[G.R. No. 116736.
July 24, 1997] – PRAETER INENTIONEM That on or about October 17, 1992 in Valenzuela, Metro Manila,
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN
ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.
DECISION
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and
logical consequences of his wrongful act even where the resulting
crime is more serious than that intended. Hence, an accused who
originally intended to conceal and to bury what he thought was the
lifeless body of the victim can be held liable as a principal, not simply
as an accessory, where it is proven that the said victim was actually
alive but subsequently died as a direct result of such concealment
and burial. Nonetheless, in the present case, Appellant Garcia can not
be held liable as a principal because the prosecution failed to allege
such death through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his relationship with
the principal killer, Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants
Benjamin Ortega, Jr. and Manuel Garcia from the Decision,[1] dated
February 9, 1994 written by Judge Adriano R. Osorio,[2] finding them
guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an
Information[3] dated October 19, 1992, as follows:
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, without any justifiable cause, with treachery and evident
premeditation and with abuse of superior strength (sic) and with
deliberate intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and stab repeatedly with a pointed
weapon on the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA, thereby inflicting upon the latter serious
physical injuries which directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by
counsel de oficio,[4] pleaded not guilty to the charge.[5] Accused John
Doe was then at large.[6] After trial in due course, the court a
quo promulgated the questioned Decision. The dispositive portion
reads:[7]
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and
Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the crime
charged, the Court hereby sentenced (sic) them to suffer the penalty
of RECLUSION PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum
of P35,000.00 for funeral expenses of deceased Andre Mar
Masangkay and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty.
Evaristo P. Velicaria[8] who took over from the Public Attorneys Office
as counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution
witnesses as follows:[9]
Diosdado Quitlong substantially testified that on October 15, 1992 at
about 5:30 in the afternoon, he, the victim Andre Mar Masangkay,
Ariel Caranto, Romeo Ortega, Roberto San Andres were having a
drinking spree in the compound near the house of Benjamin Ortega,
Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while
they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia
who were [already] drunk arrived and joined them. That victim Andre
Mar Masangkay answered the call of nature and went to the back
portion of the house. That accused Benjamin Ortega, Jr. followed him
and later they [referring to the participants in the drinking session]
heard the victim Andre Mar shouted, Dont, help me! (Huwag,
tulungan ninyo ako!) That he and Ariel Caranto ran towards the back
portion of the house and [they] saw accused Benjamin Ortega, Jr., on
top of Andre Mar Masangkay who was lying down in a canal with his
face up and stabbing the latter with a long bladed weapon. That Ariel
Caranto ran and fetched Benjamin Ortega, Sr., the father of accused
Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place
where they were having the drinking session [for the latter] to pacify
his brother Benjamin, Jr. That Romeo Ortega went to the place of the
stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia
lifted Andre Mar Masangkay from the canal and brought Andre Mar
to the well and dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones
measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches
in weight to the body of Andre Mar Masangkay inside the well. That
Romeo Ortega warned him [Quitlong] not to tell anybody of what he
saw. That he answered in the affirmative and he was allowed to go
home. That his house is about 200 meters from Romeo Ortegas
house. That upon reaching home, his conscience bothered him and
he told his mother what he witnessed. That he went to the residence
of Col. Leonardo Orig and reported the matter. That Col. Orig
accompanied him to the Valenzuela Police Station and some police
officers went with them to the crime scene. That accused Benjamin
Ortega, Jr. and Manuel Garcia were apprehended and were brought
to the police station.
On cross-examination, he said that he did not talk to the lawyer
before he was presented as witness in this case. That he narrated the
incident to his mother on the night he witnessed the killing on
October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon
when he arrived, victim Andre Mar Masangkay, Romeo Ortega,
Serafin and one Boyet were already having [a] drinking spree and he
joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia
were not yet in the place. That the stabbing happened between
12:00 midnight and 12:30 a.m. That they drank gin with finger foods
such as pork and shell fish. That he met the victim Andre Mar
Masangkay only on that occasion. That accused Benjamin Ortega, Jr.
and Manuel Garcia joined them at about 11:00 p.m. That there was
no altercation between Benjamin Ortega, Jr. and Manuel Garcia in
one hand and Andre Mar Masangkay, during the drinking
session. That at about 12:30 a.m. Andre Mar Masangkay answered
the call of nature and went to the back portion of the house. That he
cannot see Andre Mar Masangkay from the place they were having
the drinking session. That he did not see what happened to Andre
Mar Masangkay. That he only heard Masangkay asking for help. That
accused Manuel Garcia was still in the drinking session when he
heard Masangkay was asking for help. That Benjamin Ortega, Jr. and
Manuel Garcia are his friends and neighbors. That when he heard
Andre Mar Masangkay was asking for help, he and Ariel Caranto ran
to the back portion of the house and saw Benjamin Ortega, Jr. on top
of Andre Mar Masangkay and stabbing the latter. That Andre Mar
Masangkay was lying down with his back in the canal and Benjamin
Ortega, Jr. on top stabbing the former. That he did not see any
injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to
pacify his brother Benjamin, Jr. That he did not do anything to
separate Benjamin Ortega, Jr. and Masangkay. That he knows that
Andre Mar Masangkay was courting Raquel Ortega. That Raquel
Ortega asked permission from Andre Mar Masangkay when she left
between 8:00 and 9:00 p.m. That there was no trouble that occurred
during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that
Diosdado Quitlong is his neighbor for about 9 years. That on October
16, 1992 at 5:00 in the morning, he was summoned by Diosdado
Quitlong and reported to him the stabbing incident that occurred at
Daangbakal near the subdivision he is living. That he relayed the
information to the Valenzuela Police Station and a police team under
police officer Param accompanied them to the place. That he asked
the police officers to verify if there is a body of person inside the
well. That the well was covered with stones and he asked the police
officers to seek the help of theneighbors (sic) to remove the stones
inside the well. That after the stones were removed, the body of the
victim was found inside the well. That the lifeless body was pulled out
from the well. That the body has several stab wounds. That he came
to know the victim as Andre Mar Masangkay.That two men were
arrested by the police officers.
