G.R. No.

L-11555            January 6, 1917

THE UNITED STATES, plaintiff-appellee, 

vs.
GABINO SOLIMAN, defendant-appellant. 

Francisco Sevilla for appellant. 

Attorney-General Avanceña for appellee. 

CARSON, J.:

The evidence of record conclusively discloses that the defendant and appellant in this case, Gabino
Soliman, testifying in his on behalf in the course of another criminal case in which he, with several
others, was charged with estafa, swore falsely to certain material allegations of fact. 

On that occasion he testified falsely that a sworn statement offered in evidence in support of the
charge of estafa, which was in effect an extrajudicial confession of his guilt, had not been executed
voluntarily, and that its execution had not been procured by the police by the use of force,
intimidation and prolonged torture. 

The trial judge who presided in the former case acquitted the accused on the ground that there was
room for reasonable doubt as to whether the extrajudicial confession had been made voluntarily, and
his action in this regard clearly establishes the materiality of the false testimony submitted in that
case; moreover, the materiality of the evidence is manifest without considering the judgment in the
case in which it was submitted, since, if accepted as true, this false testimony necessarily had the
effect of rendering wholly incompetent the evidence as to the extrajudicial confession which
otherwise would almost conclusively sustain and necessitate a conviction. (U. S. vs.Estraña, 16 Phil.
Rep., 520.) 

There can be no doubt that the accused was guilty of the crime of perjury as defined and penalized
in section 3 of Act No. 1697 and that the sentence of six months' imprisonment and P300 fine
imposed by the trial judge was correctly imposed under the provisions of that statute. 

It appears however that since judgment was entered in this case on November 23, 1915, section 3
of Act No. 1697 has been expressly repealed by the enactment of the Administrative Code, which
became effective on July 1, 1916, and it has been suggested that the judgment convicting and
sentencing the accused under the provisions of that statute should not be sustained, and that the
repeal of the statute should be held to have the effect of remitting and extinguishing the criminal
responsibility of the accused incurred under the provisions of the repealed law prior to the enactment
of the Administrative Code. We cannot agree with the proposition thus stated. 

In the case of United States vs. Cuna (12 Phil. Rep., 241), we held as follows: 

The rule of interpretation of English and American common law, by virtue of which the repeal
of a law prescribing penalties is held to have the effect of remitting or extinguishing any
penalty, loss of rights or responsibility incurred under such law, as to all persons who have
not been convicted and sentenced under the provisions of such law prior to the enactment of
the repealing law, is not and has not been the accepted doctrine in these Islands. 
 Where an Act of the Commission or of the Philippine Legislature which penalizes an offense,
such repeal does not have the effect of thereafter depriving the courts of jurisdiction to try,
convict and sentence offenders charged with violations of the old law prior to its repeal.

A question does arise, however, as to the penalty which should be impose upon the convict. 

If the repealing statute provides or has the effect of providing new penalties for the commission of
the acts penalized under the repealed statute, should the penalty be imposed in accordance with the
old or the new statute? 

Article 1 of the Penal Code in force in these Islands defines crimes and misdemeanors as voluntary
acts or omissions penalized by law; and complementary to this provision, article 21 provides that no
crime or misdemeanor shall be punished with a penalty which has not been prescribed by law prior
to its commission. In accordance with these provisions the question whether an act is punishable or
not depends upon the question whether or not at the time of its commission, there was a law in force
which penalized it; this rule being modified, however, by article 22 of the same code, which provides
that penal laws shall have a retroactive effect in so far as they favor persons convicted of a crime or
misdemeanor. 

The courts of Spain and the learned commentators on Spanish law have construed these provisions
to mean that such penal laws are to be given a retroactive effect only in so far as they favor the
defendant charged with a crime or a misdemeanor, and that, when a penal law is enacted repealing
a prior law, such repeal does not have the effect of relieving an offender in whole or in part of
penalties already incurred under the old law, unless the new law favors the defendant by diminishing
the penalty or doing away with it altogether, and then only to the extent to which the new law is
favorable to the offender. In other words, that the enactment of new penal laws, notwithstanding the
fact that they contain general repealing clauses, doe not deprive the courts of jurisdiction to try,
convict and sentence persons charged with violations of the old law prior to the date when the
repealing law goes into effect, unless the new law wholly fails to penalties the acts which constituted
the offense defined and penalized in the repealed law. 

Thus Pacheco, commenting upon the new Penal Code of 1848-1850, of which article 506 provided
that all general penal laws were repealed by its publication, says: 

At this time when the Penal Code is being put into effect and given force, we have in fact two
criminal laws in Spain, and close attention is necessary to apply them properly. There may
be prosecutions which it is necessary to dismiss, as, for example, those for sodomy; others
which it may be necessary to decide in conformity with the provisions of the new codes, as,
for example, those for carrying concealed weapons; and others which must be judged in
accordance with the old provisions, as, for example. many cases of robbery. The rules of
procedure in one or other manner being furnished us by the former article (article 19 of the
Penal Code of Spain identical with article 21 of the Penal Code of the Philippines), and the
present article (article 20 of the Penal Code of Spain and article 22 of the Philippine Code).
Has the code increased the penalty? Then it is not applicable to crimes committed prior to its
enactment. Has it extinguished or diminished them? Then it is clearly applicable to them. (1
Pacheco, 296.) 

And a similar construction was placed upon the provisions of the Penal Code of 1870 by the
supreme court of Spain. Article 626 of this code (which is substantially identical with article 506 of
the Penal Code of 1848 and article 611 of the Penal Code of the Philippine Islands) repealed all
general penal laws prior to its promulgation, but the court held that, where a crime was committed
prior to the publication of the reformed code, the penalty prescribed by the code of 1850 (the code
prior to that of 1870) being more favorable to the accused, that must be applied. (Decision of the
supreme court of Spain, 17th of January, 1873.) 

We conclude therefore that in any case in which a statute prescribing a penalty for the commission
of a specific offense is repealed, and in which the new statute provides new and distinct penalties for
the commission of such offense, the penalty which must be imposed on one who committed the
offense prior to the enactment of the repealing statute is that one which is more favorable to the
convict. (U. S. vs. Cuna, 12 Phil. Rep., 241.) 

It seems important, then, to determine whether the repeal of section 3 of Act No. 1697 by the
enactment of the Administrative Code had the effect of providing new and distinct penalties for the
commission of the crime of perjury, and whether the new penalties are or are not more favorable to
the convict in the case at bar than those imposed by the trial judge. 

Section 3 of Act No. 1697, which defined and penalized the crime of perjury, repealed the provisions
of the Penal Code defining and penalizing the crime of perjury, not expressly, but by implication, and
we are of opinion that the repeal of Act No. 1697 revived those provisions of the code. (U.
S. vs. Concepcion, 13 Phil. Rep., 424; U. S. vs.Estraña, 16 Phil. Rep., 520.) 

In the absence of the most express language to the contrary it will not be presumed that it was the
intention of the legislator to let false swearing as to a material matter in a court of justice go
unpunished, and such would be the effect of the repeal of section 3 of Act No. 1697, unless we held
that the repeal had the effect of reviving the old statute. 

At the common law the repeal of a repealing act revived the former act (6 Co., 199; 1 Gray, 163; 7
W. & S., 263; 2 Blackstone, 32; 54 N. J. L. J., 175); and the Supreme Court of the United States has
held that the repeal of a repealing law has this effect, unless the language of the repealing statute or
some general statute provides otherwise. (U. S. vs. Otis, 120 U. S., 52 [115].) 

Manifestly, with this rule in mind, section 12 of the Administrative Code (Act No. 2657) which is
found in Article III, [Chapter I] dealing with the form and effect of laws in general, provides that "when
a law which expressly repeals a prior law is itself repealed the law first repealed shall not be thereby
revived unless expressly so provided." From which it may fairly be inferred that the old rule continues
in force where a law which repeals a prior law, not expressly but by implication, it itself repealed; and
that in such cases the repeal of the repealing law revives the prior law, unless the language of the
repealing statute provides otherwise. 

Applying this rule, we conclude that the express repeal of section 3 of Act No. 1697 by the
enactment of the Administrative Code (Act No. 2657) revived the provisions of the Penal Code
touching perjury, which were themselves repealed, not expressly but by implication, by the
enactment of Act No. 1697. 

A comparison of the penalties prescribed in the Penal Code for the commission of the acts of which
the accused in the case at bar was convicted, giving him as we should the benefit of the provisions
of Act No. 2142, discloses that the penalty prescribed therein is less than that imposed upon the
appellant under the provisions of section 3 of Act No. 1697, and we conclude from what has been
said already that the penalty imposed by the court below should be revoked and that in lieu thereof
the penalty prescribed in the Penal Code should be imposed upon the convict. 

A question has been raised as to whether, admitting that the provisions of the Penal Code touching
perjury have been revived, the accused can be convicted and penalized thereunder, it appearing
that at the time when he testified falsely he was testifying in his own behalf in a criminal case in
which he himself was the accused, on trial for the commission of a grave offense. 

In the case of United States vs. Gutierrez (12 Phil. Rep., 529), we said, speaking through Chief
Justice Arellano, that, "Perjury committed by a party in his own cause would not be punishable under
Spanish legislation, because in said legislation no one was a witness in his own cause, and could
not therefore become guilty of giving false testimony in a civil cause in which he was either the
plaintiff or the defendant; but under the procedure in force by virtue of Act No. 190, a party to a suit
may testify in his own behalf, and if he declares falsely under oath as a witness in his own cause,
like any other witness, he incurs the penalty by which false testimony in civil matters is repressed
and punished. This court has so held, it being a settled rule, that the false testimony given by a
litigant as a witness constitutes the crime of giving false testimony inasmuch as such a declaration,
according to the new laws in force, may determine a judgment in his favor and to the prejudice of the
adverse party, and that a litigant who, in sworn testimony given by him as a witness in a civil cause,
shall pervert the truth and give false testimony, incurs as such witness the penalties imposed by
article 321 of the Penal Code." 

Analogous reasoning leads to a like conclusion as to the criminal liability for perjury of a defendant in
a criminal case testifying falsely in his own behalf. Under the provisions of General Orders No. 58 an
accused person may, if he so desires, testify under oath in his own behalf, and in that event, "if he
declares falsely as a witness in his own cause, like any other witness, he incurs the penalty by which
false testimony" in criminal matters "is repressed and punished." 

It has been suggested that such a ruling will have a tendency to expose accused persons to
vexatious criminal prosecutions by prosecuting officers, who, having failed to secure a conviction on
the original charge, may be disposed to institute criminal prosecutions for perjury from a vindictive
unwillingness to let the defendant escape scot free from the meshes of the law. It is said also that
the fear of subsequent prosecution for perjury will tend to embarrass accused persons in their efforts
to defend themselves by testifying in their own behalf. But similar objections may be advanced
against the prosecution of any of the witnesses called for the defense on charges of perjury, and it
must not be forgotten that the right of an accused person to testify under oath in his own behalf is
secured to him, not that he may be enabled to introduce false testimony into the record, but to
enable him to spread upon the record the truth as to any matter within his knowledge which will tend
to establish his innocence. 

Of course much must be left to the good sense and sound judgment of the prosecuting officer in
determining whether a prosecution for perjury should be instituted against an accused person whose
testimony in his own behalf would seem to be perjured. 

Due regard for the situation in which an accused person finds himself when testifying in his own
behalf in a criminal proceeding will restrain a prudent prosecuting officer from the filing of charges of
perjury in every case in which he may have reason to believe that the accused has not adhered
strictly to the truth, in his anxiety to shield himself from punishment. But when, as in the case at bar,
an accused person voluntarily goes upon the witness stand and falsely imputes some other person
the commission of a grave offense, it would seem to be highly proper that he should be called to
account in a criminal action for perjury upon the complaint of the person against whom such false
charges are made. 

Article 319 of the Penal Code is as follows:

Any person who shall give false testimony in favor of a defendant in a criminal case shall
suffer a penalty ranging from arresto mayor in its maximum degree to prision correccional in
 its medium degree and a fine of not less than three hundred and seventy-five and not more
than three thousand seven hundred and fiftypesetas, if the case were for a felony, and the
penalty of arresto mayor if it were for a misdemeanor.

We conclude that the judgment of conviction entered in the court below should be affirmed but that
the sentence imposed therein should be reversed, and that giving the accused the benefit of the
provisions of Act No. 2142, a penalty of 4 months and 1 day of arresto mayor and a fine of P75 with
subsidiary imprisonment as prescribed by law should be imposed upon him in lieu of that imposed
by the trial judge, with the costs of this instance de officio. So ordered. 
G.R. No. 128096 January 20, 1999

PANFILO M. LACSON, petitioner,

vs.

THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL

PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP,
IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent.

ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.:

The constitutionality of Sections 4 and 7 of Republic Act No. 8249 — an act which further defines the
jurisdiction of the Sandiganbayan — is being challenged in this petition for prohibition
and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and
Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of
Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of
jurisdiction.

The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are
as follows:

In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong
Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank
robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements of
the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent
Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers
from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent
Francisco Zubia, Jr.; Presidential Anti-Crime Commission — Task Force Habagat (PACC-TFH)
headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command
(CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command
(CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.

Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually
transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out
between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto
formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido
Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP
officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said incident
was a legitimate police operation. 1

However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the
Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six
(26) respondents, including herein petitioner and intervenors. The recommendation was approved by
the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in
eleven (11) information for murder  before the Sandiganbayan's Second Division, while intervenors
2

Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as
accessories after-in-the-fact.

Upon motion by all the accused in the 11 information,  the Sandiganbayan allowed them to file a
3

motion for reconsideration of the Ombudsman's action. 4

After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended
informations before the Sandiganbayan, wherein petitioner was charged only as an accessory,
5

together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused  was dropped
6

from the case.

