What is material is that by the instrument used in hacking
THIRD DIVISION
[G.R. No. 75369. November 26, 1990.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
FERNANDO ILIGAN y JAMITO, EDMUNDO ASIS y ILIGAN and
JUAN MACANDOG (at large), Defendants, FERNANDO
ILIGAN y JAMITO and EDMUNDO ASIS y ILIGAN, Defendants-
Appellants.
The Solicitor General for Plaintiff-Appellee.
Cesar R. Canonizado, for Defendants-Appellants.
SYLLABUS
1. REMEDIAL LAW; APPEAL; THROWS THE CASE OPEN FOR A
COMPLETE REVIEW OF ALL ERRORS AS MAY BE IMPUTABLE
TO THE TRIAL COURT. — While the factual findings of the trial
court are generally given due respect by the appellate court,
an appeal of a criminal case throws it open for a complete
review of all errors, by commission or omission, as may be
imputable to the trial court. (People v. Valerio, Jr., L-4116,
February 25, 1982, 112 SCRA 208, 231) In this instance, the
lower court erred in finding that the maceration of one half of
the head of the victim was also caused by Iligan for the
evidence on record point to a different conclusion. We are
convinced beyond peradventure that indeed, after Quiñones,
Jr. had fallen from the bolo-hacking perpetrated by Iligan, he
was run over by a vehicle. This finding, however, does not in
any way exonerate Iligan from liability for the death of
Quiñones, Jr.
2. CRIMINAL LAW; LIABILITY; REQUISITES THEREOF, PRESENT
IN THE CASE AT BAR. — Under Article 4 of the Revised Penal
Code, criminal liability shall be incurred "by any person
committing a felony (delito) although the wrongful act done
be different from that which he intended." Based on the
doctrine that "el que es causa de la causa es causa del mal
causado" (he who is the cause of the cause is the cause of the
evil caused), (People v. Ural, G.R. No. L-30801, March 27,
1974, 56 SCRA 138, 144) the essential requisites of Article 4
are: (a) that an intentional felony has been committed, and
(b) that the wrong done to the aggrieved party be the direct,
natural and logical consequence of the felony committed by
the offender. (People v. Mananquil, L-35574, September 28,
1984, 132 SCRA 196, 207). We hold that these requisites are
present in this case.
3. ID.; ID.; PROXIMATE LEGAL CAUSE, DEFINED. — The
intentional felony committed was the hacking of the head of
Quiñones, Jr. by Iligan. That it was considered as superficial
by the physician who autopsied Quiñones is beside the point.
1
Quiñones, Jr. and the location of the wound, the assault was
meant not only to immobilize the victim but to do away with
him as it was directed at a vital and delicate part of the body:
the head. (See: People v. Diana, 32 Phil. 344 [1915]). The
hacking incident happened on the national highway where
vehicles are expected to pass any moment. One such vehicle
passed seconds later when Lukban and Zaldy Asis, running
scared and having barely negotiated the distance of around
200 meters, heard shouts of people. Quiñones, Jr., weakened
by the hacking blow which sent him to the cemented
highway, was run over by a vehicle. Under these
circumstances, we hold that while Iligan’s hacking of
Quiñones, Jr.’s head might not have been the direct cause, it
was the proximate cause of the latter’s death. Proximate
legal cause is defined as "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. (Urbano v. Intermediate Appellate Court, G.R. No.
72964, January 7, 1988, 157 SCRA 1 quoting Vda. De Bataclan
v. Medina, 102 Phil. 181). In other words, the sequence of
events from Iligan’s assault on him to the time Quiñones, Jr.
was run over by a vehicle is, considering the very short span
of time between them, one unbroken chain of events. Having
triggered such events, Iligan cannot escape liability.
4. ID.; ALIBI; NOT CONSIDERED WHEN ACCUSED IS POSITIVELY
IDENTIFIED BY WITNESSES. — We agree with the lower court
that the defense of alibi cannot turn the tide in favor of Iligan
because he was positively seen at the scene of the crime and
identified by the prosecution witnesses. (People v. Pineda,
G.R. No. 72400, January 15, 1988, 157 SCRA 71).
5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY AND
EVIDENT PREMEDITATION, WRONGLY APPRECIATED IN THE
CASE AT BAR. — But we disagree with the lower court with
regards to its findings on the aggravating circumstances of
treachery and evident premeditation. Treachery has been
appreciated by the lower court in view of the suddenness of
the attack on the group of Quiñones, Jr. Suddenness of such
attack, however, does not by itself show treachery. (People v.
Gadiano, L-31818, July 30, 1982, 115 SCRA 559) There must
be evidence that the mode of attack was consciously adopted
by the appellant to make it impossible or hard for the person
attacked to defend himself. (People v. Crisostomo, L-32243,
April 15, 1988, 160 SCRA 47). In this case, the hacking of
Edmundo Asis by Iligan followed by the chasing of the trio by
the group of Iligan was a warning to the deceased and his
companions of the hostile attitude of the appellants. The
group of Quiñones, Jr. was therefore placed on guard for any
subsequent attacks against them. (People v. Mercado, L-
33492, March 30, 1988, 159 SCRA 455). The requisites
necessary to appreciate evident premeditation have likewise
not been met in this case. Thus, the prosecution failed to
prove all of the following: (a) the time when the accused
determined to commit the crime; (b) an act manifestly
indicating that the accused had clung to their determination
to commit the crime; and (c) the lapse of sufficient length of
time between the determination and execution to allow him
to reflect upon the consequences of his act. (People v. Batas,
G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46).
6. ID.; CONSPIRACY; NOT SUFFICIENTLY CONSTITUTED BY
MERE KNOWLEDGE, ACQUIESCENCE OR APPROVAL OF THE
ACT WITHOUT COOPERATION OR AGREEMENT TO
COOPERATE NOR BY MERE PRESENCE AT THE SCENE OF THE
CRIME. — Absent any qualifying circumstances, Iligan must
be held liable only for homicide. Again, contrary to the lower
court’s finding, proof beyond reasonable doubt has not been
established to hold Edmundo Asis liable as Iligan’s co-
conspirator. Edmundo Asis did not take any active part in the
infliction of the wound on the head of Quiñones, Jr., which
led to his running over by a vehicle and consequent death. As
earlier pointed out, the testimony that he was carrying a
stone at the scene of the crime hardly merits credibility being
uncorroborated and coming from an undeniably biased
witness. Having been the companion of Iligan, Edmundo Asis
must have known of the former’s criminal intent but mere
knowledge, acquiescense or approval of the act without
cooperation or agreement to cooperate, is not enough to
constitute one a party to a conspiracy. There must be
intentional participation in the act with a view to the
furtherance of the common design and purpose. (People v.
Izon, 104 Phil. 690 [1958]) Such being the case, his mere
presence at the scene of the crime did not make him a co-
conspirator, a co-principal or an accomplice to the assault
perpetrated by Iligan. (Orobio v. Court of Appeals, G.R. No.
57519, September 13, 1988, 165 SCRA 316) Edmundo Asis
therefore deserves exoneration.
7. ID.; HOMICIDE; PENALTY; ABSENT ANY MITIGATING
CIRCUMSTANCE AND APPLYING THE INDETERMINATE
SENTENCE LAW. — There being no mitigating circumstance,
the penalty imposable on Iligan is reclusion temporal medium
(Arts. 249 and 64, Revised Penal Code). Applying the
Indeterminate Sentence Law, the proper penalty is that
within the range of prision mayor as minimum and reclusion
temporal medium as maximum. We find insufficient proof to
warrant the award of P256,960 for the victim’s unrealized
income and therefore, the same is disallowed.
2
DECISION
FERNAN, J.:
In this appeal, uncle and nephew, Fernando Iligan and
Edmundo Asis, seek a reversal of the decision of the then
Court of First Instance of Camarines Norte, Branch II 1
convicting them of the crime of murder and sentencing them
to suffer the penalty of reclusion perpetua and to indemnify
the heirs of Esmeraldo Quiñones, Jr. in the amounts of
P30,000 for the latter’s death and P256,960 representing the
victim’s unrealized income.
On October 21, 1980, the following information for murder
was filed against Fernando Iligan, Edmundo Asis and Juan
Macandog:chanrobles.com.ph : virtual law library
"That on or about 3:00 a.m., August 4, 1980, at sitio Lico II,
barangay Sto. Domingo, municipality of Vinzons, province of
Camarines Norte, Philippines, and within the jurisdiction of
the Honorable Court, the above named accused, conspiring
and mutually helping one another, with treachery and
evident premeditation, one of the accused Fernando Iligan
armed with a bolo (sinampalok) and with deliberate intent to
kill, did then and there wilfully, unlawfully and feloniously,
gang up and in a sudden unexpected manner, hacked
Esmeraldo Quiñones, Jr., on his face, thus causing fatal
injuries on the latter’s face which resulted to (sic) the death
of said Esmeraldo Quiñones.
"CONTRARY TO LAW."cralaw virtua1aw library
Juan Macandog was never apprehended and he remains at
large. At their arraignment on January 12, 1981 Fernando
Iligan and Edmundo Asis pleaded not guilty to the crime
charged. Thereafter, the prosecution presented the following
version of the commission of the crime.chanrobles.com.ph :
virtual law library
At around 2:00 o’clock in the morning of August 4, 1980,
Esmeraldo Quiñones, Jr. and his companions, Zaldy Asis and
Felix Lukban, were walking home from barangay Sto.
Domingo, Vinzons, Camarines Norte after attending a barrio
fiesta dance. In front of the ricemill of a certain Almadrones,
they met the accused Fernando Iligan, his nephew, Edmundo
Asis, and Juan Macandog. Edmundo Asis pushed ("winahi")
them aside thereby prompting Zaldy Asis to box him. 2 Felix
Lukban quickly told the group of the accused that they had no
desire to fight. 3 Fernando Iligan, upon seeing his nephew
fall, drew from his back a bolo and hacked Zaldy Asis but
missed. Terrified, the trio ran pursued by the three accused.
They ran for about half an hour, passing by the house of
Quiñones, Jr. They stopped running only upon seeing that
they were no longer being chased. After resting for a short
while, Quiñones, Jr. invited the two to accompany him to his
house so that he could change to his working clothes and
report for work as a bus conductor. 4 Edmundo Asis corroborated Iligan’s testimony. He testified
While the trio were walking towards the house of Quiñones,
Jr., the three accused suddenly emerged on the roadside and
without a word, Fernando Iligan hacked Quiñones, Jr. with his
bolo hitting him on the forehead and causing him to fall
down. 5 Horrified, Felix Lukban and Zaldy Asis fled to a
distance of 200 meters, but returned walking after they heard
shouts of people. Zaldy Asis specifically heard someone shout
"May nadale na." 6
On the spot where Quiñones, Jr. was hacked, Zaldy Asis and
Felix Lukban saw him already dead with his head busted. 7
They helped the brother of Quiñones, Jr. in carrying him to
their house. 8 said:jgc:chanrobles.com.ph
That same day, August 4, 1980, the body of Quiñones, Jr. was
autopsied at the Funeraria Belmonte in Labo, Camarines
Norte by the municipal health officer, Dr. Marcelito E. Abas.
The postmortem examination report which is found at the
back of the death certificate reveals that Esmeraldo
Quiñones, Jr., who was 21 years old when he died, sustained
the following injuries:jgc:chanrobles.com.ph
"1. Shock and massive cerebral hemorrhages due to multiple
fracture of the entire half of the frontal left, temporal,
parietal and occipital bone of the head, with massive
maceration of the brain tissue.
"2. Other findings — Incised wound at the right eyebrow,
medial aspect measuring about 4 cms. in length, 0.5 cm. in
width and 0.5 cm. in depth, abrasion on the left shoulder and
right side of the neck." 9 are contusions and abrasions on the upper left shoulder and
The death certificate also indicates that Quiñones, Jr. died of
"shock and massive cerebral hemorrhages due to a vehicular
accident."cralaw virtua1aw library
The defendants denied having perpetrated the crime. They
alleged that they were in their respective houses at the time
the crime was committed.chanrobles law library
Accused Fernando Iligan testified that at around midnight of
August 4, 1980, he left his house to fetch his visitors at the
dance hall. 10 Along the way, he met his nephew, Edmundo
Asis, whom he presumed was drunk. He invited his nephew
to accompany him to the dance hall. However, they were not
able to reach their destination because Edmundo was boxed
by somebody whom he (Edmundo) sideswiped. 11 Instead,
Fernando Iligan brought his nephew home. 12 On their way,
they were overtaken by Juliano Mendoza whom Fernando
Iligan invited to his house to help him cook. 13 After bringing
his nephew home, Fernando Iligan and Juliano Mendoza
proceeded to Iligan’s house and arrived there between 1:30
3
and 2:00 o’clock in the morning of the same day. 14
that while they were walking in front of the Almadrones
ricemill, he sideswiped someone whom he did not recognize
because there were several persons around. He said, "Sorry,
pare" but the person to whom he addressed his apology
boxed him on his left face. He fell down and Iligan helped
him. Later, Iligan accompanied him to his home in Lico II. 15
After Iligan and Juliano Mendoza had left his house, he slept
and woke up at 7:00 o’clock the following morning. 16
The defense made capital of the testimony of prosecution
witness Dr. Abas to the effect that Quiñones, Jr. died because
of a vehicular accident. In ruling out said theory, however, the
lower court, in its decision of May 7, 1986,
"The accused, to augment their alibi, have pointed to this
Court that the Certificate of Death have shown that the
victim’s death was caused by a vehicular accident. To this,
notwithstanding, the Court cannot give credit for some
reasons. First, the fact of the alleged vehicular accident has
not been fully established. Second, Esmeraldo Quiñones, Sr.,
(the) father of the victim, testified that Dr. Abas told him that
if his son was hacked by a bolo on the face and then run over
the entire head by a vehicle’s tire, then that hacking on the
face could not be visibly seen on the head (t.s.n., pp. 16-17,
October 13, 1981) Third, Exhibit ‘2’ (the photograph of the
victim taken immediately after his body had been brought
home) is a hard evidence. It will attestly (sic) show that the
entire head was not crushed by any vehicle. On the contrary,
it shows that only half of the face and head, was damaged
with the wound starting on a sharp edge horizontally. There
on the neck while the body downwards has none of it, while
on the right forehead there is another wound caused by a
sharp instrument. Therefore, it is simple, that if the victim
was run over by a vehicle, the other half portion of his head
and downward part of his body must have been likewise
seriously damaged, which there are none." 17
The lower court also found that Iligan’s group conspired to kill
anyone or all members of the group of the victim to vindicate
the boxing on the face of Edmundo Asis. It appreciated the
aggravating circumstances of evident premeditation and
treachery and accordingly convicted Iligan and Edmundo Asis
of the crime of murder and imposed on them the
aforementioned penalty.
Iligan and Edmundo Asis interposed this appeal professing
innocence of the crime for which they were convicted. For
the second time, they attributed Quiñones, Jr.’s death to a
vehicular accident.
No eyewitnesses were presented to prove that Quiñones, Jr.
was run over by a vehicle. The defense relies on the
testimony of Dr. Abas, a prosecution witness, who swore that
the multiple fracture on the head of Quiñones, Jr. was caused
by a vehicular accident 18 which opinion was earlier put in
writing by the same witness in the postmortem examination.
Dr. Abas justified his conclusion by what he considered as tire
marks on the victim’s left shoulder and the right side of his
neck. 19 He also testified that the incised wound located at
the victim’s right eyebrow could have been caused by a sharp
bolo but it was so superficial that it could not have caused the
victim’s death. 20
Circumstantial evidence on record indeed point to the
veracity of the actual occurrence of the vehicular mishap.
One such evidence is the testimony of prosecution witness
Zaldy Asis that when he helped bring home the body of
Quiñones, Jr., he told the victim’s father, Esmeraldo
Quiñones, Sr. that "before Esmeraldo Quiñones (Jr.) was run
over by a vehicle, he was hacked by Fernando Iligan." 21
When asked why he mentioned an automobile, Zaldy Asis
said that he did not notice any vehicle around but he
mentioned it "because his (Quiñones, Jr.) head was busted."
22 It is therefore not farfetched to conclude that Zaldy Asis
had actual knowledge of said accident but for understandable
reasons he declined to declare it in court. Defense witness
Marciano Mago, the barangay captain of Sto. Domingo, also
testified that when he went to the scene of the crime, he saw
bits of the brain of the victim scattered across the road where
he also saw tire marks. 23
For its part, the prosecution, through the victim’s father,
presented evidence to the effect that Iligan authored the
maceration of half of the victim’s head. Quiñones, Sr. testified
that from their house, which was about five meters away
from the road, he saw Fernando Iligan holding a "sinampalok"
as he, together with Edmundo Asis and Juan Macandog,
chased someone. During the second time that he saw the
three accused, he heard Iligan say, "Dali, ayos na yan." 24
Hence, the lower court concluded that the victim’s head was
"chopped" resulting in the splattering of his brain all over the
place. 25 It should be emphasized, however, that the
testimony came from a biased witness and it was
uncorroborated.
While the factual findings of the trial court are generally given
due respect by the appellate court, an appeal of a criminal
case throws it open for a complete review of all errors, by
commission or omission, as may be imputable to the trial
court. 26 In this instance, the lower court erred in finding that
the maceration of one half of the head of the victim was also
caused by Iligan for the evidence on record point to a
different conclusion. We are convinced beyond peradventure
that indeed, after Quiñones, Jr. had fallen from the bolo-
hacking perpetrated by Iligan, he was run over by a vehicle.
This finding, however, does not in any way exonerate Iligan
from liability for the death of Quiñones, Jr.chanrobles.com :
4
virtual law library
Under Article 4 of the Revised Penal Code, criminal liability
shall be incurred "by any person committing a felony (delito)
although the wrongful act done be different from that which
he intended." Based on the doctrine that "el que es causa de
la causa es causa del mal causado" (he who is the cause of
the cause is the cause of the evil caused), 27 the essential
requisites of Article 4 are: (a) that an intentional felony has
been committed, and (b) that the wrong done to the
aggrieved party be the direct, natural and logical
consequence of the felony committed by the offender. 28 We
hold that these requisites are present in this case.
The intentional felony committed was the hacking of the
head of Quiñones, Jr. by Iligan. That it was considered as
superficial by the physician who autopsied Quiñones is beside
the point. What is material is that by the instrument used in
hacking Quiñones, Jr. and the location of the wound, the
assault was meant not only to immobilize the victim but to do
away with him as it was directed at a vital and delicate part of
the body: the head. 29
The hacking incident happened on the national highway 30
where vehicles are expected to pass any moment. One such
vehicle passed seconds later when Lukban and Zaldy Asis,
running scared and having barely negotiated the distance of
around 200 meters, heard shouts of people. Quiñones, Jr.,
weakened by the hacking blow which sent him to the
cemented highway, was run over by a vehicle.
Under these circumstances, we hold that while Iligan’s
hacking of Quiñones, Jr.’s head might not have been the
direct cause, it was the proximate cause of the latter’s death.
Proximate legal cause is defined as "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." 31 In other words, the sequence of events from
Iligan’s assault on him to the time Quiñones, Jr. was run over
by a vehicle is, considering the very short span of time
between them, one unbroken chain of events. Having
triggered such events, Iligan cannot escape
liability.chanrobles law library
We agree with the lower court that the defense of alibi
cannot turn the tide in favor of Iligan because he was
positively seen at the scene of the crime and identified by the
prosecution witnesses. 32
But we disagree with the lower court with regards to its
findings on the aggravating circumstances of treachery and
evident premeditation. Treachery has been appreciated by
the lower court in view of the suddenness of the attack on
the group of Quiñones, Jr. Suddenness of such attack,
however, does not by itself show treachery. 33 There must be
evidence that the mode of attack was consciously adopted by
the appellant to make it impossible or hard for the person
attacked to defend himself. 34 In this case, the hacking of
Edmundo Asis by Iligan followed by the chasing of the trio by
the group of Iligan was a warning to the deceased and his
companions of the hostile attitude of the appellants. The
group of Quiñones, Jr. was therefore placed on guard for any
subsequent attacks against them. 35
WHEREFORE, appellant Fernando Iligan y Jamito is hereby
convicted of the crime of homicide for which he is imposed
the indeterminate penalty of six (6) years and one (1) day of
prision mayor as minimum to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal medium as
maximum and he shall indemnify the heirs of Esmeraldo
Quiñones, Jr. in the amount of fifty thousand pesos (P50,000).
Appellant Edmundo Asis is hereby acquitted of the crime
charged against him. Costs against appellant Iligan.

The requisites necessary to appreciate evident premeditation

have likewise not been met in this case. Thus, the prosecution
failed to prove all of the following: (a) the time when the
accused determined to commit the crime; (b) an act
manifestly indicating that the accused had clung to their
determination to commit the crime; and (c) the lapse of
sufficient length of time between the determination and
execution to allow him to reflect upon the consequences of
his act. 36

Absent any qualifying circumstances, Iligan must be held

liable only for homicide. Again, contrary to the lower court’s
finding, proof beyond reasonable doubt has not been
established to hold Edmundo Asis liable as Iligan’s co-
conspirator. Edmundo Asis did not take any active part in the
infliction of the wound on the head of Quiñones, Jr., which
led to his running over by a vehicle and consequent death. As
earlier pointed out, the testimony that he was carrying a
stone at the scene of the crime hardly merits credibility being
uncorroborated and coming from an undeniably biased
witness. Having been the companion of Iligan, Edmundo Asis
must have known of the former’s criminal intent but mere
knowledge, acquiescense or approval of the act without
cooperation or agreement to cooperate, is not enough to
constitute one a party to a conspiracy. There must be
intentional participation in the act with a view to the
furtherance of the common design and purpose. 37 Such
being the case, his mere presence at the scene of the crime
did not make him a co-conspirator, a co-principal or an
accomplice to the assault perpetrated by Iligan. 38 Edmundo
Asis therefore deserves exoneration.

There being no mitigating circumstance, the penalty

imposable on Iligan is reclusion temporal medium (Arts. 249
and 64, Revised Penal Code). Applying the Indeterminate
Sentence Law, the proper penalty is that within the range of
prision mayor as minimum and reclusion temporal medium as
maximum. We find insufficient proof to warrant the award of
P256,960 for the victim’s unrealized income and therefore,
the same is disallowed.cralawnad

5
6

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-35574 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VALENTINA MANANQUIL Y LAREDO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio Sugay for defendant-appellant.
CUEVAS, J.:
In an amended Information 1 filed before the then Court of
First Instance of Rizal, VALENTINA MANANQUIL y LAREDO
was accused of PARRICIDE allegedly committed as follows:
That on or about the 6th day of March, 1965, in Pasay City,
Philippines, and within the jurisdiction of this Hon. Court, the
abovenamed accused, did then and there wilfully, unlawfully
and feloniously, with evident premeditation, that is, having
conceived and deliberated to kill her husband, Elias Day y
Pablo, with whom she was united in lawful wedlock, enter
(sic) the NAWASA building situated at Pasay City, where said
Elias Day y Pablo was working as a security guard; and the
said accused, having in her possession a bottle containing
gasoline suddenly and without warning, poured the contents
on the person of her husband, Elias Day y Pablo, ignited the
gasoline, as a result of which, said Elias Day y Pablo suffered
burns and injuries which subsequently caused his death.
Contrary to law 2
Tried after pleading "NOT GUILTY" upon arraignment,
accused was convicted and thereafter sentenced to reclusion
perpetua to indemnify the heirs of the deceased in the
amount of P12,000.00; and to pay costs.
From the aforesaid judgment, she ventilated an appeal to the
then Court of Appeals (which referred the appeal to us
considering that the penalty imposed was reclusion
perpetua, assailing her aforesaid conviction and contending
that the trial court erred: 1) in convicting her solely on the
basis of the alleged extrajudicial confession; 2) in finding that
Pneumonia was a complication of the burns sustained by the
victim; 3) in not finding her not to have cause the death of
7
the deceased; and 4) in not acquitting her at least on ground
of reasonable doubt.
The prosecution's version of the incident as summarized in
the People's Brief is as follows:
On March 6, 1965, at about 11:00 o'clock in the evening,
appellant went to the NAWASA Building at Pasay City where
her husband was then working as a security guard. She had
just purchased ten (10) centavo worth of gasoline from the
Esso Gasoline Station at Taft Avenue which she placed in a
coffee bottle (t.s.n., p. 13, January 13, 1969). She was angry
of her husband, Elias Day y Pablo, because the latter had
burned her clothing, was maintaining a mistress and had
been taking all the food from their house. Upon reaching the
NAWASA Building, she knocked at the door. Immediately,
after the door was opened, Elias Day shouted at the appellant
and castigated her saying, "PUTA BUGUIAN LAKAW
GALIGAON" (t.s.n., p. 14, Id). The appellant tired of hearing
the victim, then got the bottle of gasoline and poured the
contents thereof on the face of the victim (t.s.n., p. 14, Id).
Then, she got a matchbox and set the polo shirt of the victim
a flame. (Exhs. "A" and "A-1", p. 197, Rec.)
The appellant was investigated by elements of the Pasay City
Police to whom she gave a written statement (Exh. "A", p.
197, Rec.) where she admitted having burned the victim.
Upon the other hand, the victim was taken first to the
Philippine General Hospital and then to the Trinity General
Hospital at Sta. Ana, Manila, when he died on March 10,
1965. (Exh. "C", p. 208, rec.) due to pneumonia, lobar
bilateral Burns 2 secondary. 3
Appellant's story on the other hand runs, thus:
It was before 10:00 o'clock p.m. when appellant returned
from Olongapo City. She fed her grandson and put him to
bed. After filing the tank with water, she remembered that
the next day was a Sunday and she had to go to church. Her
shoes were dirty but there was no gasoline with which to
clean them. Taking with her an empty bottle of Hemo, she
left for a nearby gasoline station and bought ten centavos
worth of gasoline. Then she remembered that her husband
needed gasoline for his lighter so she dropped by his place of
work. (p. 13, Ibid.)
Appellant saw her husband inside a bonding of the NAWASA
standing by the window. As the iron grille was open, she
entered and knocked at the wooden door. Elias opened the
door, but when he saw his wife he shouted at her. Appellant
said that she had brought the gasoline which he needed for
his lighter, but Elias, who was under the influence of liquor,
cursed her thus: "PUTA BUGUIAN LAKAW GALIGAON". Elias
continued shouting and cursing even as appellant told him
that she had come just to bring the gasoline that he wanted.
Appellant trembled and became dizzy. She was beside herself
and did not know that she was sprinkling the gasoline on her
husband's face. She was tired and dizzy and had to sit down
for a while. Then she remembered her grandson who was
alone in the house so she went home leaving her husband
who was walking to and fro and not paying attention to her.
(pp. 13-14, Ibid., p. 2, March 20, 1969)
She went to bed but could not sleep. She went back to the
NAWASA compound to apologize to her husband. Upon
reaching the NAWASA, however, she found that police
officers were present. Her husband was walking all around
still fuming mad, and when he saw her he chased her. A
policeman pulled appellant aside and asked if she was the
wife of Elias. When she replied in the affirmative, the police
officer accused her of burning her husband. She denied the
accusation. But the police took her to the headquarters, and
prepared a written statement, Exhibits A, A-1. Appellant was
made to sign said statement upon a promise that she would
be released if she signed it. Although she did not know the
contents, she signed it because of the promise. (pp. 14-16.
Id.; p. 5, March 20,1969) 4
Appellant's assigned errors boil down to two (2) main issues:
(1) whether or not appellant's extrajudicial confession was
voluntarily given; and (2) whether or not the burns sustained
by the victim contributed to cause pneumonia which was the
cause of the victim's death.
Right after the burning incident, appellant was picked up by
the police operatives of Pasay City. She was thereafter
investigated by Sgt. Leopoldo Garcia of the Pasay City Police
who took her statement in Tagalog and in Question and
Answer form which was reduced into writing. 5 After Sgt.
Garcia was through taking her statement, she was brought to
Fiscal Paredes who asked her questions regarding the said
statement and its execution and before whom said statement
was subscribed and sworn to by her. In that investigation,
appellant categorically admitted having thrown gasoline at
her husband and thereafter set him aflame as evidenced by
this pertinent portion of her statement-
T Ano ang nangyari at iyong binuksan ng gasolina ang iyong
asawa na si Elias Day?
S Dahil may sala siya, at sinunog niya ang aking mga damit, at
may babae pa, at saka lahat ng aming pagkain sa bahay ay
hinahakot.
T Ng dahil dito sa mga binanggit mong ito ay ano ang ginawa
mo sa iyong asawa?
S Ako po ay nagdilim ang aking isipan at ang ginawa ko ay
naisip kong buhusan ng gasolina, kaya ang aking ginawa ay
8
bumili ako ng halagang 10 sentimos sa Esso Gasoline Station
sa Tall Avenue at inilagay ko sa isang boti.
T Pagkatapos na ikaw ay makabili ng gasolina sa station ng
Esso sa Taft Avenue dito sa Pasay City, ay ano ang ginawa
mo?
S Ako po ay nagpunta sa kanya na pinaggoguardiahan sa
Nawasa at pagdating ko nuon ay kumatok ako sa pintuan ng
Nawasa, at nang marinig niya ang aking katok sa pinto ay
binuksan niya ang pintuan, at pagkabukas ng pintuan ay
nakita niya ako, at nagalit siya at ako ay minura ng puta putan
Ina mo, lalakad ka ng gabi, at namumuta raw ako, at
pagkatapos na ako ay mamura ay hinahabol pa ako ng
suntok, kayat ang ginawa ko po kinuha ko ang aking dalang
bote na may gasolina at aking ibinuhos sa kanyang katawan
at aking kinuha ang posporo at aking sinindihang at hangang
magliyab ang suot niyang polo shirt, na may guhit na itim at
puti.
T Alam mo ba na kung ano ang iyong ginawa sa iyong asawa
kanginang humigit kumulang na mag-iika alas 11:00 ng gabi
Marzo 6, 1965?
S Opo, aking sinunog ang aking asawa. (Exhs. A & A-1
Emphasis supplied)
She would now like her aforesaid extrajudicial confession
discredited by asserting that she did not understand its
contents because she is not a Tagala aside from having
reached only the primary grades; and furthermore, that said
statement was signed by her merely upon the promise of the
policemen that she will later be released.
We find appellant's aforesaid assertions a mere pretense too
flimsy to be accepted as true. For the truth is that appellant
knew and understood Tagalog despite her not being a Tagala,
having stayed in Manila since 1951, continuously up to the
time of the burning incident in question for which she was
investigated. During this period of almost fourteen years, she
was in daily association with Tagalogs communicating with
them in Pilipino. This is clear from her admission on cross-
examination which runs thus-
Q But you can understand Tagalog because of the length of
time that you litem been living here in Manila?
A Yes.
Q And as a matter of fact, when you buy something from the
store, you speak Tagalog?
A Yes.
Q And when you ride in a jeep or bus, you speak Tagalog?
A Yes.
Q And you were well understood by these Tagalog people?
A Yes.
Q And as a matter of fact, you can understand Tagalog?
A Yes,
Q And you can also read Tagalog?
A Yes.
Q You can read?
A Yes, but I do not litem interest to read. TSN, March 29,
1969, pp. 11-12).
All through shout the entire investigation and even at the
time appellant A as before Fiscal Paredes, before whom she
subscribed and swore to the truth of an what appeared in her
statement, 6 no denunciation of any sort was made nor
levelled by her against the police investigators. Neither was
there any complaint aired by her to the effect that she merely
affixed her signatures thereto because of the promise by the
police that she will be released later. We therefore find her
aforesaid claim highly incredible and a mere concoction. For
why will the police still resort to such trickery when the very
sworn statement given by her proved by its contents that
appellant was indeed very cooperative. In fact, almost all the
recitals and narrations appearing in the said statement were
practically repeated by her on the witness stand thus
authenticating the truth and veracity of her declarations
contained therein. Moreover, We find said statement replete
with details which could not litem been possibly supplied by
the police investigators who litem no previous knowledge of,
nor acquaintance with her and the victim, especially with
respect to the circumstances and incidents which preceded
the fatal incident that brought about the death of the latter.
We therefore find no error in the trial court's pronouncement
that appellant's sworn statement was voluntarily given by
her; that she fully understood its contents; and that she
willingly affixed her signatures thereto.
Well settled is the rule that extrajudicial confession may be
regarded as conclusive proof of guilt when taken without
maltreatment or intimidation 7 and may serve as a basis of
the declarant's conviction. 8 It is presumed to be voluntary
until the contrary is proven. The burden of proof is upon the
person who gave the confession. 9 That presumption has not
been overcome in the instant case.
Indeed the trial court could not be faulted for relying heavily
on accused-appellant's sworn statement in assessing her
9
guhit since it was given shortly after the incident took place.
By then, she had yet no time to concoct any fabrication
favorable to her. Shock by the aftermath consequences of her
criminal design she must litem been motivated by no other
purpose except to admit the undeniable. On the other hand,
when she took the witness stand, disclaiming any
responsibility for the burning of her husband, it was already
January 13, 1969 . . . more than five years after the incident
and decidedly after she had the benefit of too many
consultations.
That appellant has murder in her heart and meant to do harm
to her husband when she went to the latter's place of work
on that fatal night and intended an the consequences of her
nefarious act finds clearer manifestation and added support
in her total indifference and seemingly unperturbed concern
over the fate that had befallen the victim . . . her husband . . .
especially at times when he needed her most. Being the wife,
she must be the closest to him and the hardest hit by the
mishap if she has not authored the same nor voluntarily
participated therein. She was then reasonably expected to
come to his succor and alleviate him from his sufferings. And
yet, the records do not show her having seen her husband
even once while the latter lay seriously ill at the hospital
hovering between life and death. Neither did she attend his
funeral nor was she ever present during the wake while the
victim's remains lay in state. That she was under detention
does not excuse nor justify those glaring and significant
omissions. For she could litem asked the court's permission
for any of the enumerated undertakings which we believe
would not litem been denied. But she did not even attempt.
Indeed, the more we scrutinize appellant's alibi and
explanation, we become more convinced of the falsity and
incredibility of her assertions. For instance, her claim that her
purpose in buying gasoline at so an unholy hour of the night,
past ten o clock in the evening, solely for the purpose of
cleaning her shoes which she would wear in going to church
the following Sunday, hardly recommend acceptance. That
she dropped at her husband's place of work also at the
middle of the night for no other purpose except to deliver to
him gasoline for his cigarette lighter, is likewise too taxing
upon one's credulity . . . more so if we litem to consider the
previous spat she had with the deceased in the morning of
that fatal day.
In her vain attempt to exculpate herself, appellant would like
Us to believe that her husband died of pneumonia because
the latter drank liquor as shown by the toxicology report
indicating presence of alcohol in the victim's body. Hence,
assuming she set her husband on fire, she is not criminally
liable for her husband's death.
We are not persuaded by appellant's aforesaid ratiocination
The claim that the victim drank liquor while confined in the
hospital would not suffice to exculpate the appellant. For as
testified by Dr. Reyes, pneumonia could not be caused by
taking alcohol. In fact, alcohol, according to him, unless taken
in excessive dosage so as to produce an almost comatose
condition would not cause suffocation nor effect a diminution
of the oxygen content of the body. 10 In fine, as correctly
pointed out by the Hon. Solicitor General, the victim's taking
of liquor was not an efficient supervening cause of his death
which took place on March 10, 1965, just four days after the
burning.
The cause of death as shown by the necropsy report is
pneumonia, lobar bilateral. Burns 2' secondary. There is no
question that the burns sustained by the victim as shown by
The post-mortem findings immunity about 62% of the victim's
entire body. The evidence shows that pneumonia was a mere
complication of the burns sustained. While accepting
pneumonia as the immediate cause of death, the court a
quo held on to state that this could not litem resulted had not
the victim suffered from second degree burns. It concluded,
and rightly so, that with pneumonia having developed, the
burns became as to the cause of death, merely contributory.
We agree.
Appellant's case falls squarely under Art, 4, Par. 1 of the
Revised Penal Code which provides:
Art. 4. Criminal Liability. — Criminal liability shall be incurred.
1. By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
the essential requisites of which are: (a) that an intentional
felony has been committed; and (b) that the wrong done to
the aggrieved party be the direct, natural and logical
consequence of the felony committed by the offender. 11
The reason for the rule as spelled out in the earlier cases
of PP vs. Moldes, 61 Phil. 1, 3 & 4; and PP vs. Quianzon, 62
Phil. 162, citing 13 RCL 748, 751 is as follows —
One who inflicts injury on another is deemed guilty of
homicide if the injury contributes immediately or
immediately to the death of such other. The fact that other
causes contribute to the death does not relieve the actor of
responsibility. He would still be liable "even if the deceased
might litem recovered if he had taken proper care of himself,
or submitted to surgical operation, or that unskilled or
improper treatment aggravated the wound and contributed
to the death, or that death was men." caused by a surgical
operation rendered necessary by the condition of the wound.
The principle on which this rule is founded is one of universal
application. It lies at the foundation of criminal jurisprudence.
It is that every person is held to contemplate and be
10
responsible for the natural consequences of his own acts. If a
person inflicts a wound with a deadly weapon in a manner as
to put life in jeopardy, and death follows as a consequence of
this felonious and wicked act, it does not alter its nature or
diminish its criminality to prove that other causes cooperated
in producing the fatal result. Neglect of the wound or its
unskilled and improper treatment which are themselves
consequences of the criminal act, must in law be deemed to
litem been among those which are in contemplation of the
guilty party and for which he must be responsible The rule
has its foundation on a wise and practical policy. A different
doctrine would tend to give immunity to crime and to take
away from human life a salutary and essential safeguard.
Amidst the conflicting theories of medical men and the
uncertainties attendant upon the treatment of bodily
ailments and injuries it would be easy in many cases of
homicide to raise a doubt as to the immediate cause of
death, and thereby open a wide door by which persons guilty
of the highest crime might escape conviction and
punishment.
In convicting the accused, the trial court imposed upon her
the obligation to indemnify the heirs of the deceased only in
the amount of P12,000.00. That should now be increased to
P30,000.00.
WHEREFORE, except as thus modified, the judgment
appealed from is hereby AFFIRMED with costs against
appellant.
It appearing however that appellant Valentina Mananquil is
now 71 years of age, this Court recommends her for
executive clemency. For the purpose, let His Excellency,
President Ferdinand E. Marcos, be furnished with a copy of
this decision thru the Hon. Minister of Justice.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
BATACLAN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of
the Medina Transportation, operated by its owner defendant
Mariano Medina under a certificate of public convenience,
left the town of Amadeo, Cavite, on its way to Pasay City,
driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and
conductor. Among the passengers were Juan Bataclan, seated
beside and to the right of the driver, Felipe Lara, sated to the
right of Bataclan, another passenger apparently from the
Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated in the left side of
the driver, and a woman named Natalia Villanueva, seated
just behind the four last mentioned. At about 2:00 o'clock
that same morning, while the bus was running within the
jurisdiction of Imus, Cavite, one of the front tires burst and
the vehicle began to zig-zag until it fell into a canal or ditch on
the right side of the road and turned turtle. Some of the
passengers managed to leave the bus the best way they
could, others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan, Lara
and the Visayan and the woman behind them named Natalia
Villanueva, could not get out of the overturned bus. Some of
the passengers, after they had clambered up to the road,
heard groans and moans from inside the bus, particularly,
shouts for help from Bataclan and Lara, who said they could
not get out of the bus. There is nothing in the evidence to
show whether or not the passengers already free from the
wreck, including the driver and the conductor, made any
attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for
help were made to the houses in the neighborhood. After
half an hour, came about ten men, one of them carrying a
lighted torch made of bamboo with a wick on one end,
evidently fueled with petroleum. These men presumably
approach the overturned bus, and almost immediately, a
11
fierce fire started, burning and all but consuming the bus,
including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and
escape from the gasoline tank on the side of the chassis,
spreading over and permeating the body of the bus and the
ground under and around it, and that the lighted torch
brought by one of the men who answered the call for help set
it on fire.
That same day, the charred bodies of the four deemed
passengers inside the bus were removed and duly identified
that of Juan Bataclan. By reason of his death, his widow,
Salud Villanueva, in her name and in behalf of her five minor
children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After trial, the
Court of First Instance of Cavite awarded P1,000 to the
plaintiffs plus P600 as attorney's fee, plus P100, the value of
the merchandise being carried by Bataclan to Pasay City for
sale and which was lost in the fire. The plaintiffs and the
defendants appealed the decision to the Court of Appeals,
but the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.
Our new Civil Code amply provides for the responsibility of
common carrier to its passengers and their goods. For
purposes of reference, we are reproducing the pertinent
codal provisions:
ART. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6,
and 7, while the extra ordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons,
with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and
1755
ART. 1759. Common carriers are liable for the death of or
injuries to passengers through the negligence or willful acts of
the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of
the order of the common carriers.
This liability of the common carriers does not cease upon
proof that they exercised all the diligence of a good father of
a family in the selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered
by a passenger on account of the willful acts or negligence of
other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good
father of a family could have prevented or stopped the act or
omission.
We agree with the trial court that the case involves a breach
of contract of transportation for hire, the Medina
Transportation having undertaken to carry Bataclan safely to
his destination, Pasay City. We also agree with the trial court
that there was negligence on the part of the defendant,
through his agent, the driver Saylon. There is evidence to
show that at the time of the blow out, the bus was speeding,
as testified to by one of the passengers, and as shown by the
fact that according to the testimony of the witnesses,
including that of the defense, from the point where one of
the front tires burst up to the canal where the bus overturned
after zig-zaging, there was a distance of about 150 meters.
The chauffeur, after the blow-out, must have applied the
brakes in order to stop the bus, but because of the velocity at
which the bus must have been running, its momentum
carried it over a distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to what
degree. The trial court was of the opinion that the proximate
cause of the death of Bataclan was not the overturning of the
bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at
the time the fire started, Bataclan, though he must have
suffered physical injuries, perhaps serious, was still alive, and
so damages were awarded, not for his death, but for the
physical injuries suffered by him. We disagree. 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
12
cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary
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.
It may be that ordinarily, when a passenger bus overturns,
and pins down a passenger, merely causing him physical
injuries, if through some event, unexpected and
extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle
sets it on fire, and the passenger is burned to death, one
might still contend that the proximate cause of his death was
the fire and not the overturning of the vehicle. But in the
present case under the circumstances obtaining in the same,
we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the
vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural
or unexpected; that the coming of the men with a lighted
torch was in response to the call for help, made not only by
the passengers, but most probably, by the driver and the
conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with
them, and coming as they did from a rural area where
lanterns and flashlights were not available; and what was
more natural than that said rescuers should innocently
approach the vehicle to extend the aid and effect the rescue
requested from them. In other words, the coming of the men
with a torch was to be expected and was a natural sequence
of the overturning of the bus, the trapping of some of its
passengers and the call for outside help. What is more, the
burning of the bus can also in part be attributed to the
negligence of the carrier, through is driver and its conductor.
According to the witness, the driver and the conductor were
on the road walking back and forth. They, or at least, the
driver should and must have known that in the position in
which the overturned bus was, gasoline could and must have
leaked from the gasoline tank and soaked the area in and
around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed
even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to
warn the rescuers not to bring the lighted torch too near the
bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced,
particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled,
considering the earning capacity of the deceased, as well as
the other elements entering into a damage award, we are
satisfied that the amount of SIX THOUSAND (P6,000) PESOS
would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe
that plaintiffs are entitled to attorney's fees, and assessing
the legal services rendered by plaintiffs' attorneys not only in
the trial court, but also in the course of the appeal, and not
losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800)
PESOS for the loss of merchandise carried by the deceased in
the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not

shock us. According to the evidence, one of the passengers
who, because of the injuries suffered by her, was
hospitalized, and while in the hospital, she was visited by the
defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling
said inspector to have the tires of the bus changed
immediately because they were already old, and that as a
matter of fact, he had been telling the driver to change the
said tires, but that the driver did not follow his instructions. If
this be true, it goes to prove that the driver had not been
diligent and had not taken the necessary precautions to
insure the safety of his passengers. Had he changed the tires,
specially those in front, with new ones, as he had been
instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in
all, there is reason to believe that the driver operated and
drove his vehicle negligently, resulting in the death of four of
his passengers, physical injuries to others, and the complete
loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was
provisionally dismissed, because according to the fiscal, the
witnesses on whose testimony he was banking to support the
complaint, either failed or appear or were reluctant to testify.
But the record of the case before us shows the several
witnesses, passengers, in that bus, willingly and
unhesitatingly testified in court to the effect of the said driver
was negligent. In the public interest the prosecution of said
erring driver should be pursued, this, not only as a matter of
justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished
the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the

damages awarded by the trial court are increased from ONE
THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000)
PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED
(P800) PESOS, for the death of Bataclan and for the attorney's
fees, respectively, the decision appealed is from hereby
affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo,

Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix,
JJ., concur.

13
14

SECOND DIVISION
G.R. No. 117954 April 27, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ORLANDO ACURAM, accused-appellant.
QUISUMBING, J.
On appeal is the decision rendered on August 24, 1994, by
the Regional Trial Court of Cagayan de Oro City, Branch 22, in
Criminal Case No. 91-1161, finding accused-appellant Orlando
Acuram guilty of murder.
On September 30, 1991, Assistant Provincial Prosecutor
Benber Apepe charged appellant with the crime of murder,
allegedly committed as follows:
On June 29, 1991, at about 7:00 o'clock in the evening, at
Poblacion, El Salvador; Misamis Oriental, which is within the
jurisdiction of the Honorable Court, the above-named
accused, with intent to kill and treachery did, then and there,
wilfully, unlawfully and feloniously and with the use of his
armalite rifle, shoot at one Orlando1 Manabat who was just
standing on the highway waiting for a ride towards home,
thus, hitting and wounding the latter on the right leg or thigh,
which caused his death the following day.
CONTRARY TO and in violation of Article 248, paragraph 1, of
the Revised Penal Code.2
Upon arraignment appellant, assisted by counsel, entered a
plea of not guilty to the charge.3 Thereafter, trial on the
merits ensued. Subsequently, the trial court rendered
judgment, disposing as follows:
WHEREFORE, in the light of the foregoing facts, convincingly
proved by the prosecution, the accused, ORLANDO ACURAM,
is hereby found guilty beyond reasonable doubt, of the crime
of MURDER, qualified by treachery, and is meted the penalty
of reclusion perpetua and to indemnify the heirs of the
deceased ROLANDO MANABAT the jurisprudential sum of
fifty thousand (P50,000.00) pesos, without subsidiary
imprisonment in case of insolvency and to pay the cost of the
suit.
SO ORDERED.4
The records disclose that on June 29, 1991, at around seven
o'clock in the evening, Rolando Manabat, Oscar Manabat,
Bartolome Nabe, and Peterson Valendres, after the day's
work, proceeded to the market in El Salvador, Misamis
Oriental, to buy fish. Since no fish was available at that time,
15
they decided to head for home instead. They went to the
national highway, stood at the right side facing east towards
the direction of Cagayan de Oro City and waited for a ride
there. They flagged down an approaching passenger jeepney
which, however, swerved dangerously towards them. At this
juncture, Rolando Manabat shouted at the jeep "Pesteng
yawa-a kamo, Manligis man kamo" (You devils, why did you
try to run over us?). A passenger inside the jeepney shouted
back "Noano man diay, isog mo?" (Why? Are you brave?).
Immediately thereafter, two gunshots rang out in the air,
accompanied by sparks coming from the front right side of
the jeepney. Then Rolando shouted, "Agay. I was shot." The
vehicle did not stop but instead speeded towards the
direction of Cagayan de Oro City. Wounded on the right knee,
Rolando was brought by his companions to the Cagayan de
Oro Medical Center. Later on, they were informed that
Rolando needed blood transfusion and so they transferred
him at around 11:25 P.M. to the Northern Mindanao Regional
Hospital in the same city.
Upon arrival at the hospital, Rolando was examined by Dr.
Ismael Naypa, Jr. The doctor found the victim's blood
pressure to be just forty over zero (40/0) and the victim's
right leg was heavily bandaged. He decided to operate on the
victim when the latter's blood pressure stabilized. At about
5:00 A.M. the following day, the victim underwent surgery.
Unfortunately, the victim died at around 11:00 A.M. Dr.
Naypa later testified that the cause of Rolando's death was
"secondary to huddle respiratory syndrome secondary to
blood loss, secondary to gunshot wounds", or briefly, massive
loss of blood due to gunshot wound. He stated that under
normal circumstances, the wound would not necessarily
cause death but in this case where the wound transected the
major part of the leg, the wound was fatal. He clarified that
the victim sustained only one gunshot wound which entered
at the front portion of the right knee and exited at the back of
the right knee, causing two wounds.5
The El Salvador police conducted investigation on the
incident. It was discovered that appellant Orlando Acuram, a
policeman assigned with the 421st PNP Company based at
San Martin, Villanueva, Misamis Oriental, was among the
passengers of the errant jeepney. He was seated at the front,
right side of the jeepney and was the only one among its
passengers who was carrying a firearm. Pending
investigation, he was restricted to the camp effective July 1,
1991, upon orders of his commanding officer, Major Rodolfo
De La Piedra.6 Appellant was later surrendered by his
commanding officer to the custody of the court on the basis
of the warrant of arrest issued by MCTC Judge Evelyn
Nery.7 On motion by the prosecution and without objection
from the defense, the trial court suspended appellant from
the service and ordered his detention at the provincial jail.8
During the trial, appellant admitted that he was on board the
mentioned jeepney and had a gun at that time but denied
firing it. He claimed that it was impossible for him to fire his
rifle during that time since he was sitting at the front seat of
the jeepney, sandwiched between the driver and the latter's
father-in-law. Moreover, he said that the rifle was locked and
wrapped by his jacket and its barrel was even pointed
towards the driver. 9
The trial court found the version of the defense weak, self-
serving and unreliable. On the basis of the evidence
presented by the prosecution, the court found appellant
guilty as charged. Insisting on his innocence, appellant readily
filed his notice of appeal. 10 In his brief, appellant raises the
following errors allegedly committed by the trial court:
I Thus, appellant's first contention that he is entitled to the
THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT
ACCUSED APPELLANT TOOK FLIGHT OR ESCAPED AFTER THE
NIGHT OF THE INCIDENT OR IN FAILING TO CONSIDER THE
MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.
II
THE TRIAL COURT ERRED IN DECLARING THAT THE KILLING
WAS ATTENDED BY THE QUALIFYING CIRCUMSTANCE OF
TREACHERY, GRANTING ARGUENDO THAT THE ACCUSED
APPELLANT IS GUILTY.
III
THE TRIAL COURT ERRED IN RULING THAT ACCUSED-
APPELLANT IS THE PERPETRATOR OF THE CRIME CHARGED,
DESPITE THE FACT THAT ACCUSED WAS NOT PROPERLY AND
CONCLUSIVELY IDENTIFIED, AND THE ALLEGED WEAPON NOT
POSITIVELY TESTED.
IV
THAT THE TRIAL COURT GRAVELY ERRED IN DISREGARDING
EVIDENCE POINTING TO THE INNOCENCE OF THE ACCUSED-
APPELLANT, THAT IS, THE EXISTENCE OF EFFICIENT
INTERVENING CAUSE, WHICH IS THE PROXIMATE CAUSE OF
THE DEATH OF THE VICTIM. 11
We shall take up in seriatim the challenges posed by
appellant to the credibility and sufficiency of the evidence for
the prosecution. We shall also consider the weight and
credibility of his defense.
To begin with, while appellant denies that he fled and hid
after the shooting incident, we find that his behavior proves
otherwise. Appellant admits that he was at the scene of the
crime at the time the shooting happened. Considering that he
is a law enforcement officer, the unusual incident should
have at least elicited his curiosity and he should have inquired
16
about it. However, he chose to ignore the incident and go his
way. 12 That a policeman could display such indifference to a
crime committed in his presence is highly incredible. While it
was true that he reported for duty the day after the incident,
the following day, he was ordered by his commanding officer
restricted within the camp pending investigation of the case.
By this time, appellant must have learned that his
commanding officer had received a radio message and that
he was already a suspect. As the trial court noted, no superior
officer will hold back from any of his men involved, such a
grave charge. Despite these, appellant did not present
himself before the police in El Salvador, Misamis Oriental.
Instead, he was conveniently nowhere to be found.
mitigating circumstance of voluntary surrender, in our view, is
quite untenable. The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up
and submit himself unconditionally to the authorities either
because he acknowledges his guilt or he wishes to save them
the trouble and expense necessarily incurred in his search
and capture. 13 In this case, it was appellant's commanding
officer who surrendered him to the custody of the court.
Being restrained by one's superiors to stay within the camp
without submitting to the investigating authorities
concerned, is not tantamount to voluntary surrender as
contemplated by law. The trial court is correct in not
appreciating the mitigating circumstance of voluntary
surrender in appellant's favor.
On his second assignment of error, however, we find
convincing merit.1âwphi1 Appellant asserts that the trial
court erred in concluding that the killing was qualified by
treachery. On this point, we agree. For treachery to be
considered an aggravating circumstance, there must be proof
that the accused consciously adopted a mode of attack to
facilitate the perpetration of the killing without risk to
himself. 14 In this case, the shooting was done at the spur of
the moment. As observed by the trial court, the victim had
shouted damning curses at the driver and the passengers of
the jeepney. The shooting was on instantaneous response to
the cursing, as appellant correctly claimed. 15 Treachery
cannot be appreciated where the accused shot the victim as a
result of a rash and impetuous impulse rather than from a
deliberate act of the will. 16
Thirdly, appellant contends that the trial court erred in ruling
that he was the perpetrator of the crime. He claims he was
not conclusively identified and the alleged fatal weapon was
not positively tested. True, prosecution witnesses did not
positively identify appellant as the one who fired the gun at
the victim. Nevertheless, direct evidence of the commission
of the crime is not the only matrix where the trial court may
draw its conclusions and findings of guilt. 17 It is settled that
conviction may be based on circumstantial evidence provided
that the following requisites must concur: (a) there is more
than one circumstance; (b) the facts from which the
inferences are derived are proven; and (c) the combination of
all the circumstances is such as to produce a conviction
beyond reasonable doubt. 18 Circumstantial evidence could be
of similar weight and probative value as direct evidence.
From direct evidence of a minor fact or facts, by a chain of
circumstances the mind is led intuitively, or by a conscious
process of reasoning, towards a conviction that from said fact
or facts some other facts may be validly inferred. 19 No
greater degree of certainty is required when the evidence is
circumstantial than when it is direct. In either case, what is
required is that there be proof beyond reasonable doubt that
the crime was committed and that the accused committed
the crime. 20
As noted by the trial court and the Solicitor General, the
evidence for the prosecution is replete with details, duly
proven by the prosecution and to some extent by admissions
of the defense, enough to sustain the guilt of appellant.
These are: (1) The appellant was a former member of the
Philippine Constabulary and, during the incident, was a
member of the Philippine National Police. He was skilled in
handling firearms. (2) The appellant was issued a firearm
(armalite rifle) by his command, which he was then carrying
with him before, during and after the incident; (3) At the
particular date, time and place of the incident, appellant was
carrying his duly issued armalite rifle inside the jeepney from
where the gunfire came from. (4) The appellant was sitting on
the extreme front-right-side of the jeepney where the sparks
of the gunbursts were seen and heard by the witnesses. (5)
There were no other persons with a rifle inside the jeepney
except the appellant. (6) The empty shells of an armalite rifle
were recovered at the place where the fatal shooting
occurred. (7) The appellant did not go forward to the
authorities to present himself until after a warrant of arrest
was issued and, in fact, until his actual arrest. 21
The aforecited circumstances taken together constitute an
unbroken chain leading to a reasonable conclusion that
appellant, to the exclusion of others, was responsible for the
victim's death. They constitute proof beyond reasonable
doubt that appellant was the perpetrator of the offense. It is
the height of desperation on appellant's part to insist that
there should be an eyewitness to the precise moment the
shot was fired considering the sudden and completely
unexpected shooting of the victim. 22 Here, circumstantial
evidence suffices.
Appellant's insistence on his innocence in view of the absence
of paraffin and ballistic tests, in our view, is far from
convincing. Suffice it to state that even negative findings of
the paraffin test do not conclusively show that a person did
not fire a gun. The absence of nitrates could be explained if a
person discharged a firearm with gloves on, or if he
thoroughly washed his hands thereafter. 23
17
Lastly, in his attempt to exculpate himself, appellant blames
the death of the victim on the lack of prompt and proper
medical attention given. He insists that the delay in giving
proper medical attendance to the victim constitutes an
efficient intervening cause which exempts him from criminal
responsibility. This assertion is disingenuous, to say the least.
Appellant never introduced proof to support his allegation
that the attending doctors in this case were negligent in
treating the victim. On the contrary, Dr. Ismael Naypa, Jr.,
testified that the attending doctor at the Cagayan de Oro
Medical Center tried his best in treating the victim by
applying bandage on the injured leg to prevent hemorrhage.
He added that the victim was immediately given blood
transfusion at the Northern Mindanao Regional Hospital
when the doctor found out that the victim had a very low
blood pressure. Thereafter, the victim's blood pressure
stabilized. Then, the doctor operated the victim as the main
blood vessel of the victim's right leg was cut, thereby causing
massive loss of blood. The surgery was finished in three
hours. Unfortunately, the victim died hours later. We cannot
hold the attending doctors liable for the death of the victim.
The perceived delay in giving medical treatment to the victim
does not break at all the causal connection between the
wrongful act of the appellant and the injuries sustained by
the victim. It does not constitute efficient intervening cause.
The proximate cause of the death of the deceased is the
shooting by the appellant. It is settled that anyone inflicting
injuries is responsible for all the consequences of his criminal
act such as death that supervenes in consequence of the
injuries. The fact that the injured did not receive proper
medical attendance would not affect appellant's criminal
responsibility. The rule is founded on the practical policy of
closing to the wrongdoer a convenient avenue of escape from
the just consequences of his wrongful act. If the rule were
otherwise, many criminals could avoid just accounting for
their acts by merely establishing a doubt as to the immediate
cause of death. 24
To conclude, since the qualifying circumstance was not
proved in this case, the crime committed is only homicide,
not murder. Under Article 249 of the Revised Penal Code, the
applicable penalty for homicide is only reclusion temporal. As
there is neither aggravating nor mitigating circumstance
found by the trial court or shown after a review of the
records, the penalty in this case shall be fixed in its medium
period of reclusion temporal, which ranges from a minimum
of 14 years, 8 months and 1 day to a maximum of 17 years
and 4 months. Further applying the Indeterminate Sentence
Law, the imposable penalty shall be within the range
of prision mayor as a minimum to reclusion temporal in its
medium period as the maximum. The range of prision
mayor is from 6 years and 1 day to 12 years. The span
of reclusion temporal, medium, is from 14 years, 8 months
and 1 day to 17 years and 4 months.
WHEREFORE, the assailed DECISION of the Regional Trial
Court of Cagayan de Oro City, Branch 22, in Criminal Case No.
91-1161, is hereby MODIFIED. Appellant Orlando Acuram is
hereby found GUILTY of HOMICIDE and sentenced to suffer a
prison term of 10 years of the medium period of prision
mayor, as minimum, to 15 years and 10 months and 1 day of
the medium period of reclusion temporal, as maximum, with
accessory penalties provided by law, to indemnify the heirs of
the deceased Rolando Manabat in the amount of P50,000.00,
without subsidiary imprisonment in case of insolvency, and to
pay the costs.1âwphi1.nêt

SO ORDERED.