On cross-examination, he said that he saw the body when taken out
of the well with several stab wounds. That Diosdado Quitlong told
him that he was drinking with the victim and the assailants at the
time of the incident. That Benjamin Ortega, Jr. stabbed the victim
while the latter was answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified
that he conducted [an] autopsy on the cadaver of Andre Mar
Masangkay on October 16, 1992 at the Valenzuela Memorial Homes
located at Macarthur Highway. That he prepared the autopsy report
and the sketch of human head and body indicating the location of the
stab wounds. That the cause of death is multiple stab wounds,
contributory, [a]sphyxia by submersion in water. That there were 13
stab wounds, 8 of which were on the frontal part of the body, 2 at
the back and there were contused abrasions around the neck and on
the left arm. There was stab wound at the left side of the neck. That
the contused abrasion could be produced by cord or wire or
rope. That there is (an) incised wound on the left forearm. That the
stab wounds which were backward downward of the body involved
the lungs. That the victim was in front of the assailant. That the stab
wound on the upper left shoulder was caused when the assailant was
in front of the victim. That the assailant was in front of the victim
when the stab wound near the upper left armpit was inflicted as well
as the stab wound on the left chest wall. That the stab wound on the
back left side of the body and the stab wound on the back right
portion of the body may be produced when the assailant was at the
back of the victim. That the assailant was in front of the victim when
the stab wound[s] on the left elbow and left arm were inflicted. That
the large airway is filled with muddy particles indicating that the
victim was alive when the victim inhaled the muddy particles. The
heart is filled with multiple hemorrhage, loss of blood or decreased
of blood. The lungs is filled with water or muddy particles. The brain
is pale due to loss of blood. The stomach is one half filled with muddy
particles which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the
body of the victim. That he cannot tell if the assailant or the victim
were standing. That it is possible that the stab wounds was (sic)
inflicted when both [referring to participants] were standing or the
victim was lying down and the assailant was on top. That he cannot
tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of
October 15, 1992, he and his wife, Maritess Garcia, brought their
feverish daughter, Marjorie, to the Polo Emergency Hospital. He left
the hospital at seven o clock in the morning, went home, changed his
clothes and went to work.[10] After office hours, he and Benjamin
Ortega, Jr. passed by the canteen at their place of work. After
drinking beer, they left at eight o clock in the evening and headed
home. En route, they chanced on Diosdado Quitlong alias Mac-mac
and Andre Mar Masangkay, who invited them to join their own
drinking spree. Thereupon, Appellant Garcias wife came and asked
him to go home because their daughter was still sick. To alleviate his
daughters illness, he fetched his mother-in-law who performed a
ritual called tawas. After the ritual, he remained at home and
attended to his sick daughter. He then fell asleep but was awakened
by police officers at six o clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking
session aside from Diosdado Quitlong alias Mac-mac and Andre Mar
Masangkay, namely, a Mang Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially corroborated the
testimony of Appellant Manuel Garcia.[12] According to him, between
eleven and twelve o clock in the evening, Masangkay left the drinking
session. Thirty (30) minutes after Masangkay left, he also left the
drinking place to urinate.[13] He went behind the house where he saw
Masangkay peeping through the room of his sister Raquel. He
ignored Masangkay and continued urinating.[14] After he was
through, Masangkay approached him and asked where his sister
was. He answered that he did not know. Without warning,
Masangkay allegedly boxed him in the mouth, an attack that induced
bleeding and caused him to fall on his back.When he was about to
stand up, Masangkay drew a knife and stabbed him, hitting him on
the left arm, thereby immobilizing him. Masangkay then gripped his
neck with his left arm and threatened to kill him. Unable to move,
Ortega shouted for help. Quitlong came and, to avoid being stabbed,
grabbed Masangkays right hand which was holding the
knife. Quitlong was able to wrest the knife from Masangkay and, with
it, he stabbed Masangkay ten (10) times successively, in the left chest
and in the middle of the stomach.When the stabbing started, Ortega
moved to the left side of Masangkay to avoid being hit.[15] Quitlong
chased Masangkay who ran towards the direction of the
well. Thereafter, Ortega went home and treated his injured left
armpit and lips. Then, he slept.
When he woke up at six o clock the following morning, he saw police
officers in front of his house. Taking him with them, the lawmen
proceeded to the well. From the railroad tracks where he was asked
to sit, he saw the police officers lift the body of a dead person from
the well. He came to know the identity of the dead person only after
the body was taken to the police headquarters.[16]
The Trial Courts Discussion
The trial court explained its basis for appellants conviction as
follows:[17]
The Court is convinced that the concerted acts of accused Benjamin
Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting,
carrying and dumping the victim Andre Mar Masangkay who was still
alive and breathing inside the deep well filled with water, head first
and threw big stones/rocks inside the well to cover the victim is a
clear indication of the community of design to finish/kill victim Andre
Mar Masangkay. Wounded and unarmed victim Andre Mar
Masangkay was in no position to flee and/or defend himself against
the three malefactors. Conspiracy and the taking advantage of
superior strength were in attendance. The crime committed by the
accused is Murder.
Concert of action at the moment of consummating the crime and the
form and manner in which assistance is rendered to the person
inflicting the fatal wound may determine complicity where it would
not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the
amount of P35,000.00 for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following: [18]
I. The trial court erred in holding that there is conspiracy on the basis
of the prosecutions evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay
was still alive at the time his body was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr.
is guilty only of homicide alone.
On the basis of the records and the arguments raised by the
appellants and the People, we believe that the question to be
resolved could be simplified thus: What are the criminal liabilities, if
any, of Appellants Ortega and Garcia?