On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction
of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No.
7975.  They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where
7

one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher,
or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest
ranking principal accused in the amended informations has the rank of only a Chief Inspector, and
none has the equivalent of at least SG 27.

Thereafter, in a Resolution   dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice
8

Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena
dissenting,  the Sandiganbayan admitted the amended information and ordered the cases
9

transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction
under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher.

On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the
cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the
accused.

While these motions for reconsideration were pending resolution, and even before the issue of
jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No.
2299  and No. 1094  (sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M.
10 11

Gonzales II, respectively), as well as Senate Bill No. 844  (sponsored by Senator Neptali Gonzales),
12

were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically,
the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the
word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No.
7975.

These bills were consolidated and later approved into law as R.A. No. 8249  by the President of the
13

Philippines on February 5, 1997.

Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution  denying the motion
14

for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8,
1996."

On the same day  the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the
15

pertinent portion of which reads:

 After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but
before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the
legislature enacted Republic Act 8249 and the President of the Philippines approved
it on February 5, 1997. Considering the pertinent provisions of the new law, Justices
Lagman and Demetriou are now in favor of granting, as they are now granting, the
Special Prosecutor's motion for reconsideration. Justice de Leon has already done
so in his concurring and dissenting opinion.

x x x           x x x          x x x

Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson,
and that trial has not yet begun in all these cases — in fact, no order of arrest has
been issued — this court has competence to take cognizance of these cases.

To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the
court admitted the Amended Informations in these cases by the unanimous vote of 4
with 1 neither concurring not dissenting, retained jurisdiction to try and decide the
cases  (Empahasis supplied) 
16

Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7
thereof which provides that the said law "shall apply to all cases pending in any court over which trial
has not begun as to the approval hereof." Petitioner argues that:

a) The questioned provisions of the statute were introduced by the authors thereof in
bad faith as it was made to precisely suit the situation in which petitioner's cases
were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating
his right to procedural due process and the equal protection clause of the
Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9)
months the resolution of a pending incident involving the transfer of the cases to the
Regional Trial Court, the passage of the law may have been timed to overtake such
resolution to render the issue therein moot, and frustrate the exercise of petitioner's
vested rights under the old Sandiganbayan law (RA 7975)

b) Retroactive application of the law is plan from the fact that it was again made to
suit the peculiar circumstances in which petitioner's cases were under, namely, that
the trial had not yet commenced, as provided in Section 7, to make certain that those
cases will no longer be remanded to the Quezon City Regional Trial Court, as the
Sandiganbayan alone should try them, thus making it an ex post factolegislation and
a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-23057
to procedural due process.

c) The title of the law is misleading in that it contains the aforesaid "innocuous"
provisions in Sections 4 and 7 which actually expands rather than defines the old
Sandiganbayan law (RA 7975), thereby violating the one-title one-subject
requirement for the passage of statutes under Section 26 (1), Article VI of the
Constitution.17

For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249
innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the
introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation
and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng
case pending before the Sandiganbayan.  They further argued that if their case is tried before the
18

Sandiganbayan their right to procedural due process would be violated as they could no longer avail
of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before
recourse to the Supreme Court.

Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of
the constitutionality of the challenged provisions of the law in question and praying that both the
petition and the petition-in-intervention be dismissed.

This Court then issued a Resolution  requiring the parties to file simultaneously within a
19

nonextendible period of ten (10) days from notice thereof additional memoranda on the question of
whether the subject amended informations filed a Criminal Case Nos. 23047-23057 sufficiently
allege the commission by the accused therein of the crime charged within the meaning Section
4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of
the Sandiganbayan.

The parties, except for the Solicitor General who is representing the People of the Philippines, filed
the required supplemental memorandum within the nonextendible reglementary period.

The established rule is that every law has in its favor the presumption of constitutionality, and to
justify its nullification there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one.   The burden of proving the invalidity of the law lies with those who
20

challenge it. That burden, we regret to say, was not convincingly discharged in the present case.

The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution,
which provides:

Sec. 5. The Batasang Pambansa shall create a special court, to be known as

Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving
graft and corrupt practices and such other offenses committed by public officers and
employees including those in government-owned or controlled corporations, in
relation to their office as may be determined by law.

The said special court is retained in the new (1987) Constitution under the following provisions in
Article XI, Section 4:

Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.

Pursuant to the constitutional mandate, Presidential Decree No. 1486  created the Sandiganbayan.
21

Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No.
1606,  Section 20 of Batas Pambansa Blg. 123,  P.D. No. 1860,  P.D. No. 1861,  R.A. No.
22 23 24 25

7975,   and R.A. No. 8249.  Under the latest amendments introduced by Section 4 of R.A. No. 8249,
26 27

the Sandiganbayan has jurisdiction over the following cases:

Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:

Sec. 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original

jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Titile VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade "27" and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the

sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang

panlungsod, city treasurers, assessors, engineers, and other city
department heads;

(c) Officials of the diplomatic service occupying the position of consul

and higher;

(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;

(e) Officers of the Philippines National Police while occupying the

position of provincial director and those holding the rank of senior
superintendent or higher.

(f) City of provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees or managers of government-

owned or controlled corporations, state universities or educational
institutions or foundations;

(2) Members of Congress or officials thereof classified as-Grade "27" and up under
the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairman and members of the Constitutional Commissions, without prejudice to

the provisions of the Constitution;

(5) All other national and local officials classified as Grade "27" or higher under the
Compensation and Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes

committed by the public officials and employees mentioned in Subsection a of this
section in relation to their office.
 c. Civil and criminal cases filed pursuant to and connection with Executive Orders
Nos. 1,2, 14 and 14-A, issued in 1986.

In cases where none of the accused are occupying positions corresponding to salary
Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and
PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested
in the proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their jurisdictions as
privided in Batas Pambansa Blg. 129, as amended.

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final

judgments, resolutions or orders of regional trial courts whether in the exercise of
their own original jurisdiction or of their appellate jurisdiction as herein provided.

The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions,
and other ancillary writs and processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo warranto, arising or that may arise in cases
filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the
Supreme Court.

The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing
rules that the Supreme Court has promulgated and may hereafter promulgate,
relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals
and petitions for review filed with the Sandiganbayan. In all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the
Ombudsman, through its special prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A,
issued in 1986.

In case private individuals are charged as co-principals, accomplices or accessories

with the public officers or employee, including those employed in government-owned
or controlled corporations, they shall be tried jointly with said public officers and
employees in the proper courts which shall exercise exclusive jurisdiction over them.

xxx xxx xxx (Emphasis supplied)

Sec. 7 of R.A. No. 8249 states:

Sec. 7. Transitory provision — This act shall apply to all cases pending in any court
over which trial has not begun as of the approval hereof. (Emphasis supplied)

The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:

Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is
hereby further amended to read as follows:

Sec 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original

jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the pricipal
accused are afficials occupying the following positions in the government, whether in
a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade "27" and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the

sangguniang panlalawigan, and provincial treasurers, assessors,
engineer, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang

panlungsod, city treasurers, assessors, engineers, and other city
department heads;

(c) Officials of the diplomatic service occupying the position of consul

and higher;

(d) Philippine Army and air force colonels, naval captains, and all
officers of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;

(g) Presidents, directors or trustees, or managers of government-

owned or controlled corporations, state universities or educational
institutions or foundations;

(2) Members of Congress or officials thereof classified as Grade "27" and up under
the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairman and members of the Constitutional Commissions, without prejudice to

the provisions of the Constitution;

(5) All other national and local officials classified as Grade "27" or higher under the
Compensation and Position Classification Act of 1989.

b. Other offenses or felonies committed by the public officials and employees

mentioned in Subsection a of this section in relation to their office.

c. Civil and criminal cases files pursuant to and in connection with Executive Order
Nos. 1, 2, 14, and 4-A.
 In cases where none of the principal accused are occupying positions corresponding
to salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP
officers occupying the rank of superintendent or higher, or their equivalent, exclusive
jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129.

The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from

the final judgment, resolutions or orders of regular court where all the accused are
occupying positions lower than grade "27," or not otherwise covered by the
preceding enumeration.

x x x           x x x          x x x

In case private individuals are charged as co-principals, accomplices or accessories

with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees in the proper courts which shall have exclusive jurisdiction over them.

xxx xxx xxx (Emphasis supplied)

Sec. 7 of R.A. No. 7975 reads:

Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun
in the Sandiganbayan shall be referred to the proper courts.

Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused"
appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to
this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of
the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial
Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the
principal accused under the amended information has the rank of Superintendent  or higher. On the
28

other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to
represent the People before the Supreme Court except in certain cases,  contends that the
29

Sandiganbayan has jurisdiction pursuant to R.A. 8249.

A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original
jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is
a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379
(the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code
(the law on bribery),  (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration
30

cases),  or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the
31

offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee holding
32

any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in
relation to the office.

Considering that herein petitioner and intervenors are being charged with murder which is a felony
punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is
not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other
offenses or felonies whether simple or complexed with other crimes committed by the public officials
and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The
phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was
committed in relation to the accused's officials functions. Thus, under said paragraph b, what
determines the Sandiganbayan's jurisdiction is the official position or rank of the offender — that is,
whether he is one of those public officers or employees enumerated in paragraph a of Section 4.
The offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to
the criminal participation of the accused public officer as to whether he is charged as a principal,
accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original
provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a
requisite to determine the jurisdiction of the Sandiganbayan.

Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal
protection of the law  because its enactment was particularly directed only to the Kuratong Baleleng
33

cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and
convincing argument were presented to warrant a declaration of an act of the entire Congress and
signed into law by the highest officer of the co-equal executive department as unconstitutional. Every
classification made by law is presumed reasonable. Thus, the party who challenges the law must
present proof of arbitrariness.34

It is an established precept in constitutional law that the guaranty of the equal protection of the laws
is not violated by a legislation based on reasonable classification. The classification is reasonable
and not arbitrary when there is concurrence of four elements, namely:

(1) it must rest on substantial distinction;

(2) it must be germane to the purpose of the law;

(3) must not be limited to existing conditions only, and

(4) must apply equaly to all members of the same class, 35

all of which are present in this case.

The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality
and reasonables of the questioned provisions. The classification between those pending cases
involving the concerned public officials whose trial has not yet commence and whose cases could
have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as
against those cases where trial had already started as of the approval of the law, rests on substantial
distinction that makes real differences.  In the first instance, evidence against them were not yet
36

presented, whereas in the latter the parties had already submitted their respective proofs, examined
witnesses and presented documents. Since it is within the power of Congress to define the
jurisdiction of courts subject to the constitutional limitations,  it can be reasonably anticipated that an
37

alteration of that jurisdiction would necessarily affect pending cases, which is why it has to privide for
a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that
Sections 4 and 7 placed them under a different category from those similarly situated as them.
Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public
officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary
to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong
Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan
but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by
the law. Moreover, those cases where trial had already begun are not affected by the transitory
provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived
as bad faith on the part of a Senator and two Justices of the Sandiganbaya  for their participation in
38

the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong
sentiments against those officials involved in the Kuratong Baleleng cases during the hearings
conducted on the matter by the committee headed by the Senator. Petitioner further contends that
the legislature is biased against him as he claims to have been selected from among the 67 million
other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D.
1606, as amended, and of the transitory provision of R.A. 8249.  R.A 8249, while still a bill, was
39

acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was
separately approved by the Senate and House of Representatives and, finally, by the President of
the Philippines.

On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the
committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid
law. Their presence and participation in the legislative hearings was deemed necessary by Congress
since the matter before the committee involves the graft court of which one is the head of the
Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is
particularly empowered by the Constitution to invite persons to appear before it whenever it decides
to conduct inquiries in aid of legislation.
40

Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the
Kuratong Baleleng cases constitutes an ex post facto law  for they are deprived of their right to
41

procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly
acquired under R.A. 7975.

Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v.
Bull,  an ex post factolaw is one —
42

(a) which makes an act done criminal before the passing of the law
and which was innocent when committed, and punishes such action;
or

(b) which aggravates a crime or makes it greater than when it was

committed; or

(c) which changes the punishment and inflicts a greater punishment

than the law annexed to the crime when it was committed.

(d) which alters the legal rules of evidence and recieves less or
different testimony that the law required at the time of the commission
of the offense on order to convict the defendant. 43

(e) Every law which, in relation to the offense or its consequences,

alters the situation of a person to his disadvantage. 44

This Court added two more to the list, namely:

(f) that which assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done
was lawful;
 (g) deprives a person accussed of crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of a amnesty. 45

Ex post facto law, generally, prohibits retrospectivity of penal laws.  R.A. 8249 is not penal law. It is
46

a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the
Legislature which prohibit certain acts and establish penalties for their violations;  or those that
47

define crimes, treat of their nature, and provide dor their punishment.  R.A 7975, which amended
48

P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one
which prescribes rules of procedure by which courts applying laws of all kinds can properly
administer justice.  Not being a penal law, the retroactive application of R.A. 8249 cannot be
49

challenged as unconstitutional.

Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired
under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention
has already been rejected by the court several times  considering that the right to appeal is not a
50

natural right but statutory in nature that can be regulated by law. The mode of procedure provided for
in the statutory right of appeal is not included in the prohibition against ex post facto laws.  R.A.
51

8249 pertains only to matters of procedure, and being merely an amendatory statute it does not
partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not
come within the prohibition.  Moreover, the law did not alter the rules of evidence or the mode of
52

trial.  It has been ruled that adjective statutes may be made applicable to actions pending and
53

unresolved at the time of their passage. 54

In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review
questions of law.  On the removal of the intermediate review of facts, the Supreme Court still has the
55

power of review to determine if he presumption of innocence has been convincing overcome. 56

Another point. The challenged law does not violate the one-title-one-subject provision of the
Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the
Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion
in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be
expressly stated in the title of the law because such is the necessary consequence of the
amendments. The requirement that every bill must only have one subject expressed in the title is 57

satisfied if the title is comprehensive enough, as in this case, to include subjects related to the
general purpose which the statute seeks to achieve.  Such rule is liberally interpreted and should be
58

given a practical rather than a technical construction. There is here sufficient compliance with such
requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of
the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law
are germane to that general subject.  The Congress, in employing the word "define" in the title of the
59

law, acted within its power since Section 2, Article VIII of the Constitution itself empowers the
legislative body to "define, prescribe, and apportion the jurisdiction of various courts.60

There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and
the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall
now determine whether under the allegations in the Informations, it is the Sandiganbayan or
Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner
and entervenors.

