Republic of the Philippines [G]emini car with plate No. NAR-865 L Pil.
’89, belonging to Mary Berba
SUPREME COURT
FIRST DIVISION
G.R. No. 143380. April 11, 2005
OLIMPIO PANGONOROM and METRO MANILA TRANSIT
CORPORATION, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review to annul the Decision dated 29 November
1  2 
1999 of the Court of Appeals in CA-G.R. CR No. 14764, as well as its
Resolution dated 5 May 2000 denying the motion for reconsideration.
3 
The Court of Appeals affirmed in toto the 5 February 1993 Decision of the
4 
Regional Trial Court of Quezon City, Branch 79 in Criminal Case No. Q-
90-11397.
The Charge
On 21 March 1990, Assistant City Prosecutor Rosario U. Barias filed an
Information charging Olimpio Pangonorom ("Olimpio") with reckless
imprudence resulting in damage to property with multiple slight physical
injuries, committed as follows:
That on or about the 10th day of July, 1989, in Quezon City, Philippines
and within the jurisdiction of this Honorable Court, the abovenamed
accused, being then the driver and person in charge of a motor vehicle
(MMTC-passenger bus) with plate No. NVJ-999 TB Pil. ’89, did, then and
there unlawfully and feloniously drive, manage and operate the same
along E. de los Santos Ave., Quezon Avenue – this City, in a careless,
reckless and imprudent manner, by then and there driving the same
without due regard to traffic laws and regulations and without taking the
necessary precautions to prevent accident to person and damage to
property, causing by such carelessness, recklessness and imprudence
said motor vehicle so driven by him to strike and collide with an [I]suzu
and driven by Carlos Berba y Remulla, thereby causing damages in the
total amount of ₱42,600.00, Philippine Currency; as a consequence
thereof said Carlos Berba sustained physical injuries for a period of less
than nine (9) days and incapacitated him from performing his customary
labor for the same period of time and also his passengers namely: Mary
Berba y Matti and Amelia Berba y Mendoza sustained physical injuries
for a period of less than nine (9) days and incapacitated them from
performing their customary labor for the same period of time, thereafter,
abandoned said offended parties without aiding them, to the damage and
prejudice of the said offended parties in such amount as may be awarded
to them under the provisions of the Civil Code.
CONTRARY TO LAW. 5
Arraignment and Plea
When arraigned on 26 June 1990, Olimpio, with the assistance of
counsel, entered a plea of not guilty.
6
The Trial
The prosecution presented five witnesses: (1) Carlos R. Berba; (2) Mary
M. Berba; (3) Amelia Berba; (4) Edward Campos; and (5) Enrico B.
Estupigan.
On the other hand, the defense presented three witnesses: (1) Olimpio
himself; (2) Milagros Garbo; and (3) Nenita Amado.
The facts, as summarized by the trial court, are as follows:
The evidence of the prosecution shows that on July 10, 1989 at around
9:00 P.M. Carlos R. Berba was driving an Isuzu Gemini car bearing Plate
No. NAR-865 L Pil. ’89 belonging to his mother Mary Berba. With him
inside the car were his mother Mary Berba who was seated in front
beside him and his auntie Amelia Berba who was at the back seat. They
were cruising along EDSA coming from the direction of Makati and
headed towards the intersection of EDSA and Quezon Boulevard but
upon nearing 680 Appliances along EDSA, Quezon City, their car was
bumped from behind by MMTC Passenger Bus bearing Plate No. NVJ-
999 TB Pil. ’89 driven by herein accused Olimpio Pangonorom thereby
causing damages to their car which was estimated at ₱42,600.00 (Exhs.
F, F-1). The front and rear portions of their car incurred damages
because by reason of the strong impact at the rear portion of their car, it
was pushed forward and bumped the car in front of it, then it rested near
the island. The bus driven by the accused still travelled a distance of 20
meters from the point of impact. The accused left his bus but they came
to know his name is Olimpio Pangonorom. Their car was a total wreck as
shown in its photographs (Exhs. B and C).
Carlos Berba noticed this bus following them closely at Nepa Q-Mart up
to the point of collision. His car was running along the second lane of
EDSA from the island. The MMTC bus driven by the accused was
running very fast, kept on switching lane until it finally occupied the
second lane and bumped his car. Carlos Berba sustained cuts on his
shoulder and back because of broken glasses and was treated at East
Avenue Medical Center. He incurred ₱1,000.00 for medication (Exhs. G
to G-3). Mary Berba sustained contusion, hematoma and abrasion (Exh.
H). Amelia Berba sustained abrasion on his right elbow (Exh. K). Both
were also treated at East Avenue Medical Center.
Edward Campos and Enrico Bantique Estupigan, passengers of MMTC
Bus driven by the accused explained that their bus was running at 70-80
kph when it swerved to the right to avoid hitting a van stranded at the left
side of the island but in the process it hit and bumped an Isuzu Gemini
car in front of it. The rear portion of the Isuzu Gemini car was smashed
and the front part was also damaged as it hit the Lancer car running
ahead. The bus driver, herein accused, fled from the scene.
It was a rainy day, road was slippery, the rain had just stopped but was
still drizzling.
The defense on the other hand presented accused Olimpio Pangonorom,
Milagros Garbo, Nenita Amado and documents marked as Exhs. 1 to 15
with sub-markings.
Accused Olimpio Pangonorom testified that he was a driver since 1976,
having worked as a truck driver in Mindanao, then employed as driver of
Silangan Transit up to 1981 and from 1981 up to the present is a driver of
Metro Manila Transit. He is a holder of professional driver’s license with
OR No. 15160307 (Exhs. 1, 1-A). On July 10, 1989 he drove MMTC bus
from Monumento to Baclaran and vice-versa. He was driving MMTC bus
between 7:00 – 8:00 P.M. along EDSA headed towards Monumento
when upon reaching infront of 680 Appliances his bus was involved in a
vehicular accident. It was drizzling, his bus was running at a speed of 70
kph along the third lane of EDSA going to Monumento and an Isuzu
Gemini car ahead of him was on his left side running along the second
lane of EDSA at a distance of 30 meters away. When the car was at a
distance of 20 meters away and before reaching the stalled vehicle, it
swerved to the right without signal light, so he blew his horn, stepped on
his brakes, but since the street was downgrade, it was raining and
slippery, his brakes failed to control his bus, thus hit and bumped the
Isuzu Gemini car. He identified the Isuzu Gemini car and damages
sustained by the car in the photograph marked as Exh. C. His bus slided
after he applied his brakes because the street was slippery. He reported
at their garage after the accident, left his vehicle and went back at the
scene with a wrecker. The passengers of the Isuzu car were brought to
the hospital.
The training officer of MMTC, Milagros Garbo, testified on the procedure
of the company in hiring an applicant driver and the requirements to be
submitted by the applicant. An applicant for a driver of MMTC as what
had been done to the accused before he was admitted as company
driver of MMTC must pass an interview, seminars, written examination,
actual driving test, psycho-physical test, road test, line familiarization test,
defensive driving seminar, driver’s familiarization seminar, and traffic
rules and environment seminar. Documents they required to be
submitted by an applicant driver were NBI Clearance, Residence
Certificate, Professional Driver’s License, and Official Receipts of
payment of required fees for driver’s license (Exhs. 1 to 15).
The internal control relative to the supervision of their drivers was
explained by witness Nenita Amado, a transport supervisor of MMTC.
She supervises and gives instructions and recommendations on bus
rules and regulations to their drivers. They have ten (10) comptrollers,
thirty-six (36) dispatchers, seven (7) field supervisors, sixty (60)
inspectors and four (4) service wreckers who helped in the supervision of
the drivers and conductors of MMTC. They have centralized radio that
monitor the activities of their drivers during their travel. Her instructions to
the drivers were to avoid accident, obey traffic rules and regulations and
to be courteous to passengers. 7
On 5 February 1993, the trial court rendered its Decision with the
following dispositive portion:
PREMISES CONSIDERED, the Court finds accused Olimpio
Pangonorom guilty beyond reasonable doubt of the crime of reckless
imprudence resulting in multiple slight physical injuries and sentences
him to suffer an imprisonment of thirty (30) days of arresto menor, to
indemnify the offended parties of the damages incurred by their Isuzu
Gemini car in the sum of ₱42,600.00 and to reimburse the medical
expenses of Carlos R. Berba in the sum of ₱182.50, Amelia Berba in the
sum of P217.50 and Mary Berba in the sum of ₱45.00.
SO ORDERED. 8
Petitioners appealed the trial court’s decision to the Court of Appeals.
The Ruling of the Court of Appeals
The Court of Appeals ruled that the finding that Olimpio drove the
passenger bus in a negligent manner, considering the circumstances of
weather and road condition, is a finding of fact of the trial court that is
entitled to respect. The Court of Appeals stated that it is a settled rule
that factual findings of trial courts are accorded great respect unless it
can be shown that they overlooked some circumstances of substance
which, if considered, will probably alter the result. The Court of Appeals
held that no such circumstance was overlooked in this case.
The Court of Appeals ruled that even if it were true, as Olimpio claimed,
that the car Carlos Berba ("Carlos") was then driving occupied Olimpio’s
lane while the car was 20 meters away, it is a safe distance for a vehicle
to switch lanes. The Court of Appeals held that if only Olimpio did not
drive very fast and considered that the street was downgrade and
slippery, he could have easily avoided the accident by applying his
brakes.
The Court of Appeals also ruled that the testimonies of Edward Campos
("Edward") and Enrico Bantigue, who were passengers of the MMTC bus,
are worthy of credence. The Court of Appeals stated that they are neutral
witnesses who had no motive to testify against Olimpio. They testified
that: (1) the MMTC bus was running at 70-80 kilometers per hour; (2) the
bus swerved to the right to avoid hitting a van stranded at the left side of
the island; and (3) in the process, the bus hit and bumped the Gemini car
ahead of it. Edward further testified that Olimpio earlier overtook another
bus. Edward stated that it was for this reason that the MMTC bus went
into the lane where the stalled van was located. The Court of Appeals
held that the MMTC bus was the one switching lanes.
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, the judgment herein appealed from is hereby AFFIRMED
in toto.
SO ORDERED. 10
On 28 December 1999, petitioners filed with the Court of Appeals a
motion for reconsideration of the assailed decision. Petitioners asserted
that the Court of Appeals erred in finding Olimpio negligent in driving the
subject bus. Petitioners also asserted that Carlos was the one switching
9 lanes and was therefore the one negligent in driving his car. Petitioners
stated that the Court of Appeals erred in not holding that the MMTC was
not subsidiarily liable for Olimpio’s civil liability in the instant case.
Petitioners stated that the testimonies of witnesses Milagros Garbo and
Nenita Amado, as well as Exhibits 1 to 15, proved that the MMTC
exercised due diligence in the selection and supervision of its drivers.11
On 5 May 2000, the Court of Appeals issued a Resolution denying the
12 
motion for reconsideration. With the assailed decision having "amply
discussed, considered and ruled upon" the issues that petitioners raised
in their motion for reconsideration, the Court of Appeals held that there
was no cogent reason for it to reverse the assailed decision. The Court of
Appeals also held that the MMTC was already estopped in assailing the
trial court’s decision considering that the MMTC never appealed the
decision within the reglementary period.
The Issues
Petitioners have presented the following for our consideration:
1. The Court of Appeals gravely abused its discretion in sustaining the
trial court’s findings of facts instead of considering certain facts and
circumstance raised by petitioners that properly cast an element of
reasonable doubt.
2. Whether Estoppel applies to MMTC. 13
The Ruling of the Court
The petition is without merit.
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. 14
Petitioners fault the Court of Appeals for having sustained the trial court’s accelerate. However, instead of slowing down, Olimpio admitted he was
findings of fact. Petitioners assert that the Court of Appeals failed to "running very fast." Thus, Olimpio testified:
consider certain circumstances that would warrant a reversal of the
factual findings of the trial court. Atty. ANTONIO:

Petitioners claim that Carlos’ negligence in switching lanes to avoid Q It was nighttime Mr. Witness, will you tell us whether you were able to
hitting a stranded van caused the collision. Petitioners assert that Carlos see this vehicle you were following?
was negligent because he transferred to the lane where Olimpio was
then driving along without first blinking his signal light and with his car A Yes, sir.
only 20 meters away from the bus. This being so, petitioners assert that
they should not be held responsible for Carlos’ negligence.
Q Will you tell us how did you notice this vehicle?
Petitioners’ assertions have no merit. The issue of whether a person is
A Because I saw its tail light, sir.
negligent is a question of fact. Findings of fact of the Court of Appeals,
15 

when they affirm the findings of fact of the trial court, are binding on this
Court, unless the findings of the trial and appellate courts are palpably Q Before this vehicle you were following reached the place where this
unsupported by the evidence on record or unless the judgment itself is stalled vehicle was, do you know where was this vehicle proceeded?
based on misapprehension of facts. We hold that the Court of Appeals
16 

committed no reversible error in upholding the factual findings of the trial FISCAL:
court.
I think he is incompetent, Your Honor.
Article 365 of the Revised Penal Code states that reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act COURT:
from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform such Sustained.
act, taking into consideration (1) his employment or occupation; (2) his
degree of intelligence; (3) his physical condition; and (4) other Atty. ANTONIO:
circumstances regarding persons, time and place.
Q Before your vehicle reached the place where this stalled vehicle was,
Olimpio is a professional driver who has been in the employ of the MMTC what did you notice if any?
since 1984. As a public utility driver, Olimpio should have as his primary
17 

concern the safety not only of himself or of his passengers, but, also the
safety of his fellow motorists. Considering that it had just rained, it was
still drizzling and the road was slippery when the subject incident took
place, Olimpio should have been more cautious and prudent in driving
18 
A I noticed that the vehicle I was following Isuzu Gemini before reaching
the stalled vehicle suddenly swerved to the right and I was already
approaching, sir.

his passenger bus.

Q Before this Isuzu Gemini car you were following suddenly swerved to
the right, how far were you?
Based on Olimpio’s testimonial admission, he was driving at 70
kilometers per hour. He testified he was familiar with the road. Therefore,
19 

he ought to have known the downhill slope coming from the Nepa-Q A About twenty (20) meters, sir. It suddenly swerved to the right and I
Mart. As the bus was moving downhill, Olimpio should have slowed
20 
was running very fast because it was downward.
down since a downhill drive would naturally cause his vehicle to
Q And when you noticed this Isuzu Gemini suddenly swerved to the right,
what if any did you do?
A I blew my horn and stepped on my brakes, sir. Considering that it was A It was too late, sir, when he noticed that there was a car slowly
raining and slippery I cannot control. cruising EDSA so when he swerved he was very fast so it was too
late to avoid the car. He just braked, the road was slippery so he could
Q And after your were not able to control your vehicle despite the not swerve because the bus might turn over.
precaution you made, what happened?
xxx
A I bumped him, sir. (Emphasis supplied)
21 

Q Mr. Witness, did you notice this stalled vehicle before you reached the
The only conclusion that we can draw from the factual circumstances is place where it was stalled?
that Olimpio was negligent. He was hurrying to his destination and driving
faster than he should have. The fact that after Olimpio stepped on the A No, sir.
brake, the bus still traveled a distance of 20 meters before it finally
stopped, and the car, after it was hit, was thrown 10 to 15 meters Q Even when the lights of the Metro Manila Transit were on, you did not
away, only prove that Olimpio’s bus was running very fast.
22 
notice it?

Olimpio’s claim that Carlos suddenly transferred to his lane to avoid A Actually, sir, he was overtaking another bus so that’s why he did
hitting a van stranded at the left side of the island could hardly carry the not notice this stalled van.
day for him. Olimpio says that the distance between the car and the bus
before the car allegedly swerved to the bus’ lane was 20 meters. Q Who was overtaking another bus?
Therefore, at that point, Olimpio still had the opportunity to avoid the
collision by slowing down or by stepping on the brake. However, what
A MMTC bus, sir, because it stopped at the MMC office near Timog and
Olimpio did was to continue running very fast.
then it overtook another moving bus. He went to the left side overtaking
that bus.
Another telling proof of Olimpio’s negligence is the testimony of Edward,
a passenger of the MMTC bus who was seated at the right front seat
xxx
nearest to the door of the bus. Edward recounted the incident, thus:
23 

Atty. ANTONIO:
Q You said that there was a van parked which the Metro Manila Transit
tried to avoid. Where was that van parked?
Q Are you a driver?
A It was stranded above the middle island of the road, sir.
A Yes, sir.
COURT:
Q And if circumstances similar to that incident that happened, it would be
prudent for you to swerve also, is it not?
Q When you said of the road you are referring to EDSA?
A At that condition, sir, I’d rather brake than swerve, it is slippery.
A Yes, Your Honor.
Q Mr. Witness, will you tell how far was this MMTC bus when it swerved
FISCAL:
in relation to the place where the stalled vehicle was?
Q So when it swerved to avoid hitting the parked van, what happened?
A I guess, sir, it was a few seconds before too late because when it
swerved the bus was already tilting, so it is a matter of seconds.
Atty. ANTONIO:
Q It was a matter of seconds?
A Yes, sir.
Q So if you were in this position stopping would not be sufficient
precautionary measure, was it not?
A Before that, sir, he overtook that bus so if he did not overtake that
bus he would have seen the parked van. Being a driver myself the
way he overtook was dangerous, it was so close that you could not
see the other lane.
xxx
Q Will you please explain Mr. Witness, how this MMTC bus hit the car
when you claimed that the car was running ahead of the bus?
A There was this stalled van and there was this bus, now this was the
Gemini car, this slowed down to avoid also the stalled van, it swerved so
the bus was here running very fast and then noticed the van so it
swerved also and the Gemini here was of course slowed down to avoid
that van, the bus was still running fast then after swerving it was too
late for him to notice that there was this car running slowly by the bus, he
stepped on the brake.
Q Do you mean to say Mr. Witness, that both the Isuzu vehicle and the
MMTC bus were running on the same course?
A Yes, sir. (Emphasis supplied).
24 
Edward’s declarations that "the bus was running very fast" and that
Olimpio did not see the stranded van because he earlier overtook
another bus are clear and categorical. There is no evidence of any ill or
improper motive on Edward’s part that would discredit his testimony. He
was not in any way related to the complainants. Neither was the defense
able to show that some form of consideration induced Edward to testify
for the prosecution. The defense did not even try to rebut Edward’s
testimony.
When there is nothing to indicate that a witness was actuated by
improper motives, his positive and categorical declarations on the
witness stand under solemn oath deserve full faith and credit. 25
Petitioners likewise fault the Court of Appeals for having ruled that the
MMTC is already estopped from assailing the trial court’s decision
considering that the MMTC "never appealed the same within the
reglementary period."
We have carefully gone over the records of this case and found that
when petitioners filed their Notice of Appeal with the trial court on 8
March 1993, the MMTC already appealed the civil aspect of this case.
We quote petitioners’ Notice of Appeal:
The ACCUSED and his employer, Metro Manila Transit Corporation, by
their undersigned counsel, unto this Honorable Court, most respectfully
give notice that they are appealing, as they hereby appeal, the Decision
dated February 5, 1993, which was received on February 23, 1993, to the
Court of Appeals on the ground that the Decision is contrary to the facts,
law and settled jurisprudence.
Metro Manila Transit Corporation likewise interposes an appeal with
respect to the civil aspect of this case because of its subsidiary liability as
employer of the accused under the Revised Penal Code. 26
It is therefore not correct for the Court of Appeals to state in its
Resolution dated 5 May 2000 that the MMTC failed to appeal seasonably
27 
the issue of its alleged "non-subsidiary liability" as Olimpio’s employer.
28 
However, due diligence in the selection and supervision of employees is
not a defense in the present case. The law involved in the present case is
Article 103 of the Revised Penal Code, in relation to Articles 100 and 29 
102 of the same Code, which reads thus:
30 
Art. 103. Subsidiary civil liability of other persons. — The subsidiary
liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
Pursuant to Article 103, an employer may be subsidiarily liable for the
employee’s civil liability in a criminal action when there is adequate
evidence establishing (1) that he is indeed the employer of the convicted
employee; (2) that he is engaged in some kind of industry; (3) that the SO ORDERED.
employee committed the offense in the discharge of his duties; and (4)
that the execution against the employee has not been satisfied due to Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and
insolvency. 31
Azcuna, JJ., concur.

The provisions of the Revised Penal Code on subsidiary liability – Articles

102 and 103 – are deemed written into the judgments in cases to which
they are applicable. Thus, in the dispositive portion of its decision, the
trial court need not expressly pronounce the subsidiary liability of the Footnotes
employer. 32

Under Rule 45 of the Rules of Court.

1 

The subsidiary liability of the employer arises only after conviction of the
employee in the criminal action. In the present case, there exists an
33 

employer-employee relationship between petitioners, the MMTC is Penned by Associate Justice Hector L. Hofileña, with Associate
2 

engaged in the transportation industry, and Olimpio has been adjudged

34 
Justices Omar U. Amin and Jose L. Sabio, Jr., concurring. Rollo,
guilty of a wrongful act and found to have committed the offense in the pp. 25-30.
discharge of his duties. However, there is no proof here of Olimpio’s
35 

insolvency. The judgment of conviction against Olimpio has not attained Ibid., pp. 32-33.
3 

finality. This being so, no writ of execution can issue against him to
satisfy his civil liability. Only after proof of the accused-employee’s Penned by Judge Godofredo L. Legaspi. Records, pp. 164-168.
4 

insolvency may the subsidiary liability of his employer be enforced. 36

Records, p. 1.
5 

In short, there is as yet no occasion to speak of enforcing the employer’s

subsidiary civil liability unless it appears that the accused-employee’s Ibid., p. 12.
6 

primary liability cannot in the first instance be satisfied because of

insolvency. This fact cannot be known until some time after the verdict of Records, pp. 165-167.
7 

conviction shall have become final. And even if it appears prima facie that

execution against the employee cannot be satisfied, execution against Ibid., p. 168.
8 

the employer will not issue as a matter of course. The procedure for the
37 

enforcement of a judgment will have to be followed. Once the judgment

Rollo, p. 35.
9 

of conviction against Olimpio becomes final and executory, and after the
writ of execution issued against him is returned unsatisfied because of
his insolvency, only then can a subsidiary writ of execution be issued
10 
Ibid., p. 30.
against the MMTC after a hearing set for that precise purpose. It is still
too early to hold the MMTC subsidiarily liable with its accused-employee 11 
CA Rollo, pp. 119-124.
considering that there is no proof yet of Olimpio’s insolvency.
Penned by Associate Justice Jose L. Sabio, Jr., with Associate
12 

WHEREFORE, we DENY the instant petition. The Decision dated 29 Justices Ramon Mabutas, Jr. and Edgardo P. Cruz,
November 1999 of the Court of Appeals in CA-G.R. CR No. 14764 concurring. Rollo, pp. 32-33.
finding petitioner Olimpio Pangonorom GUILTY beyond reasonable doubt
of reckless imprudence resulting in multiple slight physical injuries, as 13 
Ibid., pp. 16 and 18.
well as its Resolution dated 5 May 2000 denying the motion for
reconsideration, are AFFIRMED. No pronouncement as to costs.
 People v. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA
14 
Art. 100. Civil liability of a person guilty of felony. — Every
29 

478; People v. Saludes, G.R. No. 144157, 10 June 2003, 403 person criminally liable for a felony is also civilly liable.
SCRA 590; People v. Melendres, Jr., G.R. No. 134940, 30 April
2003, 402 SCRA 279. Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers
30 

and proprietors of establishments. — In default of the persons

Thermochem Incorporated v. Naval, G.R. No. 131541, 20
15 
criminally liable, innkeepers, tavernkeepers, and any other
October 2000, 344 SCRA 76. persons or corporations shall be civilly liable for crimes committed
in their establishments, in all cases where a violation of municipal
China Airlines, Ltd. v. Court of Appeals, G.R. No. 129988 , 14
16  ordinances or some general or special police regulation shall
July 2003, 406 SCRA 113; Romago Electric Co., Inc. v. Court of have been committed by them or their employees.
Appeals, 388 Phil. 964 (2000); Austria v. Court of Appeals, G.R.
No. 133323, 384 Phil. 408 (2000); Halili v. CA, 350 Phil. 906 Innkeepers are also subsidiarily liable for the restitution of goods
(1998). taken by robbery or theft within their houses from guests lodging
therein, or for the payment of the value thereof, provided that
17 
Records, pp. 132, 145-146. such guests shall have notified in advance the innkeeper himself,
or the person representing him, of the deposit of such goods
TSN, 22 April 1991, pp. 5, 9 and 13; TSN, 5 May 1992, pp. 6, 8-
18  within the inn; and shall furthermore have followed the directions
9 and 11. which such innkeeper or his representative may have given them
with respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against or
19 
TSN, 5 May 1992, p. 10.
intimidation of persons unless committed by the innkeeper’s
employees.
20 
Ibid., pp. 7- 9, and 11.
Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703, 14
31 
21 
TSN, 5 May 1992, p. 8. April 2004, 427 SCRA 456; Baza Marketing Corporation v.
Bolinao Security and Investigation Service, Inc., 202 Phil. 478
TSN, 17 October 1990, p. 12; TSN, 22 April 1991, p. 7; TSN, 5
22 
(1982); Joaquin, et al. v. Aniceto, et al., 120 Phil. 1100 (1964).
May 1992, p. 9.
Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703, 14
32 

23 
TSN, 22 April 1991, p. 9. April 2004, 427 SCRA 456; Alvarez v. Court of Appeals, No. L-
59621, 23 February 1988, 158 SCRA 57.
24 
TSN, 22 April 1991, pp. 4-5, 10, 13-14 and 16.
Carpio v. Doroja, G.R. No. 84516, 5 December 1989, 180 SCRA
33 

People v. Balili, G.R. No. 125908, 5 September 2002, 388

25 
1; Alvarez v. Court of Appeals, No. L-59621, 23 February 1988,
SCRA 376; People v. Gonzales, 432 Phil. 449 (2002); People of 158 SCRA 57; Pajarito v. Señeris, No. L-44627, 14 December
the Philippines v. Quening, 424 Phil. 48 (2002). 1978, 87 SCRA 275.

26 
Rollo, p. 35. Rollo, p. 11; Exhibit 10, Records, pp. 145-146; TSN, 2 June
34 

1992, p. 6.
27 
Ibid., p. 32.
35 
Records, pp. 164-168.
28 
CA Rollo, p. 119.
36 
Philippine Rabbit Bus Lines, Inc. v. People, supra note 31.
 Ozoa v. Vda. De Madula, No. L-62955, 22 December 1987, 156
37 

SCRA 779.

THIRD DIVISION

G.R. No. 163351               June 21, 2005

ANTONIO V. NUEVA ESPAÑA petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

At about 11:15 a.m. on May 15, 1998, petitioner Antonio E. Nueva

España was driving a passenger bus owned by Vallacar Transit, Inc. He
was then traversing the national highway of Calag-Calag, Ayungon,
Negros Oriental and was southbound going to Dumaguete City. While
negotiating a curve, the passenger bus collided with a northbound Honda
motorcycle. As a result, Reynard So, the driver of the motorcycle, and
Nilo Castro, the person riding in tandem with him, were killed. An
information for reckless imprudence resulting in double homicide 1 was
filed against petitioner who was also accused of failing to extend aid or
assistance to the victims.

During the trial of the case, the prosecution presented Julito Dayuday
and Florencio Banico as eyewitnesses to the collision. The father of So
and the mother of Castro were also called to the witness stand to
substantiate their respective claims for damages.

Julito Dayuday, a resident of Calag-Calag, Ayungon, Negros Oriental,

testified that he was waiting for a ride to Dumaguete City when the
collision between the bus and the Honda motorcycle occurred. He saw
the bus coming from the north going to Dumaguete City and, in the
opposite direction, a pedicab being followed by a Suzuki motorcycle and
a Honda motorcycle on which So and Castro were riding. Upon
approaching the curve on the highway, the bus swerved from its lane and
struck the Honda motorcycle. The motorcycle snagged onto the left front
fender of the bus and was dragged about 24 meters to the right of the
southbound lane. So had been thrown to the ground by the time the bus
finally stopped. Dayuday testified that he saw the accused get off the bus
with the conductor and the passengers but, instead of assisting the
victims, he casually walked away from the scene of the accident.
Florencio Banico, on the other hand, was a passenger of the bus driven
by petitioner. He corroborated the testimony of Dayuday that the bus hit
the motorcycle while it was negotiating a curve on the highway of Calag-
Calag. He also stated in court that the accused left the scene of the
accident while the victims lay dying on the road. He heard Castro
shouting for help while So was unconscious. He testified that nobody
helped the victims.
The father of So testified that his son was 30 years old at the time of his
death and he was engaged in the buying and selling of copra. He was
likewise a sugar cane planter and maintained a sari-sari store. So’s father
claimed that his son was earning ₱30,000 a month from his copra
business and sari-sari store, and ₱50,000 a month from selling sugar
cane. He added that his family spent ₱87,200 2 for the wake and funeral.
He also demanded payment of attorney’s fees of ₱30,000.
The mother of Castro, on the other hand, testified that her son was 26
years old when he died. He worked as welder in Manila and earned
₱8,000 a month. She allegedly spent ₱30,000 for her son’s wake and
burial.
For the defense, SPO2 Dolger Germundo, SPO3 Hilbert Arinaza, Roche
Taburasa and the petitioner himself were called to the witness stand.
SPO2 Germundo, a policeman, testified that he found the southbound
bus in its proper lane when he arrived at the site after the collision. He did
not see any tire or skid marks which meant that the point of impact was at
the center of the road, as stated by the prosecution witnesses. In his
sketch3 and photograph4 of the accident, the passenger bus and the
Honda motorcycle were at the outer part of the southbound lane, which
was the lane the bus was traversing at the time of the accident. Due to
the positions of the colliding vehicles, he concluded that it was the
motorcycle that rammed into the bus.
SPO3 Arinaza of the Philippine National Police testified that he was on
his way to Dumaguete City on board the bus driven by petitioner. At the
time of the accident, he was seated behind petitioner-driver and felt the
Honda motorcycle smash into the bus.
Taburasa, for his part, claimed he was the driver of the Suzuki
motorcycle So tried to overtake when they were both nearing the curve
on the highway of Calag-Calag. He claimed the collision occurred
because the Honda motorcycle overshot its lane in its attempt to overtake
him. He corroborated the declaration of SPO3 Arinaza that So’s
motorcycle hit the left front fender of the bus.
When petitioner (the accused) was called to the witness stand, he denied
the accusations against him. He testified that the Honda motorcycle
swerved out of its lane and veered towards the bus, resulting in the
collision. After the incident, he allegedly went down the bus to aid the
victims and even helped carry them into the vehicle that brought them to
a nearby hospital. He thereafter went to a police station to report the
incident.
The trial court gave no credence to the defense witnesses and convicted
petitioner of the crime charged. The dispositive part of the decision read:
WHEREFORE, premises considered, this court finds accused, ANTONIO
VILLANUEVA NUEVA ESPAÑA, guilty beyond reasonable doubt for the
crime of RECKLESS IMPRUDENCE RESULTING TO DOUBLE
HOMICIDE, and aggravated by his failure to help the victim, as provided
for Article 365 of the Revised Penal Code, and appreciating in his favor
the benefits of the Indeterminate Sentence Law, is hereby imposed the
indeterminate penalty of SIX (6) MONTHS of arresto mayor as minimum
to SIX (6) YEARS AND ONE (1) DAY of prision correcional as maximum,
and to pay the following damages:
TO THE HEIRS OF THE VICTIM REYNARD SO
1) ₱2,997,000.00 – indemnity for loss of earning capacity of
victim
2) 14,200.00 – for expenses of the wake
3) 20,000.00 – for funeral parlor
4) 12,000.00 – for the tomb
 5) 53,000.00 – for cost of burial site As to the civil liability, particularly the indemnity for the loss of the earning
capacity of the victims, the formula last enunciated by the Supreme Court
6) 30,000.00 – for attorney’s fees is:

7) 200,000.00 – for moral damages "Net earning capacity (x) = life x gross-living expenses
expectancy annual (50% of
8) 100,000.00 – for exemplary damages gross annual income)"

₱3,429,200.00 – TOTAL AMOUNT Thusly, since the victim Reynard So was earning ₱80,000 a month at the
time of his death when he was thirty (30) years old, his lost earning
which total amount shall bear interest at the rate of TWELVE (12%) capacity should be computed as follows:
percent per annum from the date of this decision until the same is paid.
2 (80 ― 30)
TO THE HEIRS OF VICTIM NILO CASTRO
x = x [₱960,000.00 ― ₱480,000.00]
3
1) ₱1,728,000.00 – indemnity for loss of earning capacity
x = 33.4 x ₱480,000.00
2) 20,000.00 – for funeral expenses
x = ₱16,032,000.00
3) 200,000.00 – for moral damages
With respect to the victim Nilo Castro, he was earning ₱8,000.00 a month
4) 50,000.00 – for exemplary damages when he died at the age of twenty-six (26). His lost earnings were:

₱1,998,000.00 – TOTAL AMOUNT 2 (80 ― 26)

x = x [₱96,000.00 ― ₱48,000.00]
which total amount shall bear interest at the rate of TWELVE (12%) 3
percent per annum counted from the date of this decision until the same
x = 36 x ₱48,000.00
is fully paid.
x = ₱1,728,000.00
Cost against accused.
which the trial court correctly computed.
SO ORDERED.5
The other items of damages awarded are correct.6
Via a petition for review, petitioner appealed the judgment of the court a
quo to the Court of Appeals. On November 2, 2003, the appellate court
The appellate court likewise provided for the subsidiary liability of
modified the assailed judgment:
petitioner’s employer under Article 103 7 of the Revised Penal Code. The
dispositive portion of the decision read:
Consequently, the penalty imposed by the trial court is erroneous. The
appellant should suffer the indeterminate penalty of SIX (6) YEARS
WHEREFORE, the Decision appealed from is AFFIRMED, subject to
of prision correcional, as minimum, to EIGHT (8) years of prision mayor,
MODIFICATION as to the penalty imposed; the indemnity for loss of
as maximum.
earning capacity of the victim Reynard So; the reckoning date of the start
of the 12% interest imposed; and the subsidiary civil liability of the
accused appellant’s employer, all as herein-above indicated. Costs
against appellant.
SO ORDERED.8
In this appeal before us, petitioner insists that he should not be made
liable for the mishap as it was actually the Honda motorcycle that
rammed into the bus he was driving. He seeks the reversal of his
conviction for reckless imprudence resulting in double homicide. The
issues raised by him can be summarized as follows:
1. the ruling of the Court of Appeals is untenable and contrary to
law because the evidence of the prosecution is incompatible with
the physical evidence on record;
2. the award of damages in the (total) amount of more than ₱18
Million is untenable and contrary to jurisprudence and law.9
On the first issue, the Court does not ordinarily pass upon the findings of
fact of the trial court, specially if they have been affirmed on appeal by
the appellate court.10 The trial court was able to observe the witnesses
and their demeanor on the stand and was in a position to scrutinize and
discern whether they were telling the truth.11 Without any clear showing
that the trial court and the appellate court overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance, the
rule should not be disturbed. In the case at bar, we see no reason to
deviate from the rule. The Court is in full agreement with the trial court
and with the Court of Appeals regarding petitioner’s liability for the crime
charged against him.
On the second issue, however, we deem it necessary to modify the
award of damages given by the lower courts.
When death occurs due to a crime, the following damages may be
recovered: (1) a civil indemnity ex delicto for the death of the victim; (2)
actual or compensatory damages; (3) moral damages; (4) exemplary
damages; (5) attorney’s fees and expenses of litigation, and (6) interest,
in proper cases.
CIVIL INDEMNITY ex delicto
Both the trial court and the Court of Appeals failed to award civil
indemnity ex delicto to the heirs of the victims. The award for civil
indemnity is mandatory and is granted to the heirs of the victim without
need of proof other than the commission of the crime.12 Hence, based on
recent jurisprudence13, the award of civil indemnity ex delicto of ₱50,000
each for the heirs of both So and Castro is in order.
ACTUAL DAMAGES: INDEMNITY FOR LOSS OF EARNING
CAPACITY AND OTHER COMPENSATORY DAMAGES
With respect to indemnification for loss of earning capacity, the Court, in
the case of People vs. Mallari,14 enunciated:
The rule is that documentary evidence should be presented to
substantiate a claim for loss of earning capacity. By way of exception,
damages therefore may be awarded despite the absence of documentary
evidence if there is testimony that the victim was either (1) self-employed,
earning less than the minimum wage under current labor laws, and
judicial notice is taken of the fact that in the victim's line of work, no
documentary evidence is available; or (2) employed as a daily-wage
worker earning less than the minimum wage under current labor laws.15
In this case, neither of the two exceptions applied. The earnings of So
and Castro were both above the minimum wage set by labor laws in their
respective workplaces at the time of their death.16 This being the case,
the general rule of requiring documentary evidence of their earning
capacities finds application. Unfortunately for their heirs, no such proof
was presented at all. It was therefore erroneous for both the trial court
and the Court of Appeals to award compensatory damages for loss of
earning capacity on the basis alone of the oral testimonies of So’s father
and Castro’s mother.
The lack of documentary evidence notwithstanding, since loss was
actually established in this case, temperate damages in the amount of
₱25,000 each may be awarded to the heirs of So and Castro,
respectively. Under Article 2224 of the Civil Code, temperate or moderate
damages (which are more than nominal but less than compensatory
damages) may be recovered when the court finds that some pecuniary
loss was suffered but its amount cannot be proved with certainty. 17
With respect to other compensatory damages,18 the Court in People v.
Agudez19 declared that competent evidence must likewise be presented
to support the claim for such damages. In the case at bar, the father of
So claimed that he spent ₱87,20020 for the wake and burial of his son but 73,000 - actual damages
all he was able to support with receipts were the payment to the funeral
parlor of ₱20,000 and the cost of the burial site of ₱53,000. 21 25,000 - temperate damages26
50,000 - moral damages
Regarding the claim for reimbursement of the actual expense allegedly
incurred by the mother of Castro, the Court opts to award her temperate 25,000 - exemplary damages
damages, in lieu of actual or compensatory damages, because she failed
to submit any evidence in support thereof. Again, temperate damages 30,000 - attorney’s fees
should instead be given since it was to be expected that she spent for the
burial and funeral services although the amount thereof was not ₱ 253,000 - TOTAL
determined with certitude.22

MORAL DAMAGES The heirs of Nilo Castro are also entitled to the following:

The award for moral damages by the court a quo, as affirmed by the ₱ 50,000 - civil indemnity ex delicto
Court of Appeals, should be adjusted for being excessive. While courts
have a wide latitude in ascertaining the proper award for moral damages, 50,000 - temperate damages27
the award should not be to such an extent that it inflicts injustice on the 50,000 - moral damages
accused. The award of ₱200,000 as moral damages each for the heirs of
So and Castro, respectively, should accordingly be reduced to ₱50,000. 23 25,000 - exemplary damages
30,000 - attorney’s fees
EXEMPLARY DAMAGES

Under Article 2230 of the Civil Code, exemplary damages may also be
imposed when the crime was committed with one or more aggravating
circumstances. Here, petitioner failed to render aid or assistance to his
victims after the collision.24 Based on the prevailing jurisprudence, the
award for exemplary damages for homicide is ₱25,000. 25
ATTORNEY’S FEES
We affirm the award of ₱30, 000 for attorney’s fees made by the trial
court and the appellate court. Under Article 2208 of the Civil Code,
attorney’s fees and expenses of litigation may be recovered when
exemplary damages have been awarded, as in this case.
SUMMARY
₱ 205,000 - TOTAL
SUBSIDIARY LIABILITY
We adopt the pronouncement of the Court of Appeals regarding the
subsidiary liability of petitioner’s employer, Vallacar Transit Inc., under
Article 103 of the Revised Penal Code. An employer may be subsidiarily
liable for the employee’s civil liability in the criminal action if it can be
shown that: (1) the employer is engaged in any kind of industry; (2) the
employee committed the offense in the discharge of his duties and (3) the
accused is insolvent.28 However, subject to prevailing jurisprudence,29 the
subsidiary liability may be enforced only upon a motion for subsidiary writ
of execution against Vallacar Transit, Inc. and upon proof that petitioner
is insolvent.

To summarize, the heirs of the deceased Reynard So are entitled to the IMPRISONMENT
following:
Lastly, we are also constrained to amend the penalty imposed by the
₱ 50,000 - civil indemnity ex delicto Court of Appeals. The imposable penalty, under Article 365 (2) of the
Revised Penal Code for homicide resulting from reckless imprudence in
the use of the motor vehicle is prision correcional in its medium and
maximum period, which ranges from 2 years, 4 months and 1 day to 6
years.
Under Article 64 of the same law, the penalty shall be divided into three
equal portions, each of which shall form one period. The offense having
been attended by one aggravating circumstance premised on the failure
of petitioner to aid his victims, the penalty shall be increased but it cannot
exceed the penalty provided by law in its maximum period. 30 Applying the
provisions of the Indeterminate Sentence Law, the petitioner is thus
entitled to a minimum term to be taken from the penalty next lower in
degree, which is arresto mayor in any of its periods, to prision
correcional maximum. Accordingly, petitioner should suffer the penalty of
2 years, 4 months and 1 day of arresto mayor, as minimum, to 6 years
of prision correcional, as maximum.
4
 Exhibit "K," Rollo, p. 192.
5
 Decided by Honorable Ismael O. Baldado, Presiding Judge, 7th
Judicial Region, Branch 45, Bais City; Rollo, pp. 103-104.
6
 Penned by Associate Justice Salvador J. Valdez, Jr. with the
concurrence of Associate Justices Josefina Guevarra-Salonga
and Arturo D. Brion, 11th Division; Rollo, pp. 81-82.
7
 Art. 103. Subsidiary civil liability of other persons. - The
subsidiary liability established in the next preceding article shall
also apply to employers, teachers, persons and corporations
engaged in any kind of industry for felonies committed by their
servants, pupils, workmen, apprentices or employees in the
discharge of their duties.

WHEREFORE, the decision appealed from is AFFIRMED with 8

 Rollo, p. 83.
MODIFICATIONS as to the award of damages and the penalty imposed,
as already discussed. The total amount of damages shall bear interest at 9
 Rollo, p. 31.
the rate of 12% per annum from the finality of this decision.
 People v. Cañete, 433 Phil. 781 (2002); People v. Lining, 433
10
Costs against petitioner.
Phil. 797 (2002).
SO ORDERED. 11
 People v. Salvador, 433 Phil. 692 (2002).
Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales, and
 People v. Opuran, G.R. No. 147674, 17 March 2004, 425
12
Garcia, JJ., concur.
SCRA 654.

13
 Id.

 G.R. No. 145993, 17 June 2003, 404 SCRA

14

Footnotes 170; see also People vs. Ibañez,  G.R. No. 148627, 28 April

2004.
1
 Similarly construed to be a violation of the Motor Vehicle Law
resulting in death under Article 365 (2) of the Revised Penal 15
 Id.
Code.
16
 Under Wage Order No. NCR-06 which covered Nilo Castro
2
 ₱14,200 for the wake; ₱20,000 for funeral expenses; ₱53,000 (and which took effect on 6 February 1998, the minimum wage at
as cost of burial site. the time of the accident was ₱198.00 per day. Likewise, in Wage
Order No. ROVII-6 which covered Reynard So (and which was
3
 Exhibit "A," Rollo, p. 194. approved on 10 March 1998), the minimum wage in Negros
Oriental for the agriculture sector was ₱130.00.
  Victory Liner, Inc. v. Gammad, G.R. No. 159636, 25 November
17

2004.

18
 Id.

19
 G.R. No. 138386-87, 20 May 2004, 428 SCRA 692.

20
 Supra, at 4.

21
 Exhibits "E" and "I".

22
 Supra.

23
 People v. Samson, 427 Phil. 248 (2002).

24
 Article 365 of the Revised Penal Code, supra.

 Talay v. Court of Appeals, 446 Phil. 256 (2003);

25

People vs. Catubig, 416 Phil. 103 (2001).

26
 In lieu of award for loss of earning capacity.

27
 ₱25,000 as temperate damages, in lieu of the award for loss of
earning capacity of Nilo Castro, and another ₱25,000 as
temperate damages in lieu of actual damages which was not
proved by documentary evidence.

