
escaping (p. 20, ibid).

"She dashed out to the next room and locked herself
in. Appellant pursued her and climbed the partition. When
she saw him inside the room, she ran to another
room. Appellant again chased her. She fled to another
room and jumped out through a window (p. 27, ibid).
"Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When
the policemen who were inside the building opened the door,
they found complainant naked sitting on the stairs
crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they
discovered what happened, Pat. Donceras and two other
policemen rushed to the boarding house. They heard a
sound at the second floor and saw somebody running
away. Due to darkness, they failed to apprehend appellant.
"Meanwhile, the policemen brought complainant to the
Eastern Samar Provincial Hospital where she was physically
examined.
"Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit 'A') which
states:
Patient is fairly built, came in with loose clothing
'Physical
with no under-clothes; appears in state of
Examination
shock, per unambulatory.
-
'PE Findings Pertinent Findings only.
- (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160
Circumscribed hematoma at Ant. neck.
'Neck -
Well developed, conical in shape with
prominent nipples; linear abrasions below (L)
'Breast -
breast.
Multiple pinpoint marks.
'Back -
'Extremities Abrasions at (R) and (L) knees.
- "this is the only case where an aggressor's advances is
No visible abrasions or marks at the perineal
'Vulva -
area or over the
vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender; hymen
intact; no laceration fresh and old noted;
examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges
noted.'"
As aforementioned, the trial court convicted the accused of
frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial
inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of
frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat.
Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication
and therefore casted doubt to its candor, truth and validity."
(p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that
they refer to trivial inconsistencies which are not sufficient to
blur or cast doubt on the witnesses' straightforward
attestations. Far from being badges of fabrication, the
inconsistencies in their testimonies may in fact be justifiably
considered as manifestations of truthfulness on material
points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest
lapses do not necessarily impair their intrinsic credibility
SCRA 98). Rather than discredit the testimonies of the
prosecution witnesses, discrepancies on minor details must
be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera, et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16, 1988, 158
SCRA 695). As a matter of fact, complete uniformity in
details would be a strong indication of untruthfulness and
lack of spontaneity (People v. Bazar, G.R. No. L-41829,
June 27, 1988, 162 SCRA 609). However, one of the
alleged inconsistencies deserves a little discussion which is,
the testimony of the victim that the accused asked her to
hold and guide his penis in order to have carnal knowledge
of her. According to the accused, this is strange because
being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would
have been meritorious had the testimony of the victim ended
Page 31 of 53
there. The victim testified further that the accused was
holding a Batangas knife during the aggression. This is a
material part of the victim's testimony which the accused
conveniently deleted.
We find no cogent reason to depart from the well-settled rule
that the findings of fact of the trial court on the credibility of
witnesses should be accorded the highest respect because it
has the advantage of observing the demeanor of witnesses
and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with
favor the trial court's finding regarding the testimony of the
victim (p. 56, Rollo):
"As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the
offended party in her testimony before the court. Her
answers to every question profounded (sic), under all
circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is
inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor."
When a woman testifies that she has been raped, she says
in effect all that is necessary to show that rape was
committed provided her testimony is clear and free from
contradiction and her sincerity and candor, free from
suspicion (People v. Alfonso, G.R. No. 72573, August 31,
1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88,
February 28, 1985, 135 SCRA 280; People v. Soterol, G.R.
No. 53498, December 16, 1985, 140 SCRA 400). The victim
in this case did not only state that she was raped but she
testified convincingly on how the rape was committed. The
victim's testimony from the time she knocked on the door of
the municipal building up to the time she was brought to the
hospital was corroborated by Pat. Donceras. Interpreting the
findings as indicated in the medical certificate, Dr. Reinerio
Zamora (who was presented in view of the unavailability of
Dr. Abude) declared that the abrasions in the left and right
knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force
and violence exerted on the victim (pp. 52-53, Rollo). The
trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and
the conditions therein is true (p. 54, Rollo):
"x x x. The staircase leading to the first floor is in such a
condition safe enough to carry the weight of both accused
and offended party without the slightest difficulty, even in the

manner as narrated. The partitions of every room were of
strong materials, securedly nailed, and would not give way
even by hastily scaling the same."
A little insight into human nature is of utmost value in judging
rape complaints (People v. Torio, et al., G. R. No. L-48731,
December 21, 1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):
"x x x And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly
estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being
pursued. Common experience will tell us that in occasion of
conflagration, especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable
heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor
appears to be more valuable than her life or limbs? Besides,
the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was
adduced to show that she was out of her mind."
In a similar case (People v. Sambili, G.R. No. L-44408,
September 30, 1982, 117 SCRA 312), We ruled that:
"What particularly imprints the badge of truth on her story is
her having been rendered entirely naked by appellant and
that even in her nudity, she had to run away from the latter
and managed to gain sanctuary in a house owned by
spouses hardly known to her. All these acts she would not
have done nor would these facts have occurred unless she
was sexually assaulted in the manner she narrated."
The accused questions also the failure of the prosecution to
present other witnesses to corroborate the allegations in the
complaint and the non?presentation of the medico-legal
officer who actually examined the victim. Suffice it to say
that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment
of their necessity (Tugbang v. Court of Appeals, et al.,G.R.
No. 56679, June 29, 1989; People v. Somera, G.R. No.
65589, May 31, 1989). As for the non-presentation of the
medico-legal officer who actually examined the victim, the
trial court stated that it was by agreement of the parties that
another physician testified inasmuch as the medico-legal
officer was no longer available. The accused did not bother
to contradict this statement.
Summing up, the arguments raised by the accused as
regards the first assignment of error fall flat on its
face. Some were not even substantiated and do not,
therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the subject
matter that really calls for discussion is whether or not the
accused's conviction for frustrated rape is proper. The trial
court was of the belief that there is no conclusive evidence of
penetration of the genital organ of the victim and thus
convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated
rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and
enumerates the elements of the crime of rape:
"ART. 335. When and how rape is committed. - Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
"1. By using force or intimidation;
"2. When the woman is deprived of reason or otherwise
unconscious; and
"3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
"xxx xxx xxx."
Carnal knowledge is defined as the act of a man in having
sexual bodily connections with a woman (Black's Law
Dictionary, Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
"ART. 6. Consummated, frustrated, and attempted felonies.
- Consummated felonies, as well as those which are
frustrated and attempted, are punishable.
"A felony is consummated when all the elements necessary
for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
"There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance."
Page 32 of 53
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape. Our concern now is whether or not the frustrated
stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the
offender has performed all the acts of execution which would
produce the felony and (2) that the felony is not produced
due to causes independent of the perpetrator's will. In the
leading case of United States v. Eduave, 36 Phil. 209, 212,
Justice Moreland set a distinction between attempted and
frustrated felonies which is readily understood even by law
students:
"x x x A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to stop prior to
the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts
which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and
the moment when all of the acts have been performed which
should result in the consummated crime; while in the former
there is such intervention and the offender does not arrive at
the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause
apart from his voluntary desistance."
Clearly, in the crime of rape, from the moment the offender
has carnal knowledge of his victim, he actually attains his
purpose and, from that moment also all the essential
elements of the offense have been accomplished. Nothing
more is left to be done by the offender, because he has
performed the last act necessary to produce the
crime. Thus, the felony is consummated. In a long line of
cases (People v. Oscar, 48 Phil. 527; People v.
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-
31886, April 29, 1974, 56 SCRA 666; People v.
Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505),
We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of
the female organ by the male organ is sufficient. Entry of the
labia or lips of the female organ, without rupture of the

hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People v. Tayaba, 62 Phil.
559; People v. Rabadan, et al., 53 Phil. 694; United States v.
Garcia, 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the
case of People v. Eriñia, 50 Phil. 998 [1927] where We found
the offender guilty of frustrated rape there being no
conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray'
decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article
335 of the Revised Penal Code, as amended by Republic
Act No. 2632 (dated September 12, 1960) and Republic Act
No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the
rape is attempted or frustrated and a homicide is committed
by reason or on the occasion thereof. We are of the opinion
that this particular provision on frustrated rape is a dead
provision. The Eriñia case, supra, might have prompted the
law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.
In concluding that there is no conclusive evidence of
penetration of the genital organ of the victim, the trial court
relied on the testimony of Dr. Zamora when he "categorically
declared that the findings in the vulva does not give a
concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether
or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
"x x x It cannot be insensible to the findings in the medical
certificate (Exhibit 'A') as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the
Court is not oblivious, that conviction for rape could proceed
from the uncorroborated testimony of the offended party and
that a medical certificate is not necessary (People v.
Royeras, People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the
instant case. The testimony of the offended party is at
variance with the medical certificate. As such, a very
disturbing doubt has surfaced in the mind of the court. It
should be stressed that in cases of rape where there is a
positive testimony and a medical certificate, both should in
all respect, compliment each other, for otherwise to rely on
the testimony alone in utter disregard of the manifest
variance in the medical certificate, would be productive of
mischievous results."
The alleged variance between the testimony of the victim
and the medical certificate does not exist. On the contrary, it
is stated in the medical certificate that the vulva was
erythematous (which means marked by abnormal redness of
the skin due to capillary congestion, as in inflammation) and
tender. It bears emphasis that Dr. Zamora did not rule
out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively
testified that there was penetration, even if only partially (pp.
302, 304, t.s.n., May 23, 1984):
"Q Was the penis inserted on your vagina?
"A It entered but only a portion of it."
xxx xxx x ACCORDINGLY, the decision of the Regional Trial Court is
xx
What do you mean when you said comply, or
"Q what act do you referred (sic) to, when you said
comply?
"A I inserted his penis into my vagina.
"Q And was it inserted?
"A Yes only a little."
The fact is that in a prosecution for rape, the accused may
be convicted even on the sole basis of the victim's testimony
if credible (People v. Tabago, G.R. No. 69778, November 8,
1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752,
September 19, 1985, 138 SCRA 569; People v.
Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154
SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the
prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will
not tilt the scale in favor of the accused because after a
thorough review of the records, We find the evidence
sufficient to prove his guilt beyond reasonable doubt of the
crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code
provides that whenever the crime of rape is committed with
the use of a deadly weapon, the penalty shall be reclusion
Page 33 of 53
perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus,
the proper imposable penalty is death. In view, however, of
Article III, Section 19(1) of the 1987 Constitution and Our
ruling in People v. Millora, et al., G.R. Nos. L-38968-70,
February 9, 1989, that the cited Constitutional provision did
not declare the abolition of the death penalty but merely
prohibits the imposition of the death penalty, the Court has
since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code
but instead reduced the same to reclusion perpetua (People
v. Solis, et al., G.R. Nos. 78732-33, February 14,
1990). Reclusion perpetua, being a single indivisible penalty
under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article
63, paragraph 1, Revised Penal Code; see People v.
Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA
615; People v. Manzano, G.R. No. L-38449, November 25,
1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744,
May 31, 1985, 136 SCRA 702).
hereby MODIFIED. The accused Ceilito Orita is hereby
found guilty beyond reasonable doubt of the crime of rape
and sentenced to reclusion perpetua as well as to indemnify
the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, (Chairman), Cruz, Gancayco, and Griño-Aquino,
JJ., concur.
[ G.R. No. 202867, July 15, 2013 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. REGIE
LABIAGA, APPELLANT.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision[1] dated
18 October 2011 of the Court of Appeals-Cebu (CA-Cebu) in
CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed
with modification the Joint Decision[2] dated 10 March 2008
of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66
(RTC), in Criminal Case No. 2001-1555 convicting Regie
Labiaga alias “Banok” (appellant) of murder and Criminal
Case No. 2002-1777 convicting appellant of frustrated
murder.
The Facts

In Criminal Case No. 2001-1555, appellant, together with a
certain Alias Balatong Barcenas and Cristy Demapanag
(Demapanag), was charged with Murder with the Use of
Unlicensed Firearm under an Information[3] which reads:
That on or about December 23, 2000 in the Municipality of
Ajuy, Province of Iloilo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, armed
with unlicensed firearm, with deliberate intent and decided
purpose to kill, by means of treachery and with evident
premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot JUDY CONDE alias
‘JOJO’ with said unlicensed firearm, hitting her and inflicting
gunshot wounds on the different parts of her breast which
caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder
with the Use of Unlicensed Firearm in Criminal Case No.
2002-1777, under an Information[4] which states:
That on or about December 23, 2000 in the Municipality of
Ajuy, Province of Iloilo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, armed
with unlicensed firearm, with deliberate intent and decided
purpose to kill, by means of treachery and with evident
premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot Gregorio Conde with
said unlicensed firearm, hitting him on the posterior aspect,
middle third right forearm 1 cm. in diameter; thereby
performing all the acts of execution which would produce the
crime of Murder as a consequence, but nevertheless did not
produce it by reason of causes independent of the will of the
accused; that is by the timely and able medical assistance
rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant
and Demapanag pled not guilty in both cases and joint trial
ensued thereafter. The prosecution presented four
witnesses: Gregorio Conde, the victim in Criminal Case No.
2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah
Obañana and Dr. Edwin Jose Figura, the physicians at the
Sara District Hospital where the victims were admitted. The
defense, on the other hand, presented appellant,
Demapanag, and the latter’s brother, Frederick.
Version of the prosecution
The prosecution’s version of the facts is as follows: At
around 7:00 p.m. on 23 December 2000, Gregorio Conde,
and his two daughters, Judy and Glenelyn Conde, were in
their home at Barangay Malayu-an, Ajuy, Iloilo. Thereafter,
Gregorio stepped outside. Glenelyn was in their store, which
was part of their house.
Shortly thereafter, appellant, who was approximately five
meters away from Gregorio, shot the latter. Gregorio called
Judy for help. When Judy and Glenelyn rushed to Gregorio’s
aid, appellant shot Judy in the abdomen. The two other
accused were standing behind the appellant. Appellant said,
“[s]he is already dead,” and the three fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital.
Judy was pronounced dead on arrival while Gregorio made a
full recovery after treatment of his gunshot wound.
Dr. Jeremiah Obañana conducted the autopsy of Judy. His
report stated that her death was caused by “cardiopulmonary
arrest secondary to Cardiac Tamponade due to gunshot
wound.”[5]
Dr. Jose Edwin Figura, on the other hand, examined
Gregorio after the incident. He found that Gregorio sustained
a gunshot wound measuring one centimeter in diameter in
his right forearm and “abrasion wounds hematoma
formation” in his right shoulder.[6]
Version of the defense
Appellant admitted that he was present during the shooting
incident on 23 December 2000. He claimed, however, that
he acted in self- defense. Gregorio, armed with a shotgun,
challenged him to a fight. He attempted to shoot appellant,
but the shotgun jammed. Appellant tried to wrest the shotgun
from Gregorio, and during the struggle, the shotgun fired. He
claimed that he did not know if anyone was hit by that
gunshot.
Demapanag claimed that at the time of the shooting, he was
in D&D Ricemill, which is approximately 14 kilometers away
from the crime scene. This was corroborated by Frederick,
Demapanag’s brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to
insufficiency of evidence. Appellant, however, was convicted
of murder and frustrated murder. The dispositive portion of
the Joint Decision reads:
Page 34 of 53
WHEREFORE, in light of the foregoing, the court hereby
finds the accused Regie Labiaga @ “Banok” GUILTY
beyond reasonable doubt of the Crime of Murder in Crim.
Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with accessory
penalty provided by law, to pay the heirs of Judy Conde
P50,000.00 as civil indemnity, without subsidiary
imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie
Labiaga @ “Banok” GUILTY beyond reasonable doubt of the
crime of Frustrated Murder and hereby sentences the said
accused to a prison term ranging from six (6) years and one
(1) day of prision mayor as minimum to ten (10) years and
one (1) day of reclusion temporal as maximum, together with
[the] necessary penalty provided by law and without
subsidiary imprisonment in case of insolvency and to pay the
costs.
Accused[’s] entire period of detention shall be deducted from
the penalty herein imposed when the accused serves his
sentence.
For lack of sufficient evidence, accused Cristy Demapanag
is acquitted of the crime[s] charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo
is hereby directed to release accused Cristy Demapanag
from custody unless he is being held for some other valid or
lawful cause.
SO ORDERED.[7]
The Ruling of the CA-Cebu
Appellant impugned the RTC’s Joint Decision, claiming that
“[the RTC] gravely erred in convicting the [appellant] of the
crime charged despite failure of the prosecution to prove his
guilt beyond reasonable doubt.”[8] The CA-Cebu, however,
upheld the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing
the payment of moral and exemplary damages in both
criminal cases. The CA-Cebu made a distinction between
the civil indemnity awarded by the RTC in Criminal Case No.
2001-1555 and the moral damages. The CA-Cebu pointed
out that:
The trial court granted the amount of P50,000.00 as civil
indemnity in Criminal Case No. 2001-1555. It did not award
moral damages. Nonetheless, the trial court should have
awarded both, considering that they are two different kinds
of damages. For death indemnity, the amount of P50,000.00