The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition
must appear in the complaint or information so as to ascertain which court has jurisdiction over a
case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the
complaint or informations,  and not by the evidence presented by the parties at the trial.
61 62

As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4
[paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the
offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it.  This
63

jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which
mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the
public officers and employees, including those in goverment-owned or controlled corporations, "in
relation to their office as may be determined by law." This constitutional mandate was reiterated in
the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall
continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

The remaining question to be resolved then is whether the offense of multiple murder was committed
in relation to the office of the accussed PNP officers.

In People vs. Montejo,  we held that an offense is said to have been committed in relation to the
64

office if it (the offense) is "intimately connected" with the office of the offender and perpetrated while
he was in the performance of his official functions.  This intimate relation between the offense
65

charged and the discharge of official duties "must be alleged in the informations." 66

As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised
Rules of Court mandates:

Sec. 9 Couse of accusation — The acts or omissions complied of as constituting the

offense must be stated in ordinary and concise language without repetition not
necessarily in the terms of the statute defining the offense, but in such from as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment.
(Emphasis supplied)

As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of
the facts." The real nature of the criminal charge is determined not from the caption or preamble of
67

the informations nor from the specification of the provision of law alleged to have been violated, they
being conclusions of law, but by the actual recital of facts in the complaint or information. 68

The noble object or written accusations cannot be overemphasized. This was explained in U.S. v.
Karelsen: 69

The object of this written accusations was — First; To furnish the accused with such
a descretion of the charge against him as will enable him to make his defense and
second to avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause and third, to inform the court of the facts alleged so
that it may decide whether they are sufficient in law to support a conviction if one
should be had. In order that the requirement may be satisfied, facts must be
stated, not conclusions of law. Every crime is made up of certain acts and
intent these must be set forth in the complaint with reasonable
particularly of time, place, names (plaintiff and defendant) and circumstances. In
short, the complaint must contain a specific allegation of every
fact and circumstance necessary to constitute the crime charged. (Emphasis
supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is
presumed to have no indefendent knowledge of the facts that constitute the offense." 70

Applying these legal principles and doctrines to the present case, we find the amended informations
for murder against herein petitioner and intervenors wanting of specific factual averments to show
the intimate relation/connection between the offense charged and the discharge of official function of
the offenders.

In the present case, one of the eleven (11) amended informations  for murder reads:
71

AMENDED INFORMATIONS

The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby
accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2
VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C.
CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO,
CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT.
PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT.
ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L.
MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S.
BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2
ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize under
Article 248 of the Revised Penal Code committed as follows

That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines
and within the jurisdiction of his Honorable Court, the accused CHIEF INSP.
MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP.
JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE
ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS,
SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage
of their public and official positions as officers and members of the Philippine
National Police and committing the acts herein alleged in relation to their public
office, conspiring with intent to kill and using firearms with treachery evident
premeditation and taking advantage of their superior strenghts did then and there
willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the
latter mortal wounds which caused his instantaneous death to the damage and
prejudice of the heirs of the said victim.

That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP,
CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM
JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF
INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP.
ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3
CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in
relation to office as officers and members of the Philippine National Police are
charged herein as accessories after-the-fact for concealing the crime herein above
alleged by among others falsely representing that there where no arrest made during
 the read conducted by the accused herein at Superville Subdivision, Paranaque,
Metro Manila on or about the early dawn of May 18, 1995.

CONTRARY LAW.

While the above-quoted information states that the above-named principal accused committed the
crime of murder "in relation to thier public office, there is, however, no specific allegation of facts that
the shooting of the victim by the said principal accused was intimately related to the discharge of
their official duties as police officers. Likewise, the amended information does not indicate that the
said accused arrested and investigated the victim and then killed the latter while in their custody.

Even the allegations concerning the criminal participation of herein petitioner and intevenors as
among the accessories after-the-facts, the amended information is vague on this. It is alleged therein
that the said accessories concelead "the crime herein-above alleged by, among others, falsely
representing that there were no arrests made during the raid conducted by the accused herein at
Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The
sudden mention of the "arrests made during the raid conducted by the accused" surprises the
reader. There is no indication in the amended information that the victim was one of those arrested
by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville
Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of
the amended information, the shooting of the victim by the principal accused occurred in Mariano
Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far
away from each other is puzzling. Again, while there is the allegation in the amended information
that the said accessories committed the offense "in relation to office as officers and members of the
(PNP)," we, however, do not see the intimate connection between the offense charged and the
accused's official functions, which, as earlier discussed, is an essential element in determining the
jurisdiction of the Sandiganbayan.

The stringent requirement that the charge be set forth with such particularly as will reasonably
indicate the exact offense which the accused is alleged to have committed in relation to his office
was, sad to say, not satisfied. We believe that the mere allegation in the amended information that
the offense was committed by the accused public officer in relation to his office is not sufficient. That
phrase is merely a conclusion between of law, not a factual avernment that would show the close
intimacy between the offense charged and the discharge of the accused's official duties.

In People vs. Magallanes,   where the jurisdiction between the Regional Trial Court and the
72

Sandiganbayan was at issue, we ruled:

It is an elementary rule that jurisdiction is determined by the allegations in the

complaint or information and not by the result of evidence after trial.

In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged

Leroy S. Brown City Mayor of Basilan City, as such, has organized

groups of police patrol and civilian commandoes consisting of regular
policeman and . . . special policemen appointed and provided by him
with pistols and higher power guns and then established a camp . . .
at Tipo-tipo which is under his command . . . supervision and control
where his co-defendants were stationed entertained criminal
complaints and conducted the corresponding investigations as well
as assumed the authority to arrest and detain person without due
process of law and without bringing them to the proper court, and that
 in line with this set-up established by said Mayor of Basilan City as
such, and acting upon his orders his co-defendants arrested and
maltreated Awalin Tebag who denied in consequence thereof.

we held that the offense charged was committed in relation to the office of the
accused because it was perpetreated while they were in the performance, though
improper or irregular of their official functions and would not have been committed
had they not held their office, besides, the accused had no personal motive in
committing the crime thus, there was an intimate connection between the offense
and the office of the accused.

Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the
court below do not indicate that the accused arrested and investigated the victims
and then killed the latter in the course of the investigation. The informations merely
allege that the accused for the purpose of extracting or extortin the sum of
P353,000.00 abducted, kidnapped and detained the two victims, and failing in their
common purpose they shot; and killed the said victims. For the purpose of
determining jurisdiction, it is these allegations that shall control, and not the evidence
presented by the prosecution at the trial.

In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to
public office "does not appear in the information, which only signifies that the said phrase is not what
determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual
allegations in the information that would indicate the close intimacy between the discharge of the
accused's official duties and the commission of the offense charged, in order to qualify the crime as
having been committed in relation to public office.

Consequently, for failure to show in the amended informations that the charge of murder was
intimately connected with the discharge of official functions of the accused PNP officers, the offense
charged in the subject criminal cases is plain murder and, therefore, within the exclusive original
jurisdiction of the Regional Trial Court,  not the Sandiganbayan.
73

WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The
Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The
Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple
murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the
said cases.1âwphi1.nêt

SO ORDERED.
G.R. No. 176169             November 14, 2008

ROSARIO NASI-VILLAR, petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.:

This is a Petition for Review1 under Rule 45 of the Rules of Court filed by petitioner Rosario Nasi-Villar
assailing the Decision2 dated 27 June 2005 and Resolution3 dated 28 November 2006 of the Court of
Appeals. This case originated from an Information4 for Illegal Recruitment as defined under Sections 6
and 7 of Republic Act (R.A.)

No. 80425 filed by the Office of the Provincial Prosecutor of Davao del Sur on 5 October 1998 for acts
committed by petitioner and one Dolores Placa in or about January 1993. The Information reads:

That on [sic] or about the month of [January 1993], in the Municipality of Sta. Cruz, Province of
Davao del Sur, Philippines and within the jurisdiction of the Honorable Court, the aforenamed
accused, conspiring together, confederating with and mutually helping one another through
fraudulent representation and deceitful machination, did then and there [willfully], unlawfully and
feloniously recruit Nila Panilag for employment abroad[,] demand and receive the amount
of P6,500.00 Philippine Currency [sic] as placement fee[,] the said accused being a non-licensee
or non-holder of authority to engage in the recruitment of workers abroad to the damage and
prejudice of the herein offended party.

CONTRARY TO LAW.6

On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br. 18, Digos City, Davao del Sur found
the evidence presented by the prosecution to be more credible than that presented by the defense and
thus held petitioner liable for the offense of illegal recruitment under the Labor Code, as amended.7 The
dispositive portion of the decision reads:

WHEREFORE, premises considered, the Court hereby finds accused ROSARIO NASI-VILLAR
GUILTY BEYOND REASONABLE DOUBT of Illegal Recruitment and, in accordance with the
penalty set forth under the Labor Code, as amended, said accused is hereby sentenced to an
indeterminate penalty ranging from FOUR YEARS as minimum to FIVE YEARS as maximum.

On the civil aspect of the case, there being no substantial proof presented to justify a grant of civil
damages, this Court makes no pronouncement thereon.

With respect to accused Ma. Dolores Placa, who is still at large, the records of this case are
hereby sent to the archives to be retrieved in the event that said accused would be apprehended.
Issue an alias warrant of arrest for the apprehension of said accused.

SO ORDERED.8

Petitioner appealed to the Court of Appeals raising as sole issue the alleged error by the trial court in
finding her guilty of illegal recruitment on the basis of the trial court's appreciation of the evidence
presented by the prosecution.
The Court of Appeals, in its Decision dated 27 June 2005,9 following the principle that an appeal in a
criminal case throws the whole case wide open for review, noted that the criminal acts alleged to have
been committed happened sometime in 1993. However, R.A. No. 8042, under which petitioner was
charged, was approved only on 7 June 1995 and took effect on 15 July 1995. Thus, the Court of Appeals
declared that petitioner should have been charged under the Labor Code, in particular Art. 13(b) thereof,
and not under R.A. No. 8042. Accordingly, it made its findings on the basis of the provisions of the Labor
Code and found petitioner liable under Art. 38, in relation to Art. 13(b), and Art. 39 of the Labor Code. The
appellate court affirmed with modification the decision of the RTC, decreeing in the dispositive portion,
thus:

WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court,
11th Judicial Region, Br. 18, City of Digos, Province of Davao del Sur, finding Rosario Nasi-Villar
guilty beyond reasonable doubt o the crime of Illegal Recruitment
is AFFIRMED with MODIFICATION in that Rosario Nasi-Villar is ORDERED to pay Nila Panilag
the sum of P10,000.00 as temperate damages.

SO ORDERED.10

On 28 November 2006, the appellate court denied petitioner's motion for reconsideration.11

Hence, petitioner filed the instant petition for review.

Petitioner alleges that the Court of Appeals erred in failing to consider that R.A. No. 8042 cannot be given
retroactive effect and that the decision of the RTC constitutes a violation of the constitutional prohibition
against ex post facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the crime was
allegedly committed, petitioner argues that law cannot be used as the basis of filing a criminal action for
illegal recruitment. What was applicable in 1993 is the Labor Code, where under Art. 38, in relation to Art.
39, the violation of the Code is penalized with imprisonment of not less than four (4) years nor more than
eight (8) years or a fine of not less than P20,000.00 and not more than P100,000.00 or both. On the other
hand, Sec. 7(c) of R.A. No. 8042 penalizes illegal recruitment with a penalty of imprisonment of not less
than six (6) years and one (1) day but not more than twelve (12) years and a fine not less
than P200,000.00 nor more than P500,000.00. Thus, the penalty of imprisonment provided in the Labor
Code was raised or increased by R.A. No. 8042. Petitioner concludes that the charge and conviction of an
offense carrying a penalty higher than that provided by the law at the time of its commission constitutes a
violation of the prohibition against ex post facto law and the retroactive application of R.A. No. 8042.

In its Comment12 dated 7 September 2007, the Office of the Solicitor General (OSG) argues that the Court
of Appeals' conviction of petitioner under the Labor Code is correct. While conceding that there was an
erroneous designation of the law violated by petitioner, the OSG stresses that the designation of the
offense in the Information is not determinative of the nature and character of the crime charged against
her but the acts alleged in the Information. The allegations in the Information clearly charge petitioner with
illegal recruitment as defined in Art. 38, in relation to Art. 13(b) of the Labor Code, and penalized under
Art. 39(c) of the same Code. The evidence on record substantiates the charge to a moral certainty. Thus,
while there was an erroneous specification of the law violated by petitioner in the Information, the CA was
correct in affirming the RTC's imposition of the penalty for simple illegal recruitment under the Labor
Code, the OSG concludes.

The petition is denied. We find no reversible error in the decision arrived at by the Court of Appeals.