 Carpio v. Doroja, G.R. No. 84516, 5 December 1989, 180

28

SCRA 1, as cited in "The Revised Penal Code" annotated by Luis

B. Reyes.

29
 Basilio v. Court of Appeals, 385 Phil. 21 (2000).

30
 Article 64, Revised Penal Code.

FIRST DIVISION

G.R. No. 159218             March 30, 2004

SALVADOR S. ABUNADO and ZENAIDA BIÑAS
ABUNADO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Responden
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari seeks to reverse and set aside the
decision1 of the Court of Appeals in CA-G.R. No. 26135 which affirmed
with modification the decision of the Regional Trial Court, Branch 77, San
Mateo, Rizal in Criminal Case No. 2803 convicting petitioner Salvador S.
Abunado of bigamy.
The records show that on September 18, 1967, Salvador married Narcisa
Arceño at the Manila City Hall before Rev. Pedro Tiangco. 2 In 1988
Narcisa left for Japan to work but returned to the Philippines in 1992,
when she learned that her husband was having an extra-marital affair
and has left their conjugal home.
After earnest efforts, Narcisa found Salvador in Quezon City cohabiting
with Fe Corazon Plato. She also discovered that on January 10, 1989,
Salvador contracted a second marriage with a certain Zenaida Biñas
before Judge Lilian Dinulos Panontongan in San Mateo, Rizal. 3
On January 19, 1995, an annulment case was filed by Salvador against
Narcisa.4 On May 18, 1995, a case for bigamy was filed by Narcisa
against Salvador and Zenaida. 5
Salvador admitted that he first married Zenaida on December 24, 1955
before a municipal trial court judge in Concepcion, Iloilo and has four
children with her prior to their separation in 1966. It appeared however
that there was no evidence of their 1955 marriage so he and Zenaida
remarried on January 10, 1989, upon the request of their son for the
purpose of complying with the requirements for his commission in the
military.
On May 18, 2001, the trial court convicted petitioner Salvador Abunado of
bigamy and sentenced him to suffer imprisonment of six (6) years and
one (1) day, as minimum, to eight (8) years and one (1) day, as
maximum. Petitioner Zenaida Biñas was acquitted for insufficiency of
evidence.6
On appeal, the Court of Appeals affirmed with modification the decision
of the trial court, as follows:
WHEREFORE, the Decision appealed from is hereby MODIFIED as to
the penalty imposed but AFFIRMED in all other respects. Appreciating
the mitigating circumstance that accused is 76 years of age and applying
the provisions of the Indeterminate Sentence Law, the appellant is
hereby sentenced to suffer an indeterminate prison term of two (2) years,
four (4) months and one (1) day of prision correccional as Minimum to six
(6) years and one (1) day of prision mayor as Maximum. No costs.
SO ORDERED.7
Petitioner is now before us on petition for review.
First, he argues that the Information was defective as it stated that the
bigamous marriage was contracted in 1995 when in fact it should have
been 1989.
Indeed, an accused has the right to be informed of the nature and cause
of the accusation against him. 8 It is required that the acts and omissions
complained of as constituting the offense must be alleged in the
Information.9
The real nature of the crime charged is determined by the facts alleged in
the Information and not by the title or designation of the offense
contained in the caption of the Information. It is fundamental that every
element of which the offense is comprised must be alleged in the
Information. What facts and circumstances are necessary to be alleged in
the Information must be determined by reference to the definition and
essential elements of the specific crimes.10
The question, therefore, is whether petitioner has been sufficiently
informed of the nature and cause of the accusation against him, namely,
that he contracted a subsequent marriage with another woman while his
first marriage was subsisting.
The information against petitioner alleges:
That in or about and sometime in the month of January, 1995 at the
Municipality of San Mateo, Rizal place (sic) within the jurisdiction of this
Honorable Court, the above-named accused, having been legally married
to complainant Narcisa Abunado on September 16, 1967 which has not
been legally dissolved, did then and there willfully, unlawfully and
feloniously contract a subsequent marriage to Zenaida Biñas Abunado on
January 10, 1989 which has all the essential requisites of a valid
marriage.
CONTRARY TO LAW.11
The statement in the information that the crime was committed "in or
about and sometime in the month of January, 1995," was an obvious
typographical error, for the same information clearly states that petitioner
contracted a subsequent marriage to Zenaida Biñas Abunado on January
10, 1989. Petitioner’s submission, therefore, that the information was
defective is untenable.
The general rule is that a defective information cannot support a
judgment of conviction unless the defect was cured by evidence during
the trial and no objection appears to have been raised. 12 It should be
remembered that bigamy can be successfully prosecuted provided all its
elements concur – two of which are a previous marriage and a
subsequent marriage which possesses all the requisites for validity. 13 All
of these have been sufficiently established by the prosecution during the
trial. Notably, petitioner failed to object to the alleged defect in the
Information during the trial and only raised the same for the first time on
appeal before the Court of Appeals.
Second, petitioner argues that Narcisa consented to his marriage to
Zenaida, which had the effect of absolving him of criminal liability.
In this regard, we agree with the Court of Appeals when it ruled, thus:
x x x, while he claims that there was condonation on the part of
complainant when he entered into a bigamous marriage, the same was
likewise not established by clear and convincing evidence. But then, a
pardon by the offended party does not extinguish criminal action
considering that a crime is committed against the State and the crime of
Bigamy is a public offense which can be denounced not only by the
person affected thereby but even by a civic-spirited citizen who may
come to know the same.14
Third, petitioner claims that his petition for annulment/declaration of
nullity of marriage was a prejudicial question, hence, the proceedings in
the bigamy case should have been suspended during the pendency of
the annulment case. Petitioner, in fact, eventually obtained a judicial
declaration of nullity of his marriage to Narcisa on October 29, 1999. 15
A prejudicial question has been defined as one based on a fact distinct
and separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and for it to suspend
the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be
based but also that in the resolution of the issue or issues raised in the
civil case, the guilt or innocence of the accused would necessarily be
determined. The rationale behind the principle of suspending a criminal
case in view of a prejudicial question is to avoid two conflicting
decisions.16
The subsequent judicial declaration of the nullity of the first marriage was
immaterial because prior to the declaration of nullity, the crime had
already been consummated. Moreover, petitioner’s assertion would only
delay the prosecution of bigamy cases considering that an accused could
simply file a petition to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the criminal case. We
cannot allow that.17
The outcome of the civil case for annulment of petitioner’s marriage to
Narcisa had no bearing upon the determination of petitioner’s innocence
or guilt in the criminal case for bigamy, because all that is required for the
charge of bigamy to prosper is that the first marriage be subsisting at the
time the second marriage is contracted.18
Thus, under the law, a marriage, even one which is void or voidable, shall
be deemed valid until declared otherwise in a judicial proceeding. 19 In this
case, even if petitioner eventually obtained a declaration that his first
marriage was void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was annulled.
Finally, petitioner claims that the penalty imposed on him was improper.
Article 349 of the Revised Penal Code imposes the penalty of prision
mayor for bigamy. Under the Indeterminate Sentence Law, the court shall
sentence the accused to an indeterminate penalty, the maximum term of
which shall be that which, in view of the attending circumstances, could
be properly imposed under the Revised Penal Code, and the minimum
term of which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense. The penalty next lower would be
based on the penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of
the crime. The determination of the minimum penalty is left by law to the
sound discretion of the court and it can be anywhere within the range of
the penalty next lower without any reference to the periods into which it
might be subdivided. The modifying circumstances are considered only in
the imposition of the maximum term of the indeterminate sentence. 20
In light of the fact that petitioner is more than 70 years of age, 21 which is a
mitigating circumstance under Article 13, paragraph 2 of the Revised
Penal Code, the maximum term of the indeterminate sentence should be
taken from prision mayor in its minimum period which ranges from six (6)
years and one (1) day to eight (8) years, while the minimum term should
be taken from prision correccional in any of its periods which ranges from
six (6) months and one (1) day to six (6) years.
Therefore, the penalty imposed by the Court of Appeals, i.e., two (2)
years, four (4) months and one (1) day of prision correccional, as
minimum, to six (6) years and one (1) day of prision mayor, as maximum,
is proper.
WHEREFORE, in view of the foregoing, the decision of the Court of
Appeals in CA-G.R. CR No. 26135, finding petitioner Salvador S.
Abunado guilty beyond reasonable doubt of the crime of bigamy, and
sentencing him to suffer an indeterminate penalty of two (2) years, four
(4) months and one (1) day of prision correccional, as minimum, to six (6)
years and one (1) day of prision mayor, as maximum, is AFFIRMED.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Panganiban, Ynares-Santiago, Carpio, and
Azcuna, JJ.
Concurring Opinion
CARPIO, J.:
I concur in the result of the ponencia of Justice Consuelo Ynares-
Santiago finding appellant Salvador S. Abunado guilty of bigamy.
The material facts are not in dispute. On 18 September 1967, Abunado
married Narcisa Arceno. While his marriage with Arceno remained
unannulled, Abunado married Zenaida Biñas on 10 January 1989.
Subsequently, on 29 October 1999, Abunado obtained from the Regional
Trial Court of Makati City a judicial declaration of nullity of his marriage
with Arceno. On 18 May 2001, the Regional Trial Court of San Mateo,
Rizal rendered a decision convicting Abunado of bigamy.
The sole issue is whether the second marriage of Abunado to Biñas on
10 January 1989 constitutes the crime of bigamy under Article 349 1 of the
Revised Penal Code. More precisely, the issue turns on whether
Abunado’s first marriage to Arceno was still subsisting at the time
Abunado married Biñas.
Under the Family Code, before one can contract a second marriage on
the ground of nullity of the first marriage, one must first secure a final
judgment declaring the first marriage void. Article 40 of the Family Code
provides:
Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.
The Family Code took effect on 3 August 1988, before the second
marriage of Abunado on 10 January 1989.
Prior to the Family Code, one could contract a subsequent marriage on
the ground of nullity of the previous marriage without first securing a
judicial annulment of the previous marriage. If subsequently the previous
marriage were judicially declared void, the subsequent marriage would
not be deemed bigamous. The nullity of the previous marriage could
even be judicially declared in the criminal case for bigamy, 2 although the
person remarrying "assume(d) the risk of being prosecuted for
bigamy"3 should the court uphold the validity of the first marriage. Article
40 of the Family Code has changed this.
Now, one must first secure a final judicial declaration of nullity of the
previous marriage before he is freed from the marital bond or vinculum of
the previous marriage. If he fails to secure a judicial declaration of nullity
and contracts a second marriage, then the second marriage becomes
bigamous. As the Court stated in Domingo v. Court of Appeals 4 in
explaining Article 40 of the Family Code:
In fact, the requirement for a declaration of absolute nullity of a marriage
is also for the protection of the spouse who, believing that his or her
marriage is illegal and void, marries again. With the judicial declaration of
the nullity of his or her first marriage, the person who marries again
cannot be charged with bigamy.
Conversely, if the person remarries without securing a judicial declaration
of nullity of his previous marriage, he is liable for bigamy.
Article 40 of the Family Code considers the marital vinculum of the
previous marriage to subsist for purposes of remarriage, unless the
previous marriage is judicially declared void by final judgment. Thus, if
the marital vinculum of the previous marriage subsists because of the
absence of judicial declaration of its nullity, the second marriage is
contracted during the existence of the first marriage resulting in the crime
of bigamy.
Under Article 40 of the Family Code, the marital vinculum of a previous
marriage that is void ab initio subsists only for purposes of remarriage.
For purposes other than remarriage, marriages that are void ab initio,
such as those falling under Articles 35 and 36 of the Family Code, are
void even without a judicial declaration of nullity. As the Court held in
Cariño v. Cariño:5
Under Article 40 of the Family Code, the absolute nullity of a previous
marriage may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void. Meaning,
where the absolute nullity of a previous marriage is sought to be invoked
for purposes of contracting a second marriage, the sole basis acceptable
in law, for said projected marriage to be free from legal infirmity, is a final
judgment declaring the previous marriage void. However, for purposes
other than remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. x x x . (Emphasis supplied)
Cariño, penned by Justice Consuelo Ynares-Santiago herself, contradicts
the statement in her present ponencia that "under the law, a marriage,
even one which is void or voidable, shall be deemed valid until declared
otherwise in a judicial proceeding." I believe the ruling in Cariño is correct
and should not be disturbed. As Justice Jose C. Vitug explained in his
recent textbook on Civil Law (Volume I):
The phrase "for purposes of remarriage" is not at all insignificant. Void
marriages, like void contracts, are inexistent from the very beginning. It is
only by way of exception that the Family Code requires a judicial
declaration of nullity of the previous marriage before a subsequent
marriage is contracted; x x x.6 (Emphasis supplied)
Thus, the general rule is if the marriage is void ab initio, it is ipso facto
void without need of any judicial declaration of nullity. The only
recognized exception7 under existing law is Article 40 of the Family Code
where a marriage void ab initio is deemed valid for purposes of
remarriage, hence necessitating a judicial declaration of nullity before
one can contract a subsequent marriage.
Article 40 of the Family Code applies only to a situation where the
previous marriage suffers from nullity while the second marriage does
not. Under Article 40, what requires a judicial declaration of nullity is the
previous marriage, not the subsequent marriage. Article 40 does not
apply to a situation where the first marriage does not suffer from any
defect while the second is void.
Accordingly, I vote to deny the petition and affirm the decision of the
Court of Appeals finding appellant Salvador S. Abunado guilty of the
crime of bigamy.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1
 Penned by Associate Justice Josefina Guevara-Salonga and
concurred in by Associate Justices Marina L. Buzon and Danilo
B. Pine.
2
 Exhibit "C", Records, p. 68.
3
 Exhibit "J", Records, p. 81.
4
 Records, p. 202.
 5
 Records, p. 1. 1
 Article 349 of the Revised Penal Code provides as follows:
"Bigamy- The penalty of prision mayor shall be imposed upon any
6
 Penned by Judge Francisco C. Rodriguez; Rollo, pp. 33-42. person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or before
7
 Rollo, p. 53. the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings."
8
 Constitution, Art. III, Sec. 14(2).
 People v. Mendoza, 95 Phil. 845 (1954); People v. Aragon, 100
2

Phil. 1033 (1957).

9
 Revised Rules on Criminal Procedure, Rule 110, Sec. 6.
3
 Landicho v. Relova, et al., 130 Phil. 745 (1968).
10
 Garcia v. People, G.R. No. 144785, 11 September 2003.
4
 G.R. No. 104818, 17 September 1993, 226 SCRA 572.
11
 Rollo, p. 30; underscoring ours.
5
 G.R. No. 132529, 2 February 2001, 351 SCRA 127.
 People v. Villamor, G.R. No. 124441, 7 October 1998, 297
12

SCRA 262, 270. 6

 Civil Law, Persons and Family Relations, Vol. I, (2003 Ed.)
 Marbella-Bobis v. Bobis, G.R. No. 138509, 31 July 2000, 336
13

SCRA 747, 752-753.

7
 See also note 4.

14
 Rollo, p. 51.

15
 Annex "1", Records, p. 208

 Te v. Court of Appeals, G.R. No. 126746, 29 November 2000,

16

346 SCRA 327, 335.

 Mercado v. Tan, G.R. No. 137110, 1 August 2000, 337 SCRA

17

122, 133.

18
 Te v. Court of Appeals, supra.

19
 Supra.

20
 Garcia v. People, supra. Republic of the Philippines
SUPREME COURT
21
 Exhibit "J", Records, p. 81. Manila

CARPIO THIRD DIVISION

G.R. No. 182232             October 6, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NENITA B. HU, accused-appellant.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari filed by accused-appellant
Nenita B. Hu (Hu) seeking to reverse and set aside the Decision 1 of the
Court of Appeals dated 9 October 2007 in CA-G.R.-CR.-H.C. No. 02243,
affirming with modification the Decision 2 dated 4 January 2005 of the
Regional Trial Court (RTC) of Makati City, Branch 66, in Criminal Case
No. 03-356. The RTC in its Decision found Hu guilty beyond reasonable
doubt of the crime of illegal recruitment in large scale, as defined and
penalized under Section 7(b) of Republic Act No. 8042, 3 and accordingly,
sentenced her to suffer the penalty of life imprisonment, to pay the fine
of P500,000.00, and to indemnify private complainants Paul Abril (Abril),
Joel Panguelo (Panguelo) and Evangeline Garcia (Garcia) in the
amounts of P44,000.00, P50,000 and P50,000, respectively. The decretal
part of the assailed Court of Appeals Decision reads:
Wherefore, in the light of the foregoing disquisitions, the decision
of the Regional Trial Court of Makati City, Branch 66, in Criminal
Case No. 03-856, finding appellant Nenita B. Hu, guilty beyond
reasonable doubt of the crime charged, is hereby AFFIRMED
with MODIFICATION.
As modified, the award of actual damages in the amount
of P50,000 in favor of Evangeline Garcia, is DELETED.4
The antecedent facts are as follows:
An Information5 for Illegal Recruitment in Large Scale was filed against
Hu and Ethel V. Genoves (Genoves) which reads:
The undersigned Prosecutor accuses Ethel V. Genoves a.k.a.
Merry Ann Genoves and Nenita B. Hu, of the crime of Violation of
Section 6 penalized under Section 7(b) of RA 8042 6 (Illegal
Recruitment in Large Scale) committed as follows:
That on or about the 9th day of October 2001, in the City of
Makati, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating
together and both of them helping and aiding one another, did
then and there willfully, unlawfully and feloniously recruit, promise
employment/job placement abroad for an overseas employment
and collect fees from the following persons to wit:
NOEL P. DELAYUN JOEY F. SILAO
JOEL U. PANGUELO PAUL C. ABRIL
EVANGELINE E. GARCIA ERIC V. ORILLANO
thus in large scale amounting to economic sabotage without any
license or authorized by the POEA of the Department of Labor
and Employment to recruit workers for an overseas employment.
Upon arraignment, Hu assisted by counsel entered a plea of not guilty
while Genoves remained at large. 7 Subsequently, trial on the merits
ensued. While the Information for illegal recruitment named several
persons as having been promised jobs by Hu and Genoves, only four of
them - Panguelo, Garcia, Abril and Orillano -- testified.
Hu was the President of Brighturn International Services, Inc. (Brighturn),
a land-based recruitment agency duly licensed by the Philippine
Overseas Employment Agency (POEA) to engage in the business of
recruitment and placement of workers abroad, with principal address at
No. 1916 San Marcelino St., Malate, Manila. Brighturn was authorized by
the POEA to recruit, process and deploy land-based workers for the
period 18 December 1999 to 17 December 2001.8
Genoves worked as a consultant and marketing officer of Brighturn.
Aside from her stint at Brighturn, Genoves was also connected with
Riverland Consultancy Service (Riverland), another recruitment agency
located at Room No. 210, LPL Building, Sen. Gil Puyat Avenue, Makati
City.
Private complainants Orillano, Panguelo, Abril and Garcia sought
employment at Brighturn for the positions of factory worker and electronic
operator in Taiwan.9 Notwithstanding private complainants' compliance
with all of the pre-employment requirements, including the payment of
placement fees, they were not able to leave the country to work abroad.
Sometime in June 2001, Panguelo was informed by a friend that
Brighturn was hiring factory workers for Taiwan. When Panguelo went to
Brighturn, he was promised employment abroad by Hu for P50,000.00.
Upon Hu's instruction, Panguelo paid in full the placement fee in the
amount of P50,000.00 to Genoves. The payment was evidenced by an
Official Receipt dated 16 October 2001 bearing Genoves' signature.
Panguelo waited for three years to be deployed to Taiwan. His waiting
was all for naught. Thus, Panguelo decided to abort his application and
demanded from Hu the return of the amount he paid for the placement
fee, but Hu could no longer return the money.10
Also sometime in September 2001, Abril went to Brighturn to apply as a
factory worker in Taiwan. At Brighturn, Abril was entertained by Hu who
oriented him on the necessary requirements for application which
included a valid passport, National Bureau of Investigation (NBI)
Clearance and ID pictures. After complying with the documentary
requirements, Abril was required by Hu to pay the placement fee to
Genoves in the amount of P44,000.00. As shown in Official Receipts
dated 9 October 2001 and 26 October 2000, which were signed by
Genoves, Abril paid the whole amount of P44,000.00 as placement fee.
Abril was assured by Hu that he would be deployed to Taiwan by
December 2001 which was subsequently reset to April 2002. Despite
several postponements, Abril was not able to leave the country.11
For his part, Orillano came to know of Brighturn thru Genoves. Orillano
was interviewed at Brighturn by a Taiwanese principal in October 2001.
After the interview, Hu informed Orillano to submit a medical certificate,
NBI clearance and passport; and to pay the requisite placement fee in
the amount of P50,000.00. Believing that Hu could send him abroad,
Orillano faithfully complied with these requirements including the
placement fee, the payment of which was made to Genoves at
Brighturn's office. Despite such payment, however, Orillano was not able
to leave the country.12
Garcia suffered the same fate as her co-applicants. In April 2002, Garcia
applied as Electronic Operator at Brighturn wherein she was entertained
by Hu who informed her that Brighturn's license was suspended. Garcia
was then referred by Hu to Best One International (Best One), another
recruitment agency likewise located in Malate, Manila. While Garcia was
told by Hu that the processing of her documents would be done at Best
One, the placement fee, however, should be paid at Brighturn.
Accordingly, the amount of P60,000.00 was paid by Garcia to Hu and
Genoves as placement fee upon Hu's instruction. Almost predictably, the
promise of an employment abroad never came to pass.13
When Hu was not able to refund the amounts paid as placement fees
upon demand, private complainants went to NBI to file a complaint for
illegal recruitment against Hu and Genoves.
For her defense, Hu claimed that she was the President of Brighturn, a
duly authorized land-based recruitment agency. Brighturn had foreign
principals in Taiwan who were looking for skilled individuals willing to
work in a foreign country. Hu alleged that Brighturn had an established
recruitment procedure wherein applicants were only required to pay the
corresponding placement fees after the POEA had already approved
their employment contracts. According to Hu, announcements were
posted all over Brighturn's premises warning job applicants to pay
placement fees only to the cashier. After the expiration of its license
issued by the POEA on 18 December 1999, Brighturn failed to pursue its
application for renewal due its inability to post the required cash bond.
Brighturn was thus constrained to refer all pending applications to Best
One. 14
Hu admitted knowing the private complainants because these individuals
went to her office demanding the return of their placement fees by
showing their official receipts. Hu averred that when she examined such
receipts, she found that private complainants paid their placement fees to
Riverland and not to Brighturn as shown in the heading of the said
receipts which bore the name and address of Riverland and its
proprietress, Genoves. Hu denied knowing Genoves. 15
On 4 January 2005, the trial court rendered a Decision 16 finding Hu guilty
beyond reasonable doubt of the crime of illegal recruitment in large scale,
the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Nenita Hu guilty
beyond reasonable doubt of the crime of illegal recruitment in
large scale under Section 6 and 7(b) of Republic Act No. 8042,
and, accordingly, sentences the accused to suffer the penalty of
life imprisonment, pay the fine of P500,000.00 and to indemnify
private complainants Paul Abril in the amount of P44,000.00, Joel
Panguelo in the amount of P50,000.00 and Evangeline Garcia in
the amount of P50,000.00.
The Court of Appeals, in its Decision17 dated 9 October 2007, confirmed
the presence of all the elements of illegal recruitment in large scale, and
thereby affirmed the conviction of Hu with the modification that the
amount of actual damages awarded to Garcia in the amount
of P50,000.00 be deleted.
Hence, this Petition raising the sole issue of:
WHETHER OR NOT THE LOWER COURT ERRED IN FINDING
HU GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL
RECRUITMENT IN LARGE SCALE.
Hu was charged with and convicted by the trial court of the crime of
Illegal Recruitment in Large Scale, which conviction was affirmed by the
Court of Appeals. The appellate court found that Hu made enticing, albeit
empty promises, which moved private complainants to part with their
money and pay the placement fee.
For its part, the Solicitor General joined the lower courts in finding that Hu
was indeed guilty of Illegal Recruitment in Large Scale. According to the
Solicitor General, all the elements of illegal recruitment in large scale had
been established beyond reasonable doubt.18
We cannot sustain the conviction for illegal recruitment in large scale.
Illegal recruitment is committed when two elements concur, namely: (1)
the offender has no valid license or authority required by law to enable
him to lawfully engage in the recruitment and placement of workers; and
(2) he undertakes any activity within the meaning of "recruitment and
placement" defined under Article 13(b) of the Labor Code. 19 Recruitment
and placement is "any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers; and includes referrals,
contact services, promising or advertising for employment, locally or
abroad, whether for profit or not: Provided, that any person or entity
which, in any manner, offers or promises for a fee employment to two or
more persons shall be deemed engaged in recruitment and placement." 20
The crime becomes Illegal Recruitment in Large Scale when the
foregoing two elements concur, with the addition of a third element - the
recruiter committed the same against three or more persons, individually
or as group.21
A conviction for large scale illegal recruitment must be based on a finding
in each case of illegal recruitment of three or more persons whether
individually or as a group. While it is true that the law does not require
that at least three victims testify at the trial, nevertheless, it is necessary
that there is sufficient evidence proving that the offense was committed
against three or more persons.22
In the appreciation of evidence in criminal cases, it is a basic tenet that
the prosecution has the burden of proof in establishing the guilt of the
accused for the offense with which he is charged. Ei incumbit probation
qui dicit non qui negat; i.e., "he who asserts, not he who denies, must
prove." The conviction of appellant must rest not on the weakness of his
defense, but on the strength of the prosecution's evidence. 23
In the case at bar, the prosecution failed to adduce sufficient evidence to
prove that illegal recruitment was committed against three or more
persons. What we have uncovered upon careful scrutiny of the records
was the fact that illegal recruitment was committed against only one
person; that is, against Garcia alone. Illegal recruitment cannot
successfully attach to the allegations of Panguelo, Abril and
Orillano, since they testified that they accomplished their pre-
employment requirements through Brighturn from June 2001 up to
October of the same year,24 a period wherein Brighturn's license to
engage in recruitment and placement was still in full force and
effect. 25
While there were six private complainants in this case, four of whom were
presented during the trial, the prosecution, nonetheless, failed to
establish that Hu engaged in illegal recruitment acts against at least three
of these complainants. In offenses in which the number of victims is
essential, such as in the present petition, failure of the prosecution to
prove by convincing evidence that the offense is committed against the
minimum number of persons required by law is fatal to its cause of
action. Underscoring the significance of the number of victims was the
disquisition of Justice Florenz Regalado in People v. Ortiz-Miyake26:
It is evident that in illegal recruitment cases, the number of
persons victimized is determinative. Where illegal
recruitment is committed against a lone victim, the accused
may be convicted of simple illegal recruitment which is
punishable with a lower penalty under Article 39(c)27 of the
Labor Code. Corollarily, where the offense is committed against
three or more persons, it is qualified to illegal recruitment in large
scale which provides a higher penalty under Article 39(a) 28 of the
same Code. (Emphasis supplied.)
Regrettably, we cannot affirm the conviction of Hu for the offense of
illegal recruitment in large scale. While we strongly condemn the
pervasive proliferation of illegal job recruiters and syndicates preying on
innocent people anxious to obtain employment abroad, nevertheless, we
find the pieces of evidence insufficient to prove the guilt of Hu beyond
reasonable doubt. It is unfortunate that the prosecution evidence did not
pass the test of reasonable doubt, since the testimonies of its witnesses
unveil a contradicting inference -- that the recruitment of Panguelo, Abril
and Orillano was undertaken by Hu with the required authority from the
POEA.
Failure of the prosecution to prove the guilt of Hu beyond reasonable
doubt does not absolve her of her civil obligation to return the money she
collected from private complaints Panguelo, Abril and Orillano, plus legal
interest in accordance with our ruling in Domagsang v. Court of
Appeals.29 There, the prosecution failed to sufficiently establish a case to
warrant a conviction, but clearly proved a just debt owed to the private
complainant. Thus, the accused was ordered to pay the face value of the
check with 12% legal interest per annum, reckoned from the filing of the
information until the finality of the judgment. It is well settled that acquittal
based on reasonable doubt does not preclude an award for civil
damages. The judgment of acquittal extinguishes the liability of the
accused only when it includes a declaration that the facts from which the
civil liability might arise did not exist. Thus, civil liability is not
extinguished where the acquittal is based on lack of proof beyond
reasonable doubt, since only preponderance of evidence is required in
civil cases. There appears to be no sound reason to require that a
separate action be still filed considering that the facts to be proved in the
civil case have already been established in the criminal proceedings. 30 In
the present case, the prosecution explicitly proved that private
complainants parted with substantial amounts of money upon the
prodding and enticement of Hu on the false pretense that she had the
capacity to deploy them for employment abroad. In the end, private
complainants were not able to leave for work abroad or get their money
back.
Neither does her acquittal herein exempt Hu from subsequent criminal
prosecution for estafa31 provided that deceit, which is an essential
element of estafa, be proven by the prosecution. 32 Apparently, Hu
deluded private complainants into believing that she had the capacity to
send them abroad for employment. Through this hoax, she was able to
convince private complainants to surrender their money to her in the vain
hope, as it turned out, of securing employment abroad.
This leaves us a case of simple illegal recruitment committed against
Garcia.
Garcia testified that she applied for employment in Taiwan for the
position of Electronic Operator thru Brighturn in April 2002. Due to the
alleged suspension of Brighturn's license, Hu referred her to a
neighboring agency (Best One), but Hu continued collecting placement
fees from her.
The act of referral, which means the act of passing along or forwarding
an applicant after an initial interview to a selected employer, placement or
bureau, is included in recruitment. 33 Undoubtedly, the act of Hu in
referring Garcia to another recruitment agency squarely fell within the
purview of recruitment that was undertaken by Hu after her authority to
recruit and place workers already expired on 17 December 2001.
Failure of Garcia to present proof of payment is irrelevant. The absence
of receipts in the case of illegal recruitment does not warrant the acquittal
of the appellant and is not fatal to the prosecution's case. As long as the
prosecution is able to establish through credible and testimonial
evidence, as in the case at bar, that the appellant had engaged in illegal
recruitment, a conviction for the offense can be very well justified. 34
Irrefragably, the prosecution has proven beyond reasonable doubt the
guilt of Hu of the charge of illegal recruitment against Garcia when the
former referred the latter to another agency without the license or
authority to do so. The trial court gave full credence to the testimony of
Garcia, which unmistakably demonstrated how Hu successfully enticed
her to part with a considerable amount of money in exchange for an
employment abroad which was never realized. This finding was adopted
by the appellate court, considering that that the trial court was in the best
position to ascertain credibility issues, having heard the witnesses
themselves and observed their deportment and manner of testifying
during trial.
Aptly, the bare denials of Hu have no probative value when ranged
against the affirmative declarations of Garcia, even if the latter failed to
present receipts for the payments she had made. In People v.
Villas,35 this Court affirmed the conviction of the appellant for illegal
recruitment even if private complaints were not able to present any
receipt that they paid appellant anything, thus:
 Neither is there merit in the contention of the defense that
appellant should be exonerated for failure of the prosecution to
present any receipt proving that private complainants paid her
anything. The defense argues that a receipt is the best evidence
to prove delivery of money and the absence thereof shows that
no payment was made.
This argument is not novel. The Court has previously ruled that
the absence of receipts evidencing payment does not defeat a
criminal prosecution for illegal recruitment. In People vs.
Pabalan [262 SCRA 574, 30 September 1996], this Court ruled:
"x x x the absence of receipts in a criminal case for illegal
recruitment does not warrant the acquittal of the accused
and is not fatal to the case of the prosecution. As long as
the witnesses had positively shown through their
respective testimonies that the accused is the one
involved in the prohibited recruitment, he may be
convicted of the offense despite the want of receipts.
"The Statute of Frauds and the rules of evidence do not
require the presentation of receipts in order to prove the
existence of recruitment agreement and the procurement
of fees in illegal recruitment cases. The amounts may
consequently be proved by the testimony of witnesses."
The private complainants have convincingly testified that the
accused enticed them to apply and, in actual fact, received
payments from them. And to these testimonies, the trial court
accorded credence. On the other hand, appellant has not shown
any reason to justify a modification or reversal of the trial court's
finding.
Our ruling in People v. Villas36 that the absence of receipts in illegal
recruitment case does not warrant the acquittal of the accused has been
reiterated in several cases.37 We are not unaware of the proliferation of
these scheming illegal recruiters who cunningly rob Filipino workers,
desperate to work abroad, of their money in exchange of empty
promises. This Court cannot be drawn to the ingenious ploy of these
illegal recruiters in withholding receipts from their victims in their vain
attempt to evade liability.
In fine, the Court will have to discard the conviction for illegal recruitment
in large scale meted out by the RTC, since only one applicant abroad
was recruited by Hu without license and authority from the POEA.
Accordingly, Hu should be held responsible for simple illegal recruitment
only. Hu's unsuccessful indictment for illegal recruitment in large scale,
however, does not discharge her from her civil obligation to return the
placement fees paid by private complainants.
Under Section 7(a) of Republic Act No. 8042, 38 simple illegal recruitment
is punishable by imprisonment of not less than six (6) years and one (1)
day but not more than twelve years and a fine of not less than two
hundred thousand pesos (P200,000.00) nor more than five hundred
thousand pesos (P500,000.00).
Section 1 of the Indeterminate Sentence Law provides that if the offense
is punishable by a special law, as in this case, the court shall impose on
the accused an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by the said law and the minimum of
which shall not be less than the minimum term prescribed by the same.
Accordingly, a penalty of eight (8) to twelve (12) years of imprisonment
should be meted out to Hu. In addition, a fine in the amount
of P500,000.00; and indemnity to private complainants -- Abril in the
amount of P44,000.00, Panguelo in the amount of P50,000.00, Garcia in
the amount of P60,000.00 and Orillano in the amount of P50,000.00, with
12% legal interest per annum, reckoned from the filing of the information
until the finality of the judgment - is imposed.
WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition
is PARTIALLY GRANTED. The Decision dated 9 October 2007 of the
Court of Appeals in CA-G.R.-CR.-H.C. No. 02243 affirming the conviction
of the accused-appellant Nenita B. Hu for the offense of Illegal
Recruitment in Large Scale and sentencing her to life imprisonment is
hereby VACATED. A new Decision is hereby entered convicting the
accused-appellant of the offense of Simple Illegal Recruitment committed
against private complainant Evangeline Garcia. She is sentenced to
suffer the indeterminate penalty of eight (8) years to twelve (12) years of
imprisonment. She is ordered to pay a fine in the amount of P500,000.00
and to indemnify private complainant Evangeline Garcia in the amount
of P60,000.00, with 12% interest per annum, reckoned from the filing of
the information until the finality of the judgment.
Accused-appellant Nenita B. Hu is likewise ordered to indemnify private
complainants Paul Abril in the amount of P44,000.00, Joel Panguelo in
 the amount of P50,000.00, and Eric Orillano in the amount Pursuant to Section 13, Article VIII of the Constitution and the Division
of P50,000.00, with 12% interest per annum, as reckoned above. Chairperson's Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned
SO ORDERED. to the writer of the opinion of the Court's Division.

MINITA V. CHICO-NAZARIO REYNATO S. PUNO

Associate Justice Chief Justice

WE CONCUR: Footnotes

1
 Penned by Associate Justice Jose L. Sabio with Associate
CONSUELO YNARES-SANTIAGO Justices Noel G. Tijam and Myrna Dimaranan Vidal, concurring;
Associate Justice rollo, pp. 2-21.
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

2
 Penned by Judge Rommel O. Baybay.
Associate Justice Associate Justice
3
 Migrant Workers and Overseas Filipinos Act of 1995.
RUBEN T. REYES
Associate Justice 4
 Rollo, pp. 19-20.

5
 Records, pp. 1-2.

ATTESTATION
6
 Migrant Workers and Overseas Filipino Act of 1995.

I attest that the conclusions in the above Decision had been reached in
7
 CA rollo, p 20.
consultation before the case was assigned to the writer of the opinion of
the Court's Division. 8
 TSN, 17 March 2005, pp. 4-8.

CONSUELO YNARES-SANTIAGO 9
 CA rollo, pp. 20-22.
Associate Justice
Chairperson 10
 TSN, 11 March 2004, pp. 1-28.

11
 TSN, 4 March 2004, pp. 1-28.

12
 TSN, 15 April 2004, pp. 1-21.
CERTIFICATION
13
 TSN, 25 March 2004, pp. 1-28.
14
 TSN, 17 March 2005, pp. 1-17. Q:       How were you supposed to give her as placement
fee?
15
 Id.
A:       I gave her Forty-four thousand pesos sir.
16
 CA rollo, pp. 20-25.
Q:       Where did you give her this amount?
17
 Id. at 103-122.
A:       Riverland Consultancy in LPL Bldg. In Gil Puyat,
18
 Id. at 79-97. Makati City.

19
 People v. Gutierrez, 466 Phil. 609, 622 (2004). Q:       Do you have proof of this?

20
 Article 13(b) of the Labor Code of the Philippines. A:       Yes sir.

21
 Id. Fiscal: Witness is handing to this Prosecutor a Xerox
copy of two official receipts date October 9 and October
22
 People v. De la Piedra, 403 Phil. 31, 58 (2001). 26, 2001 which we ask that these be marked in evidence
as Exh. C and D. (TSN, 4 March 2004, pp. 5-9.)
23
 People v. Corpuz, 459 Phil. 100, 112 (2003).
On 11 March 2004, Panguelo also testified that he
applied for overseas employment thru Brighturn in June
 On 4 March 2004, Abril testified that he applied for employment
24
2001 and paid his placement fee in 16 October 2001,
at Brighturn in September 2001 and paid his placement fee in
thus:
October of the same year, to wit:
Fiscal: In the year 2001 of June, do you recall if you had
Fiscal: In September of 2001, do you recall any
employment then?
undertaking that is significant to your life, Mr. Witness?
Witness: None, sir.
Witness: Yes, sir. I applied in one of the agency in
Brighturn.
Q:       And do you recall having looked for work at that
time?
Q:       For what position?
B. Yes, sir.
A. As factory worker, sir.
Q:       Where did you apply for work at that time?
Q:       Where?
A:       In Brighturn.
A:       In Taiwan sir.
xxxx
xxxx
Q:       And when you went to this office in Brighturn, to Orillano, on 15 April 2004, likewise testified in open court
whom did you talk about your application for work, Mr. that the alleged recruitment was undertaken by Hu in
Witness? October 2001.

A:       Ms. Hu. Fiscal: Mr. Witness, what is your present occupation?

xxxx Witness: Selling vegetables, sir.

Q:       So, what did the accused tell you about your Q:       In the year 2000, were you already working as a
employment in Taiwan? vegetable vendor?

A:       She told me that I'll be sent abroad to work as a
factory worker in Taiwan.
Q:       And what did she ask for in return if she did, Mr.
Witness?
A:       No sir, only after the incident happened.
Q:       What incident are you talking about, Mr. Witness?
A:       When I was victimized by illegal recruitment, sir.

A:       Payment, sir. Q:       What year is this?

Q:       How much were you supposed to pay her. Mr. A:       2001, sir.
Witness?
Q:       Will you tell this Court how were you victimized by
A:       Fifty Thousand Pesos (Php 50,000.00). illegal recruiters in this case?

Q:       And were you able to pay the accused the said A:       In October of 2001, Brighturn International
amount? conducted an interview for Taiwan

A:       Yes, sir. xxxx

Q:       Do you have proof, Mr. Witness that you pay the Q:       During your interview, what were the documents
said amount? required by the accused?

A:       Yes, sir. A:       Medical Certificate, picture, and NBI.

Q:       Where it is? Q:       What about fee, Mr. Witness?

Fiscal: Witness handing to the Prosecutor a Xerox copy of A:       After the submission of the documents, we were
a receipt dated October 16, in the amount of Fifty required to pay a placement fee.
Thousand Pesos (Php 50,000.00). (TSN, 11 March 2004,
pp. 9-13.) Q:       How much were you required to pay?
 A:       Php50,000.00, sir. 35
 G.R. No. 112180, 15 August 1997, 277 SCRA 406.

Q:       Where did you pay this P50,000.00? 36

 Id.

A:       To Ms. Ethel Genoves, sir. 37

 People v. Gomez, 381 Phil. 870, 884 (2000); People v. Villas,
id.; People v. Billaber, 465 Phil. 726, 743 (2004); People v.
Q:       Where did you pay? Sagaydo, 395 Phil. 538, 549 (2000); People v. Dujua, supra note
34; People v. Jamilosa, G.R. No. 169076, 23 January 2007, 512
A:       The office of Ms. Ethel Genoves at Makati. (TSN, SCRA 340, 352.
15 April 2004, pp. 4-9.)
38
 Migrant Workers and Overseas Filipinos Act of 1995.
 Brighturn was duly authorized by the POEA to engage in
25

recruitment and placement of workers abroad from the period of

18 December 1999 up to 17 December 2001. (Records, at 130.)

26
 344 Phil. 598, 608-609 (1997).

27
 Amended by Republic Act No. 8042.

28
 Id.

29
 400 Phil. 846, 858 (2000).

30
 Rico v. People, 440 Phil. 540, 555 (2002).

31
 Art. 315. x x x

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneously with
the commission of the fraud:

(a) By using fictitious name, or falsely pretending to

possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means
of other similar deceits.

32
 People v. Gallardo, 436 Phil. 698, 716 (2002).

 Rodolfo v. People, G.R. No. 146964, 10 August 2006, 498

33

SCRA 377, 386.

34
 People v. Dujua, 466 Phil. 775, 786 (2004).
 West: Carrascal River

G.R. No. 169251             December 20, 2006 In 1974, TD No. 3352 was cancelled by TD No. 5249. 5 In 1980, the
previous tax declaration was "revised" by TD No. 116, 6 where the entry
DEMIE L. URIARTE, petitioner, pertaining to the location of the property was changed from "Batong,
vs. Carrascal, Surigao del Sur" to "(S) Botong, (B) Doyos, Carrascal, Surigao
PEOPLE OF THE PHILIPPINES, respondent. del Sur." In 1985, TD No. 116 was cancelled by TD No. 121, 7 where the
boundaries of the property were also changed, as follows:

Boundaries:

North: Carrascal River

DECISION
South: Botong Rill

East: Botong Creek

CALLEJO, SR., J.: West: Antioco Uriarte

This is a Petition for Review on Certiorari of the Decision1 of the
Sandiganbayan in A.R. No. 058 and its Resolution 2 denying the motion
for partial reconsideration thereof. The assailed decision affirmed with
modification the Decision3 of the Regional Trial Court (RTC) of Cantilan,
Surigao del Sur, Branch 41, convicting petitioner Demie L. Uriarte for
violation of Section 3(e), Republic Act (R.A.) No. 3019.
TD No. 121 thus contained significant "revisions." The subsequent tax
declarations, however, no longer contained alterations: TD No.
1328 which canceled T.D. No. 121; ARP No. 93-08-003449 in 1994; and
ARP No. 96-08-0034910 in 1997. However, in ARP No. 96-08-
0032811 filed in 2000, the entries in the original tax declaration–TD No.
3352–were restored.