is fixed “pursuant to the current judicial policy on the matter,
without need of any evidence or proof of damages. Likewise,
the mental anguish of the surviving family should be
assuaged by the award of appropriate and reasonable moral
damages.”[9]
The dispositive portion of the Decision of the CA-Cebu
reads:
WHEREFORE, premises considered, the appeal is DENIED.
The Joint Decision dated March 10, 2008 of the Regional
Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED
with MODIFICATIONS. The dispositive portion of the said
Joint Decision should now read as follows:
WHEREFORE, in light of the foregoing, the court hereby
finds the accused Regie Labiaga @ “Banok” GUILTY
beyond reasonable doubt of the crime of Murder in Crim.
Case No. 2001-1555 and hereby sentences the said
accused to reclusion perpetua together with the accessory
penalty provided by law, to pay the heirs of Judy Conde
P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P25,000.00 as exemplary damages, without
subsidiary imprisonment in case of insolvency and to pay the
costs.
In Crim. Case No. 2002-1777 the court finds accused Regie
Labiaga @ “Banok” GUILTY beyond reasonable doubt of the
crime of Frustrated Murder and hereby sentences the said
accused to suffer the indeterminate penalty of eight (8) years
and one (1) day of prision mayor, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal, as
maximum, together with the accessory penalty provided by
law, to pay Gregorio Conde P25,000.00 as moral damages
and P25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs
Accused(’s) entire period of detention shall be deducted from
the penalty herein imposed when the accused serves his
sentence.
For lack of sufficient evidence, accused Cristy Demapanag
is acquitted of the crime(s) charged in both cases. The
Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo
is hereby directed to release accused Cristy Demapanag
from custody unless he is being held for some other valid or
lawful cause.
SO ORDERED.
SO ORDERED.[10]
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777
convinces us that appellant is guilty of attempted murder and
not frustrated murder. We uphold appellant’s conviction in
Criminal Case No. 2001-1555 for murder, but modify the civil
indemnity awarded in Criminal Case No. 2001-1555, as well
as the award of moral and exemplary damages in both
cases.
Justifying circumstance of self-defense
Appellant’s feeble attempt to invoke self-defense in both
cases was correctly rejected by the RTC and the CA-Cebu.
This Court, in People v. Damitan,[11] explained that:
When the accused admits killing a person but pleads self-
defense, the burden of evidence shifts to him to prove by
clear and convincing evidence the elements of his defense.
However, appellant’s version of the incident was
uncorroborated. His bare and self-serving assertions cannot
prevail over the positive identification of the two (2) principal
witnesses of the prosecution.[12]
Appellant’s failure to present any other eyewitness to
corroborate his testimony and his unconvincing
demonstration of the struggle between him and Gregorio
before the RTC lead us to reject his claim of self- defense.
Also, as correctly pointed out by the CA-Cebu, appellant’s
theory of self- defense is belied by the fact that:
x x x [T]he appellant did not even bother to report to the
police Gregorio’s alleged unlawful aggression and that it was
Gregorio who owned the gun, as appellant claimed. And,
when appellant was arrested the following morning, he did
not also inform the police that what happened to Gregorio
was merely accidental.[13]
Appellant’s claim that he did not know whether Gregorio was
hit when the shotgun accidentally fired is also implausible.
In contrast, we find that the Condes’ account of the incident
is persuasive. Both the CA-Cebu and the RTC found that the
testimonies of the Condes were credible and presented in a
clear and convincing manner. This Court has consistently
put much weight on the trial court’s assessment of the
credibility of witnesses, especially when affirmed by the
appellate court.[14] In People v. Mangune,[15] we stated that:
It is well settled that the evaluation of the credibility of
witnesses and their testimonies is a matter best undertaken
by the trial court because of its unique opportunity to
observe the witnesses first hand and to note their demeanor,
conduct, and attitude under grilling examination. These are
important in determining the truthfulness of witnesses and in
Page 35 of 53
unearthing the truth, especially in the face of conflicting
testimonies. For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the
witness’ credibility, and the trial court has the opportunity [to]
take advantage of these aids.[16]
Since the conclusions made by the RTC regarding the
credibility of the witnesses were not tainted with arbitrariness
or oversight or misapprehension of relevant facts, the same
must be sustained by this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-
Cebu. A treacherous attack is one in which the victim was
not afforded any opportunity to defend himself or resist the
attack.[17] The existence of treachery is not solely determined
by the type of weapon used. If it appears that the weapon
was deliberately chosen to insure the execution of the crime,
and to render the victim defenseless, then treachery may be
properly appreciated against the accused.[18]
In the instant case, the Condes were unarmed when they
were shot by appellant. The use of a 12-gauge shotgun
against two unarmed victims is undoubtedly treacherous, as
it denies the victims the chance to fend off the offender.
We note, however, that appellant should be convicted of
attempted murder, and not frustrated murder in Criminal
Case No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the
commission of felonies:
Art. 6. Consummated, frustrated, and attempted felonies.—
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary
for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.

In Serrano v. People,[19] we distinguished a frustrated felony
from an attempted felony in this manner:
1.) In [a] frustrated felony, the offender has performed all the
acts of execution which should produce the felony as a
consequence; whereas in [an] attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In [a] frustrated felony, the reason for the non-
accomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in [an]
attempted felony, the reason for the non-fulfillment of the
crime is a cause or accident other than the offender’s own
spontaneous desistance.[20]
In frustrated murder, there must be evidence showing that
the wound would have been fatal were it not for timely
medical intervention.[21] If the evidence fails to convince the
court that the wound sustained would have caused the
victim’s death without timely medical attention, the accused
should be convicted of attempted murder and not frustrated
murder.
In the instant case, it does not appear that the wound
sustained by Gregorio Conde was mortal. This was admitted
by Dr. Edwin Figura, who examined Gregorio after the
shooting incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can
you tell the court what was the situation of the patient when
you examined him?
A: He has a gunshot wound, but the patient was actually
ambulatory and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion
wounds hematoma formation at the anterior aspect right
shoulder.[22]
Since Gregorio’s gunshot wound was not mortal, we hold
that appellant should be convicted of attempted murder and
not frustrated murder. Under Article 51 of the Revised Penal
Code, the corresponding penalty for attempted murder shall
be two degrees lower than that prescribed for consummated
murder under Article 248, that is, prision correccional in its
maximum period to prision mayor in its medium period.
Section 1 of the Indeterminate Sentence Law provides:
x x x the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the [Revised Penal]
Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the
offense.
Thus, appellant should serve an indeterminate sentence
ranging from two (2) years, four (4) months and one (1) day
of prision correccional in its medium period to eight (8) years
and one (1) day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to
increase the amount of damages imposed by the lower court
in both cases. In Criminal Case No. 2001-1555, this Court
hereby awards P75,000.00 as civil indemnity[23] and
P30,000.00 as exemplary damages.[24] The award of
P50,000.00 as moral damages in the foregoing case is
sustained. Appellant is also liable to pay P40,000.00 as
moral damages and P30,000.00 as exemplary damages, in
relation to Criminal Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision
of the Court of Appeals-Cebu in CA-G.R. CEB CR-HC No.
01000 with MODIFICATIONS. In Criminal Case No. 2002-
1777, we find that appellant Regie Labiaga is GUILTYof
Attempted Murder and shall suffer an indeterminate
sentence ranging from two (2) years, four (4) months and
one (1) day of prision correccional as minimum, to eight (8)
years and one (1) day of prision mayor as maximum, and
pay P40,000.00 as moral damages and P30,000.00 as
exemplary damages. In Criminal Case No. 2001-1555,
appellant shall pay P75,000.00 as civil indemnity,
P50,000.00 as moral damages, and P30,000.00 as
exemplary damages.
SO ORDERED.
Del Castillo, Perez, Mendoza,* and Perlas- Bernabe, JJ.,
concur.
[ G.R. No. 145927, August 24, 2007 ]
Page 36 of 53
SIMON FERNAN, JR. AND EXPEDITO
TORREVILAS,[1] PETITIONERS, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION
VELASCO, JR., J.:
The instant petition under Rule 45 originated from 119
criminal cases[2] filed with the Sandiganbayan (SB) involving
no less than 36 former officials and employees of the then
Ministry of Public Highways (MPH) and several suppliers of
construction materials for defalcation of public funds arising
from numerous transactions in the Cebu First Highway
Engineering District in 1977. Because of the sheer
magnitude of the illegal transactions, the number of people
involved, and the ingenious scheme employed in defrauding
the government, this infamous 86 million highway scam has
few parallels in the annals of crime in the country.
The Case
Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek
the reversal of the December 4, 1997 Decision[3] of the SB in
the consolidated Criminal Case Nos. 1640, 1641, 1642,
1643, 1818, 1819, 1820, 1821, 1822, 1823, 1879, 1880,
1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889,
2839, 2840, 2841, 2842, 2843, 2844, 2845, 2846, 2847,
2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856,
2857, 2858, 2859, 2860, 2861, 2862, 2863, 2864, 2865,
2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874,
2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883,
2884, 2885, 2886, 2887, 2888, 2889, 2890, 2891, 2892,
2893, 2894, 2895, 2896, 2897, 2898, 2899, 2900, 2901,
2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909, 2910,
2911, 2912, 2913, 2915, 2917, 2918, 2919, 2920, 2921,
2922, 2923, 2924, 2925, 2926, 2927, 2928, 2929, 2930,
2931, 2932, 2936, 2937, 2938, and 2939,[4] all
entitled People of the Philippines v. Rocilo Neis, et al.,
finding them guilty of multiple instances of estafa through
falsification of public documents;[5] and the subsequent
August 29, 2000 SB Resolution which denied their separate
pleas for reconsideration.
Petitioner Fernan, Jr. disputes the adverse judgment in only
six (6) cases, namely: 2879, 2880, 2881, 2885, 2914, and
2918; while petitioner Torrevillas seeks exoneration in nine
(9) cases, namely: 2855, 2856, 2858, 2859, 2909, 2910,
2914, 2919, and 2932.
Both petitioners assert their strong belief that their guilt has
not been established beyond reasonable doubt and, hence,
exculpation is in order.