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

18
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 180219 November 23, 2011
VIRGILIO TALAMPAS y MATIC, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
By petition for review on certiorari, Virgilio Talampas y Matic
(Talampas) seeks the review of the affirmance of his
conviction for homicide (for the killing of the late Ernesto
Matic y Masinloc) by the Court of Appeals (CA) through its
decision promulgated on August 16, 2007. 1
The Regional Trial Court, Branch 25, in Biñan, Laguna (RTC)
had rejected his pleas of self-defense and accident and had
declared him guilty of the felony under the judgment
rendered on June 22, 2004.2
Antecedents
The information filed on November 17, 1995, to which
Talampas pleaded not guilty, averred as follows:3
That on or about July 5, 1995, in the Municipality of Biñan,
Province of Laguna, Philippines and within the jurisdiction of
this Honorable Court, accused VIRGILIO TALAMPAS, with
intent to kill, while conveniently armed with a short firearm
and without any justifiable cause, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one
Ernesto Matic y Masinloc with the said firearm, thereby
inflicting upon him gunshot wound at the back of his body
which directly caused his instantaneous death, to the damage
and prejudice of his surviving heirs.
CONTRARY TO LAW.
The State presented as witnesses Jose Sevillo, Francisco
Matic, Jerico Matic, Dr. Valentin Bernales, and Josephine
Matic. The CA summarized their testimonies thuswise:4
Prosecution witness Jose Sevillo (Jose) who allegedly
witnessed the incident in question, testified that on July 5,
1995 at about 7:00 o’clock in the evening, he together with
Eduardo Matic (Eduardo) and Ernesto Matic (Ernesto) were
infront of his house, along the road in Zona Siete (7), Wawa,
Malaban, Biñan, Laguna, repairing his tricycle when he
noticed the appellant who was riding on a bicycle passed by
and stopped. The latter alighted at about three (3) meters
away from him, walked a few steps and brought out a short
gun, a revolver, and poked the same to Eduardo and fired it
hitting Eduardo who took refuge behind Ernesto. The
appellant again fired his gun three (3) times, one shot hitting
Ernesto at the right portion of his back causing him (Ernesto)
to fall on the ground with his face down. Another shot hit
Eduardo on his nape and fell down on his back (patihaya).
Thereafter, the appellant ran away, while he (Jose) and his
19
neighbors brought the victims to the hospital. On June 6,
1995, Jose executed a Sworn Statement at the Biñan Police
Station.
Another witness, Francisco Matic, testified that prior to the
death of his brother Ernesto who was then 44 years old, he
(Ernesto) was driving a tricycle on a boundary system and
earned ₱100.00 daily, although not on a regular basis
because sometimes Ernesto played in a band for ₱100.00 per
night.
Jerico Matic, eldest son of Ernesto, alleged that he loves his
father and his death was so painful to him that he could not
quantify his feelings in terms of money. The death of his
father was a great loss to them as they would not be able to
pursue their studies and that nobody would support them
financially considering that the money being sent by their
mother in the amount of ₱2,000.00 to ₱2,500.00 every three
(3) months, would not be enough.
Dr. Valentin Bernales likewise, testified that he was the one
who conducted the autopsy on the body of Ernesto and
found one gunshot in the body located at the back of the
costal area, right side, sixteen (16) centimeters from the
spinal column. This shot was fatal as it involved the major
organs such as the lungs, liver and the spinal column which
caused Ernesto’s death.
The last witness, Josephine Matic, wife of Ernesto, testified
that her husband was laid to rest on July 18, 1995 and that his
untimely death was so painful and that she could not provide
her children with sustenance. She asked for the amount of
₱200,000.00 for her to be able to send her children to school.
On his part, Talampas interposed self-defense and accident.
He insisted that his enemy had been Eduardo Matic
(Eduardo), not victim Ernesto Matic (Ernesto); that Eduardo,
who was then with Ernesto at the time of the incident, had
had hit him with a monkey wrench, but he had parried the
blow; that he and Eduardo had then grappled for the monkey
wrench; that while they had grappled, he had notice that
Eduardo had held a revolver; that he had thus struggled with
Eduardo for control of the revolver, which had accidentally
fired and hit Ernesto during their struggling with each other;
that the revolver had again fired, hitting Eduardo in the thigh;
that he had then seized the revolver and shot Eduardo in the
head; and that he had then fled the scene when people had
started swarming around.
Ruling of the RTC
On June 22, 2004, the RTC, giving credence to the testimony
of eyewitness Jose Sevilla, found Talampas guilty beyond
reasonable doubt of homicide,5 and disposed:
WHEREFORE, premises considered, the court finds the
accused guilty beyond reasonable doubt of the crime of
Homicide, with one mitigating circumstance of voluntary
surrender, and hereby sentences him to suffer an
indeterminate penalty of IMPRISONMENT ranging from TEN
(10) years and One (1) day of prision mayor, as minimum, to
FOURTEEN (14) years and EIGHT (8) months of reclusion
temporal, as maximum. He is likewise ordered to pay the
heirs of Ernesto Matic y Masinloc the following sums, to wit:
 1. ₱50,000.00 – as and for death indemnity;
2. ₱50,000.00 – as and for moral damages;
3. ₱25,000.00 – as and for actual damages; and
4. ₱30,000.00 – as and for temperate damages.
Furnish Public Prosecutor Nofuente, Atty. Navarroza, the
private complainant and accused with a copy of this decision.
SO ORDERED.6
Ruling of the CA
Talampas appealed to the CA, contending that:
I sway of our will, and although it comes about through some
THE COURT A QUO GRAVELY ERRED IN FINDING
THAT THE GUILT OF THE ACCUSED-APPELLANT FOR
THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN NOT FINDING
THAT THE DEATH OF ERNESTO MATIC WAS MERELY
ACCIDENTAL.
III
THE COURT A QUO GRAVELY ERRED IN NOT FINDING
THAT THE ACCUSED-APPELLANT ACTED IN DEFENSE
OF HIMSELF WHEN HE GRAPPLED WITH EDUARDO
MATIC.
Still, the CA affirmed the conviction based on the RTC’s
factual and legal conclusions, and ruled that Talampas, having
invoked self-defense, had in effect admitted killing Ernesto
and had thereby assumed the burden of proving the
elements of self-defense by credible, clear and convincing
evidence, but had miserably failed to discharge his burden.7
The CA deleted the award of temperate damages in view of
the awarding of actual damages, pointing out that the two
kinds of damages were mutually exclusive.8
Issue
Hence, Talampas is now before the Court, continuing to insist
that his guilt was not proven beyond reasonable doubt, and
that the lower courts both erred in rejecting his claim of self-
defense and accidental death.
Ruling
The petition for review is denied for lack of merit.
Firstly, the elements of the plea of self-defense are: (a)
unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to prevent or repel the
unlawful aggression; and (c) lack of sufficient provocation on
the part of the accused in defending himself. 9
In the nature of self-defense, the protagonists should be the
accused and the victim. The established circumstances
indicated that such did not happen here, for it was Talampas
who had initiated the attack only against Eduardo; and that
Ernesto had not been at any time a target of Talampas’
attack, he having only happened to be present at the scene of
the attack. In reality, neither Eduardo nor Ernesto had
committed any unlawful aggression against Talampas. Thus,
Talampas was not repelling any unlawful aggression from the
victim (Ernesto), thereby rendering his plea of self-defense
unwarranted.
20
Secondly, Talampas could not relieve himself of criminal
liability by invoking accident as a defense. Article 12(4) of the
Revised Penal Code,10 the legal provision pertinent to
accident, contemplates a situation where a person is in fact in
the act of doing something legal, exercising due care,
diligence and prudence, but in the process produces harm or
injury to someone or to something not in the least in the
mind of the actor – an accidental result flowing out of a legal
act.11 Indeed, accident is an event that happens outside the
act of our will, it lies beyond the bounds of humanly
foreseeable consequences.12 In short, accident presupposes
the lack of intention to commit the wrong done.
The records eliminate the intervention of accident. Talampas
brandished and poked his revolver at Eduardo and fired it,
hitting Eduardo, who quickly rushed to seek refuge behind
Ernesto. At that point, Talampas fired his revolver thrice. One
shot hit Ernesto at the right portion of his back and caused
Ernesto to fall face down to the ground. Another shot hit
Eduardo on the nape, causing Eduardo to fall on his back.
Certainly, Talampas’ acts were by no means lawful, being a
criminal assault with his revolver against both Eduardo and
Ernesto.
And, thirdly, the fact that the target of Talampas’ assault was
Eduardo, not Ernesto, did not excuse his hitting and killing of
Ernesto. The fatal hitting of Ernesto was the natural and
direct consequence of Talampas’ felonious deadly assault
against Eduardo. Talampas’ poor aim amounted to aberratio
ictus, or mistake in the blow, a circumstance that neither
exempted him from criminal responsibility nor mitigated his
criminal liability. Lo que es causa de la causa, es causa del mal
causado (what is the cause of the cause is the cause of the
evil caused).13 Under Article 4 of the Revised Penal
Code,14 criminal liability is incurred by any person committing
a felony although the wrongful act done be different from
that which he intended.
Nonetheless, the Court finds the indeterminate sentence of
10 years and one day of prision mayor, as minimum, to 14
years and eight months, as maximum, legally erroneous.
The penalty for homicide under Article 246 of the Revised
Penal Code is reclusion temporal.1avvphi1 Under Section 1 of
the Indeterminate Sentence Law,15 the court, in imposing a
prison sentence for an offense punished by the Revised Penal
Code, or its amendments, is mandated to prescribe an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the Revised Penal Code,
and the minimum term shall be within the range of the
penalty next lower to that prescribed by the Revised Penal
Code for the offense. With the absence of aggravating or
mitigating circumstances, the imposable penalty is reclusion
temporal in its medium period, or 14 years, eight months,
and one day to 17 years and four months. This is pursuant to
Article 64 of the Revised Penal Code.16 It is such period that
the maximum term of the indeterminate sentence should be
reckoned from. Hence, limiting the maximum term of the
indeterminate sentence at only 14 years and eight months
contravened the express provision of the Indeterminate
Sentence Law, for such penalty was within the minimum
period of reclusion temporal. Accordingly, the Court must add
one day to the maximum term fixed by the lower courts.
The Court finds to be unnecessary the increment of one day
as part of the minimum term of the indeterminate sentence.
It may be true that the increment did not constitute an error,
because the minimum term thus fixed was entirely within the
parameters of the Indeterminate Sentence Law. Yet, the
addition of one day to the 10 years as the minimum term of
the indeterminate sentence of Talampas may occasion a
degree of inconvenience when it will be time for the penal
administrators concerned to consider and determine whether
Talampas is already qualified to enjoy the benefits of the
Indeterminate Sentence Law. Hence, in order to simplify the
computation of the minimum penalty of the indeterminate
sentence, the Court deletes the one-day increment from the
minimum term of the indeterminate sentence.
WHEREFORE, the Court AFFIRMS the decision promulgated
on August 16, 2007 finding VIRGILIO TALAMPAS y MATIC
guilty beyond reasonable doubt of the crime of homicide, and
IMPOSES the indeterminate sentence of 10 years of prision
mayor, as minimum, to 14 years, eight months, and one day
of reclusion temporal, as maximum.
The petitioner shall pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

21
22
 Republic of the Philippines Julio C. Guillen was placed under constant observation since
SUPREME COURT admission. There was not a single moment during his whole
Manila 24 hours daily, that he was not under observation.

EN BANC The motive behind the commission of the crime is stated

above. The veracity of this motivation was determined in the
G.R. No. L-1477 January 18, 1950 Narcosynthesis. That the narco-synthesis was successful was
checked up the day after the test. The narco-synthesis proved
not only reveal any conflict or complex that may explain a
delusional or hallucinatory motive behind the act.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Our observation and examination failed to elicit any sign or
JULIO GUILLEN, defendant-appellant. symptom of insanity in Mr. Julio C. Guillen. He was found to
be intelligent, always able to differentiate right from wrong,
fully aware of the nature of the crime he committed and is
Mariano A. Albert for appellant.
equally decided to suffer for it in any manner or form.
Office of the Solicitor General Felix Bautista Angelo and
Solicitor Francisco A. Carreon for appellee.
His version of the circumstances of the crime, his conduct and
conversation relative thereto, the motives, temptations and
PER CURIAM, J.:
provocations that preceded the act, were all those of an
individual with a sound mind.
This case is before us for review of, and by virtue of appeal
from, the judgment rendered by the Court of First Instance of
On the other hand he is an man of strong will and conviction
Manila in case No. 2746, whereby Julio Guillen y Corpus, or
and once arriving at a decision he executes, irrespective of
Julio C. Guillen, is found guilty beyond reasonable doubt of
consequences and as in this case, the commission of the act
the crime of murder and multiple frustrated murder, as
at Plaza Miranda.
charged in the information, and is sentenced to the penalty of
death, to indemnify the of the deceased Simeon Valera (or
Barrela) in the sum of P2,000 and to pay the costs. What is of some interest in the personality of Julio C. Guillen
is his commission of some overt acts. This is seen not only in
the present instance, but sometime when an employee in la
Upon arraignment the accused entered a plea of not guilty to
Clementina Cigar Factory he engaged in a boxing bout Mr.
the charges contained in the information.
Manzano, a Span-wanted to abuse the women cigar makers,
and felt it his duty to defend them. One time he ran after a
Then the case was tried in one of the branches of the Court of
policeman with a knife in hand after being provoked to a fight
First Instance of Manila presided over by the honorable
several times. He even challenged Congressman Nueno to a
Buenaventura Ocampo who, after the submission of the
fight sometime before when Mr. Nueno was running for a
evidence of the prosecution and the defense, rendered
seat in the Municipal Board of the City of Manila, after
judgment as above stated.
hearing him deliver one of his apparently outspoken
speeches.
In this connection it should be stated that, at the beginning of
the trial and before arraignment, counsel de oficio for the
All these mean a defect in his personality characterized by a
accused moved that the mental condition of Guillen be
weakness of censorship especially in relation to
examined. The court, notwithstanding that it had found out
rationalization about the consequences of his acts.
from the answers of the accused to questions propounded to
him in order to test the soundness of his mind, that he was
In view of the above findings it is our considered opinion that
not suffering from any mental derangement, ordered that
Julio C. Guillen is not insane but is an individual with a
Julio Guillen be confined for Hospital, there to be examined
personality defect which in Psychiatry is termed,
by medical experts who should report their findings
Constitutional Psychopathic Inferiority.
accordingly. This was done, and, according to the report of
the board of medical experts, presided over by Dr. Fernandez
of the National Psychopathic Hospital, Julio Guillen was not Final Diagnosis
insane. Said report (Exhibit L), under the heading
"Formulation and Diagnosis," at pages 13 and 14, reads: Not insane: Constitutional Psychopathic Inferiority, without
psychosis.
FORMULATION AND DIAGNOSIS

23
In view of the above-quoted findings of the medical board,
and notwithstanding the contrary opinion of one Dr. Alvarez,
who was asked by the defense to give his opinion on the
matter, the court ruled that Guillen, not being insane, could
be tired, as he was tired, for the offenses he committed on
the date in question.
THE FACTS
Upon careful perusal of the evidence and the briefs
submitted by counsel for the accused, the Solicitor General
and their respective memoranda, we find that there is no
disagreement between the prosecution and the defense, as
to the essential facts which caused the filing of the present
criminal case against this accused. Those facts may be stated
as follows:
On the dates mentioned in this decision, Julio Guillen y
Corpus, although not affirmed with any particular political
group, has voted for the defeated candidate in the
presidential elections held in 1946. Manuel A. Roxas, the
successful candidate, assumed the office of President of the
Commonwealth and subsequently President of the President
of the Philippine Republic. According to Guillen, he became
disappointed in President Roxas for his alleged failure to
redeem the pledges and fulfill the promises made by him
during the presidential election campaign; and his
disappointment was aggravated when, according to him,
President Roxas, instead of looking after the interest of his
country, sponsored and campaigned for the approval of the
so-called "parity" measure. Hence he determined to
assassinate the President.
After he had pondered for some time over the ways and
means of assassinating President Roxas, the opportunity
presented itself on the night of March 10, 1947, when at a
popular meeting held by the Liberal Party at Plaza de
Miranda, Quiapo, Manila attended by a big crowd, President
Roxas, accompanied by his wife and daughter and
surrounded by a number of ladies and gentlemen prominent
in government and politics, stood on a platform erected for
that purpose and delivered his speech expounding and trying
to convince his thousand of listeners of the advantages to be
gained by the Philippines, should the constitutional
amendment granting American citizens the same rights
granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the
accomplishment of his purpose, but having lost said firearm,
which was duly licensed, he thought of two hand grenades
which were given him by an American soldier in the early
days of the liberation of Manila in exchange for two bottles of
whisky. He had likewise been weighing the chances of killing
President Roxas, either by going to Malacañan, or following
his intended victim in the latter's trips to provinces, for
instance, to Tayabas (now Quezon) where the President was
24
scheduled to speak, but having encountered many
difficulties, he decided to carry out his plan at the pro-parity
meeting held at Plaza de Miranda on the night of March 10,
1947.
On the morning of that he went to the house of Amando
Hernandez whom he requested to prepare for him a
document (Exhibit B), in accordance with their pervious
understanding in the preceding afternoon, when they met at
the premises of the Manila Jockey Club on the occasion of an
"anti-parity" meeting held there. On account of its materially
in this case, we deem it proper to quote hereunder the
contents of said document. An English translation (Exhibit B-
2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived
it, I planned it, and I carried it out all by myself alone. It took
me many days and nights pondering over this act, talking to
my own conscience, to my God, until I reached my
conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And
had I expected to lives to spare, I would not have hesitated
either ton sacrifice it for the sake of a principle which was the
welfare of the people.
Thousands have died in Bataan; many more have mourned
the loss of their husbands, of their sons, and there are
millions now suffering. Their deeds bore no fruits; their hopes
were frustrated.
I was told by my conscience and by my God that there was a
man to be blamed for all this: he had deceived the people, he
had astounded them with no other purpose than to entice
them; he even went to the extent of risking the heritage of
our future generations. For these reasons he should not
continue any longer. His life would mean nothing as
compared with the welfare of eighteen million souls. And
why should I not give up my life too if only the good of those
eighteen million souls.
These are the reasons which impelled me to do what I did
and I am willing to bear up the consequences of my act. I t
matters not if others will curse me. Time and history will
show, I am sure, that I have only displayed a high degree of
patriotism in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B),
made at the request of Guillen by his nephew, was handed to
him only at about 6 o'clock in the afternoon of March 10,
1947, for which reason said Exhibit B-1 appears unsigned,
because he was in a hurry for that meeting at Plaza de
Miranda.
When he reached Plaza de Miranda, Guillen was carrying two
hand grenades concealed in a paper bag which also contained
peanuts. He buried one of the hand grenades (Exhibit D), in a
plant pot located close to the platform, and when he decided
to carry out his evil purpose he stood on the chair on which
he had been sitting and, from a distance of about seven
meters, he hurled the grenade at the President when the
latter had just closed his speech, was being congratulated by
Ambassador Romulo and was about to leave the platform.
General Castañeda, who was on the platform, saw the
smoking, hissing, grenade and without losing his presence of
mind, kicked it away from the platform, along the stairway,
and towards an open space where the general thought the
grenade was likely to do the least harm; and, covering the
President with his body, shouted to the crowd that everybody
should lie down. The grenade fell to the ground and exploded
in the middle of a group of persons who were standing close
to the platform. Confusion ensued, and the crowd dispersed
in a panic. It was found that the fragments of the grenade
had seriously injured Simeon Varela (or Barrela ) — who died
on the following day as the result of mortal wounds caused
by the fragments of the grenade (Exhibits F and F-1) —
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police Department
about two hours after the occurrence. It appears that one
Angel Garcia, who was one spectators at that meeting, saw
how a person who was standing next to him hurled an object
at the platform and, after the explosion, ran away towards a
barber shop located near the platform at Plaza de Miranda.
Suspecting that person was the thrower of the object that
exploded, Garcia went after him and had almost succeeded in
holding him, but Guillen offered stiff resistance, got loose
from Garcia and managed to escape. Garcia pursued him, but
some detectives, mistaking the former for the real criminal
and the author of the explosion, placed him under arrest. In
the meantime, while the City Mayor and some agents of the
Manila Police Department were investigating the affair, one
Manuel Robles volunteered the information that the person
with whom Angel Garcia was wrestling was Julio Guillen; that
he (Manuel Robles) was acquainted with Julio Guillen for the
previous ten years and had seen each other in the plaza a few
moments previous to the explosion.
25
The police operatives interrogated Garcia and Robles, and
Julio Guillen was, within two hours after the occurrence,
found in his home at 1724 Juan Luna Street, Manila, brought
to the police headquarters and identified by Angel Garcia, as
the same person who hurled towards the platform the object
which exploded and whom Garcia tried to hold when he was
running away.
During the investigation conducted by the police he readily
admitted his responsibility, although at the same time he
tried to justify his action in throwing the bomb at President
Roxas. He also indicated to his captors the place where he
had hidden his so called last will quoted above and marked
Exhibit B, which was then unsigned by him and subsequently
signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police
where he had buried (Exhibit C-1) the other hand grenade
(Exhibit D), and, in the presence of witnesses he signed a
statement which contained his answers to question
propounded to him by Major A. Quintos of the Manila Police,
who investigated him soon after his arrest (Exhibit E). From a
perusal of his voluntary statement, we are satisfied that it
tallies exactly with the declarations and made by him on the
witness stand during the trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant,
several errors are assigned allegedly committed by the trial
court, namely: first, "in finding the appellant guilty of murder
for the death of Simeon Varela"; second, "in declaring the
appellant guilty of the complex crime of murder and multiple
frustrated murder"; third, "in applying sub-section 1 of article
49 of the Revised Penal Code in determining the penalty to be
imposed upon the accused"; andfourth, "in considering the
concurrence of the aggravating circumstances of nocturnity
and of contempt of public authorities in the commission of
crime."
The evidence for the prosecution, supported by the brazen
statements made by the accused, shows beyond any shadow
of doubt that, when Guillen attended that meeting, carrying
with him two hand grenades, to put into execution his
preconceived plan to assassinate President Roxas, he knew
fully well that, by throwing one of those two hand grenades
in his possession at President Roxas, and causing it to
explode, he could not prevent the persons who were around
his main and intended victim from being killed or at least
injured, due to the highly explosive nature of the bomb
employed by him to carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions
propounded by the trial judge (page 96 of transcript)
supports our conclusion. He stated that he performed the act
voluntarily; that his purpose was to kill the President, but that
it did not make any difference to him if there were some
people around the President when he hurled that bomb,
because the killing of those who surrounded the President
was tantamount to killing the President, in view of the fact
that those persons, being loyal to the President being loyal to
the President, were identified with the latter. In other word,
although it was not his main intention to kill the persons
surrounding the President, he felt no conjunction in killing
them also in order to attain his main purpose of killing the
President.
The facts do not support the contention of counsel for
appellant that the latter is guilty only of homicide through
reckless imprudence in regard to the death of Simeon Varela
and of less serious physical injuries in regard to Alfredo Eva,
Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he
should be sentenced to the corresponding penalties for the
different felonies committed, the sum total of which shall not
exceed three times the penalty to be imposed for the most
serious crime in accordance with article 70 in relation to
article 74 of the Revised Penal Code.
In throwing hand grenade at the President with the intention
of killing him, the appellant acted with malice. He is therefore
liable for all the consequences of his wrongful act; for in
accordance with article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing felony (delito)
although the wrongful act done be different from that which
he intended. In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident
of another act performed without malice. (People vs. Sara, 55
Phil., 939.) In the words of Viada, "in order that an act may be
qualified as imprudence it is necessary that either malice nor
intention to cause injury should intervene; where such
intention exists, the act should qualified by the felony it has
produced even though it may not have been the intention of
the actor to cause an evil of such gravity as that produced.'
(Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.)
And, as held by this Court, a deliberate intent to do an
unlawful act is essentially inconsistent with the idea of
reckless imprudence. (People vs. Nanquil, 43 Phil., 232.)
Where such unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be considered as
reckless imprudence. (People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of
the Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el
estanco de B a comprar tabaco, y habiendose negado este a
darselo al fiado, se retira a quel sin mediar entre ambos
disputa alguna; pero; trnscurrido un cuarto de hora,
hallandose el estanquero despachando a C, se oye la
detonacion de un arma de fuego disparada por A desde la
calle, quedando muertos en el acto C y el estanquero;
supuesta la no intencion en A de matar a C y si solo al
26
estanquero, cabe calificar la muerte de este de homicidio y la
de c de imprudencia temeraria? — La Sala de lo Criminal de la
Auudiencia de Granada lo estimo asi, y condeno al procesado
a catorse anos de reclusion por el homivcidio y a un año de
prision correctional por la imprudencia. Aparte de que la
muerte del estanquero debio calificarse de assesinato y no de
homicidio, por haberse ejecutado con aleviosa. es evidente
que la muerte de C, suponiendo que no se propusiera
ejecutaria el procesado, no pudo calificarse de imprudencia
teme raria, sino que tambien debio declararsele responsable
de la misma, a tenor de lo puesto en este apartado ultimo del
articulo; y que siendo ambas muertes producidas por un solo
hecho, o sea por un solo disparo, debio imponerse al reo la
pena del delito de asesinato en el grado maximo, a tenor de
lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte.
Se ve, pues, claramente que en el antedicha sentencia, aparte
de otros articulos del Codigo, se infringio por la Sala la
disposicion de este apartado ultimo del articulo muy
principalmente, y asi lo declaro el Tribunal Supremo en S. de
18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed.,
p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. — When a single act
constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period.
We think it is the above-quoted article and not paragraph 1 of
article 49 that is applicable. The case before us is clearly
governed by the first clause of article 48 because by a single
act, that a throwing highly explosive hand grenade at
President Roxas, the accused committed two grave felonies,
namely: (1) murder, of which Simeon Varela was the victim;
and (2) multiple attempted murder, of which President Roxas,
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang
were the injured parties.
The killing of Simeon Varela was attended by the qualifying
circumstance of treachery. In the case of People vs. Mabug-
at, supra, this court held that the qualifying circumstance of
treachery may be properly considered, even when the victim
of the attack was not the one whom the defendant intended
to kill, if it appears from the evidence that neither of the two
persons could in any manner put up defense against the
attack, or become aware of it. In the same case it was held
that the qualifying circumstance of premeditation may not be
properly taken into the account when the person whom the
defendant proposed to kill was different from the one who
became his victim.
There can be no question that the accused attempted to kill
President Roxas by throwing a hand grenade at him with the
intention to kill him, thereby commencing the commission of
a felony by over acts, but he did not succeed in assassinating
him "by reason of some cause or accident other than his own
spontaneous desistance." For the same reason we qualify the
injuries caused on the four other persons already named as
merely attempted and not frustrated murder.

In this connection, it should be stated that , although there is

abundant proof that , in violation of the provisions of article
148 of the Revised Penal Code, the accused Guillen has
committed among others the offense of assault upon a
person in authority, for in fact his efforts were directed
towards the execution of his main purpose of eliminating
President Roxas for his failure to redeem his electoral
campaign promises, by throwing at him in his official capacity
as the Chief Executive of the nation the hand grenade in
question, yet, in view of the appropriate allegation charging
Guillen with the commission of said offense, we shall refrain
making a finding to that effect.

The complex crimes of murder and multiple attempted

murder committed by the accused with the single act of
throwing a hand grenade at the President, was attended by
the various aggravating circumstances alleged in the
information, without any mitigating circumstance. But we do
not deem it necessary to consider said aggravating
circumstances because in any event article 48 of the Revised
Penal Code above-quoted requires that the penalty for the
most serious of said crimes be applied in its maximum period.
The penalty for murder is reclusion temporal in its maximum
period to death. (Art. 248.)

It is our painful duty to apply the law and mete out to the
accused the extreme penalty provided by it upon the facts
and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no

alternative but to affirm it, and we hereby do so by a
unanimous vote. The death sentence shall be executed in
accordance with article 81 of the Revised Penal Code, under
authority of the Director of Prisons, on such working day as
the trial court may fix within 30 days from the date the record
shall have been remanded. It is so ordered.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason,

Montemayor, Reyes and Torres, JJ., concur.

27
28
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4935 October 25, 1909
THE UNITED STATES, plaintiff-appellee,
vs.
JAMES L. BROBST, defendant-appellant.
Kincaid and Hurd for appellant.
Attorney-General Villamor for appellee.
CARSON, J.:
The defendant, James L. Brobst, and another American
named Mann, were engaged in work on a mine located in the
municipality of Masbate, where they gave employment to a
number of native laborers. Mann discharged one of these
number of native laborers. Mann discharged one of these
laborers named Simeon Saldivar, warned him not to come
back on the premises, and told the defendant not to employ
him again, because he was a thief and a disturbing element
with the other laborers. A few days afterwards, some time
after 6 o'clock on the morning of the 10th of July, 1907,
Saldivar, in company with three of four others, went to the
mine to look for work. The defendant, who at that time was
dressing himself inside his tent, which was erected on the
mining property, when he caught sight of Saldivar, ordered
him off the place, exclaiming in bad Spanish, "Sigue,
Vamus!" (Begone). Saldivar made no move to leave, and
although the order was repeated, merely smiled or grinned at
the defendant, whereupon the latter became enraged, took
three steps toward Saldivar, and struck him a powerful blow
with his closed fist on the left side, just over the lower ribs, at
the point where the handle of Saldivar's bolo lay against the
belt from which it was suspended. On being struck, Saldivar
threw up his hands, staggered. (dio vueltas — spun around
helplessly) and without saying a word, went away in the
direction of his sister's house, which stood about 200 yards
(100 brazas) away, and about 100 feet up the side of a hill. He
died as he reached the door of the house, and was buried
some two or three days later.
The trial court found the defendant guilty of the crime of
homicide (homicidio), marked with extenuating
circumstances, defined in subsections 3 and 7 of article 9 of
the Penal Code, in that the defendant "had no intention of
committing so grave an injury as that which he inflicted," and
that he struck the blow "under such powerful excitement as
would naturally produce entire loss of reason and self-
29
control." Sentence of six years and one day of prision
mayor was imposed, and from this sentence defendant
appealed to this court.
Counsel for the appellant, relying mainly on appellant's claim
that he did not strike Saldivar, and that he merely pushed him
lightly with the black of his open hand, and relying also on the
lack of satisfactory proof of the existence of lesions or
external marks of violence on the body of the deceased,
contend: first, that the evidence fails to sustain a finding that
the deceased came to his death as a result of injuries inflicted
by the defendant; and, second, that even if it be a fact that
the defendant, in lying his hand upon the deceased,
contributed to his death, nevertheless, since the defendant
had a perfect right to eject the deceased from the mining
property, he can not be held criminally liable for
unintentional injuries inflicted in the lawful exercise of this
right.
Two witnesses, Dagapdap and Yotiga, who were standing
close by the time, swore positively that the blow was
delivered with the closed fist, from the shoulder (de dentro
para fuera), and that it was a hard blow; Dagapdap testifying
that, "Al pegar el puñetazo, Simeon dio vuelta, y despues se
marcho (when the blow was struck, Simeon staggered and
afterwards went away); and Yotiga that "despues de dar el
golpe se retrocedio y levanto los brazos"(after the blow was
struck, he backed away and threw up his arms). The
testimony of these witnesses is clear, positive, and definite
and is wholly uncontradicted, excepted for the improbable
story told by the accused in his own behalf, when he testified
that seeing Saldivar standing outside his tent, he told him
twice to go away and then stepped up to him and pushed him
lightly with the back of his hand, which came in contact with
the handle of Saldivar's bolo, but not with sufficient force to
push him back or do him any injury. If it had been necessary
to use force to compel Saldivar to leave the place, it is at least
highly improbable that the accused approaching him from the
front would have lightly placed the back of his open
right hand on Saldivar's left side, without attempting to seize
him, or to compel him to give around.
Pedro Leocampo, the only other witness called at the trial
who appears to have been present when the incident
occurred corroborated the testimony of the witness
Dagapdap and Yotiga as to all that occurred prior to the
actual infliction of the blow, which he did not see. He testified
that at the time when the accused, standing in his tent,
ordered the deceased to leave, he, the witness, was eating
his breakfast, with his back to the accused and the deceased;
that hearing the order, he turned his head and saw the
accused start toward the deceased with his arm outstretched,
but that at that moment he turned away and did not see the
accused actually come up to, strike or touch the deceased;
that when he saw the accused approaching the deceased, the
accused did not have his fist clenched, but that he could not
say whether the blow was struck with the open hand or the
closed fist, because at the moment when it is said the
accused came up to and touched or struck the deceased, the
witness's head was so turned that he could not and did not
see what took place.
No evidence was introduced at the trial which in any wise
tends to put in doubt the truth of the testimony of these
witnesses as to the fact that they were present at the time
when the place where the incident occurred; and of this fact
we are satisfied that there can be no reasonable doubt,
although, as frequently happens when ignorant witnesses are
testifying in the courts in these Islands, their evidence is
conflicting as to the precise hour by the clock when it took
place.
Some attempt is made to discredit the testimony of Yotiga,
because it appears from the record that in answer to certain
questions on his examination-in-chief, he stated that when
the blow was struck he was some hundred brazas(200 yards)
away. It developed, however, on examination by the trial
judge, that this answer was given under the impression that
the question asked was the distance from the mine to the
house of the sister of the deceased, as to which considerable
testimony was taken; and it is very clear from all the
testimony that both these witnesses were standing within a
few yards of the defendant when he struck the blow.
The testimony of Dagapdap is also criticized because, in
answer to the opening questions on the examination-in-chief,
he spoke of the blow inflicted as a bofetada (a slap with the
open hand on the cheek), which, later on in his testimony, he
changed to the word puñetazo (a blow with the fist), as a
result, it is intimated, of suggestive questions by counsel for
the prosecution. We do not think this criticism well founded,
or that the language of the witness on which it rests sustains
the inference sought to be drawn therefrom. In the first
place, it must be forgotten that the witness was manifestly an
ignorant man, unskilled in the use of words, and testifying in
a remote province in a native dialect; and that his testimony
was interpreted into the Spanish of the record by an
interpreter who might well have been mistaken in selecting
the precise Spanish equivalent of the word or words actually
used by the witness, and whose use of Spanish throughout
the record does not demonstrate such precision and nicety in
the use of words as to justify the laying of too much stress on
the phrasing adopted by him in the haste of interpretation in
the course of a trial: so that, in our opinion, the detailed
description of the manner in which the blow was inflicted, as
given by the witness without suggestion or assistance of any
kind, is much more decisive as to its nature than the word by
which reference to it was made. And in the second place, as
appears from the Diccionario Enciclopedico de la Lengua
Castellana and the Diccionario de la Lengua por la Academia
Española, the word "bofetada," when used strictly, connotes
not merely a blow with the open hand, but such a blow struck
30
on the cheek or side of the face, a meaning which the whole
testimony of the witness clearly discloses it was not his
intention to give to whatever word he did actually make use
of in referring to the act. The definition of the word
"bofetada," as given in the former dictionary, is "a blow
which is given on the cheek (mejilla) with the open hand,"
and in the latter is "a blow given with the open hand, on the
side of the face (carillo) or cheek (mejilla) of another."
It has also been suggested that the testimony of the
witnesses for the prosecution is inherently improbable,
because, as it is said, if the blow had been struck as described
by them, the injured person would necessarily have "doubled
up or over," and not, as appears from their testimony, thrown
up his hands and staggered away. No expert testimony was
introduced at the trial upon this point, and while it may,
perhaps, be admitted that if the blow took effect in the
abdominal region, common experience would justify us in
expecting as a result of the blow, that the injured person
would "double up or over," it must not be forgotten that the
blow having been delivered over the ribs on the left side, it
may as well have taken effect in the region of the heart; in
the absence of expert testimony we do not think that in the
event, evidence that the injured person threw up his hands
and staggered away is necessarily in conflict with the
evidence of the witnesses for the prosecution as to the
weight of the blow and the place where it was inflicted.
We are satisfied that the evidence of record leaves no room
for reasonable doubt that the defendant struck Saldivar a
powerful body blow with his closed fist; and that whatever
authority the defendant may have had to eject the deceased
from the mining property and to use physical force to that
end in case of need, the blow thus struck was far in excess of
such authority, and was, therefore, unlawful, and can not be
excused or justified as an exercise of necessary force in the
exercise of a right. The defendant's own testimony does not
indicate that there was any danger to be apprehended from
Saldivar, and there is nothing in the record which would
indicate that the defendant had reasonable ground to believe
that he would offer a violent or even a substantial resistance
to an attempt to expel him from the mining property.
We are satisfied also that the deceased came to his death as
a result of the blow inflicted by the defendant. Two or three
days prior to his death he was employed as a laborer in
defendant's mine; his sister testified that on the morning of
the day he died, he left her house in apparent good health
and went to the mines to look for work; a short time
afterwards he received a violent blow on his lower left side, a
region of the body where many of the vital organs are
located; and immediately thereafter, he stared up the short
trail leading to his sister's house, and died as he reached the
door. In the absence of evidence of any intervening cause, we
think there can be no reasonable doubt that his death
resulted from the blow.
Counsel for appellant suggest that death may have been the
result of some cause unknown, such as a fall, an assault by
robbers, or perchance a suicidal frenzy, intervening between
the time when the accused was last seen starting up 200-yard
trail to his sister's house, and the time when, as she testified,
he died just as he reached her door on his way back from the
mine; and that the accused is entitled to the benefit of the
doubt. But the doubt which must be decided in favor of an
accused person in a criminal trial is a reasonable doubt, and
not a mere whimsical and fanciful doubt, based upon
imagined but wholly improbable possibilities, unsupported by
evidence; and while we do not hold that it is absolutely and
morally impossible that some other cause could have
intervened to bring about the death of Saldivar, we do hold
that there can be no reasonable doubt in the mind of a
reasonable man that death was in fact brought about by the
blow inflicted by the accused, and was not the result of some
independent cause intervening during the very short period
of time prior to his death, during which he was not under
observation by witnesses called at the trial.
Counsel for the appellant enlarge on the fact that accepting
defendant's statement that he sent the deceased away from
the mines about a quarter past six, it would appear from the
testimony of the sister of the deceased that about two hours
may have elapsed between that time and the time when he
arrived at her house. The sister fixed the time of the arrival of
her brother at from 7 to 8 o'clock or possibly a little later; but
she appears to have been an ignorant woman who did not
know how to read the face of a clock, and it is quite clear that
hers was no more than a rough estimate, based on the height
of the sun, and the most that can fairly be inferred from the
testimony is that the deceased was struck early on the
morning in question, and that not long afterwards on the
same morning, he died at the door of his sister's house 200
yards away. But even if it be granted that two hours actually
did elapsed from the time the deceased left the mines, until
he reached his sister's house, this interval is not long enough
to materially weaken the inference that the death resulted
from the blow.
It is true that no autopsy was had on the body of the
deceased, and that a medical officer called in by the accused
who saw the body, but who does not appear to have
examined it very closely, certified that he found no outward
lesions or marks of violence; but this evidence is not sufficient
to negative the existence of internal lesions, for the medical
authorities inform us that death may and often does result
from a blow over or near the heart or in the abdominal
region, notwithstanding the fact that the blow leaves no
outward mark of violence; and there is evidence in the record
of the discovery on the cadaver of two suspicious black spots,
one about the place where the blow was struck, and another
at or near the umbilicus, though the evidence fails to disclose
the precise nature of these discolorations. (Medical
Jurisprudence, Taylor, 12th Am. Ed., pp. 310 and 388;
31
Moulin's Treatise on Surgery, Hamilton, part 2, chap. 1, p.
151; Tratado de Medicina Legal por Legran de Sulle, Vol. II,
pp. 206, 207.)
It has been suggested that the deceased may have had a
weak heart or some other diseased organ, and that but for
such physical defect death might not have ensued from the
mere force of the blow inflicted by the defendant. There is no
evidence to this effect, and on the contrary there is testimony
in the record that on the morning before he died he was in
apparent good health; and the fact that a few days before, he
was able to work in the mines, and that he came to the mines
that day in search of work, renders it highly improbable that
he was suffering at the time from any grave organic
weakness. But however this may have been, it has been
frequently and justly decided that where death results as a
direct consequence of the use of illegal violence, the mere
fact that the diseased or weakened condition of the injured
person contributed to his death, does not relieve the illegal
aggressor of criminal responsibility. (U. S. vs. Luciano, 2 Phil.
Rep., 96; U. S. vs. Montes, 6 Phil. Rep., 443; see also decisions
of supreme court of Spain, March 10, 1871, and June 26,
1980.)
Counsel for appellant also contend that even if it be granted
that in unlawfully exercising force upon the person of the
deceased, the appellant caused for contributed to his death,
nevertheless he should at most be convicted of homicidio por
imprudencia temeraria (homicide as a result of reckless
negligence), because, manifestly, the unlawful act was not
committed with the intent to kill, and as counsel contend, the
striking of the blow by the appellant was not an act adapted,
or likely (idóneo) to inflict a death wound under ordinary
circumstances, or reasonably calculated so to do. In support
of this contention counsel cite decisions of the supreme court
of Spain of November 9, 1885, February 10, 1876, July 5,
1888, and July 12, 1890, and appears to rely especially on the
former decision wherein sentence of homicidio por
imprudencia temeria was imposed, the court holding "que es
condición esencial del delito de homicidio, que el hecho
material de que resulte sea impulsado por voluntad libre
encaminada por acto idóneo a causar la muerte ó algun mal
fisico que por consecuencia natural la produzca."
In the case, however, it was proven, and the court found that
not only did the defendant not intend to kill the deceased but
also that he did not intend to do him any physical injury
whatever; but in the case at bar the evidence conclusively
establishes the voluntary, intentional, and unlawful infliction
by the accused of a severe blow on the person of the
deceased; and while it is true that the accused does not
appear to have intended to take the life of his victim, there
can no doubt that in thus striking the deceased, he intended
to do him some injury, at least to the extent of inflicting some
degree of physical pain upon him, and he is therefore,
criminally responsible for the natural, even if unexpected
results of his act, under the provisions of article 1 of the Penal
Code, which prescribes that —
Any person voluntarily committing a crime or misdemeanor
shall incur criminal liability, even though the wrongful act
committed be different from that which he had intended to
commit.
In such cases the law in these Islands does not excuse one
from liability for the natural consequences of hi illegal acts
merely because he did not intend to produce such
consequences, but it does take that fact into consideration as
an extenuating circumstance, as did the trial judge in this
case.
What has been said sufficiently disposes of all errors assigned
by counsel for appellant, except certain alleged errors of
procedure in the court below which we do not think it
necessary to discuss, because even if it be admitted that such
errors were committed, they do not appear to have in any
way wise prejudiced the substantial rights of the defendant.
The judgment of conviction and the sentence imposed by the
trial court be and are hereby affirmed, with the costs of this
instance against the appellant. So ordered. Arellano, C. J.,
Torres, and Mapa, JJ., concur.
Separate Opinions
MORELAND, J., dissenting:
The facts in this case, as claimed by the Government, are as
follows:
The defendant, James L. Brobst, and another American,
named Mann, were engaged in working a mine belonging to
them, located in the municipality of Masbate, where they
gave employment to a number of native laborers. Mann
discharged one of these laborers, named Simeon Saldivar,
ejected him forcibly from the premises and warned him not
to come back, and told the defendant not to employ him
again or permit him to be upon the premises because he was
a thief and a disturbing element with the other laborers. A
few days afterwards, at about 6 o'clock in the morning on or
about the 10th of July, 1907, Saldivar, in company with three
of four others, went to the mine ostensibly to look for work.
The defendant, who at that time was dressing himself inside
his tent, which was erected on the mining property, catching
sight of Saldivar, ordered him off the place. Saldivar made no
move to leave, and, although the order was repeated, still did
not leave, although he said and did nothing whatever;
whereupon, as claimed by the Government, the defendant
became enraged, took three steps towards Saldivar and
struck him a powerful blow with his fist on the left side, just
over the lower ribs. Saldivar turned around, without saying a
32
word, and went in the direction of his sister's house, which
stood about 200 yards away and about 100 feet up the side
of a hill. He was not seen by anybody after starting toward
the house. About two hours later, slightly more or less, he
came to the front door of the house in dying condition. He
died just after being carried into the house and was buried
two or three days later.
The trial court found the defendant guilty of the crime
homicide, marked with the extenuating circumstances
defined in subsections 3 and 7 article 9 of the Penal Code in
that the defendant had no intention of committing so grave
an injury as that which he inflicted and that he struck the
blow under such powerful excitement as would naturally
produce entire loss of reason and self-control. Sentence of six
years and one day of prision mayor was imposed, and from
this sentence the defendant appealed to this court.
The claim of the defendant is that was not enraged, that he
did not strike Saldivar, the decent, a blow with his fist or a
blow in any other manner, but that he simply stepped up to
the decedent, put his open hand against him and pushed him
gently backwards.
To secure a conviction it was necessary for the Government
to prove, first, that the defendant unlawfully injured the
decent, and, second, that the decedent died because of that
injury.
In this case the death is admitted. The cause of death is in
dispute. The Government seeks to prove the cause of death
by circumstantial evidence. The prosecution asserts that it
has proved by direct evidence a blow or push delivered by
the defendant to the person of the decedent, and, the
subsequent death being admitted, asks the court to make the
deduction that the one resulted from the other. No autopsy
was had. No examination of the body, either before or after
death, which merits the slightest consideration, was made by
the prosecution. No expert testimony worthy of the name
was produced by the Government as to the cause of death.
Such as was given is not wholly valueless, but positively
ridiculous.
The prosecution claims to have proved by reliable
evidence, and rest its case wholly upon that proposition, that
the defendant administered to the decedent a powerful blow
with the closed fist in the lower left side; that the death of
decedent occurred very soon thereafter, and that, therefore,
the irresistible inference is that the injury caused the death.
The claim of a proper conviction rests upon the proposition
laid down generally by the authorities that where there has
been inflicted an injury sufficient to produce death, followed
by the demise of the injured person, the presumption arises
that the injury was the cause of death, and, if no other cause
is suggested by the evidence, the conclusion becomes
practically irresistible and need not be corroborated by
expert testimony. It should be noted here, however, in order
to avoid confusion, that if there is no injury sufficient to
produce death, then that presumption does not arise and no
conclusion as to the cause of death can be indulged without
additional proof.
The first question to be decided in this case is, Was the blow
one which, in the ordinary acceptation of the term,
was sufficient to produce death? If it was, and that fact is
established by the evidence beyond a reasonable doubt, then
the conviction of the defendant might possibly be sustained
— a proposition not necessary to decide under my view of
the case. If it was not, then, there being an absolute failure of
proof as to the cause of death, the judgment of conviction
must reversed.
The resolution of this question depends, in this particular
case, wholly upon the nature and character of the blow
delivered.
After a very careful and through examination of the proof
adduced at the trial, I can not bring myself to believe that the
prosecution has established satisfactorily that the blow
complained of was sufficient to produce death.
I am not convinced that the claim of the Government that the
alleged blow was delivered with the clenched hand, or fist,
has been sustained. Three witnesses were sworn on behalf of
the Government to the question of the blow alleged to have
been delivered by the defendant to the decedent. One of
them, Pedro Leocampo, testified flatly and directly that the
push or blow (he does not designate by express words which
it was) was administered with the open hand. At page 19 and
following pages of the evidence he declares that, at the
beginning of the incident in question between the defendant
and the decedent, he had his back toward the participants,
eating his breakfast; that he heard the defendant say to the
decedent, "Fuera, go ahead, vamus," and immediately
turning his head he saw the defendant with his open hand
extending toward and touching the body of the decedent;
that he saw decedent then turn and walk away. Later, in
replying to questions put by the trial judge, he said he was
not quite sure whether the open hand of the defendant
actually touched decedent's body or not. It is unquestionable,
however, that the movement of the defendant's hand which
he saw was the blow or push which it is claimed caused the
fatal injury; because it is admitted by all, and the evidence
also on that point is undisputed, that what the witness saw
was at least the critical part of the incident — the delivery of
the alleged blow. Moreover, it is conceded that the alleged
blow was not delivered until after the defendant had uttered
the words referred to and had stepped forward at least one
pace: and it is nowhere asserted or claimed by anybody that
the defendant extended his hand toward the decedent more
than one or that more than one blow was given. It is evident,
therefore, that what the witness saw was the delivery of the
33
very blow or push which the prosecution claims was the
cause of death. If can not well be imagined, in view of the
testimony given by this witness, how the Government could
fairly claim otherwise. These conclusions are, I am convinced,
fully supported by the testimony as it is found in the record.
In answer to a question put by the fiscal on direct
examination he said:
T. Que estuve de espada con ellos y el americano no ha dicho
nada y momentos despues dijo: "fuera," "go ahead," le vi que
tenia la mano abierta y esta mano toco el cuerpo de Simeon,
pero no he visto como estaba.
After cross-examination the court questioned the witness as
follows:
J. ¿Oyo Vd. ruido de algun golpe cuando el acusado Brobst
dijo "fuera de aqui?" — T. No he oido el golpe.
J. En el momento de decir "fuera de aqui," ¿a que distancia
estaba Simeon del acusado? — T. A distancia de mas una
vara.
J. De modo que en aquel momento ¿estaba el occiso Simeon
al alcance del acusado Brobst? — T. Sí señor.
J. ¿Y vio Vd. al acusado empujar al occiso Simeon? — T. No
puedo decir si el acusado empujo a Simeon.
J. ¿Vio Vd. a Simeon Saldivar retroceder en el momento de
decir el acusado "fuera de aqui?" — T. He visto retroceder y
dar las espaldas.
J. Cuando hizo el ademan de empujarle, ¿como tenia el puno
— cerrado o abierto? — T. Tenia la mano abierta.
J. ¿En que forma? — T. Tenia abierta la mano.
The testimony of this witness clearly discloses the fact that he
saw the critical part of the event, that is, the part wherein the
hand of the defendant touched the body of the decedent in
the alleged blow. At that moment the hand of the defendant
was open.
The witness Miguel Yotiga, another witness called by the
Government, testified on page 2, 3, and 4 of the record that
during the month of July, 1907, he was at the place where the
dispute in question occurred. Then follow these questions
and answers, among others:
F. ¿Sabe Vd. si durante el mes de Julio de 1907 que estuvo
Vd. trabajando alli ha occurrido alguna cosa extraordinaria?
— T. Si senor.
F. ¿Que es? — T. El haber abofeteado el americano a un tao.
F. ¿Estaba Vd. presente? — T. Si, senor.
F. Relate Vd. fielmente en este juzgado todo lo que Vd. ha
presenciado desde el principio hasta el fin. — T. Yo he sido
asalariado por el para acarrear arroz. Cuando llegue en las
minas era ya de noche, y al requerir nuestro salario nos dijo
Cristóbal que nos dormiriamos alli porque el americano
estaba ya durmiendo y que Vds. pueden salir muy temprano
por la mañana. Se nos dio el salario por dijo que quedaramos
para desayunar. Despues de desayunar llegaron tambien 4
hombres; el cocinero me dijo: "Miguel presente Vd. a estos 4
hombres por si el Sr. Brobst los quiere emplear en el trabajo."
Los 4 individuos fueron uno tras otro. Yo dije al Sr. Brobst si
aun pueden trabajar esos 4 hombres. El Sr. Brobst se levanto
para ver a aquellos 4 hombres, al ultimo de los cuales le pego
una bofetada, y yo habia visto la bofetada que le dio en la
cintura en el bolo colocado en la cintura, e inmediamente el
hombre se dirigio a la casa de su hermana.
F. ¿A que distancia estaba Vda. de Mr. Brobst cuando dio
el puñetazo a aquel individuo? — T. Una distancia de 10
metros.
F. ¿Sabe Vd. por que el acusado habia dado puñetazo a
aquel? — T. Que yo le he visto pegar con bofetón, pero que
no se el motivo.
F. ¿Cruzaron entre ellos alguna disputa o rina antes que el
acusado haya dado el golpe? — T. No se nada, unicamente he
visto que cuando llegaba Mr. Brobst dio el puñetazo.
Later on the witness says, in reply to leading questions, that
the blow was struck with the closed hand and was a heavy
one.
It will be observed from this testimony that the witness, in
making his statement in narrative form and without the
influence which particular words in questions frequently
exerts on simple-minded witnesses, used
words abofeteado and bofetada in speaking of the kind blow
which the defendant administered to the decedent. The
word bofetada, as well as abofeteado, means a blow with the
open hand. It does not mean a severe blow, and particularly
not a blow with the fist or closed hand. It is much nearer in
character to a push than it is to a puñetazo, which is always a
blow with the fist. It is a light slap rather than a blow. It is the
diminutive of the word bofetón; that is to say, if it can be
called a blow at all, it is a gentle blow than would be signified
if the word bofetón were use. All of the dictionaries say
that puñetazo is a blow with the clenched hand, or fist, and
that bofetada is a blow with the openhand. The dictionaries
also say, in giving the definition of bofetón, that is the
aumentativo de bofetada. In his testimony on page 2, 3, and
4, the witness continually and persistently used the
word bofetada in describing the blow given by the defendant
to the decedent until the word puñetazo was suggested to
him or put into his mouth, as it were, by the questions of the
fiscal. Then the witness himself picked up the word and
thereafter used it. No amount or species of word torture can
make the word "slap" mean a blow with the fist. No more
can bofetada be made to mean puñetazo. A witness who, in
describing the same blow, first uses the word bofetada and
then, after suggestion, changes it to puñetazo, provokes a
contradiction in his testimony, which, if not explained,
militates strongly against his credibility. This is especially so
when the change in the word goes to the very essence of the
cause of action, as it does in this case. This whole case
depends upon the whether the word puñetazo or the
word bofetada correctly describes the event out of which this
action grows:
It is but repeating the general experience of those familiar
with the trial of causes to say that suggestions to a witness by
the form and specific wording of a question are of very
frequent occurrence. The suggestion produces the same
result whether willfully made and received or innocently
indulged, as was undoubtedly the case here on the part of
the fiscal. In the case of an ignorant or simple-minded
witness, his vocabulary being limited, he catches very readily,
as a rule, the words used by the interrogator and, in his
answers, uses the exact words in which the question is
propounded, without, perhaps, being in the least conscious
that the words he assumes do not exactly, sometimes not at
all closely, represent what he really wants to express. These
suggestions display one of the vices found by the courts in
what are termed "leading questions," and furnish a reason for
the rule uniformly enforced in trial courts that they will not
be permitted.
The questions and answers already quoted illustrate this
voice forcibly as to the use by the witness Yotiga of the
words bofetada and puñetazo. On page 5 of the evidence
occurs another illustration. There the fact sought to be
elicited was whether the blow was gentle or severe. "F. ¿Hizo
despacio o fuerte? — T. Fuerte." On pages 12, 19, and 24 the
the
following occurs:
F. ¿Donde toco — directamente en el cuerpo o en el bolo? —
T. Dio en el bolo.
F. ¿En que parte del bolo — en la vaina o en el puno? — T. En
el puno del bolo.
F. ¿Era fuerte el puñetazo ó flojo? — T. Fuerte.
F. Cuando el acusado pego a Simeon Saldivar, ¿estaba
riendose o estaba furioso? — T. Furioso.
F. ¿Tenia cerrado el puno o abierto la mano? — T. Cerrado la
mano.
34
In these illustrations, it will be observed, the witness is
presented by the questions with only two words to make use
of in answering — one word the very extreme in one
direction and other word the very extreme in the other. The
ignorant or simple-minded witness whose vocabulary is
extremely limited, who is unused to court proceedings, is
strongly tempted, and in many instances is virtually forced, to
accept one word or the other and thereby assume one
extreme or the other in making his answers, although the
word made use of may not within many degrees express his
real meaning. All of these questions were leading and
suggestive, and, judging from the testimony given anterior to
those questions, especially by the witness Yotiga, led to very
marked contradictions of, or, at least, changes in, the
evidence as previously presented.
The third and last witness for the Government who testified
as to the blow was Fermin Dagapdap. In describing the blow
this witness from the first used the word puñetazo. This
witness, however, stated that he was at the time of the
occurrence about 100 brazas (600 feet) from the participants.
Later in his testimony he attempts to claim that he gave
100 brazas as the distance which the decedent was from his
brother's house at the time of the occurrence. This, however,
is very difficult to believe in view of the evidence which he
gave, as shown on page 25, which follows:
F. ¿A qué distancia estaba Vd. de los dos cuando dio
el puñetazo? — T. Unas 100 brazas.
F. ¿Vd. estaba á 100 brazas de distancia? — T. Sí, señor.
F. Indique Vd. aqui la distancia aproximadamente de las
100 brazas que Vd. dice. — T. Aquella casa de techo de
hierro.
F. ¿Esa es la distancia donde Vd. estaba cuando dio
el puñetazo a Simeon Saldivar? — T. Sí, señor.
If, after all that questioning as to the distance he was away
from the scene of the occurrence, and if, after all the effort
which the fiscal evidently made to induce in him a proper
comprehension of the nature of the question, the witness did
not then understand, he displayed qualities, or the lack of
them, which justly lead to the conclusion that his testimony
ought not to be given any weight whatever, especially where
it is in conflict with the testimony of any witness more
reliable. Moreover, his manifest evasions on cross-
examination materially weaken any claim which may be
made in favor of his credibility.
These witnesses for the Government are in conflict in other
particulars. Yotiga declared that the incident occurred at
eight o'clock in the morning. Yotiga declared that it happened
while the workmen were eating breakfast; Dagapdap averred
35
that it took place after breakfast and while the men were
working.
It seems to me, therefore, that the direct testimony adduced
by the Government to prove that the defendant delivered
against the body of a decedent a blow with fist, is
conspicuously weak, particularly when we take into
consideration that one of the Government witnesses flatly
contradicts the other two in every important point; and that
testimony, taken in connection with all the circumstances
surrounding and accompanying the incident, seems rather to
support the testimony and claim of the defendant that he did
not strike the decedent with his fist but gave him a push with
his open hand.
The following are the said circumstances, present at the very
time the act complained of was committed, which go to
prove that the blow, alleged to have been delivered against
the body of the decedent, was not a blow at all in the real
sense of the word and was wholly insufficient ordinarily
speaking, to cause any injury whatever;
The decedent at the time showed absolutely no signs of
having been injured in the slightest degree.
(a) The three witnesses for the prosecution above referred to,
Yotiga, Dagapdap and Leocampo, if their testimony is to be
believed, unite in declaring that they were looking the
decedent full in the face when the alleged blow was struck
and that they saw thereon nothing but a perfectly natural
expression. There is not the slightest evidence to show that
the countenance of the decedent betrayed even the faintest
appearance of pain, distress or discomfort at the time the
blow was delivered or at any time thereafter so long as he
was observed.
(b) Nobody heard any blow struck. It is conceded by every
witness for the Government that there was no sound of a
blow. There were at the place where the incident occurred
about twenty men, all of them as close to the participants as
were the three witnesses for the Government and yet, so far
as can be gathered, only three of the twenty the sound of a
blow. In fact, only three of the twenty (the witnesses for the
Government) knew that anything unusual had happened at
all.
(c) The decedent gave no cry of pain, made no exclamation,
uttered no sound. This is the uncontradicted proof.
(d) The decedent did not reel or stagger backward, forward or
sideways, nor did he lose his equilibrium in any way.
This is established by uncontradicted proof. Every witness for
the Government declares that after the delivery of the
alleged blow the decedent remained in a perfectly upright
attitude and in a natural position; and that immediately after
receiving the blow he turned and walked away.
One of the witnesses, after being sharply questioned by the
fiscal, stated that on the delivery of the blow the decedent
stepped back, threw up his arms and walked away. The
following is his testimony:
El Sr. Brobst . . . le pego una bofetada y yo habia visto
la bofetada le dio en la cintura en el bolo colocado en la
cintura é inmediatamente el hombre se dirigió á la casa de su
hermana.
F. ¿En que posicion se quedo aquel individuo en el miso
momento de recibir el golpe? — T. Que inmediatamente de
haber recibido el puñetazo se marcho.
F. Yo le pregunto á Vd. en el miso momento de haber dado
el puñetazo.—T. Que despues de dar el golpe se retrocedio y
levanto los brazos y en seguida se marcho.
It will be observed, from the evidence quoted, that the
witness testified at first that the decedent did nothing on
receiving the blow except to turn and walk away. This
testimony the witness repeats in response to a second
question of the fiscal. The third question as to the same point
was evidently very sharply put by the fiscal, and that effort
drew from the witness the additional statement, quite
inconsistent with his two previous ones, that the decedent
stepped back and threw up his arms. Neither of the other two
witnesses for the Government saw this latter manifestation
on the part of the decedent. One of them, Leocampo,
testifies directly that no such thing happened, and other,
Dagapdap, although one of those who claimed to have been
an eyewitness of the whole affair and who assumed to
describe the whole incident in detail, fails to mention the very
important fact, if it is a fact, that the decedent threw up his
arms. He testified that the decedent simply whirled around
and walk away.
The claim of the prosecution that the decedent staggered at
the time of the alleged blow is based upon the translation of
"dió vueltas." One of the Government's witnesses says that
on the delivery of the blow the decedent "dió vueltas y se
marchó." So far as my researches go, no such interpretation
can be given those words. They do not mean that he
"staggered." They mean simply that he turned or whirled
around. This might follow a blow or a push. No other witness
uses these same words; but the other two witnesses for the
Government, in describing the same act of the decedent,
used words which, it may fairly be assumed, in order to
maintain as much harmony as possible in the testimony of
the Government's witnesses, were intended to mean the
same thing. Such words are "se dirigió á la casa," and "volví la
cara y se marchó el difunto." These words were used by the
other two Government witnesses in describing the very same
36
act to which the other Government witness applied the
description "dió vueltas." Those words can not possibly be
construed to mean that the decedent staggered.
(e) The decedent, according to the testimony of the
prosecution, did not attempt to ward off, dodge or escape
the blow in any way.
He had abundant opportunity to do so. It is nowhere denied,
but always admitted, that the defendant twice ordered the
decedent to leave the place and after delivering the order the
second time advanced toward him a pace or two. The
decedent was fully warned. Yet the witnesses of the
prosecution claim that, up to the time the blow touched him,
he made no move whatever. It is unbelievable that the
decedent would permit the defendant to walk up to him,
after due warning, and plant a powerful blow in his abdomen
without any effort to dodge or escape and without the
slightest effort to ward off the blow by movement of body,
hand, or arm. The throwing of the arms down to protect the
abdomen in such a case is involuntary and almost inevitable;
and the fact that he did not do so points strongly to the
conclusion that he was not struck as claimed.
(f) the body of decedent exhibited no external sign of injury
after death.
Two witnesses were sworn by the prosecution as to signs of
injury upon the body of the decedent. One, the father of
decedent, laborer, testified that at 4 o'clock of the afternoon
of the day after the alleged injury (the alleged injury occurred
at about 6 a. m.) he examined the body of decedent and
found a black spot about the size of a peso on the left side.
The other witness, Alejandro Santiago, 70 years, farmer and
herbalist, declared that he examined the body, he does not
remember when, and found a black spot on the ribs (he does
not remember on which side of the body) and another one on
the navel. The cause of these spots, if they really existed, is
pure speculation. Certainly one blow could not make both.
They may have been caused by the decedent falling or by
handling the body at the time or of subsequent to death, or
by ecchymosis. No one knows. Certain it is that an
examination of the body by a licensed physician, Hans Hoch,
made the day of the alleged injury, some hours thereafter,
disclosed, so the physician testified, absolutely no external
signs of injury is not conclusive that there was no injury, still
such signs are usual in cases of this character and their
absence is significant and important.
The weight of the testimony produced seems, therefore, to
be that there were no external signs of injury upon the body
of decedent — certainly none that were fairly traceable to
the blow, even if delivered in the manner and with the force
claimed by the Government.
It seems to me, therefore, that there is an essential and fatal
conflict in the evidence of the prosecution. The prosecution
claims (and portions of the direct testimony of some of its
witnesses tend to prove) that the defendant gave the
decedent a powerful blow with his fist, full in the left side; on
the other hand, other portions of the testimony are utterly
and destructively contradictory to that claim. It is contrary to
the universal experience of life to assert that a man, receiving
in his lower left side a powerful blow with the fist, a blow
which, it is claimed, was sufficiently forcible to cause death
within a short time, can maintain an erect and natural
posture and exhibit absolutely no signs of pain. Experience
also demonstrates that it is little short of the impossible that
one receiving such a blow would throw his arms up. I do not
believe a case can be cited where that has occurred. It is the
experience of mankind that under such circumstances the
person always throws his arms down. Such a blow in or about
the abdomen or in the lower ribs produces such a shock to
the nervous system, causes such a contraction of all the
muscles thereabouts, induces such a difficulty of respiration,
and such great pain, that the person so struck is not only
wholly unable to throw his arms up but he is absolutely
incapable of maintaining the body in an erect position. He
involuntarily and inevitably throws the arms down over the
abdomen and bends the body forward at the hips. In other
words, using a phrase which almost universal experience has
taught accurately describes the position necessarily assumed
by one receiving such a blow, he would "double up like a
jackknife." The claim that the blow was a powerful one
delivered with the fist is so utterly inconsistent with the
appearance and conduct of the decedent at the time of the
assault and subsequent thereto as to lead almost necessarily
to the conclusion that no such blows was struck. Granting
such a blow, it would be little short of the impossible, it
certainly would be most extraordinary, for the decedent to
exhibit no signs of pain, maintain an erect and natural
position, preserve perfectly his equilibrium with the
exception of stepping backward a little, turn in the ordinary
way and walk off the premises at his usual and natural gait
and with his usual and natural carriage. The entire absence of
symptoms or evidence of injury at the time of the
actcomplained of is, in my judgment, of the very gravest
importance. It speaks louder and stronger and clearer than all
the other evidence in the case as to whether or not the
decedent was actually injured at that time.
On the other hand, the theory and claim of the defendant,
that he simply stepped forward and pushed the decedent
backward lightly with the open hand, after ordering him to
leave, explains fully and satisfactorily every fact and every
circumstance above mentioned as being so utterly
inconsistent with the claim of the prosecution.
(1) It explains why the decedent did not try to dodge or
escape or protect himself by movement of the body, or by
using the hands and arms to defend himself from the assault
37
of this enraged and furious man. There was no violence from
which he needed to protect himself.
(2) It is explains why there was no cry of pain, no appearance
of distress, no reeling, staggering, falling, doubling up or
other exhibition or sign of injury. It explains why he did not at
once drop to the ground, as he naturally and almost
inevitably wound on receiving a blow such as is sought to be
established by the prosecution. There was no violence or
force to cause any of these things.
(3) It explains why decedent was able to walk away promptly
at his usual gait and with his customary carriage.
(4) It explains why there was no satisfactory proof of marks of
violence or external signs of injury on the body of the
decedent.
(5) It explains why no body of all who were present heard the
sound of a blow, not even the witnesses for the prosecution.
(6) It explains why, among the twenty persons there present,
only a very small per cent knew that anything unusual had
taken place.
(7) It explains why the witness Yotiga first used the word
"bofetada" instead of puñetazo" or "golpe."
(8) It explains why the witnesses Leocampo testified that the
defendant's hand was open at the very time of its contact
with decedent's person.
(9) It explains the entire lack of reason or motive on the part
of defendant inducing him to inflict on the decedent
punishment as severe as would follow such a blow.
It seems, therefore, to be demonstrated from the evidence
that the prosecution has not only not sufficiently
substantiated its claim that the blow was delivered with the
fist, but has failed as well to show that any blow, in the real
sense of that term, was struck. Rather the strong tendency of
the proof, taken as a whole, together with all the
circumstances is to support the contention of the defendant
that he simply pushed the decedent back with the open hand.
That being so, it is perfectly apparent that such an act was
utterly insufficient to produce death.
As stated at the outset, the Government rests its case wholly
upon the proposition laid down by the authorities that where
there has been inflicted an injury sufficient to produce death,
followed by the demise of the injured person, the
presumption arises that the injury was the cause of death,
and if no other cause is suggested by the evidence, the
conclusion becomes practically irresistible and need not be
corroborated by expert testimony. But it must always be
remembered that the basis of and the reason for that
presumption is the injury sufficient to produce death. If the
injury is not one capable of producing death, ordinarily
speaking, then no such presumption can possibly arise. The
law invariably requires that there be established by clearest
proof the connection between the injury and the death,
making the one the result of the other. Where the injury is
one capable of producing death that connection of cause and
effect is established between the injury and death by
the inherent nature of the act — its sufficiency to produce
death. But where the act is one not sufficient to produce
death, then the relation of cause and effect is not established
for the reason that the act fails of the very quality from which
the presumption of cause and effect springs, namely, its
capability of producing death. In such a case, when the
Government has proved simply the injury and death, it has
done nothing. The connection between the two is wholly
lacking. It is indispensable to a conviction in such case that
the Government prove the cause of death; and that cause
must be proved in addition to the fact of inquiry. This the
Government has wholly failed to do. No effort was made to
do so. The Government rested its case entirely upon the
presumption, which it assumed arose by reason of the inquiry
and death, to establish the relation of cause and effect
between them. No autopsy was held. No one knows the
cause of death. The incident occurred at about 6 clock a. m.
The decedent died at about 8 o'clock the same morning. He
left the scene of the event instantly. He was not seen again by
anybody, so far as the evidence shows, until the very moment
of his death. Where he was, what he did, and what happened
to him during the two hours intervening, the evidence does
not disclose.
It being fairly established by the evidence that the defendant
simply pushed the decedent, the remaining question is
simple. The land and premises were the event transpired
belonged to the defendant. The decedent, according to the
evidence, was known to the defendant as a thief and as a
marker of mischief among the workers in the mines. Only two
days before the event from which this suit arose defendant
had seen the decedent forcibly ejected from these the same
premises by one Mann, a partner of defendant; and the
defendant was at the time advised by Mann that the
decedent was a mischief-maker and a thief and should not be
allowed about the mines. The defendant had a right to
protect his property from invasion, particularly by such
person as he believed decedent to be; and if, being upon the
premises, defendant refused to leave when given fair
warning, the defendant had a right to eject him therefrom
using no more force then was necessary to that end. (Cooley,
Torts, 1st Ed., 167; McCarty vs. Fremont, 23 Cal., 196;
Woodman vs. Howell, 45 III., 367; Bucher vs. Parmelee, 9 Vt.,
352; People vs. Payne, 8 Cal., 341; People vs. Batchelder, 27
Cal., 69.)
38
That he did not use more force than was necessary is
established by the evidence as shown by the preceding
discussion.
Wills, on Circumstantial Evidence, says on page 291:
(3) In the proof of criminal homicide the true cause of death
must be clearly established; and the possibility of accounting
for the event by self-inflicted violence, accident of natural
cause, excluded; and only when it has been proven that no
other hypothesis will explain all the conditions of the case can
it be safely and justly concluded that it has been caused by
intentional injury. But, in accordance with the principles
which govern the proof of every other element of the corpus
delicti, it is not necessary that the cause of death should be
verified by direct and positive evidence; it is sufficient if it be
proven by circumstantial evidence, which produces a moral
conviction in the minds of the jury, equivalent to that which is
the result of positive and direct to that which is the result of
positive and direct evidence.
In the People vs. Bennett (49 N. Y., 144) the court said:
In determining a question of fact from circumstantial
evidence, there are two general rules to be observed: (1) The
hypothesis of delinquency or guilt should flow naturally from
the facts proved, and be consistent with them all. (2) The
evidence must be such as to exclude, to moral certainty,
every hypothesis but that of his guilt of the offense imputed
to him; or in other words, the facts proved must all be
consistent with the point to his guilt not only, but they must
be inconsistent with his innocence.
On an indictment for murder, the prosecutor must prove that
the blows caused the death; but, if he proves that the blows
were given by dangerous weapon — were followed
by insensibility or other alarming symptoms, and soon
afterward by death; this is sufficient to impose it on the
accused, to show that the death was occasioned by some
other cause. (U. S. vs. Wilterberger, Fed. Cas. No. 16738.)
On trial for murder, the State's failure to prove by what
means the deceased came to his death is fatal to its case.
(Cole vs. The State, 59 Ark., 50.)
In order that a defendant may be properly convicted by
circumstantial evidence, all the circumstances proved must
be consistent with each other, consistent with the hypothesis
that the accused is guilty, and, at the same time, inconsistent
with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt.
(12 Cyc., 488; U. S. vs. Reyes, 3 Phil. Rep., 3; People vs. Ward,
105 Cal., 335; Carlton vs. The People, 150 III., 181;
State vs. Vinson, 37 La. Ann., 792; Commonwealth vs. Costley,
188 Mass., 1; People vs. Aikin, 66 Mich., 460; U. S. vs. Reder,
69 Fed. Rep., 965.)