Petitioner was the Municipal Assessor of the Municipality of Carrascal, Meantime, in 1954, Antioco Uriarte, petitioner's father, declared a two-
Surigao del Sur. In 1948, Joventino Correos declared for taxation hectare lot for taxation purposes under TD No. 4642. 12 The pertinent
purposes a .9434-hectare parcel of land under Tax Declaration (TD) No. entries are the following:
3352.4 The pertinent entries read:
Area: 2 hectares
Location: Batong, Carrascal, Surigao
Location: Doot, Poblacion, Carrascal, Surigao
Area: .9434 hectares
Boundaries:
Boundaries:
North: Carrascal River;
North: Carrascal River;
South: Maximo Leva;
South: Maximo Leva and Botong Rill;
East: Botong Rill;
East: Botong Creek;
 West: Maximo Leva and Carrascal River
In 1974, TD No. 4642 was canceled by TD No. 1534, 13 and the entries
regarding the boundaries of the property were also altered. 14 In 1980, TD
No. 1534 was cancelled by TD No. 243, 15 where "Embarcadero" was
inserted on the entry pertaining to the location of the property. In 1985 TD
No. 243 was canceled by TD No. 247.16 This time, the area of the
property was changed from two (2) to three (3) hectares, and the
boundary in the east became "Joventino Correos." The subsequent tax
declarations, TD No. 27017 which canceled TD No. 247 and ARP No. 96-
09-0029018 effective 1997, did not contain any further alterations. Thus,
the "boundaries" of the lot became
North: Carrascal River;
South: Pantaleon Cervantes;
East: Joventino Correos;
West: Maximo Leva
The above alterations were allegedly committed by petitioner when she
was the Municipal Assessor and Deputy Provincial Assessor of
Carrascal, Surigao del Sur. On May 21, 1999, Evelyn Arpilleda, through
counsel, sent a letter19 informing petitioner of the alterations that had
been made on the tax declarations of her predecessor, Joventino
Correos. She requested that the "erroneous and prejudicial entries" be
rectified.
Petitioner complied with the request. Thus, in ARP No. 96-08-00328, the
original entries were restored.
On July 5, 1999, Arpilleda, through counsel, sent a letter 20 to the Office of
the Ombudsman (Mindanao) stating the alleged unlawful acts of
petitioner in altering the tax declarations of Joventino Correos and
Antioco Uriarte. It was alleged that the alterations prejudiced her since
they became the basis of petitioner's "forceful and unlawful possession"
of the subject property.
The Office of the Ombudsman requested Arpilleda to formalize the
charges.21 She later complied by filing a Sworn Complaint 22 dated August
19, 1999. Petitioner filed his Counter-Affidavit, 23 to which Arpilleda filed
her Reply-Affidavit24 on October 28, 1999.
The Office of the Ombudsman-Mindanao later filed an Information 25 dated
November 24, 1999 before the RTC26 of Tandag, Surigao del Sur against
petitioner for violation of Section 3(e), R.A. 3019.
On December 15, 1999, the Administrative Officer of the Office of the
Provincial Prosecutor of Tandag, Surigao del Sur forwarded 27 the entire
case record to the RTC of Cantilan, Surigao del Sur, Branch 41.
On March 13, 2000, private complainant, through counsel, filed a Motion
to Suspend Pendente Lite,28 alleging that the immediate suspension of
petitioner is proper in view of the provisions of R.A. 3019 and existing
jurisprudence.29
Petitioner was arraigned on March 14, 2000, and pleaded not guilty. On
even date, the trial court ordered30 his preventive suspension.
The case was then set for pre-trial and the parties submitted their
respective pre-trial briefs. On June 15, 2000, petitioner filed a Motion to
Lift Order of Preventive Suspension,31 pointing out that he had already
served three months' suspension. The trial court granted the motion on
June 16, 2000.32
On October 2, 2000, petitioner filed a Motion to Quash the
Information.33 He claimed that the trial court did not acquire jurisdiction
over the case because in the first place, the special prosecution officer of
the Office of the Ombudsman-Mindanao had no authority to file the
information. To support his claim, petitioner cited Uy v.
Sandiganbayan,34 where it was held that the authority to file the
corresponding information before the RTC rests in the prosecutor, not the
Ombudsman, and that the latter exercises prosecutorial powers only in
cases cognizable by the Sandiganbayan. The trial court provisionally
dismissed35 the case and ordered the cancellation of petitioner's bail
bond.
On July 12, 2001, the private prosecutor moved to reinstate the
case,36 claiming that the Supreme Court likewise declared in a Resolution
in Uy v. Sandiganbayan37 that the Ombudsman is clothed with authority to
conduct preliminary investigation, and to prosecute all criminal cases
involving public employees–not only those involving public officers within
the jurisdiction of the Sandiganbayan but also those within the jurisdiction
of the regular courts.
On November 6, 2001, the trial court ordered the case reinstated. Since
the bail bond of petitioner had been cancelled, the trial court further
ordered the issuance of a warrant of arrest. Petitioner posted bail.
Private complainant filed a Reservation to File Civil Action38 which the trial
court granted in an Order39 dated March 15, 2002. She likewise filed a
Manifestation and/or Motion for Inhibition, 40 which was however denied in
an Order41 dated July 3, 2002.
Trial on the merits ensued, and the prosecution presented the following
witnesses: private complainant Arpilleda, who testified that petitioner, as
Municipal Assessor, took advantage of his position and caused changes
in the location and boundaries of various tax declarations of Joventino
Correos and Antioco Uriarte, and that these changes were designed to
promote petitioner's own interest, thus causing damage and prejudice to
her and her co-heirs;42 Tremy Correos who corroborated private
complainant's testimony, specifically on the damage they sustained when
petitioner evicted them from the land they had been occupying; 43 Richard
Paniamogan who, as barangay captain of Embarcadero, issued a
certification that Botong is located in that barangay and testified
thereon;44 Charmelinda A. Yañez, then the provincial assessor who
testified on the limitations of the powers of the municipal
assessor;45 SPO2 Saturnino Cubero, whose testimony was, however,
dispensed with in view of the parties' admission of the copy of the police
blotter on the alleged eviction of private complainant and her co-heirs
from the lot;46 and Carlito A. Ladroma who likewise testified that Botong is
part of barangay Embarcadero.47
On the other hand, the defense presented four (4) witnesses, namely:
Leovino Constantino, an employee of the Department of Environment
and Natural Resources who testified that the land covered by the subject
tax declarations had not been surveyed and no title had been issued by
the City Environment and Natural Resources Office; 48 Florida Coma who
was once the barangay captain of Barangay Embarcadero and testified
that Sitio or Purok Doot, Pelong belongs to Barangay Embarcadero,
while Botong belongs to Barangay Doyos;49 and Gaudiosa Tolentino who
testified on the creation of barangays Embarcadero and Doyos as well as
the existing sitios.50
Petitioner, for his part, admitted that he had made changes on the tax
declarations. He however justified the changes, stating that they were the
result of the general revision made in 1978. He also claimed that as
municipal assessor, he has absolute authority to determine
the barangay to which a particular property belongs. He further asserted
that the prosecution failed to cite any law that prohibits a municipal
assessor from making revisions on (a) the location of the property
according to barangay; (b) the names of the adjoining owner; or (c) the
boundaries of the property. Petitioner likewise insisted that the case is
civil and not criminal in nature. 51
Petitioner filed a Motion for Leave to file Demurrer to Evidence 52 dated
June 25, 2003. However, the trial court denied the motion in its
Order53 dated August 1, 2003.
After the parties rested their respective cases, the RTC, on April 29,
2004, rendered a decision54 convicting petitioner of violating Section 3(e)
of R.A. 3019. The fallo reads:
WHEREFORE, premises considered, this Court finds DEMIE
URIARTE Y LIMGUANGCO, Municipal Assessor of Carrascal,
Surigao del Sur, GUILTY BEYOND REASONABLE DOUBT as
principal for violation of Section 3, paragraph (e) of Republic Act
3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act and applying the Indeterminate Sentence
Law, this Court imposes upon the accused the penalty of
imprisonment ranging from SIX (6) YEARS and ONE (1) MONTH
to TEN (10) YEARS and ONE (1) DAY; perpetual disqualification
from holding public office and forfeiture of all retirement benefits
or gratuity benefits under any law and in the event that such
convicted officer, who may have already been separated from the
service, has already received such benefits shall be liable to
restitute the same to the government.
The bail bond put up by the accused for his temporary liberty is
ordered cancelled. Accused shall serve his sentence at the
Davao Prison and Penal Farm, Panabo City, Davao del Norte
pursuant to Circular No. 63-97 of the Supreme Court dated
October 6, 1997.
To pay the cost.
SO ORDERED.55
On April 29, 2004, petitioner filed a Notice of Appeal 56 to the Court of
Appeals (CA), which was later withdrawn.57 On May 6, 2004, petitioner
filed a Notice of Appeal58 before the Sandiganbayan on the following
grounds:
 I.
THE TRIAL COURT ERRED IN CONVICTING DEMIE L.
URIARTE FOR VIOLATION OF SEC. 3(E) OF R.A. 3019 UNDER
THE INFORMATION THAT DOES NOT CHARGED (SIC) SUCH
AN OFFENSE.
II.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT (THAT)
THE INFORMATION CHARGES THE OFFENSE OF VIOLATION
OF SEC. 3 (E) OF R.A. 3019, STILL, THE TRIAL COURT
COMMITTED GRAVE AND REVERSIBLE ERROR IN
CONVICTING THE ACCUSED BASED ON FACTS NOT
ALLEGED IN THE INFORMATION AND NOT SUPPORTED BY
EVIDENCE.
III.
ASSUMING FURTHER THAT THE INFORMATION CHARGED
VIOLATION OF SEC. 3 (E) OF R.A. 3019, AGAIN, THE TRIAL
COURT SERIOUSLY ERRED AND ACTED WITH GRAVE
ABUSE OF DISCRETION TANTAMOUNT TO LACK OR IN
EXCESS OF JURISDICTION IN CONVICTING THE ACCUSED
NOTWITHSTANDING THE FAILURE OF THE PROSECUTION
TO SPECIFY, QUANTIFY AND PROVE THE ELEMENT OF
"UNDUE INJURY" PURSUANT TO THE RULING OF THE
SUPREME COURT IN LLORENTE V. SANDIGANAYAN (SIC)
[G.R. NO. 122166. MARCH 11, 1998].
IV.
THE TRIAL COURT ERRED IN NOT ACQUITTING THE
ACCUSED FOR FAILURE OF THE PROSECUTION TO
PRESENT CLEAR AND CONVINCING EVIDENCE TO
OVERCOME THE LEGAL PRESUMPTION OF REGULARITY IN
THE PERFORMANCE OF HIS OFFICIAL DUTIES AND
FUNCTIONS AS MUNICIPAL ASSESSOR.59
Petitioner averred that the prosecution failed to allege in the information
any prohibited act which he had committed in the performance of his
official duties or in relation to his public position. He further averred that
no mention was made of the injury caused to any party, which is
essential in a charge under Section 3(e), R.A. 3019; this violated his
constitutional right to be informed of the accusation against
him.60 Petitioner also claimed that the RTC erred in concluding that he
had intended to dispossess private complainant of their property, since
this was not alleged in the information. 61 He pointed out that private
complainant could not prove, much less impute, any undue injury
because the original entries in the tax declarations had already been
restored. He also invoked the presumption of regularity in the
performance of his official function as an additional ground.
On April 15, 2005, the Sandiganbayan affirmed with modification the
decision of the RTC.62 The fallo reads:
WHEREFORE, in the light of all the foregoing, this Court hereby
finds no cogent reason to disturb or reverse, and therefore
AFFIRMS, the findings and conclusion of the trial court, with
modification of the imposable penalty, such that the accused is
hereby sentenced to suffer the penalty of imprisonment ranging
from SIX (6) YEARS and ONE (1) MONTH to TEN (10) YEARS
and ONE (1) DAY and perpetual disqualification from holding
public office. The clause "and forfeiture of all retirement benefits
or gratuity benefits under any law and in the event that such
convicted officer, who may have already been separated from the
service, has already received such benefits shall be liable to
restitute the same to the government" is hereby ordered deleted.
SO ORDERED.63
The anti-graft court held that all the elements of violation of the offense
had been alleged in the information; the allegation that the appellant
willfully changed the location and boundaries of the subject properties
was the prohibited act, while the element of undue injury was alleged in
the phrase "to the damage and prejudice of the said heirs." The facts that
had not been alleged in the information were evidentiary matters.
As to the prosecution's alleged failure to specify the element of undue
injury, the anti-graft court held that the injury caused by petitioner was not
in terms of money but, on the part of private complainant, the deprivation
of three-fourths of her property. Lastly, the court held that under the
General Instructions Governing the Conduct and Procedures in the
General Revision of Real Property Assessment,64 the municipal assessor
had no discretion to change the entries in tax declarations. Moreover, the
failure of petitioner to notify Joventino Correos of the changes in the
entries defies the provision therein that owners should participate in the
revision. Lastly, the presumption of regularity has been overcome by
petitioner's unilateral act of restoring the original boundaries and location
of the property owned by Joventino Correos.
Petitioner comes before this Court on the following issues:
I. CAN AN ACCUSED BE CONVICTED UNDER AN
INFORMATION THAT CHARGES AN OFFENSE WHICH THE
COURT ADMITTED THE PROSECUTION FAILED TO PROVE
AS A VIOLATION OF ANY LAW?
II. CAN AN ACCUSED BE CONVICTED OF VIOLATION OF
SEC. 3 (E) OF R.A. 3019 BASED ON CONCLUSION OF FACTS
MADE BY THE TRIAL COURT THAT HE COMMITTED
LANDGRABBING AND/OR DISPOSSESSING THE
COMPLAINANT OF HER PROPERTY, WHICH OFFENSES
WERE NOT CHARGED IN THE INFORMATION?65
The resolution of the issues raised by petitioner hinges on the
interpretation of the elements of the crime of violation of Section 3(e),
R.A. 3019, in relation to the facts alleged in the information and those
proven during trial. The provision reads:
Section 3. Corrupt practices of public officers. – In addition to acts
or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
The essential elements of this crime have been enumerated in several
cases66 decided by this Court, as follows:
1. The accused must be a public officer discharging
administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith
or inexcusable negligence; and
3. That his action caused any undue injury to any party, including
the government, or giving any private party unwarranted benefits,
advantage or preference in the discharge of his functions.
A perusal of the Information filed against petitioner shows that all these
elements were sufficiently alleged, as correctly ruled upon by both the
RTC and Sandiganbayan. The accusatory portion of the Information
reads:
That in 1993, and sometime prior or subsequent thereto, at the
Municipality of Carrascal, Surigao del Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused DEMIE L. URIARTE, a public officer being the Municipal
Assessor of Carrascal, Surigao del Sur, while in the performance
of his official functions, committing the offense in relation to office,
taking advantage of his position, acting with evident bad faith and
manifest partiality, did then and there willfully, unlawfully, and
feloniously cause the change of the location and boundaries of
the property of one Joventino Correos as indicated in Tax
Declaration (TD) Nos. 121 and 132 despite knowing fully well that
in the previously issued TD Nos. 3352 and 5249, of the same
property state different location and boundaries and also, cause
the change of the location and boundaries of the property of his
own father, Antioco Uriarte, particularly, to make it appear that the
property is adjacent to the property of Joventino Correos, in order
to favor his own interest being an heir of Antioco Uriarte and
occupant of the land subject of the application of the heirs of
Joventino Correos, to the damage and prejudice of the said heirs.
CONTRARY TO LAW.67
Section 3(e) of R.A. 3019 may be committed either by dolo, as when the
accused acted with evident bad faith or manifest partiality, or by culpa as
when the accused committed gross inexcusable negligence. There is
"manifest partiality" when there is a clear, notorious or plain inclination
or predilection to favor one side or person rather than another. 68 "Evident
bad faith" connotes not only bad judgment but also palpably and patently
fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will.69 It contemplates a state
of mind affirmatively operating with furtive design or with some motive or
self-interest or ill will or for ulterior purposes.70 "Gross inexcusable
negligence" refers to negligence characterized by the want of even the
slightest care, acting or omitting to act in a situation where there is a duty
to act, not inadvertently but willfully and intentionally, with conscious
indifference to consequences insofar as other persons may be affected. 71
From the evidence adduced by the parties, petitioner indeed acted with
evident bad faith in making the alteration on the entries in the tax
declarations of both Joventino Correos and Antioco Uriarte. The fact of
alteration is shown not only in the tax declarations presented in evidence;
petitioner also admitted that he made the alterations himself. Petitioner
even attempted to justify his act by stating that such changes were made
pursuant to the General Instructions issued in 1978 for the general
revision of tax declarations, and that he was authorized to make the
alterations because municipal assessors were mandated to identify the
properties according to the barangay where the property is located.
Petitioner likewise justified his act of changing the boundaries of the
property covered by the tax declarations of Joventino and Antioco
because of the alleged instruction that the boundaries should be
designated using the name of the landowner.
Paragraph 28 of the General Instructions Governing the Conduct and
Procedures in the General Revision of Real Property
Assessments72 provides:
28) The boundaries which will appear in the field sheets shall be
the name of persons, streets, rivers or natural boundaries
adjoining the property subject of revision. The technical
descriptions of the land to be revised should not be written down
on the field sheets, not only to follow the prescribed form but also
to avoid additional or unnecessary typing costs. Tax declarations
are issued for taxation purposes and they are not titles to lands.
In case boundary conflict arises, the parties can refer to the
titles.73
Thus, contrary to petitioner's contention that the boundaries should be
designated only according to the names of persons, the provision clearly
allows the streets, rivers, and natural boundaries of the property to be
placed on the tax declarations. Petitioner was aware of the
consequences of altering the entries in the tax declarations, particularly in
the untitled properties. Petitioner's bad faith is further strengthened by the
fact that he did not inform Joventino Correos or the private complainant
of the alterations, including his act of restoring the original entries in the
tax declarations. Assuming for the sake of argument that he was not
motivated by ill will but merely committed a mistake in the interpretation
of the wording of the Instructions, petitioner's act is nevertheless
unjustified. We cannot fathom why a municipal assessor would think that
the boundaries of a particular property should only be designated by
persons' names. Even one of ordinary intelligence would know that a
property may be bounded by a street, a river, or a mountain. In any
event, therefore, petitioner may still be considered guilty of inexcusable
negligence.
Petitioner contends that due to the prosecution's failure to cite any law
that prohibits the municipal assessor from altering tax declarations, the
presumption is that he regularly performed his official duties. However,
the very Instructions petitioner relies upon to justify his acts outlines the
limitations on the authority of municipal assessors to revise tax
declarations. Paragrah 27 provides:
27) Utmost care should be taken that the full christian and
surname appearing in the existing 1978 tax declaration must
exactly be the same christian and surname which has to be
carried forward to the field sheets. For obvious reasons, no
transfer or change of ownership of real property be made by
assessors or appraisers in the process of general revision. The
primary purpose of general revision is not to transfer or change
ownership of property from one person to another during the
period of revision but to update or upgrade property values for
real property taxation purposes. However, real property declared
for the first time shall be appraised and assessed for taxation
purposes. Lands declared for the first time shall be accepted
provided the declaration is supported by corresponding
certification of the Bureau of Forest Development and the Bureau
of Lands that the land so declared is in the alienable or
disposable area (emphasis supplied).
The third element provides for the modalities in which the crime may be
committed, namely: (a) by causing undue injury to any party, including
the Government; or (b) by giving any private party any unwarranted
benefit, advantage or preference. 74 The use of the disjunctive term "or"
connotes that either act qualifies as a violation of Sec. 3, par. (e), or as
aptly held in Santiago v. Garchitorena,75 as two (2) different modes of
committing the offense. This does not, however, indicate that each mode
constitutes a distinct offense, rather, that an accused may be charged
under either mode or under both.
We affirm the Sandiganbayan's finding that there was substantial
compliance with the requirement. The wording of the information shows
that petitioner, in willfully changing the boundaries of the tax declarations
of Joventino Correos and Antioco Uriarte, both caused undue injury to
private complainant and gave himself and his father unwarranted benefit.
In jurisprudence,76 "undue injury" is consistently interpreted as "actual
damage." Undue has been defined as more than necessary, not proper,
or illegal; and injury as any wrong or damage done to another, either in
his person, rights, reputation or property, that is, the invasion of any
legally protected interest of another. On the other hand, in Gallego v.
Sandiganbayan,77 the Court ruled that unwarranted means lacking
adequate or official support; unjustified; unauthorized; or without
justification or adequate reasons. Advantage means a more favorable or
improved position or condition; benefit or gain of any kind; benefit from
course of action. Preference signifies priority or higher evaluation or
desirability; choice or estimation above another. 78
From the foregoing definitions, petitioner's act of altering the boundaries
of the property in question as stated in the tax declaration clearly falls
under the very act punishable by Section 3(e), R.A. 3019.
It bears stressing that it is beyond the power of this Court to settle the
issue of who, between petitioner and private complainant, has the better
right to own and possess the subject property. This Court has no
jurisdiction over the issue, and the evidence presented is not sufficient to
make a definite determination of ownership. Suffice it to state that the
alteration of the entries in the subject tax declarations, especially on the
boundaries of the property, caused undue injury to private complainant
as an heir of Joventino Correos. The alteration substantially changed the
identity of the property. Considering that the property in question was not
titled and no survey had yet been conducted to settle the actual areas
and boundaries of the properties, the tax declarations constitute
important evidence of the declarant's possession and ownership, though
not conclusive.
Indeed, the alterations made by petitioner are too substantial to ignore. It
was made to appear that petitioner's property is between the Carrascal
River and that of the private complainant. In the original tax declaration,
no such property existed. The new entries in effect "lessened" the area of
private complainant's property, which would have been evident had the
lot been surveyed. Moreover, the deletion of the entry "Maximo Leva" in
the south boundary of Joventino Correos' property was also prejudicial,
since this alteration had the effect of deleting the property entirely.
Petitioner in fact admitted that while he declared that the subject property
was in the name of Joventino Correos, he was in possession thereof; he
later stated that the property in his possession was declared for taxation
in the name of his father.79 From this testimony, it can be inferred that the
identities of the properties in his possession, the lot in his father's name
and that declared under Joventino Correos' name, are not certain.
While tax declarations are indicia of a valid claim of ownership, they do
not constitute conclusive evidence thereof. They are prima facie proofs of
ownership or possession of the property for which such taxes have been
paid. Coupled with proof of actual possession of the property, however,
they may become the basis of a claim for ownership. 80 Moreover, a
person who claims ownership of real property is duty bound to clearly
identify the land being claimed in accordance with the document on
which he anchors his right of ownership. Proof of ownership together with
identity of the land is the basic rule. 81
It must be stressed that the alterations made by petitioner compromised
the identity of the private complainant's property. The fact that petitioner
restored the original entries in the tax declarations is of no moment;
restoration of the entries in the tax declaration is not one of those
enumerated under Article 89 of the Revised Penal Code82 as one of the
ways by which to extinguish criminal liability. Article 89 of the Revised
Penal Code applies in a suppletory character as provided for under
Article 1083 of the same Code.84
Lastly, petitioner avers that he cannot be convicted on the basis of the
court's conclusion of land-grabbing and dispossession as no such facts
have been alleged in the information.
We do not agree. It is evident from the decisions of both the RTC and the
Sandiganbayan that petitioner was charged and convicted of violating
Section 3(e), R.A. 3019; he was not civilly held liable for dispossession of
property or eviction. The anti-graft court correctly held that the finding of
the RTC–"that there was hidden intention on the part of the petitioner to
grab and dispossess private complainant from their property"–was merely
descriptive of how petitioner acted with evident bad faith. There was thus
no need for this matter to be alleged in the information.
It bears stressing that an information needs only to allege the acts or Footnotes
omissions complained of as constituting the offense. 85 It must state only
the relevant facts, since the reason therefor could be proved during the  Penned by Associate JusticeTeresita V. Diaz-Baldos, with
1

trial.86 Thus, an allegation of evident bad faith on the part of petitioner is Associate Justices Roland B. Jurado and Ma. Cristina Cortez-
sufficient. The trial court correctly found that petitioner's hidden intention Estrada (Chairman), concurring; rollo, pp. 39-53.
to grab the land of private complainant is a manifestation of evident bad
faith, which need not be further alleged in the information. 2
 Rollo, pp. 72-77.

The penalty for violation of Section 3(e) of R.A. 3019 is provided for in 3
 Penned by Presiding Judge Romeo C. Buenaflor; rollo, pp. 54-
Section 9 of the law: 71.

SECTION 9. Penalties for violations –(a) Any public officer or private 4

 Exh. "G"; records, p. 385.
person committing any of the unlawful acts or omission enumerated in
Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for 5
 Exh. "Q"; id. at 387.
not less than six years and one month nor more than fifteen years,
perpetual disqualification from public office, and confiscation or forfeiture
in favor of the Government of any prohibited interest and unexplained
6
 Exh. "A"; id. at 388.
wealth manifestly out of proportion to his salary and other lawful income.
7
 Exh. "B"; id. at 389.
Under the Indeterminate Sentence Law, if the offense is punished by
special law, as in the present case, an indeterminate penalty shall be
8
 Exh. "C"; id. at 391.
imposed on the accused, the maximum term of which shall not exceed
the maximum fixed by the law, and the minimum not less than the 9
 Exh. "O"; id. at 392.
minimum prescribed therein.
10
 Exh. "P"; id. at 394.
In view of the circumstances obtaining in the instant case, the
Sandiganbayan correctly imposed the indeterminate prison term of six (6) 11
 Exh. "F"; id. at 395.
years and one (1) month, as minimum, to ten (10) years and one (1) day,
as maximum, with perpetual disqualification from public office. 12
 Exh. "H"; id. at 396.

IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED for 13

 Exh. "I"; id. at 397.
lack of merit. The Decision of the Sandiganbayan dated March 21, 2005
is AFFIRMED. 14
 The "new entries" are as follows:

SO ORDERED. In the south, to "Pantaleon Cervantes"; in the east, to

"Pelong Brook"; and in the west, where the entry
Ynares-Santiago, J., Working Chairperson, Austria-Martinez, and Chico- "Carrascal River" was deleted. The entry pertaining to the
Nazario, JJ., concur. location of the property was likewise changed to "Doot
Panganiban, C.J., retired as of December 7, 2006. Pelong."

15
 Exh. "J"; id. at 398.
16
 Exh. "K"; id. at 399. 37
 G.R. Nos. 105965-70, March 20, 2001, 354 SCRA 651.

17
 Exh. "D"; id. at 402. 38
 Records, pp. 274-275.

18
 Exh. "E"; id. at 403. 39
 Id. at 331.

19
 Exh. "11"; id. at 416. 40
 Id. at 287-291.

20
 Id. at 24-26. 41
 Id. at 348-349.

21
 Id. at 33. 42
 TSN, December 3, 2002, p. 3.

22
 Id. at 35-37. 43
 TSN, December 4, 2003, p. 19.

23
 Id. at 40-43. 44
 TSN, February 13, 2003, p. 2.

24
 Id. at 68-70. 45
 TSN, February 13, 2003, p. 7.

25
 Id. at 1-2. 46
 Id. at 26.

26
 The case was docketed as Crim. Case No. C-232. 47
 Id.

27
 Id. at 15. 48
 TSN, October 8, 2003, p. 2.

28
 Id. at 85-88. 49
 Id. at 16.

29
 Id. at 86. 50
 TSN, December 4, 2003, p. 2.

30
 Id. at 89. 51
 Rollo, p. 65.

31
 Id. at 138-140. 52
 Records, pp. 456-466.

32
 Id. at 143. 53
 Id. at 480.

33
 Id. at 156-159. 54
 Supra note 3.

34
 371 Phil 1, 16 (1999). 55
 Rollo, pp. 70-71.

35
 Records, pp. 185-186. 56
 Records, pp. 656-658.

36
 Id. at 189-190. 57
 Id. at 661-666.
58
 Id. at 667-669. 75
 G.R. No. 109266, December 2, 1993, 228 SCRA 214, 222.

59
 Sandiganbayan rollo, pp. 61-62.  Cabrera v. Sandiganbayan, supra, at 390; Llorente, Jr. v.
76

Sandiganbayan, supra note 69, at 399.

60
 Id. at 83-84.
77
 201 Phil 379, 384.
61
 Sandiganbayan rollo, p. 89.
78
 Cabrera v. Sandiganbayan, supra, at 389-390.
62
 Supra note 1.
 COURT: You said you declared this property in the name of
79

63
 Rollo, p. 52. Joventino Correos in tax declaration 338, when was that?

64
 Records, pp. 504-510. A: May 24, 1999.

65
 Rollo, p. 20. Q: You declared this after a request from the complainant
that you will rectify the erroneous boundary of the tax
 Santos v. People, G.R. No. 161877, March 23, 2006, 485
66 declaration?
SCRA 185, 194; Cabrera v. Sandiganbayan, G.R. Nos. 162314-
17, October 25, 2004, 441 SCRA 377, 386; and Jacinto v. A: Yes, sir.
Sandiganbayan, G.R. No. 84571, October 2, 1989, 178 SCRA
254, 259. Q: And why did you say nor (sic) that you are in the
possession of the property?
67
 Records, p. 1.
A: We are in the possession of the property.
 Alvizo v. Sandiganbayan, 454 Phil. 34, 72 (2003), citing
68

webster, third new international dictionary 1646 and bouvier's law
dictionary, 3rd ed., p. 2083.
 Sistoza v. Desierto, 437 Phil. 117, 132 (2002), citing Llorente,
69
Q: Do I understand from you while you declare this
property in the name of Joventino Correos, you are in the
possession of the property?

Jr. v. Sandiganbayan, 350 Phil. 820, 843 (1998). A: Yes, your Honor.

 Air France vs. Carrascoso, 124 Phil 722, 737 (1966), cited in
70
COURT: Proceed
Alvizo v. Sandiganbayan, supra, at 344.
Q: Mr. witness, you said you are in the possession of the
 Sistoza v. Desierto, supra note 69, at 326, citing De la Victoria
71
property that was subject of the complaint alleged
v. Mongaya, 404 Phil. 609, 619 (2001). complaint (sic) of Evelyn Correos Arpilleda before the
Barangay captain, do you have with you the tax
72
 Supra note 64. declaration of that property?

73
 Records, p. 507. A: Yes sir.

74
 Cabrera v. Sandiganbayan, supra note 66, at 386. Q: And whose name?
 A: My father, Antioco Uriarte. 86
 Cabrera v. Sandiganbayan, supra note 66, at 384.

x x x (TSN, December 5, 2003, pp. 47-48).

 De la Cruz v. Court of Appeals, G.R. No. 127593, September

80
Republic of the Philippines
30, 2003, 412 SCRA 282, 292. SUPREME COURT
Manila
 Id. at at 290; Gesmundo v. Court of Appeals, 378 Phil 1099
81

(1999). EN BANC
82
 ART. 89. How criminal liability is totally extinguished. – Criminal G.R. No. 174775               October 11, 2007
liability is totally extinguished:
PEOPLE OF THE PHILIPPINES, Appellee,
1. By the death of the convict, as to the personal vs.
penalties; and as to pecuniary penalties, liability therefore MAMERTO DULAY, Appellant.
is extinguished only when the death of the offender
occurs before final judgment. RESOLUTION

2. By service of the sentence. CARPIO, J.:

3. By amnesty, which completely extinguishes the penalty Before the Court is an appeal from the 30 June 2006 Decision 1 of the
and all its effects. Court of Appeals in CA-G.R. CR-H.C. No. 00486.

4. By absolute pardon. Mamerto Dulay (appellant) and his co-accused Diosdado Camat
(Camat), John Laurean (Laurean), Rogelio Campos, Ibot Campos, Henry
5. By prescription of the crime. Caoile (Caoile), Serafin Dulay (Dulay), and Junior Lopez (Lopez) were
charged with (1) Murder with the Use of Unlicensed Firearms docketed
6. By prescription of the penalty. as Criminal Case No. U-104982 for the death of Elmer Hidalgo; (2)
Murder with the Use of Unlicensed Firearms docketed as Criminal Case
7. By the marriage of the offended woman, as provided in No. U-104993 for the death of Marcelina Hidalgo; and (3) Frustrated
article 344 of this Code. Murder docketed as Criminal Case No. U-10502 4 for the attempt against
the life of Pedro Hidalgo. Camat, Caoile, and Lopez remained at large.
 ART. 10. Offenses not subject to the provisions of this Code. –
83 Appellant and the other accused entered their pleas of not guilty to the
Offenses which are or in the future may be punishable under charges.
special laws are not subject to the provisions of this Code. This
Code shall be supplementary to such laws, unless the latter On 3 November 1999, at around 3:00 p.m., in Barangay Anis, Laoac,
should specially provide the contrary. Pangasinan, Corazon Domingo, Ricardo, Pedro, Juanito, Abelardo,
Anastacio, Lydia, Aurelio, Marcelina, and Elmer, all surnamed Hidalgo,
 Cruz v. Sandiganbayan, G.R. No. 134493, August 16, 2005,
84 were sitting on a bench in front of the house of Juanito. They were
467 SCRA 52. conversing when the motorcycle driven by Rogelio Campos passed by.
On the third time, a certain Pilo Cabingas was backriding on the
85
 Id. at 64. motorcycle. Shortly thereafter, shots were heard and the witnesses saw
all of the accused firing long and short firearms at the direction of those
sitting on the bench. The witnesses positively identified appellant and
Camat as the ones holding long firearms while the other accused as the
ones holding short firearms. As a result of the shooting incident,
Marcelina and Elmer Hidalgo were killed while Juanito and Pedro Hidalgo
were wounded.
All the accused denied the charges against them. Appellant alleged that
at the time of the incident, he was at the place of his brother Maximo
Dulay at Salcedo, Ilocos Sur. He was borrowing money for his wife’s
placement fee. Appellant alleged that, together with Bong De Guia and
Marcos Suyat, he helped his brother dry "palay" from 12:00 noon to 5:00
p.m.
The Regional Trial Court of Urdaneta City, Pangasinan, Branch 46 (trial
court) acquitted Laurean, Rogelio Campos, Ibot Campos, and Dulay.
However, the trial court found appellant guilty beyond reasonable doubt
of the charges against him. The dispositive portion of the trial court’s
Decision5 reads:
WHEREFORE, JUDGMENT is hereby rendered:
1. In CRIM. CASE NO. U-10499, CONVICTING beyond
reasonable doubt MAMERTO DULAY of the crime of Murder with
the Use of Unlicensed Firearm and the Court sentences him to
suffer the penalty of DEATH to be implemented in the manner as
provided for by law; the Court, likewise, orders him to indemnify
the heirs of Marcelina Hidalgo the sum of ₱75,000.00, as moral
damages; ₱50,000.00 as exemplary damages plus ₱22,000.00
as actual damages.
Accused Ibot Campos, Rogelio Campos, Serafin Dulay and John
Laurean are hereby ACQUITTED for failure of the prosecution to
prove their guilt beyond reasonable doubt.
2. In CRIM. CASE NO. U-10498, CONVICTING beyond
reasonable doubt MAMERTO DULAY of the crime of Murder with
the Use of Unlicensed Firearm and the Court sentences him to
suffer the penalty of DEATH to be implemented in the manner as
provided for by law; the Court, likewise, orders him to indemnify
the heirs of Elmer Hidalgo the sum of ₱75,000.00 as moral
damages and the further sum of ₱50,000.00 as exemplary
damages;
Accused Ibot Campos, Rogelio Campos, Serafin Dulay and John
Laurean are hereby ACQUITTED for failure of the prosecution to
prove their guilt beyond reasonable doubt.
3. In CRIM. CASE NO. U-10502, CONVICTING beyond
reasonable doubt MAMERTO DULAY of the crime of Frustrated
Murder and the Court sentences him to suffer an imprisonment of
ten years and one day of Prision Mayor as minimum to twenty
years of Reclusion Temporal as maximum; the Court, likewise,
orders him to indemnify the heirs of Pedro Hidalgo the sum of
₱50,000.00 as moral damages and the further sum of ₱20,000.00
as exemplary damages.
Accused Ibot Campos, Rogelio Campos, Serafin Dulay and John
Laurean are ACQUITTED for failure of the prosecution to prove
their guilt beyond reasonable doubt.
The Clerk of Court is hereby ordered to prepare the mitimus and to
transmit the complete records of Criminal Cases Nos. U-10498 and U-
10499 to the Honorable Supreme Court of the Philippines for automatic
review immediately.
The jail Warden, Bureau of Jail Management and Penology (BJMP),
Urdaneta District Jail, Urdaneta City is hereby ordered to deliver the living
person of Mamerto Dulay to the National Bilibid Prison, Muntinlupa City,
immediately upon receipt of this Decision.
On the other hand, the Jail Warden, Bureau of Jail Management and
Penology, Urdaneta District Jail, Urdaneta City, is hereby ordered to
release from detention the living persons of Ibot Campos, Rogelio
Campos, Serafin Dulay and John Laurean immediately upon receipt of
this Decision, unless they are being detained for another lawful cause/s.
Let alias warrants of arrest be issued against Diosdado Camat, Henry
Caoile and Junior Lopez for their apprehension.
SO ORDERED.6
The records of the cases were forwarded to this Court for automatic
review and docketed as G.R. Nos. 148880-82. In a Resolution dated 1
December 2004,7 the cases were transferred to the Court of Appeals
pursuant to the Decision of this Court in People v. Mateo.8 In its 30 June
2006 Decision, the Court of Appeals affirmed the trial court’s Decision.
Hence, the appeal before this Court.
The main issue is whether appellant’s guilt was proven beyond
reasonable doubt.
The appeal has no merit.
Appellant argues that he was convicted based on contradictory and
improbable testimonies of prosecution witnesses. He argues that it was
improbable for the witnesses to look at the faces of the persons firing at
them when they were more concerned with taking cover for their safety.
Appellant further argues that since his supposed co-conspirators were
acquitted, he should also be acquitted since they were alleged to have
conspired to commit the crimes charged.
We do not agree. A few discrepancies and inconsistencies in the
testimonies of witnesses referring to minor details do not impair their
credibility.9 Minor inconsistencies even tend to strengthen the credibility
of a witness because they discount the possibility that the testimony was
rehearsed.10 As regards the actuations of the witnesses at the time of the
incident, it is settled that there is simply no standard form of behavioral
response that can be expected from anyone when confronted with a
strange, startling, or frightful occurrence.11
We agree with the Court of Appeals that we may no longer review the
acquittal of the other accused. A verdict of acquittal is immediately
final.12 However, the acquittal of his co-accused does not necessarily
benefit appellant. In People v. Uganap,13 appellant questioned the trial
court’s decision which convicted him alone of murder and acquitted the
rest of the accused. The Court ruled that appellant may not invoke the
acquittal of the other conspirators to merit the reversal of his
conviction.14 The Court declared:
There is nothing irregular with the acquittal of one of the supposed co-
conspirators and the conviction of another. Generally, conspiracy is only
a means by which a crime is committed as the mere act of conspiring is
not by itself punishable. Hence, it does not follow that one person alone
cannot be convicted when there is a finding of conspiracy. As long as the
acquittal of a co-conspirator does not remove the basis of a charge of
conspiracy, one defendant may be found guilty of the offense. 15
We also reject appellant’s defense of alibi. Positive identification, where
categorical, consistent, and not attended by any showing of ill motive on
the part of the witnesses testifying on the matter, prevails over alibi and
denial which, if not substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving weight in law. 16
Appellant also argues that the trial court erred in appreciating against him
the aggravating circumstances of treachery and use of unlicensed
firearm.
There is treachery when the offender commits any of the crimes against
persons, employing means, methods, or forms in their execution, without
risk to himself arising from the defenses which the offended party might
make.17 The essence of treachery is the unexpected and sudden attack
on the victim which renders him unable and unprepared to defend himself
due to the suddenness and severity of the attack.18 In this case, the
victims were conversing in front of the house of Juanito Hidalgo when
they were suddenly fired upon. They had no way of knowing that the
attack would be made and they had no opportunity to defend themselves.
Hence, both the trial court and the Court of Appeals correctly appreciated
the aggravating circumstance of treachery.
The existence of the firearm can be established by testimony, even
without the presentation of the firearm. 19 It was established that Elmer
and Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot
wounds. The ballistic examination of the slugs recovered from the place
of the incident showed that they were fired from a .30 carbine rifle and a .
38 caliber firearm. The prosecution witnesses positively identified
appellant as one of those who were holding a long firearm. It was
established that appellant was not a licensed firearm holder. Hence, the
trial court and the Court of Appeals likewise correctly appreciated the use
of unlicensed firearm as an aggravating circumstance.
Pursuant to Republic Act No. 9346, 20 we modify the penalty imposed on
appellant in Criminal Case Nos. U-10499 and U-10498 from death
to reclusion perpetua without eligibility for parole.
1âwphi1
When death occurs as a result of a crime, the heirs of the deceased are
entitled to such amount as indemnity for death without need of any
evidence or proof of damages.21 Consistent with recent jurisprudence, we
award the heirs of Marcelina Hidalgo ₱50,000 and the heirs of Elmer
Hidalgo ₱50,000 as indemnity for their deaths. 22 However, we reduce the
award of moral damages from ₱75,000 to ₱50,000 and the award of
exemplary damages from ₱50,000 to ₱25,000.23
In Criminal Case No. U-10502, appellant was found guilty beyond ANTONIO T. CARPIO
reasonable doubt of frustrated murder. Under Article 50 of the Revised Associate Justice
Penal Code, the penalty next lower in degree than that prescribed by law
for the consummated felony shall be imposed upon the principal in a WE CONCUR:
frustrated felony. Hence, the penalty imposable upon appellant for
frustrated murder is reclusion temporal. Applying the Indeterminate REYNATO S. PUNO
Sentence Law and considering the attendant aggravating circumstances, Chief Justice
the penalty imposed by the trial court falls within the range of the proper
imposable penalty of prision mayor (6 years and 1 day to 12 years)
to reclusion temporal in its maximum period (17 years, 4 months and 1 LEONARDO A. CONSUELO YNARES-
day to 20 years). However, the trial court erroneously awarded damages QUISUMBING SANTIAGO
to the heirs of Pedro Hidalgo instead of to the victim himself. We reduce Associate Justice Associate Justice
the award of moral damages from ₱50,000 to ₱25,000 and increase the
award of exemplary damages from ₱20,000 to ₱25,000. 24 ANGELINA SANDOVAL- MA. ALICIA AUSTRIA-
GUTIERREZ MARTINEZ
WHEREFORE, we AFFIRM the 30 June 2006 Decision of the Court of Associate Justice Associate Justice
Appeals in CA-G.R. CR-H.C. No. 00486 with MODIFICATION.
CONCHITA CARPIO
In Criminal Case No. U-10499, appellant Mamerto Dulay is found RENATO C. CORONA
MORALES
GUILTY beyond reasonable doubt of the crime of Murder with the Use of Associate Justice
Associate Justice
Unlicensed Firearm and is SENTENCED to suffer the penalty
of reclusion perpetua without eligibility for parole. He is ORDERED to pay
ADOLFO S. AZCUNA DANTE O. TINGA
the heirs of Marcelina Hidalgo the sum of ₱50,000 as indemnity for
Associate Justice Associate Justice
death, ₱50,000 as moral damages, ₱25,000 as exemplary damages, and
₱22,000 as actual damages.
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
In Criminal Case No. U-10498, appellant Mamerto Dulay is found Associate Justice Associate Justice
GUILTY beyond reasonable doubt of the crime of Murder with the Use of
Unlicensed Firearm and is SENTENCED to suffer the penalty PRESBITERO J. VELASCO, ANTONIO EDUARDO B.
of reclusion perpetua without eligibility for parole. He is ORDERED to pay JR. NACHURA
the heirs of Elmer Hidalgo the sum of ₱50,000 as indemnity for death, Associate Justice Associate Justice
₱50,000 as moral damages, and ₱25,000 as exemplary damages.
RUBEN T. REYES
In Criminal Case No. U-10502, appellant Mamerto Dulay is found
Associate Justice
GUILTY beyond reasonable doubt of the crime of Frustrated Murder and
is SENTENCED to suffer the indeterminate penalty of ten years and one
day of prision mayor as minimum to twenty years of reclusion temporal as CERTIFICATION
maximum. He is ORDERED to pay Pedro Hidalgo the sum of ₱25,000 as
moral damages and ₱25,000 as exemplary damages. Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation
SO ORDERED. before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice
 16
 People v. Barcino, Jr., 467 Phil. 709 (2004).

 People v. Piliin, G.R. No. 172966, 8 February 2007, 515 SCRA

17

Footnotes 207.

 Rollo, pp. 3-22. Penned by Associate Justice Hakim S.

1 18
 Id.
Abdulwahid with Associate Justices Andres B. Reyes, Jr. and
Estela M. Perlas-Bernabe, concurring. 19
 People v. Malinao, 467 Phil. 432 (2004).

2
 CA rollo, pp. 14-16.  An Act Prohibiting the Imposition of Death Penalty in the
20

Philippines. Approved on 24 June 2006.

3
 Id. at 17-19.
 Cabuslay v. People, G.R. No. 129875, 30 September 2005, 471
21

4
 Rollo, p. 6. No copy of the Information was attached to SCRA 241.
the rollo but it was recited in the Court of Appeals’ Decision.
22
 Supra note 17.
5
 CA rollo, pp. 56-76. Penned by Judge Modesto C. Juanson.
23
 Id.
6
 Id. at 74-76.
24
 Martinez v. Court of Appeals, G.R. No. 168827, 13 April 2007.
7
 Rollo, p. 213.

8
 G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

 Mamangun v. People, G.R. No. 149152, 2 February 2007, 514

9

SCRA 44.

10
 Id.

 People v. Dulanas, G.R. No. 159058, 3 May 2006, 489 SCRA

11

58.

 People v. Court of Appeals, G.R. No. 159261, 21 February

12

2007.