The Facts
The SB culled the facts[6] this way:
On June 21, 1978, COA Regional Director Sofronio Flores
Jr. of COA Regional Office No. 7, directed auditors Victoria
C. Quejada and Ruth I. Paredes to verify and submit a report
on sub-allotment advises issued to various highway
engineering districts in Cebu, particularly, the Cebu City,
Cebu 1st, Cebu 2nd and the Mandaue City Highway
Engineering Districts. Complying with the directive, they
conducted an investigation and in due course submitted their
findings. Their report (Exhibit C) confirmed the issuance of
fake Letters of Advice of Allotments (LAAs) in the districts
mentioned. They discovered that two sets of LAAs were
received by the districts. One set consists of regular LAAs
which clearly indicated the covering sub-allotment advices
and were duly signed by Mrs. Angelina Escaño, Finance
Officer of the MPH Regional Office. The LAAs were
numbered in proper sequence and duly recorded in the
logbook of the Accounting, Budget and Finance Division.
The other set consists of fake LAAs which do not indicate
the covering sub-allotment advice and were signed by Chief
Accountant Rolando Mangubat and Engr. Jose Bagasao,
instead of the Finance Officer. These fake LAAs were not
numbered in proper sequence; they were mostly undated
and were sometimes duplicated. They could not be traced to
the files and records of the Accounting, Budget and Finance
Division. The accounting entry for the disbursements made
on the fake LAAs was debited to the Accounts-Payable
Unliquidated Obligations (8-81-400) and credited to the
Checking Account with the Bureau of Treasury (8-70-790).
Nevertheless, the expenditures were taken from obligations
of the current year (1978) because all the supporting papers
of the payment vouchers were dated in that year. The entries
in the journal vouchers filed with the MPH Regional Office
were adjusted every month to 8-81-400 (unliquidated or prior
years obligation), 8-83-000 (liquidated or current year
obligations) and 8-70-700 (Treasury/Agency Account). All of
these were approved for the Finance Officer by Chief
Accountant Rolando Mangubat. Mangubat, however, had no
authority to approve them because since October 1977, he
had already been detailed to the MPH Central Office. There
were indications that the practice had been going on for
years.
xxxx
Due to these serious irregularities, then President Marcos
created a Special Cabinet Committee on MPH Region VII
"Ghost Projects Anomalies" which in turn organized a
Special Task Force composed of representatives from the
Finance Ministry Intelligence Bureau (FMIB), National
Bureau of Investigation (NBI), the Bureau of Treasury and
the Commission on Audit. The mission of the task force was
to conduct a wider and more extended investigation in all the
fifteen (15) highway engineering districts of MPH Region VII,
including the Cebu First Highway Engineering District, the
1977 questionable disbursements of which are the subject
matter of these cases.
xxxx
For a better understanding of these highways cases, the flow
in the release of funds to the various agencies of the
government and the control devices set up for disbursement
and accounting of public funds should first be explained. A
chart (Exhibit B) graphically shows the flow of allotments
from the Ministry down to the district level.
On the basis of appropriation laws and upon request made
by heads of agencies, the then Ministry of Budget released
funds to the various agencies of the government by means
of an Advice of Allotment (AA) and a Cash Disbursement
Ceiling (CDC). The Advice of Allotment is an authority for the
agency to incur obligations within a specified amount in
accordance with approved programs and projects. The Cash
Disbursement Ceiling is an authority to pay. Upon receipt of
the AA and CDC from the Budget, the Central Office of the
agency prepares the Sub-Advice of Allotment (SAA) and the
Advice of Cash Disbursement Ceiling (ACDC) for each
region, in accordance with the disbursement allotment.
These are sent to the Regional Office. Upon receipt, the
Budget Officer of the region prepares the corresponding
Letters of Advice of Allotment (LAA) which are forwarded to
the various districts of the region (The amount that goes to
each district is already indicated in the Advice of Allotment).
Only upon receipt of the LAA is the district office authorized
to incur obligations.
Now, how are funds released by the Regional Office to the
different districts and ultimately paid out to contractors, the
District Engineer submits to the Regional Director a request
for allotment in accordance with the program of work
prepared by the former. This procedure starts with the
preparation of a Requisition for Supplies and Equipment
(RSE) in the District Office by the Senior Civil Engineer,
approved by the District Engineer, and signed by the Chief
Accountant of the Highway Engineering District, who certifies
as to the availability of funds. The RSE is then submitted to
the Regional Director for approval. Once it is approved, a
Request for Obligation of Allotment (ROA) is prepared by the
Chief Accountant of the district Senior Civil Engineer. The
Page 37 of 53
ROA signifies that a certain amount of district funds has
been set aside or earmarked for the particular expenditures
stated in the RSE. On the basis of the ROA, the District
Office puts up advertisements, [conducts] biddings, makes
awards and prepares purchase orders which are served on
the winning bidder. The District Office also prepares a
summary of deliveries with the corresponding delivery
receipts and tally sheets, conducts inspection and prepares
the General Voucher for the payment of deliveries. Once the
General Voucher (GV) has been prepared, the
corresponding check in the form of a Treasury Check
Account for Agency (TCAA) is drawn by the Disbursing
Officer and finally released to the contractor.
At the end of every month, the Report of Checks Issued by
Deputized Disbursing Officer (RCIDD) is prepared, listing all
the checks issued during that period. The RCIDDO is
submitted to the accounting division of the region. Upon
receipt of the RCIDDO, the Regional Office draws a journal
voucher, debiting the account obligation (liquidated or
unliquidated obligation, whichever is applicable), and
crediting the account Treasury Check Account for Agency
(TCAA). The RCIDDO is recorded in the Journal of Checks
Issued by Deputized Disbursing Officers (JCIDDO) and
posted in the general ledger at the end of each month.
Simultaneous with the flow of the RCIDDO, the ROAs are
summarized in the Reports of Obligations Incurred (ROI) in
the District Office, once or twice a month, depending upon
the volume of transactions. The ROI is then submitted to the
Regional Office. Upon receipt of the ROI, the accountant of
the Regional Office draws a journal voucher taking up the
following entry: debiting the appropriation allotted (0-90-000)
and crediting the obligation incurred (0-82-000). This is
recorded in the general voucher and posted to the general
ledger at the end of each month. The journal voucher is
prepared, closing the account 8-70-709 to 8-71-100-199 at
the end of each month. It is also recorded and posted to the
general ledger. At the end of the month, the balances of
each account shown in the general ledger are summarized
in a statement called the trial balance. The trial balance is
submitted to the MPH Central Office in Manila where it is
consolidated with other trial balances submitted by other
regional offices.
xxxx
The elaborate accounting procedure described above with
its system of controls was set up obviously to make sure that
government funds are properly released, disbursed and
accounted for. In the hands of untrustworthy guardians of the

public purse, however, it proved to be inadequate. There
were loopholes which an unscrupulous person adroit in
government accounting could take advantage of to
surreptitiously draw enormous sums of money from the
government.
Sometime in February, 1977, accused Rolando Mangubat
(Chief Accountant), Delia Preagido (Accountant III), Jose
Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), all
of MPH Region VII, met at the Town and Country Restaurant
in Cebu City and hatched an ingenious plan to siphon off
large sums of money from government coffers. Mangubat
had found a way to withdraw government money through the
use of fake LAAs, vouchers and other documents and to
conceal traces thereof with the connivance of other
government officials and employees. In fine, the fraudulent
scheme involved the splitting of LAAs and RSEs so that the
amount covered by each general voucher is less than
P50,000.00 to do away with the approval of the Regional
Auditor; the charging of disbursements to unliquidated
obligations due the previous year to provide the supposed
source of funds; and the manipulation of the books of
account by negation or adjustment, i.e., the cancellation of
checks through journal vouchers to conceal disbursements
in excess of the cash disbursement ceiling (CDC), so as not
to reflect such disbursements in the trial balances submitted
to the Regional Office.
Mangubat enticed Preagido, Cruz and Sayson to join him. All
three agreed to help him carry out his plan. They typed the
fake LAAs during Saturdays. Cruz and Sayson also took
charge of negotiating or selling the fake LAAs to contractors
at 26% of the gross amount. Preagido on her part
manipulated the General Ledger, Journal Vouchers and
General Journal thru negative entries to conceal the illegal
disbursements. Thus, in the initial report of the auditors
(Exhibit D), it was discovered that the doubtful allotments
and other anomalies escaped notice due to the following
manipulations:
"The letter-advices covering such allotments (LAA) were
generally not signed by the Finance Officer nor recorded in
the books of accounts. Disbursements made on the basis of
these fake LAAs were charged to the unliquidated
Obligations (Account 8-81-400), although the obligations
being paid were not among those certified to the
unliquidated obligations (Account 8-81-400) at the end of the
preceding year. To conceal the overcharges to authorized
allotments, account 8-81-400 and the excess of checks
issued over authorized cash disbursements ceiling,
adjustments were prepared monthly through journal
vouchers to take up the negative debit to Account 8-81-400
and a negative credit to the Treasury Checking Account for
Agencies Account 8-70-790. These journal vouchers in
effect cancelled the previous entry to record the
disbursements made on the basis of the fake LAAs. Thus,
the affected accounts (Accounts 8-81-400 and 8-70-790), as
appearing in the trial balance would not show the irregularity.
The checks, however, were actually issued."
The four formed the nucleus of the nefarious conspiracy.
Other government employees, tempted by the prospect of
earning big money, allowed their names to be used and
signed spurious documents.
Although the anomalies had been going on for sometime
(February 1977 to June 1978), the PNB and Bureau of
Treasury had no inkling about it until the NBI busted the
illegal operations. (Some of the recipients of the stolen funds
spent lavishly and bought two cars at a time). The reason for
this is that, at that time, the PNB and Bureau of Treasury
were not furnished copy of the mother CDC and the local
branch of the PNB did not receive independent advice from
the PNB head office in Manila. There were no deposits of
money made with the PNB from which withdrawals could be
charged. Only CDCs were presented to it, and not knowing
that some of the CDCs were fake, the PNB branch paid out
the checks drawn against them. The bank had also no way
of knowing what amount was appropriated for the district;
consequently, it did not know if the limit had already been
exceeded. Only an insider steep in government accounting,
auditing and banking procedures, particularly their flaws and
loopholes, could have pulled off such an ingenious and
audacious plan.
xxxx
Focusing our attention now on the anomalies committed in
the Cebu First District Engineering District, hereinafter
referred to as the Cebu First HED for brevity, the Court finds
that the same pattern of fraud employed in the other highway
engineering districts in MPH Region VII was followed. The
Cebu First HED received from Region VII thirty-four Letters
of Advice of Allotment (LAAs) in the total sum of
P4,734,336.50 and twenty-nine (29) corresponding Sub-
Advices of Cash Disbursement Ceiling (SACDCs),
amounting to P5,160,677.04 for the period January 1, 1977
to December 31, 1977. But apart from this, the Cebu First
HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to
P4,680,694.76 which however, could not be traced to any
Sub-Advice of Allotment (SAA) or matched to the Advices of
Cash Disbursement Ceiling (ACDCs) received from the MPH
and Regional Office. This is highly irregular and not in
Page 38 of 53
consonance with accounting procedures.
It was also made to appear that the payments were made for
alleged prior year's obligations and chargeable to Account 8-
81-400, obviously because, they were not properly funded.
Furthermore, the list of projects in Region VII for 1977
showed that Cebu First HED completed rehabilitation and/or
improvement of roads and bridges in its districts from
February to May 1977, with expenditures amounting to
P613,812.00. On the other hand, the expenditures for
barangay roads in the same district in 1977 amounted to
P140,692.00, and these were all completed within the period
from November to December, 1977. These completed
projects were properly funded by legitimate LAAs and CDCs
in the total amount of only P754,504.00. However, an
additional amount of P3,839,810.74 was spent by the Cebu
First HED for maintenance of roads and bridges for the
same year (1977) but the same could not be traced to any
authoritative document coming from the MPH.
xxxx
A total of 132 General Vouchers, emanating from fake LAAs
and ACDCs, were traced back to Rolando Mangubat,
Regional Accountant of Region VII and Adventor Fernandez,
Regional Highway Engineer, also of Region VII. Those LAAs
and ACDCs became the vehicles in the disbursement of
funds amounting to P3,839,810.74, through the vouchers
purportedly issued for the purchase and delivery of the
aforementioned materials allegedly used for the
maintenance and repair of the national highways within the
Cebu First HED. Despite the enormous additional
expenditure of P3,839,810.74, the roads and bridges in the
district, as found out by the NBI, did not show any
improvement. As testified to by several barangay captains,
the road maintenance consisted merely of
spreading anapog or limestone on potholes of the national
highway.
Obviously, the vouchers for payments of alleged
maintenance of roads and bridges in the additional amount
of P3,839,810.74 were prepared for no other purpose than to
siphon the said amount from the government coffer into the
pockets of some officials and employees of Region VII and
the Cebu First HED, as well as the suppliers and contractors
who conspired and confederated with them.
The nuclei of this massive conspiracy, namely: Rolando
Mangubat, Jose Sayson, and Edgardo Cruz, all of MPH
Region VII, were found guilty in all 119 counts and were
accordingly sentenced by the SB. The other conniver, Delia
Preagido, after being found guilty in some of the cases,
 Page 39 of 53