The judgment of conviction should be reversed, the

defendant declared not guilty and his discharge from custody
ordered.

Johnson, J., concurs.

39
40
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38773 December 19, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
GINES ALBURQUERQUE Y SANCHEZ, defendant-appellant.
Gibbs and McDonough and Roman Ozaeta, for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEÑA, C.J.:
The judgment appealed from finds the appellants Gines
Alburquerque guilty of the crime of homicide committed on
the person of Manuel Osma and sentences him to eight years
and one day of prision mayor, and to indemnify the heirs of
the deceased in the sum of P1,000, with costs.
The appellant herein, who is a widower of fifty-five years of
age and father of nine living children, has been suffering from
partial paralysis for some time, walks dragging one leg and
has lost control of the movement of his right arm. He has
been unable to work since he suffered the stroke of paralysis.
One of his daughters was named Maria and another, are
married, while still another one is a nun. With the exemption
of the other married daughter and the nun, of all of them,
including the appellant, live with Maria upon whom they
depend for support.
Among the daughters living with Maria, one named Pilar
became acquainted and had intimate relations later with the
deceased Manuel Osma about the end of the year 1928. It
was then that the appellant became acquainted with the
deceased who frequently visited Pilar in his house. The
relations between Pilar and the deceased culminated in
Pilar's giving birth to a child. The appellant did not know that
his daughter's relations with the deceased had gone to such
extremes, that he had to be deceived with the information
that she had gone to her godfather's house in Singalong,
when in fact she had been taken to the Chinese Hospital for
delivery. The appellant learned the truth only when Pilar
returned home with her child.
Naturally the appellant was deeply affected by this incident,
since which time he has appeared sad and worried not only
because of the dishonor it brought upon his family but also
because the child meant an added burden to Maria upon
whom they all depended for support. For some time the
41
appellant wrote letters, that at times were hostile and
threatening and at other times entreating the deceased to
legitimize his union with Pilar by marrying her, or at least, to
support her and his child. Although the deceased agreed to
give the child a monthly allowance by way of support, he
never complied with his promise.
The appellant was in such a mood when he presented himself
one day at the office where the deceased worked and asked
leave of the manager thereof to speak to Osma. They both
went downstairs. What happened later, nobody witnessed.
But the undisputed fact is that on that occasion the appellant
inflicted a wound at the base of the neck of the deceased,
causing his death.
After excluding the improbable portions thereof, the court
infers from the testimony of the appellant that he proposed
to said deceased to marry his daughter and that, upon
hearing that the latter refused to do so, he whipped out his
penknife. Upon seeing the appellant's attitude, the deceased
tried to seize him by the neck whereupon the said appellant
stabbed him on the face with the said penknife. Due to his
lack of control of the movement of his arm, the weapon
landed on the base of the neck of the deceased.
The trial court found that the appellant did not intend to
cause so grave an injury as the death of the deceased. We
find that his conclusion is supported by the evidence. In his
testimony the appellant emphatically affirmed that he only
wanted to inflict a wound that would leave a permanent scar
on the face of the deceased, or one that would compel him to
remain in the hospital for a week or two but never intended
to kill him, because then it would frustrate his plan of
compelling him to marry or, at least, support his daughter.
The appellant had stated this intention in some of his letters
to the deceased by way of a threat to induce him to accept
his proposal for the benefit of his daughter. That the act of
the appellant in stabbing the deceased resulted in the fatal
wound at the base of his neck, was due solely to the fact
hereinbefore mentioned that appellant did not have control
of his right arm on account of paralysis and the blow,
although intended for the face, landed at the base of the
neck.
Therefore, the mitigating circumstance of lack of intention to
cause so grave an injury as the death of the deceased as well
as those of his having voluntarily surrendered himself to the
authorities, and acted under the influence of passion and
obfuscation, should be taken into consideration in favor of
the appellant.
Under the facts above stated, we cannot entertain the
appellant's contention that he acted in legitimate self-
defense inasmuch as he provoked and commenced the
aggression by whipping out and brandishing his penknife.
The defense likewise claims that, at all events, article 49 of
the Revised Penal Code, which refers to cases where the
crime committed is different from that intended by the
accused, should be applied herein. This article is a
reproduction of article 64 of the old Code and has been
interpreted as applicable only in cases where the crime
befalls a different person (decisions of the Supreme Court of
Spain of October 20, 1897, and June 28,1899), which is not
the case herein.

The facts as herein proven constitute the crime of homicide

defined and penalized in article 249 of the Revised Penal
Code with reclusion temporal. In view of the concurrence
therein of three mitigating circumstances without any
aggravating circumstance, the penalty next lower in degree,
that is prision mayor, should be imposed.

Wherefore, pursuant to the provisions of Act No. 4103, the

appellant is hereby sentenced to suffer the indeterminate
penalty of from one (1) year of prision correccional to eight
(8) years and (1) day of prision mayor, affirming the judgment
appealed from in all other respects, with the costs. So
ordered.

Street, Abad Santos, Vickers, and Butte, JJ., concur.

42
 Republic of the Philippines There can no doubt that the defendant killed Mapudul and
SUPREME COURT that he is guilty of the crime charged, but his attorney argues
Manila that in view of the fact that said defendant had no intention
to kill the deceased and committed the crime by mistake, he
EN BANC should have been found guilty of homicide through
negligence under paragraph 1 of article 568 of the Penal Code
G.R. No. L-32066 March 15, 1903 and not of the graver crime of intentional homicide.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and This contention is contrary to earlier decisions of this court. In
appellee, these case of United State vs. Mendieta(34 Phil., 242), the
vs. court said:
GONA (Mansaca), defendant and appellant.
Even admitting that the defendant intended to
Jose Ma. Capili for appellant. injure Hilario Lauigan instead of Pedro Acierto, even
Attorney-General Jaranilla for appellee. that, in view of the mortal wound which inflicted
upon the latter, in no way could be considered as a
relief from his criminal act. That he made a mistake
OSTRAND, J.:
in killing one man instead of another, when it is
proved that he acted maliciously and willfully,
The defendant was charged before the Court of First Instance
cannot relieve him from criminal responsibility.
of the Province of Davao with the crime of homicide, the
Neither do we believe that the fact that he made a
information reading as follows:
mistake in killing the wrong man should be
considered as a mitigating circumstances.
That on or about October 26, 1928, in the municipal
district of Pantukan, Province of Davao, Philippine
The appealed sentence is affirmed with the costs against the
Islands, as within the jurisdiction of the court, the
defendant. So ordered.
said accused voluntarily, illegally, and criminally and
with a bolo which he then carried, assaulted
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real,
the Mansaca Mapudul, causing him a mortal wound
JJ., concur.
on the left side of the neck and that as a
consequence of said wound, the said Mapudul died.

Upon trial the court below found the defendant guilty as

charged in the information and taking into consideration the
extenuating circumstance of non-habitual intoxication,
sentenced him to suffer twelve years and one of reclusion
temporal with the accessory penalties prosecuted by law to
indemnity the heirs of the deceased in the sum of P1,000,
and to the costs. From this sentenced the defendant
appealed.

It appears from the evidence that on the evening of October

26, 1928, a number of Mansacas celebrated a reunion in the
house of the Mansaca Gabriel. There seems to have been
liberal supply of alcoholic drinks and some of the men
present became intoxicated, with the result that a quarrel
took the place between the Mansaca Dunca and the
defendant. Dunca and his son Aguipo eventually left the
house and were followed by Mapudul and one Award. The
defendant left the house about the same time with intention
of assaulting Dunca, but in the darkness of the evening and in
the intoxicated condition of the defendant, the mistook
Mapudul for Dunca and inflicated on him a mortal wound
with a bolo.

43
44

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 213792 June 22, 2015
GUILLERMO WACOY y BITOL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent,
x-----------------------x
G.R. No. 213886
JAMES QUIBAC y RAFAEL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated petitions for review on
certiorari1 are the Decision2 dated December 6, 2013 and the
Resolution3 dated July 21, 2014 of the Court of Appeals (CA)
in CA-G.R. CR No. 34078, which, inter alia, found petitioners
Guillermo Wacoy y Bitol (Wacoy) and James Quibac Rafael
(Quibac) guilty beyond reasonable doubt of the crime of
Homicide.
The Facts
In an Information dated June 10, 2004, Wacoy and Quibac
were charged with the crime of Homicide, defined and
penalized under Article 249 of the Revised Penal Code (RPC),
before the Regional Trial Court of Benguet, Branch 10 (RTC),
as follows:
That on or about the 11th day of April 2004, at Ambongdolan,
Municipality of Tublay, Province of Benguet, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually
aiding each other, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault, maul and
kick the stomach of one ELNER ARO y LARUAN, thereby
inflicting upon him blunt traumatic injuries which directly
caused his death thereafter.
That the offense committed was attended by the aggravating
circumstance of superior strength. CONTRARY TO LAW.4
According to prosecution witness Edward Benito (Benito), at
around 3 o'clock in the afternoon of April 11, 2004, he was
eating corn at a sari-sari store located at Bungis
Ambongdolan, Tublay, Benguet, when he heard a commotion
at a nearby establishment. Upon checking what the ruckus
was all about, he saw his cousin, Elner Aro (Aro), already
sprawled on the ground. While in that position, he saw
Wacoy kick Aro's stomach twice, after which, Wacoy picked
up a rock to throw at Aro but was restrained from doing so.
As Aro stood up, Quibac punched him on the stomach,
45
causing him to collapse and cry in pain. Thereafter, Aro was
taken to the hospital.5
At the hospital, Aro was diagnosed to be suffering from
"blunt abdominal trauma with injury to the jejunum" and was
set for operation. It was then discovered that he sustained a
perforation on his ileum, i.e., the point where the small and
large intestines meet, that caused intestinal bleeding, and
that his entire abdominal peritoneum was filled with air and
fluid contents from the bile. However, Aro suffered cardiac
arrest during the operation, and while he was revived
through cardiopulmonary resuscitation, he lapsed into a
coma after the operation.6
Due to financial constraints, Aro was taken out of the hospital
against the doctor's orders and eventually, died the next day.
While Aro's death certificate indicated that the cause of his
death was "cardiopulmonary arrest antecedent to a
perforated ileum and generalized peritonitis secondary to
mauling," an autopsy performed on his remains revealed that
the cause of his death was "rupture of the aorta secondary to
blunt traumatic injuries."7
In their defense, herein petitioners, Wacoy and Quibac,
denied the charge against them. They averred that while
playing pool, they saw Aro drunk and lying down. Suddenly,
Aro became unruly and kicked the leg of the pool table,
causing Wacoy to shout and pick up a stone to throw at Aro
but Quibac pacified him. They also claimed that Aro almost
hit Wacoy with a 2x3 piece of wood if not for Quibac' s
intervention. Wacoy ran but Aro chased him and then tripped
and fell to the ground. Quiniquin Carias (Kinikin), Aro's
companion, followed Wacoy to the waiting shed nearby,
cornered and kicked the latter, and the two engaged in a fist
fight. Quibac came over to pacify the two and told Wacoy to
go home.8
The RTC Ruling In a Judgment9 dated February 28, 2011, the
RTC found Wacoy and Quibac guilty beyond reasonable doubt
of the crime of Death Caused in a Tumultuous Affray under
Article 251 of the RPC and, accordingly, sentenced them to
suffer the penalty of imprisonment for an indeterminate
period of six (6) months and one (1) day of prision
correccional, as minimum, to eight (8) years and one (1) day
of prision mayor , as maximum, and ordered them to pay
Aro's heirs the amounts of ₱25,000.00 as temperate
damages, ₱50,000.00 as civil indemnity ex delicto, and
₱50,000.00 as moral damages.10
The RTC found that Benito's testimony on the mauling
incident does not firmly establish that Wacoy and Quibac
conspired in the killing of Aro, and that the medical reports
were neither categorical in stating that the injuries Aro
sustained from the mauling directly contributed to his
death. 11
In this relation, it opined that "[a]s conspiracy was not proven
and the prosecution has failed to show the extent and effect
of injury [that Wacoy and Quibac] personally inflicted on
[Aro] that led to his death xx x," Wacoy and Quibac should be
held criminally liable for the crime of Death Caused in a
Tumultuous Affray and not for Homicide. 12
Aggrieved, Wacoy and Quibac appealed to the CA.13
The CA Ruling
In a Decision14 dated December 6, 2013, the CA modified
Wacoy and Quibac's conviction to that of Homicide under
A1iicle 249 of the RPC with the mitigating circumstance of
lack of intent to commit so grave a wrong, and accordingly
adjusted their prison term to an indeterminate period of six
(6) years and one (1) day of prision mayor, as minimum, to
twelve (12) years and one ( 1) day of reclusion temporal, as
maximum. Further, the CA also imposed a legal interest of six
percent ( 6%) per annum on the damages awarded by the
RTC pursuant to prevailing jurisprudence. 15
In so ruling, the CA gave credence to Benito's simple, direct,
and straightforward testimony. In this relation, it observed
that the mere fact that Benito is Aro's cousin should not
militate against his credibility since there was no proof that
his testimony was driven by any ill motive.16 However,
contrary to the RTC's findings, the CA ruled that Wacoy and
Quibac should not be convicted of the crime of Death Caused
in a Tumultuous Affray since there were only (2) persons who
inflicted harm on the victim, and that there was no
tumultuous affray involving several persons. Instead, they
were convicted of the crime of Homicide, with the mitigating
circumstance of lack of intent to commit so grave a wrong
appreciated as it was shown that the purpose of their assault
on Aro was only to maltreat or inflict physical harm on him. 17
Aggrieved, Wacoy and Quibac separately moved for
reconsideration. 18 In a Resolution19 dated July 21, 2014, the
CA denied Quibac's motions for reconsideration;20 hence, the
instant petitions.
The Issue Before the Court
The core issue for the Court's resolution is whether or not the
CA correctly found Wacoy and Quibac guilty beyond
reasonable doubt of the crime of Homicide.
The Court's Ruling
The petition is without merit.
At the outset, it must be stressed that in criminal cases, an
appeal throws the entire case wide open for review and the
reviewing tribunal can correct errors, though unassigned in
the appealed judgment, or even reverse the trial court's
decision based on grounds other than those that the parties
raised as errors. The appeal confers upon the appellate court
full jurisdiction over the case and renders such court
competent to examine records, revise the judgment appealed
from, increase the penalty, and cite the proper provision of
the penal law.21
Proceeding from the foregoing, the Court agrees with the
CA's ruling modifying Wacoy and Quibac' s conviction from
Death Caused in a Tumultuous Affray to that of Homicide, as
will be explained hereunder.
Article 251 of the RPC defines and penalizes the crime of
Death Caused in a Tumultuous Affray as follows:
Art. 251. Death caused in a tumultuous affray. - When, while
several persons, not composing groups organized for the
common purpose of assaulting and attacking each other
reciprocally, quarrel and assault each other in a confused and
46
tumultuous manner, and in the course of the affray someone
is killed, and it cannot be ascertained who actually killed the
deceased, but the person or persons who inflicted serious
physical injuries can be identified, such person or persons
shall be punished by prision mayor.
If it cannot be determined who inflicted the serious physical
injuries on the deceased, the penalty of prision correccional
in its medium and maximum periods shall be imposed upon
all those who shall have used violence upon the person of the
victim.
The elements of Death Caused in a Tumultuous Affray are as
follows: (a) that there be several persons; (b) that they did
not compose groups organized for the common purpose of
assaulting and attacking each other reciprocally; (c) that
these several persons quarrelled and assaulted one another
in a confused and tumultuous manner; (d) that someone was
killed in the course of the affray; (e) that it cannot be
ascertained who actually killed the deceased; and (j) that the
person or persons who inflicted serious physical injuries or
who used violence can be identified.22Based on case law, a
tumultuous affray takes place when a quarrel occurs between
several persons and they engage in a confused and
tumultuous affray, in the course of which some person is
killed or wounded and the author thereof cannot be
ascertained.23
On the other hand, the crime of Homicide is defined and
penalized under Article 249 of the RPC, which reads:
Art. 249. Homicide. - Any person who, not falling within the
provisions of Article 246, shall kill another, without the
attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide
and be punished by reclusion temporal. The elements of
Homicide are the following: (a) a person was killed; (b) the
accused killed him without any justifying circumstance; (c) the
accused had the intention to kill, which is presumed; and (d)
the killing was not attended by any of the qualifying
circumstances of Murder, or by that of Parricide or
Infanticide.24
In the instant case, there was no tumultuous affray between
groups of persons in the course of which Aro
died.1âwphi1 On the contrary, the evidence clearly
established that there were only two (2) persons, Wacoy and
Quibac, who picked on one defenseless individual, Aro, and
attacked him repeatedly, taking turns in inflicting punches
and kicks on the poor victim. There was no confusion and
tumultuous quarrel or affray, nor was there a reciprocal
aggression in that fateful incident.25 Since Wacoy and Quibac
were even identified as the ones who assaulted Aro, the
latter's death cannot be said to have been caused in a
tumultuous affray.26 Therefore, the CA correctly held that
Wacoy and Quibac' s act of mauling Aro was the proximate
cause27 of the latter's death; and as such, they must be held
criminally liable therefore, specifically for the crime of
Homicide.
On this note, the Court does not find merit in Wacoy's
contention that in view of their intent only to inflict slight
physical injuries on Aro, they should only be meted the imprisonment for an indeterminate period of six ( 6) years
corresponding penalty therefore in its maximum and one ( 1) day of prision mayor, as minimum, to twelve (12)
period,28pursuant to Article 49 of the RPC. The said provision years and one (1) day of reclusion temporal, as maximum,
reads: taking into consideration the provisions of the Indeterminate
Art. 49. Penalty to be imposed upon the principals when the Sentence Law.
crime committed is different from that intended. - In cases in Finally, the awards of civil indemnity and moral damages in
which the felony committed is different from that which the the original amount of ₱50,000.00 each are increased to
offender intended to commit, the following rules shall be ₱75,000.00 each in order to conform with prevailing
observed. jurisprudence.33 All other awards, as well as the imposition of
1. If the penalty prescribed for the felony committed interest at the rate of six percent ( 6%) per annum on all the
be higher than that corresponding to the offense monetary awards from the date of finality of judgment until
which the accused intended to commit, the penalty the same are fully paid, are retained.
corresponding to the latter shall be imposed in its WHEREFORE, the petition is DENIED. The Decision dated
maximum period. December 6, 2013 and the Resolution dated July 21, 2014 of
2. If the penalty prescribed for the felony committed the Court of Appeals in CA-G.R. CR No. 34078 are hereby
be lower than that corresponding to the one which AFFIRMED with MODIFICATION. Accordingly, petitioners
the accused intended to commit, the penalty for the Guillermo Wacoy y Bitol and James Quibac y Rafael are found
former shall be imposed in its maximum period. GUILTY beyond reasonable doubt of the crime of Homicide
3. The rule established by the next preceding defined and penalized under Article 249 of the Revised Penal
paragraph shall not be applicable if the acts Code with the mitigating circumstance of lack of intent to
committed by the guilty person shall also constitute commit so grave a wrong under Article 13 (3) of the same
an attempt or frustration of another crime, if the law Code. They are sentenced to suffer the penalty of
prescribes a higher penalty for either of the latter imprisonment for an indeterminate period of six ( 6) years
offenses, in which case the penalty provided for the and one (1) day of prision mayor, as minimum, to twelve (12)
attempt or the frustrated crime shall be imposed in years and one (1) day of reclusion temporal, as maximum,
the maximum period. and ordered to pay the heirs of Elner Aro the amounts of
Jurisprudence instructs that such provision should only apply ₱25,000.00 as temperate damages, ₱75,000.00 as civil
where the crime committed is different from that intended indemnity ex delicto, and ₱75,000.00 as moral damages, all
and where the felony committed befalls a different person with interest at the rate of six percent (6%) per annum from
(error in personae); and not to cases where more serious the finality of this Decision until fully paid.
consequences not intended by the offender result from his SO ORDERED.
felonious act (praeter intentionem),29
as in this case. It is well-settled that if the victim dies because
of a deliberate act of the malefactors, intent to kill is
conclusively presumed.30 In such case, even if there is no
intent to kill, the crime is Homicide because with respect to
crimes of personal violence, the penal law looks particularly
to the material results following the unlawful act and holds
the aggressor responsible for all the consequences thereof. 31
Be that as it may, the penalty for the crime of Homicide must
be imposed in its minimum period due to the presence of the
mitigating circumstance of lack of intention to commit so
grave a wrong under Article 13 (3) of the RPC in favor of
Wacoy and Quibac, as correctly appreciated by the CA. In
determining the presence of this circumstance, it must be
considered that since intention is a mental process and is an
internal state of mind, the accused's intention must be
judged by his conduct and external overt acts.32 In this case,
the aforesaid mitigating circumstance is available to Wacoy
and Quibac, given the absence of evidence showing that,
apart from kicking and punching Aro on the stomach,
something else had been done; thus, evincing the purpose of
merely maltreating or inflicting physical harm, and not to end
the life of Aro.
Anent the proper penalty to be imposed on Wacoy and
Quibac, the CA correctly imposed the penalty of

47
48
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16486 March 22, 1921
THE UNITED STATES, plaintiff-appelle,
vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel Roco for appellant.
Acting Attorney-General Feria for appellee.
STREET, J.:
The rather singular circumstances attending the commission
of the offense of homicide which is under discussion in the
present appeal are these:
At about noon, on November 29, 1919, while the interisland
steamer Vigan was anchored in the Pasig River a short
distance from the lighthouse and not far from where the river
debouches into the Manila Bay, a small boat was sent out to
raise the anchor. The crew of this boat consisted of the
accused, Calixto Valdez y Quiri, and six others among whom
was the deceased, Venancio Gargantel. The accused was in
charge of the men and stood at the stern of the boat, acting
as helmsman, while Venancio Gargantel was at the bow.
The work raising the anchor seems to have proceeded too
slowly to satisfy the accused, and he accordingly began to
abuse the men with offensive epithets. Upon this Venancio
Gargantel remonstrated, saying that it would be better, and
they would work better, if he would not insult them. The
accused took this remonstrance as a display of
insubordination; and rising in rage he moved towards
Venancio, with a big knife in hand, threatening to stab him. At
the instant when the accused had attained to within a few
feet of Venancio, the latter, evidently believing himself in
great and immediate peril, threw himself into the water and
disappeared beneath its surface to be seen no more.
The boat in which this incident took place was at the time
possibly 30 or 40 yards from shore and was distant, say, 10
paces from the Vigan. Two scows were moored to the shore,
but between these and the boat intervened a space which
may be estimated at 18 or 20 yards. At it was full midday, and
there was nothing to obstruct the view of persons upon the
scene, the failure of Venancio Gargantel to rise to the surface
conclusively shows that, owing to his possible inability to
49
swim or the strength of the current, he was borne down into
the water and was drowned.
Two witnesses who were on the boat state that, immediately
after Venancio leaped into the water, the accused told the
remaining members of the crew to keep quiet or he would kill
them. For this reason they made no movement looking to
rescue; but inasmuch as there witnesses are sure that
Venancio did not again come to the surface, efforts at rescue
would have been fruitless. The fact that the accused at his
juncture threatened the crew with violence is, therefore, of
no moment except tho show the temporary excitement
under which he was laboring.
On the next day one of the friends of Venancio Gargantel
posted himself near the lighthouse to watch for the body, in
the hope that it might come to the surface and could thus be
recovered. Though his friendly vigil lasted three days nothing
came of it.
It may be added that Venancio has not returned to his
lodging in Manila, where he lived as a bachelor in the house
of an acquaintance; and his personal belongings have been
delivered to a representative of his mother who lives in the
Province of Iloilo. His friends and relatives, it is needless to
say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as
to exclude all reasonable possibility that Venancio Gargantel
may have survived; and we think that the trial judge did not
err in holding that he is dead and that he came to his death
by drowning under the circumstances stated. The proof is
direct that he never rose to the surface after jumping into the
river, so far as the observers could see; and this circumstance,
coupled with the known fact that human life must inevitably
be extinguished by asphyxiation under water, is conclusive of
his death. The possibility that he might have swum ashore,
after rising in a spot hidden from the view of his companions,
we consider too remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death
thus occasioned the likewise can be no doubt; for it is obvious
that the deceased, in throwing himself in the river, acted
solely in obedience to the instinct of self-preservation and
was in no sense legally responsible for his own death. As to
him it was but the exercise of a choice between two evils, and
any reasonable person under the same circumstances might
have done the same. As was once said by a British court, "If a
man creates in another man's mind an immediate sense of
dander which causes such person to try to escape, and in so
doing he injuries himself, the person who creates such a state
of mind is responsible for the injuries which result." (Reg. vs.
Halliday, 61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme
Court of Spain, of July 13, 1882, is cited in the brief of The
Attorney-General, as follows: It appeared that upon a certain
occasion an individual, after having inflicted sundry injuries
upon another with a cutting weapon, pointed a shotgun at
the injured person and to escape the discharge the latter had
to jump into a river where he perished by drowning. The
medical authorities charged with conducting the autopsy
found that only one of the wounds caused by a cut could
have resulted in the death of the injured person, supposing
that he had received no succour, and that by throwing
himself in the river he in fact died of asphyxia from
submersion. Having been convicted as the author of the
homicide, the accused alleged upon appeal that he was only
guilty of the offense of inflicting serious physical injuries, or at
most of frustrated homicide. The Supreme Court, disallowing
the appeal, enunciated the following doctrine: "That even
though the death of the injured person should not be
considered as the exclusive and necessary effect of the very
grave wound which almost completely severed his axillary
artery, occasioning a hemorrhage impossible to stanch under
the circumstances in which that person was placed,
nevertheless as the persistence of the aggression of the
accused compelled his adversary, in order to escape the
attack, to leap into the river, an act which the accused
forcibly compelled the injured person to do after having
inflicted, among others, a mortal wound upon him and as the
aggressor by said attack manifested a determined resolution
to cause the death of the deceased, by depriving him of all
possible help and putting him in the very serious situation
narrated in the decision appealed from, the trial court, in
qualifying the act prosecuted as consummated homicide, did
not commit any error of law, as the death of the injured
person was due to the act of the accused." (II Hidalgo, Codigo
Penal, p. 183.)
The accused must, therefore, be considered the responsible
author of the death of Venancio Gargantel, and he was
properly convicted of the offense of homicide. The trial judge
appreciated as an attenuating circumstance the fact that the
offender had no intention to commit so great a wrong as that
committed. (Par. 3, art. 9 Penal Code.) In accordance with this
finding the judge sentenced the accused to undergo
imprisonment for twelve years and one day, reclusion
temporal, to suffer the corresponding accessories, to
indemnify the family of the deceased in the sum of P500, and
to pay the costs. Said sentenced is in accordance with law;
and it being understood that the accessories appropriate to
the case are those specified in article 59 of the Penal Code,
the same is affirmed, with costs against the appellant. So
ordered.
Mapa, C.J., Malcolm, Avanceña and Villamor, JJ., concur.
Separate Opinions
ARAULLO, J., dissenting:
50
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio
Gargantel, one of those who were in a boat of the
steamer Vigan subject to the orders of the accused Calixto
Valdez and who at the time was engaged in the work of
raising the anchor of that vessel, which was then lying at the
Pasig River, a short distance from the lighthouse and not far
from its mouth at the Manila Bay, upon seeing that the
accused was approaching him, armed with a big knife, and in
the attitude of attacking him, threw himself into the water
and disappeared from the surface and had not been seen
again. This event took place at noon on November 29, 1919,
the boat being then about 30 or 40 yards from land and
about 10 steps from the Vigan, there being two lighters
moored to the shore and at a distance of about 18 or 20
yards from the boat. All of these facts are stated in the
decision itself.
The original information in the present case, charging Calixto
Valdez y Quiri with the crime of homicide and alleging that as
a result of his having thrown himself into the river under the
circumstances mentioned, Venancio Gargantel was drowned,
was presented on December 8, 1919, that is, nine days
afterwards.
There is no evidence whatever that the corpse of Venancio
Gargantel had been found or, what is the same thing, that he
had died. From November 28, the day when the event
occurred, until December 8, when the information was filed,
it cannot in any manner be maintained that the necessary
time had passed for us to properly conclude, as is alleged in
the information, that said Gargantel had died by drowning, as
a consequence of his having thrown himself into the water
upon seeing himself threatened and attacked by the accused.
Neither does it appear in the evidence that all the precaution
necessary for us to assure ourselves, as a sure and proven
fact, that Venancio Gargantel then died by drowning, were
taken; nor is there any evidence that it would have been
impossible for him, by swimming or by any other means to
rise to the surface at a place other than the Pasig River or
that where the boat was, from which he threw himself into
the river, and in that manner save himself from death.
From the evidence of the witnesses for the prosecution which
is the only evidence in the record, for the accused di not take
the stand, it only appears that Venancio Gargantel, after
having jumped from the boat, did not rise again to the
surface. Such was the statement of two of those witnesses
who were members of the boat's crew at the time. Another
witness also declared that Gargantel was afterwards not
again seen at the house where he lived in this city, No. 711
San Nicolas Street, where he kept his trunks and some
effects, a fact which caused his mother, who lived in the
municipality of Guimbal, in the Province of Iloilo, upon being
informed of it and upon the failure of Venancio to appear in
said place, to give special power on the 28th of that month of
December, that is, one month afterwards, to a student,
Ignacio Garzon, to get the trunks and effects of Venancio
from said house. Sid Garzon himself testified, upon being
asked whether Venancio Gargantel had returned to the house
of his parents since November 29, 1919, that he had no
information about it, and another witness, Pedro Garcia, of
the prosecution, stated that he had probably died, because
he had not seen Venancio Gargantel.
Therefore, in short, the only fact proved is that since
Venancio Gargantel threw himself into the river, upon being
threatened with a knife by the accused, his whereabouts has
remained unknown even at the moment of rendering
judgment in this case, or, February 9, 1920, that is, two and
one-half months after the occurrence of the event.
It is stated in the decision that the friend and parents of
Gargantel give him up for dead. There is nevertheless in the
record no statement of any parent of Gargantel to that effect;
for his mother Maria Gatpolitan, a resident of the
municipality of Guimbal, merely stated in the power of
attorney executed in favor of Ignacio Garzon that the latter
should take steps in order that the city fiscal might
investigate the death of her son which, according to
information, was caused by another members, of the crew of
the steamer Vigan; and none of his friends, that is, none of
the two members of the party in the boat at that time and of
the crew of the steamer Vigan, nor Maximo Gumbog, the
owner of the house in which Gargantel lived in this city, nor
Pedro Garcia, another member of the crew of that steamer,
and finally, nor Ignacio Garzon himself has stated that he
gave up Gargantel for dead, for the simple reason that this
was not possible, for they only knew that he did not again rise
to the surface and was not seen again after having thrown
himself into the river from the boat.
For this reason it is stated in the decision that the
circumstances therein stated are such that they exclude all
reasonable possibility that Venancio Gargantel could have
survived and that the circumstance that never rose to the
surface after having jumped into the river, as witnessed by
the persons present, together with the admitted fact that
human life is necessarily asphyxiated under the water, is
conclusive that he died. Then, there is nothing more than a
deduction that Gargantel had died based upon those facts
and circumstances.
In my opinion this is not sufficient to convict the accused as
guilty of homicide, because there is the possibility that
Gargantel had risen to the surface at some place away from
the where he threw himself into the river and had embarked
on some other vessel in the same river or out of it in the bay
and had gone abroad, or to some province of these Islands
and is found in some municipality thereof, cannot be denied.
And this is very probable inasmuch as it does not appear in
51
the record that the necessary investigation has been made in
order to determined even with only some measure of
certainty, not to say beyond all reasonable doubt, that it was
and is impossible to find said person or determined his
whereabouts.
Furthermore, there is not even a presumption juris
tantum that he had died, for in order that this presumption
may exist, according to section 334 of the Code of Civil
Procedure, it is necessary that no information about him
should have been received for seven years from his
disappearance upon his throwing himself into the river, which
occurred on November 29, 1919, that is, only about one year
and four months ago. And if, in order that a finding of a civil
character in favor of or against some person, may be made,
by virtue of that presumption, it is necessary that seven years
should have elapsed without any notice being received of the
person whose whereabouts is unknown, it is not just,
reasonable, or legal that the period of one year and four
months from his disappearance or since Venancio Gargantel
threw himself into the water should suffice for us to impose
upon the accused Calixto Valdez such a grave penalty as that
of twelve years and one day of reclusion temporal, merely
assuming without declaring it, as a proven fact, that
Gargantel has died and at the same time finding said accused
to be the author of that death.
Lastly, the decision of the English Supreme Court or that of
the Spanish Supreme Court dated July 13, 1882, cited by the
majority opinion is not applicable. The first, is not applicable
because in the present case it is not proved, beyond
reasonable doubt, that some damage resulted to Gargantel,
just as it cannot be considered as proved that he had died, or
that he had been injured or that he had suffered some injury
after having thrown himself into the river as a result of the
threat of the accused. The second is not applicable because
the decision of the Supreme Court of Spain refers to a case, in
which the injured party had already been wounded with a
cutting instrument by the accused before throwing himself
into the river upon the latter aiming at him with his gun, it
having afterwards been proved upon his being taken out of
the river that the wound inflicted upon him by the accused
was mortal; and, consequently, it was declared by said court
that, even if the death of the deceased be considered as not
having resulted exclusively and necessarily from that most
grave wound, the persistence of the aggression of the
accused compelled his adversary to escape it and threw
himself into the river, by depriving him of all possible help
and placing him in the serious situation related in the
judgment appealed from -a case which, as is seen, is very
different from that which took place in the present case.
For the reasons above stated, I am of the opinion, with due
respect to the opinion of the majority, that the accused
Calixto Valdez y Quiri cannot be found guilty of homicide and
should be acquitted.
52
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-37507 June 7, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff- appellee,
vs.
WILLIAM PAGE, defendant- appellant.
AQUINO, J.:
William Page appealed from the decision of the Court of First
Instance of Rizal dated July 21, 1973, convicting him of
robbery with homicide, sentencing him to reclusion perpetua,
and ordering him to pay the heirs of Veronica Villaverde-
Balacapo an indemnity of P12,000 plus P20,000 as moral
damages (Criminal Case No. 5396). The judgment of
conviction was based on the following facts:
According to Page's confession (Exh. C), at around four
o'clock in the afternoon of February 13, 1972 Crisanto
Camposano, alias Boy Sangkay, a resident of Bagong Ilog,
Baclaran, Parañaque , Rizal, went to the house of William
Page y Ubina located at 143 Pildira Street, near the Manila
International Airport, Pasay City, They were friends since
boyhood. Page was an eighteen-year old third year high
school student at the Arellano' University in Pasay City (Exh.
H).
From Page's house, the two went to Camposano's house,
where they met the latter's father who was drinking with a
companion. Camposano's father gave Page some liquor to
drink. Page and Camposano stayed at the latter's house up to
ten o'clock in the evening (Exh. C).
With the jeepney was in front of the San Antonio Savings
Bank on Harrison Boulevard, Page and Camposano told the
driver to turn left on Russel Avenue, going to M. Roxas
Boulevard, and then to turn left going to Parañaque . There,
they held up the driver and the three passengers. They got
the money and pieces of jewelry of the passengers and the
driver. From the rear view mirror of the jeepney, Page saw
Camposano dumping the two female passengers on Roxas
Boulevard in front of Casa Marcos. Then, the two directed the
driver to proceed to the airport. They left the jeepney at
Pildira Street (where Page resided). Camposano gave Page a
watch and a woman's ring as his share of the loot.
Page admitted that he had been charged with theft but the
case was dismissed in the municipal court. He knew certain
hoodlums named Remy, Manoling, Cuerson and Edgar whose
specialty was holding up taxicabs (Exh. C).
Scot gave a slightly different version of the holdup. He
testified that when the jeepney reached that portion of
Harrison Boulevard in front of the San Antonio Savings Bank,
Page pressed a knife at the neck of Scot and shouted: "This is
a holdup. Don't move." Page got Scot's diary book containing
a one peso bill. Page ordered the driver, Eduardo Dilla, to
shut off the lights of the jeepney, to turn left on Russel
Avenue, and to proceed to Roxas Boulevard. Page and
Camposano covered their faces with pieces of cloth.
Camposano told the women passengers to bring out their
money and not to shout "or else there will be shots". They
replied that they had already given everything to
Camposano.
When the jeepney was in front of Casa Marcos and El
Presidente Hotel, one of the women jumped out of the
jeepney. (The husband of one of the women was a waiter at
Casa Marcos). The other woman shouted. Camposano kicked
her, thus causing her to fall out of the jeepney. Camposano
noticed that a car was following the jeepney. Believing that it
was a police car, he ordered Villa (Dilla) to drive at full speed.

At past ten o'clock, Page and Camposano went to the rotonda

According to Scot, at an isolated place called Baltao Street
or intersection of Taft Avenue and F. B. Harrison Boulevard,
near the airport, Page and Camposano told the driver to stop.
where they boarded a Manila-bound jeepney. Page was
Page robbed Scot of his other one peso bill and divested the
armed with a balisong knife. Camposano had a revolver.
driver of his earnings after boxing him for making some
resistance. Then, the two malefactors fled to a dark alley.
According to Page's confession, he seated himself beside a Scot and the driver reported the holdup to the police of
male passenger who was near the driver on the front seat. Parañaque . It was already eleven o'clock.
Camposano took a seat at the back of the jeepney where two
female passengers were seated. (The male passenger turned
Lieutenant Casiano Eugenio the precinct commander, showed
out to be Randolf Scot, a thirty-year old employee of the
them a photograph of Camposano. Dilla and Scot Identified
Hyatt Regency Hotel who was on his way to work. The female
him as one of the two hoodlums. Eugenio and the two
passengers were the sisters, Veronica Villaverde-Balacapo
robbery victims repaired to the residence of Camposano at
and Cesarean Villaverde).
Bagong Ilog Baclaran. They saw Camposano, whom Dilla
fingered, but Camposano fired shots at them and was able to
elude pursuit due to the darkness of the night. He was killed
53
by the Pasay City policemen while he was committing
another crime.
The next day policemen went to Page's residence near the
airport to apprehend him. He was not there. His father, in the
presence of his aunt, promised to surrender him.
Page was arrested in the morning of February 24, 1972 at the
Jose Abad Santos High School of the Arellano University in
Pasay City. In the afternoon of that day, his statement was
taken down by Patrolman C. Prepena and sworn to before the
municipal judge (Exh. C).
The woman, who jumped from the jeepney (according to
Scot's story), was Veronica Balacapo. She was brought to the
Philippine General Hospital by a good Samaritan, Manolo
Daval, Santos. She was already dead when she reached the
hospital.
The other woman, Cesarea Villaverde (the sister of Veronica),
who was pushed by Camposano out of the jeepney, was
brought to the Ospital ng Maynila. The record is not clear as
to whether she survived.
The postmortem examination of the body of Veronica
Balacapo, a forty-two year old married woman, revealed that
she suffered (1) abrasions on the left eyebrow, left shoulder,
left elbow and sacral region; (2) bilateral severe hematoma
on the occipital region of the scalp; (3) fractures on the base
of the cranial fossa and the fourth and fifth ribs along the
midclavicular line, and (4) hemorrhage in the posterior cranial
fossa. Death was caused by the severe and traumatic
meningeal hemorrhage (Exh. A and F).
On February 15, 1972 or before Page was arrested, the chief
of police filed a complaint for robbery with murder in the
municipal court of Parañaque against Camposano and John
Doe (Criminal Case No. 30039). The complaint was based on
the investigation of Dilla and Scot. Page did not present any
evidence at the preliminary investigation. The case was
remanded to the Court of First Instance where the fiscal filed
an information for robbery with homicide against Page and
Camposano.
After trial, the trial court rendered the judgment of conviction
already mentioned.
In this appeal, appellant Page contends that the trial court
erred (1) in relying on his repudiated confession, (2) in
convicting him although he was not Identified by Randolf
Scot, the prosecution's eyewitness, and (3) in convicting him
on the basis of weak circumstantial evidence.
1. Patrolman Prepena who took Page's confession, testified
on its voluntariness. Lieutenant Eugenia the precinct
54
commander, and Patrolmen Manolito Miranda and Jose
Elquiero, the arresting officer, denied that Page was
maltreated while he was in the custody of the police.
Page admitted that when he was brought before the
municipal judge for the administration of the oath on his
confession, he could have complained to the latter about the
alleged maltreatment. He did not complain.
His aunt, Prudencia Alupit, and his own lawyer visited him in
jail. He allegedly confided to them that he was maltreated. He
requested them to take action against the policemen. They
did not complain to the proper authorities about the alleged
maltreatment.
The learned trial court made a searching and conscientious
analysis of appellant's evidence on the alleged duress
employed by the police in extracting his confession. It
concluded that the confession was voluntary.
We find no error in that conclusion. Page's confession, having
been taken before the new Constitution took effect, is
admissible although the requisites in section 20 of article IV
were not observed (Magtoto vs. Manguera, L-37201-2, March
3, 1975, 63 SCRA 4).
Certain details found in the confession are strong indicia of its
authenticity. Page specified therein that his residence was at
143 Pildira Street, an address which jibes with the address in
his school record (Exh. I); that his maternal surname is Ubina;
that he met Camposano at four o'clock in the afternoon of
February 13, 1972; that they went to Camposano's residence,
where he (Page) was given liquor by Camposano's father; that
he directed the driver to follow a certain route; that
Camposano was from Sorsogon; that Page was acquainted
with some hoodlums, and that he (Page) was charged with
theft. These details would not have been embodied in the
confession had not Page freely disclosed them to the police.
2. It is true that Scot during the trial did not point to Page as
the person who sat beside him on the front seat of the
jeepney and who pressed an open knife at his neck. Testifying
nine months after the occurrence, Scot could not remember
the face of Page. He recalled only that Page's hair was thick.
Patrolman Ruben Crue Santiago, one of those who
investigated Page, testified that the latter was sporting long
hair and looked like a hippie at the time of the investigation
(2 tsn November 21, 1972). The photographs of Page taken in
July, 1971, or about seven months before the holdup, when
Page was booked for theft, show that he had long hair (Exh.
G).
Scot's failure to identify Page during the trial is of no moment
because the crucial fact is that Page in his own confession
admitted his participation in the holdup. Page stated in his
confession:
Iyong jeep na pampasahero na aming sinakyan sa may
Rotonda ng Baclaran patungong Maynila, biaheng Harrison,
ay may sakay na dalawang babae sa hulihan at isang lalaki sa
unahan sa tabi ng driver at ako ay naupo sa harapan katabi ko
iyong lalaki at si Boy Sangkay (Camposano) ay sa gawing
hulihan.
Pagdating namin sa may tapat ng San Antonio Bank ay
hinoldup namin iyong jeep pati ng mga pasahero at pinaliko
namin sa Russel Avenue patungong M. Roxas Blvd. Pagdating
namin sa M. Roxas Blvd., ay pinakaliwa namin patungong
Parañaque at noong kami'y nasa M. Roxas Blvd. na, ay kinuha
namin ang mga pera at alahas noong mga pasahero at tsuper
ng jeep at matapos noon any nakita ko na lang sa salamin na
inihulog ni Boy Sangkay iyong dalawang babae sa may tapat
ng Casa Marcos sa M. Roxas Blvd.
At pagkatapos ay nagpahatid kami patungong MIA at bumaba
kami sa Pildira sa Pasay City. (No. 13, Exh. C).
Scot's testimony and the necropsy report (Exh. A) prove
the corpus delicti or the fact that robbery with homicide was
committed. Page's extrajudicial confession was corroborated
by the evidence on the corpus delicti (Sec. 3, Rule 133, Rules
of Court).
3. Appellant's third contention that his guilt was not proven
beyond reasonable doubt, because the prosecution's
evidence is mainly circumstantial, is not meritorious.
Once it is conceded that his confession is voluntary then
there cannot be any doubt as to his guilt. We have already
shown that his confession was not vitiated by compulsion or
constraint.
The alibi, which Page interposed during the trial and which his
counsel did not bother to discuss in his brief, appears to be a
complete fabrication. Page testified that at the time of the
commission of the holdup, he was residing with his aunt at 26
Simbo Street, Fort Bonifacio, Makati, Rizal and that he was
sick.
That testimony was squarely belied by Page's school record
(Exh. 1) which shows that, when the holdup was perpetrated,
he was residing with his father at 143 Pildira Street, Pasay
City near the airport (or at 101 Interior Rivera Village near the
airport, Exh. H) and that on February 11, 1972, or two days
before the holdup was committed, he was not sick because
on that date he was not absent from school.
In any event, even if he was a Makati resident at the time of
the holdup, that would not have precluded his participation
55
in the commission of that offense at Baclaran, Parañaque ,
which is not very far from Fort Bonifacio.
To establish an alibi, the accused must show that he was in
another place for such a period of time that it was impossible
for him to have been at the place where the crime was
committed at the time of its commission (People vs.
Resayaga, L-23234, December 26, 1973, 54 SCRA 350, 354).
Page's alibi does not satisfy that requirement.
The more important point to consider is whether the trial
court correctly ruled that Page, as a fellow conspirator of
Camposano, could be held liable for robbery with homicide or
for robbery only. In his letters to this Court, Page, not being a
lawyer and not knowing the rules on conspiracy, insisted that
he had nothing to do with the death of Veronica Villaverde
Balacapo.
Of course, it was Camposano alone who directly brought
about Veronica's death. Whether Veronica jumped from the
jeepney, as testified by Scot, or whether Camposano kicked
and pushed her and her sister, Cesarean out of the jeepney,
as stated by Page in his confession, Camposano's culpability
for that flagitious deed cannot be disputed.
If Veronica jumped out of the jeepney, it must have been
because she was in mortal dread that Camposano would
shoot her. As fear gripped Veronica, she, in desperation,
thought of scampering out of the moving jeepney. Her head
struck the pavement. It was broken. A hemorrhage ensued.
She died before medical assistance could be extended to her.
The rule is that if a man creates in another person's mind an
immediate sense of danger, which causes such person to try
to escape, and, in so doing, the latter injures himself, the man
who creates such a state of mind is responsible for the
resulting injuries (People vs. Toling, L-27097, January 17,
1975, 62 SCRA 17,33).
We find that the trial court's conclusion as to conspiracy is
borne out by the evidence. Page and Camposano were
boyhood friends. About six hours before the crime was
committed, they were already together. They were in the
Baclaran rotonda at around ten o'clock in the evening or
shortly before the holdup was committed. They boarded the
jeepney in that place. Inside the jeepney, they coordinated
their actions. They directed the jeepney driver to go near the
airport or in the vicinity of Page's residence, a place which
was well-known to the two malefactors. They left the jeepney
together and fled in the same direction.
There is not a scintilla of doubt that a conspiracy to commit
robbery existed between Page and Camposano. The fact that
the two armed themselves with deadly weapons, a knife and
a revolver, signified that they were determined to kill their
victims in order to consummate their nefarious objective.
The conspiracy may be inferred from the acts of Page and
Camposano. Those acts reveal that they had agreed to
commit robbery inside a passenger jeepney (Art. 8, Revised
Penal Code). This Court may take judicial notice that that kind
of robbery has been frequently committed since the
liberation when the jeepney came into existence as a public
conveyance.
Page and Camposano implemented their agreement when
they waited for a passenger jeepney at the Baclaran rotonda
and boarded it at the same time. If they had no evil intention,
they could have sat together at the back. But, they did not do
so. Obviously, as previously planned by them, Page took the
front seat so that he could control the driver and at the same
time extort money from him and the other passenger in the
front seat. Camposano took a seat at the back of the jeepney
so that he could rob the two female passengers.
The behavior of Page and Camposano inside the jeepney
disclosed a synchronization of their actions, evincing a prior
concert and plan to commit robbery with violence against
and intimidation of persons. Page should answer for all the
consequences of the conspiracy, including the homicide
which was intertwined with the robbery committed by his
conspirator. The homicide was committed on the occasion or
by reason of the robbery.
The rule is that where the conspirarcy to commit robbery was
conclusively shown by the concurrent and coordinate acts of
the accused, and homicide was committed as consequence,
or on the occasion, of the robbery, all of the accused are
guilty of robo con homicidio whether or not they actually
participated in the killing (People vs. Lingad, 98 Phil. 5; People
vs. Puno, L-31594, April 29, 1974, 56 SCRA 659, 663).
Generally, when robo con homicidio has been proven. all
those who had taken part int the robbery are guilty of the
special complex crime unless it appears that they endoevored
to prevent the homicide (U.S. vs. Macalalad, 9 Phil. 1). tha
same rule is followed is Spanish jurisprudence.
Son resonsables de este delito (robo con homicidio)
en concepto de autor no solo todos los que cooperen a la
muerte, siquiera sea con supresencia, sino tabien todos los
que intevienen en la ejecucion del robo aun cuando no temon
parte en el homicidio: (2 Cuello Calon, Derecho Penal, 1975
Edition, p. 976).
Cuestion II. Comedio un robo con violencia e intimidacion e
las personas por dos sujetos, uno de los cuales dispara un
trbuco, dejando muerto en el acto a un tercero que acude en
auxilo de llos rabalos, el que no disparo sera solo responsable
56
del robo, o al igual que su consorte, incurrira en la pena del
robo con homicido, previsto en el numero 10 del art. 516 que
comentamos?
El Tribunal Supremo ha declarado que siendo ambos
procesados autores del robo, lo son igualmentedel homicido
que ocurrio en el ultimo delito esta de tal manera enlazado
con el de robo, que a no prestarselo el tercero hubiese sido
muerto como lo fue; y que por ambos procesados, son
autores uno y otro, segun el art. 13 del Codigo penal, y por lo
lmismo responsables los dos de todas las consequencias de
su accion." (Sentencia de 30 de Abril de 1872; 3 Viada, Codigo
Penal 347).
El propio Tribunal Supremo ha resulto; 'que si resulta
probado la delincuencia del procesado en el hecho
generador, que es el robo, con ocasion del que se cometio un
homijcidio, basta esto, en conformidad a lo dispuesto en, el
num. 1.º del art. 516, para conderearle tambien responsable
de homicidio; resolucion cuya justicia evidencia aun mas al
parrafo segundo del art. 518, en el que se declara que los
malchechores presentes a la ejecucion de un robo en
despoblado y en cuadrilla so autores de cualquera de los
atentados que esta cometa. si on constare que procuraron
impedirios. (Sentencia de 23 de Febrero de 1872; 3 Viada,
Codigo Penal, Cuarta Edicion, p. 347).
It may be added that the presence of Page in the front seat,
armed with a balisong, must have emboldened Camposano
to threaten Veronica Balacapo and to cause her death with
impunity.
The lower court failed to order the accused to pay the sum of
P95 as the value of the things taken by Camposano from the
deceased victim.
The case of Page, a former high school student, now twenty
four years old, the child of estranged parents (he lived with
his father), who, at the age of eighteen years, was implicated
in robbery with homicide, undoubtedly by reason of poverty,
should ordinarily excite some sympathy and might evoke
compassionate justice.
Pressed by his lawyer to examine his conscience and to state
truthfully whether he was implicated in the holdup, Page
cried and said: "Before the eyes of God, I really do not have
anything to do with it. That is why I am very sad, sir. I am
being charged for a crime which I have not done. I have been
in jail. I have nothing to do with it" (19 tsn December 19,
1972).
Of course, he did not kill the victim. But, under the rules of
conspiracy, he is deemed to be a co-principal in the robbery
with homicide.
He testified that he was single, However, Rosita Lareza,
claiming to be his wife, and Teresita Cordero, posing as his
girl friend, filed written requests for the early disposition of
his case (pp. 125 and 140, Rollo).

We have already mentioned that he was charged with theft in

the municipal court but the case was dismissed. At the time
the instant case was filed in 1972, he was charged also in the
municipal court with simple robbery and two cases of
robbery with murder (Criminal Cases Nos. 30000, 30001 and
30038) (p. 12, Expediente of Criminal Case No. 5396). He was
also charged in Criminal Cases Nos. 5395 and 9765 of the
Court of First Instance of Rizal. (See I. S. No. 73-5054 for
robbery filed in the fiscal's office at Pasig, Rizal, pp. 63, 70 and
78 of Rollo). What happened to those cases is not shown in
the record.

His behavior in prison has not been exemplary. On October 7,

1975 Page and five other prisoners comandered the truck,
which was delivering foodstuffs at the prison compound, held
as hostages the driver and the kitchen supervisor, and tried to
escape. Page and four others were recaptured (p. 119, Rollo).

Page in his letter to the Chief Justice dated April 14, 1977
manifested that, inasmuch as he could not endure the
discomforts of prolonged confinement, he was amenable to
be electrocuted (he was only sentenced to reclusion
perpetua by the trial court).

This is a case where considerations of leniency are out of

place. The full force of retributive justice should be brought
to bear upon the accused. Many persons have been
victimized in extortions or holdups committed in buses,
taxicabs and jeepneys. The court should cooperate with the
agents of the law in making these public conveyances a safe
means of travel.

WHEREFORE, the lower court's judgment is affirmed with

slight modification that appellant should further pay-the heirs
of the victim the sum of P95 representing the value of the
watch, earrings and necklace taken from her. Costs against
the defendant-appellant.

SO ORDERED.

Barredo, Antonio and Martin, JJ., concur.

Fernando (Chairman), J., concurs in the result.

Martin, J., was designated to sit in the Second Division.

Concepcion Jr., J., is on leave.