13
 G.R. No. 130605, 19 June 2001, 358 SCRA 674.

14
 Id. at 684.

 Id., citing People v. Arlalejo, G.R. No. 127841, 16 June 2000,

15 Republic of the Philippines
333 SCRA 604. SUPREME COURT
Manila
 EN BANC
G.R. No. 168173             December 24, 2008
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FO1 FELIPE DELA CRUZ y REYES, AUDI DONA y BINAN, ALFREDO
BARACAS y CONCEPCION, EDUARDO PALACPAC y ROSALES,
BERNARDO RANARA y MORATALLA, JOEMARI DE LOS REYES y
CONCEPCION, DOMINADOR RECEPCION y PALASO, and ROBERT
ALFONSO y MARTIZANO, accused-appellants.
DECISION
BRION, J.:
For our review on automatic appeal is the March 15, 2005 decision 1 of
the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00570 that fully
affirmed the February 9, 2000 decision2 of the Regional Trial Court
(RTC), Branch 219, Quezon City. The RTC decision found the accused-
appellants Fire Officer 1 Felipe dela Cruz y Reyes (FO1 dela Cruz),
Audie Dona y Binan (Audie), Alfredo Baracas y Concepcion (Alfredo),
Eduardo Palacpac y Rosales (Eduardo), Bernardo Ranara y Moratalla
(Bernardo), Joemari delos Reyes y Concepcion (Joemari), Dominador
Recepcion y Palaso (Dominador), and Robert Alfonso y Martizano
(Robert) guilty of the special complex crime of robbery with homicide and
robbery in band. Accordingly, the RTC sentenced them to suffer the
death penalty for robbery with homicide, and an indeterminate penalty of
six (6) years prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum, for robbery in band.
BACKGROUND
The prosecution charged the appellants before the RTC with the special
complex crime of robbery with homicide and robbery in band under two
separate Informations which state:
Criminal Case No. Q-99-85787 (Robbery with Homicide)
That on or about 2:15 a.m. on July 28, 1999 in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
aforenamed accused, conspiring, confederating and mutually
helping each other, did then and there willfully, unlawfully and
feloniously, with intent of gain by means of force, violence and
intimidation upon Joselito Herrera, Joel Dizon, Rosie Anonuevo,
Kuraishi Macapundag and Edwin Gultiano Arcenas, Felipe dela
Cruz and Nestor Mayagma, sales and security personnel of
Seven-Eleven Convenience Store at Mindanao corner Tandang
Sora Avenue, aimed their firearms at said victims and repeatedly
firing the same, accused forcibly take and carry away the
following described property:
Cash money amounting to P1,600.00 belonging to 7-11
Convenience Store
2 cash registers valued at P64,000.00           -do-
Cellphone cards P60,000.00           -do-
to the damage and prejudice of said owners and that, by reason
or on the occasion of said robbery, accused with treachery and
use of superior force, nighttime, with the use of unlicensed
firearms, shot and killed Seven Eleven Security Guard NESTOR
MAYAGMA and PTV 4 ELMER DUQUE, who were likewise
divested of a cal. 38 Squires revolver with SN-61900 (licensed to
Leopard Integrated Services, Inc.) valued at P10,000.00 and
wallet with money, respectively, to the damage and prejudice of
said deceased’s heirs in the said amount.
CONTRARY TO LAW.3
Criminal Case No. Q-99-85788 (Robbery in Band)
That on or about 1:45 a.m. on July 28, 1999 in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
aforenamed accused, acting in concert, conspiring, confederating
and mutually helping each other, did then and there willfully,
unlawfully and feloniously, with intent of gain by means of threats,
force, violence and intimidation upon Robert Lagua and Rommel
Varron pump attendants of Petron Gas Station, Petron Plaza, Inc.
owned by Frewinda Robosa located at Commonwealth Branch
located at Commonwealth Branch, Old Balara, Quezon City,
armed with unlicensed firearms, accused forcibly take, carry away
and divested said establishment of cash money amounting
to P8,055.00 and assorted Petron products valued at P7,000.00
to the damage and prejudice of said victim(s).
 CONTRARY TO LAW.4
The appellants were duly arraigned, pleading "not guilty" to the charges
laid.
The prosecution presented the following witnesses in the joint trial that
ensued: Joel Dizon (Joel); Joselito Herrera (Joselito); Florencio
Cabalbag, Jr. (Florencio); Kuraishi Makapundag (Kuraishi); Allan
Taparano (Allan); Conrado Marquez, Jr. (Conrado); Rosanna Quintos-
Duque (Rosanna); Ruben Labjata5 (Ruben); Senior Police Officer 2
Bayani Gotera (SPO2 Gotera); Jesus Macalino (Jesus); Edwin Gultiano
(Edwin); Rommel Varron (Rommel); Corazon Rodil Gloria (Corazon); and
Police Inspector Rodrigo Salamat (P/Insp. Salamat).
The appellants, Jose Villanueva (Jose) and Fire Officer 2 Edgardo
Sambo (FO2 Sambo) testified for the defense.
The RTC summarized the testimony of Joel as follows:
JOEL DIZON, 7-Eleven graveyard shift supervisor, narrated that
while he was arranging the merchandise on the store gondola, he
heard gunshots coming from the position of their security guard
near the counter; that slowly, he crawled towards the door of the
back room from where, when he looked back, he saw their guard,
Nestor Mayagma, engage [sic] in a shoot-out with someone near
the entrance door; that he heard about five (5) gunshots; that he
went inside the back room followed by Joselito Herrera and then,
through a passage, they ended up behind the Slurpee
machine;6 that through a gap between the machines, he saw a
man, JOEMARI DE LOS REYES, carrying a revolver just in front
of the machine and dragging the delivery boy of the Smacker’s
Bakeshop; that Joemari de los Reyes then went to the counter
and, together with another man, FO1 FELIPE DELA CRUZ, took
Rose Añonuevo, their cashier, inside the back room; 7 that the two
asked her "Nasaan and may hawak ng susi?" (referring to the
one who had the keys to the cash register); that when they could
not find him, the two took the cash registers with them and left;
that he saw six other persons who went out but was not able to
recognize them as he saw their backs only; that thereafter, he
heard two more gunshots; that later, when he saw the ABS-CBN
people enter the store, he pushed the machine aside, came out,
and saw Mayagma sprawled on the floor; that Rose Añonuevo
was in the back room and was still in a state of shock; that
thereafter, he called the head of their security and they checked
the items; and that he noticed that the phone cards and the body
sprays were missing.8 [Italics and footnotes referring to the
pertinent part of the records supplied]
Joselito, the assistant lead clerk of the 7-Eleven Convenience Store,
essentially corroborated Joel’s testimony. He added that while peeping
from the back of the Slurpee machine, he saw appellant Robert giving
orders. Fearing for his safety, he (Joselito) bowed his head, turned his
back and said a prayer. He and Joel came out from their hiding place
when the media arrived ten (10) minutes after the robbery. 9 He then saw
the bloodied body of their security guard, Nestor Mayagma (Nestor),
sprawled on the floor. He went back to the storeroom to calm himself.
Afterwards, someone told him to bring Nestor to the hospital as he was
still alive. He brought Nestor to the Lanting General Hospital where the
latter soon after died.10
Florencio, the security officer and general services supervisor of Phil-
Seven Corporation, declared on the witness stand that after conducting
an investigation, he found that the total items taken by the robbers
amounted to P84,060.00.11
The RTC summarized the testimony of Kuraishi as follows:
KURAISHI MACAPUNDAG, a 29-year-old messenger of the
Finance Department of PTV-4, recalled that on the early morning
of July 28, 1999, he joined Elmer Duque in his car going home;
that they stopped at 7-Eleven because Elmer wanted to buy
"pambaon" for his children; that he got off the car first and when
he entered the store, he noticed a hold-up in progress because
there were persons lying face down on the floor; 12 that he then
came face to face with a person, BERNARDO RANARA, carrying
a gun; that he walked around the store and then heard another
shot; that upon hearing the shot, he went out and saw Elmer
Duque bloodied and motionless on the ground; that he got
scared, ran away towards the direction of Tandang Sora, heard
two more shots, and eventually hid behind the trees; that after
two hours, he returned to 7-Eleven but the gunmen were no
longer there; and that on his way home, he heard over the radio
that Elmer Duque had passed away.13 [Italics and footnotes
referring to the pertinent part of the records supplied]
Allan, a cook at King Dimsum (a restaurant adjacent to the 7-Eleven
Convenience Store), narrated that at around 2:00 a.m. of July 28, 1999,
while he and his three (3) co-workers were cleaning the restaurant, he
heard several gunshots. When they went out, he saw Diosdado peeping
through the glass panel of the 7-Eleven Convenience Store. 14 Thereafter,
Diosdado pulled out a gun and entered the 7-Eleven Convenience Store;
once inside, he bent a little and fired a shot. He further testified that he
saw a man wearing a violet t-shirt pointing a gun at the people inside the
convenience store. Afterwards, Diosdado went out towards their
direction. As a result, he and his three (3) companions ran towards the
kitchen of King Dimsum.15
From inside the kitchen, he saw Diosdado approach two (2) taxicabs
parked in front of the King Dimsum, wake up the drivers, and hold them
up. Diosdado then proceeded towards a passenger jeepney parked
under a Sampaloc tree.16 Suddenly, a maroon car arrived and parked
near the 7-Eleven Convenience Store. The car’s passenger alighted first
and went inside the store. When the car’s driver alighted from the car,
Diosdado pointed his gun at the driver who raised his hands. At that
point, Diosdado shot him in the chest. Fearing for his life, he (Allan) ran
towards the bakery beside the restaurant. He heard two (2) more
gunshots but did not see who fired them. 17
Conrado, a tricycle driver plying the Paniqui, Tarlac highway, recalled
that at around 5:00 a.m. of July 28, 1999, while he was waiting for
passengers, a green jeepney stopped and eight (8) untidy men alighted.
Four (4) of them boarded his tricycle, while the others boarded another
tricycle.18 He recalled the faces of two of his passengers - Joemari, who
paid the fare, and Diosdado. 19 The men alighted at Barangay Coral,
Ramos, Tarlac. Thereafter, he returned to the highway and continued to
ply his route until 8:00 a.m. At around 12:00 a.m. of July 29, 1999, he
returned to the highway and overheard a certain Ate Fe talking to about
eight (8) persons the Caloocan Police was looking for. He approached
Ate Fe and informed her that he knew something about these eight (8)
men. Ate Fe relayed the information to another tricycle driver who, in
turn, reported it to the police.20 Thereafter, the Paniqui police came and
brought him to the police headquarters.21 He accompanied the police to
the place where he brought his four (4) passengers. They subsequently
returned to the police station where the police had a brief meeting before
returning to where he had brought his passengers. 22 He was
subsequently brought to the Caloocan Police Station where he gave two
(2) sworn statements. He also later identified Joemari at the police station
in a police line-up of twelve (12) men. 23
Rosanna, widow of Elmer, testified that her husband received a monthly
salary of P11,400.00 working as a cameraman for PTV-4; and that she
incurred P138,070.00 as expenses for the funeral and burial of her
husband.24
The testimony of Ruben, the driver of the jeepney, appeared in the RTC’s
decision as follows:
RUBEN LABAJATA, a 29-year-old Waray jeepney driver plying
the Monumento-Paco-Bulacan route and a resident of Taliptip,
Bulacan, Bulacan, related that between 1:00 and 2:00 o’clock in
the early morning of July 28, 1999, he parked his jeepney at the
terminal in Dagohoy, Monumento, Kalookan City; that while he
and his passengers were waiting, they suddenly heard shots
coming from a nearby place; that he got scared so he decided to
leave but the jeepney could not start immediately;25 that while he
was trying to do it, [sic] somebody poked a gun at him and
ordered all his passengers to get out; that two of the gunman’s
companions sat on his right side and one on his left side while the
others boarded it from the rear; that while they were moving, he
looked at them, through his rear view mirror, from time to time
("nasusulyapan ko rin"); that the person who sat on his left was
ROBERT ALFONSO while the two who were on his right were
EDUARDO PALACPAC and AUDIE DONA; that seated behind
him on the left side were BERNARDO RANARA, DOMINADOR
RECEPCION, and JOEMARI DE LOS REYES while on the right
were ALFREDO BARACAS and DIOSDADO RECEPCION; that
from the terminal, he was ordered to drive the jeepney until they
reached a Petron gas station in Quezon City where they loaded
fuel; that Robert Alfonso then alighted and asked the gasoline
boy where the cashier was and then the others also alighted; and
that when the others returned, he noticed that they were carrying
fluid.26
xxxx
[He] further narrated that from the gas station, they stopped by a
7-Eleven store; that the men alighted but two remained beside
the jeep guarding him; that he noticed that there were two
taxicabs parked then; that he then heard successive gunshots;
and that the others rushed to the jeepney and he heard
"kalabugan" with something like a heavy metal object "na
makalansing" was being loaded.27
xxxx
After the carnage at 7-Eleven, [He] added that he just drove as
instructed until they reached the Balintawak area where he heard
that they would be going to Paniqui, Tarlac, because one of them
had relatives there; that on their way, he heard the gunmen
hammering the heavy object; that before reaching another Petron
gas station in Bocaue, Bulacan, he was asked to slow down and
then the men threw something heavy there; that it was already
dawn when they reached Tarlac and he sensed that he would be
done away with when he heard the word "tumba"; that he pleaded
for his life telling them that he had two children and his wife was
on the family way; that he was able to convince them and his life
was spared on condition that he would follow their instructions;
that upon reaching an intersection in Paniqui, Tarlac, the men
alighted and ordered him to turn back and not to look back
anymore; and that he was warned not to report to the police
because if they would find out that he did, they would get back at
him.28
xxxx
On his way back from Paniqui, Tarlac, [He] further recalled that
feeling relieved, he went home to Bulacan which he reached at
10:00 o’clock in the morning; that he immediately looked for the
owner of the jeepney but he could not find him; that he parked the
jeepney in the garage and proceeded to their house but his wife
was not there; that his relatives had learned of what happened
and so when they saw each other in his sister’s house, they
embraced each other; that while they were talking to each other,
a barangay officer came and informed him that the police were
looking for him; that they went to the police station in Bulacan,
Bulacan and then to the police station in Malolos, Bulacan, where
he was suspected to be one of the robbers and interrogated; that
in Malolos, when it was already dark, he was picked up by a
certain Major Borromeo; that he told Major Borromeo what
happened and later accompanied them to Paniqui, Tarlac, where
he dropped off the gunmen; that eventually, he was brought to
the police station in Tarlac, Tarlac29 where later on, BERNARDO
RANARA, ROBERT ALFONSO, DOMINADOR RECEPCION,
JOEMARI DE LOS REYES, ALFREDO BARACAS and AUDIE
BONA were presented to him; that from Tarlac, they went back to
Kalookan City where his statement was taken, and that he saw
the men again including DIOSDADO RECEPCION at the
PAOCTF, Camp, Crame.30 [Italics and footnotes referring to the
pertinent part of the records supplied]
SPO2 Gotera, a police officer assigned at the Caloocan Police Station,
testified that on July 28, 1999, he received a call from Superintendent
Tinio of the Malolos Provincial Command informing him that the driver
and the jeepney used by the suspects in a Caloocan robbery were
already in their custody.31 Responding to this development, he went to
Malolos City (together with Major Borromeo, PO2 Arnold Gonzales
and Bandera reporter Yoyoy Alano) and interrogated the driver. The latter
told him that a group of armed men boarded his vehicle and held-up the
Petron Gasoline Station and the 7-Eleven Convenience Store along
Commonwealth, and, using his vehicle, proceeded to Paniqui, Tarlac. 32
He and his companions forthwith went to Paniqui. In coordination with the
Paniqui police, they went to the place where the jeepney driver dropped
off the suspects. They located Conrado – the driver of the tricycle used
by four (4) of the suspects after alighting from the jeepney. Conrado led
them to the compound where he brought the suspects.33
On July 29, 1999, at around 4:00 a.m., SPO2 Gotera, together with other
members of the Tarlac police, returned to Barangay Coral, Paniqui,
Tarlac and surrounded the compound previously identified by Conrado as
the place where he brought the suspects. An elderly man – later
identified to be the father of FO1 dela Cruz - came out and was
confronted by the police. He informed the police that there were eight (8)
men inside their house. The police asked him to bring out his son. He did
as bidded and came out with FO1 dela Cruz who was carrying a gun but
who put it down when asked to do so by the police. 34 FO1 dela Cruz
thereafter told his companions to surrender but they refused to come out,
prompting the police to give them an ultimatum. It was only then that the
remaining seven (7) suspects came out and surrendered. They were
identified as Alfredo Baracas, Audie Dona, Dominador Recepcion, Robert
Alfonso, Joemari delos Reyes, Eduardo Palacpac, and Bernardo
Ranara.35
Jesus, a tricycle driver in Paniqui, Tarlac, corroborated the testimony of
Conrado on material points. He added that he recognized one of his
passengers – Eduardo – because the latter took some time in paying
the P5.00 fare.36
Edwin, delivery boy of Smacker’s Bakeshop, testified that he was
delivering bread to the 7-Eleven Convenience Store at Mindanao Avenue
corner Tandang Sora at around 2:00 a.m. of July 28, 1999. After the
security guard signed the delivery receipt, three (3) men who pretended
to be customers entered the 7-Eleven Convenience Store and went to
different sections of the store.37 Suddenly, another man - FO1 dela Cruz -
shot the security guard from outside the store’s glass door, shattering it.
In retaliation, the security guard pulled out his gun and fired back. At this
point, Joemari (one of the men who had earlier entered and who was
behind him) pulled him down and ordered Edwin to lie face down. 38 While
the latter was in this position, Joemari took his watch and wallet. 39 He saw
FO1 dela Cruz enter the store and gunshots followed afterwards. Joemari
then held him and told Edwin to open the cash register. When he replied
that he was not a personnel of the 7-Eleven Convenience Store, Joemari
ordered him to remain lying on the floor. 40
Rommel, a pump attendant at the Petron Gasoline Station,
Commonwealth Avenue, narrated that between 1:00 and 2:00 a.m. of
July 28, 1999, while he was at the gasoline station with Robert Laggua
(Robert, a gasoline boy) and Randy Azurin (Randy, the station’s cashier),
a passenger jeepney arrived and proceeded to the third lane. While he
was loading the jeepney with fuel, he recognized appellant Audie - who
was seated beside the driver - and saw eight (8) other persons inside the
jeepney. After the driver paid him P100.00, two of the jeepney’s
passengers approached him; one of them, FO1 dela Cruz, pointed a gun
at him, hit him on the nape, got back the P100.00 bill, and asked him
where the station’s money was hidden. He told FO1 dela Cruz that the
money was in the second lane’s vault. Diosdado and Joemari went to the
second lane and took the money from there as well as other
products.41 They also pointed a gun at Robert and Randy, brought them
to the middle lane, and told them not to run or report to the police.
Thereafter, they all returned to the jeepney and left. 42
Corazon, general supervisor of Petron Gasoline Station, confirmed that
the robbers took P8,000.00 and assorted Petron products
worth P7,000.00 from the gas station. 43
P/Insp. Salamat, PNP ballistician, testified that of the five (5) firearms
submitted to the PNP Crime Laboratory for examination, three (3) were
found to be positive, namely: caliber .38 Armscor revolver with Serial No.
51952; caliber .38 Armscor revolver with Serial No. 790006; and caliber .
38 revolver Protector with Serial No. BR02982744. He explained that the
term "positive" meant that the "tested fired bullet coming from the three
firearms revealed the same individual characteristics as the evidence
bullet recovered at the crime scene and extracted from the cadavers." 44
The appellants gave a different version of the events.
As summarized by the RTC, Dominador, Robert, and Eduardo testified
that –
DOMINADOR RECEPCION, EDUARDO PALACPAC and
ROBERT ALFONSO, who introduced themselves as co-workers
at Greenwoods, Cainta, Rizal, claimed that in the early morning of
July 28, 1999, Dominador Recepcion and Eduardo Palacpac
were at their worksite while Robert Alfonso was in Bulacan. They
testified that with the intention of going to Tarlac to recruit
Joemari de los Reyes to augment their manpower requirement,
Dominador Recepcion and Eduardo Palacpac left Cainta at 8:00
o’clock in the morning; that at 9:00 o’clock, the two fetched
Robert Alfonso in Obando, Bulacan, and the three of them arrived
in Ramos, Tarlac at past noontime; that they saw Joemari in his
aunt’s house at Brgy. Pansi, Ramos, but they did not stay long
there because they all went to Joemari’s cousin’s place, FO1 de
la Cruz, at Brgy. Coral, Ramos;45
[T]hat when they reached the place, they saw only the parents of
FO1 de la Cruz who told them that he was at the wake of a
cousin; that after his parents had called him, FO1 de la Cruz
came and said that they would slaughter a dog and drink which
they did;46 that Alfredo Baracas and Audie Dona, friends of
Joemari de los Reyes, later joined them; that FO1 de la Cruz,
however, did not drink; that Dominador Recepcion helped in the
slaughtering of the dog and since there was a rain shower at that
time, he used a match; that Robert Alfonso helped build the fire;
that Eduardo Palacpac just sat around and did not help except
slice the ingredients.47
[T]hat at 6:00 o’clock, they stopped drinking after consuming four
bottles of gin and FO1 dela Cruz requested them to stay over for
the night because he and Joemari had not seen each other for a
long time; that the three of them went with FO1 de la Cruz and
Joemari delos Reyes to the wake; that Audie Dona and Alfredo
Baracas did not join; that at around 1:00 o’clock in the morning of
the following day, they returned to the house of FO1 de la Cruz;
that they slept in the said house until the next morning when they
were awakened and apprehended by the police; that they were
brought to the Paniqui Police Station and then airlifted by
helicopter straight to Camp Crame where they were met by the
media and police officers; that at Camp Crame, they were placed
 in a 12-man line-up each with numbered tags but no names; that
they were repeatedly beaten before they were presented to he
media; that one Atty. Rous asked them if they had been tortured
and they showed him the bruises they had sustained; and that
later, Atty. Rous prepared a waiver for them which they did not
understand.48 [Footnotes referring to the pertinent part of the
records supplied]
Bernardo claimed that in the evening of July 28 1999, he went to the
house of FO1 dela Cruz to attend the wake of the latter’s cousin.
According to him, he knew FO1 dela Cruz because he had been
introduced to him by Joemari. When he arrived at the house at around
8:00 p.m., FO1 dela Cruz was not yet there; however, he saw Alfredo
and Audie. While waiting for FO1 dela Cruz, he fell asleep. 49 In the early
morning of the next day, he was roused from sleep when the police
arrived and arrested him and the other people inside the house. They
were brought to the Paniqui Police Station where their pictures were
taken. Thereafter, they were taken to the PAOCTF Office at Camp
Crame on board a helicopter. Upon their arrival, they were presented to
the reporters; afterwards, they were severely beaten, tortured and
humiliated by the police.50
Joemari testified that in the early morning of July 28, 1999, he was
sleeping at his aunt’s house at Barangay Pansi, Tarlac.51 At around 1:00
p.m., his uncle Dominador, together with Robert and Eduardo, came to
see him and invited him to work with them in Cainta. He told them that he
would first go to the house of his cousin FO1 dela Cruz. They proceeded
together to FO1 dela Cruz’s house but he was not there. When FO1 dela
Cruz arrived, he introduced Dominador, Alfonso and Eduardo to him.
Afterwards, they slaughtered a dog and drank four (4) bottles of gin.
Afterwards, Audie and Alfredo arrived, followed by Bernardo; the three
(3) then joined them in drinking gin. Thereafter, he, together with FO1
dela Cruz, Roberto, Dominador and Eduardo went to the wake of FO1
dela Cruz’ cousin. They returned to the house at around 1:00 a.m. and
slept there. They were roused from their sleep when the police arrived
and ordered them to come out. When they came out, the police ordered
them to undress and lie face down on the ground. Thereafter, they were
handcuffed and brought to the Paniqui Police Station. After General
Lacson arrived, they were placed on board a helicopter and taken to
Camp Crame.52
On cross-examination, he admitted that on November 22, 1999, he tried
to escape from police custody by jumping out of the Jail Management
and Penology vehicle, but explained that he only followed Diosdado,
Bernardo and a certain Kasoy – who all jumped out of the vehicle first. 53
The RTC summarized the testimonies of Alfredo and Audie in this
manner:
ALFREDO BARACAS and AUDIE DONA were neighbors in
Pasig City and both claimed that on the early morning of July 28,
1999, they were in Villacorta, Mabini, Pangasinan because the
grandmother of Baracas was dying. They further narrated that at
past 11:30 o’clock of that day, while they were preparing to go
back to Manila, Baracas told Audie Dona that they would pass by
Tarlac to see his cousin, Joemari de los Reyes, because the
latter had plenty of vegetables and fish and he wanted to bring
some to Manila;54 that at past noontime, they arrived at the place
of Joemari but he was not there; that his aunt said that he was at
the fishpond so they followed him there; that later, they went to
the house of FO1 Felipe de la Cruz where they saw Joemari de
los Reyes with FO1 de la Cruz, Roberto Alfonso, Dominador
Recepcion and Eduardo Palacpac; that after the group had
finished their drinks, they left to attend a wake;55 that the two of
them did not go with the group and, instead, went back to the
house of Joemari’s aunt to inform her that they would sleep in the
house of FO1 de la Cruz; that they returned to the house of FO1
de la Cruz at around 5:00 o’clock in the morning of July 29 and
slept there; that they were awakened when Felipe de la Cruz was
called by his father; and that thereafter, they were arrested by the
police.56 [Footnotes referring to the pertinent part of the records
supplied]
FO1 dela Cruz narrated that in the afternoon of July 28, 1999, Joemari,
Dominador, Eduardo and Alfonso arrived at his house. Since he and
Joemari had not seen each other for a long time, they slaughtered a dog
and drank liquor. Alfredo and Audie arrived at around 3:00 p.m., followed
by Bernardo at around 8:00 p.m. He invited them to go to the wake of his
cousin, but only four (4) accompanied him – Joemari, Eduardo,
Dominador and Robert.57 They returned home at around 1:00 a.m. and
then went to sleep. A few hours later, he heard his father ordering him to
come out of the house. When he came out, the policemen asked him to
put down his gun and to order his companions inside the house to
likewise come out. When his remaining seven (7) companions came out,
the police ordered them to strip in the middle of the road and then
handcuffed them. Afterwards, they were brought to the Paniqui Police
Station. When General Lacson arrived, they were airlifted by helicopter to
Camp Crame where they were presented to the media. They were
subsequently brought to the laboratory for fingerprinting and taking of
urine samples.58
On cross-examination, he denied knowing any of the appellants prior to
their arrest on July 29, 1999, except his cousin, Joemari. 59
The defense presented Jose and FO2 Sambo as additional witnesses.
Jose, a 36 year-old farmer from Ramos, Tarlac, narrated that at around
7:00 p.m. of July 27, 1999, while he was at the wake of Marcial de Vera,
FO1 dela Cruz arrived. He and FO1 dela Cruz left the next day at around
4:00 a.m. When he returned to the wake at around 8:00 p.m. on July 28,
1999, he again saw FO1 dela Cruz. On cross-examination, he admitted
that FO1 dela Cruz is his cousin.60
FO2 Sambo testified that in the morning of July 29, 1999, while he was at
the Office of the Fire Marshal, his brother informed him that FO1 dela
Cruz was under detention at the Paniqui Police Station. He went to
Paniqui to confirm the information and reported his findings to the
provincial office. Afterwards, the Bureau of Fire Protection directed him to
investigate the involvement of FO1 dela Cruz in the robbery. After
interviewing FO1 dela Cruz and several other people (including the
parents of FO1 dela Cruz, his live-in partner, and the vice-mayor of
Ramos, Tarlac), he concluded that FO1 dela Cruz was not involved in the
recent robbery/hold-up and was not a coddler of criminals. 61
As a side development, Diosdado, Alfredo, Bernardo, Joemari,
Dominador and Robert escaped from their escorts after their hearing on
November 22, 1999 while on their way back to the Quezon City Jail.
Joemari, Dominador, Alfredo, and Robert were immediately
apprehended; Diosdado was fatally wounded and later died, while
Bernardo still remains at large. 62
The RTC convicted the appellants of the crimes charged in its decision of
February 9, 2000 as follows:
WHEREFORE, in Criminal Case No. Q99-85787 (Robbery with
Homicide) finding all the accused, FO1 Felipe de la Cruz, Robert
Alfonso, Audie Dona, Alfredo Baracas, Eduardo Palacpac,
Bernardo Ranara, Joemari de los Reyes, and Dominador
Recepcion, guilty beyond reasonable doubt of the crime charged
in the Information, the Court hereby sentences each of them
a] to suffer the penalty of Death;
b] to pay, jointly and severally, the heirs of Elmer Duque
the amount of P138,070.00 as actual damages;
P500,00.00 as moral damages; P75,000.00 as indemnity
for his death; P500,000.00 as exemplary damages;
and P1,846,800.00 for the loss of his earning capacity
plus interest from the time of his death at the rate of six
(6%) percent per annum;
c] to pay, jointly and severally, the heirs of Nestor
Mayagma, the amount of P75,000.00 as indemnity for his
death; P100,000.00 as moral damages; and P50,000.00
as exemplary damages;
d] to pay 7-Eleven Convenience Store, the amount
of P84,060.00 plus interest from the date of the
commission of the crime at the rate of six (6%) percent
per annum; and
e] to pay the costs.
In Criminal Case No. Q99-85788 (Robbery in Band), finding all
the accused, FO1 Felipe de la Cruz, Robert Alfonso, Audie Dona,
Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari
de los Reyes, and Dominador Recepcion, guilty beyond
reasonable doubt of the crime charged in the Information, the
Court hereby sentences each of them
a] to suffer the indeterminate penalty of imprisonment
ranging from SIX (6) YEARS of Prision Correccional, as
minimum, to TEN (10) YEARS of Prision Mayor, as
maximum;
b] to pay Petro Plaza, Inc. the amount of P8,000.00 plus
interest from the date of the commission of the crime at
the rate of six percent (6%) per annum; and
c] to pay the costs.
SO ORDERED.63
The RTC denied the appellants’ motion for reconsideration in its
resolution64 of April 17, 2000.
The case was brought to this Court on automatic appeal in light of the
penalty imposed, but we remanded it to the CA for intermediate appellate
review pursuant to our ruling in People v. Mateo.65
The CA, in a decision66 dated March 15, 2005, fully affirmed the RTC
decision.
In their brief,67 the appellants argued that the RTC erred –
1. in imposing the penalty of death upon them because treachery
and abuse of superior strength were not proven; and
2. in finding all the accused, even those who did not take active
part, equally liable for the crime of robbery with homicide.
The twin issues for our resolution are:
(a) whether the appellants’ guilt of the crimes charged was
proven beyond reasonable doubt; and
(b) if they are guilty, whether the trial court imposed the
correct penalties and awarded the proper civil indemnities.
THE COURT’S RULING
We deny the appeal, but modify the penalties imposed and the
amount of the awarded indemnities.
Sufficiency of the Prosecution Evidence
I. Criminal Case No. Q-99-85788 (Robbery in Band)
A reading of the cited errors reveals that the appellants no longer contest
their conviction for robbery in band. Nevertheless, since an appeal opens
the whole case for review, we deem it necessary to review the appellants’
conviction as well as the corresponding penalty imposed and the civil
indemnities awarded.
The elements of the crime of robbery under Article 293 68 of the Revised
Penal Code are: (a) the unlawful taking (b) of personal property
belonging to another (c) with intent to gain, and (d) with violence against
or intimidation of person or force upon things. Under Article 296 of the
same Code, "when more than three armed malefactors take part in the
commission of robbery, it shall be deemed to have been committed by a
band."69
In the present case, the prosecution witnesses, at one time or another
during the hearing, testified that Joemari, Bernardo, Diosdado and FO1
dela Cruz were all armed. However, we cannot recognize the
commission of robbery by a band as an aggravating circumstance since
this circumstance was not specifically alleged in the body of the
Information. Section 8, Rule 110 of the 2000 Rules on Criminal
Procedure provides that the information or complaint must state the
designation of the offense given by the statute and specify its qualifying
and generic aggravating circumstances, thus:
Section 8. Designation of the offense.- The complaint or
information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense,
and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to
the section or subsection of the statute punishing it.
Other than on this aspect of the case, we find the trial court’s factual
findings and conclusions in Criminal Case No. Q-99-85788 to be correct.
As the trial court found, the witnesses were straightforward in their
account of the robbery that occurred at Petron Gasoline Station along
Commonwealth, Quezon City, and never wavered in pointing to the
appellants as the perpetrators.
Ruben, the driver of the vehicle the appellants used and who saw the
robberies from the start to its bloody end, positively and with full details
identified in his testimony of September 28, 1999 the appellants Robert,
Eduardo, Audie, Bernardo, Dominador, Joemari, Alfredo, and Diosdado
as the robbers. At gunpoint, they boarded his jeepney in Monumento;
ordered him to refuel at Petron Gas Station in Commonwealth, Quezon
City and robbed this establishment; and then ordered him to stop at the
7-Eleven Convenience Store along Mindanao and Tandang Sora Avenue
for another robbery.70 Rommel, in his testimony of October 21, 1999,
corroborated the testimony of Ruben and likewise gave his own details of
how the robbery was committed. He identified Audie, FO1 dela Cruz,
Diosdao and Joemari as the passengers of the jeepney whom he
recognized.71
These testimonies, which we considered in light of the appellants’
defenses discussed below, more than amply constitute proof beyond
reasonable doubt that the appellants are guilty of the crime of robbery as
charged.
II. Criminal Case No. Q-99-85787 (Robbery with Homicide)
There is robbery with homicide when a homicide is committed either by
reason, or on occasion, of the robbery.72 To sustain a conviction for
robbery with homicide, the prosecution must prove the following
elements: (1) the taking of personal property belonging to another; (2)
with intent to gain; (3) with the use of violence or intimidation against a
person; and (4) on the occasion or by reason of the robbery, the crime of
homicide, as used in its generic sense, was committed. 73 A conviction
requires certitude that the robbery is the main purpose and objective of
the malefactor and the killing is merely incidental to the robbery. 74 The
intent to rob must precede the taking of human life but the killing may
occur before, during or after the robbery.75
In the case before us, the prosecution proved that the appellants’ original
intention was to rob the 7-Eleven Convenience Store. A careful
examination of the testimonies of the various prosecution witnesses, all
of them cited above, reveals the following facts showing the appellants’
intent: appellants Joemarie, Bernardo and Robert entered the 7-Eleven
Convenience Store pretending to be customers; witness Kuraishi entered
the store and met appellant Bernardo, who was carrying a gun; Elmer,
who went out of his car to follow Kuraishi, was shot in the chest by
Diosdado; appellant FO1 dela Cuz fired at the security guard, Nestor,
through the glass door but missed; Nestor exchanged shots with FO1
dela Cruz; Joemari pulled down Edwin and took his wallet and watch;
Diosdado peeped through the glass panel of the 7-Eleven Convenience
Store, shot Nestor and entered the store; Joemari dragged Edwin
towards the counter and told him to open the cash register; Diosdado
went outside the store, approached the two (2) taxis parked in front of
King Dimsum and held up the drivers; FO1 dela Cruz entered the store,
dragged the cashier, Rose, towards the backroom and asked who kept
the keys of the cash register; Joemarie, Bernardo, Robert and FO1 dela
Cruz took the cash register and went back to their companions who were
waiting inside the jeepney; thereafter, appellants proceeded to Paniqui,
Tarlac.
From the foregoing, the overriding intention of the appellants could not
but be to rob the 7-Eleven Convenience Store; the killings were merely
incidental, resulting by reason or on the occasion of the robbery. Nestor
was killed because he was the man who would have resisted the
robbery; Elmer was killed because he simply happened to be there as the
robbery was taking place.
Aside from the testimony of Ruben, 76 other witnesses positively identified
the appellants as the persons who went to the 7-Eleven Convenience
Store on that fateful morning of July 28, 1999. Joel (the 7-Eleven
Convenience Store Supervisor), in his testimony on September 2, 1999,
pointed to appellants Joemari and FO1 dela Cruz as the persons who
entered and robbed the 7-Eleven Convenience Store. 77 Joselito (the
Assistant Lead Clerk of the 7-Eleven Convenience Store), in his
testimony of September 6, 1999, corroborated the testimony of Joel and
added that he saw appellant Robert inside the 7-Eleven Convenience
Store.78 Kuraishi (the companion of Elmer), in his September 9, 1999
testimony, confirmed the presence of appellant Bernardo inside the 7-
Eleven Convenience Store.79 Allan (the cook of King Dimsum), for his
part, positively identified Diosdado as the one who fatally shot
Elmer.80 Finally, Edwin (the delivery boy), confirmed the presence of
appellant Joemari inside the 7-Eleven Convenience Store, and identified
appellant FO1 dela Cruz as the person who fired shots at the store’s
security guard.81
Denial and Alibi
In stark contrast with the prosecution’s case are the appellants’ weak and
uncorroborated defenses. They interposed alibi and denial to support
their claim of innocence.
Robert, Eduardo and Dominador all alleged that they went to Tarlac in
the afternoon of July 28, 1999 to recruit Joemari as a worker in the
construction site where they were working. When they reached the house
of Joemari’s aunt, they claimed to have seen Audie and Alfredo. This is
contrary to the claim of Audie and Alfredo who claimed to have seen
them only at the house of FO1 dela Cruz.
The testimonies of Audie and Alfredo were likewise full of
inconsistencies: Alfredo claimed that they arrived at Tarlac at past 2:00
p.m. of July 28, 1999, while Audie alleged that they arrived at noontime;
Alfredo stated that they saw Joemari at the house of FO1 dela Cruz and
then went to the fishpond to drink, while Audie claimed that they first went
to the fishpond to have some drinks and then proceeded to the house of
FO1 dela Cruz where they saw Joemari.
Joemari insisted that he was sleeping in the house of his aunt in Tarlac at
the time of the robbery. His story, however, remains uncorroborated.
Bernardo, for his part, maintained that he went to Tarlac on July 28, 1999
at 3:00 p.m. to attend the wake of FO1 dela Cruz’s cousin. Incredibly, he
did not know the name of the deceased nor could he remember the name
of the person who informed him of the death of the deceased.
FO1 dela Cruz, a central figure in the robbery, denied knowing any of the
appellants (except his cousin Joemari) before July 29, 1999; surprisingly,
he allowed all the appellants to sleep in his house.
We have repeatedly held that for the defense of alibi to prosper, the
accused must prove not only that he was at some other place at the time
the crime was committed, but that it was likewise impossible for him to be
at the locus criminis or its immediate vicinity at the time of the alleged
crime. Where there is the least chance for the accused to be present at
the crime scene, the defense of alibi must fail.82
In this case, the appellants claimed to have gone to Tarlac in
the afternoon of July 28, 1999. However, they could not account for their
whereabouts at past 12:00 a.m. on July 28, 1999 when the crime was
committed. The appellants failed to prove that it was physically
impossible for them to be at the scene of the crime at the approximate
time of its commission.
The appellants’ denial must likewise fail in light of the positive
identification and declarations made by the prosecution witnesses. These
witnesses testified in a straightforward and categorical manner regarding
the identities of the malefactors. They did not waver despite the grueling
and extensive questions fielded by the defense; they likewise remained
consistent and steadfast despite the defense counsel’s rigid questioning.
Courts generally view the defenses of denial and alibi with disfavor on
account of the facility with which an accused can concoct them to suit his
defense. As both evidence are negative and self-serving, they cannot
attain more credibility than the testimonies of prosecution witnesses who
testify clearly, providing thereby positive evidence on the various aspects
of the crime committed.83 Among such positive evidence are the paraffin
tests conducted on the appellants which revealed that four (4) of them –
Joemari, Dominador, Diosdado and FO1 dela Cruz – were positive for
gunpowder nitrate. In addition, the ballistic examination on the gun
owned by Diosdado showed that the bullets recovered from the body of
Elmer were fired from his gun.
On the whole, we view the evidence against accused-appellants to be
overwhelming. We find no reason to deviate from the findings of the trial
court in the absence of facts or circumstances of real weight that might
have been overlooked or misapprehended.84 The trial court had the
unique opportunity of observing firsthand the witnesses as they testified
and were cross-examined, and it was therefore in the best position to
assess whether these witnesses were telling the truth or not. The
substance of the testimonies for the prosecution were as the trial court
found and intrinsically merits full faith and credence. The defense, on the
other hand, provided no facts and circumstances of weight and
substance sufficient to cast doubt on the trial court’s evaluation of the
credibility of the prosecution’s witnesses.85
The presence of conspiracy
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
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.86 For conspiracy to exist, it is not required that there be an
agreement for an appreciable period prior to the occurrence; it is
sufficient that at the time of the commission of the offense, the
malefactors had the same purpose and were united in its execution. 87
From the circumstances obtaining in this case, it cannot be doubted that
the appellants acted in conspiracy in committing the crimes charged. The
appellants were together in the jeepney when it stopped at Petron
Gasoline station and then at the 7-Eleven Convenience Store.
Afterwards, they were still together in the jeepney when it went to Tarlac.
From the time they announced a robbery at Petron to the moment they
entered the 7-Eleven Convenience Store and shot the store’s security
guard, up to the time they fled towards Tarlac, there can be no other
conclusion than that they hatched a criminal scheme, synchronized their
acts for unity in its execution, and aided each other for its
consummation.88
When conspiracy or action in concert to achieve a criminal design is
shown, the act of one is the act of all the other conspirators, and the
precise extent or modality of participation of each of them becomes
secondary.89
Corollarily, the rule is well-established that whenever homicide has been
committed as a consequence of or on the occasion of a robbery, all those
who took part as principals in the robbery will also be held guilty as
principals of the special complex crime of robbery with homicide although
they did not actually take part in the homicide, unless it clearly appears
that they endeavored to prevent the homicide. In the present case, it has
not been shown that the appellants tried to prevent the shooting of the
two (2) victims. Hence, their cooperative acts toward their common
criminal objective render them equally liable as conspirators. 90
The Proper Penalties
For the crime of simple robbery, Article 294, paragraph 5, prescribes the
penalty of prision correccional in its maximum period to prision mayor in
its medium period. Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating circumstances, the maximum
penalty to be imposed shall be taken from the medium of the imposable
penalty which is prision mayor minimum and whose range is six (6) years
and one (1) day to eight (8) years, following Article 64(1) 91 of the Revised
Penal Code. The minimum, on the other hand, shall be taken from the
penalty next lower in degree which is arresto mayor in its maximum
period to prision correccional in its medium period, whose range is from
four (4) months and one (1) day to four (4) years and two (2) months, in
accordance with Article 61(4) 92 of the Revised Penal Code.
For the crime of robbery with homicide, Article 294, paragraph 1 of the
Revised Penal Code, as amended by Republic Act 7659, reads:
Art. 294. - Robbery with violence against or intimidation of
persons. - Penalties. - Any person guilty of robbery with the use
of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or
on occasion of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been accompanied by
rape or intentional mutilation or arson. x x x x
In convicting the appellants of the crime of robbery with homicide, the
courts a quo appreciated treachery. There is treachery when the
following essential elements are present, viz: (a) at the time of the attack,
the victim was not in a position to defend himself; and (b) the accused
consciously and deliberately adopted the particular means, methods or
forms of attack employed by him. The essence of treachery is the sudden
and unexpected attack by an aggressor on the unsuspecting victim,
depriving the latter of any chance to defend himself and thereby ensuring
its commission without risk to himself. Treachery may also be
appreciated even if the victim was warned of the danger to his life where
he was defenseless and unable to flee at the time of the infliction of
the coup de grace.93
In the present case, the evidence clearly shows that as Joemari,
Bernardo and Robert entered the 7-Eleven Convenience Store, FO1 dela
Cruz already positioned himself outside the store’s glass door and
prepared to shoot Nestor to ensure lack of resistance to their robbery
plans. While Nestor was exchanging shots with FO1 dela Cruz, Diosdado
peeped through the glass panel and fired at Nestor – fatally hitting him.
Under these facts, we find it clear that the appellants prepared to kill the
victim in a manner that would ensure the execution of the crime or make
it impossible or hard for the victim to defend himself; he was immediately
shot at from outside the store, with a fallback position in case this first
attempt to immobilize him failed.
We rule, however, that the killing of the other victim, Elmer, was not
attended by treachery as there was no evidence that Diosdado had
resolved to shoot him prior to the moment of the killing, or that his death
was the result of premeditation, calculation or reflection.
Considering the presence of the aggravating circumstance of treachery
with no attendant mitigating circumstance, the trial court correctly
sentenced the appellant to suffer the death penalty, conformably with
Article 63, paragraph 1 of the Revised Penal Code. 94 In view, however, of
the enactment on June 24, 2006 of Republic Act No. 9346
which prohibits the imposition of death penalty in the Philippines, we
reduce the penalty of death to reclusion perpetua without eligibility for
parole.95
Civil Liability
Criminal Case No. Q-99-85788
The RTC ordered the appellants to pay only P8,000.00, or the amount of
the cash taken from the gasoline station. However, the evidence on
record reveals that assorted Petron fuel products amounting to P7,000.00
were also taken. Hence, we order the appellants to likewise restitute
these items or to pay their monetary value, if restitution cannot be made.
Criminal Case No. Q-99-85787
For the death of Elmer and Nestor, we sustain the award of P75,000.00
as civil indemnity ordered by the RTC and affirmed by the CA. The award
for civil indemnity is mandatory and is granted to the heirs of the victim
without need of proof other than the commission of the crime. The
amount of P75,000.00 as civil indemnity is awarded if the crime is
qualified by circumstances warranting the imposition of the death penalty.
Though the penalty imposed on appellant was reduced to reclusion
perpetua, the civil indemnity award remains at P75,000.00.96
The award of P500,000.00 and P100,000.00 as moral damages to the
heirs of Elmer and Nestor, respectively, is not in accordance with recent
jurisprudence.97 We accordingly reduce the amounts to P50,000.00.
Indemnity for the loss of earning capacity is determinable under
established jurisprudence based on the net earning capacity of the victim
computed under the formula:
Net Earning Capacity = 2/3 x (80 less the age of the victim at the
time of death) x (Gross Annual Income less the Reasonable and
Necessary Living Expenses)
The records show that Elmer’s annual gross income was P136,800.00
computed from his monthly rate of P11,400.00. His reasonable and
necessary living expenses are estimated at 50% of this gross income,
leaving a balance of P68,400.00. His life expectancy, on the other hand,
is assumed to be 2/3 of age 80 less 38, his age at the time of death.
Applied to the above formula, these data yield the net earning capacity
loss of P1,915,200.00. The RTC award must thus be increased to this
amount.
In the absence of supporting evidence, we cannot award loss of earning
capacity to Nestor’s heirs.
The award of exemplary damages is justified by the duly proven
qualifying circumstance of treachery. The lower courts, however,
awarded exemplary damages to the heirs of Elmer and Nestor in the
amounts of P500,000.00 and P50,000.00, respectively. To conform with
prevailing jurisprudence, we reduce these amounts to P25,000.00 for
each set of heirs.98
The RTC awarded P138,070.00 as actual damages to the heirs of Elmer.
It appears that out of this amount, only P61,635.00 was supported by
receipts. The difference in the amounts was based solely on the
submissions by Elmer’s widow. For one too be entitled to actual
damages, it is necessary to prove the actual amount of loss with a
reasonable degree of certainty, premised upon competent proof and the
best evidence obtainable by the injured party.99 Hence, we reduce the
awarded actual damages to P61,635.00.
We note that the RTC did not award actual damages to the heirs of
Nestor for lack of evidence. In People v. Abrazaldo,100 we held that where
the amount of the actual damages cannot be determined because of the
absence of supporting receipts but entitlement is shown under the facts
of the case, temperate damages in the amount of P25,000.00 may be
awarded. Thus, in lieu of actual damages, we award temperate damages
of P25,000.00 to the heirs of Nestor.
We affirm the order of the RTC to restitute the amount of P84,060.00 to
the 7-Eleven Convenience Store. This was the amount taken in the
robbery as proven by evidence. We delete, however, the interest that the
RTC imposed.
WHEREFORE, in light of all the foregoing, We hereby AFFIRM the
March 15, 2005 decision of the CA in CA-G.R. CR-H.C. No. 00570 with
the following MODIFICATIONS:
I. In Criminal Case No. Q-99-85787
(1) the penalty of death imposed on the appellants is REDUCED
to
reclusion perpetua without eligibility for parole;
(2) the moral damages awarded to the heirs of Elmer and Nestor
are
REDUCED to P50,000.00, respectively;
(3) the exemplary damages awarded to the heirs of Elmer and
Nestor are REDUCED to P25,000.00, respectively;
 (4) the actual damages awarded to the heirs of Elmer are ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
REDUCED to P61,635.00; Associate Justice Associate Justice
(5) the appellants are ORDERED to pay, jointly and severally, the RENATO C. CORONA CONCHITA CARPIO MORALES
heirs of Nestor P25,000.00 as temperate damages; Associate Justice Associate Justice

(6) the indemnity for Elmer’s loss of earning capacity is ADOLFO S. AZCUNA DANTE O. TINGA
INCREASED to P1,915,200.00; and Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

(7) the appellants are ORDERED to restitute the 7-Eleven
Associate Justice Associate Justice
Convenience Store in the amount of P84,060.00.
ANTONIO EDUARDO B. NACHURA RUBEN T. REYES
II. In Criminal Case No. Q-99-85788 Associate Justice Associate Justice

(1) the appellants are found GUILTY beyond reasonable doubt of *TERESITA J. LEONARDO-DE CASTRO
simple robbery, instead of robbery in band, and each is Associate Justice
SENTENCED to suffer the indeterminate penalty of four (4)
months and one (1) day of arresto mayor maximum, as minimum,
to six (6) years and one (1) day of prision mayor minimum, as
maximum; and
CERTIFICATION
(2) the appellants are ORDERED to restitute to Petron Plaza, Inc.
the assorted Petron products or to pay their monetary equivalent Pursuant to Section 13, Article VIII of the Constitution, it is hereby
of P7,000.00, if restitution cannot be made; and the amount certified that the conclusions in the above Decision were reached in
of P8,000.00 representing the stolen money. consultation before the case was assigned to the writer of the opinion of
the Court.
SO ORDERED.
REYNATO S. PUNO
ARTURO D. BRION Chief Justice
Associate Justice

Footnotes
WE CONCUR:
* On leave.

REYNATO S. PUNO  Penned by then Associate Justice (now Presiding Justice)

1

Chief Justice Conrado M. Vasquez, Jr., and concurred in by Associate Justice

Rebecca de Guia-Salvador and Associate Justice Aurora
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO Santiago-Lagman; rollo, pp. 3-22.
Associate Justice Associate Justice
2
 Penned by Judge Jose Catral Mendoza; CA rollo, pp. 39-67. 22
 Id., pp. 49-50.

3
 CA rollo, pp. 6-7. 23
 Id., pp. 52-54.

4
 Id., pp. 11-12. 24
 TSN, September 23, 1999, p. 8.

5
 In some parts of the record, his name appears as Ruben 25
 TSN, September 28, 1999, p. 12.
Labajata.
26
 Id., pp. 13-23.
6
 TSN, September 2, 1999, pp. 7-11.
27
 Id., pp. 24-25.
7
 Id., pp. 12-16.
28
 Id., pp. 27-29.
8
 Id., pp. 18-23.
29
 Id., pp. 30-35.
9
 TSN, September 6, 1999, pp. 8-9.
30
 Id., pp. 50-55.
10
 Id., pp. 10-11.
31
 TSN, September 30, 1999, pp. 14-15.
11
 TSN, September 9, 1999, p. 6.
32
 Id., pp. 16-20.
12
 Id., pp. 12-14.
33
 Id., pp. 20-23.
13
 Id., pp. 15-18.
34
 Id., pp. 26-28.
14
 TSN, September 16, 1999, pp. 4-5.
35
 Id., pp. 30-33.
15
 Id., pp. 6-7.
36
 TSN, October 7, 1999, pp. 27-28.
16
 Id., pp. 7-9.
37
 TSN, October 14, 1999, pp. 15-16.
17
 Id., pp. 10-13.
38
 Id., pp. 17-18.
18
 Id., pp. 36
39
 Id., p. 39.
19
 Id., p. 51.
40
 Id., pp. 18-20.
20
 Id., p. 41.
41
 TSN, October 21, 1999, pp. 3-5.
21
 Id., p. 45.
42
 Id., p. 6.
43
 TSN, October 25, 1999, pp. 6-7. 61
 TSN, December 2, 1999, pp. 6-15.

44
 TSN, December 6, 1999, pp. 9-12. 62
 Records, p. 262.

 TSN, November 10, 1999, pp. 24-25; TSN, November 18, 1999,
45 63
 CA rollo, pp. 66-67.
pp. 7-9.
64
 Id., pp. 161-164.
 TSN, November 10, 1999, pp. 26-28; TSN, November 18, 1999,
46

p. 10. 65
 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
47
 TSN, November 11, 1999, pp. 5-7. 66
 Rollo, pp. 3-22.

 TSN, November 11, 1999, pp. 8-12; November 18, 1999, pp.
48 67
 CA rollo, pp. 98-131.
12-16.
68
 ART. 293. Who are guilty of robbery. – Any person who, with
49
 TSN, November 22, 1999, pp. 5-6. intent to gain, shall take any personal property belonging to
another, by means of violence against or intimidation of any
50
 Id., pp. 7-11. person, or using force upon anything, shall be guilty of robbery.

51
 TSN, November 25, 1999, p. 11.  People v. Lumiwan, G.R. Nos. 122753-56, September 7, 1998,
69

295 SCRA 215, 225.

52
 Id., pp. 15-20.
70
 TSN, September 28, 1999, pp. 11-27.
53
 TSN, November 29, 1999, pp. 17-18.
71
 TSN, October 21, 1999, pp. 3-16.
 TSN, November 29, 1999, pp. 16-18; TSN, December 6, 1999,
54

p. 5.  People v. Mendoza, G.R. No. 115809, January 23, 1998, 284

72

SCRA 705.
 TSN, November 29, 1999, pp. 19-23; TSN, December 6, 1999,
55

pp. 6-7.  People v. Barreta, G.R. No. 120367, October 16, 2000, 343
73

SCRA 199.
 TSN, November 29, 1999, pp. 27-30; TSN, December 6, 1999,
56

pp. 23-24.  People v. Daniela, G.R. No. 139230, April 24, 2003, 401 SCRA
74

519, 534.
57
 TSN, December 8, 1999, pp. 7-12.
 People v. Escote, Jr., G.R. No. 140756, April 4, 2003, 400
75

58
 Id., pp. 15-28. SCRA 603, 630.

59
 Id., pp. 32-33.
76
 TSN, September 28, 1999, pp. 7-77.

60
 TSN, November 29, 1999, pp. 5-6.
77
 TSN, September 2, 1999, pp. 14-16.
78
 TSN, September 6, 1999, pp. 2-17. 1. When there are neither aggravating nor mitigating
circumstances, they shall impose the penalty prescribed
79
 TSN, September 9, 1999, pp. 12-25. by law in its medium period. x x x x

80
 TSN, September 16, 1999, pp. 6-19.  Art. 61. Rules for graduating penalties. – For the purpose of
92

graduating the penalties which, according to the provisions of

81
 TSN, October 14, 1999, pp. 15-41. Articles 50-57, inclusive, of this Code, are to be imposed upon
persons guilty as principals of any frustrated or attempted felony,
or as accomplices or accessories, the following rules shall be
 People v. Werba, G.R. No. 144599, June 9, 2004, 431 SCRA
82
observed:
482, 495.
xxxx
83
 Id., p. 496.
4. When the penalty prescribed for the crime is composed
 See People v. Mariñas, G.R. Nos. 97953-56, September 14,
84
of several periods, corresponding to different divisible
1995, 248 SCRA 165.
penalties, the penalty next lower in degree shall be
composed of the period immediately following the
 See People v. Cabbab, Jr., G.R. No. 173479, July 12, 2007,
85
minimum prescribed and of the next two following, which
527 SCRA 589, 601. shall be taken from the penalty prescribed, if possible;
otherwise, from the penalty immediately following in the
 People v. Porras, G.R. Nos. 103550-51, July 17, 2001, 361
86
above-mentioned respective graduated scale. x x x
SCRA 246, 271.
93
 People v. Escote, supra.
 People v. Carrozo, G.R. No. 97913, October 12, 2000, 342
87

SCRA 600. 94
 ART. 63. Rules for the application of indivisible penalties.

 See People v. Napalit, G.R. Nos. 142919 and 143876, February

88
xxx
4, 2003, 396 SCRA 687.
1. When in the commission of the deed there is present
 People v. Punzalan, G.R. No. 78853, November 8, 1991, 203
89
only one aggravating circumstance, the greater penalty
SCRA 364. shall be applied. x x x x

 See People v. Sabadao, G.R. No. 126126, October 30, 2000,

90
95
 See People v. Jabiniao, G.R. No. 179499, April 30, 2008.
344 SCRA 432.
96
 Id.
91
 Art. 64. Rules for the application of penalties which contain
three periods. – In cases in which the penalties prescribed by law 97
 People v. Cabbab, Jr., supra.
contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the
98
 People v. Tolentino, G.R. No. 176385, February 26, 2008.
courts shall observe for the application of the penalty the
following rules, according to whether there are or are no
99
 People v. Sorila, Jr., G.R. No. 178540, June 27, 2008.
mitigating or aggravating circumstances:
100
 G.R. No. 124392, February 7, 2003, 397 SCRA 137. G.R. No. 174483               March 31, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RAMON REGALARIO, MARCIANO REGALARIO, SOTERO
REGALARIO, BIENVENIDO REGALARIO and NOEL
REGALARIO, Accused-Appellants.

DECISION

LEONARDO-DE CASTRO, J.:

For automatic review is the decision1 of the Court of Appeals (CA) in CA-
G.R. CR No. 01556 which affirmed with modification, an earlier
decision2 of the Regional Trial Court of Ligao, Albay, Branch 13 in
Criminal Case No. 3613, finding accused-appellants Ramon, Marciano,
Sotero, Bienvenido and Noel, all surnamed Regalario guilty of murder
and sentencing them to suffer the penalty of reclusion perpetua and to
indemnify jointly and severally the heirs of the victim in the amount of
₱50,000.00, and another sum of ₱50,000.00 as moral damages and to
pay the costs of the proceedings.

In the court of origin, accused-appellants Ramon, Marciano, Sotero,

Bienvenido and Noel were originally charged with Homicide. However,
after reinvestigation of the case, the Panel of Prosecutors of the
Department of Justice, Legaspi City, consisting of State Prosecutors
Romulo SJ Tolentino, Mary May B. De Leoz and Elmer M. Lanuzo filed
an amended information3 charging the accused-appellants with murder,
committed as follows:

That on February 22, 1997 at about 11:00 in the evening, at Brgy.