The Courts Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only
of homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of
the crime and positively identified appellants as the
perpetrators. The witnesses for the defense, on the other hand,
attempted to prove denial and alibi. As to which of the two
contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this
regard, the trial court held:[19]
The Court has listened intently to the narration of the accused and
their witnesses and the prosecution witnesses and has keenly
observed their behavior and demeanor on the witness stand and is
convinced that the story of the prosecution is the more believable
version. Prosecution eyewitness Diosdado Quitlong appeared and
sounded credible and his credibility is reinforced by the fact that he
has no reason to testify falsely against the accused. It was Diosdado
Quitlong who reported the stabbing incident to the police
authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses
demeanor and deportment on the stand as they rendered their
testimonies, its evaluation of the credibility of witnesses is entitled to
the highest respect. Therefore, unless the trial judge plainly
overlooked certain facts of substance and value which, if considered,
might affect the result of the case, his assessment of credibility must
be respected.[20]
In the instant case, we have meticulously scoured the records and
found no reason to reverse the trial courts assessment of the
credibility of the witnesses and their testimonies[21] insofar as
Appellant Ortega is concerned. The narration of Eyewitness Diosdado
Quitlong appears to be spontaneous and consistent. It is
straightforward, detailed, vivid and logical. Thus, it clearly deserves
full credence.
On the other hand, in asserting alibi and denial, the defense bordered
on the unbelievable. Appellant Ortega claimed that after he was able
to free himself from Masangkays grip, he went home, treated his
injuries and slept.[22] This is not the ordinary reaction of a person
assaulted. If Ortegas version of the assault was true, he should have
immediately reported the matter to the police authorities, if only out
of gratitude to Quitlong who came to his rescue. Likewise, it is
difficult to believe that a man would just sleep after someone was
stabbed in his own backyard. Further, we deem it incredible that
Diosdado Quitlong would stab Masangkay ten (10) times
successively, completely ignoring Benjamin Ortega, Jr. who was
grappling with Masangkay. Also inconsistent with human experience
is his narration that Masangkay persisted in choking him instead of
defending himself from the alleged successive stabbing of
Quitlong.[23] The natural tendency of a person under attack is to
defend himself and not to persist in choking a defenseless third
person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior
strength were alleged in the information, the trial court found the
presence only of abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take
advantage of such superiority. It must be shown that the accused
purposely used excessive force that was manifestly out of proportion
to the means available to the victims defense.[24] In this light, it is
necessary to evaluate not only the physical condition and weapon of
the protagonists but also the various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong mentioned nothing
about Appellant Ortegas availment of force excessively out of
proportion to the means of defense available to the victim to defend
himself. Quitlong described the assault made by Appellant Ortega as
follows:[26]
ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a
drinking spree with Andrew Masangkay and where you witnessed a
stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we
were drinking in the house of Mr. Benjamin Ortega, Sr., because the
house of Benjamin Ortega Sr. and the house of his son Benjamin
Ortega, Jr. are near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of said persons, Benjamin
Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y from the mouth of the late Andrew Masangkay, what happened
Ducay, Roberto San Andres and Romeo Ortega. next?

Q What about this victim, Andrew Masangkay, where was he at that A Ariel Caranto and I ran towards the back portion of the house.
time?
Q And what did you see?
A Also the victim, Andrew Masangkay, he was also there.
A And I saw that Benjamin Ortega, Jr. was on top of Andrew
Q You said that the two accused, Manuel Garcia and Benjamin Masangkay and he was stabbing Andrew Masangkay.
Ortega, Jr. arrived drunk and joined the group?
Q Will you please demonstrate to the Honorable Court how the
A Yes, sir. stabbing was done telling us the particular position of the late
Andrew Masangkay and how Benjamin Ortega, Jr proceeded with the
Q What happened next?
stabbing against the late victim, Andrew Masangkay?
A While we were there together and we were drinking ... (interrupted
INTERPRETER:
by Atty. Altuna)
(At this juncture, the witness demonstrating.)
Q Who is that we?
Andrew Masangkay was lying down on a canal with his face up, then
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto,
Benjamin Ortega, Jr. was nakakabayo and with his right hand with
Romeo Ortega, Roberto San Andres, myself and Andrew
closed fist holding the weapon, he was thrusting this weapon on the
Masangkay. Andrew Masangkay answer to a call of nature and went
body of the victim, he was making downward and upward motion
to the back portion of the house, and Benjamin Ortega, Jr. followed
thrust.
him where he was.
ATTY. ALTUNA: (To the witness)
Q What happened next?
Q How many times did Benjamin Ortega, Jr. stabbed Andrew
A And afterwards we heard a shout and the shout said Huwag,
Masangkay?
tulungan nyo ako.
A I cannot count the number of times.
Q From whom did you hear this utterance?
It should be noted that Victim Masangkay was a six-footer, whereas
A The shout came from Andrew Masangkay.