became a state witness in the remainder. On the basis of her Central Office; Abelardo Cardona, Assistant Chief the supposed project and that the alleged supplier was
testimony and pertinent documents, Informations were filed, Accountant, MPH, Central Office; Leonardo Tordecilla, entitled to payment when in truth and in fact, as all the
convictions were obtained, and criminal penalties were Supervising Accountant, MPH, Central Office; Agripino accused know, all of the foregoing were false and incorrect
imposed on the rest of the accused. Pagdanganan, Budget Officer III, MPH, Central Office; and because of the foregoing falsifications, the above-
Ramon Quirante, Property Custodian of Cebu I HED; named accused were able to collect from the Cebu I HED
On the other hand, petitioners were both Civil Engineers of Mariano Montera, Senior Civil Engineer Engineer of Cebu I the total amount of TWENTY EIGHT THOUSAND PESOS
the MPH assigned to the Cebu First Highway Engineering HED; Mariano Jarina, Clerk in the Property Division of Cebu (P28,000.00), Philippine Currency, in payment of the non-
District. Petitioner Fernan, Jr. was included among the I HED; Leo Villagonzalo, Auditor's Aide of Cebu I HED; existing deliveries; that the said amount of P28,000.00 was
accused in Criminal Case Nos. 2879, 2880, 2881, 2885, Zosimo Mendez, Auditor of Cebu I HED; Asterio Buqueron, not reflected in the monthly trial balance submitted to the
2914, and 2918 allegedly for having signed six (6) tally Administrative Officer of Cebu I HED; Simon Fernan, Jr., Central Office by Region VII showing its financial condition
sheets or statements of deliveries of materials, used as Civil Engineer of Cebu I HED and Juliana de los Angeles, an as the same was negated thru the journal voucher, as a
bases for the preparation of the corresponding number of alleged supplier, all of whom took advantage of their official designed means to cover-up the fraud; and the accused,
general vouchers. Fund releases were made to the positions, with the exception of Juliana de los Angeles, once in possession of the said amount, misappropriated,
suppliers, contractors, and payees based on these general mutually helping each other did then and there willfully, converted and misapplied the same for their personal needs,
vouchers. unlawfully and feloniously falsify and/or cause the to the damage and prejudice of the Philippine Government in
falsification of the following documents, to wit: the total amount of TWENTY EIGHT THOUSAND PESOS
The Information against Fernan, Jr. in SB Criminal Case 1. Request for Allocation of Allotment (P28,000.00), Philippine Currency.
No. 2879 reads as follows: CONTRARY TO LAW.
The undersigned accuses Rocilo Neis, Rolando Mangubat, 2. Letter of Advice of Allotment The Informations in the six (6) cases involving Fernan, Jr.
Adventor Fernandez, Angelina Escaño, Delia Preagido, were essentially identical save for the details as highlighted
Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, 3. Advice of Cash Disbursement Ceiling in boldface above. For ease of reference, Fernan, Jr.'s
Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose criminal cases are detailed below:
Sayson, Edgardo Cruz, Leonila del Rosario, Engracia 4. General Voucher No. B-15 Crimina Dates of Main Items Amount
Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino l Case Commissio Document Allegedly of Fraud
Pagdanganan, Ramon Quirante, Mariano Montera, Mariano 5. Check No. 9933064 No. n s Falsified Purchased
Jarina, Leo Villagonzalo, Asterio Buqueron, Zosimo Mendez, 2879 December 1, 1. General 1,400 cu. m. PhP
Simon Fernan, Jr. and Juliana de los Angeles for estafa thru 6. Abstract of Bids 1976 up to Voucher of item 108 28,000.0
falsification of public and commercial documents, committed January 31, No. B-15;2. for use in the 0
as follows: 7. Purchase Order 1977 Check No. repair of the
That on, about and during the period from December 1, 9933064; Cebu
1976 up to January 31, 1977, both dates inclusive, in the 8. Statement of Delivery Hagnaya
City of Cebu and in Cebu Province, and within the Wharf road
jurisdiction of this Honorable Court, the accused Rocilo Neis, 9. Report of Inspection from Km.
Assistant District Engineer of Cebu HED I; Rolando 50.30 to Km.
Mangubat, the Chief Accountant of Region VII of the Ministry 10. Requisition for Supplies or Equipment 60.00
of Public Highways and Adventor Fernandez, Regional
2880 December 1, 1. Request 1,400 cu. m. PhP
Highway Engineer of same Regional Office, conniving with 11. Trial Balance
1976 up to for of item 108 28,000.0
each other to defraud the Philippine Government with the by making it appear that Regional Office No. VII of the
January 31, Allocation for use in the 0
indispensable cooperation and assistance of Angelina Ministry of Public Highways regularly issued an advice of
1977 of Allotment repair of the
Escaño, Finance Officer of Region VII of the Ministry of cash disbursement ceiling (ACDC) and the corresponding
101-12- Bogo-Curva-
Public Highways; Delia Preagido, Assistant Chief Accountant letter of advice of allotment (LAA) to cover the purchase
105-76; Medellon
of same Regional Office; Camilo de Letran, Chief of 1,400 cu. m. of item 108[7] for use in the repair of the
2. General road from
Accountant of Cebu I HED; Manuel de Veyra, Regional Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00,
Voucher Km. 110.00 to
Director, MPH, Region VII; Heracleo Faelnar, then Assistant when in truth and in fact, as all the accused knew, the same
No. B-55; Km. 119.00
Director MPH Region VII; Basilisa Galvan, Budget Officer, were not true and correct; by making it appear in the voucher
3. Check
MPH, Region VII; Matilde Jabalde, Supervising Accounting that funds were available and that there were appropriate
No.
Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, requests for allotments (ROA) to pay the aforesaid purchase;
9933104;
Region VII; Jose Sayson, Budget Examiner, MPH, Region that a requisition for said item was made and approved; that
2881 January 2, 1. Request Approximatel PhP
VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila a regular bidding was held; that a corresponding purchase
1977 up to for y 1,500 cu. 31,000.0
del Rosario, Chief Finance and Management Service, MPH, order was issued in favor of the winning bidder; that the road
Allocation m. of item 0
Central Office; Engracia Escobar, Chief Accountant, MPH, construction materials were delivered, inspected and used in
 Page 40 of 53

February 28, of Allotment 108 for use in The Information against Torrevillas in SB Criminal Case 1. Request for Allocation of Allotment - 101-10-186-
1977 101-2-56- the repair and No. 2855 reads as follows: 76; 10-190-76; 10-192-76; 10-188-76; 10-180-76
77; rehabilitation The undersigned accuses Rocilo Neis, Rolando Mangubat,
2. General of damaged Adventor Fernandez, Angelina Escaño, Delia Preagido, 2. Letter of Advice of Allotment
Voucher roads and Camilo de Letran, Manuel de Veyra, Heracleo Faelnar,
No. B-245; bridges by Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose 3. Advice of Cash Disbursement Ceiling
3. Check Typhoon Sayson, Edgardo Cruz, Leonila del Rosario, Engracia
No. Aring at the Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino 4. General Voucher No. B-613
9933294; Tabogon- Pagdanganan, Ramon Quirante, Jorge de la Peña, Leo
Bogo Villagonzalo, Asterio Buqueron, Expedito Torrevillas, 5. Check No. 9403099
provincial Mariano Montera and Rufino V. Nuñez for estafa thru
road from falsification of public and commercial documents, committed 6. Abstract of Bids
Km. 92 to as follows:
Km. 98 That on, about and during the period from June 1, 1977 up 7. Purchase Order
2885 January 2, 1. Request materials for PhP to June 30, 1977, both dates inclusive, in the City of Cebu
1977 up to for use in the 30,000.0 and in Cebu Province, and within the jurisdiction of this 8. Statement of Delivery
January 31, Allocation repair and 0 Honorable Court, the accused Rocilo Neis, Assistant District
1977 of Allotment rehabilitation Engineer of Cebu HED I; Rolando Mangubat, the Chief 9. Report of Inspection
101-12- of the Daan- Accountant of Region VII of the Ministry of Public Highways
112-76; Bantayan and Adventor Fernandez, Regional Highway Engineer of 10. Requisition for Supplies or Equipment
2. General road from same Regional Office, conniving with each other to defraud
Voucher Km. 127.00 to the Philippine Government with the indispensable 11. Trial Balance
No. B-76; Km. 136 cooperation and assistance of Angelina Escaño, Finance by making it appear that Regional Office No. VII of the
3. Check Officer of Region VII of the Ministry of Public Highways; Ministry of Public Highways regularly issued an advice of
No. Delia Preagido, Assistant Chief Accountant of same cash disbursement ceiling (ACDC) and the corresponding
9933125; Regional Office; Camilo de Letran, Chief Accountant of Cebu letter of advice of allotment (LAA) to cover the purchase
I HED; Manuel de Veyra, Regional Director, MPH, Region of 153.63 m. t. of item 310[8] for use in asphalting of the
2914 October 1, 1. General1,200 cu. m. PhP
VII; Heracleo Faelnar, then Assistant Director MPH Region Toledo-Tabuelan road at Km. 108.34 to Km. 109.52, when
1977 up to Voucher of item 108 27,000.0
VII; Basilisa Galvan, Budget Officer, MPH, Region VII; in truth and in fact, as all the accused knew, the same were
November No. B-927;for use in the 0
Matilde Jabalde, Supervising Accounting Clerk, MPH, not true and correct; by making it appear in the voucher that
30, 1977 2. Check rehabilitation
Region VII; Josefina Luna, Accountant II, MPH, Region VII; funds were available and that there were appropriate
No. of the Cajel-
Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo requests for allotments (ROA) to pay the aforesaid purchase;
9403425; Lugo, Barbon
Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, that a requisition for said item was made and approved; that
barangay
Chief Finance and Management Service, MPH, Central a regular bidding was held; that a corresponding purchase
road
Office; Engracia Escobar, Chief Accountant, MPH, Central order was issued in favor of the winning bidder; that the road
2918 January 2, 1. General 1,500 cu. m. PhP
Office; Abelardo Cardona, Assistant Chief Accountant, MPH, construction materials were delivered, inspected and used in
1977 up to Voucher of item 108 30,000.0
Central Office; Leonardo Tordecilla, Supervising Accountant, the supposed project and that the alleged supplier was
February 28, No. B-107; for the 0
MPH, Central Office; Agripino Pagdanganan, Budget Officer entitled to payment when in truth and in fact, as all the
1977 2. Check rehabilitation
III, MPH, Central Office; Ramon Quirante, Property accused know, all of the foregoing were false and incorrect
No. of the Cebu
Custodian of Cebu I HED; Jorge de la Peña, Auditor of Cebu and because of the foregoing falsifications, the above-
9933157; North
I HED; Leo Villagonzalo, Auditor's Aide of Cebu I HED; named accused were able to collect from the Cebu I HED
Hagnaya
Asterio Buqueron, Administrative Officer of Cebu I HED; the total amount of FORTY EIGHT THOUSAND FOUR
Wharf road
Expedito Torrevillas, representative of the Engineer's Office, HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85),
from Km. 71
Cebu I HED; Mariano Montera, Senior Civil Engineer Philippine Currency, in payment of the non-existing
to Km. 76
Engineer of Cebu I HED; and Rufino V. Nuñez, an alleged deliveries; that the said amount of P48,431.85 was not
supplier, all of whom took advantage of their official reflected in the monthly trial balance submitted to the Central
On the other hand, petitioner Torrevillas was one of the positions, with the exception of Rufino V. Nuñez, mutually Office by Region VII showing its financial condition as the
accused in Criminal Case Nos. 2855, 2856, 2858, 2859, helping each other did then and there willfully, unlawfully and same was negated thru the journal voucher, as a designed
2909, 2910, 2914, 2919, and 2932. feloniously falsify and/or cause the falsification of the means to cover-up the fraud; and the accused, once in
following documents, to wit: possession of the said amount, misappropriated, converted
and misapplied the same for their personal needs, to the
 Page 41 of 53

damage and prejudice of the Philippine Government in the 76; 6-237- the Toledo- November 2. Check the
total amount of FORTY EIGHT THOUSAND FOUR 76; 6-239- Tabuelan 30, 1977 No. rehabilitation
HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85), 76; 6-241- road from 9403425; of the Cajel-
Philippine Currency. 76; 6-240- Km. 108.34 Lugo,
CONTRARY TO LAW. 76 to Km. Barbon
The Torrevillas cases were substantially the same save for 2. General 109.52 barangay
the details highlighted in the aforequoted typical accusatory Voucher road
pleading. For ease of reference, Torrevillas' criminal cases No. B-629; 2919 January 2, 1. General 1,550 cu. m. PhP
are particularized as follows: 3. Check 1977 up to Voucher of item 108 31,000.00
Criminal Dates of Main Items Amount No. February 28, No. B-244; for use in
Case Commission Documents Allegedly of Fraud 9403115; 1977 2. Check the repair
No. Falsified Purchased 2859 June 1, 1977 1. Request 110.01 m. t. PhP No. and
2855 June 1, 1977 1. Request 153.63 m. t. PhP up to June for of item 310 34,680.65 9933293; rehabilitation
up to June for of item 310 48,431.85 31, 1977 Allocation of for use in of damaged
30, 1977 Allocation of for use in Allotment asphalting of roads and
Allotment asphalting of 101-7-63- the Toledo- bridges at
101-10-186- the Toledo- 76; 8-102- Tabuelan the Toledo-
76; 10-190- Tabuelan 76; 8-121- road from Tabuelan
76; 10-192- road from 76 Km. 108.34 national
76; 10-188- Km. 108.34 2. General to road from
76; 10-180- to Km. Voucher Km.109.52 Km. 71 to
76; 109.52 No. B-631; Km. 83
2. General 3. Check 2932 June 1, 1977 1. Request 250 gals of PhP
Voucher No. up to July 31, for aluminum 44,762.58
No. B-613; 9403117; 1977 Allocation of paint 324
3. Check 2909 September 1, 1. General 1,200 cu.m. PhP Allotment gals of red
No. 1977 up to Voucher of item 108 27,900.00 101-7-83- lead paint
9403099; November No. B-928; for use in 76; 7-84-76; for use in
2856 June 1, 1977 1. Request 153.76 m. t. PhP 30, 1977 2. Check the 7-124-76; 8- the
up to June for of item 310 48,472.84 No. rehabilitation 153-76; 8- maintenance
30, 1977 Allocation of for use in 9403426; of the 170-76; of national
Allotment the Buanoy- 2. General roads and
101-10-15- asphalting of Cantibas, Voucher B- bridges
76; 9-201- the Toledo- Balaban 643;
76; 8-152- Tabuelan barangay 3. Check
76; 8-153- road from road No.
76;9-181- Km 108.34 2910 September 1, 1. General 1,200 cu. m. PhP 9403130;
76; 9-184- to Km. 1977 up to Voucher of item 108 27,900.00
76 109.52 November No. B-929; for use in The Sandiganbayan's Ruling
2. General 30, 1977 2. Check the
Voucher No. rehabilitation The anti-graft court was fully convinced of the guilt of
No. B-619; 9403427; of the petitioner Fernan, Jr.; and in its December 4, 1997 Decision,
3. Check Magay- it found him criminally liable in the six (6) cases against him,
No. Canamukan, thus:
9403105; Compostela In Criminal Case No. 2879, the Court finds accused JOSE
2858 June 1, 1977 1. Request 151.35 m. t. PhP barangay SAYSON, RAMON QUIRANTE, MARIANO MONTERA,
up to July 31, for of item 310 47,713.09 road ZOSIMO MENDEZ, MARIANO JARINA and SIMON
1977 Allocation for use in 2914 October 1, 1. General 1,200 cu. m. PhP FERNAN, Jr., GUILTY beyond reasonable doubt as co-
Allotment the 1977 up to Voucher of item 108 27,000.00 principals in the crime of Estafa thru falsification of Public
101-6-234- asphalting of No. B-927; for use in Documents as defined and penalized in Articles 318 and