Natasan, Municipality of Libon, province of Albay, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and helping one another, with intent to kill, did
then and there willfully, unlawfully and feloniously with cruelty, treachery,
abuse of superior strength, nighttime attack, assault, strike and hit
ROLANDO SEVILLA with wooden clubs (bahi) used as their night sticks,
Republic of the Philippines hitting the latter at the different parts of his body and tying down his
SUPREME COURT hands and feet with a rope, thereby inflicting upon the latter serious and
Manila mortal wounds which directly caused his death, to the damage and
prejudice of his legal heirs.
EN BANC
ACTS CONTRARY TO LAW.
On October 9, 1998, accused-appellants, duly assisted by their counsel,
entered a plea of "not guilty" to the offense charged. 4 Thereafter, trial
ensued.
The prosecution presented the following as its witnesses: Zaldy Siglos,
Nancy Sara, Ryan Sara, Armando Cabais Poblete, Ronnie Siglos,
Cynthia Sevilla, Norma Torres, Policeman Jose Gregorio, Cenen
Talagtag, Cesar Sazon and Dr. Mario Cerillo, while Antonio Relato and
Nicanor Regonia testified on rebuttal. Nancy Sara, Cynthia Sevilla and
Ryan Sara were presented for a second time also as rebuttal witnesses.
On their part, accused-appellants took the witness stand. All raised the
defense of denial except for Ramon who admitted the act charged but
claimed self-defense. To corroborate their defense, Jose Poblete and
Adonis Velasco were presented. The defense also presented Senior
Police Officer 2 (SPO2) Jimmy Colisao, Harold Reolo, Ma. Julieta
Razonable, and Dr. Leopoldo Barrosa II.
On August 24, 2000, the trial court rendered its decision 5 giving full faith
and credit to the prosecution’s evidence. It ruled out accused-appellant
Ramon Regalario’s claim of self defense, and held that there was
conspiracy among the accused-appellants in the commission of the crime
as shown in the manner in which all of them inflicted the wounds on the
victim’s body. It further ruled that the killing was qualified to murder by
abuse of superior strength and by their scoffing at the body of the victim.
It also appreciated the presence of the mitigating circumstance of
voluntary surrender. The pertinent dispositive portion of the said decision
reads:
WHEREFORE, judgment is hereby rendered finding Ramon, Sotero,
Bienvenido, Marciano and Noel, all surnamed Regalario, guilty beyond
reasonable doubt of the crime of Murder under Par. 1, of Art. 248 of the
Revised Penal Code, as amended, with the aggravating circumstance of
scoffing at the corpse of the victim. However, accused are entitled to the
benefit of the mitigating circumstance of voluntary surrender which offset
the aggravating circumstance of scoffing at his corpse, hence, are hereby
sentenced to suffer the Penalty of Reclusion Perpetua together with the
accessory penalties provided for by law.
The accused are hereby ordered to indemnify jointly and severally the
heirs of the late Rolando Sevilla the amount of ₱50,000.00 and another
sum of ₱50,000.00 as moral damages and to pay the costs.
Pursuant to Supreme Court Administrative Circular No. 2-92 the
₱200,000.00 bail bond put up by accused Marciano Regalario is hereby
cancelled and is ordered recommitted to jail.
SO ORDERED.
The record of this case was forwarded to this Court for automatic review,
in view of the penalty imposed.
In our Resolution6 of August 13, 2001, We accepted the appeal and
directed the Chief of the Judicial Records Office, to send notices to the
parties to file their respective briefs. The Court also required the Jail
Warden, Municipal Jail, Polangui, Albay to transfer accused-appellants to
the Bureau of Corrections, Muntinlupa City, and make a report of such
transfer within ten (10) days from notice. Likewise, the Director of the
Bureau of Corrections was required to confirm the detention of accused-
appellants. Accused-appellants filed their Appellants’ Brief 7 on December
4, 2001, while the People, thru the Office of the Solicitor General, filed its
Appellee's Brief8 on July 30, 2002.
Pursuant to our pronouncement in People v. Mateo9 which modified the
provisions of the Rules of Court insofar as they provide for direct appeals
from the RTC to this Court in cases where the penalty imposed by the
trial court is death, reclusion perpetua or life imprisonment, this case was
referred for appropriate action and disposition to the CA where it was
docketed as CA-G.R. No. 01556.
The evidence for the prosecution is summarized by the Office of the
Solicitor General, as follows:
Accused-appellants, all surnamed Regalario, are barangay officials of
Natasan, Libon, Albay and related to one another by consanguinity.
Marciano, barangay chairman, Sotero, barangay kagawad and Ramon,
barangay tanod, are brothers while Bienvenido Regalario, also barangay
tanod, is their cousin and Noel is the son of Marciano. (TSN, November
16, 1998, p. 9; RTC Order dated October 9, 1998, pp. 115-117)
On the night of February 22, 1997, a dance and singing contest was
being held in the barangay pavilion of Natasan, Libon, Albay. At around
ten o’clock that evening, Rolando Sevilla and Armando Poblete were
enjoying the festivities when appellant Sotero Regalario approached
them (TSN, December 7, 1998, p.4). To avoid trouble, the two distanced
themselves from Sotero. Nevertheless, a commotion ensued. (ibid., p. 5).
Appellants Sotero and Bienvenido Regalario were seen striking Rolando p. 11). After Dr. Mario Cerillo, Municipal Health Officer of Libon
Sevilla several times with their respective nightsticks, locally known as conducted the autopsy, he forthwith issued a Medico-Legal Report dated
bahi. (TSN, November 16, 1998, pp. 13-17, 32, 34, 36-37). The blows February 24, 1997 (Exhibit ‘B’), the pertinent portions of which read:
caused Sevilla to fall down in a sitting position but after a short while he
was able to get up (ibid., pp. 16-17). He ran away in the direction of the Findings:
house of appellant Mariano Regalario, the barangay captain (ibid., pp.
18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid., p. 38, Head : Lacerated wound 4 cm
TSN, December 7, 1998. p. 6). When Sevilla was already near
Marciano’s house, he was waylaid by appellant Ramon Regalario and at
frontal area, Right.
this point, Marciano Regalario and his son Noel Regalario came out of
their house (TSN, December 7, 1998, pp. 7-9 and 35). Noel was carrying
a seven-inch knife. The five appellants caught the victim in front of : Lacerated wound 8 cm.
Marciano’s house. Armed with their nightsticks, they took turns in hitting
the victim until he slumped to the ground face down (ibid., pp. 8, 35 and occipital area, Right.
38). In that position, Sevilla was boxed by Marciano in the jaw. After a
while, when Sevilla was no longer moving, Marciano first ordered the : Lacerated wound 4 cm.
others to kill the victim and to tie him up (ibid., pp. 36-37). Upon hearing
the order, Bienvenido, with the help of Sotero, tied the neck, hands and with fractured skull
feet of the victim with a nylon rope used by farmers for tying carabao.
The rest of the group just stood by watching. (ibid., pp. 37-38). (post auricular area),

In the early morning of February 23, 1997, Cynthia Sevilla, the victim’s Right.
widow, after she was informed of her husband’s death, went to the
poblacion of Libon to report the incident at the town’s police station (TSN, : Abrasion 4 x 2 cm.
December 8, 1998, pp. 7-8). However, her statements were not entered
in the police blotter because appellant Marciano Regalario had earlier
reported to them, at two o’clock in the morning, a different version of the eyebrow, Right.
incident, i.e., it was the victim Sevilla who shot Marciano’s brother Ramon
and that Sevilla, allegedly still alive, was placed under the custody of the : Abrasion 2 cm. x 1 cm.
barangay tanods. (ibid., p. 7; TSN, November 20, 1998 [A.M. Session],
pp. 9-10). At around eight o’clock of the same morning, SPO4 Jose with lacerated wound
Gregorio, with some other police officers and Cynthia Sevilla, left the
police station on board a truck and proceeded to the crime scene in 1 cm. eyebrow, Left.
Natasan. SPO4 Gregorio conducted an investigation of the incident.
(TSN, November 20, 1998 [A.M. Session], pp. 10-12). Thereafter, the : Periorbital Hematoma
policemen took the victim’s cadaver to the police station in the poblacion
(ibid., p. 26) where pictures were taken showing the victim’s hands and Left and Right eye.
legs tied behind him [Exhibits ‘C’ and ‘D’] (ibid., pp. 14-15; TSN,
December 8, 1998, p. 10; TSN, November 20, 1998 [P.M. Session], pp 5-
: Lacerated wound 1 cm.
7). On that same day, SPO4 Gregorio requested the Libon’s Rural Health
Unit to conduct an autopsy on the victim’s body but since the municipal
health officer was not around, it was only performed the next day, lower lip, Left.
February 24 (TSN, November 20, 1998 [A.M. Session], p. 26; TSN,
December 8, 1998, pp. 10-11; TSN, November 20, 1998 [P.M. Session], Neck : Stab wound 2 cm.
penetrating lateral base
of the neck just above
the clavicle, Right.
: Stab wound 2 cm., 6 cm.
depth lateral base of the
neck just above the
clavicle, Right.
Trunk : Hematoma 10 x 8 cm.
clavicular area, Right.
: Multiple abrasion chest
: Contusion 7 x 2 cm.,
7th Intercorsal space and
clavicular line, left.
Extremities : Multiple abrasion and
contusion on both Right
and Left arm and forearm.
: Abrasion (Ropemark)
around Right and Left wrist.
: Abrasion (Ropemark) around
distal 3rd of both Right and
Left leg.
xxx xxx xxx xxx
Cause of Death:
Sever blood loss secondary to stab wound and multiple lacerated
wound, probably secondary to intracranial hemorrhage.
On the witness stand, Dr. Cerillo opined that the victim’s lacerated
wounds could have been caused by a blunt instrument like a hard stick, a
stone or iron bar, his stab wounds by a sharp-edged instrument or knife,
his contusions and hematoma by a fist blow or through contact with a
blunt instrument. Also according to the physician, the sharp object which
caused the victim’s stab wounds could have been a knife 2 cm. wide and
6 cm. long because they were clean cut wounds. (TSN, November 20,
1998 [P.M. Session], pp. 14-15).10
On the other hand, the accused-appellants’ Brief presents a different
story:
At the time of the incident in question, accused Marciano Regalario was
the incumbent barangay captain of Natasan, Libon, Albay. Accused
Sotero was a kagawad, while Ramon and Bienvenido were barangay
tanods of the same place. Noel Regalario had no public position. He is
the son of one of the other accused.
On the night of February 22, 1997, a public dance and singing contest
was held in their barangay. Naturally, being barangay officials, the
accused, (except Noel who is not an official and whose wife has just
given birth) were at the place of the celebration, discharging their peace-
keeping duties. They were posted at different places in that vicinity.
At first, a fire broke out in the toilet of the Day Care Center. It was
attended to by the persons assigned in that area. A while later, there was
another commotion in the area assigned to accused Ramon Regalario.
When he approached the group where the disturbance was taking place
and tried to investigate, Rolando Sevilla suddenly emerged from the
group and without any ado, fired a shot at him. He was hit at the left
shoulder. Instinctively, and in order to disable Sevilla from firing more
shots, which might prove fatal, he struck his assailant with his nightstick
and hit him at the back of his head. This is the blow which Nancy Sara
and Zaldy Siglos said were delivered by Sotero and Bienvenido. This
blow caused Sevilla to reel backward and lean on the bamboo fence. To
prevent Sevilla from regaining his balance, Ramon pressed his counter-
attack by continuing to harass him with blows of his nightstick. As Ramon perpetua to death, and an additional award of ₱25,000.00 as exemplary
pressed on forward, Sevilla retreated backward. Ramon kept him busy damages was likewise imposed. Pertinently, the CA decision reads in
parrying the blows which hit his arms and front part of the body, as they part:
were face to face with each other. But even in the course of such
harassment, Sevilla was able to fire a second shot which missed Ramon. WHEREFORE, the assailed decision is AFFIRMED with
MODIFICATION. The accused-appellants are hereby sentenced to suffer
When they reached the end of the road pavement, Sevilla lost his footing the penalty of DEATH and to pay, jointly and severally, the heirs of
on edge of the pavement and fell down. At that juncture, Sotero arrived Rolando Sevilla the amount of ₱25,000.00 as exemplary damages.
and shouted to Ramon to stop beating Rolando. But Ramon told him that
Rolando still had the gun. So, Sotero plunged at Rolando and they Let the entire records of this case be elevated to the Supreme Court for
wrestled on the ground for the possession of the gun. As they struggled, its review, pursuant to AM No. 00-5-03-SC (Amendments to the Revised
the gun went off but no one was hurt. When Rolando raised his arms to Rules of Criminal Procedure to Govern Death Penalty Cases) which took
move the gun away from Sotero, Ramon knocked the gun off his hand effect on October 15, 2004.
and it fell near the place where Jose Poblete was standing. Poblete just
arrived at the scene along with Marciano Regalario who was already told SO ORDERED.12
that his brother Ramon was shot by Sevilla. Poblete picked up the gun.
He was instructed by Marciano to keep it until it is turned over to the
As can be gleaned from the above quote, the CA elevated the instant
authorities.
case to this Court in view of the penalty imposed. In our
Resolution13 dated November 14, 2006, we required the parties to
The wounded Ramon Regalario was brought to town for treatment and simultaneously submit their respective supplemental briefs. On
later to the provincial hospital. Marciano and Sotero proceeded to the December 12, 2006, the people filed a manifestation 14 stating that it is
police station to report the shooting of Ramon. waiving the filing of a supplemental brief. Accused-appellants filed their
supplemental brief15 on February 15, 2007.
Bienvenido Regalario, the barangay tanod, arrived at the scene after the
fact. He was instructed by Marciano, the barangay captain to effect the In their Brief, accused-appellants raise the following assignment of errors:
arrest of Rolando Sevilla for the crime of shooting Ramon. According to
Bienvenido, they were taught in their training seminar to just use a rope
1. THE TRIAL COURT ERRED IN HOLDING THAT ALL OF THE
in lieu of handcuffs because they could not be supplied with it. So, he tied
ACCUSED PARTICIPATED IN THE KILLING OF ROLANDO SEVILLA
the hands and feet of Rolando Sevilla for fear that he might be able to
AND BASING ITS DECISION, NOT ON DIRECT EVIDENCE BUT ON
escape.
ITS OWN SUPPOSITIONS, CONJECTURES AND INFERENCES;
On the early morning of February 23, a team of policemen went to
2. THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED THE
Natasan and found the dead body of Rolando Sevilla. Jose Poblete also
EVIDENCE AND DISPLAYED BIAS WHEN IT LEANED IN FAVOR OF
turned over to the police, Rolando Sevilla’s gun. Meanwhile, Noel
THE PROSECUTION EVIDENCE DESPITE THEIR VITAL
Regalario, after learning of the incident, scoured the place where the third
CONTRADICTIONS AND OBVIOUS FALSEHOODS;
shot was fired during the struggle between Sotero and Rolando. He
found a .38 caliber slug which was also turned over to the police. 11
3. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS
CONSPIRACY AMONG THE ACCUSED AND THAT THE COMMISSION
On May 31, 2006, the CA promulgated the herein challenged decision
OF THE OFFENSE WAS ATTENDED BY THE QUALIFYING
affirming for the most part the decision of the trial court with modification
CIRCUMSTANCES OF ABUSE OF SUPERIOR STRENGTH AND
as to the penalty imposed. Unlike the trial court, the CA did not
SCOFFING AT THE BODY OF THE VICTIM;
appreciate the mitigating circumstance of voluntary surrender in favor of
the accused-appellants. Thus, the penalty was changed from reclusion
4. THE LOWER COURT ERRED IN NOT FINDING THAT THE
DECEASED WAS KILLED IN SELF-DEFENSE AND/OR DEFENSE OF
RELATIVE
5. THE TRIAL COURT ERRED IN AWARDING DAMAGES TO THE
HEIRS OF THE DECEASED.16
We begin our evaluation with accused-appellant Ramon Regalario’s
claim of self-defense. Both the CA and the trial court gave no credence to
this theory of self-defense.
When self-defense is invoked by an accused charged with murder or
homicide he necessarily owns up to the killing but may escape criminal
liability by proving that it was justified and that he incurred no criminal
liability therefor. Hence, the three (3) elements of self-defense, namely:
(a) unlawful aggression on the part of the victim; (b) reasonable necessity
of the means employed to prevent or repel the aggression; and (c) lack of
sufficient provocation on the part of the person defending himself, must
be proved by clear and convincing evidence. However, without unlawful
aggression, there can be no self-defense, either complete or
incomplete.17
Accused-appellant Ramon contends that the victim Rolando Sevilla
committed an act of unlawful aggression with no provocation on his
[Ramon’s] part. Ramon testified that he was trying to investigate a
commotion when, without warning, Rolando emerged from the group,
thrust and fired his gun at him, hitting him in the left shoulder. To disable
Rolando from firing more shots, Ramon struck the victim’s head at the
back with his nightstick, causing the victim to reel backward and lean on
the bamboo fence. He continued hitting Rolando to prevent the latter
from regaining his balance and, as he pressed on farther, the victim
retreated backward.
By Ramon’s own account, after he was shot, he hit the victim at the back
of the latter’s head and he continued hitting the victim who retreated
backward. From that moment, the inceptive unlawful aggression on the
part of the victim ceased to exist and the continuation of the offensive
stance of Ramon put him in the place of an aggressor. There was clearly
no longer any danger, but still Ramon went beyond the call of self-
preservation. In People v. Cajurao,18 we held:
…The settled rule in jurisprudence is that when unlawful aggression
ceases, the defender no longer has the right to kill or even wound the
former aggressor. Retaliation is not a justifying circumstance. Upon the
cessation of the unlawful aggression and the danger or risk to life and
limb, the necessity for the person invoking self-defense to attack his
adversary ceases.  If he persists in attacking his adversary, he can no
1avvphi1
longer invoke the justifying circumstance of self-defense. Self-defense
does not justify the unnecessary killing of an aggressor who is retreating
from the fray. (Emphasis supplied)
Ramon’s claim of self-defense is further belied by the presence of two (2)
stab wounds on the neck, four (4) lacerated wounds on the head, as well
as multiple abrasions and contusions on different parts of the victim’s
body, as shown in the Medico-Legal Report. Dr. Mario Cerillo who
conducted the post-mortem examination on the victim revealed that the
victim’s lacerated wounds could have been caused by a blunt instrument
like a hard stick, a stone or an iron bar; his stab wounds by a sharp-
edged instrument or knife; his contusions and hematoma by a fist blow or
through contact with a blunt instrument. He also declared that the sharp
object which caused the victim’s stab wounds could have been a knife 2
centimeters (cms.) wide and 6 cms. long because they were clean-cut
wounds. Indeed, even if it were true that the victim fired a gun at Ramon,
the number, nature and severity of the injuries suffered by the victim
indicated that the force used against him by Ramon and his co-accused
was not only to disarm the victim or prevent him from doing harm to
others.
The four (4) other accused-appellants, namely, Sotero, Marciano,
Bienvenido and Noel, to exonerate themselves, denied their involvement
in inflicting wounds on Rolando.
Sotero claimed that he arrived at the scene of the crime at the time when
Rolando lost his footing on the edge of the pavement and fell down. He
even shouted at Ramon to stop beating Rolando. However, when Ramon
told him that Rolando still had the gun, he jumped on Rolando and they
wrestled on the ground for the possession of the gun.
Marciano maintained that he, together with Jose Poblete, arrived at the
crime scene when Ramon had already knocked the gun out of Rolando’s
hand and the gun fell near the place where Jose Poblete was standing.
When he went to that place, he already knew that his brother (Ramon)
had been shot, so, he told the latter to go to the hospital. Thereafter, he
and Sotero proceeded to the police station to report the shooting
incident.
1avvphi1
Bienvenido asserted that he arrived at the crime scene after the shooting Q Why did you stop?
incident. He was asked by Marciano to arrest Rolando.
A To verify and know as to who that person being beaten.
Lastly, Noel insisted that he was not present when the shooting incident
took place. He was inside their house sleeping, as his wife had just given xxx xxx xxx
birth.
Q And who was that person being beaten?
We are not convinced.
A Rolando Sevilla.
Accused-appellants’ denials cannot overcome the positive identification
by the prosecution’s witnesses. Elementary is the rule that positive Q Who were the persons beating Rolando Sevilla?
identification, where categorical and consistent, prevails over
unsubstantiated denials because the latter are negative and self-serving,
A Marciano Regalario, Sotero Regalario, Ramon Regalario,
and thus, cannot be given any weight on the scales of justice. 19 The
Bienvenido Regalario, Noel Regalario, Ernani Regalario,
participation of each of the accused-appellants can be fully ascertained
Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio
from the clear, categorical and spontaneous testimony given by
Rebanal.
prosecution witness, Ronnie Siglos, who was at the scene of the crime,
thus:
Q Who else?
PROSECUTOR RESARI:
A Cecilio Lunas.
Q While you were walking on your way home, was there an
unusual incident and can you recall? Q If some of the persons you saw beating Rolando Sevilla are
present in this court room, will you be able to point and identify
them?
A Yes, ma’am
A Yes, ma’am.
Q What was that incident about?
xxx xxx xxx
A While I was on my way towards the house of my parents, I just
suddenly saw a person being beaten on the road.
PROSECUTOR:
Q When you first noticed that there was a man being beaten
along the road, how far were you? Q You stated that you saw the persons you have just named as
beating Rolando Sevilla. Were there weapons used in beating
Rolando Sevilla?
A I was about more or less 9 to 10 meters.
A Yes.
xxx xxx xxx
Q What kind of weapons (was) used?
Q When you saw a man being beaten what did you do?
A Sotero was armed with bahi wood, and also Ramon.
A I continue walking, but upon reaching that place near the
Bienvenido was also armed with bahi, as well as Cecilio Lunas,
person being beaten, I stopped.
Jose Quinno were also armed with ‘malo-palo.’
xxx xxx xxx
Q What kind of weapon was being held by Noel Regalario?
A A knife.
xxx xxx xxx
Q Now, when you saw Rolando Sevilla being beaten by the
persons you mentioned before, what did you notice on the
condition of Rolando Sevilla?
A He was lying on his stomach.
Q Did you see the face of Rolando Sevilla?
A Yes.
Q How were you able to see the face of Rolando Sevilla?
A Because Sotero was holding him by his hair.
Q What was your observation on the condition of Rolando
Sevilla?
xxx xxx xxx
WITNESS:
He was already motionless. He is not moving anymore.
PROSECUTOR:
Of the persons you named as holding weapons, you did not
mention Marciano Regalario as holding any weapon. What was
Marciano Regalario doing then?
A He boxed Rolando Sevilla and Rolando was hit on his jaw.
Q What else did Marciano Regalario do if any?
A After he boxed Rolando Sevilla, he went inside his house but
after about one (1) minute he again return(ed) back.
Q After Marciano Regalario returned back, what did he do if any?
A He shouted to kill that.
Q After you heard Marciano Regalario (say) to kill "that," what did
you do?
A I proceeded towards home.
Q While you were walking, was there any unusual incident which
again happened?
A Yes.
Q And, what was that incident?
A While I was walking towards home, again I heard Marciano
Regalario shouted to tie him, that is why I again stopped.
Q When you heard Marciano Regalario to tie him how far were
you from him?
A More or less 7 meters.
Q You said that upon hearing Marciano Regalario, you stopped.
What else happened?
A Bienvenido Regalario passed by me and went to that sleigh
(pababa) which is on the lower portion and got a rope.
Q What did Bienvenido Regalario do with the rope?
A He tied Rolando Sevilla by placing he rope around his neck and
tied his hands.
Q Was there somebody who assisted Bienvenido Regalario in
tying Rolando Sevilla?
A Yes.
Q Who were the persons, if any?
A Sotero Regalario.
Q Aside from Sotero, was there anybody else who helped
Bienvenido Regalario in tying Rolando Sevilla?
A No more.
Q While Rolando Sevilla was being hog tied, where were the
persons of Marciano Regalario, Noel Regalario, Ramon Regalario
and the rest of the persons whom you just mentioned awhile ago?
A They were there standing beside Rolando Sevilla and they
were watching.
Q Did you notice whether Rolando Sevilla was still moving when
he was still being tied up by Bienvenido and Sotero?
A He was not moving anymore.20
The aforequoted testimony of Ronnie Siglos is corroborated by
the following testimony of Armando Poblete:
Q While you were standing by the road, what did you notice?
A Then I saw Rolando Sevilla being chased by Bienvenido and
Sotero both surnamed Regalario
Q To what direction was Rolando Sevilla being chased by Sotero
and Bienvenido Regalario?
A Towards the place of Kapitan.
xxx xxx xxx
PROSECUTOR RESARI:
Q Considering that was already nighttime, how were you able to
know that the person being chased was Rolando Sevilla and the
persons chasing him were the two (2) Regalarios which you have
identified?
A Because, I was with Sevilla during that time and it was moonlit
night.
Q When the two (2) were chasing Rolando Sevilla, what
happened next?
A Ramon waylaid Rolando Sevilla.
xxx xxx xxx
Q After you saw Ramon Regalario waylaid Rolando Sevilla, what
else did you see?
A After that I saw the group of Sotero, Regalario, Marciano, Noel,
caught up with Rolando.
xxx xxx xxx
PROSECUTOR RESARI:
Q Since Bienvenido Regalario and Sotero Regalario were the
ones chasing Rolando Sevilla, from what direction did Ramon
Regalario come from when he waylaid Rolando Sevilla?
A That side, left side going towards the house of Kapitan.
Q And where did Marciano and Noel xxx come from?
A From their house.
Q After the five (5) caught up with Rolando Sevilla, what
happened to Rolando Sevilla?
A They took turns in beating him.
Q Did they use any weapon in beating Rolando Sevilla?
A Yes, their night sticks.
Q When Bienvenido and Sotero caught up with Rolando Sevilla;
and the three (3) other accused also joined the two (2), how far
was your distance to them?
 A More or less 14 to 15 meters.21
We agree with the findings of the two courts below as to the presence of
conspiracy. Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit
it. Direct proof of conspiracy is rarely found, for criminals do not write
down their lawless plans and plots. The agreement to commit a crime,
however, may be deduced from the mode and manner of the commission
of the offense or inferred from acts that point to a joint purpose and
design, concerted action, and community of intent. It does not matter who
inflicted the mortal wound, as the act of one is the act of all, and each
incurs the same criminal liability.22 We quote with approval the findings
and observations of the CA, thus:
The eyewitnesses’ account surrounding Rolando Sevilla’s death shows
that the accused-appellants performed concerted acts in pursuit of a
common objective. Sotero, Bienvenido, and Ramon, armed with
nightsticks, and Noel armed with a knife, seven inches in length, beat
Rolando Sevilla. All five accused-appellants caught up with the victim,
blocked all means through which the victim could escape and ensured
the achievement of their plan to kill Rolando Sevilla even as the latter
already fell to the ground. Accused-appellant Marciano hit the victim on
his jaw and later, ordered his co-accused to kill and tie the victim. Upon
hearing Marciano’s instruction, Bienvenido Regalario tied Rolando’s
neck, hands and feet with a rope. The collective act of the accused-
appellants is sufficient to make them co-principals to the killing. 23
Considering the foregoing, as well as the manner in which the attack
against Rolando was carried out, and the testimonies of the prosecution
witnesses positively identifying the accused-appellants as the assailants,
we concur in the rulings of the CA, affirming those of the trial court, in (a)
disregarding Ramon Regalario’s declaration that he attacked the victim in
self-defense and (b) holding that all the accused-appellants acted in
concert and killed Rolando.
We likewise rule that both the CA and the trial court were correct in
appreciating the qualifying circumstance of abuse of superior strength in
killing Rolando Sevilla. To take advantage of superior strength is to use
force out of proportion to the means available to the person attacked to
defend himself. In order to be appreciated, it must be clearly shown that
there was deliberate intent on the part of the malefactors to take
advantage thereof.24 In this case, as testified to by the prosecution
eyewitnesses, accused-appellants Ramon, Sotero and Bienvenido, with
the exception of Marciano, were armed with nightsticks (bahi) while Noel
was holding a knife. Clearly they took advantage of their superiority in
number and arms in killing the victim, as shown by numerous wounds the
latter suffered in different parts of his body.
Also affirmed is the ruling of both courts appreciating the presence of the
generic aggravating circumstance of scoffing at the body of the victim.
Accused-appellants did not just kill the victim. They tied him hog-style
after rendering him immobilized. This action constituted outraging or
scoffing at the corpse of the victim. In this connection, we agree with the
trial court’s observation:
…The concerted acts committed by all the accused mostly armed with
wooden clubs and one with a 7-inch long knife after the victim fell
pummeling him with mortal blows on the forehead and back of his head
and stab wounds on his neck and one of them telling his co-accused to
kill the victim clearly proved that the Regalarios conspired and took
advantage of their strength and number. Not satisfied with delivering
mortal blows even when their hapless victim was already immobile,
Bienvenido and Sotero, upon order of their co-accused Marciano, tied
their victim hog style. The manner by which Rolando was tied as vividly
captured in the picture (Exhs. ‘C’ & ‘D’) clearly speaks for itself that it was
nothing but to scoff at their victim. 25
The CA was likewise correct in not appreciating the mitigating
circumstance of voluntary surrender in favor of accused-appellants. For
said circumstance to be appreciated, it must be spontaneous, in such a
manner that it shows the intent of the accused to surrender
unconditionally to the authorities, either because he acknowledges his
guilt or because he wishes to save them the trouble and expense of
finding and capturing him.26 In the case at bar, accused-appellants
remained at large even after Judge Jose S. Sañez issued the warrant for
their arrest on February 6, 1998. Accused-appellants surrendered only on
September 9, 1998 after several alias warrants of arrest were issued
against them. Hence, voluntary surrender cannot be appreciated in their
favor as mitigating circumstance.
The accused-appellants’ acts plainly amount to murder, qualified by
abuse of superior strength. As the generic aggravating circumstance of
scoffing at the body of the victim was alleged and proven, and as there
was no mitigating circumstance, the CA correctly sentenced accused-
appellants to death in accordance with Art. 248, as amended by Republic
Act No. 7659, in relation to Art. 63(1) of the revised Penal Code.
In view, however, of the passage of Republic Act No. 9346, 27 the the damages awarded at the legal rate of 6% from this date until fully
imposition of the death penalty has been prohibited. Thus, the penalty paid is imposed.34
imposed upon accused-appellants should be reduced to reclusion
perpetua, without eligibility for parole. SO ORDERED.

While the new law prohibits the imposition of the death penalty, the TERESITA J. LEONARDO-DE CASTRO
penalty provided for by law for a heinous offense is still death and the Associate Justice
offense is still heinous.28 Consequently, the civil indemnity for the victim is
still ₱75,000.00. In People v. Quiachon,29 we explained that even if the WE CONCUR:
penalty of death is not to be imposed on appellant because of the
prohibition in Republic Act No. 9346, the civil indemnity of ₱75,000.00 is
REYNATO S. PUNO
still proper because, following the ratiocination in People v. Victor (292
Chief Justice
SCRA 186), the said award is not dependent on the actual imposition of
the death penalty but on the fact that qualifying circumstances warranting
the imposition of the death penalty attended the commission of the LEONARDO A. CONSUELO YNARES-
offense. QUISUMBING SANTIAGO
Associate Justice Associate Justice
As to the award of moral and exemplary damages, the CA correctly held
accused-appellants jointly and severally liable to pay the heirs of Rolando MA. ALICIA AUSTRIA-
Sevilla for the same. Moral damages are awarded despite the absence of ANTONIO T. CARPIO
MARTINEZ
proof of mental and emotional suffering of the victim’s heirs. As borne out Associate Justice
Associate Justice
by human nature and experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the part of the
victim’s family.30 If a crime is committed with an aggravating CONCHITA CARPIO
RENATO C. CORONA
circumstance, either qualifying or generic, an award of exemplary MORALES
Associate Justice
damages is justified under Article 2230 of the New Civil Code. This kind Associate Justice
of damage is intended to serve as deterrent to serious wrongdoings and
as vindication of undue sufferings and wanton invasion of the rights of an (On leave)
injured, or as a punishment for those guilty of outrageous DANTE O. TINGA MINITA V. CHICO-NAZARIO
conduct.31 However, consistent with recent jurisprudence on heinous Associate Justice Associate Justice
crimes where the imposable penalty is death but reduced to reclusion
perpetua pursuant to Republic Act No. 9346, the award of moral (No part)
damages should be increased from ₱50,000.00 to ₱75,000.00 32 while the PRESBITERO J. VELASCO, ANTONIO EDUARDO B.
award of exemplary damages should be increased from ₱25,000.00 to JR. NACHURA
₱30,000.00.33 Associate Justice Associate Justice

WHEREFORE, the decision of the Court of Appeals dated May 31, 2006 (On leave)
in CA-G.R. CR No. 01556 is hereby AFFIRMED with the following ARTURO D. BRION DIOSDADO M. PERALTA
modifications: (1) the penalty of death imposed on accused-appellants is Associate Justice Associate Justice
lowered to reclusion perpetua without eligibility for parole; (2) the
monetary awards to be paid jointly and severally by accused-appellants
are as follows: ₱75,000.00 as civil indemnity, ₱75,000.00 as moral CERTIFICATION
damages and ₱30,000.00 as exemplary damages; and (3) interest on all
Pursuant to Section 13, Article VIII of the Constitution, I certify that the 13
 Id. at 38.
conclusions in the above decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court. 14
 Id. at 42.

REYNATO S. PUNO 15
 Id. at 50-61.
Chief Justice
16
 CA rollo, pp. 121-122.

 People v. More, et al., G.R. No. 128820, December 23, 1999,

17

321 SCRA 538, 543-544.

Footnotes
18
 G.R. No. 122767, January 20, 2004, 420 SCRA 207, 214-215.
* On leave.
 People v. Carullo, G. R. Nos. 129289-90, July 29, 1999, 311
19

** No part. Signed pleading as Solicitor General. SCRA 680, 691-692.

1
 Penned by Associate Justice Vicente S.E. Veloso with Associate 20
 TSN, December 7, 1998, pp. 32-38.
Justice Portia Aliño-Hormachuelos and Associate Justice Amelita
G. Tolentino, concurring; rollo, pp. 3-29. 21
 TSN, December 7, 1998, pp. 6-9.
2
 Penned by Judge Jose S. Sañez; CA record, pp. 51-84.  People v. Cawaling, G.R. No. 117970, July 28, 1998, 293
22

SCRA 267, 306-307.

3
 RTC record, p. 55.
23
 Rollo, pp. 14-15.
4
 Id. at 115-116.
 People v. Tumanon, et al., G.R. No. 135066, February 15,
24

5
 CA rollo at 51-84. 2001, 351 SCRA 676, 689.

6
 Id. at 97. 25
 CA rollo, p. 83.

7
 Id. at 113-127.  People v. Maalat, G.R. No. 109814, July 8, 1997, 275 SCRA
26

206, 213-214.
8
 Id. at 189-227.
 An Act Prohibiting the Imposition of Death Penalty in the
27

9
 G.R. Nos. 147678-87, July 4, 2004, 433 SCRA 640. Philippines.

10
 CA rollo, pp. 197-204.  People v. Salome, G.R. No. 169077, August 31, 2006, 500
28

SCRA 659, 676. See also People v. Ranin, G.R. 173023, June
11
 Id. at 119-121. 25, 2008 and People v. Entrialgo, G.R. 177353, November 11,
2008.
12
 Rollo, p. 25.
29
 G.R. No. 170235, August 31, 2006, 500 SCRA 704, 719.
 30
 Ibid. PEOPLE OF THE PHILIPPINES, appellee,
vs.
 People v. Aguila, G.R. No. 171017, December 6, 2006, 510
31 BETH TEMPORADA, appellant.
SCRA 642, 663.
DECISION
 People v. Audine, G.R. No. 168649, December 6, 2006, 510
32

SCRA 531, 547, People v. Orbita, G.R. No. 172091, March 31,
2008; People v. Balobalo, G.R. No. 177563, October 18, 2008.
33
 People v. Sia, G.R. 174059, February 27, 2009.
34
 People v. Guevarra, G. R. No. 182191, October 29, 2008.
YNARES-SANTIAGO, J.:
Before us for review is the February 24, 2006 Decision1 of the Court of
Appeals (CA), affirming with modification the May 14, 2004 Decision 2 of
the Regional Trial Court (RTC) of Manila, Branch 33, convicting accused-
appellant Beth Temporada of the crime of large scale illegal recruitment,
or violation of Article 38 of the Labor Code, as amended, and five (5)
counts of estafa under Article 315, par. (2)(a) of the Revised Penal Code
(RPC).

The antecedents, as found by the appellate court, are as follows:

From September 2001 to January 2002, accused Rosemarie

"Baby" Robles, Bernadette Miranda, Nenita Catacotan and Jojo
Resco and appellant Beth Temporada, all employees of the
Alternative Travel and Tours Corporation (ATTC), recruited and
promised overseas employment, for a fee, to complainants
Rogelio Legaspi, Jr. as technician in Singapore, and Soledad
Atle, Luz Minkay, Evelyn Estacio and Dennis Dimaano as factory
workers in Hongkong. The accused and appellant were then
holding office at Dela Rosa Street, Makati City but eventually
transferred business to Discovery Plaza, Ermita, Manila. After
complainants had submitted all the requirements consisting of
their respective application forms, passports, NBI clearances and
medical certificates, the accused and appellant, on different
dates, collected and received from them placement fees in
various amounts, viz: a) from Rogelio Legaspi, Jr. – 57,600.00; b)
from Dennis Dimaano – P66,520.00; c) from Evelyn Estacio –
Republic of the Philippines P88,520.00; d) from Soledad Atle – P69,520.00 and e) from Luz
SUPREME COURT Minkay – P69,520.00. As none of them was able to leave nor
Manila recover the amounts they had paid, complainant lodged separate
criminal complaints against accused and appellant before the City
EN BANC Prosecutor of Manila. On November 29, 2002, Assistant City
Prosecutor Restituto Mangalindan, Jr. filed six (6) Informations
G.R. No. 173473             December 17, 2008 against the accused and appellant, one for Illegal Recruitment in
Large Scale under Article 38 (a) of the Labor Code as amended,
and the rest for five (5) counts of estafa under Article 315 "The undersigned accuses ROSEMARIE "BABY"
paragraph 2 (a) of the Revised Penal Code. ROBLES, BERNADETTE M. MIRANDA, BETH
TEMPORADA, NENITA CATACOTAN and JOJO RESCO
The Information for large scale illegal recruitment reads: x x x.

Criminal Case No. 02-208371: That in or about and during the period comprised between
November 23, 2001 and January 12, 2002, inclusive, in
"The undersigned accuses ROSEMARIE "BABY" the City of Manila, Philippines, the said accused,
ROBLES, BERNADETTE M. MIRANDA, BETH conspiring and confederating together and helping one
TEMPORADA, NENITA CATACOTAN and JOJO RESCO another, did then and there willfully, unlawfully and
x x x. feloniously defraud ROGELIO A. LEGASPI, JR., in the
following manner, to wit: the said accused, by means of
false manifestations and fraudulent representations which
That in or about and during the period comprised between
they made to said ROGELIO A. LEGASPI, JR., prior to
the months of September 2001 and January 2002,
and even simultaneous with the commission of the fraud,
inclusive, in the City of Manila, Philippines, the said
to the effect that they have the power and capacity to
accused, representing themselves to have the power and
recruit and employ ROGELIO A. LEGASPI, JR., as
capacity to contract, enlist and transport Filipino workers
technician in Singapore and could facilitate the
for employment abroad, did then and there willfully,
processing of the pertinent papers if given the necessary
unlawfully for a fee, recruit and promise employment to
amount to meet the requirements thereof, induced and
REGELIO A. LEGASPI, JR., DENNIS T. DIMAANO,
succeeded in inducing said ROGELIO A. LEGASPI, JR.,
EVELEYN V. ESTACIO, SOLEDAD B. ATTE and LUZ
to give and deliver, as in fact he gave and delivered to
MINKAY without first having secured the required license
said accused the amount of P57,600.00 on the strength of
from the Department of Labor and Employment as
said manifestations and representations said accused
required by law, and charge or accept directly or indirectly
well knowing that the same were false and fraudulent and
from said complainant[s] the amount of PH57,600.00,
were made solely for the purpose of obtaining, as in fact
PH66,520.00, PH88,520.00, PH69,520.00, PH69,520.00,
they did obtain the amount of P57,600.00, which amount,
respectively, as placement fees in consideration for their
once in their possession, with intend to defraud, they
overseas employment, which amounts are in excess of or
willfully, unlawfully and feloniously misappropriated,
greater than that specified in the scheduled of allowable
misapplied and converted the same to their own personal
fees prescribed of the POEA and without reasons and
use and benefit, to the damage and prejudice of said
without fault of the said complainants, failed to actually
ROGELIO A. LEGASPI, JR. in the aforesaid amount of
deploy them and failed to reimburse them the expenses
P57,000.00 Philippine Currency.
they incurred in connection with the documentation and
processing of their papers for purposes of their
deployment. Contrary to law."