Appellant Ortega, Jr. was only five feet and five inches tall.[27] There
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer was no testimony as to how the attack was initiated. The accused and
a call of nature and after you heard huwag, tulungan nyo ako coming the victim were already grappling when Quitlong arrived. Nothing in
the foregoing testimony and circumstances can be interpreted as
abuse of superior strength. Hence, Ortega is liable only for homicide,
not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court is
based on mere assumption and conjecture x x x.[28] Allegedly, the
medico-legal finding that the large airway was filled with muddy
particles indicating that the victim was alive when the victim inhaled
the muddy particles did not necessarily mean that such muddy
particles entered the body of the victim while he was still
alive. The Sinumpaang Salaysay of Quitlong stated, Nilubayan lang
nang saksak nang mapatay na si Andrew ni Benjamin Ortega,
Jr. Thus, the prosecution evidence shows Masangkay was already
dead when he was lifted and dumped into the well. Hence, Garcia
could be held liable only as an accessory.[29]
We do not agree with the above contention. Article 4, par. 1, of the
Revised Penal Code states 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. The essential
requisites for the application of this provision are that (a) the
intended act is felonious; (b) the resulting act is likewise a felony; and
(c) the unintended albeit graver wrong was primarily caused by the
actors wrongful acts. In assisting Appellant Ortega, Jr. carry the body
of Masangkay to the well, Appellant Garcia was committing a
felony. The offense was that of concealing the body of the crime to
prevent its discovery, i.e. that of being an accessory in the crime of
homicide.[30] Although Appellant Garcia may have been unaware that
the victim was still alive when he assisted Ortega in throwing the
body into the well, he is still liable for the direct and natural
consequence of his felonious act, even if the resulting offense is
worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the
victim. But the autopsy conducted by the NBI medico-legal officer
showed that the victim at that time was still alive, and that he died
subsequently of drowning.[31] That drowning was the immediate
cause of death was medically demonstrated by the muddy particles
found in the victims airway, lungs and stomach.[32] This is evident
from the expert testimony given by the medico-legal officer, quoted
below:[33]
ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of
Exhibit N, beginning with tracheo-bronchial tree, that is sentence
immediately after paragraph 10, 2.5 cms. Will you please explain
this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this
particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be
inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling
or the taking or receiving of muddy particles at that time, the person
is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the
anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of
blood going to the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy
particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or
asphyxia, the lungs have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of
blood.
Q And, of course, loss of blood could be attributed to the stab wound
which is number 13?
A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood
that accumulate at the thoraxic cavity and this was admixed with
granular materials?
Q And what cause the admixing with granular materials on said
particular portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by
asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the
stab wounds.
Q So, because of the opening of the stab wounds, the muddy
particles now came in, in that particular portion of the body and
caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will
you please explain the same?
A The hemoperitoneum there are 900 cc of blood that accumulated
inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please
explain the same?
A The victim could have taken these when he was submerged in
water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)
A Filipino authority on forensic medicine opines that any of the
following medical findings may show that drowning is the cause of
death:[34]
1. The presence of materials or foreign bodies in the hands of the
victim. The clenching of the hands is a manifestation
of cadaveric spasm in the effort of the victim to save himself from
drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding
to the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found
in the medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim
Masangkay. It was proven that his airpassage, or specifically his
tracheo-bronchial tree, was filled with muddy particles which were
residues at the bottom of the well. Even his stomach was half-filled
with such muddy particles. The unrebutted testimony of the medico-
legal officer that all these muddy particles were ingested when the
victim was still alive proved that the victim died of drowning inside
the well.
The drowning was the direct, natural and logical consequence of the
felony that Appellant Garcia had intended to commit; it
exemplifies praeter intentionem covered by Article 4, par. 1, of the
Revised Penal Code. Under this paragraph, a person may be
convicted of homicide although he had no original intent to kill.[35]
In spite of the evidence showing that Appellant Garcia could be held
liable as principal in the crime of homicide, there are, however, two
legal obstacles barring his conviction, even as an accessory as prayed
for by appellants counsel himself.
First. The Information accused Appellant Garcia (and Appellant
Ortega) of attack[ing], assault[ing], and stab[bing] repeatedly with a
pointed weapon on the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA The prosecutions evidence itself shows that
Garcia had nothing to do with the stabbing which was solely
perpetrated by Appellant Ortega. His responsibility relates only to
the attempted concealment of the crime and the resulting drowning
of Victim Masangkay. The hornbook doctrine in our jurisdiction is
that an accused cannot be convicted of an offense, unless it is clearly
charged in the complaint or information. Constitutionally, he has a
right to be informed of the nature and cause of the accusation against
him. To convict him of an offense other than that charged in the
complaint or information would be a violation of this constitutional
right.[36] Section 14, par. 2, of the 1987 Constitution explicitly
guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has
been duly notified and his failure to appear is
unjustifiable. (Underscoring supplied)
[37]
In People vs. Pailano, this Court ruled that there can be no
conviction for rape on a woman deprived of reason or otherwise
unconscious where the information charged the accused of sexual
assault by using force or intimidation, thus:
The criminal complaint in this case alleged the commission of the
crime through the first method although the prosecution sought to
establish at the trial that the complainant was a mental retardate. Its
purpose in doing so is not clear. But whatever it was, it has not
succeeded.
If the prosecution was seeking to convict the accused-appellant on
the ground that he violated Anita while she was deprived of reason
or unconscious, such conviction could not have been possible under
the criminal complaint as worded. This described the offense as
having been committed by Antonio Pailano, being then provided with
a scythe, by means of violence and intimidation, (who) did, then and
there, wilfully, unlawfully and feloniously have carnal knowledge of
the complainant, Anita Ibaez, 15 years of age, against her will. No
mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped
Anita while she was unconscious or otherwise deprived of reason --
and not through force and intimidation, which was the method
alleged -- would have violated his right to be informed of the nature
and cause of the accusation against him.[Article IV, Sec. 19,
Constitution of 1973; now Article III, Sec. 14(2)] This right is
safeguarded by the Constitution to every accused so he can prepare
an adequate defense against the charge against him. Convicting him
of a ground not alleged while he is concentrating his defense against
the ground alleged would plainly be unfair and underhanded. This
right was, of course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person
charged with rape could not be found guilty of qualified seduction,
which had not been alleged in the criminal complaint against him. In
the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not
permit the conviction for homicide of a person held responsible for
the suicide of the woman he was supposed to have raped, as the
crime he was accused of -- and acquitted -- was not homicide but
rape. More to the point is Tubb v. People of the Philippines, [fn: 101
Phil. 114] where the accused was charged with the misappropriation
of funds held by him in trust with the obligation to return the same
under Article 315, paragraph 1(b) of the Revised Penal Code, but was
convicted of swindling by means of false pretenses, under paragraph
2(b) of the said Article, which was not alleged in the information. The
Court said such conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of
homicide through drowning in an information that charges murder
by means of stabbing.