171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Twenty Eight Thousand Pesos (P 28,000.00); and, to pay
their proportionate share of the costs.[9] (Emphasis supplied.)
In Criminal Case No. 2880, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA, ZOSIMO
MENDEZ, and SIMON FERNAN, Jr., GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru
falsification of Public Documents as defined and penalized in
Articles 318 and 171, in relation to Article 48 of the Revised
Penal Code, and there being no modifying circumstances in
attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify,
jointly and severally the Republic of the Philippines in the
amount of Twenty Eight Thousand Pesos (P 28,000.00);
and, to pay their proportionate share of the
costs.[10] (Emphasis supplied.)
In Criminal Case No. 2881, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr.,
GUILTY beyond reasonable doubt as co-principals in the
crime of Estafa thru falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences
each of them to an indeterminate penalty ranging from six
(6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to
pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of
the Philippines in the amount of Thirty One Thousand Pesos
(P 31,000.00); and, to pay their proportionate share of the
costs.[11] (Emphasis supplied.)
In Criminal Case No. 2885, the Court finds
accused CAMILO DE LETRAN JOSE SAYSON, RAMON
QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr.,
GUILTY beyond reasonable doubt as co-principals in the
crime of Estafa thru falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences
each of them to an indeterminate penalty ranging from six
(6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to
pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of
the Philippines in the amount of Thirty Thousand Pesos (P
30,000.00); and, to pay their proportionate share of the
costs.[12] (Emphasis supplied.)
In Criminal Case No. 2914, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, EXPEDITO TORREVILLAS and SIMON
FERNAN, Jr., GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Pesos (P 27,000.00); and, to pay
their proportionate share of the costs.[13] (Emphasis
supplied.)
In Criminal Case No. 2918, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, ZOSIMO MENDEZ, SIMON FERNAN,
Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification
of Public Documents as defined and penalized in Articles
318 and 171, in relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in
attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify,
jointly and severally the Republic of the Philippines in the
amount of Thirty Thousand Pesos (P 30,000.00); and, to pay
Page 42 of 53
their proportionate share of the costs.[14] (Emphasis
supplied.)
Petitioner Torrevillas suffered the same fate and was
convicted in the nine (9) criminal cases, to wit:
In Criminal Case No. 2855, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA, and EXPEDITO
TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Forty Eight Thousand Four Hundred Thirty One Pesos and
85/100 (P 48,431.85); and, to pay their proportionate share
of the costs.[15] (Emphasis supplied.)
In Criminal Case No. 2856, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA and EXPEDITO
TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Forty Eight Thousand Four Hundred Seventy Two Pesos
and 84/100 (P 48,472.84); and, to pay their proportionate
share of the costs.[16] (Emphasis supplied.)
In Criminal Case No. 2858, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA and EXPEDITO
TOREVILLAS, GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru Falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences

each of them to an indeterminate penalty ranging from six
(6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to
pay a fine of Three Thousand Five Hundred Pesos
(P3,500.00); to indemnify, jointly and severally the Republic
of the Philippines in the amount of Forty Seven Thousand
Seven Hundred Thirteen Pesos and 9/100 (P47,713.09);
and, to pay their proportionate share of the costs.
In Criminal Case No. 2859, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA and EXPEDITO
TOREVILLAS, GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru Falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Thirty Four Thousand Six Hundred Eighty pesos and 65/100
(P34,680.65); and , to pay their proportionate share of the
costs.[17]
In Criminal Case No. 2909, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, FLORO JAYME and EXPEDITO
TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Nine Hundred Pesos (P
27,900.00); and, to pay their proportionate share of the
costs.[18] (Emphasis supplied.)
In Criminal Case No. 2910, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, FLORO JAYME and EXPEDITO
TORREVILLAS GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Nine Hundred Pesos (P
27,900.00); and, to pay their proportionate share of the
costs.[19] (Emphasis supplied.)
In Criminal Case No. 2914, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, EXPEDITO TORREVILLAS and SIMON
FERNAN, Jr., GUILTY beyond reasonable doubt as co-
principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and
171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty
ranging from six (6) years of prision correccional, as
minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five
Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of
Twenty Seven Thousand Pesos (P 27,000.00); and, to pay
their proportionate share of the costs. (Emphasis supplied.)
In Criminal Case No. 2919, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA, ZOSIMO
MENDEZ, EXPEDITO TORREVILLAS and ISMAEL SABIO,
Jr. GUILTY beyond reasonable doubt as co-principals in the
crime of Estafa thru falsification of Public Documents as
defined and penalized in Articles 318 and 171, in relation to
Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences
each of them to an indeterminate penalty ranging from six
(6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to
pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of
the Philippines in the amount of Thirty One Thousand Pesos
(P 31,000.00); and, to pay their proportionate share of the
Page 43 of 53
costs.[20] (Emphasis supplied.)
In Criminal Case No. 2932, the Court finds
accused CAMILO DE LETRAN, JOSE SAYSON, RAMON
QUIRANTE, MARIANO MONTERA, PEDRITO
SEVILLE and EXPEDITO TORREVILLAS GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru
falsification of Public Documents as defined and penalized in
Articles 318 and 171, in relation to Article 48 of the Revised
Penal Code, and there being no modifying circumstances in
attendance, hereby sentences each of them to an
indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months
and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify,
jointly and severally the Republic of the Philippines in the
amount of Forty Four Thousand Seven Hundred Sixty Two
Pesos and 58/100 (P 44,762.58); and, to pay their
proportionate share of the costs.[21] (Emphasis supplied.)
Petitioners made the supplication before the court a quo to
recall the adverse judgments against them which was
declined by the August 29, 2000 SB Resolution.
Firm in their belief that they were innocent of any
wrongdoing, they now interpose the instant petition to clear
their names.
The Issues
Petitioners put forward two (2) issues, viz:
I
THE HONORABLE SANDIGANBAYAN TOTALLY
IGNORED PETITIONERS CONSTITUTIONAL RIGHT TO
BE PRESUMED INNOCENT WHEN IT RULED THAT THE
BURDEN OF CONVINCING THE HON. COURT THAT THE
DELIVERIES OF THE ROAD MATERIALS ATTESTED TO
HAVE BEEN RECEIVED BY THEM WERE NOT GHOST
DELIVERIES RESTS WITH THE ACCUSED AND NOT
WITH THE PROSECUTION.
II
THE HONORABLE SANDIGANBAYAN ERRED IN
CONVICTING PETITIONERS AS CO-CONSPIRATORS
DESPITE THE PROSECUTION'S FAILURE TO
SPECIFICALLY PROVE BEYOND REASONABLE DOUBT
THE FACTS AND CIRCUMSTANCES THAT WOULD
IMPLICATE THEM AS CO-CONSPIRATORS AND JUSTIFY
THEIR CONVICTION.
The Court's Ruling

We are not persuaded to nullify the verdict.
Petitioners' guilt was established beyond reasonable
doubt
Petitioners mainly asseverate that their guilt was not shown
beyond a peradventure of doubt and the State was unable to
show that government funds were illegally released based
on alleged ghost deliveries in conjunction with false or fake
tally sheets and other documents which they admittedly
signed.
We are not convinced.
Our Constitution unequivocally guarantees that in all criminal
prosecutions, the accused shall be presumed innocent until
the contrary is proved.[22] This sacred task unqualifiedly
means proving the guilt of the accused beyond a reasonable
doubt. Definitely, "reasonable doubt" is not mere guesswork
whether or not the accused is guilty, but such uncertainty
that "a reasonable man may entertain after a fair review and
consideration of the evidence." Reasonable doubt is present
when
after the entire comparison and consideration of all the
evidences, leaves the minds of the [judges] in that condition
that they cannot say they feel an abiding conviction, to a
moral certainty, of the truth of the charge; a certainty that
convinces and directs the understanding, and satisfies the
reason and judgment of those who are bound to act
conscientiously upon it.[23]
A thorough scrutiny of the records is imperative to determine
whether or not reasonable doubt exists as to the guilt of
accused Fernan, Jr. and Torrevillas.
Petitioners were charged with the complex crime of estafa
through falsification of public documents as defined and
penalized under Articles 318 and 171 in relation to Article 48
of the Revised Penal Code, thus:
ART. 318. Other deceits. - The penalty of arresto mayor and
a fine of not less than the amount of the damage caused and
not more than twice such amount shall be imposed upon any
person who shall defraud or damage another by any deceit
not mentioned in the preceding articles of this chapter.
ART. 171. Falsification by public officer, employee; or notary
or ecclesiastical minister. - The penalty of prision mayorand
a fine not to exceed 5,000 pesos shall be imposed upon any
public officer, employee, or notary who, taking advantage of
his official position, shall falsify a document by committing
any of the following acts:
xxxx
4. Making untruthful statements in a narration of
facts;
ART. 48. Penalty for complex crimes. - When a single act
constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other,
the penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period.
The complex crime is pruned into the following essential
elements:
For estafa
1. Deceit: Deceit is a specie of fraud. It is actual
fraud, and consists in any false representation or
contrivance whereby one person overreaches and
misleads another, to his hurt. There is deceit when
one is misled, either by guile or trickery or by other
means, to believe to be true what is really false.[24]
2. Damage: Damage may consist in the offended
party being deprived of his money or property as a
result of the defraudation, disturbance in property
right, or temporary prejudice.[25]
For falsification
1. That the offender is a public officer, employee, or
notary public;
2. That he takes advantage of his official position;
3. That he falsifies a document by committing any of
the acts defined under Article 171 of the Revised
Penal Code.[26]
Before the SB, a Memorandum of Agreement (MOA) dated
September 1, 1988 was entered into between the State and
the accused with the following stipulations and admissions:
(1) To expedite the early termination of the instant cases and
abbreviate the testimony of Mrs. Delia Preagido, the
prosecution and the accused have agreed to reproduce and
adopt as the testimony of Preagido in the instant cases, her
previous testimonies in Criminal Cases Nos. 889, etc.
(Mandaue City HED '78 cases), on May 18 and 19, 1982 and
in Criminal Cases Nos. 1446-1789, etc. (Danao City HED '77
cases) on November 10, 1987 and March 14, 1988, both on
direct and cross examination x x x without prejudice to
whatever direct and/or cross examination question, that may
be propounded by the Prosecution and the accused on said
State witness, which questions will only be limited to the fake
or irregular LAA's and SACDC's issued to Cebu I HED in
1977, the sale of such fake or irregular LAA's and SACDC's
issued to Cebu I HED in 1977, the sale of such fake or
irregular LAA's and SACDC's in said engineering district in
the said year and the participation of the accused thereon;
(2) That in the event Mrs. Delia Preagido is presented to
Page 44 of 53
testify as a State witness in the instant cases without
reproducing and adopting her previous testimonies in the
Mandaue City HED '78 and the Danao City HED '77 cases,
she will identify documents and exhibits which have been
previously marked and identified by other prosecution
witness x x x.
(3) That in the previous testimonies of Mrs. Delia Preagido in
the Mandaue City HED '78 and the Danao City HED '77
cases, she identified twenty-six separate lists containing
names of officials and employees of MPH, Regional Office
No. VII, of the various Highways Engineering Districts in
MPH, Region VII, and the MPH Central Office who have
allegedly received money or various sums from 1977 to
1978 out of the proceeds or sales of fake LAA's in 1977 and
1978 and, therefore, to obviate Mrs. Preagido's previous
testimony of these lists, the Prosecution hereby reproduces
and adopts specifically such testimony and the markings of
the lists, i.e., Exhibits "KKK", "KKK-1" to "KKK-25" in the
Mandaue City HED '78 cases and Exhibits "0000", "0000-1"
to "0000-25" in the Danao City HED '77 cases, substituted or
re-marked accordingly as "Exhibits "LL", "LL-1" to "LL-25" in
the instant cases.[27]
As a result of this MOA, the testimony of state witness
Preagido on the modus operandi of the conspirators, or the
unique and distinct method of procedure by which the
malversation of public funds in Region VII of the MPH was
perpetrated and accomplished, dealt a major blow to the
defenses raised by petitioners. Preagido's vital testimony,
wherein she identified the methods, documents, exhibits,
and other pertinent papers that led to the crafting of fake
Letters of Advice of Allotment (LAAs),[28] general vouchers,
disbursement of funds for non-existent projects, general
vouchers, and other documents, was not even successfully
refuted or overturned by petitioners.
Preagido confirmed and admitted under oath that the illegal
disbursement of public funds pertained to non-existent
projects and was supported by fake LAAs, fake general
vouchers, and other pertinent papers that were also falsified.
The fake LAAs and general vouchers were, in turn,
supported by signed tally sheets that pertained to alleged
ghost deliveries of road construction materials for non-
existent or illegal projects.
The fake tally sheets, delivery receipts, reports of inspection,
requests for supplies and materials, and other related
documents signed on separate occasions by petitioners,
which were attached as supporting documents to
corresponding general vouchers; the alleged amounts and
quantities of road construction materials delivered; and the
 Page 45 of 53

specific fake general vouchers, checks, and other pertinent Bogo 2855 T-33-f 1. 153.63 m. Not PhP
documents issued which led to the illegal disbursement of provincial (Delivery Request t. of item numbere 48,431.
funds are summarized as follows: road from Receipt); for 310 for d 85
Km. 92 to T-33-f-1 Allocation use in contrary
Petitioner Fernan, Jr. Km. 98 (Daily of asphalting to official
2885 T-89-f- 1. Materials for Not PhP Tally Allotment of the procedur
Crimin Specifi Main Items FAKE Amount 1, etc. Request use in the numbere 30,000.0 Sheet); 101-10- Toledo- e
al Case c Documen Allegedly LAAs of (Tally for repair and d contrary 0 186-76; Tabuelan
No. Exhibit ts Purchased that Fraud Sheets Allocation rehabilitatio to official 10-190- road from
s Falsified authorize ) of n of the procedur 76; 10- Km.
d Allotment Daan- e 192-76; 108.34 to
purchase 101-12- Bantayan 10-188- Km.
2879 T-86-f- 1. General 1,400 cu. m. Not PhP 112-76; road from 76; 10- 109.52
1, etc. Voucher of item 108 numbere 28,000.0 2. General Km. 127.00 180-76;
(Tally No. B-15; for use in d contrary 0 Voucher to Km. 136 2.
Sheets 2. Check the repair of to official No. B-76; General
) No. the Cebu procedur 3. Check Voucher
9933064; Hagnaya e No. No. B-
Wharf road 9933125; 613;
from Km. 2914 T-115- 1. General 1,200 cu. m. PhP 3. Check
50.30 to g-1, Voucher of item 108 27,000.0 No.
Km. 60.00 etc. No. B-927; for use in 0 9403099;
2880 T-87-f- 1. 1,400 cu. m. Not PhP (Tally 2. Check the 2856 T-34-f 1. 153.76 m. Not PhP
1, etc. Request of item 108 numbere 28,000.0 Sheets No. rehabilitatio (Delivery Request t. of item numbere 48,472.
(Tally for for use in d contrary 0 ) 9403425; n of the Receipt); for 310 for d 84
Sheets Allocation the repair of to official Cajel-Lugo, T-34-f-1 Allocation use in the contrary
) of the Bogo- procedur Barbon (Daily of asphalting to official
Allotment Curva- e barangay Tally Allotment of the procedur
101-12- Medellon road Sheet); 101-10- Toledo- e
105-76; road from 2918 T-116- 1. General 1,500 cu. m. Not PhP 15-76; 9- Tabuelan
2. General Km. 110.00 f-1, Voucher of item 108 numbere 30,000.0 201-76; 8- road from
Voucher to Km. etc. No. B-107; for the d contrary 0 152-76; 8- Km 108.34
No. B-55; 119.00 (Tally 2. Check rehabilitatio to official 153-76;9- to Km.
3. Check Sheets No. n of the procedur 181-76; 9- 109.52
No. ) 9933157; Cebu North e 184-76
9933104; Hagnaya 2.
2881 T-104- 1. Approximat Not PhP Wharf road General
g-1, Request ely 1,500 numbere 31,000.0 from Km. 71 Voucher
etc. for cu. m. of d contrary 0 to Km. 76 No. B-
(Tally Allocation item 108 for to official 619;
Sheets of use in the procedur 3. Check
Petitioner Torrevillas
) Allotment repair and e No.
101-2-56- rehabilitatio 9403105;
Crimin Specific Main Items FAKE Amount
77; n of 2858 T-35-f 1. 151.35 m. Not PhP
al Exhibits Documen Allegedly LAAs of
2. General damaged (Delivery Request t. of item numbere 47,713.
Case ts Purchase that Fraud
Voucher roads and Receipt); for 310 for d 09
No. Falsified d authoriz
No. B-245; bridges by T-35-f-1 Allocation use in the contrary
ed
3. Check Typhoon (Daily Allotment asphalting to official
purchas
No. Aring at the Tally 101-6- of the procedur
e
9933294; Tabogon- Sheet); 234-76; 6- Toledo- e
 Page 46 of 53