57
58

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
(Sgd.)
Assistant City Fiscal
G.R. No. L-1896 February 16, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor
Adolfo Brillantes for appellee.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel,
pleaded guilty to the following information filed against him
in the Court of First Instance of Manila:
The undersigned accuses Rafael Balmores y Caya of
attempted estafa through falsification of a security,
committed as follows:
That on or about the 22nd day of September, 1947, in the
City of Manila, Philippines, the said accused did then and
there wilfully, unlawfully and feloniously commence the
commission of the crime of estafa through falsification of a
security directly by overt acts, to wit; by then and there
tearing off at the bottom in a cross-wise direction a portion of
a genuine 1/8 unit Philippine Charity Sweepstakes ticket
thereby removing the true and real unidentified number of
same and substituting and writing in ink at the bottom on the
left side of said ticket the figure or number 074000 thus
making the said ticket bear the said number 074000, which is
a prize-winning number in the Philippine Charity Sweepstakes
draw last June 29, 1947, and presenting the said ticket so
falsified on said date, September 22, 1947, in the Philippine
Charity Sweepstakes Office for the purpose of exchanging the
same for the corresponding cash that said number has won,
fraudulently pretending in said office that the said 1/8 unit of
a Philippine Charity Sweepstakes ticket is genuine and that he
is entitled to the corresponding amount of P359.55 so won by
said ticket in the Philippine Charity Sweepstakes draw on said
date, June 29, 1947, but the said accused failed to perform all
the acts of execution which would have produce the crime of
estafa through falsification of a security as a consequence by
reason of some causes other than this spontaneous
desistance, to wit: one Bayani Miller, an employee to whom
the said accused presented said ticket in the Philippine
Charity Sweepstakes Office discovered that the said ticket as
presented by the said accused was falsified and immediately
59
thereafter he called for a policeman who apprehended and
arrested the said accused right then and there.
Contrary to law.
LORENZO RELOVA
and was sentenced by Judge Emilio Pena to suffer not less
than 10 years and 1 day of prision mayor and not more than
12 years and 1 day of reclusion temporal, and to pay a fine of
P100 and the costs.
From that sentence he appealed to this court, contending (1)
that the facts and (2) that the trial court lacked jurisdiction to
convict him on a plea of guilty because, being illiterate, he
was not assisted by counsel.
In support of the first contention, counsel for the appellant
argues that there could be so could be no genuine 1/8 unit
Philippine Charity Sweepstakes ticket for the June 29, 1947,
draw; that this court has judicial notice that the Philippine
Charity Sweepstakes Office issued only four 1/4 units for each
ticket for the said draw of June 29, 1947; that the information
does not show that the true and real unidentified number of
the ticket alleged to have been torn was not and could not be
074000; that the substitution and writing in ink of the said
number 074000 was not falsification where the true and real
number of the ticket so torn was 074000.
This contention is based on assumption not borne out by the
record. The ticket alleged to have been falsified is before us
and it appears to be a 1/8 unit. We cannot take judicial notice
of what is not of common knowledge. If relevant, should have
been proved. But if it is true that the Philippine Charity
Sweepstakes Office did not issue 1/8 but only 1/4 units of
tickets for the June 29, 1947, draw, that would only
strengthen the theory of the prosecution that the 1/8 unit of
a ticket which appellant presented to the Philippine Charity
Sweepstakes Office was spurious. The assumption that the
true and real unidentified number of the ticket alleged to
have been torn was the winning number 074000, is likewise
not supported by the record. The information to which
appellant pleaded guilty alleged that the appellant removed
the true and real unidentified number of the ticket
and substituted and wrote in ink at the bottom on the left
side of said ticket the figure or number 074000. It is obvious
that there would have been no need of removal
and substitution if the original number on the ticket was the
same as that which appellant wrote in ink in lieu thereof.
The second contention appears to be based on a correct
premises but wrong conclusion. The fact that appellant was
illiterate did not deprive the trial court of jurisdiction assisted
by counsel. The decision expressly states that appellant
waived the right to be assisted by counsel, and we know of no
law against such waiver.
It may be that appellant was either reckless or foolish in
believing that a falsification as patent as that which he
admitted to have perpetrated would succeed; but the
recklessness and clumsiness of the falsification did not make
the crime impossible within the purview of paragraph 2,
article 4, in relation to article 59, of the Revised Penal Code.
Examples of an impossible crime, which formerly was not
punishable but is now under article 59 of the Revised Penal
Code, are the following: (1) When one tries to kill another by
putting in his soup a substance which he believes to be
arsenic when in fact it is common salt; and (2) when one tries
to murder a corpse. (Guevara, Commentaries on the Revised
Penal Code, 4th ed., page 15; decision, Supreme Court of
Spain, November 26, 1879; 12 Jur. Crim., 343.) Judging from
the appearance of the falsified ticket in question, we are not
prepared to say that it would have been impossible for the
appellant to consummate the crime of estafa thru falsification
of said ticket if the clerk to whom it was presented for the
payment had not exercised due care.
The penalty imposed by article 166 for the forging or
falsification of "treasury or bank notes or certificates or other
obligations and securities" is reclusion temporal in its
minimum period and a fine not to exceed P10,000, if the
document which has been falsified, counterfeited, or altered
is an obligation or security of the United States or of the
Philippine Islands. This being a complex crime of attempted
estafa through falsification of an obligation or security of the
Philippines, the penalty should be imposed in its maximum
period in accordance with article 48. Taking into
consideration the mitigating circumstance of lack of
instruction, and applying the Indeterminate Sentence Law,
the minimum cannot be lower than prision mayor in its
maximum period, which is 10 years and 1 day to 12 years. It
results, therefore, that the penalty imposed by the trial court
is correct.
The alteration, or even destruction, of a losing sweepstakes
ticket could cause no harm to anyone and would not
constitute a crime were it not for the attempt to cash the
ticket so altered as a prize-winning number. So in the
ultimate analysis appellant's real offense was the attempt to
commit estafa (punishable with eleven days of arresto
menor); but technically and legally he has to suffer for the
serious crime of falsification of a government obligation. We
realize that the penalty is too severe, considering all the
circumstances of the case, but we have no discretion to
impose a lower penalty than authorized by law. The exercise
of clemency and not in this court.
We are constrained to affirm the sentence appealed from,
with costs against the appellant.
60
Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor,
Reyes and Torres, JJ., concur.
Separate Opinions
PARAS, J., dissenting:
The accused-appellant, instead of being the victimizer, had
become the victim. He was accused of having falsified a
genuine 1/8 unit of the Philippine Charity Sweepstakes ticket
for the June, 1947, draw by tearing off at its bottom in a
cross-wise direction a portion, thereby removing the true and
unidentified number of said ticket and substituting and
writing in ink at the bottom on the left side the number
074000, thus making said ticket bear a prize-winning number.
He was convicted of attempted estafa thru falsification of an
obligation or security and sentenced to an indeterminate
penalty of from 10 years and 1 day of prision mayor 12 years
and 1 day of reclusion temporal, and to pay a fine of P100
plus the costs. He waived the right to be assisted by counsel
and merely pleaded guilty to the information.
The appellant is admittedly an illiterate and, in my opinion,
had committed only an impossible crime now punishable
under paragraph 2, article 4, in relation to article 59, of the
Revised Penal Code. I say impossible, because in the way the
alleged falsification was done, it was inherently inadequate or
ineffective and according certain to be detected. Stated
otherwise, the appellant could not have succeeded in cashing
the ticket. Flor who would cash a ticket which, in the first
place, has a missing portion and, in the second place,
contains a number written in ink. Not even boy agents who
conduct their trades on street sidewalks, and much less the
employee of the Sweepstakes Office to whom it was
presented. As a matter of fact, the falsification was readily
detected by said employee. The crime is just as impossible as
passing a counterfeit paper bill concocted in regular
newsprint and in ordinary handwriting.
A doubt also arises from the fact that the ticket is a 1/8 unit,
in the face of the contention of attorney for appellant in this
instance that the tickets for the June, 1947, Sweepstakes
draw consisted of only four units. Of course, this may not be a
matter of judicial notice, but the point remains that if
appellant was assisted by competent counsel in the trial
court, the fact might have been duly proven. It is true that the
appellant waived his right to be assisted by counsel, but we
cannot help pointing out that a miscarriage of justice may
sometime result by force of circumstances. In such cases, any
capital doubt should be resolved in favor of the accused.
My vote, therefore, is to reverse the appealed judgment and
to release the appellant immediately as he has been in prison
since November 11, 1947.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162540 July 13, 2009
GEMMA T. JACINTO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by
petitioner Gemma T. Jacinto seeking the reversal of the
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
23761 dated December 16, 2003, affirming petitioner's
conviction of the crime of Qualified Theft, and its
Resolution2 dated March 5, 2004 denying petitioner's motion
for reconsideration.
Petitioner, along with two other women, namely, Anita Busog
de Valencia y Rivera and Jacqueline Capitle, was charged
before the Regional Trial Court (RTC) of Caloocan City, Branch
131, with the crime of Qualified Theft, allegedly committed as
follows:
That on or about and sometime in the month of July 1997, in
Kalookan City, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring
together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein
represented by JOSEPH DYHENGCO Y CO, and as such had
free access inside the aforesaid establishment, with grave
abuse of trust and confidence reposed upon them with intent
to gain and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account,
Banco De Oro Check No. 0132649 dated July 14, 1997 in the
sum of ₱10,000.00, 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
₱10,000.00.
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.
61
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 ₱10,000.00. 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 ₱10,000.00 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 ₱10,000.00 cash in August 1997 as replacement for the
dishonored check.6
Generoso Capitle, presented as a hostile witness, admitted
depositing the subject BDO check in his bank account, but
explained that the check came into his possession when some
unknown woman arrived at his house around the first week
of July 1997 to have the check rediscounted. He parted with
his cash in exchange for the check without even bothering to
inquire into the identity of the woman or her address. When
he was informed by the bank that the check bounced, he
merely disregarded it as he didn’t know where to find the
woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National
Bureau of Investigation (NBI) and worked out an entrapment
operation with its agents. Ten pieces of ₱1,000.00 bills
provided by Dyhengco were marked and dusted with
fluorescent powder by the NBI. Thereafter, the bills were
given to Ricablanca, who was tasked to pretend that she was
going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the
latter's house. Petitioner, who was then holding the bounced
BDO check, handed over said check to Ricablanca. They
originally intended to proceed to Baby Aquino's place to have
the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21,
2007.
On the agreed date, Ricablanca again went to petitioner’s
house, where she met petitioner and Jacqueline Capitle.
Petitioner, her husband, and Ricablanca went to the house of
Anita Valencia; Jacqueline Capitle decided not to go with the
group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then
boarded petitioner's jeep and went on to Baby Aquino's
factory. Only Ricablanca alighted from the jeep and entered
the premises of Baby Aquino, pretending that she was getting
cash from Baby Aquino. However, the cash she actually
brought out from the premises was the ₱10,000.00 marked
money previously given to her by Dyhengco. Ricablanca
divided the money and upon returning to the jeep, gave
₱5,000.00 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
62
some time before her resignation from the company. She
further testified that, on the day of the arrest, Ricablanca
came to her mother’s house, where she was staying at that
time, and asked that she accompany her (Ricablanca) to Baby
Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided
to hitch a ride with the former and her husband in their jeep
going to Baby Aquino's place in Caloocan City. She allegedly
had no idea why Ricablanca asked them to wait in their jeep,
which they parked outside the house of Baby Aquino, and
was very surprised when Ricablanca placed the money on her
lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of
Mega Foam until she resigned on June 30, 1997. It was never
part of her job to collect payments from customers.
According to her, on the morning of August 21, 1997,
Ricablanca called her up on the phone, asking if she (Valencia)
could accompany her (Ricablanca) to the house of Baby
Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know
where Baby Aquino resided, as she had never been to said
house. They then met at the house of petitioner's mother,
rode the jeep of petitioner and her husband, and proceeded
to Baby Aquino's place. When they arrived at said place,
Ricablanca alighted, but requested them to wait for her in the
jeep. After ten minutes, Ricablanca came out and, to her
surprise, Ricablanca gave her money and so she even asked,
"What is this?" Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on
October 4, 1999, the RTC rendered its Decision, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds
accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
Valencia y Rivera and Jacqueline Capitle GUILTY beyond
reasonable doubt of the crime of QUALIFIED THEFT and each
of them is hereby sentenced to suffer imprisonment of FIVE
(5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as
minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND
TWENTY (20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a
Decision was promulgated, the dispositive portion of which
reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court
is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to
4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA
Decision was filed only for petitioner Gemma Tubale Jacinto,
but the same was denied per Resolution dated March 5,
2004.
Hence, the present Petition for Review on Certiorari filed by
petitioner alone, assailing the Decision and Resolution of the
CA. The issues raised in the petition are as follows:
1. Whether or not petitioner can be convicted of a crime not
charged in the information;
2. Whether or not a worthless check can be the object of
theft; and
3. Whether or not the prosecution has proved petitioner's
guilt beyond reasonable doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of
evidence to constitute the elements of the crime of qualified
theft defined under Article 308, in relation to Article 310,
both of the Revised Penal Code: (1) the taking of personal
property - as shown by the fact that petitioner, as collector
for Mega Foam, did not remit the customer's check payment
to her employer and, instead, appropriated it for herself; (2)
said property belonged to another − the check belonged to
Baby Aquino, as it was her payment for purchases she made;
(3) the taking was done with intent to gain – this is presumed
from the act of unlawful taking and further shown by the fact
that the check was deposited to the bank account of
petitioner's brother-in-law; (4) it was done without the
owner’s consent – petitioner hid the fact that she had
received the check payment from her employer's customer
by not remitting the check to the company; (5) it was
accomplished without the use of violence or intimidation
against persons, nor of force upon things – the check was
voluntarily handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it was done
with grave abuse of confidence – petitioner is admittedly
entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned
Articles of the Revised Penal Code, the personal property
subject of the theft must have some value, as the intention
of the accused is to gain from the thing stolen.This is further
bolstered by Article 309, where the law provides that the
63
penalty to be imposed on the accused is dependent on the
value of the thing stolen.
In this case, petitioner unlawfully took the postdated check
belonging to Mega Foam, but the same was apparently
without value, as it was subsequently dishonored. Thus, the
question arises on whether the crime of qualified theft was
actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable
to the present case. In Intod, the accused, intending to kill a
person, peppered the latter’s bedroom with bullets, but since
the intended victim was not home at the time, no harm came
to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was
adjudged guilty only of an impossible crime as defined and
penalized in paragraph 2, Article 4, in relation to Article 59,
both of the Revised Penal Code, because of the factual
impossibility of producing the crime. Pertinent portions of
said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility
shall be incurred:
xxxx
2. By any person performing an act which would be an
offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on
account of the employment of inadequate to ineffectual
means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit
the crime because the means employed or the aims sought
are impossible. - When the person intending to commit an
offense has already performed the acts for the execution of
the same but nevertheless the crime was not produced by
reason of the fact that the act intended was by its nature one
of impossible accomplishment or because the means
employed by such person are essentially inadequate to
produce the result desired by him, the court, having in mind
the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto
mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the
act performed would be an offense against persons or
property; (2) that the act was done with evil intent; and (3)
that its accomplishment was inherently impossible, or the
means employed was either inadequate or ineffectual. The
aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code
was further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot
produce an offense against persons or property because: (1)
the commission of the offense is inherently impossible of
accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.
That the offense cannot be produced because the
commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible
under this clause, the act intended by the offender must be
by its nature one impossible of accomplishment. There must
be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the act as
an impossible crime.
Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this
category.
On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or beyond
his control prevent the consummation of the intended crime.
x x x 11
In Intod, the Court went on to give an example of an offense
that involved factual impossibility, i.e., a man puts his hand in
the coat pocket of another with the intention to steal the
latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example
of factual impossibility given in Intod. In this case, petitioner
performed all the acts to consummate the crime of qualified
theft, which is a crime against property. Petitioner's evil
intent cannot be denied, as the mere act of unlawfully taking
the check meant for Mega Foam showed her intent to gain or
be unjustly enriched. Were it not for the fact that the check
bounced, she would have received the face value thereof,
which was not rightfully hers. Therefore, it was only due to
the extraneous circumstance of the check being unfunded, a
fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing unlawfully taken by
petitioner turned out to be absolutely worthless, because the
check was eventually dishonored, and Mega Foam had
received the cash to replace the value of said dishonored
check.1avvphi1
The fact that petitioner was later entrapped receiving the
₱5,000.00 marked money, which she thought was the cash
replacement for the dishonored check, is of no moment. The
Court held in Valenzuela v. People12 that under the definition
of theft in Article 308 of the Revised Penal Code, "there is
64
only one operative act of execution by the actor involved in
theft ─ the taking of personal property of another."
Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the
language of the law — that theft is already "produced" upon
the "tak[ing of] personal property of another without the
latter’s consent."
xxxx
x x x when is the crime of theft produced? There would be all
but certain unanimity in the position that theft is produced
when there is deprivation of personal property due to its
taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that
the offender, once having committed all the acts of execution
for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has
already ensued from such acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of one’s
personal property, is the element which produces the felony
in its consummated stage. x x x 13
From the above discussion, there can be no question that as
of the time that petitioner took possession of the check
meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible
of accomplishment in this case. The circumstance of
petitioner receiving the ₱5,000.00 cash as supposed
replacement for the dishonored check was no longer
necessary for the consummation of the crime of qualified
theft. Obviously, the plan to convince Baby Aquino to give
cash as replacement for the check was hatched only after the
check had been dishonored by the drawee bank. Since the
crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner
was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to
gain.
Moreover, the fact that petitioner further planned to have
the dishonored check replaced with cash by its issuer is a
different and separate fraudulent scheme. Unfortunately,
since said scheme was not included or covered by the
allegations in the Information, the Court cannot pronounce
judgment on the accused; otherwise, it would violate the due
process clause of the Constitution. If at all, that fraudulent
scheme could have been another possible source of criminal
liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The

Decision of the Court of Appeals, dated December 16, 2003,
and its Resolution dated March 5, 2004,
are MODIFIED. Petitioner Gemma T. Jacinto is
found GUILTY of an IMPOSSIBLE CRIME as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the
costs.

SO ORDERED.

65
66
 FIRST DIVISION
G.R. No. 166326 January 25, 2006
ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO
RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR No. 27215 affirming, with
modification, the Decision2 of the Regional Trial Court (RTC)
of Cavite, Branch 90, in Criminal Case No. 6962-99,
entitled People of the Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of
Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, all
surnamed Rivera, of attempted murder. The accusatory
portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality
of Dasmariñas, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one
another, with intent to kill, with treachery and evident
premeditation, did then and there, wilfully, unlawfully, and
feloniously attack, assault and hit with a piece of hollow
block, one RUBEN RODIL who thereby sustained a non-mortal
injury on his head and on the different parts of his body, the
accused thus commenced the commission of the felony
directly by overt acts, but failed to perform all the acts of
execution which would produce the crime of Murder by
reason of some causes other than their own spontaneous
desistance, that is, the said Ruben Rodil was able to ran (sic)
away and the timely response of the policemen, to his
damage and prejudice.
CONTRARY TO LAW.3
Ruben Rodil testified that he used to work as a taxi driver. He
stopped driving in April 1998 after a would-be rapist
threatened his life. He was even given a citation as
a Bayaning Pilipino by the television network ABS-CBN for
67
saving the would-be victim. His wife eked out a living as a
manicurist. They and their three children resided in Barangay
San Isidro Labrador II, Dasmariñas, Cavite, near the house of
Esmeraldo Rivera and his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy
food. Edgardo mocked him for being jobless and dependent
on his wife for support. Ruben resented the rebuke and
hurled invectives at Edgardo. A heated exchange of words
ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the
store to buy food and to look for his wife. His three-year-old
daughter was with him. Momentarily, Esmeraldo and his two
brothers, Ismael and Edgardo, emerged from their house and
ganged up on Ruben. Esmeraldo and Ismael mauled Ruben
with fist blows and he fell to the ground. In that helpless
position, Edgardo hit Ruben three times with a hollow block
on the parietal area. Esmeraldo and Ismael continued
mauling Ruben. People who saw the incident shouted:
"Awatin sila! Awatin sila!" Ruben felt dizzy but managed to
stand up. Ismael threw a stone at him, hitting him at the
back. When policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician,
Dr. Lamberto Cagingin, Jr., signed a medical certificate in
which he declared that Ruben sustained lacerated wounds on
the parietal area, cerebral concussion or contusion,
hematoma on the left upper buttocks, multiple abrasions on
the left shoulder and hematoma periorbital left.4 The doctor
declared that the lacerated wound in the parietal area was
slight and superficial and would heal from one to seven
days.5 The doctor prescribed medicine for Ruben’s back pain,
which he had to take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998,
Ruben arrived at his house and banged the gate. Ruben
challenged him and his brothers to come out and fight. When
he went out of the house and talked to Ruben, the latter
punched him. They wrestled with each other. He fell to the
ground. Edgardo arrived and pushed Ruben aside. His wife
arrived, and he was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and
his brother Esmeraldo, but Ruben grabbed him by the hair.
He managed to free himself from Ruben and the latter fled.
He went home afterwards. He did not see his brother
Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he
was throwing garbage in front of their house. Ruben arrived
and he went inside the house to avoid a confrontation. Ruben
banged the gate and ordered him to get out of their house
and even threatened to shoot him. His brother Esmeraldo
went out of their house and asked Ruben what the problem
was. A fist fight ensued. Edgardo rushed out of the house and
pushed Ruben aside. Ruben fell to the ground. When he
stood up, he pulled at Edgardo’s shirt and hair, and, in the
process, Ruben’s head hit the lamp post.7
On August 30, 2002, the trial court rendered judgment
finding all the accused guilty beyond reasonable doubt of
frustrated murder. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, all the accused are found
GUILTY beyond reasonable doubt and are sentenced to an
imprisonment of six (6) years and one (1) day to eight (8)
years of prision mayor as the prosecution has proved beyond
reasonable doubt the culpability of the accused. Likewise, the
accused are to pay, jointly and severally, civil indemnity to
the private complainant in the amount of P30,000.00.
SO ORDERED.8
The trial court gave no credence to the collective testimonies
of the accused and their witnesses. The accused appealed to
the CA, which rendered judgment on June 8, 2004 affirming,
with modification, the appealed decision. The dispositive
portion of the CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus,
Cavite, Branch 90, is MODIFIED in that the appellants are
convicted of ATTEMPTED MURDER and sentenced to an
indeterminate penalty of 2 years of prision correccional as
minimum to 6 years and 1 day of prision mayor as maximum.
In all other respects, the decision appealed from is
AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for
review on certiorari, alleging that the CA erred in affirming
the RTC decision. They insist that the prosecution failed to
prove that they had the intention to kill Ruben when they
mauled and hit him with a hollow block. Petitioners aver that,
based on the testimony of Dr. Cagingin, Ruben sustained only
a superficial wound in the parietal area; hence, they should
68
be held criminally liable for physical injuries only. Even if
petitioners had the intent to kill Ruben, the prosecution failed
to prove treachery; hence, they should be held guilty only of
attempted homicide.
On the other hand, the CA held that the prosecution was able
to prove petitioners’ intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from
the nature of the wound inflicted and the kind of weapon
used. Intent to kill was established by victim Ruben Rodil in
his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong,
what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed
up with a piece of hollow block xxx and hit me thrice on the
head, Sir.
Q: And what about the two (2), what were they doing when
you were hit with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing
me while Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed
the victim had the hollow block directly hit his head, and had
the police not promptly intervened so that the brothers
scampered away. When a wound is not sufficient to cause
death, but intent to kill is evident, the crime is attempted.
Intent to kill was shown by the fact that the (3) brothers
helped each other maul the defenseless victim, and even
after he had already fallen to the ground; that one of them
even picked up a cement hollow block and proceeded to hit
the victim on the head with it three times; and that it was
only the arrival of the policemen that made the appellants
desist from their concerted act of trying to kill Ruben Rodil.10
The Office of the Solicitor General (OSG), for its part, asserts
that the decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses
defeat the presumption of innocence raised by petitioners.
The crime has been clearly established with petitioners as the
perpetrators. Their intent to kill is very evident and was
established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo
clearly and categorically declared that the victim Ruben Rodil
was walking along St. Peter Avenue when he was suddenly
boxed by Esmeraldo "Baby" Rivera. They further narrated
that, soon thereafter, his two brothers Ismael and Edgardo
"Dagul" Rivera, coming from St. Peter II, ganged up on the
victim. Both Alicia Vera Cruz and Lucita Villejo recounted that
they saw Edgardo "Dagul" Rivera pick up a hollow block and
hit Ruben Rodil with it three (3) times. A careful review of
their testimonies revealed the suddenness and
unexpectedness of the attack of petitioners. In this case, the
victim did not even have the slightest warning of the danger
that lay ahead as he was carrying his three-year old daughter.
He was caught off-guard by the assault of Esmeraldo "Baby"
Rivera and the simultaneous attack of the two other
petitioners. It was also established that the victim was hit by
Edgardo "Dagul" Rivera, while he was lying on the ground and
being mauled by the other petitioners. Petitioners could have
killed the victim had he not managed to escape and had the
police not promptly intervened.
Petitioners also draw attention to the fact that the injury
sustained by the victim was superficial and, thus, not life
threatening. The nature of the injury does not negate the
intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed
the victim had the hollow block directly hit his head, and had
the police not promptly intervened so that the brothers
scampered away. When a wound is not sufficient to cause
death, but intent to kill is evident, the crime is attempted.
Intent to kill was shown by the fact that the three (3) brothers
helped each other maul the defenseless victim, and even
after he had already fallen to the ground; that one of them
picked up a cement hollow block and proceeded to hit the
victim on the head with it three times; and that it was only
the arrival of the policemen that made the appellants desist
from their concerted act of trying to kill Ruben Rodil.11
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in
their consummated, frustrated or attempted stage, is intent
of the offenders to kill the victim immediately before or
simultaneously with the infliction of injuries. Intent to kill is a
specific intent which the prosecution must prove by direct or
circumstantial evidence, while general criminal intent is
presumed from the commission of a felony by dolo.
69
In People v. Delim,12 the Court declared that evidence to
prove intent to kill in crimes against persons may
consist, inter alia, in the means used by the malefactors, the
nature, location and number of wounds sustained by the
victim, the conduct of the malefactors before, at the time, or
immediately after the killing of the victim, the circumstances
under which the crime was committed and the motives of the
accused. If the victim dies as a result of a deliberate act of the
malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the requisite
quantum of evidence to prove the intent of petitioners to kill
Ruben. Esmeraldo and Ismael pummeled the victim with fist
blows. Even as Ruben fell to the ground, unable to defend
himself against the sudden and sustained assault of
petitioners, Edgardo hit him three times with a hollow block.
Edgardo tried to hit Ruben on the head, missed, but still
managed to hit the victim only in the parietal area, resulting
in a lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely
superficial and could not have produced his death does not
negate petitioners’ criminal liability for attempted murder.
Even if Edgardo did not hit the victim squarely on the head,
petitioners are still criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code
defines an attempt to commit a felony, thus:
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the
felony directly by overt acts;
2. He does not perform all the acts of execution
which should produce the felony;
3. The offender’s act be not stopped by his own
spontaneous desistance;
4. The non-performance of all acts of execution was
due to cause or accident other than his spontaneous
desistance.13
The first requisite of an attempted felony consists of two
elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with
the crime intended to be committed.14
The Court in People v. Lizada15 elaborated on the concept of
an overt or external act, thus:
An overt or external act is defined as some physical activity or
deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried
out to its complete termination following its natural course,
without being frustrated by external obstacles nor by the
spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison d’etre for
the law requiring a direct overt act is that, in a majority of
cases, the conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of
the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is
so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the
accused is. It is necessary that the overt act should have been
the ultimate step towards the consummation of the design. It
is sufficient if it was the "first or some subsequent step in a
direct movement towards the commission of the offense
after the preparations are made." The act done need not
constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal
relation to the intended crime. In the words of Viada, the
overt acts must have an immediate and necessary relation to
the offense.16
In the case at bar, petitioners, who acted in concert,
commenced the felony of murder by mauling the victim and
hitting him three times with a hollow block; they narrowly
missed hitting the middle portion of his head. If Edgardo had
done so, Ruben would surely have died.
We reject petitioners’ contention that the prosecution failed
to prove treachery in the commission of the felony.
Petitioners attacked the victim in a sudden and unexpected
manner as Ruben was walking with his three-year-old
70
daughter, impervious of the imminent peril to his life. He had
no chance to defend himself and retaliate. He was
overwhelmed by the synchronized assault of the three
siblings. The essence of treachery is the sudden and
unexpected attack on the victim.17 Even if the attack is frontal
but is sudden and unexpected, giving no opportunity for the
victim to repel it or defend himself, there would be
treachery.18 Obviously, petitioners assaulted the victim
because of the altercation between him and petitioner
Edgardo Rivera a day before. There being conspiracy by and
among petitioners, treachery is considered against all of
them.19
The appellate court sentenced petitioners to suffer an
indeterminate penalty of two (2) years of prision
correccionalin its minimum period, as minimum, to six years
and one day of prision mayor in its maximum period, as
maximum. This is erroneous. Under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, the
penalty for murder is reclusion perpetua to death. Since
petitioners are guilty only of attempted murder, the penalty
should be reduced by two degrees, conformably to Article 51
of the Revised Penal Code. Under paragraph 2 of Article 61, in
relation to Article 71 of the Revised Penal Code, such a
penalty is prision mayor. In the absence of any modifying
circumstance in the commission of the felony (other than the
qualifying circumstance of treachery), the maximum of the
indeterminate penalty shall be taken from the medium
period of prision mayor which has a range of from eight (8)
years and one (1) day to ten (10) years. To determine the
minimum of the indeterminate penalty, the penalty of prision
mayor should be reduced by one degree, prision correccional,
which has a range of six (6) months and one (1) day to six (6)
years.
Hence, petitioners should be sentenced to suffer an
indeterminate penalty of from two (2) years of prision
correccional in its minimum period, as minimum, to nine (9)
years and four (4) months of prision mayor in its medium
period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
lack of merit. The Decision of the Court of Appeals
is AFFIRMED WITH THE MODIFICATION that petitioners are
sentenced to suffer an indeterminate penalty of from two (2)
years of prision correccional in its minimum period, as
minimum, to nine (9) years and four (4) months of prision
mayor in its medium period, as maximum. No costs.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A
deadly weapon was used. The blow was directed toward a
vital part of the body. The aggressor stated his purpose to kill,
thought he had killed, and threw the body into the bushes.
When he gave himself up he declared that he had killed the
complainant.
There was alevosia to qualify the crime as murder if death
had resulted. The accused rushed upon the girl suddenly and
struck her from behind, in part at least, with a sharp bolo,
producing a frightful gash in the lumbar region and slightly to
the side eight and one-half inches long and two inches deep,
severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed
at the girl for the reason that she had theretofore charged
him criminally before the local officials with having raped her
and with being the cause of her pregnancy. He was her
mother's querido and was living with her as such at the time
the crime here charged was committed.
That the accused is guilty of some crime is not denied. The
only question is the precise crime of which he should be
convicted. It is contended, in the first place, that, if death has
resulted, the crime would not have been murder but
homicide, and in the second place, that it is attempted and
not frustrated homicide.
As to the first contention, we are of the opinion that the
crime committed would have been murder if the girl had
71
been killed. It is qualified by the circumstance of alevosia, the
accused making a sudden attack upon his victim from the
rear, or partly from the rear, and dealing her a terrible blow
in the back and side with his bolo. Such an attack necessitates
the finding that it was made treacherously; and that being so
the crime would have been qualified as murder if death had
resulted.
As to the second contention, we are of the opinion that the
crime was frustrated and not attempted murder. Article 3 of
the Penal Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all
the acts of execution which should produce the
felony as a consequence, but which, nevertheless,
do not produce it by reason of causes independent
of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences
the commission of the felony directly by overt acts,
and does not perform all the acts of execution which
constitute the felony by reason of some cause or
accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the
fact that the defendant performed all of the acts which
should have resulted in the consummated crime
and voluntarily desisted from further acts. A crime cannot be
held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against
his will, by some outside cause from performing all of the acts
which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he
has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated
felony is that, in the latter, there is no intervention of a
foreign or extraneous cause or agency between the beginning
of the commission of the crime and the moment when all of
the acts have been performed which should result in the
consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He
is stopped short of that point by some cause apart from his
voluntary desistance.

To put it in another way, in case of an attempt the offender

never passes the subjective phase of the offense. He is
interrupted and compelled to desist by the intervention of
outside causes before the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective

phase is completely passed. Subjectively the crime is
complete. Nothing interrupted the offender while he was
passing through the subjective phase. The crime, however, is
not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was
necessary to commit the crime. If the crime did not result as a
consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting

the crime included between the act which begins the
commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the
consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by
the acts of the offender over which he has control — that
period between the point where he begins and the points
where he voluntarily desists. If between these two points the
offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been
passed and it is an attempt. If he is not so stopped but
continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena

temporal there being neither aggravating nor mitigating
circumstance. As so modified, the judgment is affirmed with
costs. So ordered.

Torres and Araullo, JJ., concur.

Carson and Trent, JJ., concur in the result.

72
 FIRST DIVISION
G.R. No. 122099 July 5, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y
ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and
Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y
Esquela, Marlon dela Torre, George dela Torre, Bonifacio
Bancaya and several others who are still at large were
charged in two (2) separate Amended Informations with
Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information1 for
Murder alleges –
That on or about the 11th day of August 1991 in the
Municipality of Muntinlupa, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and
mutually helping and aiding one another, all armed with
bladed weapons and GI lead pipes, with intent to kill,
treachery and evident premeditation with abuse of superior
strength did then and there willfully, unlawfully and
feloniously attack, assault and stab one Jeonito Araque y
Daniel at the back of his body, thereby inflicting upon the
latter mortal wounds which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information2 for
Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the
Municipality of Muntinlupa, Metro Manila, Philippines and
within the jurisdiction this Honorable Court, the above-
named accused, conspiring, confederating together, mutually
helping and aiding one another, with intent to kill did then
and there willfully, unlawfully and feloniously stab and hit
with a lead pipe and bladed weapon one Marlon Araque y
Daniel on the vital portions of his body, thereby inflicting
73
serious and mortal wounds which would have cause[d] the
death of the said victim thus performing all the acts of
execution which should have produce[d] the crime of
Homicide as a consequence but nevertheless did not produce
it by reason of causes independent of their will, that is by
timely and able medical attendance rendered to said Marlon
Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and
Samson dela Torre y Esquela pleaded not guilty to the crimes
charged. Their other co-accused have remained at large.
Trial thereafter ensued after which the court a quo rendered
judgment only against accused Agapito Listerio because his
co-accused Samson dela Torre escaped during the
presentation of the prosecution’s evidence and he was not
tried in absentia. The dispositive portion of the
decision3 reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty
beyond reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in
Criminal Case NO. 91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in
Criminal Case No. 91-5843, he is sentenced to six (6)
months and one (1) day as minimum, to four (4)
years as maximum;
3. As civil indemnity, he is ordered to indemnify the
heirs of Jeonito Araque y Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque
y Daniel, he is required to pay Marlon Araque y
Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
 P5,000.00 as exemplary damages
SO ORDERED.4
Dissatisfied, accused Agapito Listerio interposed this appeal
alleging that –
I the forearm23 and a fourth which is a stab wound measuring 3
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH
THE GUILT OF THE ACCUSED BEYOND REASONABLE
DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE
CRIME OF MURDER AND ATTEMPTED HOMICIDE
DESPITE ABSENCE OF PROOF OF CONSPIRACY AND
AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that
fateful day of August 14, 1991 culled from the eyewitness
account of Marlon Araque discloses that at around 5:00 p.m.
of August 14, 1991, he and his brother Jeonito were
in Purok 4, Alabang, Muntinlupa to collect a sum of money
from a certain Tino.5 Having failed to collect anything from
Tino, Marlon and Jeonito then turned back.6 On their way
back while they were passing Tramo near Tino’s place, 7 a
group composed of Agapito Listerio, Samson dela Torre,
George dela Torre, Marlon dela Torre and Bonifacio
Bancaya8 blocked their path9 and attacked them with lead
pipes and bladed weapons.10
Agapito Listerio, Marlon dela Torre and George dela Torre,
who were armed with bladed weapons, stabbed Jeonito
Araque from behind.11 Jeonito sustained three (3) stab
wounds on the upper right portion of his back, another on
the lower right portion and the third on the middle portion of
the left side of his back12 causing him to fall down.13 Marlon
Araque was hit on the head by Samson dela Torre and
Bonifacio Bancaya with lead pipes and momentarily lost
consciousness.14 When he regained his senses three (3)
minutes later, he saw that Jeonito was already dead. 15 Their
assailants then fled after the incident.16 Marlon Araque who
sustained injuries in the arm and back,17 was thereafter
brought to a hospital for treatment.18
Marlon Araque was examined by Dr. Salvador Manimtim,
head of the Medico Legal Division of the UP-PGH, 19 who
74
thereafter issued a Medical Certificate20 indicating that
Marlon Araque sustained two (2) lacerated wounds, one
measuring 5 centimeters in length located in the center (mid-
parietal area) of the ear.21 The second lacerated wound
measuring 2 centimeters in length is located at the mid-
frontal area commonly known as the forehead.22 A third
lacerated wound measuring 1.5 centimeters long is located at
centimeters is located at the right shoulder at the
collar.24 Elaborating on the nature of Marlon Araque’s
injuries, Dr. Manimtim explained in detail during cross-
examination that the two (2) wounds on the forearm and the
shoulder were caused by a sharp object like a knife while the
rest were caused by a blunt instrument such as a lead pipe.25
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an
autopsy on the cadaver of Jeonito Araque26 and prepared an
Autopsy Report27 of his findings. The report which contains a
detailed description of the injuries inflicted on the victim
shows that the deceased sustained three (3) stab wounds all
of them inflicted from behind by a sharp, pointed and single-
bladed instrument like a kitchen knife, balisong or any similar
instrument.28 The first stab wound, measuring 1.7
centimeters with an approximate depth of 11.0 centimeters,
perforated the lower lobe of the left lung and the thoracic
aorta.29 Considering the involvement of a vital organ and a
major blood vessel, the wound was considered fatal. 30 The
second wound, measuring 2.4 centimeters, affected the skin
and underlying soft tissues and did not penetrate the body
cavity.31 The third wound measuring 2.7 centimeters was like
the second and involved only the soft tissues.32 Unlike the
first, the second and third wounds were non-fatal.33 Dr.
Munoz averred that of the three, the first and second wounds
were inflicted by knife thrusts delivered starting below going
upward by assailants who were standing behind the victim.34
On the other hand, accused-appellant’s version of the
incident is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side
walk vendor and a resident of Purok 4, Bayanan,
Muntinlupa, Metro Manila. He earns a living by
selling vegetables.35
2. At around 1:00 o’clock in the afternoon of August
14, 1991, Accused-Appellant was in the store of
Nimfa Agustin having a little fun with Edgar
Demolador and Andres Gininao drinking beer. At
 around 2:00 o’clock Accused-appellant went to his
house and slept.36
3. While asleep, at about 5 o’clock, Edgar Remolador
and Andres Gininao woke him up and told him there
was a quarrel near the railroad track.37
4. At around 6:00 o’clock two (2) policemen passed
by going to the house of Samson de la Torre while
Accused-appellant was chatting with Edgar
Remolador and Andres Gininao. These two (2)
policemen together with co-accused Samson de la
Torre came back and invited Accused-appellant for
questioning at the Muntinlupa Police Headquarters
together with Edgar Demolador and Andres Gininao.
Subsequently, Edgar Demolador and Andres Gininao
were sent home.38
5. At the Police Station, Accused-Appellant was
handed a Sinumpaang Salaysay executed by Marlon
Araque, implicating him for the death of Jeonito
Araque and the frustrated murder of Marlon Araque.
Accused-Appellant confronted Marlon Araque as to
why he was being included in the case. Marlon
Araque answered "because you eject[ed] us from
your house."39
Professing his innocence, accused-appellant claims that
Marlon Araque’s uncorroborated testimony failed to clearly
and positively identify him as the malefactor responsible for
his brother’s death. In fine, he insists that Marlon’s testimony
is insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not
numbered, such that the testimony of a single, trustworthy
and credible witness could be sufficient to convict an
accused.40 More explicitly, the well entrenched rule is that
"the testimony of a lone eyewitness, if found positive and
credible by the trial court is sufficient to support a conviction
especially when the testimony bears the earmarks of truth
and sincerity and had been delivered spontaneously,
naturally and in a straightforward manner. It has been held
that witnesses are to be weighed not numbered; hence, it is
not at all uncommon to reach a conclusion of guilt on the
basis of the testimony of a single witness." 41
75
The trial court found Marlon Araque’s version of what
transpired candid and straightforward. We defer to the lower
court’s findings on this point consistent with the oft-repeated
pronouncement that: "the trial judge is the best and the most
competent person who can weigh and evaluate the testimony
of witnesses. His firsthand look at the declarant’s demeanor,
conduct and attitude at the trial places him in a peculiar
position to discriminate between the true and the false.
Consequently appellate courts will not disturb the trial court’s
findings save only in cases where arbitrariness has set in and
disregard for the facts important to the case have been
overlooked."42
The account of Marlon Araque as to how they were assaulted
by the group of accused-appellant was given in a categorical,
convincing and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y
Daniel?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your
own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these
person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela
Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you
identify them?
A They (sic) are only two persons but the three persons is (sic)
not around.
Q Could you please point to this Honorable Court who are
these two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked
[identified themselves as] Agapito Listerio and Samson dela
Torre.)
Q Now, at around 5:00 o’clock in the afternoon of August 14,
1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were
you at that time?
A I’m in Alabang at Purok 4 and I’m collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A I’m collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
76
Q While you were going back, was there any untoward
incidents that happened?
A Yes sir "Hinarang po kami."
Q Now, what particular place [where] you were waylaid, if
you recall?
A In Tramo, near Tino’s place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and
Bonifacio.
Q Will you please inform the Honorable Court how will (sic)
you waylaid by these persons?
A We were walking then suddenly they stabbed us with knife
(sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe that’s why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before
you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your
brother fall (sic) down?
xxx xxx xxx
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you A I go (sic) to the Hospital.
know?
Q How about the accused, the persons who way laid, what
A At the back of his body. happened to them?

Q Do you know the person or persons who was (sic) stabbed A From what I know, they ran away.43
him?
Persistent efforts by defense counsel to establish that the
A Yes, sir. attack was provoked, by eliciting from Marlon Araque an
admission that he and the deceased had a drinking spree with
Q Will you please inform the Honorable Court who was that their attackers prior to the incident, proved futile as Marlon
persons was stabbed him? steadfastly maintained on cross examination that he and his
brother never drank liquor on that fateful day:
A Agapito, Marlon and George.
Q After your work, was there an occasion when you drink
COURT something with your borther (sic)?

How many stabbed [him], if you know? A No, sir.

A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the
back, another on the lower right portion and another on the
middle portion of the left side at the back.
Q And you stand to your testimony that you never drink (sic)
on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you
visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991?
A No, sir.

COURT Q And did you not have a drinking spree with George dela
Torre?
Proceed.
A No, sir.
Q Will you please inform the Honorable Court why you are
(sic) lost consciousness? Q Marlon dela Torre?

A I was hit by [a] lead pipe by Samson and Bonifacio. A No, sir.

Q And when did you regain consciousness? Q Bonifacio?

A After three minutes. A With your borther (sic)?

Q And when you gain[ed] consciousness, what happened to Q So you want to tell this Honorable Court that there was no
your brother? point in time on August 14, 1991 at 4:00 p.m. that you did not
take a sip of wine?
A He was already dead.
A No, sir.
Q How about you, what did you do?
Q Neither your brother?

77
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court
where this George dela Torre, Marlon dela Torre and a
certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the
deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.44
That Marlon was able to recognize the assailants can hardly
be doubted because relatives of the victim have a natural
knack for remembering the faces of the attackers and they,
more than anybody else, would be concerned with obtaining
justice for the victim by the felons being brought to the face
of the law.45 Indeed, family members who have witnessed the
killing of a loved one usually strive to remember the faces of
the assailants.46 Marlon’s credibility cannot be doubted in this
case because as a victim himself and an eyewitness to the
incident, it can be clearly gleaned from the foregoing excerpts
of his testimony that he remembered with a high degree of
reliability the identity of the malefactors. 47
Likewise, there is no showing that he was motivated by any
ill-feeling or bad blood to falsely testify against accused-
appellant. Being a victim himself, he is expected to seek
justice. It is settled that if the accused had nothing to do with
the crime, it would be against the natural order of events to
falsely impute charges of wrongdoing upon him.48 Accused-
appellant likewise insists on the absence of conspiracy and
treachery in the attack on the victims.
We remain unconvinced.
78
It must be remembered that direct proof of conspiracy is
rarely found for criminals do not write down their lawless
plans and plots.49 Conspiracy may be inferred from the acts of
the accused before, during and after the commission of the
crime which indubitably point to and are indicative of a joint
purpose, concert of action and community of
interest.50 Indeed –
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide
to commit it. To establish the existence of a conspiracy, direct
proof is not essential since it may be shown by facts and
circumstances from which may be logically inferred the
existence of a common design among the accused to commit
the offense charged, or it may be deduced from the mode
and manner in which the offense was perpetrated. 51
More explicitly –
… conspiracy need not be established by direct evidence of
acts charged, but may and generally must be proved by a
number of indefinite acts, conditions and circumstances,
which vary according to the purpose accomplished. Previous
agreement to commit a crime is not essential to establish a
conspiracy, it being sufficient that the condition attending to
its commission and the acts executed may be indicative of a
common design to accomplish a criminal purpose and
objective. If there is a chain of circumstances to that effect,
conspiracy can be established.52
Thus, the rule is that conspiracy must be shown to exist by
direct or circumstantial evidence, as clearly and convincingly
as the crime itself.53 In the absence of direct proof thereof, as
in the present case, it may be deduced from the mode,
method, and manner by which the offense was perpetrated,
or inferred from the acts of the accused themselves when
such acts point to a joint purpose and design, concerted
action and community of interest.54 Hence, it is necessary that
a conspirator should have performed some overt acts as a
direct or indirect contribution in the execution of the crime
planned to be committed. The overt act may consist of active
participation in the actual commission of the crime itself, or it
may consist of moral assistance to his con-conspirators by
being present at the commission of the crime or by exerting
moral ascendancy over the other co-conspirators.55
Conspiracy transcends mere companionship, it denotes an
intentional participation in the transaction with a view to the
furtherance of the common design and
purpose.56 "Conspiracy to exist does not require an
agreement for an appreciable period prior to the
occurrence.57 From the legal standpoint, conspiracy exists if,
at the time of the commission of the offense, the accused had
the same purpose and were united in its execution."58 In this
case, the presence of accused-appellant and his colleagues,
all of them armed with deadly weapons at the locus
criminis, indubitably shows their criminal design to kill the
victims.
Nowhere is it more evident than in this case where accused-
appellant and his cohorts blocked the path of the victims and
as a group attacked them with lead pipes and bladed
weapons. Accused-appellant and his companions acted in
concert during the assault on the victims. Each member of
the group performed specific and coordinated acts as to
indicate beyond doubt a common criminal design or
purpose.59 Thus, even assuming arguendo that the
prosecution eyewitness may have been unclear as to who
delivered the fatal blow on the victim, accused-appellant as a
conspirator is equally liable for the crime as it is unnecessary
to determine who inflicted the fatal wound because in
conspiracy, the act of one is the act of all.60
As to the qualifying circumstances here present, the
treacherous manner in which accused-appellant and his
group perpetrated the crime is shown not only by the sudden
and unexpected attack upon the unsuspecting and apparently
unarmed victims but also by the deliberate manner in which
the assault was perpetrated. In this case, the accused-
appellant and his companions, all of them armed with bladed
weapons and lead pipes, blocked (hinarang) the path of the
victims effectively cutting off their escape. 61 In the ensuing
attack, the deceased was stabbed three (3) times from
behind by a sharp, pointed and single-bladed instrument like
a kitchen knife, balisong or similar instrument62 while Marlon
Araque sustained lacerated wounds in the head caused by
blows inflicted by lead pipes as well as stab wounds on the
shoulder and forearm which were caused by a sharp object
like a knife.63
It must be noted in this regard that the manner in which the
stab wounds were inflicted on the deceased were clearly
meant to kill without posing any danger to the malefactors
considering their locations and the fact that they were caused
by knife thrusts starting below going upward by assailants
who were standing behind the victim. 64 Treachery is present
when the offender commits any of the crimes against persons
employing means, methods or forms in the execution thereof
79
which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the
offended party might make.65 That circumstance qualifies the
crime into murder.
The commission of the crime was also attended by abuse of
superior strength on account of the fact that accused-
appellant and his companions were not only numerically
superior to the victims but also because all of them, armed
with bladed weapons and lead pipes, purposely used force
out of proportion to the means of defense available to the
persons attacked. However, this aggravating circumstance is
already absorbed in treachery.66 Furthermore, although
alleged in the information, evident premeditation was not
proved by the prosecution. In the light of the finding of
conspiracy, evident premeditation need not be further
appreciated, absent concrete proof as to how and when the
plan to kill was hatched or what time had elapsed before it
was carried out.67
In stark contrast to the evidence pointing to him as one of the
assailants of the victims, accused-appellant proffers the
defense of alibi. At the risk of sounding trite, it must be
remembered that alibi is generally considered with suspicion
and always received with caution because it can be easily
fabricated.68 For alibi to serve as a basis for acquittal, the
accused must establish that: a.] he was present at another
place at the time of the perpetration of the offense; and b.] it
would thus be physically impossible for him to have been at
the scene of the crime.69
Suffice it to state that accused-appellant failed to discharge
this burden. The positive identification of the accused as one
of the perpetrators of the crime by the prosecution
eyewitness, absent any showing of ill-motive, must prevail
over the weak and obviously fabricated alibi of accused-
appellant.70 Furthermore, as aptly pointed out by the trial
court "[t]he place where the accused was at the time of the
killing is only 100 meters away. The distance of his house to
the place of the incident makes him physically possible to be
a participant in the killing [of Jeonito] and [the] wounding of
Marlon."71
All told, an overall scrutiny of the records of this case leads us
to no other conclusion than that accused-appellant is guilty as
charged for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was
indicted for Frustrated Homicide, the trial court convicted
accused-appellant of Attempted Homicide only on the basis
of Dr. Manimtim’s testimony that none of the wounds
sustained by Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed
because it is not the gravity of the wounds inflicted which
determines whether a felony is attempted or frustrated
but whether or not the subjective phase in the commission of
an offense has been passed. By subjective phase is meant
"[t]hat portion of the acts constituting the crime included
between the act which begins the commission of the crime
and the last act performed by the offender which, with the
prior acts, should result in the consummated crime. From
that time forward, the phase is objective. It may also be said
to be that period occupied by the acts of the offender over
which he has control – that period between the point where
he begins and the point where he voluntarily
desists. If between these two points the offender is stopped
by reason of any cause outside of his own voluntary
desistance, the subjective phase has not been passed and it is
an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated."72
It must be remembered that a felony is frustrated when: 1.]
the offender has performed all the acts of execution which
would produce the felony; 2.] the felony is not produced due
to causes independent of the perpetrator’s will.73 On the
other hand, in an attempted felony: 1.] the offender commits
overt acts to commence the perpetration of the crime; 2.] he
is not able to perform all the acts of execution which should
produce the felony; and 3.] his failure to perform all the acts
of execution was due to some cause or accident other than
his spontaneous desistance.74 The distinction between an
attempted and frustrated felony was lucidly differentiated
thus in the leading case of U.S. v. Eduave:75
A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the
moment when he has performed all of the acts which should
produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all the acts which
should result in the consummation of the crime
and voluntarily desists from proceeding further, it cannot be
an attempt. The essential element which distinguishes
80
attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of crime and the
moment when all the acts have been performed which
should result in the consummated crime; while in the former
there is such intervention and the offender does not arrive at
the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.
To put it another way, in case of an attempt the offender
never passes the subjective phase of the offense. He is
interrupted and compelled to desist by the intervention of
outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the
subjective phase is completely passed. Subjectively the crime
is complete. Nothing interrupted the offender while he was
passing through the subjective phase. The crime, however, is
not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was
necessary to commit the crime. If the crime did not result as a
consequence it was due to something beyond his control.
In relation to the foregoing, it bears stressing that intent to
kill determines whether the infliction of injuries should be
punished as attempted or frustrated murder, homicide,
parricide or consummated physical injuries.76 Homicidal
intent must be evidenced by acts which at the time of their
execution are unmistakably calculated to produce the death
of the victim by adequate means.77 Suffice it to state that the
intent to kill of the malefactors herein who were armed with
bladed weapons and lead pipes can hardly be doubted given
the prevailing facts of the case. It also can not be denied that
the crime is a frustrated felony not an attempted offense
considering that after being stabbed and clubbed twice in the
head as a result of which he lost consciousness and fell,
Marlon’s attackers apparently thought he was already dead
and fled.
An appeal in a criminal case throws the whole case wide open
for review78 and the reviewing tribunal can correct errors,
though unassigned in the appealed judgement79 or even
reverse the trial court’s decision on the basis of grounds
other than those that the parties raised as errors. 80 With the
foregoing in mind, we now address the question of the
proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the
Revised Penal Code provides that –
ART. 250. Penalty for frustrated parricide, murder, or
homicide. – The courts, in view of the facts of the case, may
impose upon the person guilty of the frustrated crime of
parricide, murder or homicide, defined and penalized in the
preceding articles, a penalty lower by one degree than that
which should be imposed under the provisions of article 50.81
The courts, considering the facts of the case, may likewise
reduce by one degree the penalty which under article 51
should be imposed for an attempt to commit any of such
crimes.
The penalty for Homicide is reclusion temporal82 thus, the
penalty one degree lower would be prision mayor.83 With the
presence of the aggravating circumstance of abuse of
superior strength and no mitigating circumstances, the
penalty is to be imposed in its maximum period.84 Prision
mayor in its maximum period ranges from ten (10) years and
one (1) day to twelve (12) years. Applying further the
Indeterminate Sentence Law,85 the minimum of the
imposable penalty shall be within the range of the penalty
next lower in degree, i.e. prision correccional in its maximum
period which has a range of six (6) months and one (1) day to
six (6) years.
What now remains to be determined is the propriety of the
awards made by the trial court with regard to the civil aspect
of the case for the death of Jeonito Araque and the injuries
sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing
that only substantiated and proven expenses or those which
appear to have been genuinely incurred in connection with
the death, wake or burial of the victim will be recognized by
the courts.86 In this case, the expenses incurred for the wake,
funeral and burial of the deceased are substantiated by
receipts.87 The trial court’s award for actual damages for the
death of Jeonito Araque should therefore be affirmed.
In line with current jurisprudence,88 the award of P50,000.00
as civil indemnity ex delicto must also be sustained as it
requires no proof other than the fact of death of the victim
and the assailant’s responsibility therefor.89 The award for
moral damages for the pain and sorrow suffered by the
victim’s family in connection with his untimely death must
likewise be affirmed. The award is adequate, reasonable and
81
with sufficient basis taking into consideration the anguish and
suffering of the deceased’s family particularly his mother who
relied solely upon him for support.90 The award of exemplary
damages should likewise be affirmed considering that an
aggravating circumstance attended the commission of the
crime.91
The trial court, however, correctly ignored the claim for loss
of income or earning capacity of the deceased for lack of
factual basis.1âwphi1 The estimate given by the deceased’s
sister on his alleged income as a ‘pre-cast’ businessman is not
supported by competent evidence like income tax returns or
receipts. It bears emphasizing in this regard that
compensation for lost income is in the nature of
damages92 and as such requires due proof thereof. 93 In short,
there must be unbiased proof of the deceased’s average
income.94 In this case, the victim’s sister merely gave an oral,
self-serving and hence unreliable statement of her deceased
brother’s income.
As for the awards given to Marlon Araque, the award for
actual damages must be affirmed as the same is supported by
documentary evidence.95 With regard to moral and exemplary
damages, the same being distinct from each other require
separate determination.96 The award for moral damages must
be struck down as the victim himself did not testify as to the
moral suffering he sustained as a result of the assault on his
person. For lack of competent proof such an award is
improper.97 The award for exemplary damages must,
however, be retained considering that under Article 2230 of
the Civil Code, such damages may be imposed "when the
crime is committed with one or more aggravating
circumstances."98
Finally, this Court has observed that the trial court did not
render judgment against accused Samson dela Torre,
notwithstanding that he was arraigned and pleaded not guilty
to both charges. Under the circumstances, he should be
deemed to have been tried in absentia and, considering the
evidence presented by the prosecution against him,
convicted of the crime charged together with appellant
Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the
following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way
of moral damages in Criminal Case No. 91-5843 is
DELETED;
 2.] Accused-Appellant is found GUILTY beyond
reasonable doubt in Criminal Case No. 91-5843 of
Frustrated Homicide and is sentenced to suffer an
indeterminate penalty of Six (6) Years of Prision
Correccional, as minimum to Ten (10) Years and One
(1) Day of Prision Mayor, as maximum.

After finality of this Decision, the records shall be remanded

to the Regional Trial Court of Makati City, which is directed to
render judgment based on the evidence against Samson dela
Torre y Esquela.

SO ORDERED.

Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ.,

concur.

82
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26298 January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes Caluag for appellant.
Attorney-General Jaranilla for appellee.
OSTRAND, J.:
This is an appeal from a judgment of the Court of First
Instance of Manila finding the defendant guilty of the crime
of consummated rape and sentencing him to suffer
seventeen years, four months and one day of reclusion
temporal, with the accessory penalties provided by law and
to pay the costs.
The victim of the crime was a child of 3 years and 11 months
old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there
may be some doubt whether he succeeded in penetrating the
vagina before being disturbed by the timely intervention of
the mother and the sister of the child. The physician who
examined the genital organ of the child a few hours after the
commission of the crime found a slight inflammation of the
exterior parts of the organ, indicating that an effort had been
made to enter the vagina, but in testifying before the court
he expressed doubts as to whether the entry had been
effected. The mother of the child testified that she found its
genital organ covered with a sticky substance, but that
cannot be considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age
that penetration was impossible; that the crime of rape
consequently was impossible of consummation; and that,
therefore, the offense committed should be treated only
as abusos deshonestos. We do not think so. It is probably true
that a complete penetration was impossible, but such
penetration is not essential to the commission of the crime; it
is sufficient if there is a penetration of the labia. In the case
of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A.,
316) where the offended party was a child of the age of 3
83
years and 8 months the testimony of several physicians was
to the effect that her labia of the privates of a child of that
age can be entered by a man's male organ to the hymen and
the defendant was found guilty of the consummated crime
rape.
There being no conclusive evidence of penetration of the
genital organ of the offended party, the defendant is entitled
to the benefit of the doubt and can only be found guilty of
frustrated rape, but in view of the fact that he was living in
the house of the parents of the child as their guest, the
aggravating circumstance of abuse of confidence existed and
the penalty must therefore be imposed in its maximum
degree.
The judgment appealed from is modified and the defendant-
appellant is hereby found guilty of the crime of frustrated
rape and is sentenced to suffer twelve years of prision mayor,
with the accessory penalties prescribed by law, and with the
costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ.,
concur.
Separate Opinions
MALCOLM, J., dissenting:
In my opinion, the accused is guilty of raping a child 3 years
and 11 months of age. It is consummated rape according to
the evidence of record, the findings of the trial judge, and our
decisions. (People vs. Hernandez [1925], 49 Phil., 980; People
vs. Oscar [1925], 48 Phil., 527.) The instant case is on all fours
with the case of Kenney vs. State (65 L. R. A., 316), cited in the
majority decision. In the Kenny case, the penalty was death,
and here for this horrible crime, should be placed in the
maximum degree or seventeen years, four months, and one
day imprisonment, as imposed by the trial court. Accordingly,
my vote is for affirmance of the judgment.
84
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23916 October 14, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
DOMINGO HERNANDEZ, defendant-appellant.
Cirilo B. Santos for appellant.
Acting Attorney-General Reyes for appllees
OSTRAND, J.:
The defendant is accused of the crime of rape, the
information alleging "that on or about the 26th day of
February, 1925, in the City of Manila, Philippine Islands, the
said accused wilfully, unlawfully, and feloniously, by means of
force and by intimidating one Conrada Jocson with killing her
with a knife which said accused held in his hand should she
not accede to his wish, did then and there lie with and have
carnal knowledge of said Conrada Jocson, a girl under 12
years of age. That in the commission of the crime the
following aggravating circumstances existed to wit: (1) The
accused is the husband of the grandmother of said Conrada
Jocson and (2) the crime was committed with grave abuse of
confidence, inasmuch as the offended and the accused living
in the same house."
The defendant is a man 70 years of age and the offended
party is a child of 9 years, the granddaughter of the
defendant's wife. There can be no question as to the
defendant's guilt. The evidence shows that he and the
offended party were living in the same house and that taking
advantage of the absence of the other inhabitants of the
house, he had intercourse with the child by force and
violence. He admits that he did so, but maintains that he was
intoxicated at the time and did not know what he was doing.
The testimony of the witnesses for the prosecution is,
however, to the effect that he did not show any signs of
intoxication at the time of the commission of the crime or
immediately afterwards.
The court below found the defendant guilty of frustrated rape
and sentenced him to suffer ten years and one day of prision
mayor. In holding that the crime was frustrated, the court
85
seems to have been of the opinion that there can be no
consummated rape without a complete penetration of the
hymen. This view is not accordance with the weight of
authority; in fact, it is contrary to practically all modern
authorities. In State vs. Johnson (91 Mo., 439), the court held
that "finding the hymen intact is not always proof that no
rape has been committed, nor virginity; for the case are not
rare where the hymen had to be removed after impregnation
and in order to permit delivery."
In the same case, the court further said:
Any penetration whether reaching to the hymen or
not is sufficient to constitute the crime; for as Lord
Meadowbank said in case in Scotland. "Scientific and
anatomical distinctions as to where the vagina
commences are worthless in a case of rape; it is
enough if the woman's body is entered; and it is not
necessary to show to what extent penetration of the
parts has taken place; whether it has gone past the
hymen, into what is anatomically called the hymen,
or even so far as to touch the hymen." (Stewart on
Legal Medicine, p. 137.)1awph!l.net
In People vs. Rivers (147 Mich., 643), the court says:
The law may now indeed be considered as settled
that while the rupturing of the hymen is not
indispensable to a conviction, there must be proof of
some degree of entrance of the male organ "within
the labia of Pudendum."
In the following cases it has been held that entry of the labia
or lips of the female organ, merely, without rupture of the
hymen or laceration of the vagina, is sufficient to warrant
conviction of the consummated crime of rape.
(Kenny vs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W.,
817 [1903]. See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844];
44 N. W., 571 [1890]; [Tex.] Rodgers vs. State, 30 Tex. App.,
510; 17 S. W., 1077 [1891]; [Wis.] Brauer vs.State, 25 Wis.,
413 [1870].)
In the present case the physician who examined the offended
party immediately after the commission of the crime found
the labia and the opening of the vagina inflamed together
with an abundance of semen, though the hymen was intact. It
also appears from the evidence that the defendant lay on top
of the child for over fifteen minutes and continued his efforts
of penetration during that period; the child testifies that the
defendant succeeded in a partial penetration and that she
felt intense pain. In these circumstances, the crime must be
regarded as consummated.

The judgment appealed from is therefore modified by finding

the defendant guilty of the consummated crime of rape and,
in view of the aggravating circumstances mentioned in the
information, the penalty imposed upon the defendant is
hereby increased to seventeen years, four months and one
day of reclusion temporal, with the accessory penalties
prescribed by law. In all other respects the judgment is
affirmed with the costs against the appellant. So ordered.

Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez

and Villa-Real, JJ., concur.

86
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the
crime of rape in Criminal Case No. 83-031-B before the
Regional Trial Court, Branch II, Borongan, Eastern Samar. The
information filed in the said case reads as follows (p.
47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs
and by the use of a Batangas knife he conveniently provided
himself for the purpose and with threats and intimidation,
did, then and there wilfully, unlawfully and feloniously lay
with and succeeded in having sexual intercourse with Cristina
S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not
guilty to the offense charged. After the witnesses for the
People testified and the exhibits were formally offered and
admitted, the prosecution rested its case. Thereafter, the
defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the trial
court rendered its decision, the dispositive portion of which
reads (pp. 59-60, Rollo):
87
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with
no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence
Law, imposes on accused an imprisonment of TEN (10) YEARS
and ONE (1) DAY,PRISION MAYOR, as minimum to TWELVE
(12) YEARS PRISION MAYOR, maximum; to indemnify
CRISTINA S. ABAYAN, the amount of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment in case
of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the
Court of Appeals. On December 29, 1988, the Court of
Appeals rendered its decision, the dispositive portion of
which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED,
and the appellant found guilty of the crime of rape, and
consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution
setting aside its December 29, 1988 decision and forwarded
the case to this Court, considering the provision of Section 9,
paragraph 3 of Batas Pambansa Blg. 129 in conjunction with
Section 17, paragraph 3, subparagraph 1 of the Judiciary Act
of 1948.
The antecedent facts as summarized in the People's brief are
as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived
at her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her
boarding house (p. 5, ibid). All of a sudden, somebody held
her and poked a knife to her neck. She then recognized
appellant who was a frequent visitor of another boarder (pp.
8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor
was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid).
With his left arm wrapped around her neck and his right hand
poking a "balisong" to her neck, appellant dragged
complainant up the stairs (p. 14, ibid). When they reached
the second floor, he commanded her to look for a room. With
the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who
hit her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he
pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted
her. He made her hold his penis and insert it in her vagina.
She followed his order as he continued to poke the knife to
her. At said position, however, appellant could not fully
penetrate her. Only a portion of his penis entered her as she
kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his
penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought of
escaping (p. 20, ibid).
She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
saw him inside the room, she ran to another room. Appellant
again chased her. She fled to another room and jumped out
through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the
policemen who were inside the building opened the door,
they found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket
and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to
the boarding house. They heard a sound at the second floor
88
and saw somebody running away. Due to darkness, they
failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the
Eastern Samar Provincial Hospital where she was physically
examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination — Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area or
over the vulva, errythematous (sic) areas noted surrounding
vaginal orifice, tender, hymen intact; no laceration fresh and
old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of
frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial
inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of
frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat.
Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication
and therefore casted doubt to its candor, truth and validity."
(p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that
they refer to trivial inconsistencies which are not sufficient to
blur or cast doubt on the witnesses' straightforward
attestations. Far from being badges of fabrication, the
inconsistencies in their testimonies may in fact be justifiably
considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses
had not been rehearsed. The most candid witnesses may
make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato,
G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than
discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as adding
credence and veracity to such spontaneous testimonies
(Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358,
March 16, 1988, 158 SCRA 695). As a matter of fact, complete
uniformity in details would be a strong indication of
untruthfulness and lack of spontaneity (People v. Bazar, G.R.
No. L-41829, June 27, 1988, 162 SCRA 609). However, one of
the alleged inconsistencies deserves a little discussion which
is, the testimony of the victim that the accused asked her to
hold and guide his penis in order to have carnal knowledge of
her. According to the accused, this is strange because "this is
the only case where an aggressor's advances is being helped-
out by the victim in order that there will be a consumation of
the act." (p. 34, Rollo). The allegation would have been
meritorious had the testimony of the victim ended there. The
victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of
the victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule
that the findings of fact of the trial court on the credibility of
witnesses should be accorded the highest respect because it
has the advantage of observing the demeanor of witnesses
and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with
favor the trial court's finding regarding the testimony of the
victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the
offended party in her testimony before the court. Her answer
to every question profounded (sic), under all circumstances,
are plain and straightforward. To the Court she was a picture
of supplication hungry and thirsty for the immediate
vindication of the affront to her honor. It is inculcated into
89
the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in
effect all that is necessary to show that rape was committed
provided her testimony is clear and free from contradiction
and her sincerity and candor, free from suspicion (People v
Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487;
People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135
SCRA 280; People v. Soterol G.R. No. 53498, December 16,
1985, 140 SCRA 400). The victim in this case did not only state
that she was raped but she testified convincingly on how the
rape was committed. The victim's testimony from the time
she knocked on the door of the municipal building up to the
time she was brought to the hospital was corroborated by
Pat. Donceras. Interpreting the findings as indicated in the
medical certificate, Dr. Reinerio Zamora (who was presented
in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below
the left breast, multiple pinpoint marks, circumscribed
hematoma at the anterior neck, erythematous area
surrounding the vaginal orifice and tender vulva, are
conclusive proof of struggle against force and violence
exerted on the victim (pp. 52-53, Rollo). The trial court even
inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions
therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a
condition safe enough to carry the weight of both accused
and offended party without the slightest difficulty, even in
the manner as narrated. The partitions of every room were of
strong materials, securedly nailed, and would not give way
even by hastily scaling the same.
A little insight into human nature is of utmost value in judging
rape complaints (People v. Torio, et al., G.R. No. L-48731,
December 21, 1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly
estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued.
Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many
have been saved by jumping from some considerable heights
without being injured. How much more for a frightened
barrio girl, like the offended party to whom honor appears to
be more valuable than her life or limbs? Besides, the
exposure of her private parts when she sought assistance
from authorities, as corroborated, is enough indication that
something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that
she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408,
September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is
her having been rendered entirely naked by appellant and
that even in her nudity, she had to run away from the latter
and managed to gain sanctuary in a house owned by spouses
hardly known to her. All these acts she would not have done
nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to
present other witnesses to corroborate the allegations in the
complaint and the non-presentation of the medico-legal
officer who actually examined the victim. Suffice it to say that
it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of
their necessity (Tugbang v. Court of Appeals, et al., G.R. No.
56679, June 29, 1989; People v. Somera, G.R. No. 65589, May
31, 1989). As for the non-presentation of the medico-legal
officer who actually examined the victim, the trial court
stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was
no longer available. The accused did not bother to contradict
this statement.
Summing up, the arguments raised by the accused as regards
the first assignment of error fall flat on its face. Some were
not even substantiated and do not, therefore, merit
consideration. We are convinced that the accused is guilty of
rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief
that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of frustrated
rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and
enumerates the elements of the crime of rape:
90
Art. 335. When and how rape is committed. — Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having
sexual bodily connections with a woman (Black's Law
Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape.1âwphi1 Our concern now is whether or not the
frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender
has performed all the acts of execution which would produce
the felony and (2) that the felony is not produced due to
causes independent of the perpetrator's will. In the leading
case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated
felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to stop prior to
the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts
which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and
the moment when all of the acts have been performed which
should result in the consummated crime; while in the former
there is such intervention and the offender does not arrive at
the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender
has carnal knowledge of his victim he actually attains his
purpose and, from that moment also all the essential
elements of the offense have been accomplished. Nothing
more is left to be done by the offender, because he has
performed the last act necessary to produce the crime.Thus,
the felony is consummated. In a long line of cases (People v.
Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People
v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People v. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential.
Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ,
without rupture of the hymen or laceration of the vagina is
sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et
al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because
not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts.
Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the
91
matter, it is hardly conceivable how the frustrated stage in
rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the
case of People v. Eriña 50 Phil. 998 [1927] where We found
the offender guilty of frustrated rape there being no
conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335
of the Revised Penal Code, as amended by Republic Act No.
2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is
attempted or frustrated and a homicide is committed by
reason or on the occasion thereof. We are of the opinion that
this particular provision on frustrated rape is a dead
provision. The Eriña case, supra, might have prompted the
law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.
In concluding that there is no conclusive evidence of
penetration of the genital organ of the victim, the trial court
relied on the testimony of Dr. Zamora when he "categorically
declared that the findings in the vulva does not give a
concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether
or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the
Court is not oblivious, that conviction for rape could proceed
from the uncorroborated testimony of the offended party
and that a medical certificate is not necessary (People v.
Royeras People v. Orteza, 6 SCRA 109, 113). But the citations
the people relied upon cannot be applicable to the instant
case. The testimony of the offended party is at variance with
the medical certificate. As such, a very disturbing doubt has
surfaced in the mind of the court. It should be stressed that in
cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment
each other, for otherwise to rely on the testimony alone in
utter disregard of the manifest variance in the medical
certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and
the medical certificate does not exist. On the contrary, it is
stated in the medical certificate that the vulva was
erythematous (which means marked by abnormal redness of
the skin due to capillary congestion, as in inflammation) and
tender. It bears emphasis that Dr. Zamora did not rule
out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively
testified that there was penetration, even if only partially (pp.
302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do
you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Section 19(1) of the 1987 Constitution and Our ruling
in People v. Millora, et al., G.R. Nos. L-38968-70, February 9,
1989, that the cited Constitutional provision did not declare
the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February
2, 1987 not imposed the death penalty whenever it was
called for under the Revised Penal Code but instead reduced
the same to reclusion perpetua (People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990). Reclusion perpetua, being
a single indivisible penalty under Article 335, paragraph 3, is
imposed regardless of any mitigating or aggravating
circumstances (in relation to Article 63, paragraph 1, Revised
Penal Code; see People v. Arizala, G.R. No. 59713, March 15,
1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R.
No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is
hereby MODIFIED. The accused Ceilito Orita is hereby found
guilty beyond reasonable doubt of the crime of rape and
sentenced to reclusion perpetua as well as to indemnify the
victim in the amount of P30,000.00.

Q And was it inserted? SO ORDERED.