Second. Although the prosecution was able to prove that Appellant
Garcia assisted in concealing x x x the body of the crime, x x x in order
to prevent its discovery, he can neither be convicted as an accessory
after the fact defined under Article 19, par. 2, of the Revised Penal
Code. The records show that Appellant Garcia is a brother-in-law of
Appellant Ortega,[38] the latters sister, Maritess, being his
wife.[39] Such relationship exempts Appellant Garcia from criminal
liability as provided by Article 20 of the Revised Penal Code:
ART. 20. Accessories who are exempt from criminal liability. -- The
penalties prescribed for accessories shall not be imposed upon those
who are such with respect to their spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees with the single exception of
accessories falling within the provisions of paragraph 1 of the next
preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge
of the commission of the crime, and without having participated
therein, either as principals or accomplices, take part subsequent to
its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal
of the crime, provided the accessory acts with abuse of his public
functions or whenever the author of the crime is guilty of treason,
parricide, murder, or an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted
exempting provision of the Revised Penal Code. This Court is thus
mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00
from P35,000.00. The former amount was proven both by
documentary evidence and by the testimony of Melba Lozano, a
sister of the victim.[40] Of the expenses alleged to have been incurred,
the Court can give credence only to those that are supported by
receipts and appear to have been genuinely incurred in connection
with the death of the victim.[41] However, in line with current
jurisprudence,[42] Appellant Ortega shall also indemnify the heirs of
the deceased in the sum of P50,000.00. Indemnity requires no proof
other than the fact of death and appellants responsibility therefor.[43]
The penalty for homicide is reclusion temporal under Article 249 of
the Revised Penal Code, which is imposable in its medium period,
absent any aggravating or mitigating circumstance, as in the case of
Appellant Ortega. Because he is entitled to the benefits of the
Indeterminate Sentence Law, the minimum term shall be one degree
lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is
found GUILTY of homicide and sentenced to ten (10) years of prision
mayor medium, as minimum, to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal medium, as
maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of
the victim P50,000.00 as indemnity and P31,790.00 as actual
damages. Appellant Manuel Garcia is ACQUITTED. His immediate
release from confinement is ORDERED unless he is detained for some
other valid cause.
SO ORDERED.
G.R. No. 72964 January 7, 1988 – EFFICIENT INTERVENING CAUSE
FILOMENO URBANO, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate
Appellate Court which affirmed the decision of the then Circuit
Criminal Court of Dagupan City finding petitioner Filomeno Urban
guilty beyond reasonable doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
Filomeno Urbano went to his ricefield at Barangay Anonang, San
Fabian, Pangasinan located at about 100 meters from the tobacco
seedbed of Marcelo Javier. He found the place where he stored his
palay flooded with water coming from the irrigation canal nearby
which had overflowed. Urbano went to the elevated portion of the
canal to see what happened and there he saw Marcelo Javier and
Emilio Erfe cutting grass. He asked them who was responsible for the
opening of the irrigation canal and Javier admitted that he was the
one. Urbano then got angry and demanded that Javier pay for his
soaked palay. A quarrel between them ensued. Urbano unsheathed
his bolo (about 2 feet long, including the handle, by 2 inches wide)
and hacked Javier hitting him on the right palm of his hand, which
was used in parrying the bolo hack. Javier who was then unarmed ran
away from Urbano but was overtaken by Urbano who hacked him
again hitting Javier on the left leg with the back portion of said bolo,
causing a swelling on said leg. When Urbano tried to hack and inflict
further injury, his daughter embraced and prevented him from
hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe
brought Javier to his house about 50 meters away from where the
incident happened. Emilio then went to the house of Barangay
Captain Menardo Soliven but not finding him there, Emilio looked for
barrio councilman Felipe Solis instead. Upon the advice of Solis, the
Erfes together with Javier went to the police station of San Fabian to
report the incident. As suggested by Corporal Torio, Javier was
brought to a physician. The group went to Dr. Guillermo Padilla, rural
health physician of San Fabian, who did not attend to Javier but
instead suggested that they go to Dr. Mario Meneses because Padilla
had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions
returned to Dr. Guillermo Padilla who conducted a medico-legal
examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier,
20 years of age, married, residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser
palmar prominence, right.
As to my observation the incapacitation is from (7-9) days period. This
wound was presented to me only for medico-legal examination, as it
was already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed
to settle their differences. Urbano promised to pay P700.00 for the
medical expenses of Javier. Hence, on October 27, 1980, the two
accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the
event in the police blotter (Exhibit A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both
parties appeared before this Station accompanied by brgy.
councilman Felipe Solis and settled their case amicably, for they are
neighbors and close relatives to each other. Marcelo Javier accepted
and granted forgiveness to Filomeno Urbano who shoulder (sic) all
the expenses in his medical treatment, and promising to him and to
this Office that this will never be repeated anymore and not to
harbour any grudge against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On
November 3, 1980, the additional P300.00 was given to Javier at
Urbano's house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When
admitted to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended to Javier
found that the latter's serious condition was caused by tetanus toxin.
He noticed the presence of a healing wound in Javier's palm which
could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the
hospital. The medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
tion of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscita-
tion and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by rela-
tives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was
charged with the crime of homicide before the then Circuit Criminal
Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial
court found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision
mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and
ONE (1) DAY of reclusion temporal, as maximum, together with the
accessories of the law, to indemnify the heirs of the victim, Marcelo
Javier, in the amount of P12,000.00 without subsidiary imprisonment
in case of insolvency, and to pay the costs. He was ordered confined
at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the
decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of
Urbano on appeal but raised the award of indemnity to the heirs of
the deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The
motion for new trial was based on an affidavit of Barangay Captain
Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such
position in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a
typhoon that swept Pangasinan and other places of Central Luzon
including San Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued
irrigation dam which irrigates the ricefields of San Fabian were closed
and/or controlled so much so that water and its flow to the canals
and ditches were regulated and reduced;
That due to the locking of the sluice or control gates of the dam
leading to the canals and ditches which will bring water to the
ricefields, the water in said canals and ditches became shallow which
was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area
affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the
late Marcelo Javier catching fish in the shallow irrigation canals with
some companions;
That few days there after,or on November l5, l980, I came to know
that said Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the
petition.