237-76; 6- Tabuelan Equipmen 2. Check on of the procedur 76; 7-124- ce of

239-76; 6- road from t); T-114- No. Magay- e 76; 8-153- national
241-76; 6- Km. e (Report 9403427; Canamuka 76; 8-170- roads and
240-76 108.34 to of n, 76; bridges
2. Km. Inspection Compostel 2.
General 109.52 ); T-114-f a General
Voucher (Abstract barangay Voucher
No. B- of Sealed road B-643;
629; Quotation 3. Check
3. Check ) No.
No. 2914 T-115-c 1. 1,200 cu. Not PhP 9403130;
9403115; (Request General m. of item numbere 27,000.
2859 T-36-f 1. 110.01 m. Not PhP for Voucher 108 for d 00 On the part of petitioners, they readily admitted that they
(Delivery Request t. of item numbere 34,680. Supplies No. B- use in the contrary either signed the tally sheets and/or delivery receipts, reports
Receipt); for 310 for d 65 and 927; rehabilitati to official of inspection, requests for supplies and materials, and other
T-36-f-1 Allocation use in contrary Equipmen 2. Check on of the procedur related documents which became part of the supporting
(Daily of asphalting to official t); T-115- No. Cajel- e documents that led to the issuance of general vouchers and
Tally Allotment of the procedur e (Report 9403425; Lugo, eventually the disbursement of public funds.[29] The tally
Sheet); 101-7-63- Toledo- e of Barbon sheets are statements of delivery that purportedly indicated
76; 8-102- Tabuelan Inspection barangay the specified quantities of materials for the construction and
76; 8-121- road from ); T-115-f road maintenance of roads that have been delivered on supposed
76 Km. (Abstract project sites on given dates at specific places.
2. 108.34 to of Sealed
General Km.109.52 Quotation As a result of petitioners' signatures in the tally sheets and/or
Voucher ) delivery receipts, reports of inspection, requests for supplies
No. B- 2919 T-117-g 1. 1,550 cu. Not PhP and materials, and other supporting documents--which
631; (Delivery General m. of item numbere 31,000. became the basis for payment to suppliers--public funds
3. Check Receipt); Voucher 108 for d 00 were released via general vouchers and checks to the said
No. T-117-g- No. B- use in the contrary suppliers despite the fact that the latter did not make any
9403117; 1, etc. 244; repair and to official deliveries in accordance with projects allegedly funded by
2909 T-113-b 1. 1,200 Not PhP (Daily 2. Check rehabilitati procedur mostly fake LAAs.
(Request General cu.m. of numbere 27,900. Tally No. on of e
for Voucher item 108 d 00 Sheets) 9933293; damaged The accusation that there were no actual deliveries of road
Supplies No. B- for use in contrary roads and construction and maintenance materials in support of
and 928; the to official bridges at projects or otherwise funded by LAAs was proven true by the
Equipmen 2. Check rehabilitati procedur the testimonies of the various barangay captains and residents
t); T-113- No. on of the e Toledo- of the barangay who were supposed to be benefited by the
d (Report 9403426; Buanoy- Tabuelan construction and repair activities of the Cebu First Highway
of Cantibas, national Engineering District. The testimonies of these barangay
Inspection Balaban road from captains and residents are summarized as follows: [30]
); T-113-c barangay Km. 71 to 1. MACARIO LIMALIMA, Barangay Captain of
(Abstract road Km. 83 Barangay Antipolo, Medellin, Cebu, testified that
of Sealed 2932 1. 250 gals of Not PhP his barangay is traversed by the national highway
Quotation Request aluminum numbere 44,762. stretching to a distance of 2 kilometers and 750
) for paint 324 d 58 meters (Km. 122; Km. 123 to 125). He described
2910 T-114-c 1. 1,200 cu. Not PhP Allocation gals of red contrary the road as full of potholes. Except for filling up
(Request General m. of item numbere 27,900. of lead paint to official these potholes with "anapog" or crushed
for Voucher 108 for d 00 Allotment for use in procedur limestone, no major repairs were undertaken on
Supplies No. B- use in the contrary 101-7-83- the e the said road in 1978 or in previous years. (TSN.,
and 929; rehabilitati to official 76; 7-84- maintenan pp. 6-14, June 5, 1986).[31]

2. FELOMINO ORBISO, Barangay Captain of Cawit,
Medellin, Cebu, from 1972 to 1981, testified that
his barangay is traversed by the national highway,
stretching from Km. 125 to Km. 127.9. He
described the road as a rough or dirt road. No
improvement was ever made on this road whether
during the year when he gave his statement to the
NBI (1978) or in previous years. The road
remained in bad shape, with numerous potholes
which the camineros merely filled up with
limestone. (TSN., pp.14-19, June 5, 1986).[32]
3. TIMOTEO ANCAJAS, Barangay Captain of
Paypay, Daan Bantayan, Cebu, from 1972 to
1982, testified that his barangay is traversed by
the national highway, stretching from Km. 132 to
Km. 134 ½, or a distance of 2 ½ kilometers. He
described the portion of the highway as a rough
road with potholes. He stated that the only
improvement done on this road was the filling up
of the potholes with "anapog" or crushed
limestone and this was done only once in 1977. It
even took the camineros three months from the
time the limestones were delivered to start working
on the road. (TSN., pp. 20-26, June 5, 1986).[33]
4. LUCIA PEÑAFLOR, Barangay Captain of Don
Pedro, Bogo, Cebu, from 1966 to 1982, testified
that her barangay is traversed by the national
highway, stretching from Km. 103 to Km. 105 ½,
up to the boundary of San Remigio, and from the
boundary to Daan Bantayan, a distance of more
than 3 kilometers. It was only in 1984 or 1985
when this portion of the national highway was
asphalted. Prior to that, the road was maintained
by filling up the potholes with crushed limestone or
"anapog." These potholes started to appear
between January and June of 1977. However, as
alleged by her in her affidavit (Exh. II-1-d), these
potholes were filled up only from January to June,
1978. (TSN., pp. 28-46, June 5, 1986).[34]
5. MARCELO CONEJOS, Barangay Captain of
Tapilon, Daan Bantayan, from 1972 to 1982,
testified that his barangay is traversed by the
national highway, stretching from Km. 130 to Km.
134, or a distance of 4 kilometers. In 1977, said
portion of the national highway was in bad
condition and that nothing was done to improve it
until 1982, except for the time when the potholes
were filled up with crushed limestones. (TSN., pp.
48-56, June 5, 1986).[35]
6. REMEDIOS FELICANO, Barangay Captain of
Looc, San Remigio, Cebu from 1977 to 1982,
testified that her barangay is traversed by the
national highway, stretching form Km. 109 to Km.
110. She described said portion of the national
highway as "stoney." The only maintenance work
undertaken to improve the road was the filling up
of potholes with crushed limestone which
camineros gathered from the roadside. (TSN.,
pp.57-67, June 5, 1986).[36]
7. ALBERTO BRANSUELA, a resident of Barangay
San Jose, Catmon, Cebu, from 1974 to 1978,
testified that barangay San Jose is traversed by
the national highway (Km. 58), covering a distance
of ½ kilometer more or less. He stated that while
this portion of the national highway was already
asphalted as of 1977, there were potholes which
the camineros filled up with anapog taken from the
roadside. (TSN., pp. 69-80), June 5, 1986).[37]
8. CARIDAD PUNLA, Acting Barangay Captain of
Barangay Corazon, Catmon, Cebu, from 1977 to
1982, testified that the Poblacion of Catmon is
traversed by the national highway, stretching from
Km. 57 to Km. 58. In 1977, only more than ½ of
this portion of the national highway was cemented
while the remaining portion was asphalted. While
said portion of the national highway already had
cracks and potholes as of 1977, the real problem
was the uneven elevation of the surface of the
shoulder of the road. No general repair was
undertaken by the authorities to correct the
uneven elevation, except for the work done by the
camineros who covered up the potholes. (TSN.,
pp. 81-89, June 5, 1986).[38]
9. FELIPE MOLIT, Barangay Captain of Bao, Sugud,
Cebu, from 1975 to 1982, testified that barangay
Bao was traversed by the national highway,
stretching from Km. 59 to Km. 60 1/2. He
described said portion of the national highway as a
gravel road surfaced with anapog. In 1977, the
said road already had potholes which
maintenance men filled up with anapog beginning
in March, 1977. The anapog was hauled in from
Km. 64, the usual excavation place of anapog. It
took only 3 truckloads of anapog to cover the
entire length of the 1 ½ kilometers traversing their
barangay. (TSN., pp. 90-99, June 5, 1986).[39]
10. LEONARDO PINOTE, Barangay Captain of
Barangay Argawanon, San Remigio, Cebu, from
1972 to 1980, testified that his barangay is
traversed by the national highway covering a
distance of ½ kilometers more or less. In 1977,
this portion of the national highway was a rough
Page 47 of 53
road with potholes. In the same year, camineros
worked on the road, using wheelbarrows, shovels
and rakes, pitching up the potholes with anapog.
(TSN., pp. 29-35, June 6, 1986).[40]
11. PEDRO ORSAL, Barangay Captain of Poblacion,
San Remigio, Cebu, from January 1972 to 1980,
testified that his barangay is traversed by the
national highway, from Km. 107 to Km. 110, or a
distance of three kilometers more or less. In 1977,
the road from Km. 107 to Km. 108 was a gravel
road. It was properly maintained by the highways
people, and every time potholes appeared on the
road, they would be filled-up with anapog. This
material was dumped along the road by trucks of
the Bureau of Public Highways. On the other
hand, the road leading to the heart of the
poblacion was asphalted, but with potholes. In
1977, the potholes were filled up by camineros
with gravel delivered by dump trucks of the Bureau
of Public Highways. It was only in 1978 when the
road was re-asphalted and extended from the
junction of the poblacion to the adjacent barrio of
Looc. x x x (TSN., pp.36-45, June 6, 1986).[41]
The inescapable conclusion from the aforementioned
testimonies of the barangay captains and residents of Cebu
whose respective barangay are traversed by the national
highway is that there were no actual major repair works
undertaken on the national highway except the filling of
potholes by crushed limestone (anapog). Clearly, there were
no deliveries of supplies and materials for asphalting and
repair of roads described in the tally sheets and other
supporting documents signed by petitioners.
While petitioner Torrevillas presented Vice-Mayor Emigdio
Tudlasan of Tabuclan, Cebu, who testified that he saw the
asphalting of the Tabuclan Road from kilometers 18 to 19,
said testimony is not conclusive on the actual delivery of the
supplies indicated in the tally sheets, as Tudlasan was not
present at the time of alleged delivery. Moreover, his
testimony runs counter to the testimonies
of Barangay Captain Remedios Feliciano of Looc, San
Remigio, Cebu and Barangay Captain Pedro Orsal of
Poblacion, San Remigio, Cebu. Feliciano testified that she
was Barangay Captain of Looc, San Remigio, Cebu from
1977 to 1982; that her barangay is traversed by the national
highway, stretching from km. 109 to km. 110; and that the
only work undertaken to improve the road was the filling up
of potholes with crushed limestone which camineros
gathered from the roadside. On the other hand, Orsal
testified that he was Barangay Captain of Poblacion, San
Remigio, Cebu, from January 1972 to 1980; that