Contrary to law." The other four (4) Informations for estafa involve the following
complainants and amounts:
Except for the name of private complainant and the amount
involved, the five (5) Informations for estafa contain substantially 1. DENNIS T. DIMAANO P66,520.00
identical averments as follows:
2. EVELYN V. ESTACIO P88,520.00
Criminal Case No. 02-208372:
 3. SOLEDAD B. ATLE P69,520.00
4. LUZ T. MINKAY P69,520.003
Only appellant was apprehended and brought to trial, the other accused
remained at large. Upon arraignment, appellant pleaded not guilty and
trial on the merits ensued. After joint trial, on May 14, 2004, the RTC
rendered judgment convicting appellant of all the charges:
WHEREFORE, the prosecution having established the GUILT of
accused Beth Temporada BEYOND REASONABLE DOUBT,
judgment is hereby rendered CONVICTING the said accused, as
principal of the offenses charged and she is sentenced to suffer
the penalty of LIFE IMPRISONMENT and a fine of Five Hundred
Thousand Pesos (P500,000.00) for illegal recruitment; and the
indeterminate penalty of four (4) years and two (2) months of
prision correctional as minimum, to nine (9) years and one (1) day
of prision mayor, as maximum for the estafa committed against
complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of
four (4) years and two (2) months of prision correctional as
minimum to ten (10) years and one day of prision mayor as
maximum each for the estafas committed against complainants,
Dennis Dimaano, Soledad B. Atte and Luz T. Minkay; and the
indeterminate penalty of four (4) years and two (2) months of
prision correctional as minimum, to eleven (11) years and one (1)
day of prision mayor as maximum for the estafa committed
against Evelyn Estacio.
The accused is also ordered to pay jointly and severally the
complainants actual damages as follows:
1. Rogelio A. Legaspi Jr. P57,600.00
2. Dennis T. Dimaano 66,520.00
3. Evelyn V. Estacio 88,520.00
4. Soledad B. Atte 66,520.00
5. Luz T. Minkay 69,520.00
SO ORDERED.4
In accordance with the Court’s ruling in People v. Mateo,5 this case was
referred to the CA for intermediate review. On February 24, 2006, the CA
affirmed with modification the Decision of the RTC:
WHEREFORE, with MODIFICATION to the effect that in Criminal
Cases Nos. 02-208373, 02-208375, & 02-208376, appellant is
sentenced to suffer the indeterminate penalty of six (6) years
of prision correccional maximum, as minimum, to ten (10) years
and one (1) day of prision mayor maximum, as maximum; and in
Criminal Case No. 02-208374, she is sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision
mayor medium, as minimum, to twelve (12) years and one (1) day
of reclusion temporal minimum, as maximum, the appealed
decision is AFFIRMED in all other respects.6
Before this Court, appellant ascribes the lone error that the trial court
gravely erred in finding her guilty of illegal recruitment and five (5) counts
of estafa despite the insufficiency of the evidence for the prosecution.
We affirm the Decision of the CA, except as to the indeterminate
penalties imposed for the five (5) counts of estafa.
Article 13(b) of the Labor Code defines recruitment and placement thusly:
ART. 13. Definitions. – x x x
(b) "Recruitment and placement" refers to any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or procuring
workers, and includes referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or
not: Provided, That any person or entity which, in any manner,
offers or promises for a fee, employment to two or more persons
shall be deemed engaged in recruitment and placement.
To constitute illegal recruitment in large scale, three (3) elements must
concur: (a) the offender has no valid license or authority required by law
to enable him to lawfully engage in recruitment and placement of
workers; (b) the offender undertakes any of the activities within the
meaning of "recruitment and placement" under Article 13(b) of the Labor
Code, or any of the prohibited practices enumerated under Article 34 of
the said Code (now Section 6 of R.A. No. 8042); and, (c) the offender
committed the same against three (3) or more persons, individually or as
a group.7
In the case at bar, the foregoing elements are present. Appellant, in
conspiracy with her co-accused, misrepresented to have the power,
influence, authority and business to obtain overseas employment upon
payment of a placement fee which was duly collected from complainants
Rogelio Legaspi, Dennis Dimaano, Evelyn Estacio, Soledad Atle and Luz
Minkay. Further, the certification8 issued by the Philippine Overseas
Employment Administration (POEA) and the testimony of Ann Abastra
Abas, a representative of said government agency, established that
appellant and her co-accused did not possess any authority or license to
recruit workers for overseas employment. And, since there were five (5)
victims, the trial court correctly found appellant liable for illegal
recruitment in large scale.
Appellant insists that she was merely an employee of ATTC and was just
"echoing the requirement of her employer." She further argues that the
prosecution failed to prove that she was aware of the latter’s illegal
activities and that she actively participated therein. In essence, she
controverts the factual findings of the lower courts.
The contention is untenable.
An employee of a company or corporation engaged in illegal recruitment
may be held liable as principal, together with his employer, if it is shown
that he actively and consciously participated in illegal
recruitment.9 Appellant actively took part in the illegal recruitment of
private complainants. Rogelio Legaspi testified that after introducing
herself as the General Manager of ATTC, appellant persuaded him to
apply as a technician in Singapore and assured him that there was a job
market therefor. In addition to the placement fee of P35,000.00 which he
paid to accused Bernadette Miranda, he also handed the amount of
P10,000.00 to appellant who, in turn, issued him a receipt for the total
amount of P45,000.00. Upon the other hand, Soledad Atle and Luz
Minkay, who applied as factory workers in Hongkong through co-
accused, Emily Salagonos, declared that it was appellant who briefed
them on the requirements for the processing of their application, and
assured them and Dennis Dimaano of immediate deployment for jobs
abroad. For her part, Evelyn Estacio testified that aside from the
placement fee of P40,000.00 that she paid to co-accused "Baby" Robles
in connection with her purported overseas employment, she also gave
appellant P10,000.00 for which she was issued a receipt for the amount
of P5,000.00.
The totality of the evidence, thus, established that appellant acted as an
indispensable participant and effective collaborator of her co-accused in
the illegal recruitment of complainants. As aptly found by the CA:
Without doubt, all the acts of appellant, consisting of introducing
herself to complainants as general manager of ATTC,
interviewing and entertaining them, briefing them on the
requirements for deployment and assuring them that they could
leave immediately if they paid the required amounts, unerringly
show unity of purpose with those of her co-accused in their
scheme to defraud private complainants through false promises
of jobs abroad. There being conspiracy, appellant shall be equally
liable for the acts of her co-accused even if she herself did not
personally reap the fruits of their execution. We quote with
approval the trial court’s findings on the matter:
"xxx It is clear that said accused conspired with her co-
accused Rosemarie "Baby" Robles, Bernadette M.
Miranda, Nenita Catacotan, and Jojo Resco in convincing
complainants xxx to apply for overseas jobs and giving
complainants Soledad Atle, Luz Minkay and Dennis
Dimaano guarantee that they would be hired as factory
workers in Hongkong, complainant Rogelio Legaspi, as
Technician in Singapore and Evelyn Estacio as quality
controller in a factory in Hongkong, despite the fact that
the accused was not licensed to do so.
It should be noted that all the accused were connected
with the Alternative Travel and Tours Corporation (ATTC).
Accused Beth Temporada introduced herself as ATTC’s
General Manager. Saod accused was also the one who
received the P10,000.00 given by complainant Rogelio
Legaspi, Jr. and the P10,000.00 given by complainant
Evelyn Estacio as payment for their visa and plane ticket,
respectively."10
Consequently, the defense of appellant that she was not aware of the
illegal nature of the activities of her co-accused cannot be sustained.
Besides, even assuming arguendo that appellant was indeed unaware of
the illegal nature of said activities, the same is hardly a defense in the
prosecution for illegal recruitment. Under The Migrant Workers and
Overseas Filipinos Act of 1995, a special law, the crime of illegal
recruitment in large scale is malum prohibitum and not malum in
se.11 Thus, the criminal intent of the accused is not necessary and the
fact alone that the accused violated the law warrants her conviction. 12
In the instant case, we find no reason to depart from the rule that findings
of fact of the trial court on the credibility of witnesses and their
testimonies are generally accorded great respect by an appellate court.
The assessment of credibility of witnesses is a matter best left to the trial
court because it is in the position to observe that elusive and
incommunicable evidence of the witnesses’ deportment on the stand
while testifying, which opportunity is denied to the appellate
courts.13 Further, there is no showing of any ill-motive on the part of the
prosecution witnesses in testifying against appellant. Absent such
improper motive, the presumption is that they were not so actuated and
their testimony is entitled to full weight and credit.
Section 7(b) of R.A. No. 8042 prescribes the penalty of life imprisonment
and a fine of not less than P500,000.00 nor more than P1,000,000.00 for
the crime of illegal recruitment in large scale or by a syndicate. The trial
court, therefore, properly meted the penalty of life imprisonment and a
fine of P500,000.00 on the appellant.
Anent the conviction of appellant for five (5) counts of estafa, we,
likewise, affirm the same. Well-settled is the rule that a person convicted
for illegal recruitment under the Labor Code may, for the same acts, be
separately convicted for estafa under Article 315, par. 2(a) of the
RPC.14 The elements of estafa are: (1) the accused defrauded another by
abuse of confidence or by means of deceit; and (2) the offended party or
a third party suffered damage or prejudice capable of pecuniary
estimation.15 The same evidence proving appellant’s criminal liability for
illegal recruitment also established her liability for estafa. As previously
discussed, appellant together with her co-accused defrauded
complainants into believing that they had the authority and capability to
send complainants for overseas employment. Because of these
assurances, complainants parted with their hard-earned money in
exchange for the promise of future work abroad. However, the promised
overseas employment never materialized and neither were the
complainants able to recover their money.
While we affirm the conviction for the five (5) counts of estafa, we find,
however, that the CA erroneously computed the indeterminate penalties
therefor. The CA deviated from the doctrine laid down in People v.
Gabres;16 hence its decision should be reversed with respect to the
indeterminate penalties it imposed. The reversal of the appellate court’s
Decision on this point does not, however, wholly reinstate the
indeterminate penalties imposed by the trial court because the maximum
terms, as determined by the latter, were erroneously computed and must
necessarily be rectified.
The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC,
when the amount defrauded exceeds P22,000.00, is prisión
correccional maximum to prisión mayor minimum. The minimum term is
taken from the penalty next lower or anywhere within prisión
correccional minimum and medium (i.e., from 6 months and 1 day to 4
years and 2 months). Consequently, the RTC correctly fixed the minimum
term for the five estafa cases at 4 years and 2 months of prisión
correccional since this is within the range of prisión
correccional minimum and medium.
On the other hand, the maximum term is taken from the prescribed
penalty of prisión correccional maximum to prisión mayor minimum in its
maximum period, adding 1 year of imprisonment for every P10,000.00 in
excess of P22,000.00, provided that the total penalty shall not exceed 20
years. However, the maximum period of the prescribed penalty of prisión
correccional maximum to prisión mayor minimum is not prisión
mayor minimum as apparently assumed by the RTC. To compute the
maximum period of the prescribed penalty, prisión correccional maximum
to prisión mayor minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one period in
accordance with Article 6517 of the RPC. Following this procedure, the
maximum period of prisión correccional maximum to prisión
mayor minimum is from 6 years, 8 months and 21 days to 8 years.18 The
incremental penalty, when proper, shall thus be added to anywhere from
6 years, 8 months and 21 days to 8 years, at the discretion of the court. 19
In computing the incremental penalty, the amount defrauded shall be
subtracted by P22,000.00, and the difference shall be divided by
P10,000.00. Any fraction of a year shall be discarded as was done
starting with the case of People v. Pabalan20 in consonance with the
settled rule that penal laws shall be construed liberally in favor of the
accused. The doctrine enunciated in People v. Benemerito21 insofar as
the fraction of a year was utilized in computing the total incremental
penalty should, thus, be modified. In accordance with the above
procedure, the maximum term of the indeterminate sentences imposed
by the RTC should be as follows:
In Criminal Case No. 02-208372, where the amount defrauded was
P57,600.00, the RTC sentenced the accused to an indeterminate penalty
of 4 years and 2 months of prisión correccional as minimum, to 9 years
and 1 day of prisión mayor as maximum. Since the amount defrauded
exceeds P22,000.00 by P35,600.00, 3 years shall be added to the
maximum period of the prescribed penalty (or added to anywhere from 6
years, 8 months and 21 days to 8 years, at the discretion of the court).
The lowest maximum term, therefore, that can be validly imposed is 9
years, 8 months and 21 days of prisión mayor, and not 9 years and 1 day
of prisión mayor.
In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where the
amounts defrauded were P66,520.00, P69,520.00, and P69,520.00,
respectively, the accused was sentenced to an indeterminate penalty of 4
years and 2 months of prisión correccional as minimum, to 10 years and
1 day of prisión mayor as maximum for each of the aforesaid
three estafa cases. Since the amounts defrauded exceed P22,000.00 by
P44,520.00, P47,520.00, and P47,520.00, respectively, 4 years shall be
added to the maximum period of the prescribed penalty (or added to
anywhere from 6 years, 8 months and 21 days to 8 years, at the
discretion of the court). The lowest maximum term, therefore, that can be
validly imposed is 10 years, 8 months and 21 days of prisión mayor, and
not 10 years and 1 day of prisión mayor.
Finally, in Criminal Case No. 02-208374, where the amount defrauded
was P88,520.00, the accused was sentenced to an indeterminate penalty
of 4 years and 2 months of prisión correccional as minimum, to 11 years
and 1 day of prisión mayor as maximum. Since the amount defrauded
exceeds P22,000.00 by P66,520.00, 6 years shall be added to the
maximum period of the prescribed penalty (or added to anywhere from 6
years, 8 months and 21 days to 8 years, at the discretion of the court).
The lowest maximum term, therefore, that can be validly imposed is 12
years, 8 months and 21 days of reclusión temporal, and not 11 years and
1 day of prisión mayor.
Response to the dissent.
In the computation of the indeterminate sentence for estafa under Article
315, par. 2(a) of the Revised Penal Code (RPC), the Court
has consistently followed the doctrine espoused in Pabalan and more
fully explained in Gabres. The dissent argues that Gabres should be
reexamined and abandoned.
We sustain Gabres.
I.
The formula proposed in the Dissenting Opinion of Mr. Justice Ruben T.
Reyes, i.e., the maximum term shall first be computed by applying the
incremental penalty rule, and thereafter the minimum term shall be
determined by descending one degree down the scale of penalties from
the maximum term, is a novel but erroneous interpretation of the ISL in
relation to Article 315, par. 2(a) of the RPC. Under this interpretation, it is
not clear how the maximum and minimum terms shall be computed.
Moreover, the legal justification therefor is not clear because the meaning
of the terms "penalty," "prescribed penalty," "penalty actually imposed,"
"minimum term," "maximum term," "penalty next lower in degree," and
"one degree down the scale of penalties" are not properly set out and
are, at times, used interchangeably, loosely and erroneously.
For purposes of this discussion, it is necessary to first clarify the meaning
of certain terms in the sense that they will be used from here on. Later,
these terms shall be aligned to what the dissent appears to be proposing
in order to clearly address the points raised by the dissent.
The RPC provides for an initial penalty as a general prescription for the
felonies defined therein which consists of a range of period of time. This
is what is referred to as the "prescribed penalty." For instance, under
Article 24922 of the RPC, the prescribed penalty for homicide is reclusión
temporal which ranges from 12 years and 1 day to 20 years of
imprisonment. Further, the Code provides for attending or modifying
circumstances which when present in the commission of a felony affects
the computation of the penalty to be imposed on a convict. This penalty,
as thus modified, is referred to as the "imposable penalty." In the case
of homicide which is committed with one ordinary aggravating
circumstance and no mitigating circumstances, the imposable penalty
under the RPC shall be the prescribed penalty in its maximum period.
From this imposable penalty, the court chooses a single fixed penalty
(also called a straight penalty) which is the "penalty actually imposed"
on a convict, i.e., the prison term he has to serve.
Concretely, in U.S. v. Saadlucap,23 a pre-ISL case, the accused was
found guilty of homicide with a prescribed penalty of reclusión temporal.
Since there was one ordinary aggravating circumstance and no mitigating
circumstances in this case, the imposable penalty is reclusión temporal in
its maximum period, i.e., from 17 years, 4 months and 1 day to 20 years.
The court then had the discretion to impose any prison term provided it is
within said period, so that the penalty actually imposed on the accused
was set at 17 years, 4 months and 1 day of reclusión temporal,24 which is
a single fixed penalty, with no minimum or maximum term.
With the passage of the ISL, the law created a prison term which
consists of a minimum and maximum term called the indeterminate
sentence.25 Section 1 of the ISL provides –
SECTION 1. Hereafter, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view
of the attending circumstances, could be properly imposed under
the rules of said Code, and the minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for
the offense; x x x.
Thus, the maximum term is that which, in view of the attending
circumstances, could be properly imposed under the RPC. In other
words, the penalty actually imposed under the pre-ISL regime became
the maximum term under the ISL regime. Upon the other hand, the
minimum term shall be within the range of the penalty next lower to the
prescribed penalty. To illustrate, if the case of Saadlucap was decided
under the ISL regime, then the maximum term would be 17 years, 4
months and 1 day of reclusión temporal and the minimum term could be
anywhere within the range of prisión mayor (6 years and 1 day to 12
years) which is the penalty next lower to reclusión temporal.
Consequently, an indeterminate sentence of 10 years of prisión mayor as
minimum to 17 years, 4 months and 1 day of reclusión temporal as
maximum could have possibly been imposed.
If we use the formula as proposed by the dissent, i.e., to compute the
minimum term based on the maximum term after the attending or
modifying circumstances are considered, the basis for computing the
minimum term, under this interpretation, is the imposable penalty 26 as
hereinabove defined. This interpretation is at odds with Section 1 of the
ISL which clearly states that the minimum of the indeterminate sentence
shall be "within the range of the penalty next lower to that prescribed by
the Code for the offense." Consequently, the basis for fixing the minimum
term is the prescribed penalty,27 and not the imposable penalty.
In People v. Gonzales,28 the Court held that the minimum term must be
based on the penalty prescribed by the Code for the offense "without
regard to circumstances modifying criminal liability."29 The Gonzales’
ruling that the minimum term must be based on the prescribed penalty
"without regard to circumstances modifying criminal liability" is only
a restatement of Section 1 of the ISL that the minimum term shall be
taken from within the range of the penalty next lower to the prescribed
penalty (and from nowhere else).30
Further, the dissent proceeds from the erroneous premise that its so-
called "regular formula" has generally been followed in applying the ISL.
To reiterate, according to the dissent, the "regular formula" is
accomplished by first determining the maximum term after considering all
the attending circumstances; thereafter, the minimum term is arrived at
by going one degree down the scale from the maximum term. As
previously discussed, this essentially means, using the terms as earlier
defined, that the minimum term shall be taken from the penalty next lower
to the imposable penalty (and not the prescribed penalty.) In more
concrete terms and using the previous example of homicide with one
ordinary aggravating circumstance, this would mean that the minimum
term for homicide will no longer be based on reclusión temporal (i.e., the
prescribed penalty for homicide) but reclusión temporal in its maximum
period (i.e., the imposable penalty for homicide with one ordinary
aggravating circumstance) so much so that the minimum term shall be
taken from reclusión temporal in its medium period (and no longer
from prisión mayor) because this is the penalty next lower to reclusión
temporal in its maximum period. The penalty from which the minimum
term is taken is, thus, significantly increased. From this example, it is
not difficult to discern why this interpretation radically departs from
how the ISL has generally been applied by this Court. The
dissent’s "regular formula" is, therefore, anything but regular.
In fine, the "regular formula" espoused by the dissent deviates from the
ISL and established jurisprudence and is, thus, tantamount to judicial
legislation.
II.
There is no absurdity or injustice in fixing or "stagnating" the minimum
term within the range of prisión correccional minimum and medium (i.e.,
from 6 months and 1 day to 4 years and 2 months). Preliminarily, it must
be emphasized that the minimum term taken from the aforementioned
range of penalty need not be the same for every case of estafa when the
amount defrauded exceeds P12,000.00. In People v. Ducosin,31 the Court
provided some guidelines in imposing the minimum term from the range
of the penalty next lower to the prescribed penalty:
We come now to determine the "minimum imprisonment period"
referred to in Act No. 4103. Section 1 of said Act provides that
this "minimum which shall not be less than the minimum
imprisonment period of the penalty next lower to that prescribed
by said Code for the offense."32 We are here upon new ground. It
is in determining the "minimum" penalty that Act No. 4103 confers
upon the courts in the fixing of penalties the widest discretion that
the courts have ever had. The determination of the "minimum"
penalty presents two aspects: first, the more or less mechanical
determination of the extreme limits of the minimum imprisonment
period; and second, the broad question of the factors and
circumstances that should guide the discretion of the court in
fixing the minimum penalty within the ascertained limits.
xxxx
We come now to the second aspect of the determination of the
minimum penalty, namely, the considerations which should guide
the court in fixing the term or duration of the minimum period of
imprisonment. Keeping in mind the basic purpose of the
Indeterminate Sentence Law "to uplift and redeem valuable
human material, and prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness"
(Message of the Governor-General, Official Gazette No. 92, vol.
XXXI, August 3, 1933), it is necessary to consider the criminal,
first, as an individual and, second, as a member of society. This
opens up an almost limitless field of investigation and study which
it is the duty of the court to explore in each case as far as is
humanly possible, with the end in view that penalties shall not be
standardized but fitted as far as is possible to the individual, with
due regard to the imperative necessity of protecting the social
order.
Considering the criminal as an individual, some of the factors that
should be considered are: (1) His age, especially with reference
to extreme youth or old age; (2) his general health and physical
condition; (3) his mentality, heredity and personal habits; (4) his
previous conduct, environment and mode of life (and criminal
record if any); (5) his previous education, both intellectual and
moral; (6) his proclivities and aptitudes for usefulness or injury to
society; (7) his demeanor during trial and his attitude with regard
to the crime committed; (8) the manner and circumstances in
which the crime was committed; (9) the gravity of the offense
(note that section 2 of Act No. 4103 excepts certain grave crimes
– this should be kept in mind in assessing the minimum penalties
for analogous crimes).
In considering the criminal as a member of society, his
relationship, first, toward his dependents, family and associates
and their relationship with him, and second, his relationship
towards society at large and the State are important factors. The
State is concerned not only in the imperative necessity of
protecting the social organization against the criminal acts of
destructive individuals but also in redeeming the individual for
economic usefulness and other social ends. In a word, the
Indeterminate Sentence Law aims to individualize the
administration of our criminal law to a degree not heretofore
known in these Islands. With the foregoing principles in mind as
guides, the courts can give full effect to the beneficent intention of
the Legislature.33
Admittedly, it is possible that the court, upon application of the guidelines
in Ducosin, will impose the same minimum term to one who commits
an estafa involving P13,000.00 and another involving P130 million. In
fact, to a lesser degree, this is what happened in the instant case where
the trial court sentenced the accused to the same minimum term of 4
years and 2 months of prisión correccional in Criminal Case Nos. 02-
208372, 02-208373, 02-208375, 02-208376, and 02-208374 where the
amounts defrauded were P57,600.00, P66,520.00, P69,520.00,
P69,520.00 and P88,520.00, respectively. However, there is no absurdity
and injustice for two reasons.
One, while it is possible that the minimum term imposed by a court would
be the same, the maximum term would be greater for the convict who
committed estafa involving P130 million (which would be 20 years
of reclusion temporal) than the convict who swindled P13,000.00 (which
could be anywhere from prisión correccional maximum to prisión
mayor minimum or from 4 years, 2 months and 1 day to 8
years).34 Assuming that both convicts qualify for parole after serving the
same minimum term, the convict sentenced to a higher maximum term
would carry a greater "burden" with respect to the length of parole
surveillance which he may be placed under, and the prison term to be
served in case he violates his parole as provided for in Sections 6 35 and
836 of the ISL. Under Section 6, the convict shall be placed under a period
of surveillance equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release and discharge by the
Board of Pardon and Paroles. Further, the convict with the higher
maximum term would have to serve a longer period upon his re-
commitment in prison in case he violates his parole because he would
have to serve the remaining portion of the maximum term, unless the
Board of Pardon and Paroles shall, in its discretion, grant a new parole to
the said convict as provided for in Section 8.
Although the differences in treatment are in the nature of potential
liabilities, to this limited extent, the ISL still preserves the greater degree
of punishment in the RPC for a convict who commits estafa involving a
greater amount as compared to one who commits estafa involving a
lesser amount. Whether these differences in treatment are sufficient
in substance and gravity involves a question of wisdom and
expediency of the ISL that this Court cannot delve into.
Two, the rule which provides that the minimum term is taken from the
range of the penalty next lower to the prescribed penalty is, likewise,
applicable to other offenses punishable under the RPC. For instance, the
minimum term for an accused guilty of homicide with one generic
mitigating circumstance vis-à-vis an accused guilty of homicide with three
ordinary aggravating circumstances would both be taken from prisión
mayor – the penalty next lower to eclusion temporal. Evidently, the
convict guilty of homicide with three ordinary aggravating circumstances
committed a more perverse form of the felony. Yet it is possible that the
court, after applying the guidelines in Ducosin, will impose upon the latter
the same minimum term as the accused guilty of homicide with one
generic mitigating circumstance. This reasoning can be applied mutatis
mutandis to most of the other offenses punishable under the RPC.
Should we then conclude that the ISL creates absurd results for these
offenses as well?
In fine, what is perceived as absurd and unjust is actually the intent of
the legislature to be beneficial to the convict in order to "uplift and
redeem valuable human material, and prevent unnecessary and
excessive deprivation of personal liberty and economic usefulness." 37 By
the legislature’s deliberate design, the range of penalty from which the
minimum term is taken remains fixed and only the range of penalty from
which the maximum term is taken changes depending on the number and
nature of the attending circumstances. Again, the reason why the
legislature elected this mode of beneficence to a convict revolves on
questions of wisdom and expediency which this Court has no power to
review. The balancing of the State’s interests in deterrence and
retributive justice vis-à-vis reformation and reintegration of convicts to
society through penal laws belongs to the exclusive domain of the
legislature.
III.
People v. Romero,38 De Carlos v. Court of Appeals,39 Salazar v.
People,40 People v. Dinglasan41 and, by analogy, People v. Dela Cruz42 do
not support the formula being proposed by the dissent.
The instant case involves a violation of Article 315, par. 2(a) of the
RPC.43 The penalty for said violation is–
ARTICLE 315. Swindling (Estafa). – Any person who shall
defraud another by any of the means mentioned hereinbelow
shall be punished by:
1st. The penalty of prisión correccional in its maximum period
to prisión mayor in its minimum period, if the amount of the fraud
is over 12,000 pesos but does not exceed 22,000 pesos, and if
such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this Code,
the penalty shall be termed prisión mayor or reclusión temporal,
as the case may be. x x x
In contrast, Romero, De Carlos, and Salazar involved violations of Article
315 of the RPC as amended by Presidential Decree (P.D.) No.
168944 because: (1) the funds defrauded were contributed by
stockholders or solicited by corporations/associations from the general
public, (2) the amount defrauded was greater than P100,000.00, and (3)
the estafa was not committed by a syndicate. Section 1 of P.D. No. 1689
provides–
Sec. 1. Any person or persons who shall commit estafa or other
forms of swindling as defined in Article 315 and 316 of the
Revised Penal Code, as amended, shall be punished by life
imprisonment to death if the swindling (estafa) is committed by a
syndicate consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme, and the defraudation results in the
misappropriation of money contributed by stockholders, or
members of rural banks, cooperative, "samahang nayon(s)", or
farmers association, or of funds solicited by
corporations/associations from the general public.
 When not committed by a syndicate as above defined, the
penalty imposable shall be reclusión temporal to reclusión
perpetua if the amount of the fraud exceeds 100,000
pesos. (Emphasis supplied)
Since the prescribed penalty is reclusión temporal to reclusión perpetua,
the minimum terms were taken from prisión mayor, which is the penalty
next lower to the prescribed penalty.45 As can be seen, these cases
involved a different penalty structure that does not make use of the
incremental penalty rule due to the amendatory law. Thus, the
comparison of these cases with Gabres is improper.
Meanwhile, in Dinglasan, the felony committed was estafa through
bouncing checks which is punishable under Article 315 par. 2(d) of the
RPC as amended by Republic Act (RA) No. 488546–
Sec. 1. Section Two, Paragraph (d), Article Three hundred fifteen
of Act Numbered Thirty-eight hundred and fifteen is hereby
amended to read as follows:
"Sec. 2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with the
commission of the fraud:
"(d) By postdating a check, or issuing a check in payment
of an obligation when the offender had no funds in the
bank, or his funds deposited therein were not sufficient to
cover the amount of the check. The failure of the drawer
of the check to deposit the amount necessary to cover his
check within three (3) days from receipt of notice from the
bank and/or the payee or holder that said check has been
dishonored for lack or insufficiency of funds shall be prima
facie evidence of deceit constituting false pretense or
fraudulent act."
and P.D. No. 81847–
Sec. 1. Any person who shall defraud another by means of false
pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of
the Revised Penal Code, as amended by Republic Act No. 4885, shall be
punished by:
1st. The penalty of reclusión temporal if the amount of the fraud
is over 12,000 pesos but not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos but the total penalty which
may be imposed shall in no case exceed thirty years. In such
cases, and in connection with the accessory penalties which may
be imposed under the Revised Penal Code, the penalty shall be
termed reclusión perpetua; x x x (Emphasis supplied)
Here, the prescribed penalty of prisión correccional maximum to prisión
mayor minimum was increased to reclusión temporal by the amendatory
law. Consequently, the penalty next lower to reclusión temporal is prisión
mayor from which the minimum term was taken. This is the reason for the
higher minimum term in this case as compared to Gabres. In fact,
Dinglasan is consistent with Gabres–
Since the face value of Check No. 029021, for which appellant is
criminally liable for estafa, exceeds P22,000, the penalty
abovecited must be "imposed in its maximum period, adding 1
year for each additional P10,000." Pursuant to People vs.
Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate
sentence shall be imposed on the accused, computed favorably
to him. In this case, the indeterminate sentence should be
computed based on the maximum period of reclusión temporal as
maximum, which is from 17 years, 4 months, and 1 day to 20
years. The minimum period of the sentence should be within
the penalty next lower in degree as provided in the Revised
Penal Code, i.e., prisión mayor, which is from 6 years and 1
day to 12 years imprisonment. Considering that the excess of
the fraud committed, counting from the base of P22,000, is only
P4,400, which is less than the P10,000 stated in P.D. 818, there
is no need to add one year to the maximum penalty
abovecited.48 (Emphasis supplied)
As in Gabres, the penalty next lower (i.e., prisión mayor) was determined
without considering in the meantime the effect of the amount defrauded
in excess of P22,000.00 on the prescribed penalty (i.e., reclusión
temporal).
Finally, Dela Cruz involved a case for qualified theft. The prescribed
penalty for qualified theft is two degrees higher than simple theft.
Incidentally, the penalty structure for simple theft 49 and estafa is similar in
that both felonies (1) requires that the prescribed penalty be imposed in
its maximum period when the value of the thing stolen or the amount
defrauded, as the case may be, exceeds P22,000.00, and (2) provides
for an incremental penalty of 1 year imprisonment for every P10,000.00
in excess of P22,000.00. It should be pointed out, however, that the
prescribed penalty for simple theft is prisión mayor minimum and medium
while in estafa it is lower at prisión correccional maximum to prisión
mayor minimum.
Being two degrees higher, the prescribed penalty for qualified theft is,
thus, reclusión temporal medium and maximum, while the minimum term
is taken from the range of prisión mayor maximum to reclusión
temporal minimum, which is the penalty next lower to reclusión
temporal medium and maximum. The penalty next lower to the
prescribed penalty is determined without first considering the amount
stolen in excess of P22,000.00 consistent with Gabres. In fact, Dela Cruz
expressly cites Gabres–
Applying the Indeterminate Sentence Law, the minimum of the
indeterminate penalty shall be anywhere within the range of the
penalty next lower in degree to that prescribed for the
offense, without first considering any modifying
circumstance attendant to the commission of the crime.
Since the penalty prescribed by law is reclusión temporal medium
and maximum, the penalty next lower would be prisión mayor in
its maximum period to reclusión temporal in its minimum period.
Thus, the minimum of the indeterminate sentence shall be
anywhere within ten (10) years and one (1) day to fourteen (14)
years and eight (8) months.
The maximum of the indeterminate penalty is that which, taking
into consideration the attending circumstances, could be properly
imposed under the Revised Penal Code. Since the amount
involved in the present case exceeds P22,000.00, this should
be taken as analogous to modifying circumstances in the
imposition of the maximum term of the full indeterminate
sentence, not in the initial determination of the indeterminate
penalty. (citing Gabres) Thus, the maximum term of the
indeterminate penalty in this case is the maximum period
of reclusión temporal medium and maximum, which ranges from
eighteen (18) years, two (2) months, and twenty one (21) days to
twenty (20) years, as computed pursuant to Article 65, in relation
to Article 64 of the Revised Penal Code.50 (Emphasis supplied)
Clearly, none of these cases supports the Dissenting Opinion’s
thesis that the minimum term should be computed based on the
maximum term. Quite the contrary, Dinglasan and Dela Cruz are
consistent with Gabres.
IV.
The argument that the incremental penalty rule should not be considered
as analogous to a modifying circumstance stems from the erroneous
interpretation that the "attending circumstances" mentioned in Section 1
of the ISL are limited to those modifying circumstances falling within the
scope of Articles 13 and 14 of the RPC. Section 1 of the ISL is again
quoted below –
SECTION 1. Hereafter, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view
of the attending circumstances, could be properly imposed
under the rules of said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by
the Code for the offense; x x x (Emphasis supplied)
The plain terms of the ISL show that the legislature did not intend to limit
"attending circumstances" as referring to Articles 13 and 14 of the RPC. If
the legislature intended that the "attending circumstances" under the ISL
be limited to Articles 13 and 14, then it could have simply so stated. The
wording of the law clearly permits other modifying circumstances outside
of Articles 13 and 14 of the RPC to be treated as "attending
circumstances" for purposes of the application of the ISL, such as quasi-
recidivism under Article 16051 of the RPC. Under this provision, "any
person who shall commit a felony after having been convicted by final
judgment, before beginning to serve such sentence, or while serving the
same, shall be punished by the maximum period of the penalty
prescribed by law for the new felony." This circumstance has been
interpreted by the Court as a special aggravating circumstance where the
penalty actually imposed is taken from the prescribed penalty in its
maximum period without regard to any generic mitigating
circumstances.52 Since quasi-recidivism is considered as merely a special
aggravating circumstance, the penalty next lower in degree is computed
based on the prescribed penalty without first considering said special
aggravating circumstance as exemplified in People v.
Manalo53 and People v. Balictar.54
The question whether the incremental penalty rule is covered within the
letter and spirit of "attending circumstances" under the ISL was answered
in the affirmative by the Court in Gabres when it ruled therein that the
incremental penalty rule is analogous to a modifying circumstance.
Article 315 of the RPC pertinently provides –
ARTICLE 315. Swindling (Estafa). – Any person who shall
defraud another by any of the means mentioned hereinbelow
shall be punished by:
1st. The penalty of prisión correccional in its maximum
period to prisión mayor in its minimum period, if the
amount of the fraud is over 12,000 pesos but does not
exceed 22,000 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may
be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of
this Code, the penalty shall be termed prisión
mayor or reclusión temporal, as the case may be. x x x
Under Gabres, prisión correccional maximum to prisión mayor minimum
is the prescribed penalty55 for estafa when the amount defrauded
exceeds P22,000.00. An amount defrauded in excess of P22,000.00 is
effectively considered as a special aggravating circumstance in the sense
that the penalty actually imposed shall be taken from the prescribed
penalty in its maximum period without regard to any generic mitigating
circumstances. Consequently, the penalty next lower in degree is still
based on the prescribed penalty without in the meantime considering the
effect of the amount defrauded in excess of P22,000.00.
What is unique, however, with the afore-quoted provision is that when the
amount defrauded is P32,000.00 or more, the prescribed penalty is not
only imposed in its maximum period but there is imposed an incremental
penalty of 1 year imprisonment for every P10,000.00 in excess of
P22,000.00, provided that the total penalty which may be imposed shall
not exceed 20 years. This incremental penalty rule is a special rule
applicable to estafa and theft. In the case of estafa, the incremental
penalty is added to the maximum period of the prescribed penalty (or to
anywhere from 6 years, 8 months and 21 days to 8 years) at the
discretion of the court, in order to arrive at the penalty actually imposed
(i.e., the maximum term, within the context of the ISL).
This unique characteristic of the incremental penalty rule does not pose
any obstacle to interpreting it as analogous to a modifying circumstance,
and, hence, falling within the letter and spirit of "attending circumstances"
for purposes of the application of the ISL. Under the wording of the ISL,
"attending circumstances" may be reasonably interpreted as referring to
such circumstances that are applied in conjunction with certain rules in
the Code in order to determine the penalty to be actually imposed based
on the prescribed penalty of the Code for the offense. The incremental
penalty rule substantially meets this standard. The circumstance is the
amount defrauded in excess of P22,0000.00 and the incremental penalty
rule is utilized to fix the penalty actually imposed. At its core, the
incremental penalty rule is merely a mathematical formula for computing
the penalty to be actually imposed using the prescribed penalty as
starting point. Thus, it serves the same function of determining the
penalty actually imposed as the modifying circumstances under Articles
13, 14, and 160 of the RPC, although the manner by which the former
accomplishes this function differs with the latter. For this reason, the
incremental penalty rule may be considered as merely analogous to
modifying circumstances. Besides, in case of doubt as to whether the
incremental penalty rule falls within the scope of "attending
circumstances" under the ISL, the doubt should be resolved in favor
of inclusion because this interpretation is more favorable to the accused
following the time-honored principle that penal statutes are construed
strictly against the State and liberally in favor of the accused. 56 Thus,
even if the Dissenting Opinion’s interpretation is gratuitously conceded as
plausible, as between Gabres and the dissent’s interpretation, Gabres
should be sustained since it is the interpretation more favorable to the
accused.
V.
The claim that the maximum term should only be one degree away from
the minimum term does not make sense within the meaning of
"degrees" under the RPC because the minimum and maximum
terms consist of single fixed penalties. At any rate, the point seems to
be that the penalty from which the minimum term is taken should only be
one degree away from the penalty from which the maximum term is
taken.
As a general rule, the application of modifying circumstances, the
majority being generic mitigating and ordinary aggravating
circumstances, does not result to a maximum term fixed beyond the
prescribed penalty. At most, the maximum term is taken from the
prescribed penalty in its maximum period. Since the maximum term is
taken from the prescribed penalty and the minimum term is taken from
the next lower penalty, then, in this limited sense, the difference would
naturally be only one degree. Concretely, in the case of homicide with
one ordinary aggravating circumstance, the maximum term is taken
from reclusión temporal in its maximum period which is within the
prescribed penalty of reclusión temporal, while the minimum term is
taken from prisión mayor which is the penalty next lower to reclusión
temporal; hence, the one-degree difference observed by the dissent.
In comparison, under the incremental penalty rule, the maximum term
can exceed the prescribed penalty. Indeed, at its extreme, the maximum
term can be as high as 20 years of reclusión temporal while the
prescribed penalty remains at prisión correccional maximum to prisión
mayor minimum, hence, the penalty next lower to the prescribed penalty
from which the minimum term is taken remains at anywhere within prisión
correccional minimum and medium, or from 6 months and 1 day to 4
years and 2 months. In this sense, the incremental penalty rule deviates
from the afore-stated general rule.57
However, it is one thing to say that, generally, the penalty from which the
minimum term is taken is only one degree away from the penalty from
which the maximum term is taken, and completely another thing to claim
that the penalty from which the minimum term is taken should only be
one degree away from the penalty from which the maximum term is
taken.
The one-degree difference is merely the result of a general
observation from the application of generic mitigating and ordinary
aggravating circumstances in the RPC in relation to the
ISL. Nowhere does the ISL refer to the one-degree difference as an
essential requisite of an "attending circumstance." If the application of the
incremental penalty rule deviates from the one-degree difference, this
only means that the law itself has provided for an exception thereto.
Verily, the one-degree difference is a mere consequence of the generic
mitigating and ordinary aggravating circumstances created by the
legislature. The difficulty of the dissent with the deviation from its so-
called one-degree difference rule seems to lie with the inability to view
these "attending circumstances" as mere artifacts or creations of the
legislature. It does not make sense to argue that the legislature cannot
formulate "attending circumstances" that operate differently than these
generic mitigating and ordinary aggravating circumstances, and
that, expectedly, leads to a different result from the one-degree
difference–for it would be to say that the creator can only create one
specie of creatures. Further, it should be reasonably assumed that the
legislature was aware of these special circumstances, like the
incremental penalty rule or privileged mitigating circumstances, at the
time it enacted the ISL as well as the consequent effects of such special
circumstances on the application of said law. Thus, for as long as the
incremental penalty rule is consistent with the letter and spirit of
"attending circumstances" under the ISL, there is no obstacle to its
treatment as such.
VI.
Much has been said about the leniency, absurdity and unjustness of the
result under Gabres; the need to adjust the minimum term of the
indeterminate penalty to make it commensurate to the gravity of
the estafa committed; the deterrence effect of a stiffer imposition of
penalties; and a host of other similar reasons to justify the reversal
of Gabres. However, all these relate to policy considerations beyond the
wording of the ISL in relation to the RPC; considerations that if given
effect essentially seek to rewrite the law in order to conform to one notion
(out of an infinite number of such notions) of wisdom and efficacy, and,
ultimately, of justice and mercy.
This Court is not the proper forum for this sort of debate. The Constitution
forbids it, and the principle of separation of powers abhors it. The Court
applies the law as it finds it and not as how it thinks the law should be.
Not too long ago in the case of People v. Veneracion,58 this Court spoke
about the dangers of allowing one’s personal beliefs to interfere with the
duty to uphold the Rule of Law which, over a decade later, once again
assumes much relevance in this case:
Obedience to the rule of law forms the bedrock of our system of
justice. If judges, under the guise of religious or political beliefs
were allowed to roam unrestricted beyond boundaries within
which they are required by law to exercise the duties of their
office, the law becomes meaningless. A government of laws, not
of men excludes the exercise of broad discretionary powers by
those acting under its authority. Under this system, judges are
guided by the Rule of Law, and ought "to protect and enforce it
without fear or favor," resist encroachments by governments,
political parties, or even the interference of their own personal
beliefs.59
 VII.
Mr. Justice Adolfo S. Azcuna proposes an interpretation of the
incremental penalty rule based on the phrases "shall be termed prisión
mayor or reclusión temporal, as the case may be" and "for the purpose of
the other provisions of this Code" found in the last sentence of said
rule, viz:
ARTICLE 315. Swindling (Estafa). – Any person who shall
defraud another by any of the means mentioned hereinbelow
shall be punished by:
1st. The penalty of prisión correccional in its maximum
period to prisión mayor in its minimum period, if the
amount of the fraud is over 12,000 pesos but does not
exceed 22,000 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may
be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory
penalties which may be imposed and for the purpose
of the other provisions of this Code, the penalty shall
be termed prisión mayor or reclusión temporal, as the
case may be. x x x (Emphasis supplied)
While this interpretation is plausible, Gabres should still be sustained
because in construing penal statutes, as between two reasonable 60 but
contradictory constructions, the one more favorable to the accused
should be upheld, which in this case is Gabres. The reason for this rule is
elucidated in an eminent treatise on statutory construction in this wise:
It is an ancient rule of statutory construction that penal statutes
should be strictly construed against the government or parties
seeking to enforce statutory penalties and in favor of the
persons on whom penalties are sought to be imposed. This
simply means that words are given their ordinary meaning and
that any reasonable doubt about the meaning is decided in
favor of anyone subjected to a criminal statute. This canon of
interpretation has been accorded the status of a constitutional
rule under principles of due process, not subject to abrogation by
statute.
The rule that penal statutes should be strictly construed has
several justifications based on a concern for the rights and
freedoms of accused individuals. Strict construction can assure
fairness when courts understand it to mean that penal statutes
must give a clear and unequivocal warning, in language people
generally understand, about actions that would result in liability
and the nature of potential penalties. A number of courts have
said:
… the rule that penal statutes are to be strictly construed
… is a fundamental principle which in our judgment will
never be altered. Why? Because the lawmaking body
owes the duty to citizens and subjects of making
unmistakably clear those acts for the commission of
which the citizen may lose his life or liberty. Therefore, all
the canons of interpretation which apply to civil statutes
apply to criminal statutes, and in addition there exists the
canon [of strict construction] …. The burden lies on the
lawmakers, and inasmuch as it is within their power, it is
their duty to relieve the situation of all doubts.
xxxx
Additionally, strict construction protects the individual against
arbitrary discretion by officials and judges. As one judge noted:
"the courts should be particularly careful that the bulwarks of
liberty are not overthrown, in order to reach an offender who is,
but perhaps ought not to be, sheltered behind them."
 But also, for a court to enforce a penalty where the SO ORDERED.
legislature has not clearly and unequivocally prescribed it
could result in judicial usurpation of the legislative function. CONSUELO YNARES-SANTIAGO
One court has noted that the reason for the rule is "to guard Associate Justice
against the creation, by judicial construction, of criminal offenses
not within the contemplation of the legislature." Thus the rule
requires that before a person can be punished his case must be
plainly and unmistakably within the statute sought to be applied.
And, so, where a statute is open to more than one interpretation,
it is strictly construed against the state. Courts further rationalize WE CONCUR:
this application of the rule of strict construction on the ground that
it was not the defendant in the criminal action who caused REYNATO S. PUNO
ambiguity in the statute. Along these same lines, courts also Chief Justice
assert that since the state makes the laws, they should be most
strongly construed against it.61 (Emphasis supplied; citations LEONARDO A. QUISUMBING ANTONIO T. CARPIO
omitted) Associate Justice Associate Justice

Thus, in one case, where the statute was ambiguous and permitted two MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
reasonable interpretations, the construction which would impose a less Associate Justice Associate Justice
severe penalty was adopted.62
CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
Associate Justice Associate Justice
WHEREFORE, the Decision of the Court of Appeals is MODIFIED with
respect to the indeterminate penalties imposed on appellant for the five DANTE O. TINGA MINITA V. CHICO-NAZARIO
(5) counts of estafa, to wit: Associate Justice Associate Justice

(1) In Criminal Case No. 02-208372, the accused is sentenced to PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
an indeterminate penalty of 4 years and 2 months of prisión Associate Justice Associate Justice
correccional as minimum, to 9 years, 8 months and 21 days
of prisión mayor as maximum. RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice
(2) In Criminal Case Nos. 02-208373, 02-208375, and 02-
208376, the accused is sentenced to an indeterminate penalty of ARTURO D. BRION
4 years and 2 months of prisión correccional as minimum, to 10 Associate Justice
years, 8 months and 21 days of prisión mayor as maximum for
each of the aforesaid three estafa cases.

(3) In Criminal Case No. 02-208374, the accused is sentenced to CERTIFICATION

an indeterminate penalty of 4 years and 2 months of prisión
correccional as minimum, to 12 years, 8 months and 21 days
of reclusión temporal as maximum.
In all other respects, the Decision of the Court of Appeals is AFFIRMED.
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of
the Court.
 REYNATO S. PUNO 15
 Id. at 213.
Chief Justice
16
 335 Phil. 242 (1997).

Footnotes
 CA rollo, pp. 121-136. Penned by Associate Justice Rebecca de
1 into three equal portions the time included in the penalty
Guia-Salvador, with Associate Justices Amelita G. Tolentino and
Aurora Santiago-Lagman, concurring.
17
 ARTICLE 65. Rule in Cases in Which the Penalty is Not
Composed of Three Periods. – In cases in which the penalty
prescribed by law is not composed of three periods, the courts
shall apply the rules contained in the foregoing articles, dividing
prescribed, and forming one period of each of the three portions.
 People v. Saley, G.R. No. 121179, July 2, 1998, 291 SCRA
18

2
 Penned by Hon. Reynaldo G. Ros. 715, 753-754.

3
 CA rollo, pp. 121-124.
19
 Id. at 755.

4
 Id. at 125-26.
20
 331 Phil. 64 (1996).

5
 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
21
 332 Phil. 710, 730-731 (1996).

6
 CA rollo, p. 135.
22
 ARTICLE 249. Homicide. – Any person who, not falling within
the provisions of article 246 shall kill another without the
 People v. Gamboa, G.R. No. 135382, September 29, 2000, 341
7 attendance of any of the circumstances enumerated in the next
SCRA 451, 458. preceding article, shall be deemed guilty of homicide and be
punished by reclusión temporal.
8
 Exhibits "A," "L," and "L-1." 23
 3 Phil. 437 (1904).
9
 People v. Cabais, G.R. No. 129070, March 16, 2001, 354 SCRA
553, 561.
24
 Id. at 440.

10
 CA rollo, pp. 9-10.
25
 The penalty is considered "indeterminate" because after the
convict serves the minimum term, he or she may become eligible
for parole under the provisions of Act No. 4103, which leaves the
11
 Supra note 7 at 462. period between the minimum and maximum term indeterminate in
the sense that he or she may, under the conditions set out in said
12
 Id. Act, be released from serving said period in whole or in part.
(People v. Ducosin, 59 Phil. 109, 114 [1933])
 People v. Guambor, G.R. No. 152183, January 22, 2004, 420
13

SCRA 677, 683.  In the other portions of the dissent though, there is also the
26

impression that the basis is the penalty actually imposed as

 People v. Ballesteros, G.R. Nos. 116905-908, August 6, 2002,
14
hereinabove defined. Whether it is the imposable penalty or
386 SCRA 193, 212. penalty actually imposed, the dissent’s interpretation contravenes
the ISL because the minimum term should be fixed based on the
prescribed penalty.
 See Aquino and Griño-Aquino, The Revised Penal Code, Vol.
27
1, 1997 ed., pp. 772-773; Padilla, Criminal Law: Revised Penal
Code Annotated, 1988 ed., pp. 211-214.
28
 73 Phil. 549 (1941).
29
 Id. at 552.
30
 The dissent cites several cases to establish that Gonzales has
not been followed in cases outside of estafa. An examination of
these cases reveals that this assertion is inaccurate.
1. Sabang v. People, G.R. No. 168818, March 9, 2007,
518 SCRA 35; People v. Candaza, G.R. No. 170474,
June 16, 2006, 491 SCRA 280; People v.
Concepcion, G.R. No. 169060, February 6, 2007, 514
SCRA 660; People v. Hermocilla, G.R. No. 175830, July
10, 2007, 527 SCRA 296; People v. Abulon, G.R. No.
174473, August 17, 2007, 530 SCRA 675.
Gonzales was applied in these cases.
2. People v. Miranda, G.R. No. 169078, March 10, 2006,
484 SCRA 555; Garces v. People, G.R. No. 173858, July
17, 2007, 527 SCRA 827–belongs to the class of cases
involving accessories and accomplices as well as the
frustrated and attempted stages of a felony.
Strictly speaking, these cases do not deviate from
Gonzales. Here, the prescribed penalty for the principal
and consummated stage, respectively, should be merely
viewed as being lowered by the proper number of
degrees in order to arrive at the prescribed penalties for
accomplices and accessories as well as the frustrated
and attempted stages of a felony. In turn, from these
prescribed penalties, the minimum term is determined
without considering in the meantime the modifying
circumstances, as in Gonzales.
3. Garces v. People, G.R. No. 173858, July 17, 2007, 527
SCRA 827–belongs to the class of cases involving
privileged mitigating circumstances.
These cases are, to a certain extent, an exception to the
rule enunciated in Gonzales. Here, the prescribed penalty
is first reduced by the proper number of degrees due to
the existence of a privileged mitigating circumstance. As
thus reduced, the penalty next lower in degree is
determined from which the minimum term is taken. To the
extent that the privileged mitigating circumstance, as a
modifying circumstance, is first applied to the prescribed
penalty before the penalty next lower in degree is
determined, these cases deviate from Gonzales.
However, this interpretation is based on the special
nature of a privileged mitigating circumstance as well as
the liberal construction of penal laws in favor of the
accused. If the privileged mitigating circumstance is not
first applied to the prescribed penalty before determining
the penalty next lower in degree from which the minimum
term is taken, it may happen that the maximum term of
the indeterminate sentence would be lower than the
minimum term, or that the minimum and maximum term
would both be taken from the same range of penalty–
absurdities that the law could not have intended. These
special considerations which justified a deviation from
Gonzales are not present in the instant case. As will be
shown later, Gabres is a reasonable interpretation of the
ISL in relation to Article 315, par. 2(a) of the RPC, and
any contrary interpretation would be unfavorable to the
accused.
31
 59 Phil. 109 (1933).
 This wording of Act No. 4103 was later amended to the current
32
wording "minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense" by Act
No. 4225.
33
 Supra note 31 at 116-118.
34
 Similarly, in the instant case, the maximum term imposed on
the accused increased as the amount defrauded increased in the
various criminal cases filed against her as a consequence of the
incremental penalty rule.
35
 Sec. 6. Every prisoner released from confinement on parole by
virtue of this Act shall, at such times and in such manner as may
be required by the conditions of his parole, as may be designated
by the said Board for such purpose, report personally to such
government officials or other parole officers hereafter appointed
by the Board of Indeterminate Sentence for a period of
surveillance equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release and discharge
by the Board of Indeterminate Sentence as herein provided. The
officials so designated shall keep such records and make such
reports and perform such other duties hereunder as may be
required by said Board. The limits of residence of such paroled
prisoner during his parole may be fixed and from time to time
changed by the said Board in its discretion. If during the period of
surveillance such paroled prisoner shall show himself to be a law-
abiding citizen and shall not violate any of the laws of the
Philippine Islands, the Board of Indeterminate Sentence may
issue a final certificate of release in his favor, which shall entitle
him to final release and discharge.
36
 Sec. 8. Whenever any prisoner released on parole by virtue of
this Act shall, during the period of surveillance, violate any of the
conditions of his parole, the Board of Indeterminate Sentence
may issue an order for his re-arrest which may be served in any
part of the Philippine Islands by any police officer. In such case
the prisoner so re-arrested shall serve the remaining unexpired
portion of the maximum sentence for which he was originally
committed to prison, unless the Board of Indeterminate Sentence
shall, in its discretion, grant a new parole to the said prisoner.
37
 Supra note 31 at 117.
38
 G.R. No. 112985, April 21, 1999, 306 SCRA 90.
39
 G.R. No. 103065, August 16, 1999, 312 SCRA 397.
40
 G.R. No. 149472, October 15, 2002, 391 SCRA 162.
41
 G.R. No. 133645, September 17, 2002, 389 SCRA 71.
42
 383 Phil. 213 (2000).
 Estafa committed by using fictitious name, or falsely pretending
43
to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of other
similar deceits.
44
 Effective April 6, 1980.
45
 See Article 61 of the RPC.
46
 Effective June 17, 1967.
47
 Effective October 22, 1975.
48
 Supra note 41 at 80.
 ARTICLE 309. Penalties. – Any person guilty of theft shall be
49
punished by:
1. The penalty of prisión mayor in its minimum and
medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos;
but if the value of the thing stolen exceeds the latter
amount, the penalty shall be the maximum period of the
one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty
which may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of
the other provisions of this Code, the penalty shall be
termed prisión mayor or reclusión temporal, as the case
may be. x x x
50
 Supra note 42 at 227-228.
51
 ARTICLE 160. Commission of Another Crime During Service of
Penalty Imposed for Another Previous Offense – Penalty. –
Besides the provisions of rule 5 of article 62, any person who
shall commit a felony after having been convicted by final
judgment, before beginning to serve such sentence, or while
serving the same, shall be punished by the maximum period of
the penalty prescribed by law for the new felony.
Any convict of the class referred to in this article, who is not a
habitual criminal, shall be pardoned at the age of seventy years if
he shall have already served out his original sentence, or when
he shall complete it after reaching said age, unless by reason of
his conduct or other circumstances he shall not be worthy of such
clemency.
52
 See People v. Perete, 111 Phil. 943, 947 (1961).
53
 G.R. No. L-55177, February 27, 1987, 148 SCRA 98, 110.
54
 G.R. No. L-29994, July 20, 1979, 91 SCRA 500, 511.
may then be treated as a special aggravating circumstance and
the incremental penalty as analogous to a modifying
circumstance in order to arrive at the penalty actually imposed
consistent with the letter and spirit of the ISL in relation to the
RPC.
56
 People v. Ladjaalam, 395 Phil. 1, 35 (2000).
57
 Cases involving privileged mitigating circumstances would,
likewise, deviate from this general rule since the maximum term
would be taken from a penalty lower than the prescribed penalty.
See note 13.