The case involves the application of Article 4 of the Revised Penal
Code which provides that "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 ..." Pursuant to this
provision "an accused is criminally responsible for acts committed by
him in violation of law and for all the natural and logical
consequences resulting therefrom." (People v. Cardenas, 56 SCRA
631).
The record is clear that Marcelo Javier was hacked by the petitioner
who used a bolo as a result of which Javier suffered a 2-inch incised
wound on his right palm; that on November 14, 1981 which was the
22nd day after the incident, Javier was rushed to the hospital in a very
serious condition and that on the following day, November 15, 1981,
he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death
was the natural and logical consequence of Urbano's unlawful act.
Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:
The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the time of
his death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from
his wound, but the cause of his death was due to said wound which
was inflicted by the appellant. Said wound which was in the process
of healing got infected with tetanus which ultimately caused his
death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that
the victim suffered lockjaw because of the infection of the wound
with tetanus. And there is no other way by which he could be infected
with tetanus except through the wound in his palm (tsn., p. 78, Oct.
5, 1981). Consequently, the proximate cause of the victim's death
was the wound which got infected with tetanus. And the settled rule
in this jurisdiction is that an accused is liable for all the consequences
of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G.
5072; People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death
was due to his own negligence in going back to work without his
wound being properly healed, and lately, that he went to catch fish
in dirty irrigation canals in the first week of November, 1980, is an
afterthought, and a desperate attempt by appellant to wiggle out of
the predicament he found himself in. If the wound had not yet
healed, it is impossible to conceive that the deceased would be
reckless enough to work with a disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the
death of Marcelo Javier was due to his own negligence, that Dr. Mario
Meneses found no tetanus in the injury, and that Javier got infected
with tetanus when after two weeks he returned to his farm and
tended his tobacco plants with his bare hands exposing the wound to
harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound
inflicted by Urbano was infected with tetanus at the time of the
infliction of the wound. The evidence merely confirms that the
wound, which was already healing at the time Javier suffered the
symptoms of the fatal ailment, somehow got infected with tetanus
However, as to when the wound was infected is not clear from the
record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38,
pages 695-696 of American Jurisprudence, cited by plaintiffs-
appellants in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without
which the result would not have occurred."And more
comprehensively, "the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first
event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that
an injury to some person might probably result therefrom." (at pp.
185-186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death
which would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic within 14
days. A short incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the mortality rate Mild tetanus is characterized by an incubation period of at least 14
approaches 100 percent. days and an onset time of more than 6 days. Trismus is usually
present, but dysphagia is absent and generalized spasms are brief
Non-specific premonitory symptoms such as restlessness, irritability,
and mild. Moderately severe tetanus has a somewhat shorter
and headache are encountered occasionally, but the commonest
incubation period and onset time; trismus is marked, dysphagia and
presenting complaints are pain and stiffness in the jaw, abdomen, or
generalized rigidity are present, but ventilation remains adequate
back and difficulty swallowing. As the progresses, stiffness gives way
even during spasms. The criteria for severe tetanus include a short
to rigidity, and patients often complain of difficulty opening their
incubation time, and an onset time of 72 hrs., or less, severe trismus,
mouths. In fact, trismus in the commonest manifestation of tetanus
dysphagia and rigidity and frequent prolonged, generalized
and is responsible for the familiar descriptive name of lockjaw. As
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983
more muscles are involved, rigidity becomes generalized, and
Edition, pp. 1004-1005; Emphasis supplied)
sustained contractions called risus sardonicus. The intensity and
sequence of muscle involvement is quite variable. In a small Therefore, medically speaking, the reaction to tetanus found inside a
proportion of patients, only local signs and symptoms develop in the man's body depends on the incubation period of the disease.
region of the injury. In the vast majority, however, most muscles are
In the case at bar, Javier suffered a 2-inch incised wound on his right
involved to some degree, and the signs and symptoms encountered
palm when he parried the bolo which Urbano used in hacking him.
depend upon the major muscle groups affected.
This incident took place on October 23, 1980. After 22 days, or on
Reflex spasm usually occur within 24 to 72 hours of the first symptom, November 14, 1980, he suffered the symptoms of tetanus, like
an interval referred to as the onset time. As in the case of the lockjaw and muscle spasms. The following day, November 15, 1980,
incubation period, a short onset time is associated with a poor he died.
prognosis. Spasms are caused by sudden intensification of afferent
If, therefore, the wound of Javier inflicted by the appellant was
stimuli arising in the periphery, which increases rigidity and causes
already infected by tetanus germs at the time, it is more medically
simultaneous and excessive contraction of muscles and their
probable that Javier should have been infected with only a mild cause
antagonists. Spasms may be both painful and dangerous. As the
of tetanus because the symptoms of tetanus appeared on the 22nd
disease progresses, minimal or inapparent stimuli produce more
day after the hacking incident or more than 14 days after the
intense and longer lasting spasms with increasing frequency.
infliction of the wound. Therefore, the onset time should have been
Respiration may be impaired by laryngospasm or tonic contraction of
more than six days. Javier, however, died on the second day from
respiratory muscles which prevent adequate ventilation. Hypoxia
the onset time. The more credible conclusion is that at the time
may then lead to irreversible central nervous system damage and
Javier's wound was inflicted by the appellant, the severe form of
death.
tetanus that killed him was not yet present. Consequently, Javier's
wound could have been infected with tetanus after the hacking
incident. Considering the circumstance surrounding Javier's death,
his wound could have been infected by tetanus 2 or 3 or a few but
not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural,
and logical consequence of the wounds inflicted upon him by the
accused. (People v. Cardenas, supra) And since we are dealing with a
criminal conviction, the proof that the accused caused the victim's
death must convince a rational mind beyond reasonable doubt. The
medical findings, however, lead us to a distinct possibility that the
infection of the wound by tetanus was an efficient intervening cause
later or between the time Javier was wounded to the time of his
death. The infection was, therefore, distinct and foreign to the crime.