his barangay is traversed by the national highway, from km.
107 to km. 110; that in 1977, the road from km. 107 to km.
108 was a gravel road maintained by the highways people,
and every time potholes appeared on the road, they would
be filled-up with anapog, which was dumped along the road
by the Bureau of Public Highways; and that it was only in
1978 when the road was re-asphalted and extended from
the junction of the poblacion to the adjacent barrio of Looc.
Compared to the testimony of Vice-Mayor Tudlasan, the
testimonies of Barangay Captains Feliciano and Orsal are
entitled to more weight and credit, and are more credible
considering the fact that they are residents of the area where
the road supposedly to be repaired is located plus the fact
that they saw only limestone, not asphalt, that was used in
the repair of the road in 1977. The testimonies of Feliciano
and Orsal are further buttressed by the findings and
statements of government witnesses, namely--Ruth Inting
Paredes, Supervising Commission on Audit (COA) Auditor
assigned to Region VII; Felicitas Cruz Ona, Supervising
COA Auditor assigned to the main COA office; Federico A.
Malvar, Senior National Bureau of Investigation (NBI) Agent
of the Anti-Graft Section and member of the COA NBI team
assigned to investigate the anomalies; Rogelio C. Mamaril,
Supervising NBI Agent of the Anti-Fraud and Action Section;
and Delia Comahig Preagido, Accountant III, MPH, Region
VII--to the effect that the general vouchers and LAAs that
corresponded to the aforementioned tally sheets signed by
petitioner Torrevillas were fake or falsified. Undeniably, the
government witnesses have no motive to testify falsely
against petitioner Torrevillas and, hence, credible. We
conclude that there were no actual deliveries of supplies for
asphalting of road and repair on kilometers 108 and 109,
which were the subjects of Criminal Case Nos. 2855, 2856,
2858, and 2859.
Glaring is the finding of the SB that the Cebu First Highway
Engineering District, to which petitioners were assigned, had
fake LAAs totaling to PhP 4,924,366.50, while the fake Cash
Disbursement Ceilings issued amounted to PhP
6,271,150.[42] The Cebu First Highway Engineering District
had also issued checks per unrecorded reports in the total
sum of PhP 1,135,176.82.[43] Therefore, the total illegal
disbursements in the Cebu First Highway Engineering
District alone were a staggering PhP 12,330,693.32 circa
1977.
Of this total, petitioner Fernan, Jr. freely admitted signing
tally sheets which pertained to non-existent deliveries of
road construction supplies and materials totaling PhP
146,000,[44] including PhP 27,000 in Criminal Case No. 2914
where petitioner Torrevillas was among the co-
accused.[45] These tally sheets were attached as the
supporting papers to fake general vouchers which facilitated
the release of check payments to suppliers.
These checks were allegedly paid to suppliers Juliana de los
Angeles (Criminal Case Nos. 2879, 2880, 2881, 2885, and
2914) and Ismael Sabio, Jr. (Criminal Case No. 2918).[46]
On his part, petitioner Torrevillas voluntarily admitted to
signing tally sheets, reports of inspection, requisitions of
supplies and equipment, and other pertinent documents
totaling an even greater amount of PhP
337,861.01,[47]including PhP 27,000 in Criminal Case No.
2914 where petitioner Fernan, Jr. was among the co-
accused.[48] These documents signed by petitioner
Torrevillas were likewise attached as supporting papers to
fake general vouchers which facilitated the release of check
payments to suppliers.
These checks were allegedly paid to suppliers Rufino V.
Nuñez (Criminal Case Nos. 2855, 2856, 2858, and 2859),
Juliana de los Angeles (Criminal Case Nos. 2909, 2910, and
2914), Ismael Sabio, Jr. (Criminal Case No. 2919), and
Manuel Mascardo (Criminal Case No. 2932).[49]
These general vouchers and checks could not be traced to
genuine LAAs. Ergo, there were no actual deliveries of
supplies and materials for the road repair and rehabilitation
in Region VII, which were the subjects of the criminal cases
where petitioners were charged.
We find no reason to disturb the findings of the court a
quo that all the essential elements of the crime of estafa
through falsification of public documents were present.
There is no question that petitioners, at the time of the
commission of the crime, were public officers"civil
engineers"assigned to the MPH. Their signing of tally sheets
and related documents pertaining to the alleged deliveries of
supplies for road repair and construction constitutes
intervention and/or taking advantage of their official
positions, especially considering that they had the duty to
inspect the purported deliveries and ascertain the veracity of
the documents and the statements contained in them.
The tally sheets bearing their signatures contained false
recitals of material facts which the petitioners had the duty to
verify and confirm. These tally sheets were attached as
supporting documents to fake LAAs and subsequently
became the bases for the disbursement of public funds to
the damage and prejudice of the government. Indubitably,
Page 48 of 53
there exists not even an iota of doubt as to petitioners' guilt.
The essential elements of estafa through falsification of
public documents are present in the cases against
petitioners, as follows:
1. Deceit: Petitioners Fernan, Jr. and Torrevillas
made it appear that supplies for road construction
and maintenance were delivered by suppliers
allegedly in furtherance of alleged lawful projects
when in fact said supplies were not delivered and
no actual asphalting or repair of road was
implemented. In doing so, petitioners:
1.1. Were public officers or employees at the time
of the commission of the offenses;
1.2. Took advantage of their official position as
highway engineers; and
1.3. Made untruthful statements in several
narrations of fact.
2. Damage: The government disbursed PhP 146,000
in the case of Fernan, Jr. and PhP 337,861.01 in
the case of Torrevillas, as payments to various
suppliers for the delivery of non-existent supplies.
By way of defense, petitioners posit that the tally
sheets and other documents could in fact be
traced to genuine LAAs that were in the custody of
the NBI. Unfortunately, these genuine LAAs were
not introduced in evidence. It is an age-old axiom
that s/he who alleges something must prove it.
Petitioners' assertion that the documents they
signed were all genuine and duly covered by
genuine LAAs was substantiated only by their own
self-serving and uncorroborated testimonies. We
hesitate to give much weight and credit to their
bare testimonies in the face of clear, convincing,
overwhelming, and hard evidence adduced by the
State.
If the genuine LAAs were vital to their defense, and they
firmly believed that the documents were indeed in the
custody of the NBI, then petitioners could have easily
procured the compulsory process to compel the production
of said documents. However, petitioners miserably failed to
avail of subpoena duces tecum which the court a quo could
have readily granted. The inability to produce such important
and exculpatory pieces of evidence proved disastrous to
petitioners' cause. Their conviction was indeed supported by
proof beyond reasonable doubt which was not overturned by
defense evidence.

Petitioners acted in conspiracy with one another
Petitioners vigorously claim error on the part of the lower
court when it made the finding that they were co-
conspirators with the other parties accused despite the
dearth of evidence to amply demonstrate complicity.
We are not convinced by petitioners' postulation.
Indeed, the burden of proving the allegation of conspiracy
falls to the shoulders of the prosecution. Considering,
however, the difficulty in establishing the existence of
conspiracy, settled jurisprudence finds no need to prove it by
direct evidence. In People v. Pagalasan, the Court
explicated why direct proof of prior agreement is not
necessary:
After all, secrecy and concealment are essential features of
a successful conspiracy. Conspiracies are clandestine in
nature. It may be inferred from the conduct of the accused
before, during and after the commission of the crime,
showing that they had acted with a common purpose and
design. Conspiracy may be implied if it is proved that two or
more persons aimed their acts towards the accomplishment
of the same unlawful object, each doing a part so that their
combined acts, though apparently independent of each
other, were in fact, connected and cooperative, indicating a
closeness of personal association and a concurrence of
sentiment. To hold an accused guilty as a co-principal by
reason of conspiracy, he must be shown to have performed
an overt act in pursuance or furtherance of the complicity.
There must be intentional participation in the transaction with
a view to the furtherance of the common design and
purpose.[50]
In Estrada v. Sandiganbayan, we categorized two (2)
structures of multiple conspiracies, namely: (1) the so-called
"wheel" or "circle" conspiracy, in which there is a single
person or group (the "hub") dealing individually with two or
more other persons or groups (the "spokes"); and (2) the
"chain" conspiracy, usually involving the distribution of
narcotics or other contraband, in which there is successive
communication and cooperation in much the same way as
with legitimate business operations between manufacturer
and wholesaler, then wholesaler and retailer, and then
retailer and consumer.[51]
We find that the conspiracy in the instant cases resembles
the "wheel" conspiracy. The 36 disparate persons who
constituted the massive conspiracy to defraud the
government were controlled by a single hub, namely:
Rolando Mangubat (Chief Accountant), Delia Preagido
(Accountant III), Jose Sayson (Budget Examiner), and
Edgardo Cruz (Clerk II), who controlled the separate
"spokes" of the conspiracy. Petitioners were among the
many spokes of the wheel.
We recall the painstaking efforts of the SB through Associate
Justice Cipriano A. Del Rosario, Chairperson of the Third
Division, in elaborating the intricate web of conspiracy
among the accused, thus:
Mangubat enticed Preagido, Cruz and Sayson to join
him. All three agreed to help him carry out his plan.They
typed fake LAAs during Saturdays. Cruz and Sayson also
took charge of negotiating or selling fake LAAs to contractors
at 26% of the gross amount. Preagido manipulated the
general ledger, journal vouchers and general journal through
negative entries to conceal the illegal disbursements. In the
initial report of COA auditors Victoria C. Quejada and Ruth I.
Paredes it was discovered that the doubtful allotments and
other anomalies escaped notice due to the following
manipulations:
"The letter-advices covering such allotments (LAA) were not
signed by the Finance Officer nor (sic) recorded in the books
of accounts. Disbursements made on the basis of these fake
LAAs were charged to the unliquidated obligations (Account
8-81-400), although the obligations being paid were not
among those certified to the unliquidated obligations
(Account 8-81-400) at the end of the preceding year. To
conceal the overcharges to authorized allotments, account
8-81-400 (sic) and the excess of checks issued over
authorized cash disbursements ceiling, adjustments were
prepared monthly through journal vouchers to take up the
negative debit to Account 8-81-400 and a negative credit to
the Treasury Checking Account for Agencies Account 8-70-
790. These journal vouchers in effect cancelled the previous
entry to record the disbursements made on the basis of fake
LAAs. Thus the affected accounts (Accounts 8-81-400 and
8-70-790), as appearing in the trial balance, would not show
the irregularity. The checks, however, were actually
issued."[52]
The four formed the nucleus of the nefarious
conspiracy. Other government employees, tempted by
the prospect of earning big money, allowed their names
to be used and signed spurious documents.
xxxx
3. Cebu First Highway Engineering District
Anomalies
Focusing our attention now on the anomalies committed in
the Cebu First District Engineering District, hereinafter
referred to as the Cebu First HED for brevity, the Court finds
that the same pattern of fraud employed in the other highway
Page 49 of 53
engineering districts in MPH Region VII was followed. The
Cebu First HED received from Region VII thirty-four Letters
of Advice of Allotment (LAAs) in the total sum of
P4,734,336.50 and twenty-nine (29) corresponding Sub-
Advices of Cash Disbursement Ceiling (SACDCs),
amounting to P5,160,677.04 for the period January 1, 1977
to December 31, 1977. But apart from this, the Cebu First
HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to
P4,680,694.76 which however, could not be traced to any
Sub-Advice of Allotment (SAA) OR MATCHED TO THE
Advices of Cash Disbursement Ceiling (ACDCs) received
from the MPH and Regional Office. This is highly irregular
and not in consonance with accounting procedures.
It was also made to appear that the payments were made for
alleged prior year's obligations and chargeable to Account
81-400, obviously because, they were not properly funded.
Furthermore, the list of projects in Region VII for 1977
showed that Cebu first HED completed rehabilitation and/or
improvement of roads and bridges in its districts from
February to May, 1977, with expenditures amounting to
P613,812.00. On the other hand, the expenditures for
barangay roads in the same district in 1977 amounted to
P140,692.00, and these were all completed within the period
from November to December, 1977. These completed
projects were properly funded by legitimate LAAs and CDCs
in the total amount of only P754,504.00. However, an
additional amount of P3,839,810.74, was spent by the Cebu
First HED for maintenance of roads and bridges for the
same year (1977) but the same could not be traced to any
authoritative document coming from the MPH.
The following payments for materials purchased for the year
1977 were made to appear as payment for prior year's
obligation and were paid out of fake LAAs:
Supplier No. of Kind of Measuremen Amount
Voucher Material t
s s
Rufino 29 Item 310 4,640,275 mt P1,374,135.0
Nuñez 0
J. delos 21 Item 108 22,290 cu.m. 433,300.00
Angeles
Iluminada 11 Item 108 8,325 cu.m. 191,500.00
Vega
Florencio 10 Item 108 7,800 cu.m. 156,000.00
Gacayan
Ismael 6 Item 108 6,198 cu.m. 123,960.00
Sabio, Jr.
 Page 50 of 53

FBS 3 Lumber 70,610.00 A total of 132 General Vouchers, emanating from fake LAAs
Marketing and ACDCs, were traced back to Rolando Mangubat, State witness Ruth Paredes, Supervising COA Auditor,
Regional Accountant of Region VII and Adventor Fernandez, elaborated on the procedure regarding the award of the
Cebu 2 Hollow 19,880.00
Regional Highway Engineer, also of Region VII. Those LAAs contract more specifically to the payment of the contractor or
Hollow Blocks
and ACDCs became the vehicles in the disbursement of supplier. Once the Request for Supplies and Equipment is
Blocks
funds amounting to P3,839,810.74, through the vouchers approved by the Regional Office, the Request for Obligation
Bienvenid 4 Equip. 29,580.00
purportedly issued for the purchase and delivery of the of Allotment (ROA) or the request for funds is signed by the
o Presillas Rental
aforementioned materials allegedly used for the District Engineer pursuant to the approved plans and budget
T.R. 1 Office 7,461.90 maintenance and repair of the national highways within the and signed by the district accountant as to availability of
Eustaquio Supplies Cebu First HED. Despite the enormous additional funds.
Ent. expenditure of P3,839,810.74, the roads and bridges in the
Santrade 1 Johnson 8,392.90 district, as found out by the NBI, did not show any The district office will advertise the invitation to bid and
Mktg. Products improvement (Exhibit II). As testified to by several barangay award the contract to the lowest bidder. The Purchase Order
Pelagia 1 Item 108 2,000 cu.m. 40,000.00 captains, the road maintenance consisted merely of (PO) is prepared and addressed to the winning bidder. Upon
Gomez spreading anapog or limestone on potholes of the national delivery of the supplies and materials, the supplier bills the
Highway. district office for payment. Consequently, the requisitioning
M&M 1 Paints 49,736.20
officer will prepare the general voucher which must be
Ent.
Obviously, the vouchers for payments of alleged accompanied by the following documents:
Freent 1 Office 590.20 maintenance of roads and bridges in the additional amount a. The ROA;
Ind. Supplies of P3,839,810.74 were prepared for no other purpose than to
Total... P2,505,147.0 siphon off the said amount from the government coffer into b. The PO;
0 the pockets of some officials and employees of Region VII
The NBI also discovered that there were purchases of and the Cebu First HED, as well as the suppliers and c. The abstract of Bid together with the Bid
materials in 1977 that were charged to current obligations contractors who conspired and confederated with them. [53] quotations;
but paid out of spurious LAAs, to wit: After a close re-examination of the records, the Court finds
no reason to disturb the finding of the anti-graft court that d. The delivery receipts together with the tally sheets;
Supplier No. of Kind of Measuremen Amount
petitioners are co-conspirators of the other accused, headed and
Voucher Material t
by Chief Accountant Rolando Mangubat, who were similarly
s s
convicted in practically all the 119 counts of estafa. e. The tax clearance and tax certificate of the
Rufino 11 Item 310 162,549 m.t. P529,475.00
Undisturbed is the rule that this Court is not a trier of facts supplier.
Nuñez Item 108 5,000 cu.m.
and in the absence of strong and compelling reasons or After the preparation and submission of the general voucher
Juliana 16 Item 108 13,280 cu.m. P276,400.00 justifications, it will accord finality to the findings of facts of and the supporting documents, the disbursing officer shall
delos Item 111 1,00 cu.m. 24,000.00 the SB. The feeble defense of petitioners that they were not prepare and draw a check based on said voucher. The
Angeles Item 200 307 cu.m. 7,982.00 aware of the ingenuous plan of the group of accused check is countersigned by an officer of the district office
Iluminad 3 Item 108 3,600 cu.m. 72,090.00 Mangubat and the indispensable acts to defraud the and/or the COA Regional Director based on the amount of
a Vega government does not merit any consideration. The State is the check.
Florencio 2 Item 108 2,400.00 48,000.00 not tasked to adduce direct proof of the agreement by
Gacayan cu.m. petitioners with the other accused, for such requirement, in Thus, it is clear that without the tally sheets and delivery
many cases, would border on near impossibility. The State receipts, the general voucher cannot be prepared and
Vicon 1 Steel 19,042.74
needs to adduce proof only when the accused committed completed. Without the general voucher, the check for the
Ent. Frame
acts that constitute a vital connection to the chain of payment of the supply cannot be made and issued to the
Ismael 5 Item 108 6,950 cu.m. 139,000.00 conspiracy or in furtherance of the objective of the supplier. Without the check payment, the defraudation
Sabio, Jr. conspiracy. In the case at bench, the signing of the fake tally cannot be committed and successfully consummated. Thus,
Jabcyl 3 Bridge 128,764.80 sheets and/or delivery receipts, reports of inspection, and petitioners' acts in signing the false tally sheets and/or
Mktg. Materials requests for supplies and materials by petitioners on delivery receipts are indispensable to the consummation of
Total... P1,339,663.7 separate occasions is vital to the success of the Mangubat the crime of estafa thru falsification of public documents.
4 Group in siphoning off government funds. Without such Surely, there were ghost or false deliveries of supplies and
fabricated documents, the general vouchers covering the materials as convincingly shown by the testimonies of the
supply of materials cannot be properly accomplished and barangay captains, officials, and residents of the areas
Grand Total .... P3,839,810.74
submitted to the disbursing officer for the preparation of where the materials were allegedly used. More importantly, if
checks. there were actual deliveries of materials made, then there