In Gabriel v. Court of Appeals,13 we held that the real nature of the crime charged is determined, not from
the caption or preamble of the information nor from the specification of the law alleged to have been
violated–these being conclusions of law–but by the actual recital of facts in the complaint or information.
What controls is not the designation but the description of the offense charged. From a legal point of view,
and in a very real sense, it is of no concern to the accused what the technical name of the crime of which
he stands charged is. If the accused performed the acts alleged in the body of the information, in the
manner stated, then he ought to be punished and punished adequately, whatever may be the name of the
crime which those acts constitute.14

In the case at bar, the prosecution established beyond reasonable doubt that petitioner had performed the
acts constituting the offense defined in Art. 38, in relation to Art. 13(b) and punished by Art. 39 of the
Labor Code, as alleged in the body of the Information. To prove illegal recruitment, two elements must be
shown, namely: (1) the person charged with the crime must have undertaken recruitment activities, or any
of the activities enumerated in Article 34 of the Labor Code, as amended; and (2) said person does not
have a license or authority to do so.15 Art. 13(b) defines "recruitment and placement" as "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, is considered engaged in recruitment and placement." The trial court found these
two elements had been proven in the case at bar. Petitioner has not offered any argument or proof that
countervails such findings.

The basic rule is that a criminal act is punishable under the law in force at the time of its commission.
Thus, petitioner can only be charged and found guilty under the Labor Code which was in force in 1993
when the acts attributed to her were committed. Petitioner was charged in 1998 under an Information that
erroneously designated the offense as covered by R.A. No. 8042, but alleged in its body acts which are
punishable under the Labor Code. As it was proven that petitioner had committed the acts she was
charged with, she was properly convicted under the Labor Code, and not under R.A. No. 8042.

There is no violation of the prohibition against ex post facto  law nor a retroactive application of R.A. No.
8042, as alleged by petitioner. An ex post facto law is one which, among others, aggravates a crime or
makes it greater than it was when committed or changes the punishment and inflicts a greater
punishment than the law annexed to the crime when committed.16 Penal laws and laws which, while not
penal in nature, nonetheless have provisions defining offenses and prescribing penalties for their violation
operate prospectively. Penal laws cannot be given retroactive effect, except when they are favorable to
the accused.17

R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a new definition of the crime of
illegal recruitment and provided for its higher penalty. There is no indication in R.A. No. 8042 that said
law, including the penalties provided therein, would take effect retroactively. A law can never be
considered ex post facto as long as it operates prospectively since its strictures would cover only offenses
committed after and not before its enactment.18 Neither did the trial court nor the appellate court give R.A.
No. 8042 a retroactive application since both courts passed upon petitioner's case only under the aegis of
the Labor Code. The proceedings before the trial court and the appellate court did not violate the
prohibition against ex post facto  law nor involved a retroactive application of R.A. No. 8042 in any way.

WHEREFORE, the petition is DENIED. The assailed Decision dated 27 June 2005 and Resolution dated
28 November 2006 of the Court of Appeals are AFFIRMED.

SO ORDERED.
G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner, 
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the
respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of
Quezon City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg.
22, in Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent
appellate Court under CA-G.R. CR No. 04889.

The antecedent facts and circumstances of the four (4) counts of the offense charged, have been
clearly illustrated, in the Comment of the Office of the Solicitor General as official counsel for the
public respondent, thus:

Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not
have complete equipment that could make his venture workable. He also had another problem, and
that while he was going into this entrepreneurship, he lacked funds with which to purchase the
necessary equipment to make such business operational. Thus, petitioner, representing Ultra
Sources International Corporation, approached Corazon Teng, (private complainant) Vice President
of Mancor Industries (hereinafter referred to as Mancor) for his needed car repair service equipment
of which Mancor was a distributor, (Rollo, pp. 40-41)

Having been approached by petitioner on his predicament, who fully bared that he had no sufficient
funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and
Management Corporation (LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS Finance could
accommodate petitioner and provide him credit facilities. (Ibid., P. 41)

The arrangement went through on condition that petitioner has to put up a warranty deposit
equivalent to thirty per centum (30%) of the total value of the pieces of equipment to be purchased,
amounting to P29,790.00. Since petitioner could not come up with such amount, he requested Joey
Gomez on a personal level to look for a third party who could lend him the equivalent amount of the
warranty deposit, however, unknown to petitioner, it was Corazon Teng who advanced the deposit in
question, on condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)

The specific provision in the Leasing Agreement, reads:

1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment,

the Lessee shall deposit with the Lessor such sum or sums specified in Schedule A
to serve as security for the faithful performance of its obligations.

This deposit shall be refunded to the Lessee upon the satisfactory completion of the
entire period of Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p.
17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS
Finance would lease the garage equipments and petitioner would pay the corresponding rent with
the option to buy the same. After the documentation was completed, the equipment were delivered
to petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the
petitioner, delivered the same to Corazon Teng. When the check matured, Petitioner requested
through Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific
Bank.

To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2)
checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were the
subject of the four counts of the aforestated charges subject of the petition, were held momentarily
by Corazon Teng, on the request of Magno as they were not covered with sufficient funds. These
checks were a) Piso Bank Check Nos. 006858, dated August 15, 1983, 006859 dated August 28,
1983 and 006860 dated September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated
September 28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).

Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that petitioner became aware that Corazon Teng was the
one who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and
promised to pay the latter but the payment never came and when the four (4) checks were deposited
they were returned for the reason "account closed." (Ibid., p. 43)

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner
was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:

. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of

violations of B.P. Blg. 22 and sentencing the accused to imprisonment for one year in
each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant
the respective amounts reflected in subject checks. (Ibid., pp. 25, 27)

Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is
intrigued about the outcome of the checks subject of the cases which were intended by the parties,
the petitioner on the one hand and the private complainant on the other, to cover the "warranty
deposit" equivalent to the 30% requirement of the financing company. Corazon Teng is one of the
officers of Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the
high financing scheme undertaken by the petitioner as lessee of the repair service equipment, which
was arranged at the instance of Mrs. Teng from the very beginning of the transaction.

By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the
"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out"
made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It
would have been different if petitioner opted to purchase the pieces of equipment on or about the
termination of the lease-purchase agreement in which case he had to pay the additional amount of
the warranty deposit which should have formed part of the purchase price. As the transaction did not
ripen into a purchase, but remained a lease with rentals being paid for the loaned equipment, which
were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is lawful and just that the warranty deposit should
not be charged against the petitioner.

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was
not his own account, it having remained with LS Finance, is to even make him pay an unjust "debt",
to say the least, since petitioner did not receive the amount in question. All the while, said amount
was in the safekeeping of the financing company, which is managed, supervised and operated by
the corporation officials and employees of LS Finance. Petitioner did not even know that the checks
he issued were turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his
knowledge on her instruction. This fact alone evoke suspicion that the transaction is irregular and
immoral per se, hence, she specifically requested Gomez not to divulge the source of the "warranty
deposit".

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the
"warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry
and doubtful legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the
equipment in the name of her corporation, Mancor, would be able to "sell or lease" its goods as in
this case, and at the same time, privately financing those who desperately need petty
accommodations as this one. This modus operandi has in so many instances victimized
unsuspecting businessmen, who likewise need protection from the law, by availing of the deceptively
called "warranty deposit" not realizing that they also fall prey to leasing equipment under the guise of
a lease-purchase agreement when it is a scheme designed to skim off business clients.

This maneuvering has serious implications especially with respect to the threat of the penal sanction
of the law in issue, as in this case. And, with a willing court system to apply the full harshness of the
special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.

This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund
of said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue
that after the termination of the lease agreement, the warranty deposit should be refundable in full to
Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal
use, is to stretch the nicety of the alleged law (B.P. No, 22) violated.

For all intents and purposes, the law was devised to safeguard the interest of the banking system
and the legitimate public checking account user. It did not intend to shelter or favor nor encourage
users of the system to enrich themselves through manipulations and circumvention of the noble
purpose and objective of the law. Least should it be used also as a means of jeopardizing honest-to-
goodness transactions with some color of "get-rich" scheme to the prejudice of well-meaning
businessmen who are the pillars of society.

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function
of punishment is the protective (sic) of society against actual and potential wrongdoers." It is not
clear whether petitioner could be considered as having actually committed the wrong sought to be
punished in the offense charged, but on the other hand, it can be safely said that the actuations of
Mrs. Carolina Teng amount to that of potential wrongdoers whose operations should also be clipped
at some point in time in order that the unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)

Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. . . . That which we call punishment is only an external
means of emphasizing moral disapprobation the method of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice
Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).

Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused,
the objective of retribution of a wronged society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for
value" as this was absent, and therefore petitioner should not be punished for mere issuance of the
checks in question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer",
whose operation could be a menace to society, should not be glorified by convicting the petitioner.

While in case of doubt, the case should have been resolved in favor of the accused, however, by the
open admission of the appellate court below, oven when the ultimate beneficiary of the "warranty
deposit" is of doubtful certainty, the accused was convicted, as shown below:

Nor do We see any merit in appellant's claim that the obligation of the accused to
complainant had been extinguished by the termination of the leasing agreement —
by the terms of which the warranty deposit advanced by complainant was refundable
to the accused as lessee — and that as the lessor L.S. Finance neither made any
liquidation of said amount nor returned the same to the accused, it may he assumed
that the amount was already returned to the complainant. For these allegations, even
if true, do not change the fact, admitted by appellant and established by the
evidence, that the four checks were originally issued on account or for value. And as
We have already observed, in order that there may be a conviction under the from
paragraph of Section 2 of B.P. Blg 22 — with respect to the element of said offense
that the check should have been made and issued on account or for value — it is
sufficient, all the other elements of the offense being present, that the check must
have been drawn and issued in payment of an obligation.

Moreover, even granting, arguendo, that the extinguishment, after the issuance of

the checks, of the obligation in consideration of which the checks were issued, would
have resulted in placing the case at bar beyond the purview of the prohibition in
Section 1 of BP Blg. 22, there is no satisfactory proof that there was such an
extinguishment in the present case. Appellee aptly points out that appellant had not
adduced any direct evidence to prove that the amount advanced by the complainant
to cover the warranty deposit must already have been returned to her. (Rollo, p. 30)

It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the
accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the
same court even expected the petitioner-appellant to adduce evidence to show that he was not guilty
of the crime charged. But how can be produce documents showing that the warranty deposit has
already been taken back by Mrs. Teng when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of her side-line. Thus, even if she may
have gotten back the value of the accommodation, she would still pursue collecting from the
petitioner since she had in her possession the checks that "bounced".

That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:

And the trail court concluded that there is no question that the accused violated BP
Blg. 22, which is a special statutory law, violations of which are mala prohibita. The
court relied on the rule that in cases ofmala prohibita, the only inquiry is whether or
 not the law had been violated, proof of criminal intent not being necessary for the
conviction of the accused, the acts being prohibited for reasons of public policy and
the defenses of good faith and absence of criminal intent being unavailing in
prosecutions for said offenses." (Ibid., p. 26)

The crux of the matter rests upon the reason for the drawing of the postdated checks by the
petitioner, i.e., whether they were drawn or issued "to apply on account or for value", as required
under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms
"warranty" and "deposit", for which the postdated checks were issued or drawn, all the more, the
alleged crime could not have been committed by petitioner:

a) Warranty — A promise that a proposition of fact is true. A promise that certain

facts are truly as they are represented to be and that they will remain so: . . . (Black's
Law Dictionary, Fifth Edition, (1979) p. 1423)

A cross-reference to the following term shows:

Fitness for Particular Purpose: —

Where the seller at the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on the seller's skill or
judgment to select or furnish suitable goods, there is, unless excluded or modified,
an implied warranty that the goods shall be fit for such purpose, (Ibid., p. 573)

b) Deposit: — Money lodged with a person as an earnest or security for the

performance of some contract, to be forfeited if the depositor fails in his undertaking.
It may be deemed to be part payment and to that extent may constitute the
purchaser the actual owner of the estate.

To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or
as a pledge to intrust to the care of another.

The act of placing money in the custody of a bank or banker, for safety or
convenience, to be withdrawn at the will of the depositor or under rules and
regulations agreed on. Also, the money so deposited, or the credit which the
depositor receives for it. Deposit, according to its commonly accepted and generally
understood among bankers and by the public, includes not only deposits payable on
demand and for which certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395)

Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check
is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason . . . is inversely applied in this case. From the very beginning,
petitioner never hid the fact that he did not have the funds with which to put up the warranty deposit
and as a matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez,
to whom petitioner was introduced by Mrs. Teng. It would have been different if this predicament
was not communicated to all the parties he dealt with regarding the lease agreement the financing of
which was covered by L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby
ACQUITTED of the crime charged. SO ORDERED.
G.R. No. 192330               November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner, 

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a municipal mayor charged with illegal diversion of food intended for those
suffering from malnutrition to the beneficiaries of reconsideration projects affecting the homes of
victims of calamities.

The Facts and the Case

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the
Sandiganbayan in Criminal Case 28228 of violation of illegal use of public propertry (technical
malversation) under Article 220 of the Revised Penal Code. 1 

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte,
Leyte, operated a Core Shelter Assistance Program (CSAP) that provided construction materials to
indigent calamity victims with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was
70% done, the beneficiaries stopped reporting for work for the reason that they had to find food for
their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such construction
stoppage could result in the loss of construction materials particularly the cement. Thus, she sought
the help of Cristina Polinio (Polinio), an officer of the MSWDO in charge of the municipality’s
Supplemental Feeding Program (SFP) that rationed food to malnourished children. Polinio told
Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had
already distributed food to the mother volunteers, what remained could be given to the CSAP
beneficiaries.

Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek
his approval. After explaining the situation to him, Ysidoro approved the release and signed the
withdrawal slip for four sacks of rice and two boxes of sardines worth P3,396.00 to CSAP. Mayor
2 

Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the
matter. On being consulted, Eldelissa Elises, the supervising clerk of the Municipal Accountant’s
Office, signed the withdrawal slip based on her view that it was an emergency situation justifying the
release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards,
Garcia reported the matter to the MSWDO and to the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the
present complaint against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified
that the subject SFP goods were intended for its target beneficiaries, Leyte’s malnourished children.
She also pointed out that the Supplemental Feeding Implementation Guidelines for Local
Government Units governed the distribution of SFP goods. Thus, Ysidoro committed technical
3 

malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the
poor of the municipality was valid since they came from the savings of the SFP and the Calamity
Fund. Ysidoro also claims good faith, believing that the municipality’s poor CSAP beneficiaries were
also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor
conducted a comprehensive audit of their municipality in 2001 and found nothing irregular in its
transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage or embarrassment to public service, it only
fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro applied
public property to a pubic purpose other than that for which it has been appropriated by law or
ordinance. On May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for reconsideration. On
June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.