A Yes only a little. Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

The fact is that in a prosecution for rape, the accused may be

convicted even on the sole basis of the victim's testimony if
credible (People v. Tabago, G.R. No. 69778, November 8,
1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752,
September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R.
Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative
and is not an indispensable element in the prosecution of this
case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will

not tilt the scale in favor of the accused because after a
thorough review of the records, We find the evidence
sufficient to prove his guilt beyond reasonable doubt of the
crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides

that whenever the crime of rape is committed with the use of
a deadly weapon, the penalty shall be reclusion perpetua to
death. The trial court appreciated the aggravating
circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111,

92
 EN BANC
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away
with frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation of
the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated
rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal
to every roaming lothario, whenever the opportunity bares
itself, to better intrude with climactic gusto, sans any
restraint, since after all any attempted fornication would be
considered consummated rape and punished as such. A mere
strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the
moment the offender had carnal knowledge of the victim
since by it he attained his objective. All the elements of the
offense were already present and nothing more was left for
the offender to do, having performed all the acts necessary to
produce the crime and accomplish it. We ruled then that
perfect penetration was not essential; any penetration of the
female organ by the male organ, however slight, was
sufficient. The Court further held that entry of the labia or lips
of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction
for consummated rape. We distinguished consummated rape
from attempted rape where there was no penetration of the
female organ because not all acts of execution were
performed as the offender merely commenced the
commission of a felony directly by overt acts. 3 The inference
that may be derived therefrom is that complete or full
penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is
enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in
rape by requiring entry into the labia or lips of the female
organ, even if there be no rupture of the hymen or laceration
of the vagina, to warrant a conviction for consummated rape.
While the entry of the penis into the lips of the female organ
was considered synonymous with mere touching of the
external genitalia, e.g., labia majora, labia minora, etc.,4 the
crucial doctrinal bottom line is that touching must be
inextricably viewed in light of, in relation to, or as an essential
part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching
must be tacked to the penetration itself. The importance of
93
the requirement of penetration, however slight, cannot be
gainsaid because where entry into the labia or the lips of the
female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining
whether rape has been committed either in its attempted or
in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that
penalty-wise, this distinction, threadbare as it may seem,
irrevocably spells the difference between life and death for
the accused — a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination
of life on the other. And, arguing on another level, if the case
at bar cannot be deemed attempted but consummated rape,
what then would constitute attempted rape? Must our field
of choice be thus limited only to consummated rape and acts
of lasciviousness since attempted rape would no longer be
possible in light of the view of those who disagree with
this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of
statutory rape and sentenced by the court a quo to the
extreme penalty of death, 5 hence this case before us on
automatic review under Art. 335 of the Revised Penal Code as
amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April
1996, at around 4 o'clock in the afternoon, Ma. Corazon P.
Pamintuan, mother of four (4)-year old Crysthel Pamintuan,
went down from the second floor of their house to prepare
Milo chocolate drinks for her two (2) children. At the ground
floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the
freezer located at the second floor. Primo was a helper of
Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry,
"Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her children's
room kneeling before Crysthel whose pajamas or "jogging
pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into
Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng
ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed
Corazon aside when she tried to block his path. Corazon then
ran out and shouted for help thus prompting her brother, a
cousin and an uncle who were living within their compound,
to chase the accused. 8 Seconds later, Primo was
apprehended by those who answered Corazon's call for help.
They held the accused at the back of their compound until
they were advised by their neighbors to call the barangay
officials instead of detaining him for his misdeed. Physical
examination of the victim yielded negative results. No evident
sign of extra-genital physical injury was noted by the medico-
legal officer on Crysthel's body as her hymen was intact and
its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his
defense. He maintained his innocence and assailed the
charge as a mere scheme of Crysthel's mother who allegedly
harbored ill will against him for his refusal to run an errand
for her. 9 He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the
floor. It was in this fallen position that Corazon chanced upon
them and became hysterical. Corazon slapped him and
accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman.
Corazon called for help from her brothers to stop him as he
ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for
help and accosted Primo. Vicente punched him and
threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but
Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true.
But Vicente kicked him instead. When Primo saw Vicente
holding a piece of lead pipe, Primo raised his hands and
turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take
Primo to the barangay hall instead, and not to maul or
possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial
court on 27 May 1997 found him guilty of statutory rape,
sentenced him to the extreme penalty of death, and ordered
him to pay his victim P50,000.00 for moral damages,
P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility
of Ma. Corazon Pamintuan. He argues that her narration
should not be given any weight or credence since it was
punctured with implausible statements and improbabilities so
inconsistent with human nature and experience. He claims
that it was truly inconceivable for him to commit the rape
considering that Crysthel's younger sister was also in the
room playing while Corazon was just downstairs preparing
Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode
happened within the family compound where a call for
assistance could easily be heard and responded to, would
have been enough to deter him from committing the crime.
Besides, the door of the room was wide open for anybody to
see what could be taking place inside. Primo insists that it
was almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where
she stood she could not have possibly seen the alleged
touching of the sexual organs of the accused and his victim.
He asserts that the absence of any external signs of physical
injuries or of penetration of Crysthel's private parts more
than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily
on the testimony of Corazon that she saw Primo with his
short pants down to his knees kneeling before Crysthel whose
pajamas and panty were supposedly "already removed" and
94
that Primo was "forcing his penis into Crysthel's vagina." The
gravamen of the offense of statutory rape is carnal
knowledge of a woman below twelve (12), as provided in Art.
335, par. (3), of the Revised Penal Code. Crysthel was only
four (4) years old when sexually molested, thus raising the
penalty, from reclusion perpetuato death, to the single
indivisible penalty of death under RA 7659, Sec. 11, the
offended party being below seven (7) years old. We have said
often enough that in concluding that carnal knowledge took
place, full penetration of the vaginal orifice is not an essential
ingredient, nor is the rupture of the hymen necessary; the
mere touching of the external genitalia by the penis capable
of consummating the sexual act is sufficient to constitute
carnal knowledge. 10 But the act of touching should be
understood here as inherently part of the entry of the penis
into the labias of the female organ and not mere touching
alone of the mons pubis or the pudendum.
In People v. De la Peña 11 we clarified that the decisions
finding a case for rape even if the attacker's penis merely
touched the external portions of the female genitalia were
made in the context of the presence or existence of an erect
penis capable of full penetration. Where the accused failed to
achieve an erection, had a limp or flaccid penis, or an
oversized penis which could not fit into the victim's vagina,
the Court nonetheless held that rape was consummated on
the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her
vagina and in all likelihood reached the labia of her
pudendum as the victim felt his organ on the lips of her
vulva, 12 or that the penis of the accused touched the middle
part of her vagina. 13 Thus, touching when applied to rape
cases does not simply mean mere epidermal contact, stroking
or grazing of organs, a slight brush or a scrape of the penis on
the external layer of the victim's vagina, or the mons pubis, as
in this case. There must be sufficient and convincing proof
that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated
rape. 14 As the labias, which are required to be "touched" by
the penis, are by their natural situs or location beneath the
mons pubis or the vaginal surface, to touch them with the
penis is to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the labia majora
or the labia minora of the pudendum constitutes
consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area, e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence
that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair
but has many sebaceous glands. Directly beneath the labia
majora is the labia minora. 15 Jurisprudence dictates that the
labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of
the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can
only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been
confined to the oft-quoted "touching of the female
organ," 17 but has also progressed into being described as
"the introduction of the male organ into the labia of the
pudendum," 18 or "the bombardment of the
drawbridge." 19 But, to our mild, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or
as earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution
utterly failed to discharge its onus of proving that Primo's
penis was able to penetrate Crysthel's vagina however slight.
Even if we grant arguendo that Corazon witnessed Primo in
the act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the inter-genital
contact between Primo and Crysthel. When asked what she
saw upon entering her children's room Corazon plunged into
saying that she saw Primo poking his penis on the vagina of
Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo,
the contact point. It should be recalled that when Corazon
chanced upon Primo and Crysthel, the former was allegedly in
a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that
the chest of the accused is pinning down the victim,
while his right hand is holding his penis and his left
hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that
Primo's kneeling position rendered an unbridled observation
impossible. Not even a vantage point from the side of the
accused and the victim would have provided Corazon an
unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would
have hidden his movements from Corazon's sight, not to
discount the fact that Primo's right hand was allegedly
holding his penis thereby blocking it from Corazon's view. It is
the burden of the prosecution to establish how Corazon could
have seen the sexual contact and to shove her account into
the permissive sphere of credibility. It is not enough that she
claims that she saw what was done to her daughter. It is
required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot
conclude without any taint of serious doubt that inter-genital
contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run
95
roughshod over the constitutional right of the accused to be
presumed innocent.
Corazon insists that Primo did not restrain himself from
pursuing his wicked intention despite her timely appearance,
thus giving her the opportunity to fully witness his beastly
act.
We are not persuaded. It is inconsistent with man's instinct of
self-preservation to remain where he is and persist in
satisfying his lust even when he knows fully well that his
dastardly acts have already been discovered or witnessed by
no less than the mother of his victim. For, the normal
behavior or reaction of Primo upon learning of Corazon's
presence would have been to pull his pants up to avoid being
caught literally with his pants down. The interval, although
relatively short, provided more than enough opportunity for
Primo not only to desist from but even to conceal his evil
design.
What appears to be the basis of the conviction of the accused
was Crysthel's answer to the question of the court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her
organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion
that enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primo's
penis penetrating her vagina, however slight. Crysthel made a
categorical statement denying penetration, 27 obviously
induced by a question propounded to her who could not have
been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach
to this reply of a four (4)-year old child, whose vocabulary is
yet as underdeveloped as her sex and whose language is
bereft of worldly sophistication, an adult interpretation that
because the penis of the accused touched her organ there
was sexual entry. Nor can it be deduced that in trying to
penetrate the victim's organ the penis of the accused
touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish
sufficiently that Primo made efforts to penetrate
Crysthel. 22 Corazon did not say, nay, not even hint that
Primo's penis was erect or that he responded with an
erection. 23 On the contrary, Corazon even narrated that
Primo had to hold his penis with his right hand, thus showing
that he had yet to attain an erection to be able to penetrate
his victim.
Antithetically, the possibility of Primo's penis having breached
Crysthel's vagina is belied by the child's own assertion that
she resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain
but just felt "not happy" about what Primo did to her. 25 Thus,
she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In
cases where penetration was not fully established, the Court
had anchored its conclusion that rape nevertheless was
consummated on the victim's testimony that she felt pain, or WHEREFORE, the Decision of the court a quo finding accused
the medico-legal finding of discoloration in the inner lips of PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape
the vagina, or the labia minora was already gaping with and sentencing him to death and to pay damages is
redness, or the hymenal tags were no longer visible. 26 None MODIFIED. He is instead found guilty of ATTEMPTED RAPE
was shown in this case. Although a child's testimony must be and sentenced to an indeterminate prison term of eight (8)
received with due consideration on account of her tender years four (4) months and ten (10) days of prision
age, the Court endeavors at the same time to harness only mayor medium as minimum, to fourteen (14) years ten (10)
what in her story appears to be true, acutely aware of the months and twenty (20) days of reclusion temporal medium
equally guaranteed rights of the accused. Thus, we have to as maximum. Costs de oficio.
conclude that even on the basis of the testimony of Crysthel SO ORDERED.1âwphi1.nêt
alone the accused cannot be held liable for consummated Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza,
rape; worse, be sentenced to death.1âwphi1 Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Lastly, it is pertinent to mention the medico legal officer's Santiago and De Leon, Jr., JJ., concur.
finding in this case that there were no external signs of Pnganiban, J., in the result.
physical injuries on complaining witness' body to conclude
from a medical perspective that penetration had taken place.
As Dr. Aurea P. Villena explained, although the absence of
complete penetration of the hymen does not negate the
possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the
accused and the victim. 27
In cases of rape where there is a positive testimony and a
medical certificate, both should in all respects complement
each other; otherwise, to rely on the testimonial evidence
alone, in utter disregard of the manifest variance in the
medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain
whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that
rape was consummated. Failing in this, the thin line that
separates attempted rape from consummated rape will
significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal
Code, rape is attempted when the offender commences the
commission of rape directly by overt acts, and does not
perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of
attempted rape — and only of attempted rape — are present
in the instant case, hence, the accused should be punished
only for it.
The penalty for attempted rape is two (2) degrees lower than
the imposable penalty of death for the offense charged,
which is statutory rape of a minor below seven (7) years. Two
(2) degrees lower is reclusion temporal, the range of which is
twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence
of any mitigating or aggravating circumstance, the maximum
of the penalty to be imposed upon the accused shall be taken
from the medium period of reclusion temporal, the range of
which is fourteen (14) years, eight (8) months and (1) day to
seventeen (17) years and four (4) months, while the
minimum shall be taken from the penalty next lower in
degree, which is prision mayor, the range of which is from six
(6) years and one (1) day to twelve (12) years, in any of its
periods.

96
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13785 October 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
TOMAS ADIAO, defendant-appellant.
Victoriano Yamzon for appellant.
Attorney-General Paredes for appellee.
MALCOLM, J.:
The defendant was charged in the Municipal Court of the city
of Manila with the crime of theft. He was found guilty of the
lesser crime of frustrated theft. He appealed to the Court of
First Instance of the city of Manila and again he was found
guilty of the crime of frustrated theft, and was sentenced to
pay a fine of P100, with subsidiary imprisonment in case of
insolvency, and to pay the costs.
The sole error assigned on appeal is that the lower court
erred in holding that the defendant was guilty of the crime of
theft as dis closed by the facts appearing of record. We have
examined the evidence carefully and from our study are
unable to say that the proof is contrary to the findings of the
lower court. Stated in one sentence, the defendant, Tomas
Adiao, a customs inspector, abstracted a leather belt valued
at P0.80, from the baggage of a Japanese named T.
Murakami, and secreted the belt in his desk in the Custom
House, where it was found by other customs employees.
Based on these facts, the Court is of the opinion that the
crime can not properly be classified as frustrated, as this
word is defined in article 3 of the Penal Code, but that since
the offender performed all of the acts of execution necessary
for the accomplishment crime of theft. The fact that the
defendant was under observation during the entire
transaction and that he was unable to get the merchandise
out of the Custom House, is not decisive; all the elements of
the completed crime of theft are present. The following
decisions of the supreme court of Spain are in point:
The defendant was charged with the theft of some
fruit from the land of another. As he was in the act
97
of taking the fruit he was seen by a policeman, yet it
did not appear that he was at that moment caught
by the policeman but sometime later. The court said:
". . . The trial court did not err . . . in considering the
crime as that of consummated theft instead of
frustrated theft inasmuch as nothing appears in the
record showing that the policemen who saw the
accused take the fruit from the adjoining land
arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its
utilization by him for an interval of time. (Decision of
the supreme court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the
latter was hearing mass in a church. The latter on account of
the solemnity of the act, although noticing the theft, did not
do anything to prevent it. Subsequently, however, while the
defendant was still inside the church, the offended party got
back the money from the defendant. The court said that the
defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the
supreme court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and
by means of a key opened up a case, and from the case took
a small box, which was also opened with a key, from which in
turn he took a purse containing 461 reales and 20 centimos,
and then placed the money over the cover of the case; just at
this moment he was caught by two guards who were
stationed in another room near-by. The court considered this
as consummated robbery, and said: " . . . The accused . . .
having materially taken possession of the money from the
moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the
same, he executed all the acts necessary to constitute the
crime which was thereby produced; only the act of making
use of the thing having been frustrated, which, however,
does not go to make the elements of the consummated
crime. (Decision of the supreme court of Spain, June 13,
1882.)
There exists the aggravating circumstance that advantage
was taken by the offender of his public position. Wherefore,
in view of the provisions of articles 517 and 518, No. 5, of the
Penal Code, and there being present one aggravating
circumstance compensated by no mitigating circumstances,
the penalty must be imposed in the maximum
degree.1awph!l.net
Judgment is reversed and the defendant and appellant is
sentenced to three months and one day of arresto mayor,
with the costs of all instances against him. The merchandise
in question, attached to the record as Exhibit A, shall be
returned to the lawful owner, T. Murakami. So ordered.

Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.

98
 G.R. No. L-22345 October 10, 1924
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,
vs.
FELIPE DIÑO, ET AL., defendants.
FELIPE DIÑO and FORTUNATO LAURISTO, appellants.
Jose Avelino and Vicente de Vera for appellants.
Attorney-General Villa-Real for appellee.
VILLAMOR, J.:
The Court of First Instance of Samar sentenced the appellants
to be imprisoned for ten years and one day of presidio mayor,
with the accessories prescribed by law, to indemnify Casimiro
Abria jointly and severally in the sum of P10, and to pay the
costs.chanroblesvirtualawlibrary chanrobles virtual law
library
The defendants are charged with the crime of arson
committed, according to the complaint, as follows:
That on or about midnight of the 4th of May, 1923, in the
sitio of Capipian, barrio of Lope de Vega, municipality of
Catarman, Province of Samar, Philippine Islands, and within
the jurisdiction of this court, the above named defendants
with premeditation and confederating together, provided
themselves with dynamite and criminally place it and cause
the same to explode on the door of the house inhabited by
Casimiro Abria and his family, which dynamite or explosive
substance exploded and burnt the ceiling of said house; as a
result of which a part of said house was destroyed; the
damage caused not exceeding 6,250
pesetas.chanroblesvirtualawlibrary chanrobles virtual law
library
Contrary to law.
The appellants pray for the reversal of the judgment
appealed from, while the Attorney-General prays for the
modification thereof in the sense that the penalty of from
four months and twenty-one days to six months of arresto
mayor be imposed upon the defendants, under the provision
of article 557, paragraph 1, of the Penal
Code.chanroblesvirtualawlibrary chanrobles virtual law
library
After a careful study of the record, we are of the opinion, and
so hold, that the guilt of the defendants does not appear duly
proven beyond a reasonable doubt, as is required for the
imposition of the penalty fixed by the
law.chanroblesvirtualawlibrary chanrobles virtual law library
There is in the record no direct evidence of the commission of
the crime by the defendants. None of the witnesses has seen
the dynamite which, it is said, they caused to explode in the
99
house of the offended Casimiro Abria. Indeed the Attorney-
General says in his brief: "It is true that none of the witnesses
for the prosecution has seen the defendants Felipe Diño and
Fortunato Lauristo on the night of May 4, 1923, at the act of
firing the dynamite that set fire to the ceiling of the house of
Casimiro Abria and unnailed several boards from its wall, but
the circumstances of record in this case are so clear and
conclusive that no other conclusion is possible than that the
herein appellants Felipe Diño and Fortunato Lauristo were
the authors of the explosion that caused a part of the ceiling
of the house of Casimiro Abria to burn."chanrobles virtual law
library
What are these circumstances? They are made to consists in
the facts testified to by Andres Borca and Enrique
Horogon.chanroblesvirtualawlibrary chanrobles virtual law
library
The witness Andres Borca says that about the month of
February, 1923, the accused Felipe Diño proposed to him to
cause a dynamite to explode in the house of Casimiro Abria,
telling him, "Andres there is a dynamite here; fire it in the
house of Casimiro Abria," which the witness refused to do,
because he did not known how to fire a dynamite. This seems
to indicate the guilt of the accused Felipe Diño; but if it is
considered that the testimony of the witness Borca is not
corroborated in any manner and is denied by the accused
Felipe Diño, and that Borca has not seen any dynamite or
other explosive substance in Felipe's possession, it cannot be
said in reason that his testimony constitutes a strong and
conclusive evidence of guilt of the accused Felipe
Diño.chanroblesvirtualawlibrary chanrobles virtual law library
The witness Enrique Horogon says that he was invited by
Gabriel Diño on the night of the 4th of May, 1923, to go out
fishing on a boat. This witness says, further, that upon their
arrival at the place known as Iraya of the barrio of Lope de
Vega his companions left them on the boat; that then he
heard an explosion and a little later the accused came back in
a hurry to the boat and in their return Felipe Diño warned
him not to reveal to anybody that he (Felipe Diño) had
ordered the accused Lauristo to fire a dynamite in the house
of Casimiro Abria.chanroblesvirtualawlibrary chanrobles
virtual law library
But is it true that Horogon was invited by Gabriel Diño on the
night in question to go out on a boat with the defendants up
to the place known as Iraya? The record does not disclose any
confirmation of the testimony of Horogon; on the contrary it
is denied by the Diño defendants and the circumstances of
the voyage on the boat and of the warning that Horogon puts
in the mouth of Felipe make it completely incredible. If after
all, Horogon had no part to perform in connection with the
supposed igniting of the dynamite, what necessity did the
accused have to take him on the boat? If Horogon, at any
rate, did not know where the defendants went after they had
left him on the boat, nor did he see Lauristo fire the dynamite
in the house of Abria, what necessity did Felipe have to
caution him not to tell anything about what they (the
defendants) had done? By instinct the criminal avoids the
presence of witnesses who may denounce the commission of
the crime; and the case now related by the witness Horogon
is so rare that without a strong corroboration, as is the case
here, we cannot believe it. And upon this ground, the case
must be dismissed as to the defendant Gabriel
Diño.chanroblesvirtualawlibrary chanrobles virtual law library
The fact itself of the explosion of the dynamite related by the
offended Abria is not free from doubt. According to this
witness, at about midnight of May 4, 1923, while he was
sleeping in company with eight persons in his house situated
in the sitio of Capipian, barrio of Lope de Vega, municipality
of Catarman, Province of Samar, he was awakened by a
strong explosion, which he supposed had burst out in his
house; he immediately stood up, and went to the place
where he believed the explosion had taken place, and found
a part of the wall that was contiguous to the door destroyed,
and the ceiling of the house burning; he called his servant and
both of them succeeded in putting out the fire. As a result of
said explosion, the hemp fiber baled and deposited behind
the main door of the house was scattered and a part of the
ceiling, which was of anahaw, burnt, thus presenting a hole
which was one foot in diameter, four boards having been
unnailed and a hole made on the wooden floor. On the next
day he reported the matter to the municipal president of
Catarman who repaired to the place of the event and saw
that the damage caused by the explosion would amount to
P10.chanroblesvirtualawlibrary chanrobles virtual law library
those of Felipe, Diño, or in the boat on the night in question,
we conclude that if the circumstances stated by said
witnesses indicate anything, they are not so convincing or
conclusive as to establish the guilt of the defendants beyond
a reasonable doubt.chanroblesvirtualawlibrary chanrobles
virtual law library
According to Rule 52 of the Provincial Law for the Application
of the Provisions of the Penal Code, in order that a conviction
may be sustained upon circumstantial evidence alone, it is
necessary , first, that the circumstances be more than one;
second, that the facts upon which they are based be proven;
and third, that, taken together, they convince the mind in
such a manner as not to leave any room for reasonable doubt
as to the guilt of the accused in the natural and ordinary
course of things. And this is substantially the same rule
established by the jurisprudence of this court. (U. S. vs. Perez,
2 Phil., 171; U. S. vs. Douglass, 2 Phil., 461; U. S. vs. Reyes, 3
Phil., 3; U. S. vs. Villos, 6 Phil., 510.)chanrobles virtual law
library
For all of the foregoing, the judgment appealed from must be
reversed, and the appellants Felipe Diño and Fortunato
Lauristo be, as they are hereby, acquitted with the costs de
oficio. So ordered.chanroblesvirtualawlibrary chanrobles
virtual law library
Johnson, Malcolm, Avanceña, Ostrand and Romualdez, JJ.,
concur.

According to the testimony of the witness Abria the explosion

seems to have taken place on the exterior part of his house
near the main door, destroying the wall contiguous to the
door through which it entered, scattering the hemp fiber
which was baled and deposited behind said door, and
unnailing four boards of the wall; but such a hypothesis
cannot be reconciled with the fact of an opening one foot in
diameter having been made on the wooden floor of the
house, and another of equal size on the ceiling of anahaw,
unless it is granted that the explosion was so strong that a
part of the explosive was thrown against the unnailed boards,
another part against the floor, making an opening thereon,
and still another against the ceiling. But then it cannot be
explained how the eight persons who were sleeping in the
same room, which contained an area of only about 12 square
brazas and formed one single compartment, did not suffer
the slightest injury.chanroblesvirtualawlibrary chanrobles
virtual law library

Without the necessity of expounding other hypotheses which

may be drawn from the testimony of Abria, and taking into
account that the same witnesses, Borca and Horogon, have
not seen any dynamite in possession of the defendants, or in

100
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our
criminal law jurisprudence. Petitioner effectively concedes
having performed the felonious acts imputed against him, but
instead insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage
of which he was convicted. The proposition rests on a
common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the
accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this
Court.
As far as can be told,2 the last time this Court extensively
considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao. 3 A more
cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now
gives occasion for us to finally and fully measure if or how
frustrated theft is susceptible to commission under the
Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case
stems from an Information6 charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the
crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along
North EDSA, by Lorenzo Lago (Lago), a security guard who
was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an
identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the
well-known "Tide" brand. Petitioner unloaded these cases in
an open parking space, where Calderon was waiting.
Petitioner then returned inside the supermarket, and after
five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area
in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi.
He boarded the cab and directed it towards the parking space
101
where Calderon was waiting. Calderon loaded the cartons of
Tide Ultramatic inside the taxi, then boarded the vehicle. All
these acts were eyed by Lago, who proceeded to stop the taxi
as it was leaving the open parking area. When Lago asked
petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning
shot to alert his fellow security guards of the incident.
Petitioner and Calderon were apprehended at the scene, and
the stolen merchandise recovered.8 The filched items seized
from the duo were four (4) cases of Tide Ultramatic, one (1)
case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security
office before they were transferred on the same day to the
Baler Station II of the Philippine National Police, Quezon City,
for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4)
other persons were apprehended by the security guards at
the scene and delivered to police custody at the Baler PNP
Station in connection with the incident. However, after the
matter was referred to the Office of the Quezon City
Prosecutor, only petitioner and Calderon were charged with
theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident.10
After pleading not guilty on arraignment, at the trial,
petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the
afternoon of 19 May 1994 when they were haled by Lago and
his fellow security guards after a commotion and brought to
the Baler PNP Station. Calderon alleged that on the afternoon
of the incident, he was at the Super Sale Club to withdraw
from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long, Calderon and
Rosulada decided to buy snacks inside the supermarket. It
was while they were eating that they heard the gunshot fired
by Lago, leading them to head out of the building to check
what was
transpiring. As they were outside, they were suddenly
"grabbed" by a security guard, thus commencing their
detention.12 Meanwhile, petitioner testified during trial that
he and his cousin, a Gregorio Valenzuela, 13 had been at the
parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the
security guard Lago fire a shot. The gunshot caused him and
the other people at the scene to start running, at which point
he was apprehended by Lago and brought to the security
office. Petitioner claimed he was detained at the security
office until around 9:00 p.m., at which time he and the others
were brought to the Baler Police Station. At the station,
petitioner denied having stolen the cartons of detergent, but
he was detained overnight, and eventually brought to the
prosecutor’s office where he was charged with theft. 14 During
petitioner’s cross-examination, he admitted that he had been
employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional
Trial Court (RTC) of Quezon City, Branch 90, convicted both
petitioner and Calderon of the crime of consummated theft.
They were sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to seven (7)
years of prision mayor as maximum. 17 The RTC found credible
the testimonies of the prosecution witnesses and established
the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal, 18 but
only petitioner filed a brief19 with the Court of Appeals,
causing the appellate court to deem Calderon’s appeal as
abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted
of frustrated theft since at the time he was apprehended, he
was never placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003,21 the
Court of Appeals rejected this contention and affirmed
petitioner’s conviction.22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction
"be modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner
effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a
total value of ₱12,090.00 of which he was charged.25 As such,
there is no cause for the Court to consider a factual scenario
other than that presented by the prosecution, as affirmed by
the RTC and the Court of Appeals. The only question to
consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated
theft, petitioner cites26 two decisions rendered many years
ago by the Court of Appeals: People v. Diño 27 and People v.
Flores.28 Both decisions elicit the interest of this Court, as
they modified trial court convictions from consummated to
frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate
court did not expressly consider the import of the rulings
when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving
short shrift to the Diño and Flores rulings since they have not
yet been expressly adopted as precedents by this Court. For
whatever reasons,
the occasion to define or debunk the crime of frustrated theft
has not come to pass before us. Yet despite the silence on our
part, Diño and Flores have attained a level of renown reached
by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes
as textbook examples of frustrated crimes or even as
definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin
to the fanciful scenarios that populate criminal law exams
more than they actually occur in real life. Indeed, if we finally
102
say that Diño and Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen
property through a supervised egress, such as a supermarket
checkout counter or a parking area pay booth, may easily call
for the application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions for
frustrated theft further validates that Diño and Flores and the
theories offered therein on frustrated theft have borne some
weight in our jurisprudential system. The time is thus ripe for
us to examine whether those theories are correct and should
continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as
well as the specific issues relative to "frustrated theft," it is
necessary to first refer to the basic rules on the three stages
of crimes under our Revised Penal Code.30
Article 6 defines those three stages, namely the
consummated, frustrated and attempted felonies. A felony is
consummated "when all the elements necessary for its
execution and accomplishment are present." It is frustrated
"when the offender performs all the acts of execution which
would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is
attempted "when the offender commences the commission
of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous
desistance."
Each felony under the Revised Penal Code has a "subjective
phase," or that portion of the acts constituting the crime
included between the act which begins the commission of the
crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime. 31 After
that point has been breached, the subjective phase ends and
the objective phase begins.32 It has been held that if the
offender never passes the subjective phase of the offense,
the crime is merely attempted.33 On the other hand, the
subjective phase is completely passed in case of frustrated
crimes, for in such instances, "[s]ubjectively the crime is
complete."34
Truly, an easy distinction lies between consummated and
frustrated felonies on one hand, and attempted felonies on
the other. So long as the offender fails to complete all the
acts of execution despite commencing the commission of a
felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime
under the Revised Penal Code are generally enumerated in
the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually
performed by the accused as against the acts that constitute
the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is
frustrated or consummated necessitates an initial concession
that all of the acts of execution have been performed by the
offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all
the acts of execution had been performed hinges on the
particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime
under the Revised Penal Code, while the elements in turn
unravel the particular requisite acts of execution and
accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi
mens sit rea" supplies an important characteristic of a crime,
that "ordinarily, evil intent must unite with an unlawful act
for there to be a crime," and accordingly, there can be no
crime when the criminal mind is wanting.35 Accepted in this
jurisdiction as material in crimes mala in se,36mens rea has
been defined before as "a guilty mind, a guilty or wrongful
purpose or criminal intent,"37 and "essential for criminal
liability."38 It follows that the statutory definition of our mala
in se crimes must be able to supply what the mens rea of the
crime is, and indeed the U.S. Supreme Court has comfortably
held that "a criminal law that contains no mens rea
requirement infringes on constitutionally protected
rights."39 The criminal statute must also provide for the overt
acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also
be an actus reus.40
It is from the actus reus and the mens rea, as they find
expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably
ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally
dubious set-up under which the judiciary is assigned the
legislative role of defining crimes. Fortunately, our Revised
Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term
is embedded which attests when the felony is produced by
the acts of execution. For example, the statutory definition of
murder or homicide expressly uses the phrase "shall kill
another," thus making it clear that the felony is produced by
the death of the victim, and conversely, it is not produced if
the victim survives.
We next turn to the statutory definition of theft. Under
Article 308 of the Revised Penal Code, its elements are
spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any
person who, with intent to gain but without violence against
or intimidation of persons nor force upon things, shall take
personal property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
103
2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits or
object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field
where trespass is forbidden or which belongs to another and
without the consent of its owner, shall hunt or fish upon the
same or shall gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and
three alternative and highly idiosyncratic means by which
theft may be committed.41 In the present discussion, we need
to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition,
there is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of another.
It is also clear from the provision that in order that such
taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was
with intent to gain; without force upon things or violence
against or intimidation of persons; and it was without the
consent of the owner of the property.
Indeed, we have long recognized the following elements of
theft as provided for in Article 308 of the Revised Penal Code,
namely: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be
accomplished without the use of violence against or
intimidation of persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined
by Gaius, was so broad enough as to encompass "any kind of
physical handling of property belonging to another against
the will of the owner,"43 a definition similar to that by Paulus
that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea
had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object,
thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This
requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even
as it has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with
apoderamiento, or "unlawful taking," to characterize theft.
Justice Regalado notes that the concept of apoderamiento
once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to appropriate the
object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the
thing."47 However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be
permanency in the taking48 or an intent to permanently
deprive the owner of the stolen property;49 or that there was
no need for permanency in the taking or in its intent, as the
mere temporary possession by the offender or disturbance of
the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the
Court adopted the latter thought that there was no need of
an intent to permanently deprive the owner of his property
to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the
taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is
the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted
stage. As applied to the present case, the moment petitioner
obtained physical possession of the cases of detergent and
loaded them in the pushcart, such seizure motivated by
intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales
Club, petitioner forfeited the extenuating benefit a conviction
for only attempted theft would have afforded him.
On the critical question of whether it was consummated or
frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that
provision, the theft would have been frustrated only, once
the acts committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, "do not produce [such theft]
by reason of causes independent of the will of the
perpetrator." There are clearly two determinative factors to
consider: that the felony is not "produced," and that such
failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the
evidence at hand in each particular case. The first, however,
relies primarily on a doctrinal definition attaching to the
individual felonies in the Revised Penal Code52 as to when a
particular felony is "not produced," despite the commission
of all the acts of execution.
So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the
felony of theft "produced." Parsing through the statutory
definition of theft under Article 308, there is one apparent
answer provided in the language of the law — that theft is
already "produced" upon the "tak[ing of] personal property
of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a
customs inspector was charged with theft after he abstracted
a leather belt from the baggage of a foreign national and
secreted the item in his desk at the Custom House. At no time
was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under
observation during the entire transaction." 54 Based
apparently on those two circumstances, the trial court had
found him guilty, instead, of frustrated theft. The Court
reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated
theft, finding that "all the elements of the completed crime of
theft are present."55 In support of its conclusion that the theft
104
was consummated, the Court cited three (3) decisions of the
Supreme Court of Spain, the discussion of which we replicate
below:
The defendant was charged with the theft of some fruit from
the land of another. As he was in the act of taking the fruit[,]
he was seen by a policeman, yet it did not appear that he was
at that moment caught by the policeman but sometime later.
The court said: "[x x x] The trial court did not err [x x x ] in
considering the crime as that of consummated theft instead
of frustrated theft inasmuch as nothing appears in the record
showing that the policemen who saw the accused take the
fruit from the adjoining land arrested him in the act and thus
prevented him from taking full possession of the thing stolen
and even its utilization by him for an interval of time."
(Decision of the Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the
latter was hearing mass in a church. The latter on account of
the solemnity of the act, although noticing the theft, did not
do anything to prevent it. Subsequently, however, while the
defendant was still inside the church, the offended party got
back the money from the defendant. The court said that the
defendant had performed all the acts of execution and
considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and
by means of a key opened up a case, and from the case took
a small box, which was also opened with a key, from which in
turn he took a purse containing 461 reales and 20 centimos,
and then he placed the money over the cover of the case; just
at this moment he was caught by two guards who were
stationed in another room near-by. The court considered this
as consummated robbery, and said: "[x x x] The accused [x x
x] having materially taken possession of the money from the
moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the
same, he executed all the acts necessary to constitute the
crime which was thereby produced; only the act of making
use of the thing having been frustrated, which, however,
does not go to make the elements of the consummated
crime." (Decision of the Supreme Court of Spain, June 13,
1882.)56
It is clear from the facts of Adiao itself, and the three (3)
Spanish decisions cited therein, that the criminal actors in all
these cases had been able to obtain full possession of the
personal property prior to their apprehension. The interval
between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later"
in the 1898 decision; to the very moment the thief had just
extracted the money in a purse which had been stored as it
was in the 1882 decision; and before the thief had been able
to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision.
Still, such intervals proved of no consequence in those cases,
as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property
belonging to another.
In 1929, the Court was again confronted by a claim that an
accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla, 57 where
the accused, while in the midst of a crowd in a public market,
was already able to abstract a pocketbook from the trousers
of the victim when the latter, perceiving the theft, "caught
hold of the [accused]’s shirt-front, at the same time shouting
for a policeman; after a struggle, he recovered his pocket-
book and let go of the defendant, who was afterwards caught
by a policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is groundless. The
[accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was
afterwards recovered, such recovery does not affect the
[accused’s] criminal liability, which arose from the [accused]
having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the
Spanish Supreme Court cases cited in the latter, in that the
fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions
cited therein contradict the position of petitioner in this case.
Yet to simply affirm without further comment would be
disingenuous, as there is another school of thought on when
theft is consummated, as reflected in the Diño and Flores
decisions.
Diño was decided by the Court of Appeals in 1949, some 31
years after Adiao and 15 years before Flores. The accused
therein, a driver employed by the United States Army, had
driven his truck into the port area of the South Harbor, to
unload a truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P.
who inspected the truck and found therein three boxes of
army rifles. The accused later contended that he had been
stopped by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve the rifles
after he had passed the checkpoint. The trial court convicted
accused of consummated theft, but the Court of Appeals
modified the conviction, holding instead that only frustrated
theft had been committed.
In doing so, the appellate court pointed out that the evident
intent of the accused was to let the boxes of rifles "pass
through the checkpoint, perhaps in the belief that as the
truck had already unloaded its cargo inside the depot, it
would be allowed to pass through the check point without
further investigation or checking."60 This point was deemed
material and indicative that the theft had not been fully
produced, for the Court of Appeals pronounced that "the fact
determinative of consummation is the ability of the thief to
dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn
105
from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa
sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que
permitan al sustractor la libre disposicion de aquella, siquiera
sea mas o menos momentaneamente, pues de otra suerte,
dado el concepto del delito de hurto, no puede decirse en
realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.62
Integrating these considerations, the Court of Appeals then
concluded:
This court is of the opinion that in the case at bar, in order to
make the booty subject to the control and disposal of the
culprits, the articles stolen must first be passed through the
M.P. check point, but since the offense was opportunely
discovered and the articles seized after all the acts of
execution had been performed, but before the loot came
under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it
was frustrated by the timely intervention of the guard. The
offense committed, therefore, is that of frustrated theft. 63
Diño thus laid down the theory that the ability of the actor to
freely dispose of the items stolen at the time of apprehension
is determinative as to whether the theft is consummated or
frustrated. This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case which according
to the division of the court that decided it, bore "no
substantial variance between the circumstances [herein] and
in [Diño]."64 Such conclusion is borne out by the facts in
Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one
empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of
the stevedoring company. The truck driver proceeded to
show the delivery receipt to the guard on duty at the gate of
the terminal. However, the guards insisted on inspecting the
van, and discovered that the "empty" sea van had actually
contained other merchandise as well.65 The accused was
prosecuted for theft qualified by abuse of confidence, and
found himself convicted of the consummated crime. Before
the Court of Appeals, accused argued in the alternative that
he was guilty only of attempted theft, but the appellate court
pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that "literally frustrated
the theft." However, the Court of Appeals, explicitly relying
on Diño, did find that the accused was guilty only of
frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no
substantial variance" between Diño and Flores then before it.
The prosecution in Flores had sought to distinguish that case
from Diño, citing a "traditional ruling" which unfortunately
was not identified in the decision itself. However, the Court
of Appeals pointed out that the said "traditional ruling" was
qualified by the words "is placed in a situation where [the
actor] could dispose of its contents at once."66 Pouncing on
this qualification, the appellate court noted that "[o]bviously,
while the truck and the van were still within the compound,
the petitioner could not have disposed of the goods ‘at
once’." At the same time, the Court of Appeals conceded that
"[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the
crime, where freedom to dispose of or make use of it is
palpably less restricted,"67 though no further qualification
was offered what the effect would have been had that
alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The
determinative characteristic as to whether the crime of theft
was produced is the ability of the actor "to freely dispose of
the articles stolen, even if it were only momentary." Such
conclusion was drawn from an 1888 decision of the Supreme
Court of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso que so
haga en circunstancias tales que permitan al sustractor de
aquella, siquiera sea mas o menos momentaneamente." The
qualifier "siquiera sea mas o menos momentaneamente"
proves another important consideration, as it implies that if
the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed
consummated. Such circumstance was not present in
either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically
extracted from the guarded compounds from which the items
were filched. However, as implied in Flores, the character of
the item stolen could lead to a different conclusion as to
whether there could have been "free disposition," as in the
case where the chattel involved was of "much less bulk and
more common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the
following pointed observation on the import of the Diño
ruling:
There is a ruling of the Court of Appeals that theft is
consummated when the thief is able to freely dispose of the
stolen articles even if it were more or less momentary. Or as
stated in another case[69 ], theft is consummated upon the
voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the
thing whereby the thief places it under his control and in such
a situation that he could dispose of it at once. This ruling
seems to have been based on Viada’s opinion that in order
the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding
from Adiao and other cases, also states that "[i]n theft or
robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was
frustrated."72
There are at least two other Court of Appeals rulings that are
at seeming variance with the Diño and Flores rulings. People
v. Batoon73 involved an accused who filled a container with
gasoline from a petrol pump within view of a police detective,
106
who followed the accused onto a passenger truck where the
arrest was made. While the trial court found the accused
guilty of frustrated qualified theft, the Court of Appeals held
that the accused was guilty of consummated qualified theft,
finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x
and U.S. v. Sobrevilla x x x indicate that actual taking with
intent to gain is enough to consummate the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces
of hospital linen from a supply depot and loaded them onto a
truck. However, as the truck passed through the checkpoint,
the stolen items were discovered by the Military Police
running the checkpoint. Even though those facts clearly admit
to similarity with those in Diño, the Court of Appeals held that
the accused were guilty of consummated theft, as the
accused "were able to take or get hold of the hospital linen
and that the only thing that was frustrated, which does not
constitute any element of theft, is the use or benefit that the
thieves expected from the commission of the offense."76
In pointing out the distinction between Diño and Espiritu,
Reyes wryly observes that "[w]hen the meaning of an
element of a felony is controversial, there is bound to arise
different rulings as to the stage of execution of that
felony."77 Indeed, we can discern from this survey of
jurisprudence that the state of the law insofar as frustrated
theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself,
the question can even be asked whether there is really such a
crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was
guilty of frustrated, and not consummated, theft. As we
undertake this inquiry, we have to reckon with the import of
this Court’s 1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation
had espied four (4) persons in the premises of his plantation,
in the act of gathering and tying some coconuts. The accused
were surprised by the owner within the plantation as they
were carrying with them the coconuts they had gathered. The
accused fled the scene, dropping the coconuts they had
seized, and were subsequently arrested after the owner
reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on
appeal was that they were guilty only of simple theft. The
Court affirmed that the theft was qualified, following Article
310 of the Revised Penal Code,79 but further held that the
accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of
whether the theft was consummated or frustrated was raised
by any of the parties. What does appear, though, is that the
disposition of that issue was contained in only two sentences,
which we reproduce in full:
However, the crime committed is only frustrated qualified
theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a
consequence. They were not able to carry the coconuts away
from the plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this averment,
whether Diño, Flores or the Spanish authorities who may
have bolstered the conclusion. There are indeed evident
problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the
actors "were not able to perform all the acts of execution
which should have produced the felon as a
consequence."81 However, per Article 6 of the Revised Penal
Code, the crime is frustrated "when the offender performs all
the acts of execution," though not producing the felony as a
result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other
than spontaneous desistance. Empelis concludes that the
crime was
frustrated because not all of the acts of execution were
performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts
should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because
of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as
we consider the present petition. Even if the two sentences
we had cited actually aligned with the definitions provided in
Article 6 of the Revised Penal Code, such passage bears no
reflection that it is the product of the considered evaluation
of the relevant legal or jurisprudential thought. Instead, the
passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court,
or even cited as authority on theft. Indeed, we cannot see
how Empelis can contribute to our present debate, except for
the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even
if Empelis were considered as a precedent for frustrated
theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact
that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable
given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of
frustrated theft, it cannot present any efficacious argument
to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the
1870 Codigo Penal de España was then in place. The
definition of the crime of theft, as provided then, read as
follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o
intimidación en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueño.
107
2. Los que encontrándose una cosa perdida y sabiendo quién
es su dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u
objeto del daño causado, salvo los casos previstos en los
artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm.
1.0; 611; 613; Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the
aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in
1932, and several times thereafter. In fact, under the Codigo
Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño
será castigado"82
Notice that in the 1870 and 1995 definition of theft in the
penal code of Spain, "la libre disposicion" of the property is
not an element or a statutory characteristic of the crime. It
does appear that the principle originated and perhaps was
fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form
in his 1926 commentaries on the 1870 Codigo Penal de
España. Therein, he raised at least three questions for the
reader whether the crime of frustrated or consummated
theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated
or consummated theft was committed "[e]l que en el
momento mismo de apoderarse de la cosa ajena, viéndose
sorprendido, la arroja al suelo."83 Even as the answer was as
stated in Diño, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decision’s
factual predicate occasioning the statement was apparently
very different from Diño, for it appears that the 1888 decision
involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the
garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated
theft, and willingly recites decisions of the Supreme Court of
Spain that have held to that effect.85 A few decades later, the
esteemed Eugenio Cuello Calón pointed out the inconsistent
application by the Spanish Supreme Court with respect to
frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las
guardias cuando llevaban los sacos de harino del carro que
los conducia a otro que tenían preparado, 22 febrero 1913;
cuando el resultado no tuvo efecto por la intervención de la
policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de
octubre 1950. Hay "por lo menos" frustración, si existe
apoderamiento, pero el culpale no llega a disponer de la cosa,
12 abril 1930; hay frustración "muy próxima" cuando el
culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han
considerado la existencia de frustración cuando, perseguido
el culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11
marzo 1921; esta doctrina no es admissible, éstos, conforme
a lo antes expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that
frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el
hurto se consuma cuando la cosa queda de hecho a la
disposición del agente. Con este criterio coincide la doctrina
sentada últimamente porla jurisprudencia española que
generalmente considera consumado el hurto cuando el
culpable coge o aprehende la cosa y ésta quede por tiempo
más o menos duradero bajo su poder. El hecho de que éste
pueda aprovecharse o no de lo hurtado es indiferente. El
delito no pierde su carácter de consumado aunque la cosa
hurtada sea devuelta por el culpable o fuere recuperada. No
se concibe la frustración, pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo
consume efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados son
verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike
Viada, who was content with replicating the Spanish Supreme
Court decisions on the matter, Cuello Calón actually set forth
his own thought that questioned whether theft could truly be
frustrated, since "pues es muy dificil que el que hace cuanto
es necesario para la consumación del hurto no lo consume
efectivamente." Otherwise put, it would be difficult to
foresee how the execution of all the acts necessary for the
completion of the crime would not produce the effect of
theft.
This divergence of opinion convinces us, at least, that there is
no weighted force in scholarly thought that obliges us to
accept frustrated theft, as proposed in Diño and Flores. A final
ruling by the Court that there is no crime of frustrated theft in
this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calón’s
position.
Accordingly, it would not be intellectually disingenuous for
the Court to look at the question from a fresh perspective, as
we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we
ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Diño and Flores
doctrines, the answer has to be in the negative. If we did so,
it would arise not out of obeisance to an inexorably higher
command, but from the exercise of the function of statutory
interpretation that comes as part and parcel of judicial
review, and a function that allows breathing room for a
variety of theorems in competition until one is ultimately
adopted by this Court.
V.
The foremost predicate that guides us as we explore the
matter is that it lies in the province of the legislature, through
statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or
108
combination of acts are criminal in nature. Judicial
interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the
language of the law as it defines the crime. It is Congress, not
the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to
introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not
hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains
the Court to refrain from a broad interpretation of penal laws
where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose,
in order to strictly determine the wrath and breath of the
conduct the law forbids."89
With that in mind, a problem clearly emerges with
the Diño/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of
the crime of theft. It finds no support or extension in Article
308, whether as a descriptive or operative element of theft or
as the mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the crime of
theft as provided for in Article 308 of the Revised Penal Code
are: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be
accomplished without the use of violence against or
intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory definition of
theft, which is the taking, with intent to gain, of personal
property of another without the latter’s consent. While
the Diño/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of
the victim.
For the purpose of ascertaining whether theft is susceptible
of commission in the frustrated stage, the question is again,
when is the crime of theft produced? There would be all but
certain unanimity in the position that theft is produced when
there is deprivation of personal property due to its taking by
one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender,
once having committed all the acts of execution for theft, is
able or unable to freely dispose of the property stolen since
the deprivation from the owner alone has already ensued
from such acts of execution. This conclusion is reflected in
Chief Justice Aquino’s commentaries, as earlier cited, that
"[i]n theft or robbery the crime is consummated after the
accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the
thing was frustrated."91
It might be argued, that the ability of the offender to freely
dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the
actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade
the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been
completed, the "taking not having been accomplished."
Perhaps this point could serve as fertile ground for future
discussion, but our concern now is whether there is indeed a
crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We are
satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he
acquired physical possession of the stolen cases of detergent
for a considerable period of time that he was able to drop
these off at a spot in the parking lot, and long enough to load
these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same.92 And long ago, we
asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is
the taking of the thing to be appropriated into the physical
power of the thief, which idea is qualified by other
conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be
here noted that the definition does not require that the
taking should be effected against the will of the owner but
merely that it should be without his consent, a distinction of
no slight importance.94
Insofar as we consider the present question, "unlawful
taking" is most material in this respect. Unlawful taking,
which is the deprivation of one’s personal property, is the
element which produces the felony in its consummated
stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under
Article 308 of the Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be attempted or
consummated.
Neither Diño nor Flores can convince us otherwise. Both fail
to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has
been produced as there has been deprivation of property.
The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon
the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule
—that the inability of the offender to freely dispose of the
stolen property frustrates the theft — would introduce a
convenient defense for the accused which does not reflect
any legislated intent,95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under
applied circumstances that do not admit of easy classification.
It is difficult to formulate definite standards as to when a
109
stolen item is susceptible to free disposal by the thief. Would
this depend on the psychological belief of the offender at the
time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property,
the location of the property, the number and identity of
people present at the scene of the crime, the number and
identity of people whom the offender is expected to
encounter upon fleeing with the stolen property, the manner
in which the stolen item had been housed or stored; and
quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant
as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been
consummated.
All these complications will make us lose sight of the fact that
beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such
deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have
been completed. If the facts establish the non-completion of
the taking due to these peculiar circumstances, the effect
could be to downgrade the crime to the attempted stage, as
not all of the acts of execution have been performed. But
once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and
ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded
in common sense. Yet they do not align with the legislated
framework of the crime of theft. The Revised Penal Code
provisions on theft have not been designed in such fashion as
to accommodate said rulings. Again, there is no language in
Article 308 that expressly or impliedly allows that the "free
disposition of the items stolen" is in any way determinative of
whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in
relying on Diño alone for legal support. These cases do not
enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor
from this Court.
We thus conclude that under the Revised Penal Code, there is
no crime of frustrated theft. As petitioner has latched the
success of his appeal on our acceptance of the Diño and
Flores rulings, his petition must be denied, for we decline to
adopt said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not
detract from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order
that frustrated theft may be recognized. Our deference to
Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

110
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on
appeal from a decision of the Court of First Instance of Iloilo,
finding him guilty of attempted robbery and sentencing him
to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one
day of prision mayor for being an habitual delinquent, with
the accessory penalties of the law, and to pay the costs of the
proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing,
who was patrolling his beat on Delgado and C.R. Fuentes
streets of the City of Iloilo, caught the accused in the act of
making an opening with an iron bar on the wall of a store of
cheap goods located on the last named street. At that time
the owner of the store, Tan Yu, was sleeping inside with
another Chinaman. The accused had only succeeded in
breaking one board and in unfastening another from the wall,
when the policeman showed up, who instantly arrested him
and placed him under custody.
The fact above stated was considered and declared
unanimously by the provincial fiscal of Iloilo, the trial judge
and the Solicitor-General, as constituting attempted robbery,
which we think is erroneous.
It is our opinion that the attempt to commit an offense which
the Penal Code punishes is that which has a logical relation to
a particular, concrete offense; that, which is the beginning of
the execution of the offense by overt acts of the perpetrator,
leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its
nature in relation to its objective is ambiguous, is not a
111
juridical fact from the standpoint of the Penal Code. There is
no doubt that in the case at bar it was the intention of the
accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the
wall, in order to commit an offense which, due to the timely
arrival of policeman Tomambing, did not develop beyond the
first steps of its execution. But it is not sufficient, for the
purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the
logical and natural relation of the cause and its effect, with
the deed which, upon its consummation, will develop into
one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried
to its complete termination following its natural course,
without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of
robbery, in order that the simple act of entering by means of
force or violence another person's dwelling may be
considered an attempt to commit this offense, it must be
shown that the offender clearly intended to take possession,
for the purpose of gain, of some personal property belonging
to another. In the instant case, there is nothing in the record
from which such purpose of the accused may reasonably be
inferred. From the fact established and stated in the decision,
that the accused on the day in question was making an
opening by means of an iron bar on the wall of Tan Yu's store,
it may only be inferred as a logical conclusion that his evident
intention was to enter by means of force said store against
the will of its owner. That his final objective, once he
succeeded in entering the store, was to rob, to cause physical
injury to the inmates, or to commit any other offense, there is
nothing in the record to justify a concrete finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature
of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of
the acts executed (accion medio). Hence, the necessity that
these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons
performing the same, and by the things connected therewith,
they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double
interpretation , that is, in favor as well as against the culprit,
and which show an innocent as well as a punishable act, must
not and can not furnish grounds by themselves for attempted
nor frustrated crimes. The relation existing between the facts
submitted for appreciation and the offense which said facts aggravating circumstances of nighttime and former
are supposed to produce must be direct; the intention must be convictions, — inasmuch as the record shows that several final
ascertained from the facts and therefore it is necessary, in judgments for robbery and theft have been rendered against
order to avoid regrettable instances of injustice, that the mind him — and in his favor, the mitigating circumstance of lack of
be able to directly infer from them the intention of the instruction. The breaking of the wall should not be taken into
perpetrator to cause a particular injury. This must have been consideration as an aggravating circumstance inasmuch as this
the intention of the legislator in requiring that in order for an is the very fact which in this case constitutes the offense of
attempt to exist, the offender must commence the attempted trespass to dwelling.
commission of the felony directly by overt acts, that is to say,
that the acts performed must be such that, without the intent The penalty provided by the Revised Penal Code for the
to commit an offense, they would be meaningless. consummated offense of trespass to dwelling, if committed
with force, is prision correccional in its medium and maximum
Viada (Vol. I, p. 47) holds the same opinion when he says that periods and a fine not exceeding P1,000 (art. 280, par. 2);
"the overt acts leading to the commission of the offense, are therefore the penalty corresponding to attempted trespass to
not punished except when they are aimed directly to its dwelling is to degrees lower (art. 51), or, arresto mayor in its
execution, and therefore they must have an immediate and minimum and medium periods. Because of the presence of
necessary relation to the offense." two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum
Considering — says the Supreme Court of Spain in its decision period. Pursuant to article 29 of the same Code, the accused is
of March 21, 1892 — that in order to declare that such and not entitled to credit for one-half of his preventive
such overt acts constitute an attempted offense it is necessary imprisonment.
that their objective be known and established, or that said acts
be of such nature that they themselves should obviously Wherefore, the sentence appealed from is revoked and the
disclose the criminal objective necessarily intended, said accused is hereby held guilty of attempted trespass to
objective and finality to serve as ground for the designation of dwelling, committed by means of force, with the aforesaid
the offense: . . . . aggravating and mitigating circumstances and sentenced to
three months and one day of arresto mayor, with the
In view of the foregoing, we are of the opinion, and so hold accessory penalties thereof and to pay the costs.
that the fact under consideration does not constitute
attempted robbery but attempted trespass to dwelling Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
(People vs. Tayag and Morales, 59 Phil., 606, and decisions of
the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a
private person shall enter the dwelling of another against the
latter's will. The accused may be convicted and sentenced for
an attempt to commit this offense in accordance with the
evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the
wall of said store by breaking a board and unfastening another
for the purpose of entering said store ... and that the accused
did not succeed in entering the store due to the presence of
the policeman on beat Jose Tomambing, who upon hearing the
noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this
case the prohibition of the owner or inmate is presumed.
(U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509'
U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615;
U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.)
Against the accused must be taken into consideration the

112
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 86163 April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO
CANASARES, and SIMPLICIO CANASARES, BIENVENIDO
SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision
of the Regional Trial Court, Branch 28, Iloilo City, *dated 29
August 1988, in Criminal Case No. 20092, finding him and his
co-accused Reynaldo, Ronaldo and Simplicio, all surnamed
Canasares, guilty beyond reasonable doubt of the crime of
"Robbery with Serious Physical Injuries and Serious Illegal
Detention" and sentencing them to suffer the penalty
of reclusion perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO SALVILLA,
REYNALDO CANASARES, RONALDO CANASARES, and
SIMPLICIO CANASARES, whose maternal surnames, dated and
places of birth cannot be ascertained of the crime of
ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS
ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction
with Article 267 of the Revised Penal Code), committed as
follows:
That on or about the 12th day of April, 1986, in the City of
Iloilo, Philippines and within the jurisdiction of this Court, said
accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns
and handgrenade and with the use of violence or intimidation
employed on the person of Severino Choco, Mary Choco,
Mimie Choco and Rodita Hablero did then and there wilfully,
unlawfully and criminally take and carry away, with intent of
gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1)
113
Lady's Citizen wrist watch and assorted jewelries, all valued at
P50,000.00; that on the occasion and by reason of said
robbery, Mary Choco suffered serious physical injuries under
paragraph 2 of Article 263, Bienvenido Salvilla likewise
suffered serious physical injuries and Reynaldo Canasares also
suffered physical injuries; that the said accused also illegally
detained, at the compound of the New Iloilo Lumber
Company, Iznart Street, Iloilo City, Severino Choco,
owner/proprietor of said Lumber Company, Mary Choco,
Mimie Choco, who is a minor, being 15 years of age, and
Rodita Hablero, who is a salesgirl at said Company; that
likewise on the occasion of the robbery, the accused also
asked and were given a ransom money of P50,000.00; that
the said crime was attended by aggravating circumstances of
band, and illegal possession of firearms and explosives; that
the amount of P20,000.00, the ransom money of P50,000.00,
two (2) Men's wrist watches, two (2) lady's wrist watches,
one (1) .38 caliber revolver and one (1) live grenade were
recovered from the accused; to the damage and prejudice of
the New Iloilo Lumber Company in the amount of
P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused
at the New Iloilo Lumber Yard at about noon time. The plan
was hatched about two days before. The accused were armed
with homemade guns and a hand grenade. When they
entered the establishment, they met Rodita Hablero an
employee thereat who was on her way out for her meal
break and announced to her that it was a hold-up. She was
made to go back to the office and there Appellant Salvilla
pointed his gun at the owner, Severino Choco, and his two
daughters, Mary and Mimie the latter being a minor 15 years
of age, and told the former that all they needed was money.
Hearing this, Severino told his daughter, Mary, to get a paper
bag wherein he placed P20,000.00 cash (P5,000.00, according
to the defense) and handed it to Appellant. Thereafter,
Severino pleaded with the four accused to leave the premises
as they already had the money but they paid no heed.
Instead, accused Simplicio Canasares took the wallet and
wristwatch of Severino after which the latter, his two
daughters, and Rodita, were herded to the office and kept
there as hostages.
At about 2:00 o'clock of the same day, the hostages were
allowed to eat. The four accused also took turns eating while
the others stood guard. Then, Appellant told Severino to
produce P100,000.00 so he and the other hostages could be
released. Severino answered that he could not do so because
it was a Saturday and the banks were closed.
In the meantime, police and military authorities had
surrounded the premises of the lumber yard. Major
Melquiades B. Sequio Station Commander of the INP of Iloilo
City, negotiated with the accused using a loud speaker and
appealed to them to surrender with the assurance that no
harm would befall them as he would accompany them
personally to the police station. The accused refused to
surrender or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and
joined the negotiations. In her dialogue with the accused,
which lasted for about four hours, Appellant demanded
P100,000.00, a coaster, and some raincoats. She offered
them P50,000.00 instead, explaining the difficulty of raising
more as it was a Saturday. Later, the accused agreed to
receive the same and to release Rodita to be accompanied by
Mary Choco in going out of the office. When they were out of
the door, one of the accused whose face was covered by a
handkerchief, gave a key to Mayor Caram. With this, Mayor
Caram unlocked the padlocked door and handed to Rodita
the P50,000.00, which the latter, in turn, gave to one of the
accused. Rodita was later set free but Mary was herded back
to the office.
Mayor Caram, Major Sequio and even volunteer radio
newscasters continued to appeal to the accused to surrender
peacefully but they refused.1âwphi1 UItimatums were given
but the accused did not budge. Finally, the police and military
authorities decided to launch an offensive and assault the
place. This resulted in injuries to the girls, Mimie and Mary
Choco as well as to the accused Ronaldo and Reynaldo
Canasares. Mary suffered a "macerated right lower extremity
just below the knee" so that her right leg had to be
amputated. The medical certificate described her condition as
"in a state of hemorrhagic shock when she was brought in to
the hospital and had to undergo several major operations
during the course of her confinement from April 13, 1986 to
May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon
time of 12 April 1986 he and his co-accused entered the
lumber yard and demanded money from the owner Severino
Choco He demanded P100,000.00 but was given only
P5,000.00, which he placed on the counter of the office of the
lumber yard. He admitted that he and his co-accused kept
Severino, his daughters, and Rodita inside the office. He
114
maintained, however, that he stopped his co-accused from
getting the wallet and wristwatch of Severino and, like the
P5,000.00 were all left on the counter, and were never
touched by them. He claimed further that they had never
fired on the military because they intended to surrender.
Appellant's version also was that during the gunfire,
Severino's daughter stood up and went outside; he wanted to
stop her but he himself was hit by a bullet and could not
prevent her. Appellant also admitted the appeals directed to
them to surrender but that they gave themselves up only
much later.
After trial, the Court a quo meted out a judgment of
conviction and sentenced each of the accused "to suffer the
penalty of reclusion perpetua, with the accessory penalties
provided by law and to pay the costs."
Appellant Salvilla's present appeal is predicated on the
following Assignments of Error:
1. The lower court erred in holding that the crime charged
was consummated and in not holding that the same was
merely attempted.
2. The lower court erred in not appreciating the mitigating
circumstance of voluntary surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny
(theft/robbery) as distinguished from an attempt requires
asportation or carrying away, in addition to the taking, In
other words, the crime of robbery/theft has three
consecutive stages: 1) the giving 2) the taking and 3) the
carrying away or asportation And without asportation the
crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there
be a taking of personal property belonging to another. This is
known as the element of asportation the essence of which is
the taking of a thing out of the possession of the owner
without his privity and consent and without the animus
revertendi (Aquino, Revised Penal Code, p. 97, citing5 C.J.
607). In fact, if there is no actual taking, there can be no
robbery. Unlawful taking of personal property of another is
an essential part of the crime of robbery.
Appellant insists that while the "giving" has been proven, the
"taking" has not. And this is because neither he nor his three
co-accused touched the P5,000.00 given by Severino nor the
latter's wallet or watch during the entire incident; proof of
which is that none of those items were recovered from their
persons.
Those factual allegations are contradicted by the evidence.
Rodita, the lumberyard employee, testified that upon
demand by Appellant, Severino put P20,000.00 inside a paper
bag and subsequently handed it to Appellant. In turn, accused
Simplicio Canasares took the wallet and wristwatch of
Severino. In respect of the P50,000.00 from Mayor Caram,
Rodita declared that the Mayor handed the amount to her
after she (the Mayor) had opened the padlocked door and
that she thereafter gave the amount to one of the
holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money
demanded, and the wallet and wristwatch were within the
dominion and control of the Appellant and his co-accused
and completed the taking.
The State established a "taking" sufficient to support a
conviction of robbery even though the perpetrators were
interrupted by police and so did not pick up the money
offered by the victim, where the defendant and an
accomplice, armed with a knife and a club respectively, had
demanded the money from the female clerk of a convenience
store, and the clerk had complied with their instructions and
placed money from the register in a paper bag and then
placed the bag on the counter in front of the two men; these
actions brought the money within the dominion and control
of defendant and completed the taking. (Johnson vs. State,
432 So 2d 758).
"Severance of the goods from the possession of the owner
and absolute control of the property by the taker,even for an
instant, constitutes asportation (Adams vs. Commonwealth,
154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs.
Commonwealth, 105 SE 2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had
no opportunity to dispose of the personalities taken. That
fact does not affect the nature of the crime, From the
moment the offender gained possession of the thing, even if
the culprit had no opportunity to dispose of the same, the
unlawful taking is complete (Reyes, Revised Penal Code
Annotated, Book II, 1981 ed., p. 594).
115
The crime is consummated when the robber acquires
possession of the property, even if for a short time, and it is
not necessary that the property be taken into the hands of
the robber, or that he should have actually carried the
property away, out of the physical presence of the lawful
possessor, or that he should have made his escape with it"
(People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d
644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d
553).
Contrary to Appellant's submission, therefore, a conviction
for consummated and not merely attempted Robbery is in
order.
It is the contention of Appellant that Rodita could not have
seen the taking because the place was dark since the doors
were closed and there were no windows. It will be recalled,
however, that Rodita was one of the hostages herself and
could observe the unfolding of events. Her failure to mention
the taking in her sworn statement would not militate against
her credibility, it being settled that an affidavit is almost
always incomplete and inaccurate and does not disclose the
complete facts for want of inquiries or suggestions (People vs.
Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People
vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would
not lessen her credibility. The defense has not proven that
she was actuated by any improper motive in testifying against
the accused.
In the last analysis, the basic consideration centers around
the credibility of witnesses in respect of which the findings of
the Trial Court are entitled to great weight as it was in a
superior position to assess the same in the course of the trial
(see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151
SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June
1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the
Appellant and his co-accused cannot be considered in their
favor to mitigate their liability. To be mitigating, a surrender
must have the following requisites: (a) that the offender had
not been actually arrested; (b) that the offender surrendered
himself to a person in authority or to his agent; and (c) that
the surrender was voluntary (People vs. Canamo, G.R. No. L-
62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly
meets these requirements. They were, indeed, asked to
surrender by the police and military authorities but they
refused until only much later when they could no longer do
otherwise by force of circumstances when they knew they
were completely surrounded and there was no chance of
escape. The surrender of the accused was held not to be
mitigating as when he gave up only after he was surrounded
by the constabulary and police forces (People vs. Sigayan et
al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People
vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167).
Their surrender was not spontaneous as it was motivated
more by an intent to insure their safety. And while it is
claimed that they intended to surrender, the fact is that they
did not despite several opportunities to do so. There is no
voluntary surrender to speak of (People vs. Dimdiman 106
Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we
find the guilt of the accused-appellant, Bienvenido Salvilla,
established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to
turn now to the nature of the linked offenses involved and
the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the
Information with "Robbery with Serious Physical Injuries and
Serious Illegal Detention ("Art. 295, par. 3, in conjunction
with Art. 267, RPC )and sentenced to reclusion perpetua. We
agree with the Trial Court that a complex crime under Article
48 of the Revised Penal Code has been committed such that
the penalty for the more serious offense of Serious Illegal
Detention (Art. 267, Revised Penal Code), or "reclusion
perpetua to death," is to be imposed instead of the penalty
prescribed for Robbery with Serious Physical Injuries (Art. 294
(3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is
a necessary means for committing the other." The term
"necessary means" does not connote indispensable means
for if it did then the offense as a "necessary means" to
commit another would be an indispensable element of the
latter and would be an ingredient thereof. The phrase
"necessary means" merely signifies that one crime is
committed to facilitate and insure the commission of the
other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p.
624, citing Dissent, Montemayor, J., Amado Hernandez, 99
Phil. 515). In this case, the crime of Serious Illegal Detention
116
was such a "necessary means" as it was selected by Appellant
and his co-accused to facilitate and carry out more effectively
their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et
al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where
the accused were convicted of Robbery but acquitted in the
case for Serious Illegal Detention and where it was held that
"the detention is absorbed in the crime of robbery." For one,
in Astor, there were two (2) separate Informations filed, one
for Robbery and another for Serious Illegal Detention. In the
present case, only one Information was filed charging the
complex offense. For another, in Astor, the robbery had
already been consummated and the detention was merely to
forestall the capture of the robbers by the police. Not so in
this case, where the detention was availed of as a means of
insuring the consummation of the robbery. Further,
in Astor, the detention was only incidental to the main crime
of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early
arrival of the police at the scene of the crime, they would
have not anymore detained the people inside since they have
already completed their job. Obviously, appellants were left
with no choice but to resort to detention of these people as
security, until arrangements for their safe passage were
made. This is not the crime of illegal detention punishable
under the penal laws but an act of restraint in order to delay
the pursuit of the criminals by peace officers (People v. Sol, 9
Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised
Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the
victims in a robbery case were detained in the course of
robbery, the detention is absorbed by the crime of robbery
(P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the
detention was only incidental to the main crime of robbery,
and although in the course thereof women and children were
also held, that threats to kill were made, the act should not
be considered as a separate offense. Appellants should only
be held guilty of robbery.
In contract, the detention in the case at bar was not only
incidental to the robbery but was a necessary means to
commit the same.1âwphi1 After the amount of P20,000.00
was handed to Appellant, the latter and his co-accused still
refused to leave. The victims were then taken as hostages
and the demand to produce an additional P100,000.00 was
made as a prerequisite for their release. The detention was
not because the accused were trapped by the police nor were
the victims held as security against the latter. The detention
was not merely a matter of restraint to enable the
malefactors to escape, but deliberate as a means of extortion
for an additional amount. The police and other authorities
arrived only much later after several hours of detention had
already passed. And, despite appeals to appellant and his co-
accused to surrender, they adamantly refused until the
amount of P100,000.00 they demanded could be turned over
to them. They even considered P50,000.00, the amount being
handed to them, as inadequate.