The dissent argues that the use of quasi-recidivism as an

58
 G.R. Nos. 119987-88, October 12, 1995, 249 SCRA 244.
example of an "attending circumstance" which is outside the
scope of Article 14 of the RPC is inappropriate because quasi- 59
 Id. at 251.
recidivism is sui generis. The argument is off-tangent. The point is
simply that quasi-recidivism is not found under Article 14 of the  The aforesaid phrases are broad enough to justify Mr. Justice
60

RPC yet it is treated as an "attending circumstance" for purposes
of the application of the ISL in relation to the RPC. Hence, there
are "attending circumstances" outside the scope of Articles 13
and 14 of the RPC. For the same reason, the incremental penalty
rule is a special rule outside of Article 14 which, as will be
discussed later on, serves the same function as modifying
circumstances under Articles 13 and 14 of the RPC. See also
Reyes, L.B., The Revised Penal Code, 14th ed., 1998, p. 766.
Azcuna’s interpretation, however, they are vague enough not to
exclude the interpretation under Gabres. The said phrases may
be so construed without being inconsistent with Gabres. (See
Articles 90 and 92 of the RPC)
61
 3 Sutherland Statutory Construction § 59:3 (6th ed.)
 Id. citing Buzzard v. Commonwealth, 134 Va. 641, 114 S.E. 664
62

(1992).
55
 The common thread in the RPC is to fix the prescribed penalty
as the starting point for determining the prison sentence to be
finally imposed. From the prescribed penalty, the attending
circumstances are then considered in order to finally fix the
penalty actually imposed. Further, the designation of a prescribed
penalty is made in individual articles, or prescribed penalties are
individually designated in separate paragraphs within a single
article. Under Article 315, the penalty for estafa when the amount
defrauded is over P12,000.00 but does not exceed P22,000.00
and when such amount exceeds P22,000.00 is lumped within the
same paragraph. Thus, the penalty of prisión
correccional maximum to prisión mayor minimum may be
reasonably considered as the starting point for the computation of
the penalty actually imposed, and hence, the prescribed penalty
when the amount defrauded exceeds P22,000.00. As will be
discussed shortly, the amount defrauded in excess of P22,000.00
 were 23 passengers, 70 sacks of copra with a weight of
80 kilos per sacks (sic), 4 sacks of rice, 4 sacks of
carabao hide, luggages (sic) of the passengers, 4 pigs, 4
chickens, cash and other valuables (pp. 8, 34, t.s.n., June
27,1978; p. 41, tsn., July 24,1978). In addition, there were
five (5) crew members among whom was the petitioner
who boarded the boat in Dinalungan, Quezon (p. 5, tsn.,
June 27, 1978). The boat was overloaded as evidenced
by the fact that only a palm's width of its height was above
the water and its waterline was already submerged (p. 8,
tsn., June 27,1978). When the boat left Casiguran, it was
piloted by Domingo Zamora until the petitioner boarded.
(p. 21, Id.)
Republic of the Philippines
SUPREME COURT At around 1:00 o'clock the following morning the boat left
Manila Dinalungan, but this time, upon the orders of the
petitioner (pp. 6, 27, tsn., Id.). The waves then were as
FIRST DIVISION big as a hut so that the boat had to stop at the port of
Dinadiawan (Id., p. 6, tsn., June 26, 1978). After three
G.R. No. 56481 July 21, 1989 hours of waiting, the petitioner ordered the boat to resume
its voyage despite the fact that the sea was still rough (pp.
ANTONIO SORIAO, petitioner, 6-7, Id.). Petitioner made this order over the objection of
vs. the employed captain Zamora, who said that the boat
COURT OF APPEALS AND THE PEOPLE OF THE could not cope with the trip anymore (p. 6, tsn., June 27,
PHILIPPINES, respondents. 1978). And as expected the boat sank, causing the death
of most of the passengers and the loss and destruction of
the cargoes. (p. 7, Id.) (pp. 132-134, Rollo).

MEDIALDEA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of
Court of the decision of the Court of Appeals dated January 30, 1981
which affirmed the decision of the Court of First Instance of Aurora Sub-
province, Baler, Quezon (now the Regional Trial Court, Branch 66, at
Baler, Aurora).
The antecedent facts as summarized in the People's brief are as follows:
On January 9, 1978, at about 9:00 o'clock in the evening,
M/B Sweet Lord departed from the log pond of Dibet,
Casiguran, Quezon (pp. 4-5, tsn., June 27,1978). The
boat was around 44 feet in length, 5 feet in height and five
feet in width (pp. 8-9, t.s.n., August 24, 1978). On board
Petitioner Antonio Soriao (Soriao, for brevity) and Domingo Zamora
(Zamora, for brevity) were charged with the crime of multiple homicide
and damage to property thru reckless imprudence before the Court of
First Instance of Aurora Sub-province, Baler, Quezon, under an
information which reads:
That on or about the 10th day of January, 1978, on the
Pacific Ocean, in the Municipality of Baler, Sub-province
of Aurora Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring together and helping each other,
being then the persons-in-charge and operators of a
motor boat, 'SWEET LORD', which they had overloaded
with passengers and cargoes, did then and there wilfully,
unlawfully and feloniously manage and operate, or cause
to be managed and operate, the said motor boat SWEET
 LORD, which is owned jointly by accused Antonio Soriao and the Indeterminate Sentence Law, hereby sentences
and his cousin, Anacleto Tejerero, in a careless, reckless him to suffer the indeterminate penalty of from four (4)
and imprudent manner without taking the necessary months of arresto mayor as minimum to two (2) years and
precautions to avoid accident to persons or damage to four (4) months of prision correccional as maximum; to
property, thus causing by their said carelessness, indemnify the heirs of the deceased in the sums
recklessness and imprudence the said motor boat, to appearing opposite their respective names:
capsize and casting into the ocean all its 28 passengers
and cargoes, drowning to death the following passengers, Benilda Temejo P12,400
to wit: Teresita Teves, Maria Teves, Gloria Bernal,
Teresita Tanteo-Teves P17,728
Salvacion Bernal, Jose Bernal, Rodrigo Discarga, Julio
Discarga, Arturo Turno, Rosa Bernal Turno, Ricky Dominga & Maria Teves (sisters) P25,300
Rodolfo, Aurora Estabaya Ocillada, Nelson Ocillada and Ricky Rodolfo P12,000
other missing or unidentified passengers, and causing the Aurora Estebaya P12,400
irretrievable loss at sea of the following properties, to wit:
Nelson Osellada (Ocillado) P12,000
P5,700.00 cash money, 2 male pigs valued at P750.00,
and 4 sacks of rice worth P400, belonging to Teresita Emma Aseniro & Reynaldo Banania (spouses) P26,000
Teves; Pl,300.00 cash money, Titus wrist watch worth Gloria Bernal P12,500
Pl50.00, 6 chickens, 1 goose, and two ducks all worth Salvacion Bernal P12,000
Pl28.00, owned by Dominga Teves, two luggages full of
Arturo Turno & Rosa Bernal (spouses) P27,400
clothes worth P 600.00 belonging to Teresita Teves,
Dominga Teves and Maria Teves; P4,000.00 cash money Julio Discarga P13,200
and 22 pieces of dried cowhide worth P3,430.00 Rodrigo Discarga P12,500
belonging to Jose Bernal; P700.00 cash money and Fly Jose Bernal P16,000
Wheel machine for generator worth P550.00 owned by
Leonisa Bagadiong P12,000
Julio Discarga; P500 cash money of Rodrigo Discarga;
P399.00 cash money of Gloria Bernal; 2 pigs worth Edna Bagadiong P12,000
P400.00, cash money in the sum of P3,000.00, and one Benjie Bagadiong P12,000
bayong or bag full of clothes worth P200.00 belonging to Eduardo Bagadiong P12,000
Arturo Turno; and P500.00 cash money owned by Raul
Ocillada, to the damage and prejudice of the
and Felix Rodolfo in the sum of Pl,459 and Loreto Tanteo in the sum of
aforementioned owners in the total sum of P22,707.00,
P2,430, without subsidiary imprisonment in case of insolvency, with all
Philippine Currency.
the accessory penalties of the law, and to pay one-half (1/2) of the costs.
Contrary to law. (pp. 1-2, Records)
The accused Domingo Zamora not having been as yet
arrested since the issuance of the warrant of arrest on
The case proceeded against Soriao only since Zamora remains at-large, May 2, 1978, LET another warrant of arrest be issued for
On October 27, 1978, after trial on the merits, the Court of First Instance his apprehension, and so that this case with respect to
rendered judgment, the dispositive portion of which reads: him may not remain pending, LET the record be sent to
the files after the promulgation of this decision, without
WHEREFORE, the Court finds the accused Antonio prejudice to its withdrawal therefrom as soon as he is
Soriao guilty beyond reasonable doubt of the crime of arrested.
multiple homicide with damage to property thru reckless
imprudence, and applying Article 365, paragraphs 1 and 5
in connection with Article 48 of the Revised Penal Code,
 The Clerk of Court shall forward the original warrant to the
Commanding Officer of the Aurora District Command
stationed at San Luis, Quezon, and a copy thereof to the
proper station commander of the Integrated National
Police.
SO ORDERED.
Baler, Sub-province of Aurora, Quezon, October 27,
1978. (pp. 71-72, Records)
Whereupon, Soriao appealed to the Court of Appeals which, as earlier
stated, affirmed the aforesaid judgment. Hence, the present recourse.
In the resolution of July 15, 1981 (p. 42, Rollo), We required the
respondents to comment on the herein petition. Said comment was filed
on September 17,1981 (p. 49, Rollo). On September 30, 1981, We
denied the petition for lack of merit (p. 58, Rollo). Petitioner Soriao filed
two succeeding motions for extension to file motion for reconsideration
which We granted in the resolutions of November 18,1981 (p. 71, Rollo)
and December 7, 1981 (p. 86, Rollo), respectively. Subsequently, the
motion for reconsideration was filed (p. 75.. Rollo). In the same resolution
of December 7, 1981, We required the respondents to comment thereon.
Said comment was filed on January 28, 1982 (p. 93, Rollo) to which a
reply thereto was filed by Soriao (p. 100, Rollo). In the resolution of
March 7, 1982, We (1) set aside the resolution of September 30,1981;
and (2) gave due course to the petition (p. 107, Rollo). Thereafter, the
parties were required to file their respective briefs.
The sole issue posed in the instant petition is whether or not Soriao is
liable to suffer the prison term and civil damages meted out by the trial
court and affirmed by the Court of Appeals (Petitioner's Brief, p. 7).
Petitioner Soriao contends that he is neither the owner nor captain of the
M/B Sweet Lord but merely a passenger thereof and submits proofs of a
(1) deed of sale of the boat engine to his cousin, Cleto Tejerero on
August 30, 1977; (2) Mayor's permit which showed the registration of the
boat in the name of Cleto Tejerero; (3) official receipt for fixed tax
payment dated January 26, 1978; and (4) municipal tax license; that he
merely suggested that the voyage continue despite the rough weather to
which the other passengers did not object and thus, if he were negligent,
all the others had an equal share in that negligence; that he took over the
command of the boat since the boat captain had lost control of himself
and was seen just "walking back and forth on the boat" (P. 11,
Petitioner's Brief); that he merely acted on the instinct of self-
preservation; and that, therefore, he has no civil and criminal liability
pursuant to Article 2184 of the New Civil Code.
At first blush it would appear that Soriao's arguments could be valid.
However, after a painstaking review of the records of the case, We are
constrained to uphold the findings of the Court of Appeals.
Soriao asserts that he is neither the owner nor the captain but only a
passenger of M/B Sweet Lord. Likewise, he maintains that he merely
suggested that the voyage continue despite the stormy weather to which
the other passengers did not object. Thus, he concludes that if he were
negligent, then the rest of the passengers would equally share in his
negligence under the doctrine of pari delicto. Soriao's submissions
deserve no merit. We are not dealing here with the issue of ownership of
the boat but of Soriao's criminal liability under Article 365 of the Revised
Penal Code. A reading of the judgment of the trial court reveals that
Soriao's conviction was based not on the latter's ownership of M/B Sweet
Lord but on his role in the operation and management thereof which cost
so many lives and damage to properties. Contrary to his contention,
Soriao was not an ordinary passenger in that voyage. The survivors of
the ill-fated M/B Sweet Lord positively declared that Soriao piloted the
boat from Dinalungan up to the time just before it sank in the waters of
Baler (TSNs, June 26, 1978, pp. 7, 15-16; June 27, 1978, p. 6; July
24,1978, pp. 18 and 20). These testimonies were uncontradicted by
Soriao. We find no evidence of any improper motive on the witnesses'
part to testify against Soriao. Hence, their testimonies are worthy of full
faith and credit (People vs. Sawah, L-15333, June 29,1962; 5 SCRA
385). The relatives of the victims and the survivors themselves believed
that Soriao was the owner of the boat and the boss of Captain Domingo
Zamora and the crew (TSNs, June 26,1978, pp. 16,19,36,82; June
27,1978, pp. 14, 20- 22). Such impression naturally would foreclose any
opposition from the passengers to Soriao's alleged suggestion that the
voyage continue and his having taken the helm of the boat in lieu of
Zamora. The doctrine of pari delicto would, therefore, not apply in this
case.
Soriao's claim that the instinct of self-preservation prodded him to pilot
the boat because Zamora had lost control of himself and was seen just
"walking back and forth on the boat" is negated by evidence which
showed that he was in full command of the boat from the time he
boarded the boat in Dinalungan until it proceeded on its voyage up to the
time before the boat capsized. Diosdado Temajo testified that Soriao
instructed Zamora to go and stop at Dinadiawan to "let the big waves
subside"; that after three hours, he directed the continuation of the
voyage inspite of the turbulent weather since the boat could withstand the
storm; and that Soriao steered the boat sometimes (TSN, June 26, 1978,
pp. 6-7). Witness Raul Ocillada corroborated Temajo's testimony in
regard to Soriao's order to stop by Dinadiawan; that he ordered the
captain not to proceed unless the order is given; and that he ordered the
resumption of the trip (TSN, June 26, 1978, pp. 36, 35-39). Another
witness, Felix Rodolfo testified that Soriao piloted the boat when it left
Dinalungan; and that he ordered the continuation of the voyage despite
the objection of Zamora (TSN, June 27, 1978). Against this backdrop,
Soriao could not have just taken the helm of M/B Sweet Lord moments
before the disaster occurred as he wants Us to believe. He proceeded
with the voyage despite the evident risk to the lives of the passengers in
view of the storm and the fact that the boat was then overloaded. The
Court of Appeals noted such recklessness and ruled:
... Instead of waiting for fair weather to return, appellant
ordered Domingo Zamora to resume the voyage of the
boat, in the belief that their boat could cope with the
weather situation. Viewed thus, there was therefore
already an attendant risk brought about by the weather
conditions still prevailing but appellant then entertained
the reckless belief that the newly constructed vessel could
cope with the situation which unfortunately turned out to
be a mistake. As the vessel then was manifestly a
common carrier, loaded with paying passengers and
cargo it was the legal and moral duty of appellant to
observe extraordinary diligence specially with regard to
the safety of the passengers. Here added to the handicap
of the bad weather which had not fully subsided is the
overloaded condition of the boat such that the portion of
the boat above the water is stated to be only the length of
a palm and the indicated red water line was submerged
(tsn 9, June 26,1978). (pp. 37-38, Rollo)
Also, We find that Soriao could easily take over the management of the
boat considering his moral ascendancy over Zamora. Thus, We agree
with the trial court which held that:
3. Given the evidence presented by the defense itself,
that the accused and Cleto Tejerero are first cousins; the
M/B Sweet Lord was constructed in Dinalungan near the
house of the brother of the accused, Honorio Soriao,
adjacent to the house of Dominador Bagadiong for about
thirty-nine days; the accused helped in its construction as
a carpenter during which Cleto Tejerero and Master
Carpenter Potenciano de Guzman stayed in his house; he
was on the M/B Sweet Lord when it was tested for a long
distance trip to Baler on January 5, 1978, together with
Cleto Tejerero, Master Carpenter Potenciano de Guzman,
Crispulo Udato, Eddie Bagadiong and Domingo Zamora
who was its pilot and was also being tested as such; he
was on the M/B Sweet Lord when it made its ill-fated trip
to Baler at about 1 in the morning of January 10, 1978;
and that after it capsized, he reported it to the police of
Baler and he told them, among other things, that:
12. T: Bakit at sa aking
pagkaka-alam sang-ayon
sa mga tao o sakay na
nakaligtas sa nasabing
aksidente ikaw daw ang
siyang may-ari nito?
S: Hindi po ako ang may-
ari kundi itong si Anacleto
Tejerero at ang bilin
lamang niya sa akin ng
siya ay umalis patungo sa
Maynila para kumuha ng
lisensiya ay ibigay sa akin
ang collection ng nasabing
bangka hanggat hindi siya
dumating galing sa
Maynila.
which instruction was given by Cleto Tejerero, in the
presence of Domingo Zamora, on January 5,1978 in the
store in Cemento, Baler, Quezon where they took a snack
after the successful test-trip of the M/B Sweet Lord, it is
not hard to believe that the accused piloted the said M/B
Sweet Lord at about 9-to-10 in the morning of January 10,
1978 when it was between Dipaculao and Baler and when
it was hit by three waves and it capsized, for he being a
close relative and confidant of Cleto Tejerero had
ascendancy over Domingo Zamora who was a pilot-on-
test ... . (pp. 70-71, Records)
Finally, Soriao anchors his arguments on Article 2184 of the New Civil
Code which, as correctly observed by the Solicitor General, is totally
irrelevant in this case. His civil liability arises from his criminal conviction
pursuant to Article 100 of the Revised Penal Code.
The maximum term of the indeterminate penalty imposed by the trial
court on the accused Soriao and affirmed by the respondent court is not
correct. Considering the provisions of Article 48 of the Revised Penal
Code, such maximum term should have been taken from the maximum
period of the prescribed penalty of arresto mayor in its maximum period
to prision correccional in its medium period under paragraph 1 of Article
365 of the same Code, that is from two (2) years, four (4) months and
one (1) day to four (4) years and two (2) months. The proper penalty,
therefore, that the accused Soriao should suffer is an indeterminate
penalty of not less than four (4) months of arresto mayor, as minimum
but not more than four (4) years and two (2) months of prision
correccional, as maximum, taking into account the circumstances
surrounding the offense committed.
The trial court likewise granted actual damages in addition to the
indemnity for the death of the victims in the amount of P12,000.00 each.
Presently, the indemnity for death has been increased to P30,000.00
(People v. Daniel, L-66551, April 25, 1985; 136 SCRA 92). Consequently,
Soriao should indemnify the heirs of each of the victims the amount of
P30,000.00 in addition to the actual damages adjudged in the decision of
the trial court.
ACCORDINGLY, the petition is DENIED and the decision of the Court of
Appeals is hereby AFFIRMED with the modification of the penalty
imposed upon Soriao and the increased amount of indemnity for death in
addition to the actual damages adjudged in the decision of the trial court
as above indicated. With costs against Soriao.
SO ORDERED.
Narvasa, Cruz, and Gancayco, JJ., concur.
 
 Separate Opinions
GRIÑO-AQUINO, J., Concurring and Dissenting
I concur in the affirmance of the conviction of the petitioner, but I regret to
have to dissent with regard to the penalty.
The crime in this case is a complex one: multiple homicide (28 persons
killed) with damage to property (worth P22,707.00) through reckless
imprudence. The penalty for homicide through reckless imprudence
is arresto mayor in its maximum period to prision correccional in its
medium period (Art. 365, Rev. Penal Code). Since the offense is
complexed with other homicides and damage to property, it should be
imposed in its maximum period, i.e., prision correccional in its medium
period, or two years, 4 months and 1 day to four (4) years, and two (2)
months (Art. 48, Rev. Penal Code). In view of the Indeterminate
Sentence Law, the accused is entitled to an indeterminate sentence the
maximum term of which shall be that which in view of the attending
circumstances, could be properly imposed under the Revised Penal
Code and to a minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense.
Since the penalty prescribed by the Penal Code in this particular case
is prision correccional medium, what is the next lower penalty?
In computing the indeterminate penalty in this case, the Honorable
Ponente took the whole range of arresto mayor maximum to prision
correccional medium, consisting of three periods, which is the penalty for
simple homicide through reckless imprudence, and treated it as though it
were also the penalty for the complex crime of multiple homicide with
damage to property through reckless imprudence. He imposed on the
accused an indeterminate penalty of arresto mayor medium (4 months)
as minimum, to prision correccional medium (4 years and 2 months) as
maximum. In so doing, he skipped two periods: prision
correccional minimum and arresto mayor maximum, which should not
have been done because these periods are independent penalties; they
do not form part of the penalty for the complex crime of multiple homicide
with damage to property through reckless imprudence which is
only prision correccional in its medium period.
In my opinion, the next lower penalty to prision correccional medium
is prision correccional minimum, but as the crime is a complex one, We
should take the upper limits of that penalty as the minimum penalty
imposable on the accused.
The authority for this manner of graduating the penalty for a complex
crime is People vs. Gayrama, 60 Phil. 796 (1934) where the crime
committed was homicide with assault upon an agent of authority which is
punishable with reclusion temporal in its maximum period. This Court
held that the next lower penalty (in view of the presence of three
mitigating circumstances) was reclusion temporal medium which, in view
of the Indeterminate Sentence Law, was further reduced by one degree
to reclusion temporal minimum.

Gayrama was followed in Cu Unjieng, 61 Phil. 236, 302; Silvallana, 61

Phil. 636; Del Carmen, 61 Phil. 401; Co Arquiza, 62 Phil. 611; Catacutan,
64 Phil. 107; Lawas, 97 Phil. 975; and Penas, 66 Phil. 682 and 68 Phil.
533.
Republic of the Philippines
Evidently, when the penalty prescribed by law consists of only one period SUPREME COURT
of a divisible penalty, the next lower penalty is the period immediately Manila
following it in the scale of penalties (Vol. 1, 1987 Ed., Aquino's Rev.
Penal Code, p. 655). FIRST DIVISION

I therefore suggest that an indeterminate prison term of two years and G.R. No. 181571               December 16, 2009
four months of prision correccional minimum, as minimum, to four years
and two months of prision correccional medium, as maximum, be JUNO BATISTIS, Petitioner,
imposed on the petitioner in this case. vs.
PEOPLE OF THE PHILIPPINES, Respondent.
 
DECISION

BERSAMIN, J.:

On January 23, 2006, the Regional Trial Court (RTC), Branch 24, in
Manila convicted Juno Batistis for violations of Section 155 (infringement
of trademark) and Section 168 (unfair competition) of the Intellectual
Property Code (Republic Act No. 8293). 1

On September 13, 2007, the Court of Appeals (CA) affirmed the

conviction for infringement of trademark, but reversed the conviction for
unfair competition for failure of the State to prove guilt beyond reasonable
doubt.2

Batistis now appeals via petition for review on certiorari to challenge the
CA’s affirmance of his conviction for infringement of trademark.

We affirm the conviction, but we modify the penalty by imposing an

indeterminate sentence, conformably with the Indeterminate Sentence
Law and pertinent jurisprudence.
 Antecedents
The Fundador trademark characterized the brandy products
manufactured by Pedro Domecq, S.A. of Cadiz, Spain. 3 It was duly
registered in the Principal Register of the Philippines Patent Office on
July 12, 1968 under Certificate of Registration No. 15987, 4 for a term of
20 years from November 5, 1970. The registration was renewed for
another 20 years effective November 5, 1990.5
Allied Domecq Philippines, Inc., a Philippine corporation exclusively
authorized6 to distribute Fundador brandy products imported from Spain
wholly in finished form,7 initiated this case against Batistis. Upon its
request, agents of the National Bureau of Investigation (NBI) conducted a
test-buy in the premises of Batistis, and thereby confirmed that he was
actively engaged in the manufacture, sale and distribution of
counterfeit Fundador brandy products.8 Upon application of the NBI
agents based on the positive results of the test-buy, 9 Judge Antonio M.
Eugenio, Jr. of the Manila RTC issued on December 20, 2001 Search
Warrant No. 01-2576,10 authorizing the search of the premises of Batistis
located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The
search yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label
whiskey, two empty bottles of Johnny Walker Swing, an empty bottle of
Remy Martin XO, an empty bottle of Chabot, 241 empty Fundador
bottles, 163 boxes of Fundador, a half sack of Fundador plastic caps, two
filled bottles of Fundador brandy, and eight cartons of
empty Jose Cuervo bottles.11
The Office of the City Prosecutor of Manila formally charged Batistis in
the RTC in Manila with two separate offenses, namely, infringement of
trademark and unfair competition, through the following information, to
wit:
That on or about December 20, 2001, in the City of Manila, Philippines,
the said accused, being then in possession of two hundred forty one
(241) empty Fundador bottles, one hundred sixty three Fundador boxes,
one half (1/2) sack of Fundador plastic caps, and two (2) Fundador
bottles with intention of deceiving and defrauding the public in general
and Allied Domecq Spirits and Wines and Allied Domecq Philippines, Inc.
represented by Atty. Leonardo P. Salvador, a corporation duly organized
and existing under the laws of the Republic of the Philippines and
engaged in manufacturing of Fundador Brandy under license of Pedro
Domecq, S.A. Cadiz, Spain, and/or copyright owner of the said product,
did then and there wilfully, unlawfully and feloniously reproduce, sell and
offer for sale, without prior authority and consent of said manufacturing
company, the accused giving their own low quality product the general
appearance and other features of the original Fundador Brandy of the
said manufacturing company which would be likely induce the public to
believe that the said fake Fundador Brandy reproduced and/or sold are
the real Fundador Brandy produced or distributed by the Allied Domecq
Spirits and Wines Limited, U.K. and Allied Domecq Philippines, Inc. to the
damage and prejudice of the latter and the public.
Contrary to law.12
With Batistis pleading not guilty on June 3, 2003,13 the RTC proceeded to
trial. On January 23, 2006, the RTC found Batistis guilty beyond
reasonable doubt of infringement of trademark and unfair competition,
viz:
ACCORDINGLY, this Court finds the accused JUNO BATISTIS Guilty
Beyond Reasonable Doubt of the crime of Violation of Section 155 of the
Intellectual Property Code and hereby sentences him to suffer the
penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (P50,000.00) PESOS.
This Court likewise finds accused JUNO BATISTIS Guilty Beyond
Reasonable Doubt of the crime of Violation of Section 168 (sic) penalty of
imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (Php50,000.00) PESOS.
Accused is further ordered to indemnify the private complainant the sum
of TWENTY-FIVE (Php25,000.00) PESOS as actual damages.
The following items recovered from the premises of the accused and
subject of the case are hereby ordered destroyed, pursuant to existing
rules and regulations:
Twenty (20) empty Carlos 1 bottles
Ten (10) Black Label empty bottles
Two (2) empty bottles of Jhonny (sic) Walker Swing
One(1) empty bottle of Remy Martin XO
One (1) empty bottle of Chabot
 Two hundred forty-one (241) empty Fundador bottles
One hundred sixty-three (163) Fundador boxes
One half (1/2 sack of Fundador plastic caps, and
Two (2) filled Fundador bottles
Eight (8) boxes of empty Jose Cuervo bottles
WITH COSTS AGAINST ACCUSED
SO ORDERED.14
Batistis appealed to the CA, which, on September 13, 2007, affirmed his
conviction for infringement of trademark, but acquitted him of unfair
competition,15 disposing:
WHEREFORE, premises considered, the Appeal of Appellant JUNO
BATISTIS is hereby PARTIALLY GRANTED. The challenged Decision is
AFFIRMED in so far as the charge against him for Violation of Section
155 of the Intellectual Property Code is concerned.
However, for failure of the prosecution to prove to a moral certainty the
guilt of the said Appellant, for violation of Section 168 of the same code a
judgment of ACQUITTAL is hereby rendered in his favor.
SO ORDERED.16
After the CA denied his motion for reconsideration, Batistis brought this
appeal.
Issue
Batistis contends that:
THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE
ACCUSED ON THE BASIS OF THE SELF-SERVING AFFIDAVITS AND
TESTIMONIES OF THE POLICE OFFICERS WHO CONDUCTED THE
RAID ON THE HOUSE OF THE ACCUSED.
He submits that the only direct proofs of his guilt were the self-serving
testimonies of the NBI raiding team; that he was not present during the
search; that one of the NBI raiding agents failed to immediately identify
him in court; and that aside from the two bottles of Fundador brandy, the
rest of the confiscated items were not found in his house.
Ruling
The petition for review has no merit.
1.
Appeal confined only to Questions of Law
Pursuant to Section 3,17 Rule 122, and Section 9,18 Rule 45, of the Rules
of Court, the review on appeal of a decision in a criminal case, wherein
the CA imposes a penalty other than death, reclusion perpetua, or life
imprisonment, is by petition for review on certiorari.
A petition for review on certiorari raises only questions of law. Sec. 1,
Rule 45, Rules of Court, explicitly so provides, viz:
Section 1. Filing of petition with Supreme Court.—A party desiring to
appeal by certiorari from a judgment, final order or resolution of the Court
of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition
may include an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law, which must be
distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or proceeding at any
time during its pendency.
Accordingly, we reject the appeal for the following reasons:
Firstly: The petition for review replicates Batistis’ appellant's brief filed in
the CA,19 a true indication that the errors he submits for our review and
reversal are those he had attributed to the RTC. He thereby rests his
appeal on his rehashed arguments that the CA already discarded. His
appeal is, therefore, improper, considering that his petition for review on
certiorari should raise only the errors committed by the CA as the
appellate court, not the errors of the RTC.
Secondly: Batistis’ assigned errors stated in the petition for review on
certiorari require a re-appreciation and re-examination of the trial
evidence. As such, they raise issues evidentiary and factual in nature.
The appeal is dismissible on that basis, because, one, the petition for
review thereby violates the limitation of the issues to only legal questions,
and, two, the Court, not being a trier of facts, will not disturb the factual
findings of the CA, unless they were mistaken, absurd, speculative,
conflicting, tainted with grave abuse of discretion, or contrary to the
findings reached by the court of origin. 20
Whether a question of law or a question of fact is involved is explained in
Belgica v. Belgica:21
xxx [t]here exists a question of law when there is doubt on what the law
applicable to a certain set of facts is. Questions of fact, on the other
hand, arise when there is an issue regarding the truth or falsity of the
statement of facts. Questions on whether certain pieces of evidence
should be accorded probative value or whether the proofs presented by
one party are clear, convincing and adequate to establish a proposition
are issues of fact. Such questions are not subject to review by this Court.
As a general rule, we review cases decided by the CA only if they involve
questions of law raised and distinctly set forth in the petition. 22
Thirdly: The factual findings of the RTC, its calibration of the testimonies
of the witnesses, and its assessment of their probative weight are given
high respect, if not conclusive effect, unless cogent facts and
circumstances of substance, which if considered, would alter the
outcome of the case, were ignored, misconstrued or misinterpreted. 23
To accord with the established doctrine of finality and bindingness of the
trial court’s findings of fact, we do not disturb such findings of fact of the
RTC, particularly after their affirmance by the CA, for Batistis, as
appellant, did not sufficiently prove any extraordinary circumstance
justifying a departure from such doctrine.
2.
Findings of fact were even correct
A review of the decision of the CA, assuming that the appeal is
permissible, even indicates that both the RTC and the CA correctly
appreciated the evidence against the accused, and correctly applied the
pertinent law to their findings of fact.
Article 155 of the Intellectual Property Code identifies the acts
constituting infringement of trademark, viz:
Section 155. Remedies; Infringement. — Any person who shall, without
the consent of the owner of the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or colorable
imitation of a registered mark or the same container or a dominant
feature thereof in connection with the sale, offering for sale, distribution,
advertising of any goods or services including other preparatory steps
necessary to carry out the sale of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause
mistake, or to deceive; or
155.2. Reproduce, counterfeit, copy or colorably imitate a registered
mark or a dominant feature thereof and apply such reproduction,
counterfeit, copy or colorable imitation to labels, signs, prints, packages,
wrappers, receptacles or advertisements intended to be used in
commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to
deceive, shall be liable in a civil action for infringement by the registrant
for the remedies hereinafter set forth: Provided, That the infringement
takes place at the moment any of the acts stated in Subsection 155.1 or
this subsection are committed regardless of whether there is actual sale
of goods or services using the infringing material.
Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task
involved the detection of counterfeit products in the Philippines, testified
that the seized Fundador brandy, when compared with the genuine
product, revealed several characteristics of counterfeiting, namely: (a) the
Bureau of Internal Revenue (BIR) seal label attached to the confiscated
products did not reflect the word tunay when he flashed a black light
against the BIR label; (b) the "tamper evident ring" on the confiscated
item did not contain the word Fundador; and (c) the word Fundador on
the label was printed flat with sharper edges, unlike the raised, actually
embossed, and finely printed genuine Fundador trademark. 24
There is no question, therefore, that Batistis exerted the effort to make
the counterfeit products look genuine to deceive the unwary public into
regarding the products as genuine. The buying public would be easy to
fall for the counterfeit products due to their having been given the
appearance of the genuine products, particularly with the difficulty of
detecting whether the products were fake or real if the buyers had no
experience and the tools for detection, like black light. He thereby
infringed the registered Fundador trademark by the colorable imitation of
it through applying the dominant features of the trademark on the fake
products, particularly the two bottles filled with Fundador brandy. 25 His
acts constituted infringement of trademark as set forth in Section 155,
supra.
3.
Penalty Imposed should be an
Indeterminate Penalty and Fine
Section 170 of the Intellectual Property Code provides the penalty for
infringement of trademark, to wit:
Section 170. Penalties. - Independent of the civil and administrative
sanctions imposed by law, a criminal penalty of imprisonment from two
(2) years to five (5) years and a fine ranging from Fifty thousand pesos
(P50,000) to Two hundred thousand pesos(P200,000), shall be imposed
on any person who is found guilty of committing any of the acts
mentioned in Section 155, Section 168 and Subsection 169.1. (Arts. 188
and 189, Revised Penal Code).
The CA affirmed the decision of the RTC imposing the "the penalty of
imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (₱50,000.00) PESOS."
We rule that the penalty thus fixed was contrary to the Indeterminate
Sentence Law,26 as amended by Act No. 4225. We modify the penalty.
Section 1 of the Indeterminate Sentence Law, as amended, provides:
Section 1. Hereafter, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by
any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same.
The straight penalty the CA imposed was contrary to the Indeterminate
Sentence Law, whose Section 1 requires that the penalty of
imprisonment should be an indeterminate sentence. According to
Spouses Bacar v. Judge de Guzman,Jr., 27 the imposition of an
indeterminate sentence with maximum and minimum periods in criminal
cases not excepted from the coverage of the Indeterminate Sentence
Law pursuant to its Section 228 is mandatory, viz:
The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness of the
accused, since he may be exempted from serving the entire sentence,
depending upon his behavior and his physical, mental, and moral record.
The requirement of imposing an indeterminate sentence in all criminal
offenses whether punishable by the Revised Penal Code or by special
laws, with definite minimum and maximum terms, as the Court deems
proper within the legal range of the penalty specified by the law must,
therefore, be deemed mandatory.
Indeed, the imposition of an indeterminate sentence is mandatory. For
instance, in Argoncillo v. Court of Appeals,29 three persons were
prosecuted for and found guilty of illegal fishing (with the use of
explosives) as defined in Section 33, Presidential Decree No. 704, as
amended by Presidential Decree No. 1058, for which the prescribed
penalty was imprisonment from 20 years to life imprisonment. The trial
court imposed on each of the accused a straight penalty of 20 years
imprisonment, and the CA affirmed the trial court. On appeal, however,
this Court declared the straight penalty to be erroneous, and modified it
by imposing imprisonment ranging from 20 years, as minimum, to 25
years, as maximum.
We are aware that an exception was enunciated in People v. Nang
Kay,30 a prosecution for illegal possession of firearms punished by a
special law (that is, Section 2692, Revised Administrative Code, as
amended by Commonwealth Act 56 and Republic Act No. 4) with
imprisonment of not less than five years nor more than ten years. There,
the Court sustained the straight penalty of five years and one day
imposed by the trial court (Court of First Instance of Rizal) because the
application of the Indeterminate Sentence Law would be unfavorable to
the accused by lengthening his prison sentence. Yet, we cannot apply
the Nang Kay exception herein, even if this case was a prosecution
under a special law like that in Nang Kay. Firstly, the trial court in Nang before the case was assigned to the writer of the opinion of the Court’s
Kay could well and lawfully have given the accused the lowest prison Division.
sentence of five years because of the mitigating circumstance of his
voluntary plea of guilty, but, herein, both the trial court and the CA did not REYNATO S. PUNO
have a similar circumstance to justify the lenity towards the accused. Chief Justice
Secondly, the large number of Fundador articles confiscated from his
house (namely, 241 empty bottles of Fundador, 163 Fundador boxes, a
half sack full of Fundador plastic caps, and two filled bottles of Fundador
Brandy) clearly demonstrated that Batistis had been committing a grave
economic offense over a period of time, thereby deserving for him the
indeterminate, rather than the straight and lower, penalty. Footnotes

ACCORDINGLY, we affirm the decision dated September 13, 2007

1
 Rollo, pp. 35-44.
rendered in C.A.-G.R. CR No. 30392 entitled People of the Philippines v.
Juno Batistis, but modify the penalty to imprisonment ranging from two
2
 Id., pp. 11-29.
years, as minimum, to three years, as maximum, and a fine of
₱50,000.00. 3
 Records, p. 35.

The accused shall pay the costs of suit. 4

 Id., p. 71.

SO ORDERED.  Id., p. 31 (certification of the Chief, Patent/Trademark Registry

5

Division, Intellectual Property Office).

LUCAS P. BERSAMIN
Associate Justice 6
 Id., pp. 180-184 (Agreement for the Distribution in Philippines of
Jerez Wines and Brandies Domecq).
WE CONCUR:
7
 Id., p. 186.
REYNATO S. PUNO
Chief Justice 8
 Id., pp. 16, 18-19, 20.
Chairperson
9
 Id., pp. 51-52.
CONCHITA CARPIO TERESITA J. LEONARDO-DE
MORALES CASTRO 10
 Id., pp. 49-50.
Associate Justice Associate Justice
11
 Id., pp. 39-40 (return of the search warrant); p. 37
MARTIN S. VILLARAMA, JR. (receipt/inventory of property/item seized).
Associate Justice
12
 Id., p. 1.
CERTIFICATION
13
 Id., p. 225.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation 14
 Id., pp. 419-420.
15
 Id., p. 28. 28
 Section 2. This Act shall not apply to persons convicted of
offenses punished with death penalty or life imprisonment; to
16
 Id., p. 28. those convicted of treason, conspiracy or proposal to commit
treason; to those convicted of misprision of treason, rebellion,
17
 Section 3. How appeal taken. – sedition or espionage; to those convicted of piracy; to those who
are habitual delinquents; to those who shall have escaped from
confinement or evaded sentence; to those who having been
x x x.
granted conditional pardon by the Chief Executive shall have
violated the terms thereof; to those whose maximum term of
(e) Except as provided in the last paragraph of section 13, imprisonment does not exceed one year; nor to those already
Rule 124, all other appeals to the Supreme Court shall be sentenced by final judgment at the time of approval of this Act,
by petition for review on certiorari under Rule 45. (3a) except as provided in Section 5 hereof. (as amended by Act No.
4225, Aug. 8, 1935)
 Sec. 9. Rule applicable to both civil and criminal cases. — The
18

mode of appeal prescribed in this Rule shall be applicable to both 29

 G.R. No. 118806, July 10, 1998, 292 SCRA 313, 330-331.
civil and criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life imprisonment. 30
 88 Phil. 515, 520 (1951).
(n)

19
 CA Rollo, pp. 28-37.

 Philip Morris, Inc. v. Fortune Tobacco Corporation, G.R. No.

20

158589, June 27, 2006, 493 SCRA 333, 345; Sampayan v. Court

of Appeals, G.R. No. 156360, January 14, 2005, 448 SCRA 220;
The Insular Life Assurance Company, Ltd. v. Court of Appeals,
G.R.. No. 126850, April 28, 2004, 428 SCRA 79; Langkaan
Realty Development, Inc. v. United Coconut Planters Bank, G..R.
No. 139437, December 8, 2000, 347 SCRA 542, 549.

21
 G..R. No. 149738, August 28, 2007, 531 SCRA 331.

22
 Id., p. 336.

 Pelonia v. People, G.R. No. 168997, April 13, 2007, 521 SCRA

23

207.

24
 TSN, April 13, 2004, pp. 23-33.

25
 Exhibits H-8 and H-9.

26
 Act No. 4103.

27
 A.M. No. RTJ-96-1349, April 18, 1997, 271 SCRA 328.
 The evidence for the prosecution shows that at around eleven o'clock in
the evening of January 9, 1966, Gorriceta, who had just come from Fort
San Pedro in Iloilo City, was driving a Ford pickup truck belonging to his
sister, Remia G. Valencia. While he was in front of the Elizalde Building
on J. M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco
Brillantes. They hailed Gorriceta who stopped the truck. Jaranilla
requested to bring them to Mandurriao, a district in another part of the
city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his
way home.

Jaranilla prevailed upon Gorriceta to take them to Mandurriao because

Republic of the Philippines Jaranilla ostensibly had to get something from his uncle's place. So,
SUPREME COURT Jaranilla, Brillantes and Suyo boarded the pickup truck which Gorriceta
Manila drove to Mandurriao.

SECOND DIVISION Upon reaching Mandurriao, Gorriceta parked the truck at a distance of
about fifty to seventy meters from the provincial hospital. Jaranilla, Suyo
  and Brillantes alighted from the vehicle. Jaranilla instructed Gorriceta to
wait for them. The trio walked in the direction of the plaza. After an
G.R. No. L-28547 February 22, 1974 interval of about ten to twenty minutes, they reappeared. Each of them
was carrying two fighting cocks. They ran to the truck.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Jaranilla directed Gorriceta to start the truck because they were being
ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and chased. Gorriceta drove the truck to Jaro (another district of the city) on
HEMAN GORRICETA, accused. ELIAS JARANILLA, RICARDO SUYO, the same route that they had taken in going to Mandurriao.
and FRANCO BRILLANTES, defendants-appellants.
It is important to note the positions of Gorriceta and his three companions
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor on the front seat of the track. Gorriceta the driver, was on the extreme
General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for left. Next to him on his right was Suyo. Next to Suyo was Brillantes. On
plaintiff-appellee. the extreme right was Jaranilla.

Sixto P. Dimaisip for defendants-appellants.
AQUINO, J.:p
This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision
of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced each
of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos to the
heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value of
fighting cocks (Criminal Case No. 11082).
While the truck was traversing the detour road near the Mandurriao
airport, then under construction, Gorriceta saw in the middle of the road
Patrolmen Ramonito Jabatan and Benjamin Castro running towards
them. Gorriceta slowed down the truck after Patrolman Jabatan had fired
a warning shot and was signalling with his flashlight that the truck should
stop. Gorriceta stopped the truck near the policeman. Jabatan
approached the right side of the truck near Jaranilla and ordered all the
occupants of the truck to go down. They did not heed the injunction of the
policeman.

Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla,
all of a sudden, shot Patrolman Jabatan. The shooting frightened
Gorriceta. He immediately started the motor of the truck and drove
straight home to La Paz, another district of the city. Jaranilla kept on firing
towards Jabatan.
Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house.
Gorriceta parked the truck inside the garage. Jaranilla warned Gorriceta
not to tell anybody about the incident. Gorriceta went up to his room.
After a while, he heard policemen shouting his name and asking him to
come down. Instead of doing so, he hid in the ceiling. It was only at about
eight o'clock in the morning of the following day that he decided to come
down. His uncle had counselled him to surrender to the police. The
policemen took Gorriceta to their headquarters. He recounted the
incident to a police investigator.
Victorino Trespeces, whose house was located opposite the house of
Valentin Baylon on Taft Street in Mandurriao, testified that before
midnight of January 9, 1966, he conducted a friend in his car to the
housing project in the vicinity of the provincial hospital at Mandurriao. As
he neared his residence, he saw three men emerging from the canal on
Taft Street in front of Baylon's house. He noticed a red Ford pickup truck
parked about fifty yards from the place where he saw the three men.
Shortly thereafter, he espied the three men carrying roosters. He
immediately repaired to the police station at Mandurriao. He reported to
Patrolmen Jabatan and Castro what he had just witnessed. The two
policemen requested him to take them in his car to the place where he
saw the three suspicious-looking men. Upon arrival thereat, the men and
the truck were not there anymore.
Trespeces and the policemen followed the truck speeding towards Jaro.
On reaching the detour road leading to the airport, the policemen left the
car and crossed the runway which was a shortcut. Their objective was to
intercept the truck. Trespeces turned his car around in order to return to
Mandurriao. At that moment he heard gunshots. He stopped and again
turned his car in the direction where shots had emanated. A few
moments later, Patrolman Castro came into view. He was running. He
asked Trespeces for help because Jabatan, his comrade, was wounded.
Patrolman Castro and Trespeces lifted Jabatan into the car and brought
him to the hospital. Trespeces learned later that Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo
City police department, conducted an autopsy on the remains of
Patrolman Jabatan. He found:
(1) Contusion on left eyebrow.
(2) Bullet wound one centimeter in diameter, penetrating
left anterior axilla, directed diagonally downward to the
right, perforating the left upper lobe of the lungs through
and through, bitting the left pulmonary artery and was
recovered at the right thoracic cavity; both thoracic cavity
was full of blood.
Cause of death: Shock, hemorrhage, secondary to bullet
wound.
Valentin Baylon, the owner of the fighting cocks, returned home at about
six o'clock in the morning of January 10, 1966. He discovered that the
door of one of his cock pens or chicken coops (Exhs. A and A-1) was
broken. The feeding vessels were scattered on the ground. Upon
investigation he found that six of his fighting cocks were missing. Each
coop contained six cocks. The coop was made of bamboo and wood with
nipa roofing. Each coop had a door which was locked by means of nails.
The coops were located at the side of his house, about two meters
therefrom.
Baylon reported the loss to the police at Mandurriao. At about ten o'clock,
a group of detectives came to his house together with the police
photographer who took pictures of the chicken coops. The six roosters
were valued at one hundred pesos each. Two days later, he was
summoned to the police station at Mandurriao to identify a rooster which
was recovered somewhere at the airport. He readily identified it as one of
the six roosters which was stolen from his chicken coop (Exh. B).
Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con
homicidio with the aggravating circumstances of use of a motor vehicle,
nocturnity, band, contempt of or with insult to the public authorities and
recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the
case was dismissed as to him.
On February 2, 1967, after the prosecution had rested its case and
before the defense had commenced the presentation of its evidence,
Jaranilla escaped from the provincial jail. The record does not show that
he has been apprehended.
The judgment of conviction was promulgated as to defendants Suyo and
Brillantes on October 19, 1967 when it was read to them in court. They
signed at the bottom of the last page of the decision.
There was no promulgation of the judgment as to Jaranilla, who, as
already stated, escaped from jail (See Sec. 6, Rule 120, Rules of Court).
However, the notice of appeal filed by defendants' counsel de
oficio erroneously included Jaranilla. Inasmuch as the judgment has not
been promulgated as to Jaranilla, he could not have appealed. His
appeal through counsel cannot be entertained. Only the appeals of
defendants Suyo and Brillantes will be considered.
In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial
court assumed that the taking of the six fighting cocks was robbery and
that Patrolman Jabatan was killed "by reason or on the occasion of the
robbery" within the purview of article 294 of the Revised Penal Code.
In this appeal the appellants contend that the trial court erred in not
finding that Gorriceta was the one who shot the policeman and that
Jaranilla was driving the Ford truck because Gorriceta was allegedly
drunk. Through their counsel de oficio, they further contend that the
taking of roosters was theft and, alternatively, that, if it was robbery, the
crime could not be robbery with homicide because the robbery was
already consummated when Jabatan was killed.
After evaluating the testimonies of Gorriceta and Brillantes as to who was
driving the truck and who shot policeman, this Court finds that the trial
court did not err in giving credence to Gorriceta's declaration that he was
driving the truck at the time that Jaranilla shot Jabatan.
The improbability of appellants' theory is manifest. The truck belonged to
Gorriceta's sister. He was responsible for its preservation. He had the
obligation to return it to his sister in the same condition when he
borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo
and when he allegedly invited them for a paseo. There is no indubitable
proof that Jaranilla knows how to drive a truck.
The theory of the defense may be viewed from another angle. If,
according to the appellants, Gorriceta asked Jaranilla to drive the truck
because he (Gorriceta) was drunk then that circumstance would be
inconsistent with their theory that Gorriceta shot Jabatan. Being
supposedly intoxicated, Gorriceta would have been dozing when Jabatan
signalled the driver to stop the truck and he could not have thought of
killing Jabatan in his inebriated state. He would not have been able to
shoot accurately at Jabatan. But the fact is that the first shot hit Jabatan.
So, the one who shot him must have been a sober person like Jaranilla.
Moreover, as Jaranilla and his two comrades were interested in
concealing the fighting cocks, it was Jaranilla, not Gorriceta, who would
have the motive for shooting Jabatan. Consequently, the theory that
Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to
be plausible.
Was the taking of the roosters robbery or theft? There is no evidence that
in taking the six roosters from their coop or cages in the yard of Baylon's
house violence against or intimidation of persons was employed. Hence,
article 294 of the Revised Penal Code cannot be invoked.
Neither could such taking fall under article 299 of the Revised Penal
Code which penalizes robbery in an inhabited house (casa habitada),
public building or edifice devoted to worship. The coop was not inside
Baylon's house. Nor was it a dependency thereof within the meaning of
article 301 of the Revised Penal Code.
Having shown the inapplicability of Articles 294 and 299, the next inquiry
is whether the taking of the six roosters is covered by article 302 of the
Revised Penal Code which reads:
ART. 302. Robbery in an uninhabited place or in private building.—Any
robbery committed in an uninhabited place or in a building other than
those mentioned in the first paragraph of article 299, if the value of the
property exceeds 250 pesos, shall be punished by prision correccional in
its medium and maximum periods provided that any of the following
circumstances is present:
1. If the entrance has been effected through any opening
not intended for entrance or egress.
2. If any wall, roof, floor or outside door or window has
been broken.
3. If the entrance has been effected through the use of
false keys, picklocks or other similar tools.
 4. If any door, wardrobe, chest, or any sealed or closed
furniture or receptacle has been broken.
5. If any closed or sealed receptacle, as mentioned in the
preceding paragraph, has been removed, even if the
same be broken open elsewhere.
xxx xxx xxx
In this connection, it is relevant to note that there is an inaccuracy in the
English translation of article 302. The controlling Spanish original reads:
ART. 302. Robo en lugar no habitado o edificio particular.
—El robo cometido en un lugar no habitado o en un
edificio que no sea de los comprendidos en el parrafo
primero del articulo 299, ... . (Tomo 26, Leyes Publicas
479).
The term "lugar no habitado" is erroneously translated. as "uninhabited
place", a term which may be confounded with the expression
"uninhabited place" in articles 295 and 300 of the Revised Penal Code,
which is the translation of despoblado and which is different from the
term lugar no habitado in article 302. The term lugar no habitado is the
antonym of casa habitada (inhabited house) in article 299.
One essential requisite of robbery with force upon things under Articles
299 and 302 is that the malefactor should enter the building or
dependency, where the object to be taken is found. Articles 299 and 302
clearly contemplate that the malefactor should enter the building (casa
habitada o lugar no habitado o edificio). If the culprit did not enter the
building, there would be no robbery with force upon things. (See Albert,
Revised Penal Code, 1932 edition, p. 688).
Thus, where the accused broke the show-window of the Bombay Palace
Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the
crime was theft and not robbery because he did not enter the building.
The show-window was outside the store. (People vs. Adorno, CA 40 O.
G. 567, per Montemayor, J., who later became a member of this Court). *
In the instant case, the chicken coop where the six roosters were taken cannot be considered a
building within the meaning of article 302. Not being a building, it cannot be said that the accused
entered the same in order to commit the robbery by means of any of the five circumstances
enumerated in article 302.
The term "building" in article 302, formerly 512 of the old Penal Code,
was construed as embracing any structure not mentioned in article 299
(meaning not an "inhabited house or public building or edifice devoted to
worship" or any dependency thereof) used for storage and safekeeping of
personal property. As thus construed, a freight car used for the shipment
of sugar was considered a private building. The unnailing of a strip of
cloth nailed over the door, the customary manner of sealing a freight car,
was held to constitute breaking by force within the meaning of article 512,
now article 302. (U.S. vs. Magsino, 2 Phil. 710).
The ruling in the Magsino case is in conflict with the rulings of the
Supreme Court of Spain that a railroad employee who, by force, opens a
sealed or locked receptacle deposited in a freight car, does not commit
robbery. He is guilty of theft because a railroad car is neither a house nor
a building within the meaning of article 302 which corresponds to article
525 of the 1870 Spanish Penal Code. Article 302 refers to houses or
buildings which, while not actually inhabited, are habitable. Thus, a pig
sty is not a building within the meaning of article 302. The stealing of
hogs from a pig sty is theft and not robbery, although the culprit breaks
into it. Article 302 refers to habitable buildings. (Guevara, Revised Penal
Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7,
642, which in turn cites the decisions of the Spanish Supreme Court
dated March 2, 1886 and April 25, 1887). **
As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect
as tangkal or kulungan, is about five yards long, one yard wide and one yard high. It has wooden stilts
and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height like
Baylon. It is divided into six compartments or cages. A compartment has an area of less than one cubic
yard. A person cannot be accommodated inside the cage or compartment. It was not intended that a
person should go inside that compartment. The taking was effected by forcibly opening the cage and
putting the hands inside it to get the roosters.
Therefore, the taking of the six roosters from their coop should be
characterized as theft and not robbery. The assumption is that the
accused were animated by single criminal impulse. The conduct of the
accused reveals that they conspired to steal the roosters. The taking is
punishable as a single offense of theft. Thus, it was held that the taking of
two roosters in the same place and on the same occasion cannot give
rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing
decision of Supreme Court of Spain dated July 13, 1894 and 36 C. J.
799; People vs. Tumlos, 67 Phil. 320; People vs. Villanueva, 49 O.G.
5448, L-10239, August 7, 1953).
Nocturnity and use of a motor vehicle are aggravating. Those
circumstances facilitated the commission of the theft. The accused
intentionally sought the cover of night and used a motor vehicle so as to
insure the success of their nefarious enterprise (People vs. Tan, 89 Phil.
647, 660; People vs. Gardon, 104 Phil. 372).
Also to be appreciated against appellants Suyo and Brillantes is the
aggravating circumstance of recidivism which was alleged in the
information. They admitted their previous convictions for theft (130, 132
tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).
The theft of six roosters valued at six hundred pesos is punishable
by prision correccional in its minimum and medium periods (Art. 309[3],
Revised Penal Code). That penalty should be imposed in its maximum
period because only aggravating circumstances are present (Art. 64[3],
Revised Penal Code).
Although recidivists, appellants Suyo and Brillantes are not habitual
delinquents. They are entitled to an indeterminate sentence (Sec. 2, Act
No. 4103).
With respect to the killing of Patrolman Jabatan, it has already been
noted that the evidence for the prosecution points to Jaranilla as the
malefactor who shot that unfortunate peace officer. The killing was
homicide because it was made on the spur of the moment. The
treacherous mode of attack was not consciously or deliberately adopted
by the offender (U.S. vs. Namit, 38 Phil. 926; People vs. Tumaob, 83
Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of authority on night duty
at the time of the shooting. He was wearing his uniform. The killing
should be characterized as a direct assault (atentado) upon an agent of
authority (Art. 148, Revised Penal Code) complexed with homicide. The
two offenses resulted from a single act. (Art. 48, Revised Penal Code;
People vs. Guillen, 85 Phil. 307; People vs. Lojo, Jr., 52 Phil. 390).
The evidence for the prosecution does not prove any conspiracy on the
part of appellants Jaranilla, Suyo and Brillantes to kill Jabatan. They
conspired to steal the fighting cocks. The conspiracy is shown by the
manner in which they perpetrated the theft. They went to the scene of the
crime together. They left the yard of Baylon's residence, each carrying
two roosters. They all boarded the getaway truck driven by Gorriceta.
The theft was consummated when the culprits were able to take
possession of the roosters. It is not an indispenable element of theft that
the thief carry, more or less far away, the thing taken by him from its
owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476;
U.S vs. Adiao, 38 Phil. 754).
It is not reasonable to assume that the killing of any peace officer, who
would forestall the theft or frustrate appellants' desire to enjoy the fruits of
the crime, was part of their plan. There is no evidence to link appellants
Suyo and Brillantes to the killing of Jabatan, except the circumstance that
they were with Jaranilla in the truck when the latter shot the policeman.
Gorriceta testified that Suyo did not do anything when Jabatan
approached the right side of the truck and came in close proximity to
Jaranilla who was on the extreme right. Brillantes pulled his revolver
which he did not fire (47, 53-55 tsn). Mere presence at the scene of the
crime does not necessarily make a person a co-principal thereof.
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan.
Instead of taking the witness stand to refute the testimony of Gorriceta,
Jaranilla escaped from jail. That circumstance is an admission of guilt.
The instant case is different from People vs. Mabassa, 65 Phil. 568
where the victim was killed on the occasion when the accused took his
chickens under the house. It is distinguishable from the People vs.
Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670
(both cited by the Solicitor General) where the robbery was clearly
proven and the homicide was perpetrated on the occasion of the robbery.
As already noted, theft, not robbery, was committed in this case.
The situation in this case bears some analogy to that found in the People
vs. Basisten, 47 Phil. 493 where the homicide committed by a member of
the band was not a part of the common plan to commit robbery. Hence,
only the person who perpetrated the killing was liable for robbery with
homicide. The others were convicted of robbery only.
There is a hiatus in the evidence of the prosecution as to the participation
of Suyo and Brillantes in the killing of Jabatan by Jaranilla. As already
stated, no robbery with homicide was committed. Therefore, it cannot be
concluded that those two appellants have any responsibility for Jabatan's
death. Their complicity in the homicide committed by Jaranilla has not
been established.
WHEREFORE, the judgment of the trial court convicting appellants
Ricardo Suyo and Franco Brillantes of robbery with homicide is reversed.
They are acquitted of homicide on the ground of reasonable doubt.
As co-principals with Elias Jaranilla in the theft of the six fighting cocks,
they are (a) each sentenced to an indeterminate penalty of six (6) months
of arresto mayor as minimum to four (4) years and two (2) months
of prision correccional as maximum and (b) ordered to indemnify
solidarily the complainant, Valentin Baylon, in the sum of five hundred
pesos (P500). Each appellant should pay one-third of the costs.
As to the liability of Elias Jaranilla for theft and homicide, with direct
assault upon an agent of authority, trial court should render a new
judgment consistent with this opinion (See Sec. 19, Art. IV, Constitution).
So ordered.
Zaldivar (Chairman), Fernando, Antonio and Fernandez, JJ., concur.
 
Separate Opinions
 
BARREDO, J., concurring:
I concur.
I am in full accord with the findings of fact and the legal rationalization
and conclusions in the main opinion very ably written for the Court by Mr.
Justice Aquino.
I would like to make the observation, however, that I cannot find any error
in the literal translation of the term "lugar no habitado" used in the
controlling Spanish text Article 302 into "uninhabited place" appearing in
the English version. The correct concept of the said term as used in
Article 302 is indeed different from the "uninhabited place" contemplated
in Articles 295 and 300, which means "despoblado" or open country —
referring to a "lugar", meaning place, site or space where nobody lives or
is usually found. And, of course, it is also clear to me that Article 302
refers to as an "uninhabited place" is really an unoccupied or uninhabited
house, the antonym of the "casa habitada" referred to in Article 299. But I
cannot bring self to the thought that the word "lugar" in Article 302 may
literally be translated to anything else than "place, site space". I simply
cannot see in it the specific connotation of house or building. Maybe it is
the wording of the Spanish text that is somewhat inaccurate, unless it can
be shown, which I am afraid cannot be done, that colloquially or
somewhere in the Spanish speaking world, said word means house or
building or any structure wherein personal properties may be deposited,
stored or kept.
I would prefer to footnote Article 302 the same way Justice Luis B. Reyes
of the Court of Appeals does, thus:
The "uninhabited place" mentioned in Article 302 is a
building, because paragraphs Nos. 1 and 3 speak of
"entrance," which necessarily refers to a building. (The
Revised Penal Code by Luis B. Reyes, Vol. II, 1968, p.
617.)
In that way, I believe the true and correct meaning of the provision is
clarified without attributing any possible misconstruction to faulty literal
translation, which I am convinced does not exist. I reiterate, the error in
translation noted in the main opinion is inevitable — for while the literal
translation is indubitably accurate, on the other hand, as a matter of
construction, the correct interpretation is different. Evidently, the Spanish
text uses "lugar" for house, building or structure, and, to my mind, that is
not the sense that word is usually understood in Spanish. But I agree that
what is contemplated in Article 302 is not "despoblado" but simply an
unoccupied or uninhabited house, building or structure. In other words, it
appears that the correct expression that should be in Article 302 is
"uninhabited house," disregarding, consequently, the inaccurate
reference to "lugar" in the Spanish text and sticking, by way of
construction, to the correct concept of the thing really contemplated.
 Footnotes
* "Criminal Law; Qualifications of the crime; Theft;
Breaking show-windows; Entrance is necessary in the
crime of robbery.—The offense committed by the accused
is merely that of theft and not of robbery, or the reason
that although the show-window was broken open, the
accused did not enter the same but merely introduced his
hand thru the broken glass in order to remove the
watches from the show-window, and for the further
reason that the show-window in question was outside the
store. There is robbery with force upon things only when
doors or wind are broken in order to enter a building to
steal or when doors or wardrobes are broken, inside a
building. Here there had been no entrance." (Syllabus,
People vs. Adorno, CA 40 O.G. 567. See People vs.
Ingay, II ACR 275, per Albert, J. and U. S. vs. Callotes, 2
Phil. 16, where the manner of entrance was not proven).
** "El guardafreno de un ferrocarril que iba solo en el
furgon de cola, abrio el baul de un viajero fracturando la
cerradura y extrajo algunos efectos. Condenado como
autor del delito de robo, interpuso recurso de casacion
alegando que era estafa y el Ministerio fiscal de adherio
por conceptuar que el delito era hurto.
El Tribunal Supreme estima la adhesion por considerar:
que los hechos declarados probados no constituyen el
delito de robo en lugar inhabitado calificado por la Sala
sentenciadora, por no referirse los articulos 521 y 525 del
Codigo Penal en las expresiones de lugar habitado e
inhabitado al material movil de ferrocarriles, y si tan solo
a lugares y casa que puedan servir de alber gue o
habitacion para las personas, distinguiendolas
unicamente por el objeto a que se dedican." Sentencia de
25 de Abril de 1887.
Que la sustraccion de cerdos imputada a los recurrentes
no se halla comprendida en el articulo 525, como
erroneamente supone el Tribunal sentenciador, porque al
hablarse en dicho articulo de lugar no habitado, es en
contraposicion a lugar o casa habitada de que trata el
articulo 521, y porque, en uno y otro caso, el Codigo se
refiere a lugares o cases que puedan servir de albergue
o habitacion para las personas, distinguiendolos,
solamente por el objeto a que estos lugares se dedican, y
no a los demas abiertos o meramente cerrados, cual es
la zahurda de cerdos donde los recurrentes realizaron la
sustraccion, pues el hecho criminal no reviste, en este
ultimo caso, la importancia y transcendencia que en
aquellos:
Que la Audiencia sentenciadora ha incurrido en error de
derecho al calificar de delito de robo un hecho que solo
puede serlo como hurto por no hallarse comprendido en
ninguno de los casos especificados en el capitulo sobre
los robos." Sentencia de 2 de Marzo de 1886.

Varios sujetos saltando la cerea de una zahurda,

penetraron en esta y sustrajeron cuatro cerdos.

Condenados como autores del delito de robo, el Tribunal

Supremo casa y anula la sentencia, por considerar:

Que si bien es cierto que el delito de robo se caracteriza

por la fuerza en las cosas o violencia sobre las personas
con que realiza el delicuente la sustraccion de cosa ajena
con animo de lucro, es menester ademas que el hecho se
encuentre comprendido en alguno de los casos
especificades en el capitulo del Codigo que trata de los
robos, porque no hay ningun articulo que pene
genericamente el robo tal cual se define en el articulo
515:

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 170964               March 7, 2012
ELSA MACANDOG MAGTIRA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
Petitioner Elsa Macandog Magtira seeks in this petition for review on
certiorari (filed under Rule 45 of the Rules of Court) to reverse the
decision and the resolution of the Court of Appeals (CA) in CA-G.R. CR
1  2 
No. 27252. The CA affirmed with modification the joint decision of the
3 
Regional Trial Court (RTC) of Makati City, Branch 148, that found the
petitioner guilty beyond reasonable doubt of seven (7) counts of estafa
penalized under Article 315, paragraph 1(b) of the Revised Penal Code,
as amended.
The records show that seven criminal informations for estafa were filed
against the petitioner. Except for the amounts misappropriated and the
private complainants involved, the informations were similarly worded, as
4 
follows:
That on or about and sometime during the year of 2000, in the City of
Makati, Metro Manila, Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused received in trust and for
administration from complainant x x x as contribution to a Paluwagan in
the amount of x x x under [the] safekeeping of accused [Elsa] Macandog
Magtira, with the express and legal obligation on the part of the accused
to return and/or account for the same, but the accused far from
complying with her obligation with intent to gain, abuse of confidence and
to defraud complainant, did then and there willfully, unlawfully and
feloniously misappropriate, misapply and convert to her own personal
use and benefit the said contribution (Paluwagan) and/or the proceeds
thereof x x x and despite repeated demands, the accused failed and
refused and still fails and refuses to do so, to the damage and prejudice
of the complainant in the aforementioned amount. 5
The petitioner entered a plea of "not guilty" to all the charges. Thereafter,
6 
the seven cases were tried jointly. The following facts were established:
first, the petitioner was the custodian of the funds of the Paluwagan
where the private complainants were members; second, that demands
7 
were made against the petitioner by the private complainants for the
return of their contributions in the Paluwagan; and third, the petitioner
failed to meet the private complainants’ demand for the return of their
contributions.
During trial, the petitioner denied misappropriating the contributions of the
private complainants. She claimed that she was robbed of the Paluwagan
funds in the early afternoon of February 28, 2000. By way of
corroboration, the petitioner presented a copy of an entry in the police
blotter dated February 28, 2000 and the affidavits of five individuals
attesting to the robbery.8
From the evidence adduced, the RTC convicted the petitioner of the
crime charged and declared:
[I]t is clear to the Court that the accused is not disputing in all the cases
that (a) sizeable amount of money belonging to different persons were
received by her in trust or for administration, involving the duty to make a
delivery thereof to the owners; (2) that there is a demand to her that
same be returned but she cannot do so. 9
The RTC explained that while the robbery of the entrusted money is a
valid defense against estafa, the petitioner’s evidence of the robbery was
wanting. The RTC observed that the petitioner’s testimony was self-
serving and inconsistent on some of the material details of the robbery.
The RTC also noted the petitioner’s failure to account for and to deliver
the contributions which were collected from the private complainants after
the robbery. Finally, the RTC found that the petitioner’s credibility
affected by her own demeanor of indifference during trial showed no
"semblance of worry or [of] being concerned"  about the serious charges
10 
filed against her.
Dissatisfied with the RTC’s decision, the petitioner elevated her
conviction to the CA which affirmed the findings of the RTC but modified
the penalty of imprisonment imposed. The CA held:
(1) In Criminal Case No. 02-1766 where the amount of the fraud
is ₱85,000.00, the incremental penalty is six (6) years to be
added to the maximum period of the penalty provided for by law,
or eight (8) years of prision mayor minimum plus six (6) years of
the incremental penalty. Hence, the indeterminate sentence is
four (4) years and two (2) months of prision correccional medium,
as the minimum penalty, to fourteen (14) years of reclusion
temporal minimum, as the maximum penalty.
(2) In Criminal Case No. 02-1767 where the amount of the fraud
is ₱65,000.00, the incremental penalty is four (4) years to be
added to the maximum period of the penalty provided for by law,
or eight (8) years of prision mayor minimum plus four (4) years of
the incremental penalty. Hence, the indeterminate sentence is
four (4) years and two (2) months of prision correccional medium,
as the minimum penalty, to twelve (12) years of prision mayor
maximum, as the maximum penalty.
(3) In Criminal Case No. 02-1768 where the amount of the fraud
is ₱60,000.00, the incremental penalty is three (3) years to be
added to the maximum period of the penalty provided for by law,
or eight (8) years of prision mayor minimum plus three (3) years
of the incremental penalty. Hence, the indeterminate sentence is
four (4) years and two (2) months of prision correccional medium,
as the minimum penalty, to eleven (11) years of prision mayor
maximum, as the maximum penalty.
(4) In Criminal Case No. 02-1769 where the amount of the fraud
is ₱34,000.00, the incremental penalty is one (1) year to be
added to the maximum period of the penalty provided for by law,
or eight (8) years of prision mayor minimum plus one (1) year of
the incremental penalty. Hence, the indeterminate penalty should
be four (4) years and two (2) months of prision correccional
medium, as the minimum penalty, to nine (9) years of prision
mayor medium, as the maximum penalty.
(5) In Criminal Case No. 02-1770 where the amount of the fraud
is ₱85,400.00, the incremental penalty is six (6) years to be
added to the maximum period of the penalty provided for by law,
or eight (8) years of prision mayor minimum plus six (6) years of
the incremental penalty. Hence, the indeterminate sentence is
four (4) years and two (2) months of prision correccional medium,
as the minimum penalty, to fourteen (14) years of reclusion
temporal minimum, as the maximum penalty.
(6) In Criminal Case No. 02-1771 where the amount of the fraud
is ₱100,000.00, the incremental penalty of seven (7) years is to
be added to the maximum period of the penalty provided for by
law, or eight (8) years of prision mayor minimum plus seven (7)
years of the incremental penalty. Hence, the indeterminate
sentence is four (4) years and two (2) months of prision
correccional medium, as the minimum penalty, to fifteen (15)
years of reclusion temporal medium, as the maximum penalty.
(7) In Criminal Case No. 02-1772 where the amount of the fraud
is ₱153,000.00, the incremental penalty is thirteen (13) years to
be added to the maximum period of the penalty provided by the
law. The penalty cannot go beyond twenty (20) years as the law
provides that in no case shall the penalty be higher than reclusion
temporal regardless of the amount of the fraud. Hence, the
indeterminate sentence is four (4) years and two (2) months of
prision correccional medium, as the minimum penalty, to twenty
(20) years of reclusion temporal maximum, as the maximum
penalty. (italics supplied)
11 
The CA denied the petitioner’s motion for reconsideration; hence, the
12 
present petition.
The Issue
The ultimate issue for consideration is whether the petitioner should be
held liable for the crimes of estafa. The petitioner argues that the CA and
the RTC erred in rejecting her argument that no misappropriation of the
Paluwagan funds was clearly established in the record.
In its comment, the Office of the Solicitor General (OSG) prays for the
dismissal of the petition. The OSG maintains that the elements
constituting the crime of estafa with abuse of confidence had been fully
established by the prosecution’s evidence. The OSG insists that the
petitioner failed to clearly prove by competent evidence her affirmative
defense of robbery. The OSG also insists that the petitioner’s conduct in
failing to inform all the members of the alleged robbery bolsters the
circumstance of her misappropriation of the Paluwagan funds. Lastly, the
petitioner’s misappropriation of the Paluwagan funds was substantiated
by her failure to deliver the Paluwagan funds out of the contributions
made by the private complainants after the robbery.
The petitioner subsequently filed a reply, reiterating the arguments in her
petition.
The Court’s Ruling
We deny the petition for lack of merit.
Preliminary consideration
A preliminary matter we have to contend with in this case is the propriety
of resolving one of the issues raised by the petitioner who has appealed
her judgment of conviction by way of a Rule 45 review. A reading of the
petition shows that the petitioner raises both errors of law and of fact
allegedly committed by the CA and the RTC in their decisions. First, we
are called to determine whether a proper application of law and
jurisprudence has been made in the case. Second, we are also called to
examine whether the CA and the RTC correctly appreciated the evidence
to which the two courts anchor their conclusions.
As a rule, a Rule 45 review is confined to the resolution of errors of law
committed by the lower courts. Further, in a Rule 45 review, the factual
findings of the RTC, especially when affirmed by the CA, are generally
held binding and conclusive on the Court. We emphasize that while
13  presentation in court, we find no proof that her counsel had been
jurisprudence has provided exceptions to this rule, the petitioner carries
14  negligent in performing his legal duties. Incidentally, we also reject this
the burden of proving that one or more exceptional circumstances are
present in the case. The petitioner must additionally show that the cited
exceptional circumstances will have a bearing on the results of the case.
The petitioner cites in this regard the alleged misappreciation of the
evidence committed by the CA and the RTC. The petitioner contends that
both courts disregarded her evidence, namely: the affidavits of five
individuals and the police blotter. She argues that she should not be
faulted for the non-presentation in court of the five individuals who
executed the affidavits which attested to the robbery since she was then
represented by a counsel de oficio. She also argues that both courts
disregarded the evidence of her reputation of being a kind person of good
moral character. She asserts that she delivered to the private
complainants their respective shares in the Paluwagan funds prior to the
robbery.
She further argues that the conclusions of the CA and the RTC were
contrary to the Court’s ruling in Lim v. Court of Appeals where it held that
15 
estafa cannot be committed through negligence or, as in this case, where
the explanation by the accused raises reasonable doubt on whether the
amount in question was misappropriated.
After a careful study of the records, we find that the petitioner’s cited
exceptional circumstances are more imagined than real. We find no
compelling reason to deviate from the factual findings of the CA and the
RTC in this regard.
Misappropriation as an element of the offense of estafa connotes an act
of using, or disposing of, another’s property as if it were one’s own, or of
devoting it to a purpose or use different from that agreed upon. We have
16 
previously held that the failure to account upon demand for funds or
property held in trust without offering any satisfactory explanation for the
inability to account is circumstantial evidence of misappropriation. We 17 
have also held that the demand for the return of the thing delivered in
trust and the failure of the accused to account are similarly circumstantial
evidence that the courts can appreciate. 18
As the CA and the RTC did, we find no clear evidence establishing that
the petitioner was actually robbed of the Paluwagan funds. In the first
place, the five individuals who executed the affidavits were not presented
in court. While the petitioner faults the counsel de oficio for their non-
line of argument for two other reasons: first, it was raised only for the first
time in the present appeal; and second, it involves a factual
determination of negligence which is inappropriate under a Rule 45
review.
We additionally note from a facial examination of the affidavits that the
affiants were not even eyewitnesses to the robbery; hence, their
statements do not sufficiently prove the actual occurrence of the robbery.
More importantly, the affidavits do not also establish with reasonable
certainty that the petitioner was actually robbed of the Paluwagan funds.
Moreover, we cannot give much credence to the police blotter whose
contents were mainly based on the statements made by the petitioner to
the police. If at all, it is evidence of what was entered, not of the truth or
falsity of the entry made. We give due respect to the evaluation made by
the RTC in this regard:
Thus, there seems to be a discrepancy as to the time and number of
persons (robbers) who entered the residence of the accused. Further, the
accused claims that there was a policeman who went to her house who
was called by her lessee (or lessor) but the accused cannot remember
his name.
But then, the accused never testified as to whether the policeman
investigated the scene of the crime and some people in the vicinity.
Surely at that hour, near such market, where there are people in the
vicinity, people will notice strangers or other persons who enter the house
of another or who leave the same whether in a hurry or not.
The accused even admitted that she was hesitant to report the matter to
the police[.] Why was the accused hesitant? She claims that the robber
warned her that he will harm her if she reports the incident. But
immediately after the incident, the accused reported the incident, but
nothing happened to her up to the present. (underscoring supplied)
19 
Besides, the petitioner failed to explain her failure to account and to
deliver the Paluwagan funds arising from contributions made by the
private complainants after the alleged robbery incident. On record are the
positive and unrefuted testimonies of the private complainants that they
remitted contributions to the petitioner even after the robbery. In other
words, if the petitioner had in fact been robbed of Paluwagan funds, the
robbery would not have affected the accounting and the delivery of the
Paluwagan funds arising from the contributions made by the private
complainants after the alleged robbery. As the records show, despite the
continued receipt of contributions from the private complainants, the
petitioner failed to account for, and to deliver, the Paluwagan funds.
The Petitioner’s Conviction
We now go to the crux of the present appeal and determine whether the
evidence adduced warrants the petitioner’s conviction of the crime
charged.
The offense of estafa committed with abuse of confidence has the
following elements under Article 315, paragraph 1(b) of the Revised
Penal Code, as amended:
(a) that money, goods or other personal property is received by
the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of
or to return the same[;]
(b) that there be misappropriation or conversion of such money or
property by the offender, or denial on his part of such receipt[;]
(c) that such misappropriation or conversion or denial is to the
prejudice of another; and
(d) there is demand by the offended party to the offender. 20
We find that all the above elements are present in the present case,
having been established by the prosecution’s evidence and by the
petitioner’s own admissions. The first element was established by the
evidence showing that the petitioner received various sums of money
from the private complainants to be held in trust for them under the
Paluwagan operation. The petitioner admitted that she was under
obligation, at a fixed date, to account for and to deliver the Paluwagan
funds to the private complainants in the sequential order agreed upon
among them. The second element was established by the evidence that
the petitioner failed to account for and to deliver the Paluwagan funds to
the private complainants on the agreed time of delivery. The third and
fourth elements of the offense were proven by evidence showing that the
petitioner failed to account for and to deliver the Paluwagan funds to the
private complainants despite several demands made upon her by the
private complainants. Each of the private complainants testified as to how
they were prejudiced when they failed to receive their allotted Paluwagan
funds.
Given the totality of evidence, we uphold the conviction of the petitioner
of the crime charged.
The Penalty
The decisive factor in determining the criminal and civil liability for the
crime of estafa depends on the value of the thing or the amount
defrauded. With respect to the civil aspect of the case, the petitioner filed
21 
 a manifestation which showed the satisfaction of her civil monetary
22 
ANTONIO T. CARPIO
liability with six (6) out of the seven (7) private complainants.
1âwphi1 Associate Justice
Chairperson
Anent her criminal liability, the evidence shows that the amount of money
remitted by the private complainants to the petitioner all exceeded the MARIA LOURDES P. A.
amount of ₱22,000.00. In this regard, the first paragraph of Article 315 of JOSE PORTUGAL PEREZ
SERENO
the Revised Penal Code, as amended, provides the appropriate penalty if Associate Justice
Associate Justice
the value of the thing or the amount defrauded exceeds ₱22,000.00:

1st. The penalty of prision correccional in its maximum period to prision BIENVENIDO L. REYES
mayor in its minimum period, if the amount of the fraud is over 12,000 Associate Justice
pesos but does not exceed 22,000 pesos; and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in ATTESTATION
its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty I attest that the conclusions in the above Decision had been reached in
years. [italics ours] consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
As provided by law, the maximum indeterminate penalty when the
amount defrauded exceeds ₱22,000.00 is pegged at prision mayor in its ANTONIO T. CARPIO
minimum period or anywhere within the range of six (6) years and one (1) Associate Justice
day to eight (8) years, plus one year for every ₱10,000.00 in excess of Chairperson, Second Division
₱22,000.00 of the amount defrauded but not to exceed twenty years. In
turn, the minimum indeterminate penalty shall be one degree lower from CERTIFICATION
the prescribed penalty for estafa, which in this case is anywhere within
the range of prision correccional in its minimum and medium periods or
six (6) months and one (1) day to four (4) years and two (2) Pursuant to Section 13, Article VIII of the Constitution, and the Division
months. Applying this formula, we affirm the penalty imposed by the CA
23 
Chairperson's Attestation, I certify that the conclusions in the above
as it is fully in accordance with the law. Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
WHEREFORE, premises considered, we DENY the petition for lack of
merit. We AFFIRM the decision dated November 10, 2005 and the RENATO C. CORONA
resolution dated January 10, 2006 of the Court of Appeals in CA-G.R. CR Chief Justice
No. 27252, finding petitioner Elsa Macandog Magtira GUILTY beyond
reasonable doubt of seven (7) counts of estafa penalized under Article
315, paragraph 1(b) of the Revised Penal Code, as amended.

SO ORDERED. Footnotes

ARTURO D. BRION Dated November 10, 2005. Penned by Associate Justice

1 

Associate Justice Fernanda Lampas Peralta, and concurred in by Associate

Justices Delilah Vidallon-Magtolis and Josefina Guevara-
WE CONCUR: Salonga; rollo, pp. 39-55.
 Dated January 10, 2006; id. at 57.
2 
surmises or conjectures; (4) when the judgment of the Court of
Appeals is based on misapprehension of facts; (5) when the
Dated February 7, 2003 in Criminal Case Nos. 02-1766 - 02-
3  Court of Appeals, in making its findings, went beyond the issues
1772. The Joint Decision was penned by Judge Oscar B. of the case and the same is contrary to the admissions of both
Pimentel; id. at 67-103. appellant and appellee; (6) when the findings of fact are
conclusions without citation of specific evidence on which they
They are: (1) Alfredo Martinez, (2) Cherry Bondocoy, (3)
4  are based; (7) when the Court of Appeals manifestly overlooked
Rebecca Zoleta, (4) Maria Ester Binaday, (5) Saturnina Zaraspe certain relevant facts not disputed by the parties and which, if
Perez, (6) Emerita Velasco, and (7) Domingo Venturina. properly considered, would justify a different conclusion; and (8)
when the findings of fact of the Court of Appeals are premised on
the absence of evidence and are contradicted by the evidence on
Rollo, pp. 58-64.
5 

record. (Dueñas v. Guce-Africa, G.R. No. 165679, October 5,

2009, 603 SCRA 11, 20-21.)
Id. at 71.
6 

15 
G.R. No. 102784, April 7, 1997, 271 SCRA 12, 22.
Id. at 65-66.
7 

Aw v. People, G.R. No. 182276, March 29, 2010, 617 SCRA 64,
16 

First, the affidavits of Felipe Macandog and Segundo Macariola

8 
77.
stated that they found the petitioner bound and gagged inside her
house on February 28, 2000. Second, the joint affidavit of 17 
Id. at 77-78.
spouses Reynaldo and Marina Ainza attested that together with
the petitioner’s lessor, Nilo Lopez, they went to the house of the
petitioner and saw her lying on the floor and untied; while the Id. at 78, citing Filadams Pharma, Inc. v. Court of Appeals, G.R.
18 

room was in disarray. Upon the lessor’s instruction, the spouses No. 132422, March 30, 2004, 426 SCRA 460, 468.
sought police assistance. Lastly, Nilo Lopez averred in his
affidavit that he immediately went to the house of the petitioner 19 
Supra note 3, at 92.
after being informed of the robbery. That upon his instruction, the
police was called. 20 
Aw v. People, supra note 15, at 75.

Rollo, p. 89.
9 
Pamintuan v. People, G.R. No. 172820, June 23, 2010, 621
21 

SCRA 538, 552.

10 
Id. at 93.
Rollo, pp. 194-198 and 225. The Acknowledgment Receipts
22 

11 
Id. at 52-54. were issued by (1) Alfredo Martinez, (2) Cherry Bondocoy
(received by Cielo Anduque), (3) Rebecca Zoleta, (4) Maria Ester
12 
Supra note 2. Binaday, (5) Saturnina Zaraspe Perez (wife of Aniceto Perez);
and (6) Emerita Velasco. The petitioner is still paying Maria
Venturina on installment basis.
Iron Bulk Shipping Phil., Co., Ltd. v. Remington Industrial Sales
13 

Corp., 462 Phil. 694, 703-704 (2003).

People v. Temporada, G.R. No. 173473, December 17, 2008,
23 

574 SCRA 258, 302.

They are: (1) when the inference made is manifestly mistaken,
14 

absurd or impossible; (2) when there is grave abuse of discretion;

(3) when the findings are grounded entirely on speculations,

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 179044               December 6, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
RODRIGuez LUCERO y PAW-AS alias "Kikit," Appellant.
DECISION
DEL CASTILLO, J.:
On appeal is the November 29, 2006 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00340 which affirmed with modifications the
July 19, 2002 Decision2 of the Regional Trial Court of Bislig City, Surigao
del Sur, Branch 29, finding appellant Rodriguez Lucero y Paw-as guilty
beyond reasonable doubt of the crime of murder.
Factual Antecedents
On October 20, 1998, an Information 3 was filed charging appellant with
the crime of murder committed as follows:
That on or about 1:30 [a.m.] of July 21, 1998, at Purok 6, Barangay Sta.
Cruz, Municipality of Tagbina, Province of Surigao del Sur, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused with treachery and evident premeditation and with intent to kill,
did then and there wil[l]fully, unlawfully and feloniously attack, assault
and hack one Edgar Aydaon, a Barangay Kagawad, with the use of a
bolo, thereby hitting the victim[']s head, which wound and injury caused
the instantaneous death of the victim, to the damage and prejudice of the
heirs of said Aydaon.
CONTRARY TO LAW x x x
Appellant pleaded not guilty to the charge. Trial thereafter ensued.
Version of the Prosecution
The prosecution presented Leonito Maceda (Maceda), Rafael Ampis and
SPO1 Daniel Barrios as witnesses. Based on their combined testimonies,
the prosecution established the following:
At about midnight of July 20, 1998, Maceda went out of his house to get
"kasla," a medicinal herb for his sick child. After getting the herb, he went
to a waiting shed located about 10 meters away from his house as he
saw a certain Linda Basalo (Basalo) thereat waiting for a ride. While at
the waiting shed, the victim Edgar Aydaon passed by. But after a while,
the victim returned and helped Basalo load the vegetables in the jeepney.
After the jeepney left, appellant arrived and called out the victim.
Appellant pleaded that he be allowed by the victim to go with him as he
(appellant) was allegedly being pursued by a certain Pandeta. The victim
acceded to the request and even invited appellant to sleep in his house.
However, after walking a distance of about 10 meters, appellant suddenly
hacked the victim at the left side of his head causing the victim to fall to
the ground. In spite of the fact that the victim was already lying on the
ground, appellant further stabbed him on his waist. Thereafter, appellant
left the premises.
Version of the Defense
The defense presented appellant as its lone witness who could only offer
denial and alibi. He claimed that on July 21, 1998, he was at his farm
located at Nyholm, Agusan del Sur. He alleged that he had no prior
disagreement with the victim or any of the prosecution witnesses. Hence,
he could not understand why he was being implicated in the crime.
Ruling of the Regional Trial Court
The trial court found appellant guilty of murder qualified by treachery. It
noted that appellant "beguiled [the victim by] pleading for help" 4 but after
walking a distance of about 10 meters, suddenly hacked him on the head
leaving him with no opportunity to defend himself.
The trial court however found that the qualifying circumstance of evident
premeditation was not present. It noted that the prosecution failed to
prove "(1) the time when the offender determined to commit the crime; (2)
an act manifestly indicating that the culprit clung to his determination; and
(3) sufficient lapse of time between the determination and execution to
allow him to reflect upon the consequences of his act."5
The trial court disregarded appellant’s denial and alibi for being
uncorroborated. Besides, appellant himself admitted that the distance
between his farm and the scene of the crime is only 10 kilometers and
could be traversed by motorcycle in one hour or even less. Thus, he
failed to prove that it was physically impossible for him to be at the crime
scene at the time it was committed. Besides, appellant’s alibi could not
stand scrutiny vis-à-vis the testimony of Maceda positively identifying
appellant as the author of the crime.
Finally, the trial court found the inconsistencies in the testimony of
Maceda only minor and trivial as they did not touch on the elements of
the crime.
The dispositive portion of the Decision of the trial court reads:
Wherefore, finding the accused RODRIGUEZ LUCERO Y PAW-AS alias
"KIKIT" guilty beyond reasonable doubt of the crime of MURDER defined
and penalized under Article 248 of the Revised Penal Code, as amended
by Republic Act No. 7659, this Court hereby sentences him to suffer the
penalty of Reclusion Perpetua with all the accessory penalties provided
for under Article 41 of the Revised Penal Code.
To pay the heirs of the victim the sum of fifty thousand pesos
(₱50,000.00) as [civil] indemnity and ten thousand pesos (₱10,000.00) as
exemplary damages.
To pay the costs.
The accused shall serve his sentence at the National Penitentiary now
New Bilibid Prisons, Muntinlupa City.
SO ORDERED.6
Ruling of the Court of Appeals
The CA affirmed with modifications the Decision of the trial court, thus:
FOR THE REASONS STATED, the appealed Decision convicting
RODRIGUEZ LUCERO Y PAW-AS alias "[K]ikit of Murder is hereby
AFFIRMED with the MODIFICATION[S] that he is ORDERED to pay the
heirs of the victim ₱50,000.00 as indemnity, ₱25,000.00 as exemplary
damages, ₱3,000.00 as actual damages and ₱50,000.00 as moral
damages. Costs de officio.
SO ORDERED.7
As did the trial court, the appellate court found the alleged
inconsistencies adverted to by the appellant minor and did not impair the
credibility of Maceda. According to the CA, there was no inconsistency in
"the narration of the principal occurrence [or] the positive identification of
the assailant."8 Further, "minor inconsistencies, far from detracting from
the veracity of the testimony, even enhance the credibility of the
witnesses, for they remove any suspicion that the testimony was
contrived or rehearsed."9
The appellate court also affirmed the findings of the trial court that
treachery attended the commission of the crime. According to the CA,
treachery was –
clearly demonstrated when appellant suddenly attacked and stabbed the
victim who offered the accused to sleep in his house and having
conversation at that time, with absolutely no inkling of the impending
danger as the accused suddenly and without warning, hacked and
stabbed the victim, giving the victim no x x x chance to defend himself. x
x x10
Hence, this appeal.
On October 15, 2007, we notified both parties that they may file their
respective supplemental briefs. However, in separate manifestations,
both parties opted not to file their briefs.
Assignment of Errors
Appellant raises the following assignment of errors:
I. THE COURT A QUO ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE INCONSISTENT TESTIMONY OF
PROSECUTION WITNESS LEONITO MACEDA AND IN
DISREGARDING THE DEFENSE INTERPOSED BY THE
ACCUSED-APPELLANT.
II. THE COURT A QUO ERRED IN CONVICTING ACCUSED-
APPELLANT OF THE CRIME CHARGED DESPITE THE FACT
THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE
DOUBT.11
Our Ruling
The appeal lacks merit.
The defense basically assails the credibility of prosecution eyewitness
Maceda. As it did before the CA, the defense claims that credence
should not have been given to the testimony of prosecution eyewitness
Maceda as it bore several inconsistencies.
We find this contention untenable. Basic is the rule that the Supreme
Court accords great respect and even finality to the findings of credibility
of the trial court, more so if the same were affirmed by the CA, as in this
case. Besides, upon our review of the records of this case, we find that
both the trial court and the CA did not overlook or misunderstand any
substance or fact which would have materially affected the outcome of
this case.
Our ruling in People v. Elarcosa12 is instructive, thus:
In this regard, it should be noted that questions concerning the credibility
of a witness are best addressed to the sound discretion of the trial court,
since it is the latter which is in the best position to observe the demeanor
and bodily movements of a witness. This becomes all the more
compelling when the appellate court affirms the findings of the trial court.
Thus, we generally defer to the trial court’s assessment, unless there is a
clear showing that such findings are tainted with arbitrariness,
capriciousness or palpable error. x x x
Moreover, the alleged inconsistencies referred to by the defense indeed
refer to minor details which are very inconsequential to the outcome of
the case. According to the defense, "Maceda first testified that when the
victim was about to leave, [appellant] came out and mauled the victim.
However, he contradicted himself when he further testified that when
[appellant] came out, the latter conversed with the victim and it was only
after the victim and the [appellant] reached the distance of ten (10)
meters that he saw the appellant [hack] the victim." 13
This contention was satisfactorily debunked by the prosecution. We thus
agree that whether the appellant immediately mauled the victim or he
mauled him only after walking a distance of 10 meters does not deviate
from the fact that appellant did indeed maul and hack the victim.
Moreover, the prosecution correctly argued that "appellant quoted x x x
Maceda’s testimony separately and took it out of context." 14 The records
show that after making a general statement that appellant came out and
mauled the victim, Maceda further explained when pressed for details
that appellant hacked the victim after they conversed and walked the
distance of about 10 meters.15
The defense also pointed out that Maceda was inconsistent whether he
got the "kasla" in the morning or evening of July 20, 1998. However,
whether Maceda got the "kasla" in the morning or evening has no bearing
with the crime of murder committed by the appellant against the victim.
The fact remains that Maceda positively identified appellant as the
person who hacked the victim on the head and stabbed him on the waist.
No ill motive could be attributed to Maceda for testifying against the
appellant. In fact, appellant even admitted that he had no quarrel or
previous misunderstanding or disagreement with Maceda. "Pertinently,
the absence of such improper motive on the part of the witness for the
prosecution strongly tends to sustain the conclusion that no such
improper motive exists and that [his] testimony is worthy of full faith and
credit. Indeed, there is no reason to deviate from the factual findings of
the trial court."16
Finally, we agree with both the trial court and the CA that treachery
attended the commission of the crime. Records show that appellant lulled
the victim into believing that he was being pursued by somebody.
Believing in the tale being spun by the appellant, the victim even offered
appellant the security and protection of his house. However, appellant
reciprocated the victim’s trust and hospitality by suddenly hacking him on
the head and stabbing him on the waist. "The settled rule is that
treachery can exist even if the attack is frontal, as long as the attack is
sudden and unexpected, giving the victim no opportunity to repel it or to
defend himself. What is decisive is that the execution of the attack,
without the slightest provocation from an unarmed victim, made it
impossible for the victim to defend himself or to retaliate." 17
1avvphi1
The Penalty
Article 248 of the Revised Penal Code provides for the penalty of
reclusion perpetua to death for the crime of murder. If no aggravating or
mitigating circumstance attended the commission of the crime, the
imposable penalty is reclusion perpetua. In this case, the qualifying
circumstances of treachery and evident premeditation were both alleged
in the Information. However, only the qualifying circumstance of treachery
was found to have attended the commission of the crime which
nevertheless qualified the killing to murder. There being no other
aggravating or mitigating circumstances, both the trial court and the CA
therefore correctly imposed upon the appellant the penalty of reclusion
perpetua.
The Damages
"Based on Article 100 of the Revised Penal Code, every person criminally
liable for a felony is also civilly liable. Thus, when death occurs due to a
crime, the following damages may be awarded: (1) civil indemnity ex
delicto for the death of the victim; (2) actual or compensatory damages;
(3) moral damages; (4) exemplary damages; (5) attorney’s fees and
expenses of litigation; and (6) interest, in proper cases. In cases of
murder and homicide, civil indemnity of PhP75,000.00 and moral
damages of PhP50,000.00 are awarded automatically. Indeed, such
awards are mandatory without need of allegation and proof other than the
death of the victim, owing to the fact of the commission of murder or
homicide."18
In the instant case, we note that the CA awarded the amounts of
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages,
₱25,000.00 as exemplary damages, and ₱3,000.00 as actual damages.
Thus, pursuant to prevailing jurisprudence,19 the award of ₱50,000.00 as
civil indemnity must be increased to ₱75,000.00. The award of
₱25,000.00 as exemplary damages is likewise increased to ₱30,000.00.
Anent the actual damages, we note that the CA awarded ₱3,000.00
representing the amount spent for the embalming as shown by the
receipt. However, the prosecution also presented a list of expenses such
as those spent for the coffin, etc., which were not duly covered by receipt.
"Under Article 2224 of the Civil Code, temperate damages may be
recovered, as it cannot be denied that the heirs of the victims suffered
pecuniary loss although the exact amount was not proved." 20 "The award
of ₱25,000.00 as temperate damages in x x x murder cases is proper
when no evidence of burial and funeral expenses is presented in the trial
court."21 Thus, we delete the award of ₱3,000.00 as actual damages
given by the CA. In lieu thereof, we hereby award to the heirs of the
victim the amount of ₱25,000.00 as temperate damages.
WHEREFORE, the appeal is DENIED. The November 29, 2006 Decision
of the Court of Appeals in CA-G.R. CR-HC No. 00340 which affirmed with
modifications the July 19, 2002 Decision of the Regional Trial Court of
Bislig City, Surigao del Sur, Branch 29, finding appellant Rodriguez
Lucero y Paw-as guilty beyond reasonable doubt of the crime of murder,
is AFFIRMED with MODIFICATIONS that the awards of civil indemnity is
increased to ₱75,000.00, exemplary damages is increased to
₱30,000.00; the award of ₱3,000.00 as actual damages is deleted and in
lieu thereof, appellant is ordered to pay the heirs of the victim the amount
of ₱25,000.00 as temperate damages.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
TERESITA J. LEONARDO-DE
ROBERTO A. ABAD*
CASTRO
Associate Justice
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of 13
 CA rollo, p. 42.
the Court’s Division.
14
 Id. at 70.
RENATO C. CORONA
Chief Justice 15
 TSN, September 14, 1999, pp. 7-8.

16
 People v. Elarcosa, supra note 12.

 Id. citing People v. Lacaden, G.R. No. 187682, November 25,

17

Footnotes 2009, 605 SCRA 784.

* In lieu of Associate Justice Presbitero J. Velasco, Jr., per 18

 Id.
Special Order No. 917 dated November 24, 2010.
19
 Id.
1
 CA rollo, pp. 88-96; penned by Associate Justice Edgardo A.
Carmelo and concurred in by Associate Justices Sixto C. Marella,  People v. Gidoc, G.R. No. 185162, April 24, 2009, 586 SCRA
20

Jr. and Mario V. Lopez. 825, 837.

 Id. at 17-21; penned by Acting Presiding Judge Romeo C.

2 21
 Id.
Buenaflor.

3
 Id. at 11.

4
 Id. at 19.

5
 Id.

6
 Id. at 21.

7
 Id. at 95-96.

8
 Id at 92.

9
 Id.

10
 Id. at 94.

11
 Id. at 34.

12
 G.R. No. 186539, June 29, 2010.