The Questions Presented

In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical

malversation. He particularly raises the following questions:

1. Whether or not he approved the diversion of the subject goods to a public purpose
different from their originally intended purpose;

2. Whether or not the goods he approved for diversion were in the nature of savings that
could be used to augment the other authorized expenditures of the municipality;

3. Whether or not his failure to present the municipal auditor can be taken against him; and

4. Whether or not good faith is a valid defense for technical malversation.

The Court’s Rulings

One. The crime of technical malversation as penalized under Article 220 of the Revised Penal
Code has three elements: a) that the offender is an accountable public officer; b) that he applies
4 

public funds or property under his administration to some public use; and c) that the public use for
which such funds or property were applied is different from the purpose for which they were
originally appropriated by law or ordinance. Ysidoro claims that he could not be held liable for the
5 

offense under its third element because the four sacks of rice and two boxes of sardines he gave the
CSAP beneficiaries were not appropriated by law or ordinance for a specific purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted
Resolution 00-133 appropriating the annual general fund for 2001. This appropriation was based on
6 

the executive budget which allocated P100,000.00 for the SFP and P113,957.64 for the
7 

Comprehensive and Integrated Delivery of Social Services which covers the CSAP housing
8 

projects. The creation of the two items shows the Sanggunian’s intention to appropriate separate
9 

funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used
for SFP’s needs, observing the rules prescribed for identifying the qualified beneficiaries of its
feeding programs. The target clientele of the SFP according to its manual are: 1) the moderately
10 

and severely underweight pre-school children aged 36 months to 72 months; and 2) the families of
six members whose total monthly income is P3,675.00 and below. This rule provides assurance that
11 
the SFP would cater only to the malnourished among its people who are in urgent need of the
government’s limited resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those
providing free labor for the rebuilding of their own homes. This is technical malversation. If Ysidoro
could not legally distribute the construction materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients neither could he distribute the food intended for the
latter to CSAP beneficiaries.

Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that,
therefore, the same could already be diverted to the CSAP beneficiaries. He relies on Abdulla v.
People which states that funds classified as savings are not considered appropriated by law or
12 

ordinance and can be used for other public purposes. The Court cannot accept Ysidoro’s argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran
throughout the year. Consequently, no one could say in mid-June 2001 that SFP had already
finished its project, leaving funds or goods that it no longer needed. The fact that Polinio had already
distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not
mean that the remaining food items in its storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the
view that the subject goods were no longer needed for the remainder of the year was quite
premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly
apply funds, already appropriated for a determined public purpose, to some other purpose. Thus:

SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the
specific purpose for which they have been appropriated. No ordinance shall be passed authorizing
any transfer of appropriations from one item to another. However, the local chief executive or the
presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any
item in the approved annual budget for their respective offices from savings in other items within the
same expense class of their respective appropriations.

The power of the purse is vested in the local legislative body. By requiring an ordinance, the law
gives the Sanggunian the power to determine whether savings have accrued and to authorize the
augmentation of other items on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The SB ruled, however, that since Ysidoro failed to
present the municipal auditor at the trial, the presumption is that his testimony would have been
adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence
and the presumption of regularity in the performance of official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified,
his testimony would have been adverse to the mayor. The municipal auditor’s view regarding the
transaction is not conclusive to the case and will not necessarily negate the mayor’s liability if it
happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding
what the municipal auditor would have said had he appeared and testified.

Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the
CSAP beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the
accounting department if the goods could be distributed to those beneficiaries. Having no criminal
intent, he argues that he cannot be convicted of the crime. 1âwphi1

But criminal intent is not an element of technical malversation. The law punishes the act of diverting
public property earmarked by law or ordinance for a particular public purpose to another public
purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but
becomes a criminal offense because positive law forbids its commission based on considerations of
public policy, order, and convenience. It is the commission of an act as defined by the law, and not
13 

the character or effect thereof, that determines whether or not the provision has been violated.
Hence, malice or criminal intent is completely irrelevant.
14 

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes
the crime of technical malversation. The law and this Court, however, recognize that his offense is
not grave, warranting a mere fine.

WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in
Criminal Case 28228 dated February 8, 2010.

SO ORDERED.
G.R. No. 121592 July 5, 1996

ROLANDO P. DELA TORRE, petitioner, 

vs.
COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents.

RESOLUTION

FRANCISCO, J.:p

Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of
two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave
abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for
disqualification filed against petitioner before the COMELEC. 1

The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from
running for the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing
as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code
of 1991)  which provides as follows:
2

Sec. 40. Disqualifications. The following persons are disqualified from running for any
elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment within two (2) years
after serving sentence;

(b) xxx xxx xxx.

In disqualifying the petitioner, the COMELEC held that:

Documentary evidence . . . established that herein respondent (petitioner in this

case) was found guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723
for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision
dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial
Court . . . , which however, affirmed respondent's conviction in a Decision dated
November 14, 1990. Respondent's conviction became final on January 18, 1991.

xxx xxx xxx

. . . , there exists legal grounds to disqualify respondent as candidate for Mayor of

Cavinti, Laguna this coming elections. Although there is "dearth of jurisprudence
involving violation of the Anti-Fencing Law of 1979 or P.D. 1612" . . . , the nature of
the offense under P.D. 1612 with which respondent was convicted certainly involves
moral turpitude . . . .
3

The second assailed resolution, dated August 28, 1995, denied petitioner's motion for
reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code
does not apply to his case inasmuch as the probation granted him by the MTC on December 21,
1994 which suspended the execution of the judgment of conviction and all other legal consequences
flowing therefrom, rendered inapplicable Section 40 (a) as well.  4

The two (2) issues to be resolved are:

1. Whether or not the crime of fencing involves moral turpitude.

2. Whether or not a grant of probation affects Section 40 (a)'s applicability.

Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a)
when prior conviction of a crime becomes a ground for disqualification — i.e., "when the conviction
by final judgment is for an offense involving moral turpitude." And in this connection, the Court has
consistently adopted the definition in Black's Law Dictionary of "moral turpitude" as:

. . . an act of baseness, vileness, or depravity in the private duties which a man owes
his fellow men, or to society in general, contrary to the accepted and customary rule
of right and duty between man and woman or conduct contrary to justice, honesty,
modesty, or good morals. 5

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime
involves moral turpitude, is for the Supreme Court to determine".  In resolving the foregoing question,
6

the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while
crimes mala prohibita do not , the rationale of which was set forth in "Zari v. Flores,"  to wit:
7 8

It (moral turpitude) implies something immoral in itself, regardless of the fact that it is
punishable by law or not. It must not be merely mala prohibita, but the act itself must
be inherently immoral. The doing of the act itself, and not its prohibition by statute
fixes the moral turpitude. Moral turpitude does not, however, include such acts as are
not of themselves immoral but whose illegality lies in their being positively prohibited. 9

This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice
Research Institute v. NLRC,   the Court admitted that it cannot always be ascertained whether moral
10

turpitude does or does not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and
there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the statue. 11

The Court in this case shall nonetheless dispense with a review of the facts and circumstances
surrounding the commission of the crime, inasmuch as petitioner after all does not assail his
conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the
determination of whether or not fencing involves moral turpitude can likewise be achieved by
analyzing the elements alone.

Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as:

a. . . . the act of any person who, with intent to gain for himself or for another, shall
buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any manner deal in any article, item, object or anything of value which he
 knows, or should be known to him, to have been derived from the proceeds of the
crime of robbery or theft.12

From the foregoing definition may be gleaned the elements of the crime of fencing which are:

1. A crime of robbery or theft has been committed;

2. The accused who is not a principal or accomplice in the crime of robbery or theft,
buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything of value, which
have been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime of robbery or
theft; and [Emphasis supplied.]

4. There is, on the part of the accused, intent to gain for himself or for another. 13

Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that
property received is stolen displays the same degree of malicious deprivation of one's rightful
property as that which animated the robbery or theft which, by their very nature, are crimes of moral
turpitude. And although the participation of each felon in the unlawful taking differs in point in time
and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's
peaceful dominion for gain — thus deliberately reneging in the process "private duties" they owe
their "fellowmen" or "society" in a manner "contrary to . . . accepted and customary rule of right and
duty . . . , justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything
acquired either by mistake or with malice is so basic it finds expression in some key provisions of the
Civil Code on "Human Relations" and "Solutio Indebiti", to wit:

Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

Art. 22. Everyone person who through an act of performance by another, or any
other means, acquires or comes into possession of something at the expense of the
latter without just or legal ground, shall return the same to him.

Art. 2154. If something is received when there is no right to demand it, and it was
unduly delivered through mistake, the obligation to return it arises.

The same underlying reason holds even if the "fence" did not have actual knowledge, but merely
"should have known" the origin of the property received. In this regard, the Court held:

When knowledge of the existence of a particular fact is an element of the offense,

such knowledge is established if a person is aware of the high probability of its
 existence unless he actually believes that it does not exist. On the other hand, the
words "should know" denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in the performance of his duty to another or
would govern his conduct upon assumption that such fact exists.  [Emphasis
14

supplied.]

Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer
that the object of the sale may have been derived from the proceeds of robbery or theft.
Such circumstances include the time and place of the sale, both of which may not be in
accord with the usual practices of commerce. The nature and condition of the goods sold,
and the fact that the seller is not regularly engaged in the business of selling goods may
likewise suggest the illegality of their source, and therefor should caution the buyer. This
justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any
goods, . . . , object or anything of value which has been the subject of robbery or thievery
shall be prima facie evidence of fencing" — a presumption that is, according to the Court,
"reasonable for no other natural or logical inference can arise from the established fact
of . . . possession of the proceeds of the crime of robbery or theft."  All told, the COMELEC
15

did not err in disqualifying the petitioner on the ground that the offense of fencing of which he
had been previously convicted by final judgment was one involving moral turpitude.

Anent the second issue where petitioner contends that his probation had the effect of suspending
the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect
of probation is only to suspend the execution of the sentence.  Petitioner's conviction of fencing
16

which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the
disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the
grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when
the accused applies for probation, although it is not executory pending resolution of the application
for probation. 7 Clearly then, petitioner's theory has no merit.
1

ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions
of the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto.

SO ORDERED.
G.R. No. 142396             February 11, 2003

KHOSROW MINUCHER, petitioner, 
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher
and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal
charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the
house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to
have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who
would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts
and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he
was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose
Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar
from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio
nuts and other Iranian products was his business after the Khomeini government cut his pension of
over $3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in the Philippines, as a special
agent of the Drug Enforcement Administration, Department of Justice, of the United States, and
gave his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested the restaurant people to x x x
place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for
which he was paid. Then their conversation was again focused on politics and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After
some haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the
money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m.,
he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the
pair of carpets.1awphi1.nét

"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas
Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from
it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told
him that he would be leaving the Philippines very soon and requested him to come out of the house
for a while so that he can introduce him to his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his pajama pants, he followed the defendant where he
saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab
with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought
inside the house by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from defendant's attaché
case, he took something and placed it on the table in front of the plaintiff. They also took plaintiff's
wife who was at that time at the boutique near his house and likewise arrested Torabian, who was
playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told why
he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his telephone was unplugged. He
asked for any warrant, but the defendant told him to `shut up.’ He was nevertheless told that he
would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his
cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-
made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his
TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified
in the papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in said places informed him that they saw him on
TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water." 1 
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on
the ground that he, not being a resident of the Philippines and the action being one in personam,
was beyond the processes of the court. The motion was denied by the court, in its order of 13
December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which could likewise
be construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration
of the court order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative relief.
Scalzo argued that in cases involving the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo
denied the motion for reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition
and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception
of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit
his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his
answer, Scalzo denied the material allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in
the discharge of his official duties as being merely an agent of the Drug Enforcement Administration
of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order
of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R.
No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On
31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity
of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition for review
with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of
Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this
Court reversed the decision of the appellate court and remanded the case to the lower court for trial.
The remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion to
dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to
the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of
his official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic
immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees
in the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2 

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether
or not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in
G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an
entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject
matter and causes of action. Even while one of the issues submitted in G.R. No. 97765 - "whether or
3 

not public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat
immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a
pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his position,
which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue
of diplomatic immunity." 4 
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug
dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S.,
(and) having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make
the actual arrest." Scalzo has submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of
Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court
of RTC Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and 

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of
Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of
this Court.5 

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the case
pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself, through its Executive Department,
recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial
Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities
under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports
of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was a special
agent assigned to the Philippines at all times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel to show (a) that the United States
6 

Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of
Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attaché of the United States diplomatic
mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit
12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3)
to conduct complex criminal investigations involving international criminal conspiracies which affect
the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among
the city states of ancient Greece, among the peoples of the Mediterranean before the establishment
of the Roman Empire, and among the states of India, the person of the herald in time of war and the
person of the diplomatic envoy in time of peace were universally held sacrosanct. By the end of the
7 

16th century, when the earliest treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary international law. Traditionally, the
8 

exercise of diplomatic intercourse among states was undertaken by the head of state himself, as
being the preeminent embodiment of the state he represented, and the foreign secretary, the official
usually entrusted with the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic
mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by
and large, the representation of the interests of the sending state and promoting friendly relations
with the receiving state.
9 