The foregoing features also distinguish this case from those of

U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no
other purpose than to prevent the victims from reporting the
crime to the authorities; from People v. Gamboa, 92 Phil.
1085 [1953] where the victims were taken to a place one
kilometer away and shot in order to liquidate the witnesses
to the robbery; from People v. Baysa, 92 Phil. 1008 [1953];
People v. Manzanilla, 43 Phil. 167 [1922], all of which cases
were cited in Astor and where the victims were only
incidentally detained so that the detention was deemed
absorbed in robbery.

In other words, unlike in the above cases, the elements of the

offense of Serious Illegal Detention are present in this case.
The victims were illegally deprived of their liberty. Two
females (Mary and Minnie) and a minor (Minnie), a specified
circumstance in Article 267 (3), were among those detained.
The continuing detention was also for the purpose of
extorting ransom, another listed circumstance in Article 267
(last parag.) not only from the detained persons themselves
but even from the authorities who arrived to rescue them.

It follows then that as the detention in this case was not

merely incidental to the robbery but a necessary means
employed to facilitate it, the penalty imposed by the Trial
Court is proper.

WHEREFORE, the judgment appealed from is hereby

AFFIRMED. Proportionate costs.

SO ORDERED.

Paras, Padilla Sarmiento and Regalado JJ., concur.

117
118
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 33463 December 18, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
BASILIO BORINAGA, defendant-appellant.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
MALCOM, J.:
Sometime prior to March 4, 1929, an American by the name
of Harry H. Mooney, a resident of the municipality of
Calubian, Leyte, contracted with one Juan Lawaan for the
construction of a fish corral. Basilio Borinaga was associated
with Lawaan in the construction of the corral. On the morning
of March 4, 1929, Lawaan, with some of his men, went to
Mooney's shop and tried to collect from him the whole
amount fixed by the contract, notwithstanding that only
about two-thirds of the fish corral had been finished. As was
to be expected, Mooney refused to pay the price agreed
upon at that time. On hearing this reply of Mooney, Lawaan
warned him that if he did not pay, something would happen
to him, to which Mooney answered that if they wanted to do
something to him they should wait until after breakfast,
Lawaan then left with his men, and Mooney, after partaking
of his morning meal, returned to his shop.
On the evening of the same day, Mooney was in the store of
a neighbor by the name of Perpetua Najarro. He had taken a
seat on a chair in front of the Perpetua, his back being to the
window. Mooney had not been there long when Perpetua
saw Basilio Borinaga from the window strike with a knife at
Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell
from the chair as a result of the force of the blow, but was
not injured. Borinaga ran away towards the market place.
Before this occurred, it should be stated that Borinaga had
been heard to tell a companion: "I will stab this Mooney, who
is an American brute." After the attack, Borinaga was also
heard to say that he did not hit the back of Mooney but only
the back of the chair. But Borinaga was persistent in his
endeavor, and hardly ten minutes after the first attack, he
119
returned, knife in hand, to renew it, but was unable to do so
because Mooney and Perpetua were then on their guard and
turned a flashlight on Borinaga, frightening him away. Again
the same night, Borinaga was overheard stating that he had
missed his mark and was unable to give another blow
because of the flashlight. The point of the knife was
subsequently, on examination of the chair, found embedded
in it.
The foregoing occurrences gave rise to the prosecution of
Basilio Borinaga in the Court of First Instance of Leyte for the
crime of frustrated murder. The defense was alibi, which was
not given credence. The accused was convicted as charged,
by Judge Ortiz, who sentenced him to fourteen years, eight
months, and one day of imprisonment, reclusion temporal,
with the accessory penalties and the costs.
The homicidal intent of the accused was plainly evidenced.
The attendant circumstances conclusively establish that
murder was in the heart and mind of the accused. More than
mere menaces took place. The aggressor stated his purpose,
which was to kill, and apologized to his friends for not
accomplishing that purpose. A deadly weapon was used. The
blow was directed treacherously toward vital organs of the
victim. The means used were entirely suitable for
accomplishment. The crime should, therefore, be qualified as
murder because of the presence of the circumstance of
treachery.
The only debatable question, not referred to in the briefs, but
which must be decided in order to dispose of the appeal, is:
Do the facts constitute frustrated murder or attempted
murder within the meaning of article 3 of the Penal Code?
Although no exact counterpart to the facts at bar has been
found either in Spanish or Philippine jurisprudence, a majority
of the court answer the question propounded by stating that
the crime committed was that of frustrated murder. This is
true notwithstanding the admitted fact that Mooney was not
injured in the least.
The essential condition of a frustrated crime, that the author
perform all the acts of execution, attended the attack.
Nothing remained to be done to accomplish the work of the
assailant completely. The cause resulting in the failure of the
attack arose by reason of forces independent of the will of
the perpetrator. The assailant voluntarily desisted from
further acts. What is known as the subjective phase of the
criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil.,
209; People vs. Mabugat [1926], 51 Phil., 967.)
No superfine distinctions need be drawn in favor of that
accused to establish a lesser crime than that of frustrated
murder, for the facts disclose a wanton disregard of the
sanctity of human life fully meriting the penalty imposed in
the trial court.
Based on foregoing considerations, the judgment appealed
from will be affirmed, with the costs of this instance against
the appellant.
Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ.,
concur.lawphi1>net
Separate Opinions
VILLA-REAL, J., dissenting:
We dissent from the opinion of the majority in so far as it
finds the defendant-appellant guilty of the crime of frustrated
murder instead of that of an attempt to commit murder.
Article 3 of the Penal Code provides as follows:
ART. 3. Frustrated felonies and attempts to commit
felonies are punishable, as well as those which are
consummated.
A felony is frustrated when the offender performs all
the acts of execution which should produce the
felony as a consequence, but which, nevertheless,
do no produce it by reason of causes independent of
the will of the perpetrator.
There is an attempt when the offender commences
the commission of the felony directly by overt acts,
and does not perform all the acts of execution which
constitute the felony by reason of some cause or
accident other than his own voluntary desistance.
The pertinent facts as found by the court below and by this
court are the following:
On the evening of the same day, Mooney was in the store of
a neighbor by the name of Perpetua Najarro. He had taken a
seat on a chair in front of Perpetua, his back being to the
window. Mooney had not been there long when Perpetua
saw Basilio Borinaga from the window strike with a knife at
Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell
120
from the chair as a result of the force of the blow, but was
not injured. Borinaga ran away towards the market place.
Before this occurred, it should be stated that Borinaga had
been heard to tell a companion: "I will stab this Mooney, who
is an American brute." After the attack, Borinaga was also
heard to say that he did not hit the back of Mooney but only
the back of the chair. But Borinaga was persistent in his
endeavor, and hardly ten minutes after the first attack, he
returned, knife in hand, to renew it, but was unable to do so
because Mooney and Perpetua were then on their guard and
turned a flashlight on Borinaga, frightening him away. Again
that same night, Borinaga was overheard stating that he had
missed his mark and was unable to give another blow
because of the flashlight. The point of the knife was
subsequently, on examination of the chair, found embedded
in it.
Since the facts constituting frustrated felony and those
constituting an attempt to commit felony are integral parts of
those constituting consummated felony, it becomes
important to know what facts would have been necessary in
order that the case at bar might have been a consummated
murder, so that we may determine whether the facts proved
during the trial constitute frustrated murder or simply an
attempt to commit murder.
In order that the crime committed by the defendant-
appellant might have been a consummated murder it would
have been necessary for him to have inflicted a deadly wound
upon a vital spot of the body of Mooney, with treachery, as a
result of which he should have died.
Since according to the definition given by the Code a
frustrated felony is committed "when the offender performs
all the acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator"
let us examine the facts of record to find out whether the
said defendant-appellant has performed all the acts of
execution which should produce the murder of Mooney as a
consequence. The prisoner at bar, intending to kill Mooney,
approached him stealthily from behind and made movement
with his right hand to strike him in the back with a deadly
knife, but the blow, instead of reaching the spot intended,
landed on the frame of the back of the chair on which
Mooney was sitting at the time and did not cause the
slightest physical injury on the latter. The acts of execution
performed by the defendant-appellant did not produce the
death of Mooney as a consequence nor could they have
produced it because the blow did not reach his body;
therefore the culprit did not perform all the acts of execution
which should produce the felony. There was lacking the
infliction of the deadly wound upon a vital spot of the body of
Mooney.

It is true that the frame of the back of the chair stood

between the deadly knife and the back of Mooney; but what
it prevented was the wounding of said Mooney in the back
and not his death, had he been wounded. It is the preventing
of death by causes independent of the will of the perpetrator,
after all the acts of execution which should produce the
felony as a consequence had been performed, that
constitutes frustrated felony, according to the law, and not
the preventing of the performance of all the acts of execution
which constitute the felony, as in the present case. The
interference of the frame of the back of the chair which
prevented the defendant-appellant from wounding Mooney
in the back with a deadly knife, made his acts constitute an
attempt to commit murder; for he had commenced the
commission of the felony directly by overt acts, and did not
perform all the acts of execution which constitute the felony
by reason of a cause or accident other than his own voluntary
desistance.

The foregoing considerations force us to the conclusion that

the facts alleged in the information and proved during the
trial are not sufficient to constitute the crime of frustrated
murder, but simply the crime of an attempt to commit
murder.

Johnson and Street, JJ., concur.

121
122
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5848 April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor
Florencio Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First
Instance of Manila finding the defendant-appellant herein Sy
Pio, alias Policarpio de la Cruz, guilty of frustrated murder
against the person of Tan Siong Kiap, and sentencing him to
suffer an indeterminate sentence of 6 years, 1 month, and 11
days of prision mayor, to 14 years, 8 months, and 1 day
of reclusion temporal, to indemnify the offended party Tan
Siong Kiap in the sum of P350, without subsidiary
imprisonment in case of insolvency, and to pay the costs. The
case was appealed to the Court of Appeals, but that court
certified it to this Court under the provisions of section 17 (4)
of Republic Act No. 296, on the ground that the crime
charged was committed on the same occasion that the
defendant-appellant had committed crime of murder, with
which the defendant-appellant was also charged.
The evidence for the prosecution shows that early in the
morning of September 3, 1949, the defendant-appellant
entered the store at 511 Misericordia, Sta Cruz, Manila. Once
inside he started firing a .45 caliber pistol that he had in his
hand. The first one shot was Jose Sy. Tan Siong Kiap, who was
in the store and saw the accused enter and afterwards fire a
shot at Jose Sy, asked the defendant-appellant, "What is the
idea?" Thereupon defendant-appellant turned around and
fired at him also. The bullet fired from defendant-appellant's
pistol entered the right shoulder of Tan Siong Kiap
immediately ran to a room behind the store to hide. From
there he still heard gunshot fired from defendant-appellant's
pistol, but afterwards defendant-appellant ran away.
123
Tan Siong Kiap was brought to the Chinese General Hospital,
where his wound was treated. He stayed there from
September 3 to September 12, 1949, when he was released
upon his request and against the physician's advice. He was
asked to return to the hospital for further treatment, and he
did so five times for a period of more than ten days.
Thereafter his wound was completely healed. He spent the
sum of P300 for hospital and doctor's fees.
The defendant-appellant shot two other persons in the
morning of September 3, 1949, before shooting and
wounding Tan Siong Kiap; one was Ong Pian and the other
Jose Sy. On September 5 information was received by the
Manila Police Department that defendant-appellant was in
custody of the Constabulary in Tarlac, so a captain of the
Manila police by the name of Daniel V. Lomotan proceeded to
Tarlac. There he saw the defendant-appellant and had a
conversation with him. On this occasion defendant-appellant
and had a conversation with him. On this occasion defendant-
appellant admitted to Lomotan that his victims were Tan
Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac
also delivered to Lomotan the pistol used by the defendant-
appellant, marked Exhibit C, and its magazine, Exhibit C-1,
both of which the Constabulary had confiscated from the
defendant-appellant. The defendant-appellant was
thereupon delivered to the custody of Lomotan, and the
latter brought him to Manila, where his statement was taken
down in writing. This declaration was submitted at the time
of the trial as Exhibit D, and it contains all the details of the
assaults that defendant-appellant 3 against the persons of
Tan Siong Kiap, Ong Pian, and Jose Sy. This written statement
was taken down on a typewriter and afterwards signed by the
defendant-appellant in both his Chinese and Filipino names,
the latter being Policarpio de la Cruz.
According to the declaration of the defendant-appellant,
some months prior to September 3, 1949, he was employed
as an attendant in a restaurant belonging to Ong Pian.
Defendant-appellant's wife by the name of Vicenta was also
employed by Ong Pian's partner, Eng Cheng Suy. Prior to
September 3 the relatives of his wife had been asking the
latter for help, because her father was sick. Defendant-
appellant asked money from Ong Pian, but the latter could
only give him P1. His wife was able to borrow P20 from her
employer, and this was sent to his wife's parents in Cebu.
Afterwards defendant-appellant was dismissed from his work
at the restaurant of Ong Pian, and he became a peddler. Ong
Pian presented a list of the sums that defendant-appellant
had borrowed from him, and these sums were deducted from
the salary of his wife. Defendant-appellant did not recognize
these sums as his indebtedness, and so he resented Ong
Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days
before September 3, 1949, defendant-appellant had been
able to realize the sum of P70 from the sales of medicine that
he peddled. He laid his money in a place in his room, but the
following morning he found that it had disappeared from the
place in which he had placed it. Tan Siong Kiap and Jose Sy,
upon the discovery of the loss of money, told defendant-
appellant that he must have given the money to his wife, and
that nobody had stolen it. After this incident of the loss, the
defendant-appellant used to hear Tan Siong Kiap and Jose Sy
and other Chinamen say that the money had not been
actually stolen, but that he lost it in gambling. Because of
these accusations against him, he nurtured resentment
against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by
the name of Ngo Cho, who the possessor of a caliber .45
pistol, was away from his room, defendant-appellant got his
pistol and tucked it in his belt. With this pistol he went to the
restaurant at 822 Ongpin, and there shot Ong Pian. After
shooting him, he proceeded to 511 Misericordia, in store
where Jose Sy and Tan Siong Kiap were, and there he fired at
them. Then he escaped to Legarda Street, in Sampaloc, where
he borrowed P1 from his relatives. From there he went to
Malabon, to the house of his mother, to whom he told he had
killed two persons and from he asked money.
The foregoing is the substance of the written declaration
made by the defendant-appellant in Exhibit D on September
6, 1949. At the time of the trial, however, he disowned the
confession and explained that he signed it without having
read its contents. He declared that it was not he who shot the
three victims, but it was one by the name of Chua Tone, with
whom he had previously connived to kill the three other
victims. He introduced no witnesses, however, to support his
denial. Neither did he deny that he admitted before Captain
Lomotan having killed the three persons, or having been
found in Tarlac in possession of the caliber .45 pistol, Exhibit
C, and its magazine, Exhibit C-1. In his cross-examination he
admitted many of the incidents mentioned in the confession,
especially the cause of his resentment against his victims Ong
Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and
therefore, found him guilty of the crime charged.
124
On this appeal counsel for the defendant-appellant claims
that the trial court erred in not finding that Tan Siong Kiap
received the shot accidentally from the same bullet that had
been fired at Jose Sy, and in finding that defendant-appellant
has committed a crime distinct and separate from that of
murder for the slaying of Jose Sy. We find no merit in this
contention. According to the uncontradicted testimony of the
offended party Tan Siong Kiap, when the latters saw
defendant-appellant firing shots he asked him why he was
doing so, and the defendant-appellant, instead of answering
him, turned around and fired at him also. It is not true,
therefore, that the shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to
sustain the judgment of conviction. We also find no merit in
this contention. The evidence submitted to prove the charge
consists of: the uncontradicted testimony of the victim
himself; the admissions made verbally by the defendant-
appellant before Captain Lomotan in Tarlac; the fact that the
defendant-appellant had escaped and was found in Tarlac; his
possession of the .45 caliber pistol coupled with the fact,
attested to by the testimony of the physician who examined
and treated the wounds of Tan Siong Kiap, that the wounds
found in his person must have been caused by the caliber .45
bullet; and, lastly, the confession of the defendant-appellant
himself, Exhibit D, which he was not able to impugn. As
against this mass of evidence, defendant-appellant has only
made a very unbelievable story that it was not he but another
that had committed the crime charged. His admissions at the
time of the trial regarding the incidents, as well as the cause
of his having assaulted his victims, coincide exactly with the
reasons given in his written confession. This shows that he
had made the confession himself, for nobody but himself
could have known the facts therein stated. The claim that the
offense has not been proved beyond reasonable doubt must
be dismissed.
The defendant-appellant lastly claims that the lower court
also erred in sentencing him to pay an indemnity of P350. The
offended party testified that he actually spent P300 for
hospital and doctor's fees, and that he was confined in the
hospital for nine days. The above facts stand uncontradicted.
This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be
found guilty only of less serious physical injuries instead of
the crime of frustrated murder as defendant-appellant
admitted in his confession in the open court that he had a
grudge against the offended party, and that he connived with
another to kill the latter. The intent to kill is also evident from acts of execution necessary to kill his victim. Under these
his conduct in firing the shot directly at the body of the circumstances, it can not be said that the subjective phase of
offended party. the acts of execution had been completed. And as it does not
appear that the defendant-appellant continued in the pursuit,
But while intent to kill is conclusively proved the wound and as a matter of fact, he ran away afterwards a reasonable
inflicted was not necessarily fatal, because it did not touch doubt exist in our mind that the defendant-appellant had
any of the vital organs of the body. As a matter of fact, the actually believed that he has committed all the acts of
medical certification issued by the physician who examined execution or passed the subjective phase of the said acts. This
the wound of the offended party at the time he went to the doubt must be resolved in favor of the defendant-appellant.
hospital, states that the wound was to heal within a period of
fourteen days, while the offended party actually stayed in the We are, therefore, not prepared to find the defendant-
hospital for nine days and continued receiving treatment appellant guilty of frustrated murder, as charged in the
thereafter five time for the period of more than ten days, or a information. We only find him guilty of attempted murder,
total of not more than thirty days. The question that needs to because he did not perform all the acts of execution, actual
be determined, therefore, is: Did the defendant-appellant and subjective, in order that the purpose and intention that
perform all the acts of execution necessary to produce the he had to kill his victim might be carried out.
death of his victim?
Therefore, the judgment appealed from should be, as it is
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. hereby, modified and the defendant-appellant is found guilty
Dagman, 47 Phil., 768 and People vs. Borinaga, 55 Phil., 433, of the crime of attempted murder, and the sentence imposed
this Court has held that it is not necessary that the accused upon him reduced to an indeterminate penalty of from 4
actually commit all the acts of execution necessary to years, 2 months, and 1 day of prision correccional to 10 years
produce the death of his victim, but that it is sufficient that of prision mayor. In all other respects the judgment is
he believes that he has committed all said acts. In the case affirmed. With costs against the defendant-appellant.
of People vs. Dagman, supra, the victim was first knocked
down by a stone thrown at him, then attacked with a lance, Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and
and then wounded by bolos and clubs wielded by the Concepcion, JJ., concur.
accused, but the victim upon falling down feigned death, and
the accused desisted from further continuing in the assault in
the belief that their victim was dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended
victim, but the knife with which he committed the aggression
instead of hitting the body of the victim, lodged in the back of
the chair in which he was seated, although the accused
believed that he had already harmed him. In both these cases
this Court held that of the crime committed was that of
frustrated murder, because the subjective phase of the acts
necessary to commit the offense had already passed; there
was full and complete belief on the part of the assailant that
he had committed all the acts of execution necessary to
produce the death of the intended victim.

In the case at bar, however, the defendant-appellant fired at

his victim, and the latter was hit, but he was able to escape
and hide in another room. The fact that he was able to
escape, which appellant must have seen, must have produced
in the mind of the defendant-appellant that he was not able
to his his victim at a vital part of the body. In other words, the
defendant-appellant knew that he had not actually all the

125
126
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to
prove his guilt beyond reasonable doubt of two crimes of
Murder and one of Frustrated Murder with which he has
been charged, accused Emeliano Trinidad appeals from the
judgment of the Regional Trial Court, Branch 7, Bayugan,
Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the
prosecution presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based
in Davao City. His helpers were TAN, a driver, and the other
deceased victim Marcial LAROA. On 19 January 1983, using a
Ford Fiera, they arrived at Butuan City to sell fish. In the
morning of 20 January 1983 SORIANO drove the Fiera to
Buenavista, Agusan del Norte, together with LAROA and a
helper of one Samuel Comendador. TAN was left behind in
Butuan City to dispose of the fish left at the Langihan market.
He followed SORIANO and LAROA, however, to Buenavista
later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member
of the Integrated National Police, assigned at Nasipit Police
Station, and residing at Baan, Butuan City, asked for a ride to
Bayugan, Agusan del Sur, which is on the way to Davao City.
TRINIDAD was in uniform and had two firearms, a carbine,
and the other, a side-arm .38 caliber revolver. SORIANO,
LAROA, TAN, and TRINIDAD then left Butuan on 20 January
1983 at about 5:20 P.M. bound for Davao City. TAN was
driving the Fiera. Seated to his right was SORIANO, LAROA
and the accused TRINIDAD, in that order. When they reached
127
the stretch between El Rio and Afga, TRINIDAD advised them
to drive slowly because, according to him, the place was
dangerous. All of a sudden, TAN heard two gunshots.
SORIANO and LAROA slumped dead. TAN did not actually see
the shooting of LAROA but he witnessed the shooting of
SORIANO having been alerted by the sound of the first
gunfire. Both were hit on the head. TRINIDAD had used his
carbine in killing the two victims.
TAN then hurriedly got off the Fiera, ran towards the
direction of Butuan City and hid himself in the bushes. The
Fiera was still running slowly then but after about seven (7) to
ten (10) meters it came to a halt after hitting the muddy side
of the road. TAN heard a shot emanating from the Fiera while
he was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a
passenger jeep passed by, TAN hailed it and rode on the front
seat. After a short interval of time, he noticed that TRINIDAD
was seated at the back. Apparently noticing TAN as well,
TRINIDAD ordered him to get out and to approach him
(TRINIDAD) but, instead, TAN moved backward and ran
around the jeep followed by TRINIDAD. When the jeep
started to drive away, TAN clung to its side. TRINIDAD fired
two shots, one of which hit TAN on his right thigh. As another
passenger jeep passed by, TAN jumped from the first jeep
and ran to the second. However, the passengers in the latter
jeep told him to get out not wanting to get involved in the
affray. Pushed out, TAN crawled until a member of the P.C.
chanced upon him and helped him board a bus for Butuan
City.
TRINIDAD's defense revolved around denial and alibi. He
contended that he was in Cagayan de Oro City on the date of
the incident, 20 January 1983. At that time, he was assigned
as a policeman at Nasipit Police Station, Agusan del Norte. He
reported to his post on 19 January 1983 but asked permission
from his Station Commander to be relieved from work the
next day, 20 January, as it was his birthday. He left Baan, his
Butuan City residence, at about 3:00 P.M. on 20 January 1983
and took a bus bound for Cagayan de Oro City. He arrived at
Cagayan de Oro at around 8:00 P.M. and proceeded to his
sister's house at Camp Alagar to get his subsistence
allowance, as his sister was working thereat in the Finance
Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one
Paelmo, in addition to his sister. Sgt. Caalim corroborated
having seen TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for
Butuan at lunch time on 21 January 1983 arriving at the latter
place around 6:00 P.M., and went to his house directly to get
his service carbine. He was on his way to Nasipit to report for
duty on 21 January 1983 when he was arrested at around
6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense
by the Trial Court** sentenced the accused in an "Omnibus
Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds
Emeliano Trinidad GUILTY beyond reasonable doubt of the
crimes of Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating
circumstance, and taking into account the provisions of the
Indeterminate Sentence Law, accused Trinidad is meted out a
penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00;
and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly
sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano
the amount of P30,000.00 each; and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in
giving full faith and credit to TAN's testimony who, TRINIDAD
alleges, was an unreliable witness. That is not so.
We find no variance in the statement made by TAN before
the NAPOLCOM Hearing Officer that when TRINIDAD boarded
the Fiera in Buenavista, he (TAN) was not in the vehicle, and
that made in open Court when he said that he was with
TRINIDAD going to Butuan City on board the Fiera. For the
facts disclose that when TRINIDAD boarded the Fiera in
Buenavista, TAN was still in Langihan distributing fish. The
Fiera left for Buenavista, driven by SORIANO between 6:00 to
128
7:00 A.M., while TAN followed only at 11:00, A.M. in another
vehicle. So that when TRINIDAD boarded the Fiera in
Buenavista, TAN was not yet in that vehicle although on the
return trip from Butuan City to Davao City, TAN was already
on board. In fact, TAN was the one driving. TAN's testimony
clarifying this point reads:
Q Did you not say in your direct examination that you went to
Buenavista, Agusan del Norte?
A We were in Langihan and since our fishes were not
consumed there, we went to Buenavista.
Q Now, what time did you leave for Buenavista from
Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista
because they left me fishes to be dispatched yet.
Q In other words, you did not go to Buenavista on January 20,
1983?
A I was able to go to Buenavista after the fishes were
consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were
also going to dispatch fishes in Buenavista.
Q Now, who then went to Buenavista with the fish car at
about 7:00 o'clock in the morning of January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper.
xxxxxx
Q Now, when this fish car returned to Butuan City who drove
it?
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
Felimon Comendador, also a fish vendor, and a resident of
Butuan City, testified that he saw TRINIDAD riding in the Fiera
on the front seat in the company of TAN, SORIANO and
LAROA, when the Fiera stopped by his house at Butuan City
(TSN, November 5, 1985, pp. 32-33).
The other inconsistencies TRINIDAD makes much of, such as,
that TAN was unsure before the NAPOLCOM Hearing Officer
whether TRINIDAD was wearing khaki or fatigue uniform but,
in open Court, he testified positively that TRINIDAD was in
khaki uniform; and that while TAN declared that TRINIDAD
was wearing a cap, prosecution witness Felimon Comendador
said that he was not but was in complete fatigue uniform, are
actually trivial details that do not affect the positive
identification of TRINIDAD that TAN has made nor detract
from the latter's overall credibility.
Nor is there basis for TRINIDAD to contend that the absence
of gunpowder burns on the deceased victims negates TAN's
claim that they were shot "point-blank." Actually, this term
refers merely to the "aim directed straight toward a target"
(Webster's Third New International Dictionary) and has no
reference to the distance between the gun and the target.
And in point of fact, it matters not how far the assailant was
at the time he shot the victims, the crucial factor being
whether he did shoot the victim or not.
TRINIDAD's defense of alibi is inherently weak and cannot
prevail over the straightforward and detailed descriptive
narration of TAN, thus:
Q Now, from Butuan City, where did you proceed?
A We proceeded to Davao.
Q Did you in fact reach Davao on that date?
A No, sir.
Q Could you tell the Court why you failed to reach Davao?
A Because we were held-up.
Q Who held-up you?
A Emeliano Trinidad, sir.
Q Are you referring to accused Emeliano Trinidad whom you
pointed to the court awhile ago?
A Yes, sir.
Q Will you tell the Court how did Emeliano Trinidad holdup
you?
A When we reach between El Rio and Afga, Trinidad advised
us to run slowly because this place is dangerous. Then
suddenly there were two gun bursts.
Q Now, you heard two gun bursts. What happened? What did
you see if there was any?
A I have found out that Lolito Soriano and Marcial Laroa
already fall.
Q Fall dead?
A They were dead because they were hit at the head.
Q You mean to inform the Court that these two died because
of that gun shot bursts?
A Yes, sir.
Q Did you actually see Trinidad shooting the two?
A I did not see that it was really Trinidad who shot Laroa but
since I was already alerted by the first burst, I have seen that
it was Trinidad who shot Soriano.
Q What was the firearm used?
A Carbine, sir.
129
xxxxxx
Q Now, after you saw that the two fell dead, what did you
do?
A I got out from the Ford Fiera while it was running.
xxxxxx
Q From the place where you were because you said you ran,
what transpired next?
A I hid myself at the side of the jeep, at the bushes.
Q While hiding yourself at the bushes, what transpired?
A I heard one gun burst.
Q From what direction was that gun bursts you heard?
A From the Ford Fiera, sir.
Q After that, what happened?
A At around 20 to 30 minutes, I moved out from the place
where I hid myself because I wanted to go back to Butuan,
Then, I boarded the jeep and sat at the front seat but I found
out that Emeliano Trinidad was at the back seat.
Q When you found out that Trinidad was at the back, what
happened?
A He ordered me to get out.
Q Now, when you got down, what happened?
A When I got out from the jeep, Trinidad also got out.
Q Tell the Court, what happened after you and Trinidad got
out from the jeep?
A He called me because he wanted me to get near him.
Q What did you do?
A I moved backward.
'Q Now, what did Trinidad do?
A He followed me.
Q While Trinidad followed you, what happened?
A I ran away around the jeep.
Q Now, while you were running around the jeep, what
happened?
A The driver drove the jeep.
Q Now, after that, what did you do?
A I ran after the jeep and then I was able to take the jeep at
the side of it.
Q How about Trinidad, where was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran after you what happened?
A Trinidad was able to catchup with the jeep and fired his
gun.
Q Were you hit?
A At that time I did not know that I was hit because it was
sudden.
Q When for the first time did you notice that you were hit?
A At the second jeep.
Q You mean to inform the Court that the jeep you first rode is
not the very same jeep that you took for the second time?
A No, sir.
Q Now, when you have notice that you were hit, what did
you do?
A At the first jeep that I took I was hit, so I got out from it and
stood-up at the middle of the road so that I can catch up the
other jeep.' (TSN, December 6, 1985, pp. 44-49)
TAN's testimony remained unshaken even during cross-
examination. No ill motive has been attributed to him to
prevaricate the truth. He was in the vehicle where the killing
transpired was a witness to the actual happening, and was a
victim himself who managed narrowly to escape death
despite the weaponry with which TRINIDAD was equipped.
WHEREFORE, the guilt of the accused Emeliano Trinidad for
the crimes of Murder (on two counts) and Attempted
Murder, having been proven beyond reasonable doubt, his
conviction is hereby AFFIRMED and he is hereby sentenced as
follows:
1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99
below) for Murder, he shall suffer the indeterminate penalty
of ten (10) years and one (1) day of prision mayor, as
minimum, to eighteen (18) years, eight (8) months and one
(1) day of reclusion temporal, as maximum; to indemnify the
heirs of Marcial Laroa and Lolito Soriano, respectively, in the
amount of P30,000.00 each; and to pay the costs.

The defense is correct, however, in contending that in the 2) In Criminal Case No. 79125 (No. 100 below) for Frustrated
Frustrated Murder case, TRINIDAD can only be convicted of Murder, he is hereby found guilty only of Attempted Murder
Attempted Murder. TRINIDAD had commenced the and sentenced to an indeterminate penalty of six (6) months
commission of the felony directly by overt acts but was and one (1) day of prision correccional, as minimum, to six (6)
unable to perform all the acts of execution which would have years and one (1) day of prision mayor, as maximum; to
produced it by reason of causes other than his spontaneous indemnify Ricardo Tan in the sum of P5,000,00; and to pay
desistance, such as, that the jeep to which TAN was clinging the costs.
was in motion, and there was a spare tire which shielded the
other parts of his body. Moreover, the wound on his thigh SO ORDERED.
was not fatal and the doctrinal rule is that where the wound
inflicted on the victim is not sufficient to cause his death, the Paras, Padilla, Sarmiento and Regalado, JJ., concur.
crime is only Attempted Murder, the accused not having
performed all the acts of execution that would have brought
about death (People vs. Phones, L-32754-5, July 21, 1978, 84
SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96
SCRA 497).

But while the circumstances do spell out the two crimes of

Murder, the penalty will have to be modified. For, with the
abolition of capital punishment in the 1987 Constitution, the
penalty for Murder is now reclusion temporal in its maximum
period to reclusion perpetua (People vs. Lopez, et al. G.R. No.
71876-76, January 25, 1988 citing People vs. Gavarra, No. L-
37673, October 30, 1987; People vs. Masangkay, G.R. No.
73461, October 27, 1987). With no attending mitigating or
aggravating circumstance, said penalty is imposable in its
medium period or from eighteen (18) years, eight (8) months
and one (1) day to twenty (20) years. The penalty next lower
in degree for purposes of the Indeterminate Sentence Law
is prision mayor, maximum, to reclusion temporal, medium,
or from ten (10) years and one (1) day to seventeen (17)
years and four (4) months (Article 61, parag. 3, Revised Penal
Code).

130
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 175023 July 5, 2010
GIOVANI SERRANO y CERVANTES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the
decision2 dated July 20, 2006 of the Court of Appeals (CA) in
CA-G.R. CR No. 29090, entitled "People of the Philippines v.
Giovani Serrano y Cervantes." The CA modified the decision
dated October 25, 20043 of the Regional Trial Court4 (RTC),
Branch 83, Quezon City, and found petitioner Giovani Serrano
y Cervantes (petitioner) guilty beyond reasonable doubt of
attempted homicide, instead of frustrated homicide.
The Facts
The case stemmed from a brawl involving 15 to 18 members
of two (2) rival groups that occurred at the University of the
Philippines, Diliman, Quezon City (UP) on the evening of
March 8, 1999. The incident resulted in the stabbing of
Anthony Galang (victim). Pinpointed as the victim’s assailant,
the petitioner was charged on March 11, 1999,5 with
frustrated homicide in an Information that reads:
That on or about the 8th day of March 1999, in Quezon City,
Philippines, the said accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and
employ personal violence upon the person of one ANTHONY
GALANG Y LAGUNSAD, by then and there stabbing him on the
stomach with a bladed weapon, thus performing all the acts
of execution which should have produced the crime of
homicide, as a consequence but which nevertheless did not
produce it, by reason of some causes independent of the will
of the accused; that is the timely and able medical assistance
rendered to said ANTHONY GALANG Y LAGUNSAD which
prevented his death, to the damage and prejudice of the said
offended party.
CONTRARY TO LAW.6
On March 20, 2000, the petitioner pleaded not guilty. During
the pre-trial, the prosecution and the defense agreed to
dispense with the testimonies of SPO2 Isagani dela Paz and
the records custodian of East Avenue Medical Center on the
basis of the following stipulations: (1) SPO2 dela Paz was the
one who conducted the investigation; (2) SPO2 dela Paz took
the statement of the victim at the East Avenue Medical
Center; (3) the victim was able to narrate the story of the
incident to SPO2 dela Paz before he underwent surgery; (4)
SPO2 dela Paz prepared a referral-letter to the city
131
prosecutor; (5) SPO2 dela Paz had no personal knowledge of
the incident; and (6) the victim was confined for treatment at
the East Avenue Medical Center from March 8, 1999, and the
documents referring to his confinement and treatment were
duly executed and authenticated.7 After these stipulations,
trial on the merits immediately followed.
The Prosecution’s Evidence
The prosecution presented the victim, Arlo Angelo Arceo, Sgt.
Rolando Zoleto, and SPO2 Roderick Dalit.
These witnesses testified that, at around 9:30 p.m. of March
8, 1999, the victim and his two friends, Arceo and Richard
Tan, were on their way to Fatima II in Pook Dagohoy, UP
Campus when they came across Gener Serrano, the
petitioner’s brother, who was with his group of friends. The
victim, Arceo and Tan approached Gener and his friends to
settle a previous quarrel between Gener and Roberto Comia.
While the victim and Gener were talking, Comia suddenly
appeared and hurled invectives at Gener. Irked, Gener
challenged Comia to a fistfight to settle their quarrel once
and for all; Comia rose to the challenge.
It was at this point that the petitioner appeared with other
members of his group. He was a guest at a party nearby, and
was informed that a fight was about to take place between
his brother and Comia. Members of the victim’s group also
started to show up.
The petitioner watched Gener fight Comia. When Gener lost
the fight, the petitioner sought to get back at the victim and
his friends. Thus, the one-on-one escalated into a rumble
between the members of the two groups. During the rumble,
and with the aid of the light emanating from two Meralco
posts, the victim and Arceo saw that the petitioner had a
knife and used it to chase away the members of their group.
The petitioner also chased Arceo away, leaving the victim
alone; the petitioner’s group ganged up on him.
The petitioner went to where the victim was being beaten by
Gener and one Obet Orieta. It was then that the victim was
stabbed. The petitioner stabbed the left side of his stomach
while he was standing, with Gener and Orieta holding his
arms. The petitioner, Gener and Orieta thereafter continued
to beat and stone the victim until he fell into a nearby creek.
The petitioner and his group left him there.
From his fallen position, the victim inspected his stab wound
and saw that a portion of his intestines showed. On foot, he
went to find help. The victim was initially taken to the UP
Infirmary, but was referred to the East Avenue Medical
Center where he underwent surgery. The victim stayed at the
hospital for a week, and thereafter stayed home for one
month to recuperate.
In the investigation that immediately followed, the victim
identified the petitioner as the person who stabbed him. In
court, the victim likewise positively identified the petitioner
as his assailant.
The Defense’s Evidence
The defense presented the testimonies of the petitioner,
Gener, and George Hipolito.
The petitioner denied that he stabbed the victim. While he
admitted that he was present during the fistfight between
Gener and Comia, he claimed that he and Gener left as soon
as the rumble started. The petitioner testified that as he and
Gener were running away from the scene (to get back to the
party), bottles and stones were being thrown at them.
Hipolito, a participant in the rumble and a member of the
petitioner’s group, narrated that the rumble happened fast
and he was too busy defending himself to take note of
everything that happened. He testified that he did not see the
petitioner and Gener during the fight. He also testified that
the place where the rumble took place was near a steel
manufacturing shop which provided some light to the area.
He further testified that the victim was left alone at the scene
and he alone faced the rival group.
The RTC Ruling
After considering the evidence, the trial court found the
petitioner guilty beyond reasonable doubt of frustrated
homicide. It held, thus:
The bare statement of Giovani Serrano that he did not stab
Anthony and he really does not know who might have
stabbed Anthony is outweighed by the positive identification
by Anthony that Giovani stabbed him frontally while they
faced each other and also the circumstantial evidence
pointing to him as the wielder of the knife. Naturally, Giovani
Serrano would feign ignorance as to who stabbed Anthony
but there is no way that he can avoid said direct and
circumstantial evidences.8
Accordingly, the RTC decision disposed:
WHEREFORE, the prosecution having established the guilt of
accused GIOVANI SERRANO Y CERVANTES of the offense of
FRUSTRATED HOMICIDE beyond reasonable doubt, this Court
finds him GUILTY thereof and hereby sentences him to
undergo imprisonment of FOUR (4) YEARS, TWO (2) MONTHS
and ONE (1) DAY of prisioncorreccional as minimum to TEN
(10) YEARS of prision mayor as maximum.
Accused Giovani Serrano is hereby ordered to reimburse to
complainant Anthony Galang the medical expenses incurred
by the latter in his hospitalization and treatment of his
injuries in the amount of FIFTEEN THOUSAND PESOS
(₱15,000.00) and loss of income for one (1) month in the
amount of FOUR THOUSAND PESOS (₱4,000.00) or the total
amount of NINETEEN THOUSAND PESOS (₱19,000.00).
Costs against the accused.
SO ORDERED.9
The petitioner appealed to the CA. He claimed that the
inconsistencies in the victim’s testimony rendered it
incredible, but the RTC disregarded the claim. The RTC also
disregarded the evidence that the dimness of the light in the
crime scene made it impossible for the victim to identify his
assailant.
The CA Ruling
In its decision, the CA agreed with the RTC that the petitioner
had been positively identified as the victim’s assailant. The
CA, however, ruled that the crime committed was attempted
homicide, not frustrated homicide. The CA ruled that the
132
prosecution evidence failed to conclusively show that the
victim’s single stab wound was sufficient to cause death
without timely medical intervention. In support of its
conclusion, the CA said that:
Thus, in Paddayuman v. People (G.R. No. 120344, 23 January
2002), appellant’s conviction for attempted homicide was
upheld because there was no evidence that the wounds
suffered by the victim were fatal enough as to cause her
demise. Thus:
x x x petitioner stabbed the victim twice on the chest, which
is indicative of an intent to kill. x x x This can be gleaned from
the testimony of Dr. Pintucan who did not categorically state
whether or not the wounds were fatal. x x x (I)n People v.
Pilones, this Court held that even if the victim was wounded
but the injury was not fatal and could not cause his death, the
crime would only be attempted.
Similarly, in the case of People v. Costales (G.R. No. 141154,
15 January 2002), where the offense charged was frustrated
murder, the trial court rendered a verdict of guilty for
attempted murder because the prosecution failed to present
a medical certificate or competent testimonial evidence
which will prove that the victim would have died from her
wound without medical intervention. Citing People v. De La
Cruz, the Supreme Court sustained the trial court and
stressed that:
x x x the crime committed for the shooting of the victim was
attempted murder and not frustrated murder for the reason
that "his injuries, though no doubt serious, were not proved
fatal such that without timely medical intervention, they
would have caused his death.10
Thus, the CA modified the RTC decision. The dispositive
portion of the CA decision reads:
WHEREFORE, with the MODIFICATIONS that:
1) Appellant is found GUILTY beyond reasonable
doubt of the crime of ATTEMPTED HOMICIDE and
sentenced to suffer the indeterminate penalty of
imprisonment of SIX (6) MONTHS of arresto mayor
as minimum to FOUR (4) YEARS and TWO (2)
MONTHS of prision correccional, as maximum;
2) The actual damages is REDUCED to ₱3,858.50; and
3) The award of loss earnings is DELETED,
The appealed decision is AFFIRMED in all other respects.
SO ORDERED.11
Undaunted, the petitioner filed this present petition.
The Issues
The petitioner raises the following issues for the Court’s
consideration:
A
THE COURT OF APPEALS ERRED IN GIVING FULL FAITH AND
CREDENCE TO THE INCREDIBLE AND INCONSISTENT
TESTIMONY OF THE PRIVATE COMPLAINANT.
B
THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE
TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION,
WHICH WERE BASED ON MERE SPECULATION AND
CONJECTURE.
C and the petitioner knew each other also allowed the victim to
THE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING
THE FACT THAT THE STABBING INCIDENT OCCURRED IN THE
MIDDLE OF A STREET BRAWL, WHERE ANYBODY OF THE
NUMEROUS PARTICIPANTS COULD HAVE BEEN THE
ASSAILANT.
D course of things, the victim would have the earnest desire to
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
THE GUILT OF THE ACCUSED-APPELLANT WAS PROVEN
BEYOND REASONABLE DOUBT.12
The petitioner claims that the lower courts’ decisions were
erroneous based on two-pronged arguments – first, he
cannot be convicted because he was not positively identified
by a credible testimony; and second, if he is criminally
culpable, he can only be convicted of serious physical injuries
as the intent to kill the victim was not sufficiently proven.
The Court Ruling
We do not find merit in the petitioner’s arguments, and
accordingly hold that the petition is devoid of merit.
At the outset, we clarify that we shall no longer deal with the
correctness of the RTC and the CA’s appreciation of the
victim’s identification of the petitioner as his assailant. This is
a question of fact that we cannot entertain in a Rule 45
review, save for exceptional reasons13 that must be clearly
and convincingly shown. As a rule, we accord the greatest
respect for the findings of the lower courts, especially the
evaluation by the trial judge who had the distinct opportunity
to directly hear and observe the witnesses and their
testimonies. As we explained in People v. Lucena 14 –
[It] has been consistently held by this Court that the matter of
assigning values to declarations on the witness stand is best
and most competently performed by the trial judge, who had
the unmatched opportunity to observe the witnesses and to
assess their credibility by the various indicia available but not
reflected in the record. The demeanor of the person on the
stand can draw the line between fact and fancy. The
forthright answer or the hesitant pause, the quivering voice
or the angry tone, the flustered look or the sincere gaze, the
modest blush or the guilty blanch – these can reveal if the
witness is telling the truth or lying through his teeth.15
In this regard, the petitioner cites an exception – the lower
courts’ misappreciation of the testimonial evidence. Due
consideration of the records, however, does not support the
petitioner’s position. We find that the RTC and the CA did not
err in their appreciation of the evidence.
The petitioner was positively identified
The RTC’s and CA’s conclusions on the petitioner’s positive
identification are supported by ample evidence. We consider
in this regard the following pieces of evidence of the
prosecution: (1) the manner of attack which was done
frontally and at close range, thus allowing the victim to see
his assailant; (2) the lighting conditions at the scene of the
stabbing, provided by two Meralco posts;16 the scene was
also illuminated by "white, fluorescent type" light coming
from a steel manufacturing shop;17 and (3) that the victim
133
readily identify the petitioner as his assailant.
The victim’s credibility is further strengthened by his lack of
improper motive to falsely accuse the petitioner of the crime.
Human experience tells us that it is unnatural for a victim to
accuse someone other than his actual attacker; in the normal
bring the guilty person to justice, and no other. We consider,
too, that the victim consistently and positively, in and out of
court, identified the petitioner as his assailant. The victim
testified that the petitioner was a neighbor who lived just a
few houses away from his house.
We also take into account the evidence that the petitioner
was the only one seen in possession of a knife during the
rumble. The victim testified that he saw the petitioner
holding a knife which he used to chase away
others.18Prosecution witness Arceo testified that he also saw
the petitioner wielding a knife during the rumble.
Based on these considerations, we find the victim’s
identification of the petitioner as his assailant to be positive
and conclusive.
In contrast, we find the inconsistencies attributed to the
victim to be minor and insufficient to discredit his testimony.
These inconsistencies refer to extraneous matters that
happened during the rumble, not directly bearing on the
stabbing. They do not likewise relate to the material elements
of the crime.
We also cannot give any credit to the petitioner’s position
that the victim’s failure to identify the weapon used to stab
him discredited his testimony. The victim’s failure to identify
the weapon is irrelevant under the circumstances,
considering that the identity of the weapon is not an element
of the crime charged.
The intent to kill was sufficiently established
The petitioner posits that he can only be held liable for
serious physical injuries since the intent to kill, the necessary
element to characterize the crime as homicide, was not
sufficiently proven. The assailant’s intent to kill is the main
element that distinguishes the crime of physical injuries from
the crime of homicide. The crime can only be homicide if the
intent to kill is proven.
Intent to kill is a state of mind that the courts can discern only
through external manifestations, i.e., acts and conduct of the
accused at the time of the assault and immediately
thereafter. In Rivera v. People,19 we considered the following
factors to determine the presence of an intent to kill: (1) the
means used by the malefactors; (2) the nature, location, and
number of wounds sustained by the victim; (3) the conduct of
the malefactors before, at the time, or immediately after the
killing of the victim; and (4) the circumstances under which
the crime was committed and the motives of the accused. We
also consider motive and the words uttered by the offender
at the time he inflicted injuries on the victim as additional
determinative factors.20
In this case, the records show that the petitioner used a knife
in his assault. The petitioner stabbed the victim in the
abdomen while the latter was held by Gener and Orieta.
Immediately after the stabbing, the petitioner, Gener and
Orieta beat and stoned the victim until he fell into a creek. It
was only then that the petitioner, Gener and Orieta left. We
consider in this regard that the stabbing occurred at around
9:30 p.m. with only the petitioner, Gener, Orieta, and the
victim as the only persons left in the area. The CA aptly
observed that a reasonable inference can be made that the
victim was left for dead when he fell into the creek.
Under these circumstances, we are convinced that the
petitioner, in stabbing, beating and stoning the victim,
intended to kill him. Thus, the crime committed cannot be
merely serious physical injuries.
Frustrated homicide versus attempted homicide
Since the victim did not die, the issue posed to us is the stage
of execution of the crime. The lower courts differed in their
legal conclusions.
On one hand, the RTC held that the crime committed reached
the frustrated stage since the victim was stabbed on the left
side of his stomach and beaten until he fell into a creek.21 The
RTC also took into account that the victim had to be referred
by the UP Infirmary to the East Avenue Medical Center for
medical treatment.22
On the other hand, the CA ruled that the crime committed
only reached the attempted stage as there was lack of
evidence that the stab wound inflicted was fatal to cause the
victim’s death.23 The CA observed that the attending
physician did not testify in court.24 The CA also considered
that the Medical Certificate and the Discharge Summary
issued by the East Avenue Medical Center fell short of
"specifying the nature or gravity of the wound."25
Article 6 of the Revised Penal Code, as amended defines the
stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. –
Consummated felonies, as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance. [Emphasis and italics supplied.]
In Palaganas v. People,26 we made the following distinctions
between frustrated and attempted felony as follows:
1.) In frustrated felony, the offender has performed
all the acts of execution which should produce the
felony as a consequence; whereas in attempted
felony, the offender merely commences the
commission of a felony directly by overt acts and
does not perform all the acts of execution.
134
2.) In frustrated felony, the reason for the non-
accomplishment of the crime is some cause
independent of the will of the perpetrator; on the
other hand, in attempted felony, the reason for the
non-fulfillment of the crime is a cause or accident
other than the offender’s own spontaneous
desistance.27
The crucial point to consider is the nature of the wound
inflicted which must be supported by independent proof
showing that the wound inflicted was sufficient to cause the
victim’s death without timely medical intervention.
In discussing the importance of ascertaining the degree of
injury sustained by a victim and its importance in determining
criminal liability, the Court in People v. Matyaong, said:28
In considering the extent of injury done, account must be
taken of the injury to the function of the various organs, and
also the danger to life. A division into mortal and nonmortal
wounds, if it could be made, would be very desirable; but the
unexpected complications and the various extraneous causes
which give gravity to the simplest cases, and, on the other
hand, the favorable termination of some injuries apparently
the most dangerous, render any such classification
impracticable. The general classification into slight, severe,
dangerous, and mortal wounds may be used, but the
possibility of the slight wound terminating with the loss of the
person’s life, and the apparently mortal ending with only a
slight impairment of some function, must always be kept in
mind. x x x
The danger to life of any wound is dependent upon a number
of factors: the extent of the injury, the form of the wound,
the region of the body affected, the blood vessels, nerves, or
organs involved, the entrance of disease-producing bacteria
or other organisms into the wound, the age and constitution
of the person injured, and the opportunities for administering
proper surgical treatment.
When nothing in the evidence shows that the wound would
be fatal without medical intervention, the character of the
wound enters the realm of doubt; under this situation, the
doubt created by the lack of evidence should be resolved in
favor of the petitioner. Thus, the crime committed should be
attempted, not frustrated, homicide. 29
Under these standards, we agree with the CA’s conclusion.
From all accounts, although the stab wound could have been
fatal since the victim testified that he saw his intestines
showed, no exact evidence exists to prove the gravity of the
wound; hence, we cannot consider the stab wound as
sufficient to cause death. As correctly observed by the CA, the
victim’s attending physician did not testify on the gravity of
the wound inflicted on the victim. We consider, too, the CA’s
observation that the medical certifications issued by the East
Avenue Medical Center merely stated the location of the
wound.30 There was also no proof that without timely
medical intervention, the victim would have died. 31 This
paucity of proof must necessarily favor the petitioner.
The view from the "frustrated" stage of the crime gives the
same results. The elements of frustrated homicide are: (1) the
accused intended to kill his victim, as manifested by his use of damages considering that the amount of actual damages is
a deadly weapon in his assault; (2) the victim sustained fatal only ₱3,858.50. The amount of actual damages shall be
or mortal wound/s but did not die because of timely medical deleted.
assistance; and (3) none of the qualifying circumstance for Lastly, we find that the victim is also entitled to moral
murder under Article 248 of the Revised Penal Code, as damages in the amount of ₱10,000.00 in accordance with
amended, is present.32 Since the prosecution failed to prove settled jurisprudence.36 Under Article 2219, paragraph 1 of
the second element, we cannot hold the petitioner liable for the New Civil Code, the victim is entitled to moral damages in
frustrated homicide. a criminal offense resulting in physical injuries.1avvphi1
The Penalty WHEREFORE, we hereby DENY the petition. The decision,
Article 51 of the Revised Penal Code, as amended, provides dated July 20, 2006, of the Court of Appeals in CA-G.R. CR No.
that the imposable penalty for an attempted crime shall be 29090, finding petitioner Giovani Serrano y Cervantes guilty
lower by two degrees than that prescribed by law for the beyond reasonable doubt of Attempted Homicide, is
consummated felony. AFFIRMED with MODIFICATION. The petitioner is ORDERED to
Under Article 249, the crime of homicide is punished by PAY the victim, Anthony Galang, the following amounts:
reclusion temporal. Applying Article 61 (Rules of graduating (1) ₱25,000.00 as temperate damages; and
penalties) and Article 71 (Graduated scales), two (2) degrees (2) ₱10,000.00 as moral damages.
lower of reclusion temporal is prision correccional which has Costs against the petitioner.
a duration of six (6) months and one (1) day to six (6) years. SO ORDERED
Under the Indeterminate Sentence Law, the maximum term
of the indeterminate sentence shall be taken, in view of the
attending circumstances that could be properly imposed
under the rules of the Revised Penal Code, and the minimum
term shall be within the range of the penalty next lower to
that prescribed by the Revised Penal Code.33Thus, the
maximum term of the indeterminate sentence shall be taken
within the range of prision correccional, depending on the
modifying circumstances. In turn, the minimum term of the
indeterminate penalty to be imposed shall be taken from the
penalty one degree lower of prision correccional, that is
arresto mayor with a duration of one (1) month and one (1)
day to six (6) months.
In the absence of any modifying circumstance, the maximum
term of the indeterminate penalty shall be taken from the
medium period of prision correccional or two (2) years and
four (4) months and one (1) day to four (4) years and two (2)
months.34 The minimum term shall be taken within the range
of arresto mayor. Hence, the penalty imposed by the CA
against the petitioner of six (6) months of arresto mayor, as
minimum term of the indeterminate penalty, to four (4) years
and two (2) months of prision correccional, as maximum term
of the indeterminate penalty, is correct.
The Civil Liability
We modify the CA decision with respect to the petitioner’s
civil liability. The CA ordered actual damages to be paid in the
amount of ₱3,858.50. This is erroneous and contrary to the
prevailing jurisprudence.
In People v. Andres,35 we held that if the actual damages,
proven by receipts during the trial, amount to less than
₱25,000.00, the victim shall be entitled to temperate
damages in the amount of ₱25,000.00, in lieu of actual
damages. The award of temperate damages is based on
Article 2224 of the New Civil Code which states that
temperate or moderate damages may be recovered when the
court finds that some pecuniary loss was suffered but its
amount cannot be proven with certainty. In this case, the
victim is entitled to the award of ₱25,000.00 as temperate

135
136
Republic of the Philippines inflicting upon the victims multiple serious injuries
SUPREME COURT which directly caused their deaths.
Manila
That the aggravating circumstance of quasi-
EN BANC recidivism is present in the commission of the crime
in that the crime was committed after the accused
G.R. No. L-19069 October 29, 1968 have been convicted by final judgments and while
they are serving the said judgments in the New
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Bilibid Prisons.
vs.
AMADEO PERALTA, ET AL., defendants, Contrary to law with the following aggravating
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, circumstances:
AMADEO PERALTA, FLORENCIO LUNA and GERVASIO
LARITA, defendants-review. 1. That the crime was committed with insult to
public authorities;
Assistant Solicitors General Vicente A. Torres and Antonio
Ibarra for plaintiff-appellee. 2. That the crime was committed by a band;
J. R. Nuguid for defendants-review.
3. That the crime was committed by armed men or
PER CURIAM: persons who insure or afford impunity;

In the decision in criminal case 7705 of the Court of First
Instance of Rizal,subject of the present automatic
review, Amadeo Peralta, Andres Factora, Leonardo Dosal,
Angel Parumog, Gervasio Larita and Florencio Luna (six
among the twenty-two defendants1 charged therein with
multiple murder) were pronounced guilty, and all sentenced
to death, to indemnify jointly and severally the heirs of each
of the victims, namely, Jose Carriego, Eugenio
Barbosaand Santos Cruz, in the sum of P6,000, and each to
pay his corresponding share of the costs.
The information recites:
4. That use of superior strength or means was
employed to weaken the defense;
5. That as a means to the commission of the crime
doors and windows have been broken;
6. That means was employed which add ignominy to
the natural effects of the act;
7. That the crime was committed where public
authorities were engaged in the discharge of their
duties.