(People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take
necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al.
(99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such
remote cause did nothing more than furnish the condition or give rise
to the occasion by which the injury was made possible, if there
intervened between such prior or remote cause and the injury a
distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition
or occasion. If no danger existed in the condition except because of
the independent cause, such condition was not the proximate cause.
And if an independent negligent act or defective condition sets into
operation the instances which result in injury because of the prior
defective condition, such subsequent act or condition is the
proximate cause." (45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free
of criminal liability. At the very least, the records show he is guilty of
inflicting slight physical injuries. However, the petitioner's criminal
liability in this respect was wiped out by the victim's own act. After
the hacking incident, Urbano and Javier used the facilities of
barangay mediators to effect a compromise agreement where Javier
forgave Urbano while Urbano defrayed the medical expenses of
Javier. This settlement of minor offenses is allowed under the express
provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See
also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather unusual
case. It does not necessarily follow that the petitioner is also free of
civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable. Thus, in the recent case
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987),
we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must be
established beyond reasonable doubt, only a preponderance of
evidence is required in a civil action for damages. (Article 29, Civil
Code). The judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration that the facts from which
the civil liability might arise did not exist. (Padilla v. Court of Appeals,
129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which
provides that the acquittal of the accused on the ground that his guilt
has not been proved beyond reasonable doubt does not necessarily
exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows:
The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is
derived from the criminal offense, when the latter is not proved, civil
liability cannot be demanded.
"For these reasons, the Commission recommends the adoption of the
reform under discussion. It will correct a serious defect in our law. It
will close up an inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable persons injured or
wronged."
The respondent court increased the P12,000.00 indemnification
imposed by the trial court to P30,000.00. However, since the
indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the
petitioner was not thoroughly examined. This aspect of the case calls
for fuller development if the heirs of the victim are so minded.

This is one of those causes where confused thinking leads to WHEREFORE, the instant petition is hereby GRANTED. The
unfortunate and deplorable consequences. Such reasoning fails to questioned decision of the then Intermediate Appellate Court, now
draw a clear line of demarcation between criminal liability and civil Court of Appeals, is REVERSED and SET ASIDE. The petitioner is
responsibility, and to determine the logical result of the distinction. ACQUITTED of the crime of homicide. Costs de oficio.
The two liabilities are separate and distinct from each other. One
SO ORDERED.
affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of
the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private
right to be proved only by a preponderance of evidence? Is the right
of the aggrieved person any less private because the wrongful act is
also punishable by the criminal law?
IMPOSSIBLE CRIME PERALTA, J.:

GEMMA T. JACINTO, G.R. No. 162540

Petitioner, 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
Present:
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
YNARES-SANTIAGO, J., reconsideration.
Chairperson,

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

That on or about and sometime in the month of July 1997, in

PEOPLE OF THE PHILIPPINES, Promulgated: Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and
Respondent. mutually helping one another, being then all employees of MEGA
FOAM INTERNATIONAL INC., herein represented by JOSEPH
July 13, 2009
DYHENGCO Y CO, and as such had free access inside the aforesaid
x----------------------------------------------------------------------------------------- establishment, with grave abuse of trust and confidence reposed
x 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
DECISION De Oro Check No. 0132649 dated July 14, 1997 in the sum
of P10,000.00, representing payment made by customer Baby
Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of
the latter in the aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]
The prosecution's evidence, which both the RTC and the CA found to
be more credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as
Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number
0132649 postdated July 14, 1997 in the amount of P10,000.00. The
check was payment for Baby Aquino's purchases from Mega Foam
Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account
of Generoso Capitle, the husband of Jacqueline Capitle; the latter is
the sister of petitioner and the former pricing, merchandising and
inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam,
received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she
could issue checks payable to the account of Mega Foam, instead of
issuing the checks payable to CASH. Said customer had apparently
been instructed by Jacqueline Capitle to make check payments to
Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela
Branch, who was looking for Generoso Capitle. The reason for the call
was to inform Capitle that the subject BDO check deposited in his
account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former
employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding the
bounced check. Ricablanca explained that she had to call and relay
the message through Valencia, because the Capitles did not have a
phone; but they could be reached through Valencia, a neighbor and
former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino,
and instructed Ricablanca to ask Baby Aquino to replace the check
with cash. Valencia also told Ricablanca of a plan to take the cash and
divide it equally into four: for herself, Ricablanca, petitioner Jacinto
and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's
accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
confirm that the latter indeed handed petitioner a BDO check
for P10,000.00 sometime in June 1997 as payment for her purchases
from Mega Foam.[4] Baby Aquino further testified that, sometime in
July 1997, petitioner also called her on the phone to tell her that the
BDO check bounced.[5] Verification from company records showed
that petitioner never remitted the subject check to Mega
Foam. However, Baby Aquino said that she had already paid Mega
Foam P10,000.00 cash in August 1997 as replacement for the
dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted
depositing the subject BDO check in his bank account, but explained
that the check came into his possession when some unknown woman
arrived at his house around the first week of July 1997 to have the
check rediscounted. He parted with his cash in exchange for the
check without even bothering to inquire into the identity of the
woman or her address. When he was informed by the bank that the
check bounced, he merely disregarded it as he didnt know where to
find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were
marked and dusted with fluorescent powder by the NBI. Thereafter,
the bills were given to Ricablanca, who was tasked to pretend that
she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's
house. Petitioner, who was then holding the bounced BDO check,
handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash,
but the plan did not push through. However, they agreed to meet
again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners
house, where she met petitioner and Jacqueline Capitle. Petitioner,
her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she
decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and
went on to Baby Aquino's factory. Only Ricablanca alighted from the
jeep and entered the premises of Baby Aquino, pretending that she
was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money
previously given to her by Dyhengco. Ricablanca divided the money
and upon returning to the jeep, gave P5,000.00 each to 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 mothers house, where she
was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a
pre-natal check-up at the Chinese General Hospital, Ricablanca
decided to hitch a ride with the former and her husband in their jeep
going to Baby Aquino's place in Caloocan City. She allegedly had no
idea why Ricablanca asked them to wait in their jeep, which they
parked outside the house of Baby Aquino, and was very surprised
when Ricablanca placed the money on her lap and the NBI agents
arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam
until she resigned on June 30, 1997. It was never part of her job to
collect payments from customers. According to her, on the morning
of August 21, 1997, Ricablanca called her up on the phone, asking if
she (Valencia) could accompany her (Ricablanca) to the house of
Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where
Baby Aquino resided, as she had never been to said house. They then
met at the house of petitioner's mother, rode the jeep of petitioner
and her husband, and proceeded to Baby Aquino's place. When they
arrived at said place, Ricablanca alighted, but requested them to wait
for her in the jeep. After ten minutes, Ricablanca came out and, to
her surprise, Ricablanca gave her money and so she even asked,
What is this? Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October
4, 1999, the RTC rendered its Decision, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing, the Court finds
accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
Valencia y Rivera and Jacqueline Capitle 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.