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state, (b) envoys, ministers or internuncios accredited to the
10  11 

heads of states; and (c) charges d' affairs accredited to the ministers of foreign affairs. Comprising
12  13 

the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the
technical and service staff. Only the heads of missions, as well as members of the diplomatic staff,
excluding the members of the administrative, technical and service staff of the mission, are accorded
diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to
the members of diplomatic missions, it does so, nevertheless, with an understanding that the same
be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents"
as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same
privileges from all others. It might bear stressing that even consuls, who represent their respective
states in concerns of commerce and navigation and perform certain administrative and notarial
duties, such as the issuance of passports and visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing
their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a
diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic
nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the
United States diplomatic mission and was accredited as such by the Philippine Government. An
attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging
to certain ministries or departments of the government, other than the foreign ministry or department,
who are detailed by their respective ministries or departments with the embassies such as the
military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like.
Attaches assist a chief of mission in his duties and are administratively under him, but their main
function is to observe, analyze and interpret trends and developments in their respective fields in the
host country and submit reports to their own ministries or departments in the home
government. These officials are not generally regarded as members of the diplomatic mission, nor
14 

are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity,
thereby divesting the trial court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting
aside for the moment the issue of authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance
and Motion asking for a first extension of time to file the Answer because the Departments of State
and Justice of the United States of America were studying the case for the purpose of determining
his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic, the complaint for damages filed by
petitioner cannot be peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x
x x. The public respondent then should have sustained the trial court's denial of the motion to
dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have
been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which respondent Court yielded
to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of
the government. In World Health Organization vs. Aquino, the Court has recognized that, in such
15 

matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It
might be recalled that the privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction. The government of the United States itself, which Scalzo claims to be acting for, has
16 
formulated its standards for recognition of a diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses an acknowledged diplomatic title and
"performs duties of diplomatic nature." Supplementary criteria for accreditation are the possession
17 

of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note
formally representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an
essentially full-time basis. Diplomatic missions are requested to provide the most accurate and
18 

descriptive job title to that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category. 19 

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions
when he committed the acts alleged in the complaint, the present controversy could then be
resolved under the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule
of customary international law then closely identified with the personal immunity of a foreign
sovereign from suit and, with the emergence of democratic states, made to attach not just to the
20 

person of the head of state, or his representative, but also distinctly to the state itself in its sovereign
capacity. If the acts giving rise to a suit are those of a foreign government done by its foreign agent,
21 

although not necessarily a diplomatic personage, but acting in his official capacity, the complaint
could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose service he is, under the maxim -
par in parem, non habet imperium - that all states are sovereign equals and cannot assert
jurisdiction over one another. The implication, in broad terms, is that if the judgment against an
22 

official would require the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must be
regarded as being against the state itself, although it has not been formally impleaded. 23 

In United States of America vs. Guinto, involving officers of the United States Air Force and special
24 

officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were] responsible for
their acts." 25 

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals elaborates:
26 

"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or officers by one
whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been
said that an action at law or suit in equity against a State officer or the director of a State department
on the ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and jurisdiction." 27 

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long
as it can be established that he is acting within the directives of the sending state. The consent of
the host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto
and Shauf both involve officers and personnel of the United States, stationed within Philippine
territory, under the RP-US Military Bases Agreement. While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the United States (for the latter to
send its agents and to conduct surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government of the
two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy, as well as the participation of members of the Philippine Narcotics
Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of
Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough
indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after
having ascertained the target, to inform local law enforcers who would then be expected to make the
arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the
buy-bust operation, and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country
to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs. 

SO ORDERED.
G.R. No. 125865           January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner, 

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received
an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered
by immunity from legal process under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the MeTC
judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, petitioner elevated the case to this Court viaa
petition for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in court. 1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's
advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the
latter's right to due process was violated. It should be noted that due process is a right of the
accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was
acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to
be presented at the proper time. At any rate, it has been ruled that the mere invocation of the
1 

immunity clause does not ipso facto result in the dropping of the charges. 2 

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done
in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty. The 3 

imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or beyond the scope of his authority or
jurisdiction. It appears that even the government's chief legal counsel, the Solicitor General, does
4 

not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions. As already mentioned above, the commission of a
5 

crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar. Being purely a statutory right, preliminary investigation may be invoked only when specifically
6 

granted by law. The rule on the criminal procedure is clear that no preliminary investigation is
7 

required in cases falling within the jurisdiction of the MeTC. Besides the absence of preliminary
8 

investigation does not affect the court's jurisdiction nor does it impair the validity of the information or
otherwise render it defective. 9 

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âwphi1.nêt
G.R. No. L-35748         December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, 

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First
Instance of Bulacan convicting them upon the information of the crime of arson as follows: The
former as principal by direct participation, sentenced to fourteen years, eight months, and one day
of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as
accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced
to the accessories of the law, and to pay each of the persons whose houses were destroyed by the
fire, jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his
argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza,
and makes the following assignments of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged
in the information.

2. Finally, the court erred in not acquitting said defendant from the information upon the
ground of insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her
codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of
Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin,
filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by
affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930,
the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the
month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary
investigation of the case, the two defendants begged the municipal president of Paombong,
Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the
complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live
again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The
municipal president transmitted the defendants' petition to the complaining husband, lending it his
support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his
complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the
adultery case commenced against the accused, and cancelled the bonds given by them, with the
costs against the complainant.
The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same
municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage,
Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa
leaves, followed him home to the village of Masocol, and remained there. The accused, Martin
Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the
home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his
wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin
Atienza told said couple to take their furniture out of the house because he was going to set fire to it.
Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that
that was the only way he could be revenged upon the people of Masocol who, he said, had
instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin
Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana
Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had
said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura
Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms'
length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran
back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the
schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-
law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire
destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and
Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61
years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the
house where the fire started, and Romana Silvestre leaving it. lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de
oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin
Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this
petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of
arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her
are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man;
that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband;
that in view of the petition of the accused, who promised to discontinue their life together, and to
leave the barrio of Masocol, and through the good offices of the municipal president of Paombong,
the complaining husband asked for the dismissal of the complaint; that in pursuance of their
promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that
under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who
had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of
Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed
her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at
about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his
intention of burning the house as the only means of taking his revenge on the Masocol resident, who
had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled
them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat
without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the
strength of these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be
one who does not take a direct part in the commission of the act, who does not force or induce other
to commit it, nor cooperates in the commission of the act by another act without which it would not
have been accomplished, yet cooperates in the execution of the act by previous or simultaneous
actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson
committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de
la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their
house as the only means of revenging himself on the barrio residents, her passive presence when
Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and
her failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through
advice, encouragement, or agreement, or material, through external acts. In the case of the
accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and
none of an agreement to commit the crime in question. Her mere presence and silence while they
are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or
nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that
being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in
article 550, paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

x x x           x x x          x x x

2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was
occupied at the time, or any freight train in motion, if the damage caused in such cases shall
exceed six thousand two hundred and fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there
was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely
arson less serious than what the trial court sentenced him for, inasmuch as that house was the
means of destroying the others, and he did not know whether these were occupied at the time or
not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not
know whether there are people in it at the time, depends upon the danger to which the inmates are
exposed, not less serious is the arson committed by setting fire to inhabited houses by means of
another inhabited house which the firebrand knew to be empty at the moment of committing the act,
if he did not know whether there were people or not in the others, inasmuch as the same danger
exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been
convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal
Code, if the information had alleged that at the time of setting fire to the house, the defendant knew
that the other houses were occupied, taking into account that barrio residents are accustomed to
retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive
presence at the scene of another's crime, mere silence and failure to give the alarm, without
evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the
Penal Code for complicity in the commission of the crime witnessed passively, or with regard to
which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing
whether there are people in them or not, sets fire to one known to be vacant at the time, which
results in destroying the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference
to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant
Romana Silvestre, who is hereby acquitted with 
one-half of the costs de oficio. So ordered.
G.R. No. 162540               July 13, 2009

GEMMA T. JACINTO, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the
reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December
16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution2 dated
March 5, 2004 denying petitioner's motion for reconsideration.

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

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein
represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid
establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated
July 14, 1997 in the sum of ₱10,000.00, representing payment made by customer Baby Aquino to
the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of
₱10,000.00.

CONTRARY TO LAW.3

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the
events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner
Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of
₱10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and
petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land
Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime
in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if
she could issue checks payable to the account of Mega Foam, instead of issuing the checks payable
to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call
from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The
reason for the call was to inform Capitle that the subject BDO check deposited in his account had
been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking
the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message through Valencia, because
the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and
former co-employee of Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to
ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the
cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle.
Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega
Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for ₱10,000.00 sometime in June 1997 as payment for her
purchases from Mega Foam.4 Baby Aquino further testified that, sometime in July 1997, petitioner
also called her on the phone to tell her that the BDO check bounced.5 Verification from company
records showed that petitioner never remitted the subject check to Mega Foam. However, Baby
Aquino said that she had already paid Mega Foam ₱10,000.00 cash in August 1997 as replacement
for the dishonored check.6

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his
bank account, but explained that the check came into his possession when some unknown woman
arrived at his house around the first week of July 1997 to have the check rediscounted. He parted
with his cash in exchange for the check without even bothering to inquire into the identity of the
woman or her address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didn’t know where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked
out an entrapment operation with its agents. Ten pieces of ₱1,000.00 bills provided by Dyhengco
were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend that she was going along with Valencia's plan. 

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then
holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioner’s house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to
Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the ₱10,000.00 marked money previously given to her by
Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave ₱5,000.00 each to
Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent
powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two
and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the following
scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but
claimed that she had stopped collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to
her mother’s house, where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the
Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in
their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca
asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very
surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30,
1997. It was never part of her job to collect payments from customers. According to her, on the
morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so,
despite her admission during cross-examination that she did not know where Baby Aquino resided,
as she had never been to said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at
said place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes,
Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked,
"What is this?" Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its
Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y
Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable
doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to
SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.7

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the
dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto

mayor medium.

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision
and Resolution of the CA. The issues raised in the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

2. Whether or not a worthless check can be the object of theft; and 

3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt.8

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the
crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal
Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain – this is presumed from
the act of unlawful taking and further shown by the fact that the check was deposited to the bank
account of petitioner's brother-in-law; (4) it was done without the owner’s consent – petitioner hid the
fact that she had received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or intimidation against
persons, nor of force upon things – the check was voluntarily handed to petitioner by the customer,
as she was known to be a collector for the company; and (6) it was done with grave abuse of
confidence – petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the
personal property subject of the theft must have some value, as the intention of the accused
is to gain from the thing stolen.This is further bolstered by Article 309, where the law provides that
the penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same
was apparently without value, as it was subsequently dishonored. Thus, the question arises on
whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the
accused, intending to kill a person, peppered the latter’s bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible
crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent portions
of said provisions read as follows:

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

x x x x 

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate to ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the means
employed or the aims sought are impossible. - When the person intending to commit an offense has
already performed the acts for the execution of the same but nevertheless the crime was not
produced by reason of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are essentially inadequate to
produce the result desired by him, the court, having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense
against persons or property; (2) that the act was done with evil intent; and (3) that its
accomplishment was inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article
4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise:

Under this article, the act performed by the offender cannot produce an offense against persons or
property because: (1) the commission of the offense is inherently impossible of accomplishment; or
(2) the means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently
impossible of accomplishment is the focus of this petition. To be impossible under this clause, the
act intended by the offender must be by its nature one impossible of accomplishment. There must be
either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to
qualify the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 

x x x x 

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. x x x 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a
man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets
nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In
this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a
crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking
the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for
the fact that the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being
unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced.
The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check
was eventually dishonored, and Mega Foam had received the cash to replace the value of said
dishonored check. 1avvphi1

The fact that petitioner was later entrapped receiving the ₱5,000.00 marked money, which she
thought was the cash replacement for the dishonored check, is of no moment. The Court held
in Valenzuela v. People12 that under the definition of theft in Article 308 of the Revised Penal Code,
"there is only one operative act of execution by the actor involved in theft ─ the taking of personal
property of another." Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law — that theft is already "produced" upon the "tak[ing of] personal
property of another without the latter’s consent." 

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the position
that theft is produced when there is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or unable to freely dispose
of the property stolen since the deprivation from the owner alone has already ensued from such acts
of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. x x x

x x x Unlawful taking, which is the deprivation of one’s personal property, is the element which
produces the felony in its consummated stage. x x x 13

From the above discussion, there can be no question that as of the time that petitioner took
possession of the check meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the ₱5,000.00 cash as supposed replacement for the
dishonored check was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched
only after the check had been dishonored by the drawee bank. Since the crime of theft is not a
continuing offense, petitioner's act of receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner was caught receiving the marked money
was merely corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash
by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was
not included or covered by the allegations in the Information, the Court cannot pronounce judgment
on the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of criminal liability.

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

SO ORDERED.
G. R. No. 160188              June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, 

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused was guilty
of frustrated or consummated theft was in 1918, in People v. Adiao.3 A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space.7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00.9

Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket" though not at SM.15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court
of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and consequently
dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed in a position to freely
dispose of the articles stolen.20 However, in its Decision dated 19 June 2003,21 the Court of Appeals
rejected this contention and affirmed petitioner’s conviction.22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
₱12,090.00 of which he was charged.25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.

II.
 In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Diño and Flores have attained a level of renown reached by very few
other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Diño and
Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit
with the stolen property through a supervised egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime when the criminal mind is wanting.35 Accepted in this
jurisdiction as material in crimes mala in se,36mens rea has been defined before as "a guilty mind, a
guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making
it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the
Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner,"43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another."44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain.46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking48 or an intent to permanently deprive
the owner of the stolen property;49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking.51

So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts
of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accused’s] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Diño and Flores
decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by the United States Army, had driven his truck into
the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking."60 This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft.63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether the theft is consummated or frustrated. This
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Diño, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once."66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted,"67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x."68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of
the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viada’s opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft."74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Diño, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense."76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
stage of execution of that felony."77 Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.

IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform all the
acts of execution which should have produced the felon as a consequence."81 However, per Article 6
of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was
then in place. The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co
intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de España. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the 1888 decision
of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was
apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled.84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect.85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados.86

Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho
de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought
that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente." Otherwise put, it
would be difficult to foresee how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court
that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
not out of obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.88 The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things.90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain,
of personal property of another without the latter’s consent. While the Diño/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of property
on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquino’s commentaries, as
earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime
of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period of time that he was
able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.92 And long ago, we asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the
taking must be effected animo lucrandi and without the consent of the owner; and it will be here
noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance.94

Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of one’s personal property, is the element which produces
the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only be attempted or consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the theft — would introduce a convenient defense for
the accused which does not reflect any legislated intent,95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
G.R. No. 88724               April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-
031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in
the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as
follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of
this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will and without her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.

SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a
sudden, somebody held her and poked a knife to her neck. She then recognized appellant
who was a frequent visitor of another boarder (pp. 8-9, ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the
door which led to the first floor was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around
her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant
up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With
one hand holding the knife, appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and
panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. She followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her. Only a portion of his penis
entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only
a small part again of his penis was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed
the partition. When she saw him inside the room, she ran to another room. Appellant again
chased her. She fled to another room and jumped out through a window (p. 27, ibid).
 Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around
the building and knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When
they discovered what happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination — Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Breast — Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

Vulva — No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and guide his penis in order
to have carnal knowledge of her. According to the accused, this is strange because "this is the only
case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding
the testimony of the victim (p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired
as to the sincerity of the offended party in her testimony before the court. Her answer to
every question profounded (sic), under all circumstances, are plain and straightforward. To
the Court she was a picture of supplication hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her sincerity
and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol
G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to
the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical
certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted
on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the manner
as narrated. The partitions of every room were of strong materials, securedly nailed, and
would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
 . . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no
injury to a frightened individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings, many have been saved
by jumping from some considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough indication that something not
ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:

What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the latter
and managed to gain sanctuary in a house owned by spouses hardly known to her. All these
acts she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this
statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
 x x x           x x x          x x x

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well

as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape.  Our concern now is whether or not the frustrated stage applies to the
1âwphi1

crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and
the offender does not arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime.Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras,
G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings
in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended party and that a medical
certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It should be stressed that in cases of rape where there
is a positive testimony and a medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance
in the medical certificate, would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender.
It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

x x x           x x x          x x x
 Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

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

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua,
being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

SO ORDERED.
G.R. No. 151258               December 1, 2014

ARTEMIO VILLAREAL, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 154954

PEOPLE OF THE PHILIPPINES, Petitioner, 

vs.
THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, JR.,
JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO
GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO
MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH
LLEDO, and RONAN DE GUZMAN, Respondents.

x-----------------------x

G.R. No. 155101

FIDELITO DIZON, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. Nos. 178057 & 178080

GERARDA H. VILLA, Petitioner, 
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ
SARUCA, JR., and ANSELMO ADRIANO, Respondents.

RESOLUTION

SERENO, CJ:

We are asked to revisit our Decision in the case involving the death of Leonardo "Lenny" Villa due to
fraternity hazing. While there is nothing new in the arguments raised by the parties in their respective
Motions for Clarification or Reconsideration, we find a few remaining matters needing to be clarified
and resobed. Sorne oJ' these matters include the effect of our Decision on the finality of the Court of
Appeals judgments insofar as respondents Antonio Mariano A!meda (Almeda), June] Anthony D.
Arna (Arna), Renato Bantug, Jr. (Bantug), and Vincent Tecson (Tecson) are concerned; the question
of who are eligible to seek probation; and the issue of the validity of the probation proceedings and
the concomitant orders of a court that allegedly had no jurisdiction over the case.
Before the Court are the respective Motions for Reconsideration or Clarification filed by petitioners
People of the Philippines, through the Office of the Solicitor General (OSG), and Gerarda H. Villa
(Villa); and by respondents Almeda, Ama, Bantug, and Tecson (collectively, Tecson et al.)
concerning the Decision of this Court dated 1 February 2012.  The Court modified the assailed
1

judgments  of the Court of Appeals (CA) in CA-G.R. CR No. 15520 and found respondents Fidelito
2

Dizon (Dizon), Almeda, Ama, Bantug, and Tecson guilty beyond reasonable doubt of the crime of
reckless imprudence resulting in homicide. The modification had the effect of lowering the criminal
liability of Dizon from the crime of homicide, while aggravating the verdict against Tecson et al. from
slight physical injuries. The CA Decision itself had modified the Decision of the Caloocan City
Regional Trial Court (RTC) Branch 121 finding all of the accused therein guilty of the crime of
homicide. 3

Also, we upheld another CA Decision  in a separate but related case docketed as CA-G.R. S.P. Nos.
4

89060 & 90153 and ruled that the CA did not commit grave abuse of discretion when it dismissed
the criminal case against Manuel Escalona II (Escalona), Marcus Joel Ramos (Ramos), Crisanto
Saruca, Jr. (Saruca), and Anselmo Adriano (Adriano) on the ground that their right to speedy trial
was violated. Reproduced below is the dispositive portion of our Decision: 5

WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding petitioner Fidelito Dizon guilty of
homicide is hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No.
154954 – finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent
Tecson guilty of the crime of slight physical injuries – is also MODIFIED and SET ASIDE IN PART.
Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson are found GUILTY beyond reasonable doubt of reckless imprudence resulting in
homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal
Code. They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one
(1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional,
as maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa
civil indemnity ex delicto in the amount of 50,000, and moral damages in the amount of 1,000,000,
plus legal interest on all damages awarded at the rate of 12% from the date of the finality of this
Decision until satisfaction. Costs de oficio.

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The
appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89(1) of
the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case
against Artemio Villareal deemed CLOSED and TERMINATED.

Let copies of this Decision be furnished to the Senate President and the Speaker of the House of
Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the
fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as
aggravating circumstances that would increase the applicable penalties.

SO ORDERED.

To refresh our memories, we quote the factual antecedents surrounding the present case: 6

In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law
signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert"
Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity
(Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have
dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the
neophytes on what to expect during the initiation rites. The latter were informed that there would be
physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for
three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for
the commencement of their initiation.

Even before the neophytes got off the van, they had already received threats and insults from the
Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of
the Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were
then subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run,"
which required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering
blows to the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their
backs against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over
their legs; the "Rounds," in which the neophytes were held at the back of their pants by the
"auxiliaries" (the Aquilans charged with the duty of lending assistance to neophytes during initiation
rites), while the latter were being hit with fist blows on their arms or withknee blows on their thighs by
two Aquilans; and the "Auxies’ Privilege Round," in which the auxiliaries were given the opportunity
to inflict physical pain on the neophytes. During this time, the neophytes were also indoctrinated with
the fraternity principles. They survived their first day of initiation.

On the morning of their second day – 9 February 1991 – the neophytes were made to present comic
plays and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or
legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to the same manner of hazing
that they endured on the first day of initiation. After a few hours, the initiation for the day officially
ended.

After a while, accused non-resident or alumni fraternity members Fidelito Dizon (Dizon) and Artemio
Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson
Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he
reopened the initiation rites. The fraternity members, including Dizon and Villareal, then subjected
the neophytes to "paddling" and to additional rounds of physical pain. Lenny received several paddle
blows, one of which was so strong it sent him sprawling to the ground. The neophytes heard him
complaining of intense pain and difficulty in breathing. After their last session of physical beatings,
Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the
initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at
the carport.

After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent
mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just
1avvphi1

overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans
started helping him. They removed his clothes and helped him through a sleeping bag to keep him
warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was
pronounced dead on arrival.

Consequently, a criminal case for homicide was filed against the following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

2. Artemio Villareal (Villareal)

3. Efren de Leon (De Leon)

4. Vincent Tecson (Tecson)

5. Junel Anthony Ama (Ama)

6. Antonio Mariano Almeda (Almeda)

7. Renato Bantug, Jr. (Bantug)

8. Nelson Victorino (Victorino)

9. Eulogio Sabban (Sabban)

10. Joseph Lledo (Lledo)

11. Etienne Guerrero (Guerrero)

12. Michael Musngi (Musngi)

13. Jonas Karl Perez (Perez)

14. Paul Angelo Santos (Santos)

15. Ronan de Guzman (De Guzman)

16. Antonio General (General)

17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)

19. Ernesto Jose Montecillo (Montecillo)

20. Santiago Ranada III (Ranada)

21. Zosimo Mendoza (Mendoza)

22. Vicente Verdadero (Verdadero)

23. Amante Purisima II (Purisima)

24. Jude Fernandez (J. Fernandez)

25. Adel Abas (Abas)

 26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)

2. Crisanto Saruca, Jr. (Saruca)

3. Anselmo Adriano (Adriano)

4. Marcus Joel Ramos (Ramos)

5. Reynaldo Concepcion (Concepcion)

6. Florentino Ampil (Ampil)

7. Enrico de Vera III (De Vera)

8. Stanley Fernandez (S. Fernandez)

9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the
other hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in
abeyance due to certain matters that had to be resolved first.

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding
the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code. A few weeks after the trial court rendered its
judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused
commenced anew.

On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the finding of conspiracy by the trial
court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then passed away, so the following
Decision applied only to the remaining 25 accused, viz:

1. Nineteen of the accused-appellants– Victorino, Sabban, Lledo, Guerrero, Musngi, Perez,

De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero,
Purisima, Fernandez, Abas, and Brigola (Victorino et al.) – were acquitted,as their individual
guilt was not established by proof beyond reasonable doubt.

2. Four of the accused-appellants– Vincent Tecson, Junel Anthony Ama, Antonio Mariano
Almeda, and Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight
physical injuriesand sentenced to 20 days of arresto menor. They were also ordered to
jointly pay the heirs of the victim the sum of ₱30,000 as indemnity.

3. Two of the accused-appellants– Fidelito Dizonand Artemio Villareal– were found guilty
beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal
Code. Having found no mitigating or aggravating circumstance, the CA sentenced them to
an indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal.
 They were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum
of ₱50,000 and to pay the additional amount of ₱1,000,000 by way of moral damages.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused
Concepcion on the ground of violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of
accused Escalona, Ramos, Saruca, and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos.
89060 & 90153 reversed the trial court’s Orders and dismissed the criminal case against Escalona,
Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.

From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought
before this Court. (Citations omitted)

Motion for Partial Reconsideration

filed by Petitioner Gerarda H. Villa

Petitioner Villa filed the present Motion for Partial Reconsideration  in connection with G.R. Nos.
7

178057 & 178080 (Villa v. Escalona) asserting that the CA committed grave abuse of discretion
when it dismissed the criminal case against Escalona, Ramos,Saruca, and Adriano (collectively,
Escalona et al.) in its assailed Decision and Resolution.  Villa reiterates her previous arguments that
8

the right to speedy trial of the accused was not violated, since they had failed to assert that right
within a reasonable period of time. She stresses that, unlike their co-accused Reynaldo Concepcion,
respondents Escalona et al.did not timely invoke their right to speedy trial during the time that the
original records and pieces of evidence were unavailable. She again emphasizes that the
prosecution cannot be faulted entirely for the lapse of 12 years from the arraignment until the initial
trial, as there were a number of incidents attributable to the accused themselves that caused the
delay of the proceedings. She then insists that we apply the balancing test in determining whether
the right to speedy trial of the accused was violated.

Motion for Reconsideration filed by the OSG

The OSG, in its Motion for Reconsideration  of G.R. Nos. 155101 (Dizon v. People) and 154954
9

(People v. Court of Appeals), agrees with the findings of this Court that accused Dizon and Tecson
et al. had neither the felonious intent to kill (animus interficendi) nor the felonious intent to injure
(animus iniuriandi) Lenny Villa. In fact, it concedes that the mode in which the accused committed
the crime was through fault (culpa). However, it contends that the penalty imposed should have
been equivalent to that for deceit (dolo) pursuant to Article 249 (Homicide) of the Revised Penal
Code. It argues that the nature and gravity of the imprudence or negligence attributable to the
accused was so gross that it shattered the fine distinction between dolo and culpaby considering the
act as one committed with malicious intent. It maintains that the accused conducted the initiation
rites in such a malevolent and merciless manner that it clearly endangered the lives of the initiates
and was thus equivalent to malice aforethought.

With respect to the 19 other accused, or Victorino et al., the OSG asserts that their acquittal may
also be reversed despite the rule on double jeopardy, as the CA also committed grave abuse of
discretion in issuing its assailed Decision (CA-G.R. No. 15520). The OSG insists that Victorino et al.
should have been similarly convicted like their other co-accused Dizon, Almeda, Ama, Bantug, and
Tecson, since the former also participated in the hazing of Lenny Villa, and their actions contributed
to his death.

Motions for Clarification or Reconsideration of Tecson et al.