That on or about the 16th day of February, 1958, in
the municipality of Muntinglupa, province of Rizal,
Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, who are
convicts confined in the New Bilibid Prisons by virtue
of final judgments, conspiring, confederating and
mutually helping and aiding one another, with
evident premeditation and treachery, all armed with
deadly weapons, did, then and there, willfully,
unlawfully and feloniously kill Jose Carriego, Eugenio
Barbosa and Santos Cruz, also convicts confined in
the same institution, by hitting, stabbing and striking
them with ice picks, clubs and other improvised
weapons, pointed and/or sharpened, thereby
Upon motion of the provincial fiscal before trial, the lower
court dismissed the charge against one of the accused 2for
lack of evidence. After the prosecution had rested its case,
the charges against six of the accused3 were dismissed for
failure of the prosecution to establish a prima facie case
against them. One of the defendants died4during the
pendency of the case. After trial, the court a quo acquitted
eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the
national penitentiary at Muntinglupa arrayed themselves into
two warring gangs, the "Sigue-Sigue" and the "OXO", the
former composed predominantly of Tagalog inmates, the
latter comprised mainly of prisoners from the Visayas and
Mindanao. Since then the prison compound has been rocked

137
time and time again by bloody riots resulting in the death of
many of their members and suspected sympathizers. In an
effort to avert violent clashes between the contending
groups, prison officials segrerated known members of the
"Sigue-Sigue" from those of the "OXO". Building 1 housed
"Sigue-Sigue" members, while a majority of the prisoners
confined in Bldg. 4 belonged to the "OXO". Even in Bldg. 4,
which is composed of four brigades, namely, 4-A and 4-B
(upper floor) and 4-C and 4-D (first floor), inmates from
Visayas and Mindanao, from whom the "OXO" drew most of
its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the
inmates of the penitentiary were preparing to attend Sunday
mass, that a fight between two rival members of the "Sigue-
Sigue" and "OXO" gangs occurred in the plaza where the
prisoners were assembled, causing a big commotion. The
fight was, however, quelled, and those involved were led
away for investigation, while the rest of the prisoners were
ordered to return to their respective quarters. Hardly had
conditions returned to normal when a riot broke out in Bldg.
1, a known lair of the "Sigue-Sigue". The inmates thereof tried
to invade Bldg. 4, where many members and sympathizers of
the "OXO" gang were confined. The timely arrival of the
guards forced the invading inmates to retreat and return to
Bldg. 1. Moments later, another riot erupted in Bldg. 4, as the
inmates of brigade 4-A destroyed the lock of their door and
then rampaged from one brigade to another. The invading
prisoners from 4-A, mostly "OXO" members and
sympathizers, clubbed and stabbed to death Jose Carriego, an
inmate of 4-B. Afterwards, they forcibly opened the door of
4-C and killed two more inmates, namely, Eugenio Barbosa
and Santos Cruz.
The three victims sustained injuries which swiftly resulted in
their death — before they could be brought to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in
length and 3 cm.in depth; (b) contusion and hematoma of the
back of the neck, about 2 inches in diameter; and (c) five
punctured wounds in the chest, penetrating the lungs. Cause
of death: internal hemorrhage from multiple fatal wounds in
the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region,
3 inches in length and 1 cm. in depth; (b) two penetrating
wounds in the abdomen, puncturing the intestines; (c)
lacerated wounds on the right oxilla, 3 cm. in length and 2
cm. in depth; and (d) several bruises at the right and left
138
lower extremities. Cause of death: shock, secondary to
internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in
length; (b) fractured skull; (c) wound on the upper lip cutting
the lip in two; (d) seven punctured wounds in the chest, two
of which were penetrating; (e) hematoma on the right hand;
and (f) three punctured wounds on the left hand. Cause of
death: fractured skull.
Romeo Pineda, an inmate and first quarter-in-charge of
brigade 4-B, testified that while he was taking his breakfast
with Jose Carriego, who was at the time the representative of
the prisoners confined in 4-B to the inmate carcel, he
"suddenly heard commotion" near the door of their brigade;
that his fellow prisoners started shouting "pinapasok na
tayo," as the invading inmates from brigade 4-A stampeded
into 4-B; that he and Carriego took hold of their clubs and
stood at the end of the passageway; that he saw Carriego
surrender his club to Andres Factora, an "OXO" member from
4-A; that as Carriego started to walk away, Factora clubbed
Carriego on the nape causing the latter to fall; that Factora
turned up the face of his fallen victim and struck him again in
the face; that while Carriego was in this prostrate position,
Amadeo Peralta and Leonardo Dosal, companions of Factora,
repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material
points by Juanito Marayoc and Avelino Sauza, both inmates
of 4-B. These two prosecution witnesses identified Factora,
Peralta and Dosal as the assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and
forcibly entered 4-C. According to Oscar Fontillas, an inmate
of 4-C, he saw the prisoners from 4-A rushing toward their
brigade; that among the invading inmates who forced open
the door of 4-C, with help from the inside provided by
Visayan prisoners confined in 4-C, were Factora, Dosal, Angel
Parumog, Gervacio Larita, Ernesto Fernandez and Jose
Tariman; that he saw Factora, Larita and Fernandez kill
Barbosa, while the rest of their companies instructed the
Visayans to leave their cell and ordered the "Manila boys"
(Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-
C, declared that he saw Peralta stab Barbosa, as Dosal, Larita,
Florencio Luna, Parumog and Factora clubbed the hapless
victim. Another inmate of 4-C, Jose Halili, not only
corroborated the testimony of Fontillas and Pabarlan but as
well added grim details. He declared that while Barbosa was
trying to hide under a cot, he was beaten and stabbed to
death by Dosal, Parumog, Factora and Fernandez, with Luna,
Larita, Pedro Cogol and Eilel Tugaya standing guard, armed
with clubs and sharp instruments, in readiness to repel any
intervention from the Tagalog inmates. Carlos Espino, also
confined in 4-C, declared that he saw Parumog, Peralta
Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after
killing Barbosa, the invading "OXO" members and
sympathizers proceeded to hunt for Santos Cruz, another
Tagalog like Carriego and Barbosa. Halili testified, that he saw
Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from
4-C; that Santos Cruz knelt down and pleaded for his life,
saying, "Maawa kayo sa akin. Marami akong anak;" that Luna
and Peralta were unmoved as they stabbed Santos Cruz to
death. Pabarlan declared that after the death of Barbosa,
Santos Cruz was brought to 4-A by the invading inmates but
Cruz was able to slip back to his cell only to be recaptured by
Factora, Dosal and Luna and brought to near the fire escape
where he was clubbed and stabbed to death by Parumog,
Dosal, Factora and Peralta. Fontillas and Espino corroborated
the declarations of Halili and Pabarlan with respect to the
killing of Santos Cruz, and both mentioned Larita as one of
the assailants of Cruz.
The trial judge summarized the evidence for the prosecution,
thus:
"... it clearly appears that the three killings in
question were an offshoot of the rivalry between the
two organizations. All those who were killed,
namely, Barbosa, Carriego and Santos Cruz, were
Tagalogs and well known as members if not
sympathizers of the Sigue Sigue, while the accused
so charged with their killing were mostly members if
not sympathizers of the Oxo organization. These
three killings were sparked by the commotion that
happened in the plaza between 8:00 and 9:00 in the
morning, while the prisoners were preparing to go
the mass ... It was evident that the clash that
occurred in the plaza produced a chain reaction
among the members and followers of the two
organizations. The inmates of Building No. 1, known
lair of the Sigue Sigues bolted the door of their cells
and tried to invade Building No. 4 where a big
number of the Oxo members and their sympathizers
were confined, but, however, were forced to retreat
by the timely arrival of the guards who sent them
back to their building. When the members of the
139
Oxo in Building No. 4 learned about this, they went
on a rampage looking for members of the Sigue
Sigue or their sympathizers who were confined with
them in the same building. As the evidence of the
prosecution shows, the accused who were confined
in Brigade 4-A of Building No. 4 led the attack. They
destroyed the lock of their dormitories and with the
help of their companions succeeded in bolting the
door of the different brigades, and once they
succeeded in bolting the doors of the different
brigades, they went inside and tried to segregate the
Tagalogs from their group; that as soon as they
discovered their enemies they clubbed and stabbed
them to death ...
Admitting that he was one among several who killed Jose
Carriego, Peralta nevertheless claims self-defense. He
testified that on the morning of the riot he was attacked by
Carriego and Juan Estrella near the door of 4-A while he was
returning to his brigade from the chapel with some
companions; that Carriego clubbed him on the head; that he
was able to parry the second blow of Carriego and then
succeeded in squeezing Carriego's head with his hands; that
forthwith he whipped out an improvised ice pick and stabbed
Carriego several times; that when he (Peralta) was already
dizzy due to the head wound he sustained from the clubbing,
Carriego managed to slip away; that he then became
unconscious, and when he regained consciousness he found
himself on a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive
array of prosecution witnesses who saw him actively
participate in the killing of the three victims pointed to him as
the aggressor, not the aggrieved. Pineda, Marayoc and Sauza
positively identified him as one of the assailants of Carriego.
Contrary to the pretensions of Peralta, Carriego an alleged
"Sigue-Sigue" member, would not have attacked him,
knowing fully well that Building No. 4 was an "OXO" lair
where the "Sigue-Sigue" members were outnumbered. Anent
the killing of Barbosa and Santos Cruz, Peralta failed to offer
any explicit defense to rebut the inculpatory declarations of
prosecution witnesses Pabarlan and Espino who saw him
participate in the killing of Barbosa and those of Halili,
Fontillas and Espino who identified him as one of the
murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz,
but also claims self-defense in exculpation. He declared that
Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and
Oscar Fontillas invaded 4-A where he was confined; that a
free-for-all forthwith ensued; that he then heard Santos Cruz
call Carlos Espino, and advise the latter to go away as "I will
be the one to kill that person (Dosal);" that with a sharp
instrument, Cruz hit him on the head and then on the nose;
that as Cruz was about to hit him again, he got hold of his ice
pick and stabbed Cruz repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of
Pabarlan, Halili and Espino who saw him participate in the
killing of Santos Cruz. If it is true that Dosal killed Santos Cruz
in self-defense when the latter together with his companions
supposedly invaded Dosal's brigade (4-A), why is it that the
body of Santos Cruz was found at the fire escape near
the pasillo between 4-C and 4-D of the first floor of Bldg. 1
instead of in 4-A which is located in the upper floor?
Moreover, Dosal failed to explain why he was seen in 4-C,
which he does not deny, since he was an inmate of 4-A where
he was allegedly attacked. With respect to the murder of
Carriego and Barbosa with which Dosal was also charged, he
did not offer any evidence in his behalf. Hence, the
testimonies of Pineda, Marayoc and Sauza identifying him as
one of the killers of Carriego and those of Pabarlan, Halili and
Espino implicating him in the death of Santos Cruz, stand
unrebutted.
Andres Factora declared that he clubbed Carriego and Santos
Cruz under compulsion of his co-accused who threatened to
kill him if he disobeyed their order; that he did not hit
Barbosa anymore because the latter was already dead; that it
was his co-accused who actually killed the three victims.
Again, the declarations of the prosecution witnesses, which
were accorded full credence by the trial court, expose the
guilt of Factora beyond reasonable doubt. In fact, according
to Pineda, whose testimony was corroborated by Marayoc, it
was Factora who started the mass assault by clubbing
Carriego treacherously. Fontillas, Halili, Pabarlan and Espino
pointed to Factora as one of the killers of Barbosa, while at
least three prosecution witnesses, namely, Pabarlan, Fontillas
and Espino, saw Factora participate in the slaying of Santos
Cruz. The active participation of Factora in the killing, which is
clear index of voluntariness, thus negates his claim of
compulsion and fear allegedly engendered by his co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take
refuge in the exculpatory device of alibi. Parumog testified
that he did not participate in the killing of the three inmates
because he stayed during that entire hapless day in the office
of the trustees for investigation after the fight in the plaza;
140
that he was implicated in the killing by the prosecution
witnesses because of his refusal to accede to their request to
testify against his co-accused; that he is not a Visayan but a
Tagalog from Nueva Ecija. Larita claims that he did not know
about the killing until he was informed that three inmates
had died; that on the day in question he was brought to the
police trustee brigade for investigation after the incident in
the plaza; that he was escorted back to his brigade only in the
afternoon. Luna likewise disclaims any knowledge of the
killing and asserts that for the entire duration of the riot he
remained in his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence
when set against the positive testimonies of prosecution
witness identifying them as participants in the killing of
Barbosa and Santos Cruz. Pabarlan, Espino and Fontillas
declared that Larita was one of the killers of Barbosa; Espino
and Fontillas declared that they saw Larita kill Santos Cruz;
Pabarlan, Halili and Espino testified that they saw Parumog
participate in the murder of Barbosa; Espino, Fontillas and
Pabarlan stated that Parumog took part in the killing of
Santos Cruz. Pabarlan and Halili declared that Luna
participated in the fatal assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by
strong evidence to the contrary. The defense of alibi is
generally weak since it is easy to concoct. For this reason,
courts view it with no small amount of caution, and accept it
only when proved by positive, clear and satisfactory
evidence.6 In the case at bar, if Parumog and Larita were
really confined in the police trustee brigade for investigation
on the day of the incident, there should have been a record
of the alleged investigation. But none was presented. The
testimony of Luna that throughout the riot he stayed in his
cell is quite unnatural. He claims that he did not even help his
cellmates barricade their brigade with tarimas in order to
delay if not prevent the entry of the invading inmates.
According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the
face of positive identification by prosecution witnesses
pointing to the accused as particeps criminis.7 Moreover, the
defense of alibi is an issue of fact the resolution of which
depends almost entirely on the credibility of witnesses who
seek to establish it. In this respect the relative weight which
the trial judge accords to the testimony of the witnesses
must, unless patently inconsistent without evidence on
record, be accepted.8 In the case at bar, the trial court, in
dismissing the alibis of Parumog, Larita and Luna, said that
"their mere denial cannot prevail over the positive testimony
of the witnesses who saw them participate directly in the
execution of the conspiracyto kill Barbosa, Carriego and
Santos Cruz."
The killing of Carriego constitutes the offense of murder
because of the presence of treachery as a qualifying
circumstance: Carriego was clubbed by Factora from behind,
and as he lay prostrate and defenseless, Peralta and Dosal
stabbed him repeatedly on the chest. The blow on the nape
and the penetrating chest wounds were all fatal, according to
Dr. Bartolome Miraflor. Abuse of superior strength qualified
the killing of Barbosa and Santos Cruz to the category of
murder. The victims, who were attacked individually were
completely overwhelmed by their assailants' superiority in
number and weapons and had absolutely no chance at all to
repel or elude the attack. All the attackers were armed with
clubs or sharp instruments while the victims were unarmed,
as so found by the trial court. In fact, Halili testified that
Barbosa was clubbed and stabbed to death while he was
trying to hide under a cot, and Santos Cruz was killed while he
was on his knees pleading for his life.
The essential issue that next confronts us is whether
conspiracy attended the commission of the murders. The
resolution of this issue is of marked importance because
upon it depends the quantity and quality of the penalties that
must be imposed upon each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine
on conspiracy, with particular emphasis on the facets relating
to its nature, the quantum of proof required, the scope and
extent of the criminal liability of the conspirators, and the
penalties imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony
and decide to commit it.9 Generally, conspiracy is not a crime
except when the law specifically provides a penalty therefor
as in treason,10 rebellion11 and sedition.12 The crime of
conspiracy known to the common law is not an indictable
offense in the Philippines.13 An agreement to commit a crime
is a reprehensible act from the view-point of morality, but as
long as the conspirators do not perform overt acts in
furtherance of their malevolent design, the sovereignty of the
State is not outraged and the tranquility of the public remains
undisturbed. However, when in resolute execution of a
common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal
141
importance in the determination of the liability of the
perpetrators. In stressing the significance of conspiracy in
criminal law, this Court in U.S. vs. Infante and
Barreto14 opined that
While it is true that the penalties cannot be imposed
for the mere act of conspiring to commit a crime
unless the statute specifically prescribes a penalty
therefor, nevertheless the existence of a conspiracy
to commit a crime is in many cases a fact of vital
importance, when considered together with the
other evidence of record, in establishing the
existence, of the consummated crime and its
commission by the conspirators.
Once an express or implied conspiracy is proved, all of the
conspirators are liable as co-principals regardless of the
extent and character of their respective active participation in
the commission of the crime or crimes perpetrated in
furtherance of the conspiracy because in contemplation of
law the act of one is the act of all.15 The foregoing rule is
anchored on the sound principle that "when two or more
persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding
severally or collectively, each individual whose evil will
actively contributes to the wrong-doing is in law responsible
for the whole, the same as though performed by himself
alone."16 Although it is axiomatic that no one is liable for acts
other than his own, "when two or more persons agree or
conspire to commit a crime, each is responsible for all the
acts of the others, done in furtherance of the agreement or
conspiracy."17 The imposition of collective liability upon the
conspirators is clearly explained in one case18 where this
Court held that
... it is impossible to graduate the separate liability of
each (conspirator) without taking into consideration
the close and inseparable relation of each of them
with the criminal act, for the commission of which
they all acted by common agreement ... The crime
must therefore in view of the solidarity of the act
and intent which existed between the ... accused, be
regarded as the act of the band or party created by
them, and they are all equally responsible ...
Verily, the moment it is established that the malefactors
conspired and confederated in the commission of the felony
proved, collective liability of the accused conspirators
attaches by reason of the conspiracy, and the court shall not
speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene
of the crime. Of course, as to any conspirator who was
remote from the situs of aggression, he could be drawn
within the enveloping ambit of the conspiracy if it be proved
that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out
the conspiracy.
In fine, the convergence of the wills of the conspirators in the
scheming and execution of the crime amply justifies the
imputation to all of them the act of any one of them. It is in
this light that conspiracy is generally viewed not as a separate
indictable offense, but a rule for collectivizing criminal
liability.
The ensnaring nature of conspiracy is projected in bold relief
in the cases of malversation and rape committed in
furtherance of a common design.
The crime of malversation is generally committed by an
accountable public officer who misappropriates public funds
or public property under his trust.19 However, in the classic
case of People vs. Ponte20 this Court unequivocally held that a
janitor and five municipal policemen, all of whom were not
accountable public officers, who conspired and aided a
municipal treasurer in the malversation of public funds under
the latter's custody, were principally liable with the said
municipal treasurer for the crime of malversation. By reason
of conspiracy, the felonious act of the accountable public
officer was imputable to his co-conspirators, although the
latter were not similarly situated with the former in relation
to the object of the crime committed. Furthermore, in the
words of Groizard, "the private party does not act
independently from the public officer; rather, he knows that
the funds of which he wishes to get possession are in the
latter's charge, and instead of trying to abstract them by
circumventing the other's vigilance he resorts to corruption,
and in the officer's unfaithfulness seeks and finds the most
reprehensible means of accomplishing a deed which by
having a public officer as its moral instrument assumes the
character of a social crime."21 In an earlier case22 a non-
accountable officer of the Philippine Constabulary who
conspired with his superior, a military supply officer, in the
malversation of public funds was adjudged guilty as co-
principal in the crime of malversation, although it was not
alleged, and in fact it clearly appeared, that the funds
misappropriated were not in his custody but were under the
trust of his superior, an accountable public officer.
142
In rape, a conspirator is guilty not only of the sexual assault
he personally commits but also of the separate and distinct
crimes of rape perpetrated by his co-conspirators. He may
have had carnal knowledge of the offended woman only once
but his liability includes that pertaining to all the rapes
committed in furtherance of the conspiracy. Thus, in People
vs. Villa,23 this Court held that
... from the acts performed by the defendants front
the time they arrived at Consolacion's house to the
consummation of the offense of rape on her person
by each and everyone of them, it clearly appears
that they conspired together to rape their victim,
and therefore each one is responsible not only for
the rape committed personally by him, but also that
committed by the others, because each sexual
intercourse had, through force, by each one of the
defendants with the offended was consummated
separately and independently from that had by the
others, for which each and every one is also
responsible because of the conspiracy.
The rule enunciated in People vs. Villa was reiterated
in People vs. Quitain24 where the appellant Teofilo Anchita
was convicted of forcible abduction with double rape for
having conspired and cooperated in the sexual assault of the
aggrieved woman, although he himself did not actually rape
the victim. This Court observed:
We have no doubt all in all that Teofilo Anchita took
part in the sexual assault ... the accused inserted his
fingers in the woman's organ, and widened it.
Whether he acted out of lewdness or to help his
brother-in-law consummate the act, is immaterial; it
was both maybe. Yet, surely, by his conduct, this
prisoner conspired and cooperated, and is guilty.
With respect to robbery in band, the law presumes the
attendance of conspiracy so much so that "any member of a
band who is present at the commission of a robbery by the
band, shall be punished as principal of any of the assaults
committed by the band, unless it be shown that he
attempted to prevent the same."25 In this instance,
conspiracy need not be proved, as long as the existence of a
band is clearly established. Nevertheless, the liability of a
member of the band for the assaults committed by his group
is likewise anchored on the rule that the act of one is the act
of all.
Proof of conspiracy. While conspiracy to commit a crime must
be established by positive evidence,26 direct proof is not
essential to show conspiracy.27 Since by it nature, conspiracy
is planned in utmost secrecy, it can seldom be proved by
direct evidence.28 Consequently, competent and convincing
circumstantial evidence will suffice to establish conspiracy.
According to People vs. Cabrera,29 conspiracies are generally
proved by a number of indefinite acts, conditions, and
circumstances which vary according to the purposes to be
accomplished. If it be proved that the defendants pursued by
their acts the same object, one performing one part and
another another part of the same, so as to complete it, with a
view to the attainment of the same object, one will be
justified in the conclusion that they were engaged in a
conspiracy to effect the object." Or as elucidated in People vs.
Carbonel30the presence of the concurrence of minds which is
involved in conspiracy may be inferred from "proofs of facts
and circumstances which, taken together, apparently indicate
that they are merely parts of some complete whole. If it is
proved that two or more persons aimed by their acts towards
the accomplishment of the same unlawful object, each doing
a part so that their acts, though apparently independent,
were in fact connected and cooperative, indicating a
closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual
meeting among to concert means is proved ..." In two recent
cases,31 this Court ruled that where the acts of the accused,
collectively and individually, clearly demonstrate the
existence of a common design toward the accomplishment of
the same unlawful purpose, conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan
or agreement; however, to establish conspiracy, "it is not
essential that there be proof as to previous agreement to
commit a crime, it being sufficient that the malefactors
committed shall have acted in concert pursuant to the same
objective."32 Hence, conspiracy is proved if there is convincing
evidence to sustain a finding that the malefactors committed
an offense in furtherance of a common objective pursued in
concert.
Liability of conspirators. A time-honored rule in the corpus of
our jurisprudence is that once conspiracy is proved, all of the
conspirators who acted in furtherance of the common design
are liable as co-principals.33 This rule of collective criminal
liability emanates from the ensnaring nature of conspiracy.
The concerted action of the conspirators in consummating
their common purpose is a patent display of their evil
143
partnership, and for the consequences of such criminal
enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by
reason of conspiracy, it must be established that he
performed an overt act in furtherance of the conspiracy,
either by actively participating in the actual commission of
the crime, or by lending moral assistance to his co-
conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators
as to move them to executing the conspiracy. The difference
between an accused who is a principal under any of the three
categories enumerated in Art. 17 of the Revised Penal Code
and a co-conspirator who is also a principal is that while the
former's criminal liability is limited to his own acts, as a
general rule, the latter's responsibility includes the acts of his
fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant
Francisco Robles, Jr., who was convicted by the trial court of
robbery with homicide as a conspirator, on the ground that
although he may have been present when the conspiracy to
rob was proposed and made, "Robles uttered not a word
either of approval or disapproval. There are authorities to the
effect that mere presence at the discussion of a conspiracy,
even approval of it, without any active participation in the
same, is not enough for purposes of conviction." In a more
recent case,35this Court, in exonerating one of the appellants,
said:
There is ample and positive evidence on record that
appellant Jose Guico was absent not only from the
second meeting but likewise from the robbery itself.
To be sure, not even the decision under appeal
determined otherwise. Consequently, even if Guico's
participation in the first meeting sufficiently involved
him with the conspiracy (as he was the one who
explained the location of the house to be robbed in
relation to the surrounding streets and the points
thereof through which entrance and exit should be
effected), such participation and involvement,
however, would be inadequate to render him
criminally liable as a conspirator. Conspiracy alone,
without the execution of its purpose, is not a crime
punishable by law, except in special instances
(Article 8, Revised Penal Code) which, however, do
not include robbery.
Imposition of multiple penalties where conspirators commit
more than one offense. Since in conspiracy, the act of one is
the act of all, then, perforce, each of the conspirators is liable
for all of the crimes committed in furtherance of the
conspiracy. Consequently, if the conspirators commit three
separate and distinct crimes of murder in effecting their
common design and purpose, each of them is guilty of three
murders and shall suffer the corresponding penalty for each
offense. Thus in People vs. Masin,36 this Court held:
... it being alleged in the information that three
crimes were committed not simultaneously indeed
but successively, inasmuch as there was, at least,
solution of continuity between each other, the
accused (seven in all) should be held responsible for
said crimes. This court holds that the crimes are
murder ... In view of all these circumstances and of
the frequently reiterated doctrine that once
conspiracy is proven each and every one of the
conspirators must answer for the acts of the others,
provided said acts are the result of the common plan
or purpose ... it would seem evident that the penalty
that should be imposed upon each of the appellants
for each of their crimes should be the same, and this
is the death penalty ... (emphasis supplied).
In the aforesaid case, however, the projected imposition of
three death penalties upon each of the conspirators for the
three murders committed was not carried out due to the lack
of the then requisite unanimity in the imposition of the
capital penalty.
In another case,37 this Court, after finding that conspiracy
attended the commission of eleven murders, said through
Mr. Justice Tuason:
Some members of this Court opine that the proper
penalty is death, under the circumstances of the
case, but they fall short of the required number for
the imposition of this punishment. The sentence
consequently is reclusion perpetua; but each
appellant is guilty of as many crimes of murder as
there were deaths (eleven) and should be sentenced
to life imprisonment for each crime, although this
may be a useless formality for in no case can
imprisonment exceed forty years. (Emphasis
supplied.)
144
In People vs. Masani,38 the decision of the trial court imposing
only one life imprisonment for each of the accused was
modified by this Court on appeal on the ground that
"inasmuch as their (the conspirators') combined attack
resulted in the killing of three persons, they should be
sentenced to suffer said penalty (reclusion perpetua) for each
of the three victims (crimes)." (Emphasis supplied.)
It is significant to note that in the abovementioned cases, this
Court consistently stressed that once conspiracy is
ascertained, the culpability of the conspirators is not only
solidary (all co-principals) but also multiple in relation to the
number of felonies committed in furtherance of the
conspiracy. It can also be said that had there been a
unanimous Court in the Masin and Macaso cases, multiple
death penalties would have been imposed upon all the
conspirators.
Legality and practicality of imposing multiple death penalties
upon conspirators. An accused who was charged with three
distinct crimes of murder in a single information was
sentenced to two death penalties for two murders, 39 and
another accused to thirteen (13) separate death penalties for
the 13 killings he perpetrated.40 Therefore there appears to
be no legal reason why conspirators may not be sentenced to
multiple death penalties corresponding to the nature and
number of crimes they commit in furtherance of a conspiracy.
Since it is the settled rule that once conspiracy is established,
the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts
committed as a result of the conspiracy, regardless of the
nature and severity of the appropriate penalties prescribed
by law.
The rule on the imposition of multiple penalties where the
accused is found guilty of two or more separate and distinct
crimes charged in one information, the accused not having
interposed any objection to the multiplicity of the charges,
was enunciated in the leading case of U.S. vs. Balaba,41 thus:
Upon conviction of two or more offenses charged in the
complaint or information, the prescribed penalties for each
and all of such offenses may be imposed, to be executed in
conformity with the provisions of article 87 of the Penal Code
[now article 70 of the Revised Penal Code]. In other words, all
the penalties corresponding to the several violations of law
should be imposed. Conviction for multiple felonies demands
the imposition of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the
complex crime under article 48 of the Revised Penal Code and
the special complex crime (like robbery with homicide). Anent
an ordinary complex crime falling under article 48, regardless
of the multiplicity of offenses committed, there is only one
imposable penalty — the penalty for the most serious offense
applied in its maximum period. Similarly, in special complex
crimes, there is but a single penalty prescribed by law
notwithstanding the number of separate felonies committed.
For instance, in the special complex crime of robbery with
hommicide the imposible penalty is reclusion perpetua to
death42 irrespective of the number of homicides perpetrated
by reason or on occasion of the robbery.
In Balaba, the information charged the accused with triple
murder. The accused went to trial without objection to the
said information which charged him with more than one
offense. The trial court found the accused guilty of two
murders and one homicide but it imposed only one death
penalty. In its review en consulta, this Court modified the
judgment by imposing separate penalties for each of the
three offenses committed. The Court, thru Mr. Justice Carson
(with Mr. Justice Malcolm dissenting with respect to the
imposition of two death penalties), held:
The trial judge was erroneously of the opinion that
the prescribed penalties for the offenses of which
the accused was convicted should be imposed in
accord with the provisions of article 89 of the Penal
Code. That article is only applicable to cases wherein
a single act constitutes two or more crimes, or when
one offense is a necessary means for committing the
other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)
It becomes our duty, therefore, to determine what
penalty or penalties should have been imposed upon
the accused upon conviction of the accused of three
separate felonies charged in the information.
There can be no reasonable doubt as to the guilt of
the convict of two separate crimes
of asesinato (murder) marked with the generic
aggravating circumstances mentioned in the decision
of the trial judge ... It follows that the death penalty
must and should be imposed for each of these
offenses ...
Unless the accused should be acquitted hereafter on
appeal of one or both the asesinatos with which he
145
is charged in the information, it would seem to be a
useless formality to impose separate penalties for
each of the offenses of which he was convicted, in
view of the nature of the principal penalty; but
having in mind the possibility that the Chief
Executive may deem it proper to grant a pardon for
one or more of the offenses without taking action on
the others; and having in mind also the express
provisions of the above cited article 87 of the Penal
Code, we deem it proper to modify the judgment
entered in the court below by substituting for the
penalty imposed by the trial judge under the
provisions of article 89 of the Code, the death
penalty prescribed by law for each of the two
separate asesinatos of which he stands convicted,
and the penalty of 14 years, 8 months and 1 day
of reclusion temporal (for the separate crime of
homicide) ... these separate penalties to be executed
in accord with the provisions of article 87 of the
Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs.
Jamad43 where a unanimous Court, speaking again thru Mr.
Justice Carson (with Mr. Justice Malcolm concurring in the
result in view of the Balaba ruling), opined:
For all the offenses of which the accused were
convicted in the court below, the trial judge imposed
the death penalty, that is to say the penalty
prescribed for the most serious crime committed, in
its maximum degree, and for this purpose made use
of the provisions of article 89 of the Penal Code [now
article 48 of the Revised Penal Code]. But as
indicated in the case of the United States vs. Balaba,
recently decided wherein the controlling facts were
substantially similar to those in the case at bar, "all
of the penalties corresponding to the several
violations of law" should have been imposed under
the express provisions of article 87 [now engrafted in
article 70 of the Revised Penal Code] and under the
ruling in that case, the trial court erred in applying
the provision of article 89 of the code.
We conclude that the judgment entered in the court
below should be reversed, ... and that the following
separate penalties should be imposed upon him [the
accused Jamad], to be executed in accordance with
article 87 of the Penal Code: (1) The penalty of death
for the parricide of his wife Aring; (2) the penalty of
 life imprisonment for the murder of Labonete; (3)
the penalty of life imprisonment for the murder of
Torres; (4) the penalty of 12 years and one day
of cadena temporal for the frustrated murder of
Taclind ...
The doctrine in Balaba was reechoed in People vs.
Guzman,44 which applied the pertinent provisions of the
Revised Penal Code, where this Court, after finding the
accused liable as co-principals because they acted in
conspiracy, proceeded to stress that where an "information
charges the defendants with the commission of several
crimes of murder and frustrated murder, as they failed to
object to the multiplicity of the charges made in the
information, they can be found guilty thereof and sentenced
accordingly for as many crimes the information charges them,
provided that they are duly established and proved by the
evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority
in Balaba for imposing all the penalties (two deaths and one
life imprisonment) corresponding to the offense charged and
proved was article 87 of the old Penal Code which provided:
When a person is found guilty of two or more
felonies or misdemeanors, all the penalties
corresponding to the several violations of law shall
be imposed, the same to be simultaneously served,
if possible, according to the nature and effects of
such penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to
the several violations of the law can not be
simultaneously executed, the following rules shall be
observed with regard thereto:
1. In the imposition of the penalties, the order of
their respective severity shall be followed so that
they may be executed successively or as nearly as
may be possible, should a pardon have been granted
as to the penalty or penalties first imposed, or
should they have been served out.
The essence and language, with some alterations in form and
in the words used by reason of style, of the above-cited
provisions have been preserved in article 70 of the Revised
146
Penal Code which is the product of the merger of articles 87
and 88 of the old Penal Code. Article 70 provides:
When the culprit has to serve two or more penalties,
he shall serve them simultaneously if the nature of
the penalties will so permit; otherwise, the following
rules shall be observed:
In the imposition of the penalties, the order of their
respective severity shall be followed so that they
may be executed successively or as nearly as may be
possible, should a pardon have been granted as to
the penalty or penalties first imposed, or should they
have been served out.
Although article 70 does not specifically command, as the
former article 87 clearly did, that "all the penalties
corresponding to the several violations of law shall be
imposed," it is unmistakable, however, that article 70
presupposes that courts have the power to impose multiple
penalties, which multiple penal sanctions should be served
either simultaneously or successively. This presumption of
the existence of judicial power to impose all the penalties
corresponding to the number and nature of the offenses
charged and proved is manifest in the opening sentence of
article 70: "When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of
the penalties will so permit ..." (Emphasis supplied.)
Obviously, the two or more penalties which the culprit has to
serve are those legally imposed by the proper court. Another
reference to the said judicial prerogative is found in the
second paragraph of article 70 which provides that "in
the imposition of the penalties, the order of their respective
severity shall be followed ..." Even without the authority
provided by article 70, courts can still impose as many
penalties as there are separate and distinct offenses
committed, since for every individual crime committed, a
corresponding penalty is prescribed by law. Each single crime
is an outrage against the State for which the latter, thru the
courts ofjustice, has the power to impose the appropriate
penal sanctions.
With respect to the imposition of multiple death penalties,
there is no statutory prohibition or jurisprudential injunction
against it. On the contrary, article 70 of the Revised Penal
Code presumes that courts have the power to mete out
multiple penalties without distinction as to the nature and
severity of the penalties. Moreover, our jurisprudence
supports the imposition of multiple death penalties as initially
advocated in Balaba and thunderously reechoed
in Salazar where the accused was sentenced on appeal to
thirteen (13) death penalties. Significantly, the Court
in Balaba imposed upon the single accused mixed multiple
penalties of two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some
as a useless formality, an exercise in futility. It is contended,
undeniably enough, that a death convict like all mortals, has
only one life to forfeit. And because of this physiological and
biological attribute of man, it is reasoned that the imposition
of multiple death penalties is impractical and futile because
after the service of one capital penalty, the execution of the
rest of the death penalties will naturally be rendered
impossible. The foregoing opposition to the multiple
imposition of death penalties suffers from four basic flaws:
(1) it fails to consider the legality of imposing multiple capital
penalties; (2) it fails to distinguish between imposition of
penalty and service of sentence; (3) it ignores the fact that
multiple death sentences could be served simultaneously;
and (4) it overlooks the practical merits of imposing multiple
death penalties.
The imposition of a penalty and the service of sentence are
two distinct, though related, concepts. The imposition of the
proper penalty or penalties is determined by the nature,
gravity and number of offenses charged and, proved,
whereas service of sentence is determined by the severity
and character of the penalty or penalties imposed. In the
imposition of the proper penalty or penalties, the court does
not concern itself with the possibility or practicality of the
service of the sentence, since actual service is a contingency
subject to varied factors like successful escape of the convict,
grant of executive clemency or natural death of the prisoner.
All that go into the imposition of the proper penalty or
penalties, to reiterate, are the nature, gravity and number of
the offenses charged and proved and the corresponding
penalties prescribed by law.
Multiple death penalties are not impossible to serve because
they will have to be executed simultaneously. A cursory
reading of article 70 will show that there are only two modes
of serving two or more (multiple)
penalties: simultaneously or successively. The first rule is that
two or more penalties shall be served simultaneously if the
nature of the penalties will so permit. In the case of multiple
capital penalties, the nature of said penal sanctions does not
only permit but actually necessitates simultaneous service.
147
The imposition of multiple death penalties, far from being a
useless formality, has practical importance. The sentencing of
an accused to several capital penalties is an indelible badge of
his extreme criminal perversity, which may not be accurately
projected by the imposition of only one death sentence
irrespective of the number of capital felonies for which he is
liable. Showing thus the reprehensible character of the
convict in its real dimensions, the possibility of a grant of
executive clemency is justifiably reduced in no small measure.
Hence, the imposition of multiple death penalties could
effectively serve as a deterrent to an improvident grant of
pardon or commutation. Faced with the utter delinquency of
such a convict, the proper penitentiary authorities would
exercise judicious restraint in recommending clemency or
leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of
his constitutional power to pardon (one of the presidential
prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life
imprisonments, then the practical effect is that the convict
has to serve the maximum of forty (40) years of multiple life
sentences. If only one death penalty is imposed, and then is
commuted to life imprisonment, the convict will have to
serve a maximum of only thirty years corresponding to a
single life sentence.
Reverting now to the case at bar, it is our considered view
that the trial court correctly ruled that conspiracy attended
the commission of the murders. We quote with approval the
following incisive observations of the court a quo in this
respect:
Although, there is no direct evidence of conspiracy,
the Court can safely say that there are several
circumstances to show that the crime committed by
the accused was planned. The following
circumstances show beyond any doubt the acts of
conspiracy: First, all those who were killed, Barbosa,
Santos Cruz and Carriego, were Tagalogs. Although
there were many Tagalogs like them confined in
Building 4, these three were singled out and killed
thereby showing that their killing has been
planned. Second, the accused were all armed with
improvised weapons showing that they really
prepared for the occasion. Third, the accused
accomplished the killing with team work precision
going from one brigade to another and attacking the
same men whom they have previously marked for
 liquidation and lastly, almost the same people took
part in the killing of Carriego, Barbosa and Santos
Cruz.
It is also important to note that all the accused were inmates
of brigade 4-A; that all were from either the Visayas or
Mindanao except Peralta who is from Masbate and Parumog
who hails from Nueva Ecija; that all were either "OXO"
members or sympathizers; and that all the victims were
members of the "Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the
accused acted in concert from the moment they bolted their
common brigade, up until the time they killed their last
victim, Santos Cruz. While it is true that Parumog, Larita and
Luna did not participate in the actual killing of Carriego,
nonetheless, as co-conspirators they are equally guilty and
collectively liable for in conspiracy the act of one is the act of
all. It is not indispensable that a co-conspirator should take a
direct part in every act and should know the part which the
others have to perform. Conspiracy is the common design to
commit a felony; it is not participation in all the details of the
execution of the crime. All those who in one way or another
help and cooperate in the consummation of a felony
previously planned are co-principals.45 Hence, all of the six
accused are guilty of the slaughter of Carriego, Barbosa and
Santos Cruz — each is guilty of three separate and distinct
crimes of murder.
We cannot agree, however, with the trial court that evident
premeditation was also present. The facts on record and the
established jurisprudence on the matter do not support the
conclusion of the court a quo that evident premeditation "is
always present and inherent in every conspiracy." Evident
premeditation is not inherent in conspiracy as the absence of
the former does not necessarily negate the existence of the
latter.46 Unlike in evident premeditation where a sufficient
period of time must elapse to afford full opportunity for
meditation and reflection for the perpetrator to deliberate on
the consequences of his intended deed, conspiracy arises at
the very instant the plotters agree, expressly or impliedly, to
commit the felony and forthwith decide to commit it.47 This
view finds added support in People vs. Custodia,48 wherein
this Court stated:
Under normal conditions, where the act of
conspiracy is directly established, with proof of the
attendant deliberation and selection of the method,
time and means of executing the crime, the
148
existence of evident premeditation can be taken for
granted. In the case before us, however, no such
evidence exists; the conspiracy is merely inferred
from the acts of the accused in the perpetration of
the crime. There is no proof how and when the plan
to kill Melanio Balancio was hatched, or what time
elapsed before it was carried out; we are, therefore,
unable to determine if the appellants enjoyed
"sufficient time between its inception and its
fulfillment dispassionately to consider and accept
the consequences." (cf. People vs. Bangug, 52 Phil.
91.) In other words, there is no showing of the
opportunity of reflection and the persistence in the
criminal intent that characterize the aggravating
circumstance of evident premeditation (People vs.
Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off.
Gaz., [Supp to No. 12] 166; People vs. Lesada 70
Phil., 525.)
Not a single extenuating circumstance could be appreciated
in favor of any of the six accused, as they did neither allege
nor prove any.
In view of the attendance of the special aggravating
circumstance of quasi-recidivism, as all of the six accused at
the time of the commission of the offenses were serving
sentences49 in the New Bilibid Prison at Muntinlupa by virtue
of convictions by final judgments the penalty for each offense
must be imposed in its maximum period, which is the
mandate of the first paragraph of article 160 of the Revised
Penal Code. Viada observes, in apposition, that the severe
penalty imposed on a quasi-recidivist is justified because of
his perversity and incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as
follows: Amadeo Peralta, Andres Factora, Leonardo Dosal,
Angel Parumog, Gervasio Larita and Florencio Luna are each
pronounced guilty of three separate and distinct crimes of
murder, and are each sentenced to three death penalties; all
of them shall, jointly and severally, indemnify the heirs of
each of the three deceased victims in the sum of
P12,000;51 each will pay one-sixth of the costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez,
Castro, Angeles, Fernando and Capistrano, JJ.,concur.
Zaldivar, J., is on leave.

EN BANC
G.R. No. 148965 February 26, 2002
JOSE "JINGGOY" E. ESTRADA, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE
PHILIPPINES and OFFICE OF THE OMBUDSMAN,respondents.
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its application to
a particular party may be unconstitutional. This is the
submission of the petitioner who invokes the equal
protection clause of the Constitution in his bid to be excluded
from the charge of plunder filed against him by the
respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment
proceedings against Joseph Ejercito Estrada, then President
of the Republic of the Philippines, five criminal complaints
against the former President and members of his family, his
associates, friends and conspirators were filed with the
respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint
Resolution1 finding probable cause warranting the filing with
the Sandiganbayan of several criminal Informations against
the former President and the other respondents therein. One
of the Informations was for the crime of plunder under
Republic Act No. 7080 and among the respondents was
herein petitioner Jose "Jinggoy" Estrada, then mayor of San
Juan, Metro Manila.
The Information was amended and filed on April 18, 2001.
Docketed as Criminal Case No. 26558, the case was assigned
to respondent Third Division of the Sandiganbayan. The
arraignment of the accused was set on July 10, 2001 and no
bail for petitioner’s provisional liberty was fixed.
149
On April 24, 2001, petitioner filed a "Motion to Quash or
Suspend" the Amended Information on the ground that the
Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that
it charged more than one offense. Respondent Ombudsman
opposed the motion.
On April 25, 2001, the respondent court issued a warrant of
arrest for petitioner and his co-accused. On its basis,
petitioner and his co-accused were placed in custody of the
law.
On April 30, 2001, petitioner filed a "Very Urgent Omnibus
Motion"2 alleging that: (1) no probable cause exists to put
him on trial and hold him liable for plunder, it appearing that
he was only allegedly involved in illegal gambling and not in a
"series or combination of overt or criminal acts" as required
in R.A. No. 7080; and (2) he is entitled to bail as a matter of
right. Petitioner prayed that he be excluded from the
Amended Information and be discharged from custody. In the
alternative, petitioner also prayed that he be allowed to post
bail in an amount to be fixed by respondent court. 3
On June 28, 2001, petitioner filed a "Motion to Resolve
Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds
That An Outgoing Mayor Loses Clout An Incumbent Has And
That On Its Face, the Facts Charged In The Information Do
Not Make Out A Non-Bailable Offense As To Him."4
On July 3, 2001, petitioner filed a "Motion to Strike Out So-
Called ‘Entry of Appearance,’ To Direct Ombudsman To
Explain Why He Attributes Impropriety To The Defense And
To Resolve Pending Incidents."5
On July 9, 2001, respondent Sandiganbayan issued a
Resolution denying petitioner’s "Motion to Quash and
Suspend" and "Very Urgent Omnibus Motion."6 Petitioner’s
alternative prayer to post bail was set for hearing after
arraignment of all accused. The court held:
"WHEREFORE, in view of the foregoing, the Court hereby
DENIES for lack of merit the following: (1) MOTION TO
QUASH AND SUSPEND dated April 24, 2001 filed by accused
Jose ‘Jinggoy’ Estrada; (2) MOTION TO QUASH dated June 7,
2001 filed by accused Joseph Ejercito Estrada; and (3)
MOTION TO QUASH (Re: Amended Information dated 18 April
2001) dated June 26, 2001 filed by accused Edward S.
Serapio.
Considering the denial of the MOTION TO QUASH AND
SUSPEND of accused Jose ‘Jinggoy’ Estrada, his VERY URGENT
OMNIBUS MOTION, praying that he be: (1) dropped from the
information for plunder for want of probable cause and (2)
discharged from custody immediately which is based on the
same grounds mentioned in this MOTION TO QUASH AND
SUSPEND is hereby DENIED. Let his alternative prayer in said
OMNIBUS MOTION that he be allowed to post bail be SET for
hearing together with the petition for bail of accused Edward
S. Serapio scheduled for July 10, 2001, at 2:00 o’clock in the
afternoon after the arraignment of all the accused."7
The following day, July 10, 2001, petitioner moved for
reconsideration of the Resolution. Respondent court denied
the motion and proceeded to arraign petitioner. Petitioner
refused to make his plea prompting respondent court to
enter a plea of "not guilty" for him.8
Hence, this petition. Petitioner claims that respondent
Sandiganbayan acted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack of
jurisdiction in:
"1) not declaring that R.A. No. 7080 is
unconstitutional on its face and, as applied to
petitioner, and denying him the equal protection of
the laws;
2) not holding that the Plunder Law does not provide
complete and sufficient standards;
3) sustaining the charge against petitioner for
alleged offenses, and with alleged conspirators, with
which and with whom he is not even remotely
connected - contrary to the dictum that criminal
liability is personal, not vicarious - results in the
denial of substantive due process;
4) not fixing bail for petitioner for alleged
involvement in jueteng in one count of the
information which amounts to cruel and unusual
punishment totally in defiance of the principle of
proportionality."9
We shall resolve the arguments of petitioner in seriatim.
I.
150
Petitioner contends that R.A. No. 7080 is unconstitutional on
its face and as applied to him and denies him the equal
protection of the laws.10
The contention deserves our scant attention. The
constitutionality of R.A. No. 7080, the Anti-Plunder Law, has
been settled in the case of Estrada v. Sandiganbayan.11 We
take off from the Amended Information which charged
petitioner, together with former President Joseph E. Estrada,
Atty. Edward Serapio, Charlie "Atong" Ang, Yolanda T.
Ricaforte and others, with the crime of plunder as follows:
"AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director,
EPIB Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito
Estrada a.k.a. "ASIONG SALONGA" AND a.k.a "JOSE
VELARDE", together with Jose ‘Jinggoy’ Estrada, Charlie
‘Atong’ Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized
under R.A. No. 7080, as amended by Sec. 12 of R.A. No.
7659, committed as follows:
That during the period from June, 1998 to January, 2001, in
the Philippines, and within the jurisdiction of this Honorable
Court, accused Joseph Ejercito Estrada, THEN A PUBLIC
OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACYwith his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING
UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE,
did then and there wilfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount OR
TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION
EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE
AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR A series of overt OR criminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly,
on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-
FIVE MILLION PESOS (P545,000,000.00), MORE OR
LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-accused CHARLIE
‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada, Yolanda T.
Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND
JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY,
for HIS OR THEIR PERSONAL gain and benefit, public
funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS [P130,000,000.00], more or less,
representing a portion of the TWO HUNDRED
MILLION PESOS [P200,000,000] tobacco excise tax
share allocated for the Province of Ilocor Sur under
R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie
‘Atong’ Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND
JANE DOES;
(c) by directing, ordering and compelling, FOR HIS
PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCK MORE OR LESS, and
the Social Security System (SSS), 329,855,000
SHARES OF STOCK MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED
SEVEN PESOS AND FIFTY CENTAVOS
[P1,102,965,607.50] AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY
PESOS [P744,612,450.00], RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS
AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY
COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE
WITH JOHN DOES AND JANE DOES, COMMISSIONS
151
OR PERCENTAGES BY REASON OF SAID PURCHASES
OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [P189,700,000.00], MORE OR
LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-
PCI BANK UNDER THE ACCOUNT NAME "JOSE
VELARDE";
(d) by unjustly enriching himself FROM
COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, in the amount of MORE OR LESS THREE
BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
[P3,233,104,173.17] AND DEPOSITING THE SAME
UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT
THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001"12
Petitioner’s contention that R.A. No. 7080 is unconstitutional
as applied to him is principally perched on the premise that
the Amended Information charged him with only one act or
one offense which cannot constitute plunder. He then assails
the denial of his right to bail.
Petitioner’s premise is patently false. A careful examination
of the Amended Information will show that it is divided into
three (3) parts: (1) the first paragraph charges former
President Joseph E. Estrada with the crime of plunder
together with petitioner Jose "Jinggoy" Estrada, Charlie
"Atong" Ang, Edward Serapio, Yolanda Ricaforte and others;
(2) the second paragraph spells out in general terms how the
accused conspired in committing the crime of plunder; and
(3) the following four sub-paragraphs (a) to (d) describe in
detail the predicate acts constitutive of the crime of plunder
pursuant to items (1) to (6) of R.A. No. 7080, and state the
names of the accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in
sub-paragraph (a) of the Amended Informationwhich is of
"receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of
₱545,000,000.00 for illegal gambling in the form of gift,
share, percentage, kickback or any form of pecuniary benefit
x x x." In this sub-paragraph (a), petitioner, in conspiracy with
former President Estrada, is charged with the act of receiving
or collecting money from illegal gambling amounting to ₱545
million. Contrary to petitioner’s posture, the allegation is that
he received or collected money from illegal gambling "on
several instances." The phrase "on several instances" means
the petitioner committed the predicate act in series. To
insist that the Amended Information charged the petitioner
with the commission of only one act or offense despite the
phrase "several instances" is to indulge in a twisted, nay,
"pretzel" interpretation.
It matters little that sub-paragraph (a) did not utilize the
exact words "combination" or "series" as they appear in R.A.
No. 7080. For in Estrada v. Sandiganbayan,13 we held that
where these two terms are to be taken in their popular, not
technical, meaning, the word "series" is synonymous with the
clause "on several instances." "Series" refers to a repetition
of the same predicate act in any of the items in Section 1 (d)
of the law. The word "combination" contemplates the
commission of at least any two different predicate acts in any
of said items. Plainly, sub-paragraph (a) of the Amended
Information charges petitioner with plunder committed by a
series of the same predicate act under Section 1 (d) (2) of
the law.
Similarly misleading is petitioner’s stand that in the
Ombudsman Resolution of April 4, 2001 finding probable
cause to charge him with plunder together with the other
accused, he was alleged to have received only the sum of P2
million, which amount is way below the minimum of P50
million required under R.A. No. 7080. The submission is not
borne out by the April 4, 2001 Resolution of the Ombudsman,
recommending the filing of charges against petitioner and his
co-accused, which in pertinent part reads:
"x x x xxx xxx
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San
Juan, Metro Manila, appears to have also surreptitious
collection of protection money from jueteng operations in
Bulacan. This is gleaned from the statements of Gov. Singson
himself and the fact that Mayor Estrada, on at least two
occasions, turned over to a certain Emma Lim, an emissary of
the respondent governor, jueteng haul totalling P2 million,
i.e., P1 million in January, 2000 and another P1 million in
February, 2000. An alleged "listahan" of jueteng recipients
152
listed him as one "Jingle Bell," as affirmed by Singson [TSN 8
& Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]."14
Hence, contrary to the representations of the petitioner, the
Ombudsman made the finding that P2 million was delivered
to petitioner as "jueteng haul" on "at least two
occasions." The P2 million is, therefore, not the entire
sum with which petitioner is specifically charged. This is
further confirmed by the conclusion of the Ombudsman that:
"x x x xxx xxx
It is clear that Joseph Ejercito Estrada, in confabulation with
Jose ‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda
Ricaforte, demanded and received, as bribe money, the
aggregate sum of P545 million from jueteng collections of the
operators thereof, channeled thru Gov. Luis ‘Chavit’ Singson,
in exchange for protection from arrest or interference by law
enforcers; x x x."15
To be sure, it is too late in the day for the petitioner to argue
that the Ombudsman failed to establish any probable cause
against him for plunder. The respondent Sandiganbayan itself
has found probable cause against the petitioner for which
reason it issued a warrant of arrest against him. Petitioner
then underwent arraignment and is now on trial. The time to
assail the finding of probable cause by the Ombudsman has
long passed. The issue cannot be resurrected in this petition.
II.
Next, petitioner contends that "the plunder law does not
provide sufficient and complete standards to guide the courts
in dealing with accused alleged to have contributed to the
offense."16 Thus, he posits the following questions:
"For example, in an Information for plunder which cites at
least ten criminal acts, what penalty do we impose on one
who is clearly involved in only one such criminal act? Is
it reclusion perpetua? Or should it be a lesser penalty? What
if another accused is shown to have participated in three of
the ten specifications, what would be the penalty imposable,
compared to one who may have been involved in five or
seven of the specifications? The law does not provide the
standard or specify the penalties and the courts are left to
guess. In other words, the courts are called to say what the
law is rather than to apply what the lawmaker is supposed to
have intended."17
Petitioner raises these hypothetical questions for he labors
hard under the impression that: (1) he is charged with only
one act or offense and (2) he has not conspired with the
other accused named in sub-paragraphs (b) to (d) of the
Amended Information, ergo, the penalty imposable on him
ought to be different from reclusion perpetua to death. R.A.
No. 7080, he bewails, is cloudy on the imposable penalty on
an accused similarly situated as he is. Petitioner, however,
overlooks that the second paragraph of the Amended
Information charges him to have conspired with former
President Estrada in committing the crime of plunder. His
alleged participation consists in the commission of the
predicate acts specified in sub-paragraph (a) of the Amended
Information. If these allegations are proven, the penalty of
petitioner cannot be unclear. It will be no different from that
of the former President for in conspiracy, the act of one is the
act of the other. The imposable penalty is provided in Section
2 of R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in
connivance with the members of his family, relatives by
affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal
acts as described in Section 1(d) hereof in the aggregate
amount or total value of at least Fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder
and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the
commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as
provided by the Revised Penal Code, shall be considered by
the court."
III.
Petitioner also faults the respondent Sandiganbayan for
"sustaining the charge against petitioner for alleged offenses
and with alleged conspirators, with which and with whom he
is not even remotely connected – contrary to the dictum that
criminal liability is personal, not vicarious – results in the
denial of substantive due process."18
The Solicitor General argues, on the other hand, that
petitioner is charged not only with the predicate act in sub-
paragraph (a) but also with the other predicate acts in sub-
paragraphs (b), (c) & (d) because he is indicted as a principal
153
and as co-conspirator of the former President. This is
purportedly clear from the first and second paragraphs of the
Amended Information.19
For better focus, there is a need to examine again the
allegations of the Amended Information vis-à-vis the
provisions of R.A. No. 7080.
The Amended Information, in its first two paragraphs,
charges petitioner and his other co-accused with the crime of
plunder. The first paragraph names all the accused, while the
second paragraph describes in general how plunder was
committed and lays down most of the elements of the crime
itself. Sub-paragraphs (a) to (d) describe in detail the
predicate acts that constitute the crime and name in
particular the co-conspirators of former President Estrada in
each predicate act. The predicate acts alleged in the said
four sub-paragraphs correspond to the items enumerated in
Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the
predicate act of receiving, on several instances, money from
illegal gambling, in consideration of toleration or protection
of illegal gambling, and expressly names petitioner as one of
those who conspired with former President Estrada in
committing the offense. This predicate act corresponds with
the offense described in item [2] of the enumeration in
Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the
predicate act of diverting, receiving or misappropriating a
portion of the tobacco excise tax share allocated for the
province of Ilocos Sur, which act is the offense described in
item [1] in the enumeration in Section 1 (d) of the law. This
sub-paragraph does not mention petitioner but instead
names other conspirators of the former President. Sub-
paragraph (c) alleged two predicate acts - that of ordering the
Government Service Insurance System (GSIS) and the Social
Security System (SSS) to purchase shares of stock of Belle
Corporation, and collecting or receiving commissions from
such purchase from the Belle Corporation which became part
of the deposit in the "Jose Velarde" account at the Equitable-
PCI Bank. These two predicate acts fall under items [2] and [3]
in the enumeration of R.A. No. 7080, and was allegedly
committed by the former President in connivance with John
Does and Jane Does. Finally, sub-paragraph (d) alleged the
predicate act that the former President unjustly enriched
himself from commissions, gifts, kickbacks, in connivance
with John Does and Jane Does, and deposited the same under
his account name "Jose Velarde" at the Equitable-PCI Bank.
This act corresponds to the offense under item [6] in the
enumeration of Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information,
it is clear that all the accused named in sub-paragraphs (a) to
(d), thru their individual acts, conspired with former
President Estrada to enable the latter to amass, accumulate
or acquire ill-gotten wealth in the aggregate amount of
P4,097,804,173.17. As the Amended Informationis
worded, however, it is not certain whether the accused in
sub-paragraphs (a) to (d) conspired with each otherto enable
the former President to amass the subject ill-gotten wealth.
In light of this lack of clarity, petitioner cannot be penalized
for the conspiracy entered into by the other accused with the
former President as related in the second paragraph of the
Amended Information in relation to its sub-paragraphs (b) to
(d). We hold that petitioner can be held accountable only for
the predicate acts he allegedly committed as related in sub-
paragraph (a) of the Amended Information which were
allegedly done in conspiracy with the former President whose
design was to amass ill-gotten wealth amounting to more
than P4 billion.
We hasten to add, however, that the respondent
Ombudsman cannot be faulted for including the predicate
acts alleged in sub-paragraphs (a) to (d) of the Amended
Information in one, and not in four, separate
Informations. A study of the history of R.A. No. 7080 will
show that the law was crafted to avoid the mischief and folly
of filing multiple informations. The Anti-Plunder Law was
enacted in the aftermath of the Marcos regime where
charges of ill-gotten wealth were filed against former
President Marcos and his alleged cronies. Government
prosecutors found no appropriate law to deal with the
multitude and magnitude of the acts allegedly committed by
the former President to acquire illegal wealth. 20 They also
found that under the then existing laws such as the Anti-Graft
and Corrupt Practices Act, the Revised Penal Code and other
special laws, the acts involved different transactions,
different time and different personalities. Every transaction
constituted a separate crime and required a separate case
and the over-all conspiracy had to be broken down into
several criminal and graft charges. The preparation of
multiple Informations was a legal nightmare but eventually,
thirty-nine (39) separate and independent cases were filed
against practically the same accused before the
Sandiganbayan.21 R.A. No. 7080 or the Anti-Plunder Law22 was
enacted precisely to address this procedural problem. This is
pellucid in the Explanatory Note to Senate Bill No. 733, viz:
"Plunder, a term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of
154
high office for personal enrichment, committed thru a series
of acts done not in the public eye but in stealth and secrecy
over a period of time, that may involve so many persons,
here and abroad, and which touch so many states and
territorial units. The acts and/or omissions sought to be
penalized do not involve simple cases of malversation of
public funds, bribery, extortion, theft and graft but
constitute plunder of an entire nation resulting in material
damage to the national economy. The above-described
crime does not yet exist in Philippine statute books. Thus, the
need to come up with a legislation as a safeguard against the
possible recurrence of the depravities of the previous regime
and as a deterrent to those with similar inclination to
succumb to the corrupting influence of power."
There is no denying the fact that the "plunder of an entire
nation resulting in material damage to the national economy"
is made up of a complex and manifold network of crimes. In
the crime of plunder, therefore, different parties may be
united by a common purpose. In the case at bar, the
different accused and their different criminal acts have a
commonality—to help the former President amass,
accumulate or acquire ill-gotten wealth. Sub-paragraphs (a)
to (d) in the Amended Information alleged the different
participation of each accused in the conspiracy.
The gravamen of the conspiracy charge, therefore,
is not that each accused agreed to receive protection money
from illegal gambling, that each misappropriated a portion of
the tobacco excise tax, that each accused ordered the GSIS
and SSS to purchase shares of Belle Corporation and receive
commissions from such sale, nor that each unjustly enriched
himself from commissions, gifts and kickbacks; rather, it is
that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing,
accumulation and acquisition of ill-gotten wealth of and/or
for former President Estrada.
In the American jurisdiction, the presence of several accused
in multiple conspiracies commonly involves two structures:
(1) the so-called "wheel" or "circle" conspiracy, in which there
is a single person or group (the "hub") dealing individually
with two or more other persons or groups (the "spokes"); and
(2) the "chain" conspiracy, usually involving the distribution
of narcotics or other contraband, in which there is successive
communication and cooperation in much the same way as
with legitimate business operations between manufacturer
and wholesaler, then wholesaler and retailer, and then
retailer and consumer.23
From a reading of the Amended Information, the case at bar
appears similar to a "wheel" conspiracy. The hub is former
President Estrada while the spokes are all the accused, and
the rim that encloses the spokes is the common goal in the
overall conspiracy, i.e., the amassing, accumulation and
acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the
charge against the petitioner on the ground that the
allegation of conspiracy in the Amended Information is too
general. The fear is even expressed that it could serve as a
net to ensnare the innocent. Their dissents appear to be
inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with
conspiracy in American criminal law and in common law.
Under Philippine law, conspiracy should be understood on
two levels. As a general rule, conspiracy is not a crime in our
jurisdiction. It is punished as a crime only when the law fixes
a penalty for its commission such as in conspiracy to commit
treason, rebellion and sedition. In contrast, under American
criminal law, the agreement or conspiracy itself is the
gravamen of the offense.24 The essence of conspiracy is the
combination of two or more persons, by concerted action, to
accomplish a criminal or unlawful purpose, or some purpose
not in itself criminal or unlawful, by criminal or unlawful
means.25 Its elements are: agreement to accomplish an illegal
objective, coupled with one or more overt acts in furtherance
of the illegal purpose; and requisite intent necessary to
commit the underlying substantive offense.26
A study of the United States Code ought to be instructive. It
principally punishes two (2) crimes of conspiracy 27 –
conspiracy to commit any offense or to defraud the United
States, and conspiracy to impede or injure officer. Conspiracy
to commit offense or to defraud the United States is
penalized under 18 U.S.C. Sec. 371,28 as follows:
"Sec. 371. Conspiracy to commit offense or to defraud the
United States. If two or more persons conspire either to
commit any offense against the United States, or to defraud
the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons to any act to
effect the object of the conspiracy, each shall be fined not
more than $10,000 or imprisoned not more than five years,
or both.
155
If, however, the offense, the commission of which is the
object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor."
Conspiracy to impede or injure officer is penalized under 18
U.S.C. Sec. 372, viz:
"Sec. 372. Conspiracy to impede or injure officer. If two or
more persons in any State, Territory, Possession, or District
conspire to prevent, by force, intimidation, or threat, any
person from accepting or holding any office, trust or place of
confidence under the United States, or from discharging any
duties thereof, or to induce by like means any officer of the
United States to leave the place, where his duties as an
officer are required to be performed, or to injure him in his
person or property on account of his lawful discharge of the
duties of his office, or while engaged in the lawful discharge
thereof, or to injure his property so as to molest, interrupt,
hinder, or impede him in the discharge of his official duties,
each of such persons shall be fined not more than $5,000 or
imprisoned not more than six years, or both."
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to
commit any offense against the United States; and (2)
conspiracy to defraud the United States or any agency
thereof. The conspiracy to "commit any offense against the
United States" refers to an act made a crime by federal
laws.29 It refers to an act punished by statute. 30 Undoubtedly,
Section 371 runs the whole gamut of U.S. Federal laws,
whether criminal or regulatory.31 These laws cover criminal
offenses such as perjury, white slave traffic, racketeering,
gambling, arson, murder, theft, bank robbery, etc. and also
include customs violations, counterfeiting of currency,
copyright violations, mail fraud, lotteries, violations of
antitrust laws and laws governing interstate commerce and
other areas of federal regulation.32 Section 371 penalizes the
conspiracy to commit any of these substantive offenses. The
offense of conspiracy is generally separate and distinct from
the substantive offense,33 hence, the court rulings that
acquittal on the substantive count does not foreclose
prosecution and conviction for related conspiracy.34
The conspiracy to "defraud the government" refers primarily
to cheating the United States out of property or money. It
also covers interference with or obstruction of its lawful
governmental functions by deceit, craft or trickery, or at least
by means that are dishonest.35 It comprehends defrauding
the United States in any manner whatever, whether the fraud
be declared criminal or not.36
The basic difference in the concept of
conspiracy notwithstanding, a study of the American case
law on howconspiracy should be alleged will reveal that it
is not necessary for the indictment to include particularities
of time, place, circumstances or causes, in stating the
manner and means of effecting the object of the
conspiracy. Such specificity of detail falls within the scope of
a bill of particulars.37 An indictment for conspiracy is
sufficient where it alleges: (1) the agreement; (2) the offense-
object toward which the agreement was directed; and (3) the
overt acts performed in furtherance of the agreement. 38 To
allege that the defendants conspired is, at least, to state that
they agreed to do the matters which are set forth as the
substance of their conspiracy. To allege a conspiracy is to
allege an agreement.39 The gist of the crime of conspiracy is
unlawful agreement, and where conspiracy is charged, it is
not necessary to set out the criminal object with as great a
certainty as is required in cases where such object is charged
as a substantive offense.40
In sum, therefore, there is hardly a substantial difference on
how Philippine courts and American courts deal with cases
challenging Informations alleging conspiracy on the ground
that they lack particularities of time, place, circumstances or
causes. In our jurisdiction, as aforestated, conspiracy can be
alleged in the Information as a mode of committing a crime
or it may be alleged as constitutive of the crime itself. When
conspiracy is alleged as a crime in itself, the sufficiency of
the allegations in the Information charging the offense is
governed by Section 6, Rule 110 of the Revised Rules of
Criminal Procedure. It requires that the information for this
crime must contain the following averments:
"Sec. 6. Sufficiency of complaint or information.- A complaint
or information is sufficient if it states the name of the
accused, the designation of the offense given by the
statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the
approximate date of the commission of the offense; and the
place where the offense was committed.
When the offense was committed by more than one person,
all of them shall be included in the complaint or information."
The complaint or information to be sufficient must state the
name of the accused, designate the offense given by
156
statute, state the acts or omissions constituting the offense,
the name of the offended party, the approximate date of the
commission of the offense and the place where the offense
was committed.
Our rulings have long settled the issue on how the acts or
omissions constituting the offense should be made in order
to meet the standard of sufficiency. Thus, the offense must
be designated by its name given by statute or by reference to
the section or subsection of the statute punishing it. 41 The
information must also state the acts or omissions constituting
the offense, and specify its qualifying and aggravating
circumstances.42 The acts or omissions complained of must be
alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended to
be charged, and enable the court to pronounce proper
judgment.43 No information for a crime will be sufficient if it
does not accurately and clearly allege the elements of the
crime charged.44 Every element of the offense must be stated
in the information.45 What facts and circumstances are
necessary to be included therein must be determined by
reference to the definitions and essentials of the specified
crimes.46 The requirement of alleging the elements of a crime
in the information is to inform the accused of the nature of
the accusation against him so as to enable him to suitably
prepare his defense. The presumption is that the accused has
no independent knowledge of the facts that constitute the
offense.47
To reiterate, when conspiracy is charged as a crime, the act
of conspiring and all the elements of said crime must be set
forth in the complaint or information. For example, the
crime of "conspiracy to commit treason" is committed when,
in time of war, two or more persons come to an agreement
to levy war against the Government or to adhere to the
enemies and to give them aid or comfort, and decide to
commit it.48 The elements of this crime are: (1) that the
offender owes allegiance to the Government of the
Philippines; (2) that there is a war in which the Philippines is
involved; (3) that the offender and other person or persons
come to an agreement to: (a) levy war against the
government, or (b) adhere to the enemies, to give them aid
and comfort; and (4) that the offender and other person or
persons decide to carry out the agreement. These elements
must be alleged in the information.
The requirements on sufficiency of allegations are different
when conspiracy is not charged as a crime in itself but only
as the mode of committing the crime as in the case at
bar. There is less necessity of reciting its particularities in the
Information because conspiracy is not the gravamen of the
offense charged. The conspiracy is significant only because it
changes the criminal liability of all the accused in the
conspiracy and makes them answerable as co-principals
regardless of the degree of their participation in the
crime.49 The liability of the conspirators is collective and each
participant will be equally responsible for the acts of
others,50 for the act of one is the act of all.51 In People v.
Quitlong,52 we ruled on how conspiracy as the mode of
committing the offense should be alleged in the
Information, viz:
"x x x. In embodying the essential elements of the crime
charged, the information must set forth the facts and
circumstances that have a bearing on the culpability and
liability of the accused so that the accused can properly
prepare for and undertake his defense. One such fact or
circumstance in a complaint against two or more accused
persons is that of conspiracy. Quite unlike the omission of an
ordinary recital of fact which, if not excepted from or
objected to during trial, may be corrected or supplied by
competent proof, an allegation, however, of conspiracy, or
one that would impute criminal liability to an accused for
the act of another or others, is indispensable in order to
hold such person, regardless of the nature and extent of his
own participation, equally guilty with the other or others in
the commission of the crime. Where conspiracy exists and
can rightly be appreciated, the individual acts done to
perpetrate the felony becomes of secondary importance, the
act of one being imputable to all the others (People v. Ilano,
313 SCRA 442). Verily, an accused must know from the
information whether he faces a criminal responsibility not
only for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the
components of conspiracy or allege all the details thereof,
like the part that each of the parties therein have
performed, the evidence proving the common design or the
facts connecting all the accused with one another in the web
of the conspiracy. Neither is it necessary to describe
conspiracy with the same degree of particularity required in
describing a substantive offense. It is enough that the
indictment contains a statement of facts relied upon to be
constitutive of the offense in ordinary and concise language,
with as much certainty as the nature of the case will admit,
in a manner that can enable a person of common
understanding to know what is intended, and with such
precision that the accused may plead his acquittal or
157
conviction to a subsequent indictment based on the same
facts. It is said, generally, that an indictment may be held
sufficient "if it follows the words of the statute and
reasonably informs the accused of the character of the
offense he is charged with conspiring to commit, or, following
the language of the statute, contains a sufficient statement of
an overt act to effect the object of the conspiracy, or alleges
both the conspiracy and the contemplated crime in the
language of the respective statutes defining them (15A C.J.S.
842-844).
xxx xxx xxx
x x x. Conspiracy arises when two or more persons come to
an agreement concerning the commission of a felony and
decide to commit it. Conspiracy comes to life at the very
instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith to actually pursue it. Verily, the
information must state that the accused have confederated
to commit the crime or that there has been a community of
design, a unity of purpose or an agreement to commit the
felony among the accused. Such an allegation, in the
absence of the usual usage of the words "conspired" or
"confederated" or the phrase "acting in conspiracy," must
aptly appear in the information in the form of definitive acts
constituting conspiracy. In fine, the agreement to commit
the crime, the unity of purpose or the community of design
among the accused must be conveyed such as either by the
use of the term "conspire" or its derivatives and
synonyms or by allegations of basic facts constituting the
conspiracy. Conspiracy must be alleged, not just inferred, in
the information on which basis an accused can aptly enter
his plea, a matter that is not to be confused with or likened
to the adequacy of evidence that may be required to prove
it. In establishing conspiracy when properly alleged, the
evidence to support it need not necessarily be shown by
direct proof but may be inferred from shown acts and
conduct of the accused.
xxx xxx x x x."
Again, following the stream of our own jurisprudence, it is
enough to allege conspiracy as a mode in the commission of
an offense in either of the following manner: (1) by use of
the word "conspire," or its derivatives or synonyms, such as
confederate, connive, collude, etc;53 or (2) by allegations of
basic facts constituting the conspiracy in a manner that a
person of common understanding would know what is
intended, and with such precision as would enable the
accused to competently enter a plea to a subsequent
indictment based on the same facts. 54
The allegation of conspiracy in the information must not be
confused with the adequacy of evidence that may be
required to prove it. A conspiracy is proved by evidence of
actual cooperation; of acts indicative of an agreement, a
common purpose or design, a concerted action or
concurrence of sentiments to commit the felony and actually
pursue it.55 A statement of this evidence is not necessary in
the information.
In the case at bar, the second paragraph of the Amended
Information alleged in general terms how the accused
committed the crime of plunder. It used the words "in
connivance/conspiracy with his co-accused." Following the
ruling in Quitlong, these words are sufficient to allege the
conspiracy of the accused with the former President in
committing the crime of plunder.
V.
We now come to petitioner’s plea for bail. On August 14,
2002, during the pendency of the instant petition before this
Court, petitioner filed with respondent Sandiganbayan an
"Urgent Second Motion for Bail for Medical Reasons."
Petitioner prayed that he be allowed to post bail due to his
serious medical condition which is life-threatening to him if
he goes back to his place of detention.1âwphi1 The motion
was opposed by respondent Ombudsman to which petitioner
replied.
For three days, i.e., on September 4, 20 and 27, 2001,
respondent Sandiganbayan conducted hearings on the
motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the
Makati Medical Center, testified as sole witness for
petitioner.
On December 18, 2001, petitioner filed with the Supreme
Court an "Urgent Motion for Early/Immediate Resolution of
Jose ‘Jinggoy’ Estrada’s Petition for Bail on
Medical/Humanitarian Considerations." Petitioner reiterated
the motion for bail he earlier filed with respondent
Sandiganbayan.56
On the same day, we issued a Resolution referring the motion
to respondent Sandiganbayan for resolution and requiring
said court to make a report, not later than 8:30 in the
morning of December 21, 2001.
158
On December 21, 2001, respondent court submitted its
Report. Attached to the Report was its Resolution dated
December 20, 2001 denying petitioner’s motion for bail for
"lack of factual basis."57 Basing its finding on the earlier
testimony of Dr. Anastacio, the Sandiganbayan found that
petitioner "failed to submit sufficient evidence to convince
the court that the medical condition of the accused requires
that he be confined at home and for that purpose that he be
allowed to post bail."58
The crime of plunder is punished by R.A. No. 7080, as
amended by Section 12 of R.A. No. 7659, with the penalty
of reclusion perpetua to death. Under our Rules, offenses
punishable by death, reclusion perpetua or life imprisonment
are non-bailable when the evidence of guilt is strong, to wit:
"Sec. 7. Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. – No person
charged with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment, shall be admitted
to bail when evidence of guilt is strong, regardless of the
stage of the criminal prosecution."59
Section 7, Rule 114 of the Revised Rules of Criminal
Procedure is based on Section 13, Article III of the 1987
Constitution which reads:
"Sec. 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction be bailable by sufficient
sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive
bail shall not be required."
The constitutional mandate makes the grant or denial of bail
in capital offenses hinge on the issue of whether or not the
evidence of guilt of the accused is strong. This requires that
the trial court conduct bail hearings wherein both the
prosecution and the defense are afforded sufficient
opportunity to present their respective evidence. The burden
of proof lies with the prosecution to show strong evidence of
guilt.60
This Court is not in a position to grant bail to the petitioner as
the matter requires evidentiary hearing that should be
conducted by the Sandiganbayan. The hearings on which
respondent court based its Resolution of December 20, 2001
involved the reception of medical evidence only and which
evidence was given in September 2001, five months ago. The
records do not show that evidence on petitioner’s guilt was
presented before the lower court.