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.
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 prosecution tried to establish the following pieces of evidence to

The Court must resolve the issue in the negative.
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
Intod v. Court of Appeals[9] is highly instructive and applicable to the
petitioner, as collector for Mega Foam, did not remit the customer's
present case. In Intod, the accused, intending to kill a person,
check payment to her employer and, instead, appropriated it for
peppered the latters bedroom with bullets, but since the intended
herself; (2) said property belonged to another − the check belonged
victim was not home at the time, no harm came to him. The trial
to Baby Aquino, as it was her payment for purchases she made; (3)
court and the CA held Intod guilty of attempted murder. But upon
the taking was done with intent to gain this is presumed from the act
review by this Court, he was adjudged guilty only of an impossible
of unlawful taking and further shown by the fact that the check was
crime as defined and penalized in paragraph 2, Article 4, in relation
deposited to the bank account of petitioner's brother-in-law; (4) it
to Article 59, both of the Revised Penal Code, because of the factual
was done without the owners consent petitioner hid the fact that she
impossibility of producing the crime. Pertinent portions of said
had received the check payment from her employer's customer by
provisions read as follows:
not remitting the check to the company; (5) it was accomplished
without the use of violence or intimidation against persons, nor of Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
force upon things the check was voluntarily handed to petitioner by incurred:
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 xxxx
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.
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
xxxx
value of said dishonored check.

x x x we have, after all, held that unlawful taking, or apoderamiento,

The fact that petitioner was later entrapped receiving the P5,000.00
is deemed complete from the moment the offender gains possession
marked money, which she thought was the cash replacement for the
of the thing, even if he has no opportunity to dispose of the same. x
dishonored check, is of no moment. The Court held in Valenzuela v.
xx
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 Unlawful taking, which is the deprivation of ones personal
property, is the element which produces the felony in its
consummated stage. x x x [13]
x x x Parsing through the statutory definition of theft under Article
308, there is one apparent answer provided in the language of the
law that theft is already produced upon the tak[ing of] personal From the above discussion, there can be no question that as of the
property of another without the latters consent. 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
xxxx
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
x x x when is the crime of theft produced? There would be all but
replacement for the check was hatched only after the check had been
certain unanimity in the position that theft is produced when there is
dishonored by the drawee bank. Since the crime of theft is not a
deprivation of personal property due to its taking by one with intent
continuing offense, petitioner's act of receiving the cash replacement
to gain. Viewed from that perspective, it is immaterial to the product
should not be considered as a continuation of the theft. At most, the
of the felony that the offender, once having committed all the acts of
fact that petitioner was caught receiving the marked money was
execution for theft, is able or unable to freely dispose of the property
merely corroborating evidence to strengthen proof of her intent to
stolen since the deprivation from the owner alone has already
gain.
ensued from such acts of execution. x x x
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.
IMPOSSIBLE CRIME
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
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 (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:
. . . 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
accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan
did not sleep at her house at that time. Had it not been for this fact,
the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code.
This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should have set
about doing the deed, employing appropriate means in order that his
intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him
criminally liable. 5
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 person 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 impossibility of
accomplishing the intended act 12 in order to qualify the act 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 had 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 Strokes 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 Strokes that the crime was not committed. . . . It
only became impossible by reason of the extraneous circumstance
that Lane did not go that way; and further, that he was arrested and
prevented from committing the murder. This rule of the law has
application only where it is inherently impossible to commit the
crime. It has no application to a case where it becomes impossible for
the crime to be committed, either by outside interference or because
of miscalculation as to a supposed opportunity to commit the crime
which fails to materialize; in short it has no application to the case
when the impossibility grows out of extraneous acts not within the
control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for
attempted robbery even if there was nothing to rob. In disposing of
the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by
reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be administered,
equally whether in the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The community suffers
from the mere alarm of crime. Again: Where the thing intended
(attempted) as a crime and what is done is a sort to create alarm, in
other words, excite apprehension that the evil; intention will be
carried out, the incipient act which the law of attempt takes
cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the
window of victim's room thinking that the latter was inside. However,
at that moment, the victim was in another part of the house. The
court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon
by Respondent to make this Court sustain the judgment of attempted
murder against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference between
the Philippine and the American laws regarding the concept and
appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly
provided for impossible crimes and made the 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:
. . . 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 indicated for attempting to smuggle
letters into and out of prison. The law governing the matter made the
act criminal if done without 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 or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an
impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the
actor cannot be held liable for any crime — neither for an attempt
not 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 present 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 . . ." 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.