would be no need to fake the LAAs because the suppliers
will have to be paid the cost of said materials plus a
reasonable profit. As a result, there is nothing or not much to
share with the more than 30 or so co-conspirators, for the
suppliers would not be too dim-witted to part with even their
cost in buying the materials they allegedly supplied.
Moreover, the fake delivery receipts and tally sheets signed
by petitioners were linked to the general vouchers upon
which check payments were made to the suppliers who were
found guilty of participating in the fraud. With respect to
petitioner Fernan, Jr., he signed tally sheets on the ghost
deliveries of Juliana de los Angeles and Ismael Sabio, Jr. On
the part of petitioner Torrevillas, he signed false tally sheets
and delivery receipts on supplies allegedly delivered by
Rufino V. Nuñez, Juliana de los Angeles, Ismael Sabio, Jr.,
and Manuel Mascardo. Lastly, the checks issued to these
suppliers based on general vouchers supported by the false
tally sheets and general vouchers signed by petitioners
cannot be traced to any genuine LAAs, resulting in the
inescapable conclusion that these LAAs were unauthorized;
hence, fake or fabricated. These are undisputed tell-tale
signs of the complicity by petitioners with the Mangubat
syndicate.
In People v. Mangubat, the court a quo elucidated the
conspiracy in the Cebu highway scam in a trenchant
manner:
Where the acts of each of the accused constitute an
essential link in a chain and the desistance of even one of
them would prevent the chain from being completed, then no
conspiracy could result as its consummation would then be
impossible or aborted. But when each and everyone of the
accused in the instant cases performed their assigned tasks
and roles with martinet-like precision and accuracy, by
individually performing essential overt acts, so much so that
the common objective is attained, which is to secure the
illegal release of public funds under the guise of fake or
simulated public documents, then each and everyone of said
accused are equally liable as co-principals under the well-
established and universally-accepted principle that, once a
conspiracy is directly or impliedly proven, the act of one is
the act of all and such liability exists notwithstanding no-
participation in every detail in the execution of the offense.[54]
In sum, the required quantum of proof has been adduced by
the State on the conspiracy among the accused including
petitioners. The conviction of petitioners must perforce be
sustained.
WHEREFORE, we DENY the petition and AFFIRM the
December 4, 1997 Decision of the SB in the consolidated
criminal cases subject of this petition.
No costs.
SO ORDERED.
Quisumbing, (Chairperson), Carpio, Carpio-
Morales, and Tinga, JJ., concur.
[ G.R. No. 168852, September 30, 2008 ]
SHARICA MARI L. GO-TAN, PETITIONER, VS. SPOUSES
PERFECTO C. TAN AND JUANITA L. TAN,
RESPONDENTS.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court assailing the Resolution[1]dated
March 7, 2005 of the Regional Trial Court (RTC), Branch 94,
Quezon City in Civil Case No. Q-05-54536 and the RTC
Resolution[2] dated July 11, 2005 which denied petitioner's
Verified Motion for Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and
Steven L. Tan (Steven) were married.[3] Out of this union,
two female children were born, Kyra Danielle[4] and Kristen
Denise.[5] On January 12, 2005, barely six years into the
marriage, petitioner filed a Petition with Prayer for the
Issuance of a Temporary Protective Order (TPO)[6] against
Steven and her parents-in-law, Spouses Perfecto C. Tan
and Juanita L. Tan (respondents) before the RTC. She
alleged that Steven, in conspiracy with respondents, were
causing verbal, psychological and economic abuses upon
her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5),
and (i)[7] of Republic Act (R.A.) No. 9262,[8] otherwise known
as the "Anti-Violence Against Women and Their Children Act
of 2004."
On January 25, 2005, the RTC issued an
Order/Notice[9] granting petitioner's prayer for a TPO.
On February 7, 2005, respondents filed a Motion to Dismiss
with Opposition to the Issuance of Permanent Protection
Order Ad Cautelam and Comment on the
Petition,[10] contending that the RTC lacked jurisdiction over
their persons since, as parents-in-law of the petitioner, they
were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on
Page 51 of 53
Opposition[11] to respondents' Motion to Dismiss arguing that
respondents were covered by R.A. No. 9262 under a liberal
interpretation thereof aimed at promoting the protection and
safety of victims of violence.
On March 7, 2005, the RTC issued a
Resolution[12] dismissing the case as to respondents on the
ground that, being the parents-in-law of the petitioner, they
were not included/covered as respondents under R.A. No.
9262 under the well-known rule of law "expressio unius est
exclusio alterius."[13]
On March 16, 2005, petitioner filed her Verified Motion for
Reconsideration[14] contending that the doctrine of necessary
implication should be applied in the broader interests of
substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the
Verified Motion for Reconsideration[15] arguing that
petitioner's liberal construction unduly broadened the
provisions of R.A. No. 9262 since the relationship between
the offender and the alleged victim was an essential
condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution[16] denying
petitioner's
Verified Motion for Reconsideration. The RTC reasoned that
to include respondents under the coverage of R.A. No. 9262
would be a strained interpretation of the provisions of the
law.
Hence, the present petition on a pure question of law, to wit:
WHETHER OR NOT RESPONDENTS-SPOUSES
PERFECTO & JUANITA, PARENTS-IN-LAW OF SHARICA,
MAY BE INCLUDED IN THE PETITION FOR THE
ISSUANCE OF A PROTECTIVE ORDER, IN
ACCORDANCE WITH REPUBLIC ACT NO. 9262,
OTHERWISE KNOWN AS THE "ANTI-VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN ACT OF
2004".[17]
Petitioner contends that R.A. No. 9262 must be understood
in the light of the provisions of Section 47 of R.A. No. 9262
which explicitly provides for the suppletory application of the
Revised Penal Code (RPC) and, accordingly, the provision
on "conspiracy" under Article 8 of the RPC can be
suppletorily applied to R.A. No. 9262; that Steven and
respondents had community of design and purpose in
tormenting her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally,

mentally and physically; that respondents should be included
as indispensable or necessary parties for complete
resolution of the case.
On the other hand, respondents submit that they are not
covered by R.A. No. 9262 since Section 3 thereof explicitly
provides that the offender should be related to the victim
only by marriage, a former marriage, or a dating or sexual
relationship; that allegations on the conspiracy of
respondents require a factual determination which cannot be
done by this Court in a petition for review; that respondents
cannot be characterized as indispensable or necessary
parties, since their presence in the case is not only
unnecessary but altogether illegal, considering the non-
inclusion of in-laws as offenders under Section 3 of R.A. No.
9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence against
women and their children'' as "any act or a series of acts
committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in
or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary
deprivation of liberty."
While the said provision provides that the offender be related
or connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly provides for
the suppletory application of the RPC, thus:
SEC. 47. Suppletory Application. - For purposes of this Act,
the Revised Penal Code and other applicable laws, shall
have suppletory application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
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. (Emphasis supplied)
Hence, legal principles developed from the Penal Code may
be applied in a supplementary capacity to crimes punished
under special laws, such as R.A. No. 9262, in which the
special law is silent on a particular matter.
Thus, in People v. Moreno,[18] the Court applied suppletorily
the provision on subsidiary penalty under Article 39 of the
RPC to cases of violations of Act No. 3992, otherwise known
as the "Revised Motor Vehicle Law," noting that the special
law did not contain any provision that the defendant could be
sentenced with subsidiary imprisonment in case of
insolvency.
In People v. Li Wai Cheung,[19] the Court applied suppletorily
the rules on the service of sentences provided in Article 70
of the RPC in favor of the accused who was found guilty of
multiple violations of R.A. No. 6425, otherwise known as the
"Dangerous Drugs Act of 1972," considering the lack of
similar rules under the special law.
In People v. Chowdury,[20] the Court applied suppletorily
Articles 17, 18 and 19 of the RPC to define the words
"principal," "accomplices" and "accessories" under R.A. No.
8042, otherwise known as the "Migrant Workers and
Overseas Filipinos Act of 1995," because said words were
not defined therein, although the special law referred to the
same terms in enumerating the persons liable for the crime
of illegal recruitment.
In Yu v. People,[21] the Court applied suppletorily the
provisions on subsidiary imprisonment under Article 39 of
the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise
known as the "Bouncing Checks Law," noting the absence of
an express provision on subsidiary imprisonment in said
special law.
Most recently, in Ladonga v. People,[22] the Court applied
suppletorily the principle of conspiracy under Article 8 of the
RPC to B.P. Blg. 22 in the absence of a contrary provision
therein.
With more reason, therefore, the principle of conspiracy
under Article 8 of the RPC may be applied suppletorily to
R.A. No. 9262 because of the express provision of Section
47 that the RPC shall be supplementary to said law. Thus,
general provisions of the RPC, which by their nature, are
necessarily applicable, may be applied suppletorily.
Thus, the principle of conspiracy may be applied to R.A. No.
9262. 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
participation of each of them becomes secondary, since all
the conspirators are principals.[23]
Page 52 of 53
It must be further noted that Section 5 of R.A. No. 9262
expressly recognizes that the acts of violence against
women and their children may be committed by an offender
through another, thus:
SEC. 5. Acts of Violence Against Women and Their
Children. - The crime of violence against women and their
children is committed through any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes
substantial emotional or psychological distress to the woman
or her child. This shall include, but not be limited to, the
following acts:
(1) Stalking or following the woman or her child in public or
private places;
(2) Peering in the window or lingering outside the residence
of the woman or her child;
(3) Entering or remaining in the dwelling or on the property of
the woman or her child against her/his will;
(4) Destroying the property and personal belongings or
inflicting harm to animals or pets of the woman or her child;
and
(5) Engaging in any form of harassment or violence; x x x.
(Emphasis supplied)
In addition, the protection order that may be issued for the
purpose of preventing further acts of violence against the
woman or her child may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. - x x x The protection orders that
may be issued under this Act shall include any, some or all
of the following reliefs:
(a) Prohibition of the respondent from threatening to commit
or committing, personally or through another, any of the
acts mentioned in Section 5 of this Act;
(b) Prohibition of the respondent from harassing, annoying,
telephoning, contacting or otherwise communicating with the
petitioner, directly or indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a liberal
construction of the law, thus:
 Page 53 of 53

SEC. 4. Construction. - This Act shall be liberally Ynares-Santiago, (Chairperson), Chico-Nazario, Nachura,
construed to promote the protection and safety of victims of and Reyes, JJ., concur.
violence against women and their children. (Emphasis
supplied)
It bears mention that the intent of the statute is the
law[24] and that this intent must be effectuated by the courts.
In the present case, the express language of R.A. No. 9262
reflects the intent of the legislature for liberal construction as
will best ensure the attainment of the object of the law
according to its true intent, meaning and spirit - the
protection and safety of victims of violence against women
and children.

Thus, contrary to the RTC's pronouncement, the

maxim "expressio unios est exclusio alterius" finds no
application here. It must be remembered that this maxim is
only an "ancillary rule of statutory construction." It is not of
universal application. Neither is it conclusive. It should be
applied only as a means of discovering legislative intent
which is not otherwise manifest and should not be permitted
to defeat the plainly indicated purpose of the legislature.[25]

The Court notes that petitioner unnecessarily argues at great

length on the attendance of circumstances evidencing the
conspiracy or connivance of Steven and respondents to
cause verbal, psychological and economic abuses upon her.
However, conspiracy is an evidentiary matter which should
be threshed out in a full-blown trial on the merits and cannot
be determined in the present petition since this Court is not a
trier of facts.[26] It is thus premature for petitioner to argue
evidentiary matters since this controversy is centered only
on the determination of whether respondents may be
included in a petition under R.A. No. 9262. The presence or
absence of conspiracy can be best passed upon after a trial
on the merits.

Considering the Court's ruling that the principle of conspiracy

may be applied suppletorily to R.A. No. 9262, the Court will
no longer delve on whether respondents may be considered
indispensable or necessary parties. To do so would be an
exercise in superfluity.

WHEREFORE, the instant petition is GRANTED. The

assailed Resolutions dated March 7, 2005 and July 11, 2005
of the Regional Trial Court, Branch 94, Quezon City in Civil
Case No. Q-05-54536 are hereby PARTLY REVERSED and
SET ASIDE insofar as the dismissal of the petition against
respondents is concerned.

SO ORDERED.