Upon proper motion of the petitioner, respondent

Sandiganbayan should conduct hearings to determine if the
evidence of petitioner’s guilt is strong as to warrant the
granting of bail to petitioner.

IN VIEW WHEREOF, the petition is dismissed for failure to

show that the respondent Sandiganbayan acted without or in
excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction.

SO ORDERED.

159
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 65833 May 6, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUGENIO LAGARTO y GETALADO, JR., accused-appellant.
The Solicitor General for plaintiff-appellee.
Dakila F. Castro & Associates for accused-appellant.
PARAS, J.:
This is an automatic review of the judgment * of the Regional
Trial Court, 8th Judicial Region, Branch XXII, Laoang, Northern
Samar, in Criminal Case No. 1566, finding the accused
EUGENIO LAGARTO y GETALADO, JR. guilty beyond
reasonable doubt of the crime of MURDER.
The pertinent facts of the case are:
In the early evening of May 25, 1983, Reynaldo Aducal, who
was buying fish in the public market, Poblacion Laoang,
Northern Samar, was fatally stabbed. Right after the stabbing,
the assailant was apprehended by Pfc. Wenefredo Laguitan
whose commendable act thwarted the assailant's escape.
For the killing of Reynaldo Aducal, accused Eugenio Lagarto y
Getalado, Jr. was charged in an amended information with
the crime of Murder as defined and penalized under Article
248 of the Revised Penal Code, allegedly committed as
follows:
That on or about the 25th day of May, 1983, at
about 6:00 o'clock in the evening more or less, inside
the public market Bgy. Little Venice, Municipality of
Laoang, Province of Northern Samar, Philippines and
within the jurisdiction of this Honorable Court, the
above named accused with deliberate intent to kill
with the qualifying circumstances of treachery and
evident premeditation did then and there willfully,
unlawfully and feloniously attack, assault and stab
one REYNALDO ADUCAL y LURA with the use of a
Batangas fan knife or Balisong which the above-
named accused had provided himself for the
160
purpose, thereby inflicting upon said victim fatal
wounds on his chest, which wounds caused the
instantaneous death of the victim.
Accused is a recidivist, having been previously
convicted by final judgment of another came
embraced IN THE SAME TITLE OF THE REVISED
PENAL CODE, THAT OF MURDER IN CRIMINAL CASE
NO. 1473.
CONTRARY TO LAW.
(Record, "Amended Information", p. 35)
Upon arraignment, appellant entered a plea of guilty.
The records disclose that the trial court had asked appellant
whether or not he understood the consequences of his plea.
Following the rulings of this Court, however, the trial court
still directed the prosecution to present its evidence for the
purpose of establishing with certainty the guilt and the
degree of culpability of the accused.
Two witnesses were presented by the prosecution: they were
Zosimo Aducal, father of the victim, and Pfc. Wenefredo
Laguitan.
1. Zasimo Aducal testified that in the evening of May
25, 1983 while he was attending to his farm, three
(3) kilometers away from the poblacion of Little
Venice, Laoang, Northern Samar, his grandson
Artemio Aducal, son of Reynaldo, informed him that
Reynaldo Aducal had been stabbed dead; he was not
able to see his deceased son that night because he
could not see his way during night time; it was only
in the following morning when he saw his deceased
son with two stab wounds on the right and left
breast. (TSN, October 18, 1983, pp. 14-20).
2. Pfc. Wenefredo Laguitan testified that on May 25,
1983, around 6:00 in the evening, while he and Pat.
Manuel Sevillana were passing the market place, his
attention was called by a certain Armando Baluyot to
a commotion; he observed that the people were
scampering for safety and a man was escaping;
when somebody shouted that the man was the
assailant, he immediately followed the man and
apprehended him right then and there; at the police
headquarters the man admitted to him that he had
 long planned to kill the victim and that, the plotter
was Eugenio Lagarto, Jr., herein appellant. (TSN,
October 18, 1983, pp. 22-28,).
The prosecution likewise presented the following evidence:
(a) Case Record of Criminal Case No. 1473 entitled
"People vs. Eugenio Lagarto, Jr." showing that
appellant had been convicted by final judgment of
homicide. (Exhibit "A" to "A-1 a");
(b) Death Certificate of deceased Reynaldo Aducal
(Exhibit "B");
(c) Fan knife (Exhibit "D");
(d) Extra-judicial confession of appellant (Exhibit "C"
to "C-4"), which discloses the following:
07. Question: Do you know Reynaldo
Aducal personally?
Answer: Not so much, sir, but he was the
one who stabbed my brother Pablito last
1980.
08. Question: What was the result when
Reynaldo Aducal stabbed your brother
Pablito?
Answer: As a result, my brother Pablito was
hospitalized.
09. Question: Why did you stab to death
Reynaldo Aducal?
Answer: I stabbed him to death sir, as a
revenge or retaliation for his stabbing of my
brother Pablito.
10. Question: According to what you have
said Reynaldo Aducal had stabbed your
brother Pablito in 1980. Do you mean to say
that since 1980 up to May 25, 1983 you had
been planning to avenge your brother by
killing Reynaldo?
Answer: Yes, sir.
161
(p. 2, Exhibit "C")
Based on the appellant's plea of guilty and the evidence
adduced, the trial court rendered judgment, the dispositive
portion of which reads:
WHEREFORE, the Court accepts his plea and declares
accused, Eugenio Lagarto y Getalado guilty beyond
reasonable doubt as principal of the crime of Murder
defined and penalized in Article 248 of the Revised
Penal Code, as charged in the information,
appreciating in his favor the mitigating circumstance
of spontaneous plea of guilty which is offset by the
aggravating circumstance of evident premeditation,
the Court hereby sentences said accused to suffer
the extreme penalty of DEATH with all the
accessories provided for in Art. 40 of the Revised
Penal Code.
The accused is hereby ordered to indemnify the
heirs of Reynaldo Aducal in the amount of
P12,000.00 and to pay the costs.
SO ORDERED.
(Decision, p. 5; Rollo, p. 20)
The imposition of the supreme penalty of death warrants an
automatic review by this Court. However, the penalty of
Death had been changed to reclusion perpetua in accordance
with the provision of Section 19(l), Article III of the 1987
Constitution.
The counsel de oficio recommends that the sentence be
modified, contending that:
I. THE LOWER COURT ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCE OF EVIDENT
PREMEDITATION AGAINST THE ACCUSED.
II. THE LOWER COURT LIKEWISE ERRED IN
APPRECIATING THE AGGRAVATING CIRCUMSTANCE
OF TREACHERY AGAINST THE ACCUSED; AND
III. CONSEQUENTLY, THE LOWER COURT ERRED IN
SENTENCING THE ACCUSED TO SUFFER THE
EXTREME PENALTY OF DEATH."
 (Brief for Accused-Appellant, p. 4; Rollo, p. 1
1 8)
It is a well-established rule that a plea of guilty,
besides being a mitigating circumstance, is a judicial
confession of guilt—an admission of all the material
facts alleged in the information, including the
aggravating circumstances. (People vs. Ariola, 100
SCRA, 523) To be considered a true plea of guilty, it
must be made by the accused freely, voluntarily and
with full knowledge of the consequences and
meaning of his act. It must be made unconditionally.
(People vs. Comendador, 100 SCRA 155).
In the case at bar, the trial court exerted its utmost
effort to be extra solicitous in seeing to it that the
accused understood, the meaning and importance of
his plea. Thus,
Q Do you realize the import and
consequences of your having entered the
plea of guilty?
A Yes, your Honor.
xxx xxx xxx
Q Now, the Court would repeat to you that
you have entered the plea of guilty to a
most grievous offense?
A Yes, your Honor.
Q For having entered a plea of guilty to the
present crime of murder for the killing of
Reynaldo Aducal you are therefore
submitting the case without presenting
your own evidence, do you realize that?
A Yes, your Honor.
Q And despite this advise and admonition
to you by the court, do you still insist on
entering a plea of guilty to the crime as
charged?
A Yes, your Honor.
162
Q The Court will advise you that in this kind
of offense which is a crime of murder there
is only one possible penalty and the court
has no other recourse but to impose it, that
of death, do you realize that?
A Yes, your Honor.
(Translated in the dialect known to the accused)
(TSN, October 11, 1983, pp. 2-4).
The trial court was not remiss in its obligation to warn the
accused of the important consequences of his plea. The
possibility that death might be imposed should have warned
the accused to protect his interest: even an ordinary
unlettered man fears death. And despite the thought of
losing his life, the accused pleaded guilty. We are convinced
that the guilt of the accused has been proved beyond
reasonable doubt in the light of overwhelming evidence
presented by the prosecution, fully corroborated and
substantiated by the plea of guilty of the accused.
The only issue before Us is whether or not the trial court
correctly appreciated the existence of recidivism and the
qualifying circumstances of evident premeditation and
treachery.
Section 5, Rule 118 of the old Rules of Court provides that
"Where the defendant pleads guilty to a complaint or
information, if the trial court accepts the plea and has
discretion as to the punishment for the offense, it may hear
witnesses to determine what punishment shall be imposed."
(emphasis supplied). The trial court in a criminal case may
sentence a defendant who pleads guilty to the offense
charged in the information, without the necessity of taking
testimony. (US vs. Talbanos, 6 Phil. 541). Yet, it is advisable
for the trial court to call witnesses for the purpose of
establishing the guilt and the degree of culpability of the
defendant. (People vs. Comendador, supra) The present
Revised Rules of Court, however, decrees that where the
accused pleads guilty to a capital offense, it is now mandatory
for the court to require the prosecution to prove the guilt of
the accused and his precise degree of culpability, with the
accused being likewise entitled to present evidence to
prove, inter alia, mitigating circumstances (See People vs.
Camay, 152 SCRA 401; Section 3, Rule 116 of Rules of Court).
In the case at bar, the trial court directed the prosecution to
present evidence for the purpose of establishing the guilt and
degree of culpability of the defendant.
We find, as the trial court found, that the accused is a
recidivist. A recidivist is one who, at the time of his trial for
one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of the
Revised Penal Code. Herein accused had been convicted of
the crime of homicide in Criminal Case No. 1473 before the
trial of the present Criminal Case No. 1566. The former
counsel de oficio of herein accused alleged that the judgment
in Criminal Case No. 1473 was rendered on September 15,
1983, hence when the accused was arraigned on October 11,
1983 for Criminal Case No. 1566 he was not a recidivist.
The former counsel de oficio is of the opinion that "the time
of trial" is to be reckoned with the date of the arraignment.
The phrase "at the time of his trial" should not be restrictively
construed as to mean the date of arraignment.
We declared in People vs. Enriquez, 90 Phil. 428, that the
phrase "at the time of his trial for an offense" is employed in
its general sense, including the rendering of the judgment.
In US vs. Karelsen, 3 Phil. 23, We held that the phrase "at the
trial" is meant to include everything that is done in the course
of the trial, from arraignment until after sentence is
announced by the judge in open court. In the case at bar, the
accused was convicted of homicide in Criminal Case No. 1473
on September 15, 1983. There being no appeal, the judgment
therein became final on October 11, 1983. The second
conviction was rendered on October 26, 1983 for Murder.
Hence, it is crystal clear that the accused is a recidivist: the
accused had been convicted by final judgment at the time of
the rendition of the judgment for the second offense.
We find no merit in the finding of the trial court that evident
premeditation and treachery existed in the commission of the
crime. It is a rule that a plea of guilty cannot be held to
include evident premeditation and treachery where the
evidence adduced does not adequately disclose the existence
of these qualifying circumstances (People vs. Gravino, 122
SCRA 123).
Evident premeditation requires proof of the following
requisites: (a) the time when the offender determined to
commit the crime; (b) an act manifestly indicating that he had
clung to his determination; and (c) a sufficient lapse of time
between the determination and the execution of the crime to
163
allow him to reflect upon the consequences of his act and to
allow his conscience to overcome the resolution of his will.
(People vs. Cafe, 166 SCRA 704; People vs. Montejo, 167
SCRA 506).
The statement of the accused, that he had long planned to kill
Reynaldo Aducal in retaliation for the act of Reynaldo Aducal
in stabbing his brother, does not adequately prove the
existence of evident premeditation. It is necessary to
establish that the accused meditated on his intention
between the time it was conceived and the time the crime
was actually perpetrated. Defendant's proposition was
nothing but an expression of his own determination to
commit the crime which is entirely different from
premeditation. (People vs. Carillo 77 Phil. 572). In People vs.
Alde, 64 SCRA 224, We ruled that there is no evident
premeditation where the only evidence to support it is the
statement of the accused that he planned to kill the victim in
1964 when actual stabbing was 1969.
To show premeditation, it is required that the criminal intent
be evidenced by notorious acts evincing the determination to
commit the same. (People vs. Guiyab, 139 SCRA 446). It must
be evident and not merely suspected (People vs. Iturriaga, 88
Phil. 534) or merely thought of or contemplated mentally,
without externalized acts. The finding of the trial court, that
the accused had clandestinely concealed the knife in his body
away from the searching eye of the prison guards which
showed the deliberate intent of the accused, is not borne out
by the records. Perusal of the records does not show that the
accused deliberately planned the killing through external
acts. The finding of facts by the trial court should not be
based on mere assumptions; there must be proof that such
facts exist.
In order that treachery may be appreciated, it is necessary to
prove the manner in which the victim was
attacked.1âwphi1Treachery can in no way be presumed but
must be fully proved. Where there are merely indications that
the attack was sudden and unexpected, but there are no
precise data on this point, the circumstance of treachery can
not be taken into account. (People vs. Ariola, supra)
In the case at bar, there is no evidence to show that the
mode of attack was consciously adopted as to insure the
perpetration of the crime and safety from the defense that
the victim might put up. There is an absence of evidence to
show the means employed by assailant and the mode of
attack. Treachery may not be simply deduced from
assumptions; it must be as clearly proved as the crime itself in
order to qualify the crime into murder.

WHEREFORE, the that court's judgment is MODIFIED.

Accused-appellant EUGENIO LAGARTO y GETALADO is hereby
CONVICTED of homicide; appreciating in his favor the
mitigating circumstance of spontaneous plea of guilty which
is offset by the aggravating circumstance of recidivism, the
Court hereby sentences said accused to an indeterminate
penalty of ten (10) years of prision mayor as minimum, to
seventeen (17) years and four (4) months of reclusion
temporal as maximum, and to pay the heirs of Reynaldo
Aducal an indemnity of fifty thousand pesos (P50,000.00).
Costs de oficio.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ.,

concur.

164
Republic of the Philippines 42165
SUPREME COURT
8-1-27 8-1-27 Qualified 6 months 1 8-10-30
Manila
theft, day and P15
NCDE- indemnity
EN BANC
57895

G.R. No. L-48740 August 5, 1942 9-14-35 9-30-35 Estafa, 2 months 1

CFID- day arresto
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 50973 mayor, to
vs. return the
FAUSTINO TOLENTINO Y DE DIOS and LUISA CORPUZ Y bicycle stolen
QUITONG, defendants. or its value
FAUSTINO TOLENTINO Y DE DIOS, appellant. P40, and
additional
Crispin Oben for appellant. penalty of 2
Assistant Solicitor-General Enriquez and Solicitor Kapunan, Jr. years 4
for appellee. months 21
days ofprision
OZAETA, J.: correccional,
and costs.
In the municipal court of Manila, where this action was
commenced, as well as in the Court of First Instance, to which The trial court sentenced the appellant under paragraph 5 (b)
it was appealed, both of the above-named defendants of article 62 of the Revised Penal Code, as if this were only his
pleaded guilty to the charge of theft of seven shirts valued at fourth and not his fifth conviction. The Solicitor General
P14 belonging to one Cosme Famorca. Both being, recidivists, recommends the affirmance of that sentence, on the theory
were sentenced in the Court of First Instance to suffer two that appellant's fourth previous conviction alleged in the
months and one day of arresto mayor and to pay the information should bee disregarded because the date of his
corresponding civil indemnity to the offended party. Faustino release in connection therewith was not shown. On the other
Tolentino y de Dios was further sentenced to suffer an hand counsel for the appellant, on the basis of the trial
additional penalty of six years and one day of prision court's implied finding that this is appellant's fourth
mayor for habitual delinquency. He alone appealed to this conviction, contends that appellant should be sentenced
Court. under paragraph 5 (a) of article 62, as if the present were
only his third conviction, on the ground that the first
The only question raised by the appellant is the correctness conviction should be taken circumstance and should be
of the additional penalty. The pertinent allegation of the disregarded as an element of habitual, delinquency.
information is that the accused Faustino Tolentino y de Dios
is a habitual delinquent, he having been convicted of the We cannot uphold appellant's contention. Under his theory
crimes of theft and estafa by final judgments rendered by an accused cannot be sentenced for habitual delinquency
competent court, as follows: unless he has had at least three previous convictions, because
the first conviction has to be taken only as an aggravating
Date of Date of Crime Sentence Date of circumstance and has to be disregarded for the purpose of
commission sentence release determining habitual delinquency. That, we think, would be
unwarranted interpretation of the Habitual Delinquency Law
10-13-25 Qualified 6 months and 3-18-26
(paragraph 5 of article 62 of the Revised Penal Code), which
theft, P3 indemnity
reads as follows:
MCDE-
16887
5. Habitual delinquency shall have the following
10-29-26 10-30-26 Theft, 3 months and 1-20-27 effects:
NCDE - 1 day

165
 (a) Upon a third conviction the culprit shall be
sentenced to the penalty provided by law for the last
crime of which he be found guilty and to the
additional penalty of prision correccional in its
medium and maximum periods:
(b) Upon a fourth conviction the culprit shall be
sentenced to the penalty provided for the last crime
of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium
period; and
(c) Upon fifth or additional conviction, the culprit
shall be sentenced to the penalty provided for the
last crime of which he be found guilty a guilty to the
additional penalty of prision mayor in its maximum
period to the reclusion temporal in its minimum
period.
Notwithstanding the provisions of this article, the
total of the penalties to be imposed upon the
offender in conformity herewith, shall in no case
exceed 30 years.
For the purposes of this article, a person shall be
deemed to be habitual delinquent if within a period
of ten years from the date of his release or last
conviction of the crimes of robo, hurto, estafa,
or falsificacion, he is found guilty of any of said
crimes a third time or oftener.
A habitual delinquent is necessarily a recidivist, and in
imposing the principal penalty upon him the aggravating
circumstance of recidivism has to be taken into account. In
fixing the penalty provided by law for the last crime " as
required in paragraph 5 (a) (b), and (c) of article 62 of the
Revised Penal Code, the court cannot disregard articles 14 (9)
and Revised Penal Code, which respectively define recidivism
as an aggravating circumstance and lay down the rule for the
application of aggravating and mitigating circumstances. We
reaffirm the holding of this Court in People vs. Melendez, 59
Phil., 154; People vs. Espina, 62 Phil., 607; and the People vs.
De Jesus, 63 Phil., 760, as a correct interpretation of the
Habitual Delinquency Law. However, for the purpose of fixing
the additional penalty, recidivism cannot be taken as an
aggravating circumstance for the reason it is inherent in
habitual delinquency (People vs. de Jesus, supra).
166
Neither can we accept the recommendation for affirmance
made by the Solicitor General on the theory that the present
is appellant's fourth conviction. We cannot disregard his
previous fourth conviction alleged in the information solely
because the date of his release in connection therewith has
not been shown. It appearing that he was sentenced for the
fourth time on September 30, 1935, to suffer two months
and done day of arresto mayor plus an additional penalty of
two years, four months, and twenty-one days of prision
correctional, we can readily see that he must have been
released in connection therewith less than ten years previous
to August 13, 1941, the date of the commission of the offense
complained of in the present case. The stand taken by the
trial court and the Solicitor General is untenable because if
appellant's fourth previous conviction be disregarded, he
could not be sentenced to any additional penalty as a
habitual delinquent, his previous third conviction and release
having taken place more than ten years prior to August 13,
1941.
It results that this is appellant's fifth conviction, and
accordingly, he must be sentenced under paragraph 5 (c) of
article 62 to the additional penalty of prision mayor in its
maximum period to reclusion temporal in its minimum
period. This penalty must be imposed in its minimum degree
because of the mitigating circumstance of plea of guilty.
Wherefore, with the modification that the appellant Faustino
Tolentino y de Dios shall suffer an additional penalty of ten
years and one day of prision mayor, the sentence appealed
from is affirmed, with costs. So ordered.
Yulo, C.J., Paras and Moran, JJ., concur.
Separate Opinions
BOCOBO, J., dissenting:
I am constrained to dissent from the majority opinion which,
upon the fifth conviction of the accused, considers recidivism
as an aggravating circumstance in fixing the principal penalty,
despite the fact that, in imposing the additional penalty for
habitual delinquency, previous conviction is also counted. In
this case, none of the conviction prior to the fifth should be
deemed an aggravating circumstance of recidivism in fixing
the principal penalty, which should therefore be arresto
mayor in its minimum degree, or one month and one day, in
view of the plea of guilty.
Article 14 paragraph 9 and 10 of the Revised Penal Code
provides as follows:
ART. 1. Aggravating circumstances. — The following
are aggravating circumstances:
xxx xxx xxx
9. The accused is a recivist.
A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final
judgment of another crime embraced in the same
title of this Code.
10. That the offender has been previously punished
for an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it
attaches a lighter penalty.
and Article 62, paragraph 5 of the same Code reads:
ART. 62. Effect of the attendance of mitigating or
aggravating circumstances and of habitual
delinquency. — Mitigating or aggravating
circumstances and habitual delinquency shall be
taken into account for the purpose of diminishing or
increasing the penalty in conformity with the
following rules:
xxx xxx xxx
5. Habitual delinquency shall have the following
effects:
(a) Upon a third conviction the culprit shall be
sentenced to the penalty provided by law for the last
crime of which he be found guilty and to the
additional penalty of prision correctional in its
medium and maximum periods;
(b) Upon a fourth conviction the culprit shall be
sentenced to the penalty provided for the last crime
of which he be found guilty and to the additional
penalty of prision mayor in its minimum and medium
periods; and
(c) Upon a fifth or additional conviction, the culprit
shall be sentenced to the penalty provided for the
167
last crime of which he be found guilty and to the
additional penalty of prision mayor in its maximum
period of reclusion temporal in its minimum period.
Notwithstanding the provisions of this article the
total of the two penalties to be imposed upon the
offender, in conformity herewith, shall in no case
exceed 30 years.
For the purposes of this article, a person shall be
deemed to be habitual delinquent, if within a period
of ten years from the date of his release or last
conviction of the crimes of robo, hurto, estafa,
or falsificacion, he is found guilty of any of said
crimes a third time or oftener.
From the above provisions it can be seen that the Revised
Penal Code recognizes three situations in which offenders
who are convicted more than once find themselves, namely,
reiteration, recidivism and habitual deliquency. Reiteration
refers to any crime which is not in the same title of the
Revised Penal Code, recidivism to crimes in the same title of
the Code, and habitual delinquency to robbery, theft and
estafa, and falsification. In reiteration, the number of
previous punishments is unimportant provided there has
been at least one if the law attaches an equal or greater
penalty, or at least two if the penalty is lighter. In recidivism,
if the previous convictions are of crimes other than robbery,
theft, estafa and falsification, but are embraced in the same
title as the last offense, the number of previous convictions is
also immaterial. But if the previous convictions are of
robbery, etc. the number of the same is important because if
there is only one previous conviction, there is recidivism but if
there have been two or more previous convictions of
robbery, etc., habitual delinquency exists.
Therefore it can be inferred that the law has followed a
logical and general plan in dealing with criminals who commit
robbery, etc., more than once. That plan is that if there is only
who is convicted for the second time is a recidivist, and if
thereafter he does not reform, but commits robbery or
kindred crimes for the third time or oftener, he is a habitual
delinquent. Thus there is first recidivism and then habitual
delinquency. These two conditions are successive and not
simultaneous stages in the life of the criminal in cases of
robbery, etc. Therefore, upon the third, fourth or subsequent
conviction, he is no longer a recidivist but a habitual
delinquent. His first conviction having already been counted
as an aggravating circumstance of recidivism in fixing the
principal penalty when he was convicted for the second time,
it would seem that to consider his first conviction again as an
aggravating circumstance of recidivism in meeting out the
principal penalty when he is found guilty for the third, fourth
fifth or additional times, runs counter to the general scheme
of the law as I construe it and already explained.
I believe therefore that upon the fifth conviction of robbery
or similar crimes, as in the present case, none of the prior
convictions should be considered an aggravating
circumstance of recidivism in laying down the principal
penalty. It is enough that all the four previous convictions are
considered as part of the habitual delinquency and the
proper additional penalty is applied accordingly.
Moreover, it would seem to be unjust, on fifth conviction to
count any one of the previous convictions as an aggravating
circumstance in fixing the principal penalty, because all the
prior convictions are already considered in meeting out the
additional penalty. This interpretation of the law takes into
account the same offense twice at the same time, namely,
first as an aggravating circumstance in imposing the principal
penalty, and then as one of the required previous convictions
in fixing the additional penalty for habitual delinquency. Non
bis in idem. To punish a person twice for the same offense is
frowned upon in this legal maxim.
increase the principal penalty. To do so is tantamount to
saying: "The accused is a dangerous character because he has
been previously convicted of robbery, etc., twice or oftener;
therefore he should get the additional penalty for habitual
delinquency. But he is also a dangerous character because
the first or any other of these same previous convictions for
similar crime means recidivism; therefore, he should also get
a higher penalty because of the aggravating circumstance of
recidivism." It would, however, seem more reasonable to
hold that inasmuch as the more includes the less, the
previous conviction which is the essence of recidivism is
absorbed in the total number of convictions that make up
habitual delinquency. The majority opinion itself admits that
"a habitual delinquent is necessarily a recidivist." If so, why
should he be punished as a recidivist when he is already
punished as a habitual delinquent?

But it is said in the majority opinion that the court cannot

disregard articles 14 (9) and 64 of the Revised Penal Code,
which respectively define recidivism as an aggravating
circumstance and lay down the rule for the application of
aggravating and mitigating circumstances. But these articles
are not disregarded in my view of the question because, as
already set forth there is no recidivism, but habitual Republic of the Philippines
delinquency, on the third or subsequent conviction, of SUPREME COURT
robbery, theft, estafa, or falsification. Manila

Furthermore, penal laws are liberally construed in favor of FIRST DIVISION

the accused. This has not been done in the majority opinion
because it considers the same offense twice. G.R. No. 93436 March 24, 1995

Lastly, the object of article 14, paragraph 9 and article 62, PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
paragraph 5 of the Revised Penal Code is the same: to be vs.
severe on those who manifest criminal tendencies in order to MELCHOR REAL y BARTOLAY, accused-appellant.
curb criminality. The object is already attained when the
additional penalty (which is very heavy compared with the QUIASON, J.:
principal) for habitual delinquency is applied. It is therefore
unnecessary to consider the first or any other previous
conviction as an aggravating circumstance in order to

168
This is an appeal from the decision of the Regional Trial Court,
Branch 44, Masbate, Masbate, in Criminal Case No. 1606
finding appellant guilty of murder.
We affirm with modification, the appealed decision.
I be at the public market, tried to pacify them, saying that they
The information against appellant reads as follows:
That on or about March 11, 1978, in the
morning thereof, at the Poblacion of the
Municipality of Aroroy, Province of
Masbate, Philippines, within the jurisdiction
of this Court, the said accused with intent
to kill, evident premeditation and treachery,
did then and there willfully, unlawfully,
feloniously and criminally attack, assault
and hack with a sharp bolo one Edgardo
Corpus y Rapsing, hitting the latter on the
nape, causing an injury which caused the
death of the said Edgardo Corpus y Rapsing
several days thereafter.
That the accused is a recidivist having been
convicted by the Municipal Court of Aroroy,
in the following cases:
Crime Date of Conviction
1. Ill treatment by Deed —
July 6, 1965
2. Grave Threats — the presence of the public, what did you do, how
November 25, 1968
(Rollo, p. 14).
Upon being arraigned, appellant pleaded not guilty.
After trial, the court convicted appellant and sentenced him
to suffer the penalty of reclusion perpetua and to pay the
heirs of the victim the sum of P30,000.00 and costs.
Hence, this appeal.
II
169
At about 9:00 A.M. on March 17, 1978, in the public market
of Aroroy, Masbate, appellant and Edgardo Corpus, both
vendors, engaged in a heated argument over the right to use
the market table to display their fish.
Moreno de la Rosa, the Municipal Mayor, who happened to
were arguing over trivial matters.
The two protagonists momentarily kept their peace but after
awhile Corpus raised his voice again and said something to
appellant. The latter, in a soft voice, uttered "SOBRA NA INA
NA IMO PAGDAOGDAOG" (You are being too oppressive).
When Corpus kept on walking to and fro near the disputed
fish table, appellant started to sharpen his bolo while
murmuring to himself. Once Corpus turned around with his
back towards appellant, the latter hacked him on the nape.
The blow caused Corpus to collapse. He was rushed to a
medical clinic. When asked by his wife as to who hacked him,
he answered "Melchor Real."
A police investigator went to the clinic to take the dying
declaration of Corpus, who said that it was appellant who
stabbed him. Corpus died two days later.
Appellant admitted hacking Corpus but claimed that he did so
out of humiliation and anger when the victim threw his fish in
the presence of so many people.
He testified as follows:
Q. When Edgardo Corpus was lambasting you in
did you feel?
A. I got angry.
Q. And what did you do?
A. So I hacked him.
Q. Was he hit?
A. Yes, Sir.
Q. In what part of his body was he hit?
A. At the right neck.
 Q. Did you admit to the authorities that it was
you who hacked Edgardo Corpus?
A. Yes, sir.
On cross-examination, he again admitted his guilt.
Q. And when this Edgardo Corpus turn (sic) his
back, you immediately hacked him on his neck?
A. Yes, sir ( TSN, July 9, 1986, pp. 6-8; Emphasis
supplied).
III
Before us, appellant argues that the crime committed was
only homicide and not murder and that he is entitled to two
mitigating circumstances: namely, passion and obfuscation
and vindication of a grave offense.
We agree with appellant that the offense committed was
homicide. He is entitled to the benefit of the doubt as to
whether he acted with alevosia when he attacked the victim.
As a rule, a sudden attack by the assailant, whether frontally
or from behind, is treachery if such mode of attack was cooly
and deliberately adopted by him with the purpose of
depriving the victim of a chance to either fight or retreat. The
rule does not apply, however, where the attack was not
preconceived and deliberately adopted but was just triggered
by the sudden infuriation on the part of the accused because
of the provocative act of the victim (People v. Aguiluz, 207
SCRA 187 [1992]). This is more so, where the assault upon the
victim was preceded by a heated exchange of words between
him and the accused (People v. Rillorta, 180 SCRA 102
[1989]). In the case at bench, the assault came in the course
of an altercation and after appellant had sharpened his bolo
in full view of the victim. Appellant's act of sharpening his
bolo can be interpreted as an attempt to frighten the victim
so the latter would leave him alone. It was simply foolhardy
for the victim to continue walking to and fro near appellant in
a taunting manner while the latter was sharpening his bolo.
The suddenness of the attack does not, by itself, suffice to
support a finding of alevosia where the decision to attack was
made peremptorily and the victim's helpless position was
accidental (People v. Ardisa, 55 SCRA 245 [1974]).
Appellant also claims that he is entitled to two mitigating
circumstances: namely, vindication of a grave offense and
170
passion and obfuscation. The peculiarity of these two
mitigating circumstances is that they cannot be applied at the
same time if they arise from the same facts or motive.
If appellant attacked his victim in the proximate vindication of
a grave offense, he cannot successfully claim in the same
breath that he was also blinded by passion and obfuscation.
At most, only one of two circumstances could be considered
in favor of appellant (People v. Yaon, Court of Appeals, 43
O.G. 4142 cited in I Reyes, Revised Penal Code [1981]).
The act of the victim in berating and humiliating appellant
was enough to produce passion and obfuscation, considering
that the incident happened in a market place within full view
and within hearing distance of many people.
The trial court held, and the Solicitor General agreed, that the
attendant aggravating circumstance was reiteracion and
not reincidencia as alleged in the information. The trial court
and the Solicitor General are in error.
According to the information charging appellant of murder
and the evidence, the accused was previously convicted of ill-
treatment by deed on July 6, 1965 and grave threats on
November 25, 1968.
In recidivism or reincidencia, the offender shall have
been previously convicted by final judgment of another crime
embraced in the same title of the Revised Penal Code
(Revised Penal Code, Art. 14[g]). In reiteracion, the offender
shall have been punished previously for an offense to which
the law attaches an equal or greater penalty or for two or
more crimes to which it attaches a lighter penalty (Revised
Penal Code, Art. 14[10]). Unlike in reincidencia, the offender
in reiteracion commits a crime different in kind from that for
which he was previously tried and convicted (Guevarra, Penal
Sciences and Philippine Criminal Law 129 [1974]).
Appellant was previously convicted of ill-treatment by deed
(Revised Penal Code, Art. 266, Title Eight) and grave threats
(Revised Penal Code, Art. 282, Title Nine). He was convicted
of homicide in the instant criminal case (Revised Penal Code,
Art. 249, Title Eight). Inasmuch as homicide and ill-treatment
by deed fall under Title Eight, the aggravating circumstance to
be appreciated against him is recidivism under Article 14[g]
rather than reiteracionunder Article 14(10) of the Revised
Penal Code.
There is no reiteracion because that circumstance requires Office of the Solicitor General Antonio P. Barredo, Assistant
that the previous offenses should not be embraced in the Solicitor General Antonio A. Torres and Solicitor Lolita O. Gal-
same title of the Code. While grave threats fall in title (Title lang for plaintiff-appellee.
Nine) different from homicide (Title Eight), Potenciano Villegas, Jr. as counsel de officio for defendants-
still reiteracion cannot be appreciated because such appellants.
aggravating circumstance requires that if there is only one
prior offense, that offense must be punishable by an equal or PER CURIAM:
greater penalty than the one for which the accused has been
convicted. Likewise, the prosecution has to prove that the This is an automatic review of the decision dated September
offender has been punished for the previous offense. There is 25, 1965 of the Court of First Instance of Davao in criminal
no evidence presented by the prosecution to that effect. case 8495 imposing the death penalty on Nicolas Layson,
Cezar Ragub, Cezar Fugoso and Joventino Garces.
Appellant is convicted of homicide, appreciating in his favor
the mitigating circumstance of passion and obfuscation, On January 17, 1964 when these four accused stabbed Regino
which is offset by the aggravating circumstance of recidivism. Gasang to death, they were inmates of the Davao Penal
Colony serving sentences of conviction for the following
WHEREFORE, the judgment of the trial court is AFFIRMED crimes:
with the MODIFICATION that appellant is convicted of the
crime of homicide and sentenced to an indeterminate penalty
Nicolas — kidnapping with
of TEN (10) YEARS of prision mayor as minimum to
Layson robbery, homicide,
SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion
homicide and theft;
temporal as maximum. The indemnity to be paid to the heirs
of the victim is increased to P50,000.00.
Cezar — frustrated murder
Ragub and homicide;
SO ORDERED.

Cezar — robbery in an
Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
Fugoso inhabited house and
theft;

Joventino — robbery hold-up

Garces and robbery in an
uninhabited house.

In the early morning of that hapless day, at about 4:45

o'clock, the four accused, armed with bladed weapons,
Republic of the Philippines entered the cell where the unsuspecting victim, prisoner
SUPREME COURT Regino Gasang, was. Layson locked the door of the room.
Manila Without warning and acting in concert they then swiftly took
turns in stabbing Gasang. They thereafter barricaded
EN BANC themselves, refusing to surrender to the trustees who had
come to the scene of the crime, agreeing to surrender only to
G.R. No. L-25177 October 31, 1969 Vicente Afurong, the supervising prison guard. Afurong
arrived, identified himself, and assured them of their safety,
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, whereupon they handed their weapons through the hole of
vs. the barricaded door and surrendered themselves.
NICOLAS LAYSON, CEZAR RAGUB, CEZAR FUGOSO and
JOVENTINO GARCES, defendants-appellants. Gasang died shortly after being brought to the prison
hospital. Death was caused by severe internal and external

171
hemorrhage and shock, all secondary to multiple stab
wounds.
Layson, Ragub and Fugoso admitted that they killed Gasang
because the latter urinated on their coffee cups a number of
times. Garces stated that he killed Gasang because the latter
spat on him a week before. The four plotted to kill Gasang a
few days prior to the actual slaying.
On March 25, 1964 all the accused were indicted for the
crime of murder. The information recites:
The undersigned accuses Nicolas Layson, Cezar
Ragub, Cezar Fugoso and Joventino Garces of the
crime of Murder, under Art. 248, in relation to Art.
160, of the Revised Penal Code, committed as
follows:
That on or about January 17, 1964, in the Davao
Penal Colony, Municipality of Panabo, Province of
Davao, Philippines, and within the jurisdiction of this
Court, the above-mentioned accused, while then
being convicts serving in the said Davao Penal
Colony their corresponding sentences of conviction
by reason of final judgment imposed upon them,
conspiring and confederating together and helping
one another, armed with sharp-pointed instruments,
with treachery, evident premeditation and abuse of
superior strength, and with intent to kill, did then
and there wilfully, unlawfully and feloniously attack,
assault and stab with said weapons Regino Gasang,
their co-inmate in the said Colony, thereby inflicting
upon him serious injuries which caused his death;
with the aggravating circumstances of (1) recidivism
with respect to the accused Nicolas Layson and
Cezar Ragub, and (2) all of them with two or more
prior convictions.
Upon arraignment, all the four accused, assisted by
counsel de officio, freely and spontaneously pleaded guilty.
Notwithstanding the plea of guilty, the court a quo proceeded
to receive testimony because of the gravity of the offense. On
September 30, 1965 the court rendered its decision, the
dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused guilty
beyond reasonable doubt as principals of the crime
of murder, defined and penalized under Article 248
of the Revised Penal Code, with the mitigating
172
circumstance of plea of guilty in favor of all of them
and the aggravating circumstances of recidivism and
having been previously punished for two or more
crimes to which the law attaches a lighter penalty
with respect to the accused Nicolas Layson and
Cezar Ragub, the aggravating circumstance of having
been punished with two or more offenses to which
the law attaches a lighter penalty with respect to the
accused Cezar Fugoso and Joventino Garces and the
aggravating circumstances consisting of any two of
the qualifying circumstances alleged in the
information which are treachery, evident
premeditation and abuse of superior strength for
one is sufficient to qualify the crime to murder and
the special aggravating circumstance of having
committed the crime charged while serving the
penalty imposed upon them for previous offenses as
regards all the accused and conformably with Article
160 of the Revised Penal Code, hereby sentences all
of them to DEATH, to indemnify jointly and severally
the heirs of the deceased Regino Gasang in the
amount of Six Thousand Pesos (P6,000.00) without
subsidiary imprisonment in case of insolvency by
reason of the penalty imposed and to pay the costs
proportionately.
For the purposes of this review, suffice it to consider, on the
one hand, the aggravating circumstances of evident
premeditation and treachery and the special aggravating
circumstance of quasi-recidivism, and, on the other, the
mitigating circumstance of plea of guilty.
We reject the recommendation of the Solicitor General that
the mitigating circumstance of passion and obfuscation be
considered in favor of all the accused. For this circumstance
to exist, it is necessary that the act which gave rise to the
obfuscation be not removed from the commission of the
offense by a considerable length of time, during which period
the perpetrator might recover his normal equanimity.1
Three of the accused admitted that they harbored ill-feeling
against Gasang because the latter urinated on their coffee
cups several times, all these taking place at least ten days
before the actual slaying. Gasang spat on Garces a week
before the day of the killing. All of the accused plotted to kill
Gasang a few days before January 17, 1964. In the light of
these circumstances, it is evident that sufficient time had
elapsed during which the accused regained their equanimity.
They moved their evil scheme forward to consummation
after obtaining weapons from their fellow inmates whose aid
they had solicited. The aforenarrated circumstances negate
the presence of passion and obfuscation; upon the contrary,
they prove the attendance of the aggravating circumstance of
evident premeditation.
Treachery attended the commission of the crime. The
necropsy report (exh. I) and the diagram (exh. J), plus the
testimony of Dr. Guillermo de Guzman, conclusively prove
that the victim was killed in a manner insuring utter
suddenness and complete surprise in the execution of the
offense, with resultant incapability of the victim to offer
resistance. That there was abuse of superior strength would
suffice to qualify the crime to murder, but this circumstance
must be considered as absorbed in treachery.2
Treachery qualifies the killing to murder;3 evident
premeditation becomes a mere generic aggravating
circumstance4 which is offset by the mitigating circumstance
of plea of guilty. A qualifying circumstance not only gives the
crime its proper and exclusive name but also places the
author thereof in such a situation as to deserve no other
penalty than that specially prescribed for said crime. 5
respective sentences at the time of the commission of the
murder.
Concurrence in the grim view that we take of this case is
given by Attorney Potenciano Villegas, Jr., counsel de
officio for the four accused, who unqualifiedly recommends
affirmance of the judgment a quo.
It is indeed a lethal hand that pens affirmance of a death
sentence, but ours is the inescapable duty to enforce the
inexorable mandate of the law.
ACCORDINGLY, the judgment a quo imposing the death
penalty on Nicolas Layson, Cezar Ragub, Cezar Fugoso and
Joventino Garces, is affirmed. The indemnification to the
heirs of the victim, Regino Gasang, is hereby increased to
P12,000,7 to be paid jointly and severally by the four accused.
Costs de officio.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Fernando and Teehankee, JJ.,concur.
Barredo, J., took no part.

The special aggravating circumstance of quasi-recidivism (art.

160, Rev. Penal Code) was correctly considered against all the
accused, who, at the time of the commission of the offense,
were undoubtedly serving their respective sentences for
previous convictions. Quasi-recidivism has for its effect the
punishment of the accused with the maximum period of the
penalty prescribed by law for the new felony, and cannot be
offset by an ordinary mitigating circumstance.6

When they pleaded guilty to the charge of murder, all the

accused admitted all the material facts and circumstances
alleged in the information. The crime of murder is punished
with reclusion temporal in its maximum period to death.
Because of the attendance of the special aggravating
circumstance of quasi-recidivism, this Court is left with no
alternative to affirming the death penalty imposed by the
court a quo.

It was error for the trial judge to consider against the accused
the aggravating circumstance of having been previously
punished for two or more crimes to which the law attaches
lighter penalties because the said aggravating circumstance
of "reiteracion" requires that the offender against whom it is
considered shall have served out his sentences for the prior
offenses. Here all the accused were yet serving their

173
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44988 October 31, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CANUTO BERNAL, defendant-appellant.
Juan M. Ladaw for appellant.
Acting Solicitor-General Melencio for appellee.
IMPERIAL, J.:
The accused was charged with the crime of theft, the
information alleging that, aside from the presence of the
aggravating circumstance of nocturnity, the accused is an
habitual delinquent because he had been convicted, prior to
the commission of the offense at bar, thrice of the same
crime of theft. The accused pleaded not guilty, but the court,
after trial, found him guilty as charged, and sentenced him to
four (4) months and one (1) day of arresto mayor, to pay the
accessories of the law, to return the three stolen roosters to
Mariano de Leon or to indemnify the latter the value thereof
in the sum of P3, and to pay the costs. As an habitual
delinquent, because previously convicted three times of the
same crime of theft, he was sentenced to an additional
penalty of seven (7) years of prision mayor.
The facts are not disputed by the defense. It has been
established that late in the evening of October 11, 1935, the
accused, without the owner's consent, took three gamecocks
belonging to Elias Piamonte valued at P50, and three other
roosters belonging to Mariano de Leon valued at P3. Only two
of the gamecocks of Elias Piamonte, valued at P30, were
recovered. It has equally been established that the accused
had been thrice convicted of the crime of theft; The first time
on April 25, 1935 by the justice of the peace court of San
Pablo, Laguna; the second time on June 24, 1935 by the
justice of the peace court of San Pablo, Laguna; and third
time on October 19, 1935, by the justice of the peace court of
Tanauan, Batangas.
The defense assigns only one error of law in the judgment, to
wit, the accused an habitual delinquent under subsection (b)
of paragraph 5 of article 62 of the Revised Penal Code, and in
174
imposing upon him the penalty therein provided. It contends
that the applicable provision is that found in subsection (a) of
the aforesaid codal paragraph and article, because in truth
and according to the decisions, the accused has no more than
two prior convictions, the third being the one at bar.
Elaborating on this contention, the defense alleges that the
conviction on October 19, 1935, for the crime of theft should
not be counted against the accused because it took place
after the commission of the offense at bar on the 11th of the
said month and year. The Solicitor-General in his brief agrees
with the defense, and recommends that the penalty fixed in
subsection (a) of paragraph 5 of article 62 of the Revised
Penal Code be imposed upon the accused. We hold that the
third conviction, having taken place after the commission of
the last offense with which the accused is now charged,
should not be reckoned with in determining habitual
delinquency and the additional penalty to be imposed, upon
the authority of the decisions of this court in People vs.
Santiago (55 Phil., 266), People vs. Ventura (56 Phil., 1, 5),
and People vs. Reyes (G.R. Nos. 43904, 43905, October 18,
1935 [62 Phil., 966).
The aggravating circumstance of recidivism should be taken
into account in the commission of the crime of theft in view
of the established fact that the accused was thrice convicted
of the said crime prior to the trial of this case on November 4,
1935 (art. 14, par. 9, Revised Penal Code). For this reason, the
penalty imposable should be six (6) months and one (1) day
of prision correccional. As an habitual delinquent, because he
was twice convicted of the crime of theft prior to the
commission of the offense at bar (art. 62, last paragraph of
the Revised Penal Code), he should be sentenced to the
additional penalty of three (3) years of prision
correccional pursuant to subsection (a) of paragraph 5 of the
said article.
The question arose, in the course of our deliberation on this
case, of whether or not in instances where the accused turns
out to be an habitual delinquent the aggravating
circumstance of recidivism, when alleged and proved, should
be taken into account in fixing the penalty applicable for the
commission of the principal offense, independently of the
additional penalty provided by law for habitual delinquency.
It has been urged that said aggravating should not be
considered, otherwise it would be twice held against the
accused inasmuch as it is necessarily taken into account in
ascertaining whether he is a habitual delinquent or not. The
majority of the court hold to the contrary view, namely, that
recidivism should be reckoned with; hence, the accused is
sentenced to the minimum of the maximum penalty fixed by
law.
In resolving this question as above set out, the majority of the
court gave heed to the following considerations:
First: This is not the first time that the question has been
submitted to the consideration of the court. In People vs.
Melendrez (59 Phil., 154), and People vs, Espina (62 Phil.,
607), we have already held that in cases similar to the one at
bar, the aggravating circumstance of recidivism should be
taken into consideration, notwithstanding the allegation and
proof that the accused were habitual delinquents and should
accordingly be sentenced to the additional penalty provided
by law; and
Second: It is not correct to assume that recidivism is twice
taken into account when the accused is declared an habitual
delinquent and when it is deemed to aggravate the crime in
fixing the principal penalty to be imposed, because recidivism
as an aggravating circumstance modifying criminal liability is
not an inherent or integral element of habitual delinquency
which the Revised Penal Code considers as an extraordinary
and special aggravating circumstance.
Under the last subsection of paragraph 5 of article 62 of he
Revised Penal Code, a person shall be deemed to be
habitually delinquent, if within a period of ten years from the
date of his release or last conviction of the crime of robbery,
theft, estafa, or falsification, he is found guilty of any of said
crimes a third time or oftener. Paragraph 9 of article 14 of the
Revised Penal Code defines recidivism by stating that it is
committed by a person who, at the time of his trial for one
crime, shall have been previously convicted by final judgment
of another crime embraced in the same title of the Code.
Defining reiteration or habituality paragraph 10 of the same
article provides that it is committed when the offender has
been previously punished for an offense to which the law
attaches at an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty. Reflecting on
these definitions it will be seen that recidivism, viewed as an
aggravating circumstance, is not a factor or element which
necessarily forms an integral part of habitual delinquency. It
will be noted that the elements as well as the basis of each of
these circumstances are different. For recidivism to exist, it is
sufficient that the accused, on the date of his trial, shall have
been previously convicted by final judgment of another crime
embraced in the same title. For the existence of habitual
delinquency, it is not enough that the accused shall have
175
been convicted of any of the crimes specified, and that the
last conviction shall have taken place ten (10) years before
the commission of the last offense. It is necessary that the
crimes previously committed be prior to the commission of
the offense with which the accused is charged a third time or
oftener.
In view of the foregoing, the appealed judgment is modified,
and the accused-appellant is found guilty of the crime of theft
charged in the complaint and sentenced to six (6) months and
one (1) day of prision correccional, to return to the offended
parties the stolen and unrecovered roosters, or in default
thereof to indemnify Elias Piamonte in the sum of P20 and
Mariano de Leon in the sum of P3, with the corresponding
subsidiary imprisonment in case of insolvency, and to an
additional penalty of three (3) years of prision correccional,
with the costs in both instances. So ordered.
Avanceña, C. J., Villa-Real, Diaz, and Laurel, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting in part:
I agree that the appellant is guilty of the crime of theft, but I
am constrained to dissent once more from the opinion of the
majority in so far as it holds that, in the imposition of the
penalty prescribed by law for the crime committed by the
appellant, the aggravating circumstance of recidivism should
be taken into consideration. My views on this point have
already been set forth in my opinion filed in the case
of People vs. Melendrez (59 Phil., 154), but they will perhaps
bear further elaboration.
I maintain that, upon the facts of this case and the law
applicable thereto, the aggravating circumstance of
recidivism should not be taken into consideration in the
imposition of the penalty prescribed by law for the crime of
which the appellant has been found guilty.lâwphi1.nêt
Article 14, paragraph 9, of the Revised Penal Code, defines a
recidivist as follows:
A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final
judgment of another crime embraced in the same
title of this Code.
And article 62, paragraph 5 (c), of the same Code, defines a
habitual delinquent as follows:
For the purposes of this article, a person shall be
deemed to be habitual delinquent, if within a period
of ten years from the date of his release or last
conviction of the crimes of robo, hurto, estafa,
or falsificacion, he is found guilty of any of said
crime, a third time or oftener.
It seems clear from the provisions of law above quoted that
if, within a period of ten years from the date of his release, or
last conviction of the crime of robo, hurto, estafa,
or falsificacion, a person be found guilty of the same crime
for the second time, he would be deemed a recidivist; and if
he be found guilty for the third time or oftener, he would be
deemed a habitual delinquent. The law determines the effect
to be given to one previous conviction, and it also determines
the effect of two or more previous convictions. One previous
conviction merely constitutes the generic aggravating
circumstance prescribed by article 14, paragraph 9, while two
or more previous convictions qualify the crime. The previous
convictions enter into the third or subsequent offense to the
extent of aggravating it, and increasing the punishment. In
other words such previous convictions constitute an essential
element of the aggravated offense. "The previous conviction
enters into the second or third offense to the extent of
aggravating it, and increasing the punishment; and, where it
is sought to impose the greater penalty for a second or third
offense, the previous conviction or convictions, like every
other material fact, must be distinctly alleged in the
indictment. 'When the statute imposes a higher penalty upon
a second and a third conviction, respectively, it makes the
prior conviction of a similar offense a part of the description
and character of the offense intended to be punished; and
therefore the fact of such prior conviction must be charged as
well as proved. It is essential to an indictment that the facts
constituting the offense intended to be punished should be
averred.' And in like manner, when a statute, besides
imposing a higher penalty upon a second or third conviction
than upon the first, provides that any person convicted of
two or more offenses upon the same indictment shall be
subject to the same punishment as if he had been
successively convicted on two indictments, still the second
and third offenses must be alleged in the indictment to be
second and third offenses in order to warrant the increased
punishment." (Clark's Criminal Procedure, p. 204, cited with
approval in People vs. Nayco, 45 Phil., 167.)
176
The same view is expressed by Viada in commenting on
article 533 of the Penal Code of Spain "Tratase aqui del hurto
cualificado, cuya criminalidad ha creido conveniente agravar
el legislador, y, por lo tanto, castigar con penas mas severas,
cuando por los objetos sobre que recae, o por el lugar en que
se comete, o por las circunstancias personales del culpable o
sus relaciones con el perjudicado, se demuestra la mayor
perversidad del primero en la comision de semejante delito.
Algunas de estas circunstancias, como la de ejecutarse el
delito el lugar sagrado, la de intervenir abuso de confianza y
la de ser el culpable reincidente, son ya de por si
circunstancias agravantes genericas de todo delito en que
concurren (nums. 19, 10 y 18 del articulo 10). Aqui son algo
mas; son circunstancias constitutivas, esenciales de los delitos
previstos en este articulo, y por lo tanto, con arreglo al 79, no
cabe apreciarlas al efecto de aumentar la pena en aquel
señalada, la que debera imponerse siempre en el grado
medio, a no concurrir cualquiera otra de las circunstancias
generales de agravacion del art. 10 que no sea de las
expresadas, en cuyo caso procederia la aplicacion de la pena
en el grado maximo con arreglo al num. 3.º del art. 82; o a no
mediar alguna circunstancia atenuante, pues entonces
deberia imponerse al culpable la pena en el grado minimo, en
conformidad a lo dispuesto en el num. 2.º del precipitado art.
82." (Viada, 5th ed. vol. 6, p. 289.)
In United States vs. Campo (23 Phil., 368), this court held that
the existence of the generic aggravating circumstances need
not be alleged in a complaint or information, but if proven at
the trial, they must be taken into consideration in imposing
the penalty. On the other hand, a qualifying circumstance
must be alleged and proved in order that the same may be
taken into consideration. It has also been held that once a
circumstance has been treated as a qualifying circumstance,
it may not again be taken into consideration as a generic
aggravating circumstance.
In those cases wherein, under the provisions of the
Penal Code, the legal designation characterization of
an offense is modified by an allegation set forth in
the complaint or information showing that such
offense had been marked with one of the above-
mentioned generic aggravating circumstances, this
aggravating circumstance when alleged and proven
is treated as a qualifying circumstance, and in that
event, having once been taken into consideration for
the purpose of giving to the acts committed by the
convict a legal qualification or characterization
higher than they would otherwise have had, it should
 not be again taken into consideration as an
aggravating circumstance marking the commission
of this higher offense. (Emphasis supplied.)
In People vs. Nayco, supra, this court held that to convict the
accused as an habitual delinquent, the previous convictions,
like any qualifying circumstance, must be alleged and proved.
Article 533 of the Penal Code of Spain provides:
El hurto se castigara con las penas inmediatamente
superiores en grado a las respectivamente señaladas
en los dos articulos anteriores:
xxx xxx xxx
3.º Si fuere dos o mas veces reincidente.
It will be observed that the reason for not taking into
consideration the second conviction as a generic aggravating
circumstance in the imposition of the penalty prescribed
under article 533 of the Penal Code of Spain, is because the
third or subsequent conviction, together with the previous
ones, constitutes but a single qualifying circumstance. The
same may be said in relation to article 62, paragraph 5, of the
Revised Penal Code. The third or subsequent conviction,
combined with the previous ones, constitutes but a single
qualifying circumstance. In other words, the second
conviction — which generally goes to make up the generic
aggravating circumstance of recidivism — is necessarily
included in the number of convictions required to establish
habitual delinquency.
Recto, J., concur.

Commenting on this article Viada says:

Cuestion 60. Comete uno un delito de hurto, y

resulta haber sido penado anteriormente tres veces
por delito de la misma especie: ¿cabe en este caso
apreciar la circunstancia de esa triple reincidencia,
primero como qualificativa, para elevar la pena al
grado inmediatamente superior, tomando para ello
dos de las tres reincidencias, y segregar la tercera
como agravante generica, para imponer al culpable
dicha para imponer al culpable dicha pena
superior en el grado maximo? El Tribunal Supremo
ha resuelto la negative, fundandose en que con
arreglo a lo prescrito en el art. 533, numero 3.º la
pena del delito de hurto debe ser la inmediatamente
superior en grado a la respectiva del 531, cuando su
autor fuere dos o mas vecesreincidente; siendo
evidente, por lo tanto, que las tres expresadas
reincidencias, y aun cualquiera otras que hubiese
ademas, no pueden constituir sino una sola
circunstancia cualificativa, cuyo efecto es
unicamente el de elevar la pena al grado superior
inmediato; y que la Sala sentenciadora, al dividir y
separar esas tres reincidencias, aplicando dos de
ellas, la una como circunstancia cualificativa y la otra
como generica o comun, infringe la disposicion legal
ultimamente citada, a la vez que la circunstancia
18.a del art. 10 y la regla 3.a del referido Codigo
Penal. (S. de 21 de diciembre de l872, Gaceta de 16
de febrero de l873. Viada, 5th ed., vol. 6, 317.)

177
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