Respondents Tecson et al.,  filed their respective motions pertaining to G.R. No. 154954 (People v.
10

Court of Appeals). They essentially seek a clarification as to the effect of our Decision insofar as
their criminal liability and service of sentence are concerned. According to respondents, they
immediately applied for probation after the CA rendered its Decision (CAG.R. No. 15520) lowering
their criminal liability from the crime of homicide, which carries a non-probationable sentence, to
slight physical injuries, which carries a probationable sentence. Tecson et al.contend that, as a
result, they have already been discharged from their criminal liability and the cases against them
closed and terminated. This outcome was supposedly by virtue of their Applications for Probation on
various dates in January 2002  pursuant to Presidential Decree No. 968, as amended, otherwise
11

known as the Probation Law. They argue that Branch 130 of Caloocan City Regional Trial Court
(RTC) had already granted their respective Applications for Probation on 11 October 2002  and,
12

upon their completion of the terms and conditions thereof, discharged them from probation and
declared the criminal case against them terminated on various dates in April 2003. 13

To support their claims, respondents attached  certified true copies of their respective Applications
14

for Probation and the RTC Orders granting these applications, discharging them from probation, and
declaring the criminal case against them terminated. Thus, they maintain that the Decision in CA-
G.R. No. 15520 had already lapsed into finality, insofar as they were concerned, whenthey waived
their right to appeal and applied for probation.

ISSUES

I. Whether the CA committed grave abuse of discretion amounting to lack or excess of

jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for
violation of their right to speedy trial

II. Whether the penalty imposed on Tecson et al. should have corresponded to that for
intentional felonies

III. Whether the completion by Tecson et al. of the terms and conditions of their probation
discharged them from their criminal liability, and closed and terminated the cases against
them DISCUSSION

Findings on the Motion for Partial Reconsideration of

Petitioner Gerarda H. Villa

As regards the first issue, we take note that the factual circumstances and legal assertions raised by
petitioner Villa in her Motion for Partial Reconsideration concerning G.R. Nos. 178057 & 178080
have already been thoroughly considered and passed uponin our deliberations, which led to our
Decision dated 1 February 2012. We emphasize that in light of the finding of violation of the right of
Escalona et al. to speedy trial, the CA’s dismissal of the criminal case against them amounted to an
acquittal,  and that any appeal or reconsideration thereof would result in a violation of their right
15

against double jeopardy.  Though we have recognized that the acquittal of the accused may be
16

challenged where there has been a grave abuse of discretion,  certiorari would lie if it is convincingly
17

established that the CA’s Decision dismissing the case was attended by a whimsical or capricious
exercise of judgment equivalent to lack of jurisdiction. It must be shown that the assailed judgment
constitutes "a patent and gross abuse of discretion amounting to an evasion of a positive duty or to a
virtual refusal to perform a duty imposed by law or toact in contemplation of law; an exercise of
power in an arbitrary and despotic manner by reason of passion and hostility; or a blatant abuse of
authority to a point so grave and so severe as to deprive the court of its very power to dispense
justice."  Thus, grave abuse of discretion cannot be attributed to a court simply because it allegedly
18

misappreciated the facts and the evidence. 19

We have taken a second look at the court records, the CA Decision, and petitioner’s arguments and
found no basis to rule that the CA gravely abused its discretion in concluding that the right to speedy
trial of the accused was violated. Its findings were sufficiently supported by the records of the case
and grounded in law. Thus, we deny the motion of petitioner Villa with finality.

Ruling on the Motion for Reconsideration filed by the OSG

We likewise deny with finality the Motion for Reconsideration filed by the OSG with respect to G.R.
Nos. 155101 (Dizon v. People) and 154954 (People v. Court of Appeals). Many of the arguments
raised therein are essentially a mere rehash of the earlier grounds alleged in its original Petition for
Certiorari.

Furthermore, we cannot subscribe to the OSG’s theory that even if the act complained of was born
of imprudence or negligence, malicious intent can still be appreciated on account of the gravity of the
actions of the accused. We emphasize that the finding of a felony committed by means of culpa is
legally inconsistent with that committed by means of dolo. Culpable felonies involve those wrongs
done as a result of an act performed without malice or criminal design. The Revised Penal Code
expresses thusly:

ARTICLE 365. Imprudence and Negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer the
penalty of arresto mayorin its maximum period toprisión correccional in its medium period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium
periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayorin its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.

xxxx

Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform suchact, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and
place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest. (Emphases supplied)

On the other hand, intentional felonies concern those wrongs in which a deliberate malicious intent
to do an unlawful act is present. Below is our exhaustive discussion on the matter:  Our Revised
20

Penal Code belongs tothe classical school of thought. x x x The identity of mens rea– defined as a
guilty mind, a guilty or wrongful purpose or criminal intent – is the predominant consideration. Thus,
it is not enough to do what the law prohibits. In order for an intentional felony to exist, it is necessary
that the act be committed by means of doloor "malice."

The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and
intent. x x x x The element of intent – on which this Court shall focus – is described as the state of
mind accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the
resolve with which a person proceeds.It does not refer to mere will, for the latter pertains to the act,
while intentconcerns the result of the act. While motive is the "moving power" that impels one to
action for a definite result, intent is the "purpose" of using a particular means to produce the result.
On the other hand, the term "felonious"means, inter alia, malicious, villainous, and/or proceeding
from an evil heart or purpose.With these elements taken together, the requirement of intent in
intentional felony must refer to malicious intent, which is a vicious and malevolent state of mind
accompanying a forbidden act. Stated otherwise, intentional felony requires the existence of dolus
malus– that the act or omission be done "willfully," "maliciously," "with deliberate evil intent," and
"with malice aforethought." The maxim is actus non facit reum, nisi mens sit rea– a crime is not
committed if the mind of the person performing the act complained of is innocent. As is required of
the other elements of a felony, the existence of malicious intent must be proven beyond reasonable
doubt.

xxxx

The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing
the commission of the intentional felony of homicide. Being mala in se, the felony of homicide
requires the existence of malice or dolo immediately before or simultaneously with the infliction of
injuries. Intent to kill – or animus interficendi– cannot and should not be inferred, unless there is
proof beyond reasonable doubt of such intent. Furthermore, the victim’s death must not have been
the product of accident, natural cause, or suicide. If death resulted from an act executed without
malice or criminal intent – but with lack of foresight, carelessness, or negligence – the act must be
qualified as reckless or simple negligence or imprudence resulting in homicide.

xxxx

In order to be found guilty ofany of the felonious acts under Articles 262 to 266 of the Revised Penal
Code, the employment of physical injuries must be coupled with dolus malus. As an act that is mala
in se, the existence of malicious intent is fundamental, since injury arises from the mental state of
the wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused
cannot be found guilty of an intentional felony. Thus, incase of physical injuries under the Revised
Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the
physical integrity or wellbeing of a person, so as to incapacitate and deprive the victim of certain
bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt
act of inflicting physical injuries per semerely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty unless his
intentions are.

Thus, we have ruled in a number of instances that the mere infliction of physical injuries,
absentmalicious intent, does not make a person automatically liable for an intentional felony.x x x.

xxxx

The absence of malicious intent does not automatically mean, however, that the accused fraternity
members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies
that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from which an
immediate personal harm, injury or material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In this case, the danger is visible
and consciously appreciated by the actor. In contrast, simple imprudence or negligence comprises
an act done without grave fault, from which an injury or material damage ensues by reason of a
mere lack of foresight or skill. Here, the threatened harm is not immediate, and the danger is not
openly visible.

The test for determining whether or not a person is negligent in doing an act is as follows: Would a
prudent man in the position of the person to whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the course about to be pursued? If so, the law
imposes on the doer the duty to take precaution against the mischievous resultsof the act. Failure to
do so constitutes negligence.

As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of
precaution and diligence required varies with the degree of the danger involved. If, on account of a
certain line of conduct, the danger of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to be very careful, inorder to prevent or
avoid damage or injury. In contrast, if the danger is minor, not much care is required. It is thus
possible that there are countless degrees of precaution or diligence that may be required of an
individual, "from a transitory glance of care to the most vigilant effort." The duty of the person to
employ more or less degree of care will depend upon the circumstances of each particular case.
(Emphases supplied, citations omitted)

We thus reiterate that the law requires proof beyond reasonable doubt of the existence of malicious
intent or dolus malus before an accused can be adjudged liable for committing an intentional felony.

Since the accused were found to have committed a felony by means of culpa, we cannot agree with
the argument of the OSG. It contends that the imposable penalty for intentional felony can also be
applied to the present case on the ground that the nature of the imprudence or negligence of the
accused was so gross that the felony already amounted to malice. The Revised Penal Code has
carefully delineated the imposable penalties as regards felonies committed by means of culpaon the
one hand and felonies committed by means of doloon the other in the context of the distinctions it
has drawn between them. The penalties provided in Article 365 (Imprudence and Negligence) are
mandatorily applied if the death of a person occurs as a result of the imprudence or negligence of
another. Alternatively, the penalties outlined in Articles 246 to 261 (Destruction of Life) are
automatically invoked if the death was a result of the commission of a forbidden act accompanied by
a malicious intent. These imposable penalties are statutory, mandatory, and not subjectto the
discretion of the court. We have already resolved – and the OSG agrees – that the accused Dizon
and Tecson et al. had neither animus interficendi nor animus iniuriandi in inflicting physical pain on
Lenny Villa. Hence, we rule that the imposable penalty is what is applicable to the crime of reckless
imprudence resulting in homicide as defined and penalized under Article 365 of the Revised Penal
Code.

Ruling on the Motions for Clarification or Reconsideration

filed by Tecson et al.

We clarify, however, the effect of our Decision in light of the motions of respondents Tecson et al.
vis-à-vis G.R. No. 154954 (People v. Court of Appeals).

The finality of a CA decision will not

bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.
In their separate motions,  respondents insist that the previous verdict of the CA finding them guilty
21

of slight physical injuries has already lapsed into finality as a result of their respective availments of
the probation program and their ultimate discharge therefrom. Hence, they argue that they can no
longer be convicted of the heavier offense of reckless imprudence resulting in
homicide.  Respondents allude to our Decision in Tan v. People  to support their contention that the
22 23

CA judgment can no longer be reversed or annulled even by this Court.

The OSG counters  that the CA judgment could not have attained finality, as the former had timely
24

filed with this Court a petition for certiorari. It argues that a Rule 65 petition is analogous to an
appeal, or a motion for new trial or reconsideration, in that a petition for certiorarialso prevents the
case from becoming final and executory until after the matter is ultimately resolved.

Indeed, Rule 120 of the Rules of Court speaks of the finality of a criminal judgment once the
accused applies for probation, viz:

SECTION 7. Modification of judgment. — A judgment of convictionmay, upon motion of the accused,

be modified or set aside before it becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment becomes finalafter the lapse of the period for perfecting an
appeal, or whenthe sentence has been partially or totally satisfied or served, or when the
accusedhas waived in writing his right to appeal, or has applied for probation. (7a) (Emphases
supplied)

Coupled with Section 7 of Rule 117  and Section 1 of Rule 122,  it can be culled from the foregoing
25 26

provisions that only the accused may appeal the criminal aspect of a criminal case, especially if the
relief being sought is the correction or review of the judgment therein. This rule was instituted in
order to give life to the constitutional edict against putting a person twice in jeopardy of punishment
27

for the same offense. It is beyond contention that the accused would be exposed to double jeopardy
if the state appeals the criminal judgment in order to reverse an acquittal or even to increase criminal
liability. Thus, the accused’s waiver of the right to appeal – as when applying for probation – makes
the criminal judgment immediately final and executory. Our explanation in People v. Nazareno is
worth reiterating:
28

Further prosecution via an appeal from a judgment of acquittal is likewise barred because the
government has already been afforded a complete opportunity to prove the criminal defendant’s
culpability; after failing to persuade the court to enter a final judgment of conviction, the underlying
reasons supporting the constitutional ban on multiple trials applies and becomes compelling. The
reason is not only the defendant’s already established innocence at the first trial where he had been
placed in peril of conviction, but also the same untoward and prejudicial consequences of a second
trial initiated by a government who has at its disposal all the powers and resources of the State.

Unfairness and prejudice would necessarily result, as the government would then be allowed
another opportunity to persuade a second trier of the defendant’s guilt while strengthening any
weaknesses that had attended the first trial, all in a process where the government’s power and
resources are once again employed against the defendant’s individual means. That the second
opportunity comesvia an appeal does not make the effects any less prejudicial by the standards of
reason, justice and conscience. (Emphases supplied, citations omitted)

It must be clarified, however, that the finality of judgment evinced in Section 7 of Rule 120 does not
confer blanket invincibility on criminal judgments. We have already explained in our Decision that the
rule on double jeopardy is not absolute, and that this rule is inapplicable to cases in which the state
assails the very jurisdiction of the court that issued the criminal judgment.  The reasoning behind the
29

exception is articulated in Nazareno, from which we quote: 30

In such instance, however, no review of facts and law on the merits, in the manner done in an
appeal, actually takes place; the focus of the review is on whether the judgment is per sevoid on
jurisdictional grounds, i.e., whether the verdict was rendered by a court that had no jurisdiction; or
where the court has appropriate jurisdiction, whether it acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. In other words, the review is on the question of whether
there has been a validly rendered decision, not on the question of the decision’s error or
correctness. Under the exceptional nature of a Rule 65 petition, the burden — a very heavy one — is
on the shoulders of the party asking for the review to show the presence of a whimsical or capricious
exercise of judgment equivalent to lack of jurisdiction; or of a patent and gross abuse of discretion
amounting to an evasion of a positive duty or a virtual refusal to perform a duty imposed by law or to
act in contemplation of law; or to an exercise of power in an arbitrary and despotic manner by reason
of passion and hostility. (Emphases supplied, citations omitted) While this Court’s Decision in Tan
may have created an impression of the unassailability of a criminal judgment as soon as the
accused applies for probation, we point out that what the state filed therein was a mere motion for
the modification of the penalty, and not a Rule 65 petition. A petition for certiorari is a special civil
action that is distinct and separate from the main case. While in the main case, the core issue is
whether the accused is innocent or guilty of the crime charged, the crux of a Rule 65 petition is
whether the court acted (a) without or in excess of its jurisdiction; or (b) with grave abuse of
discretion amounting to lack or excess of jurisdiction. Hence, strictly speaking, there is
nomodification of judgment in a petition for certiorari, whose resolution does not call for a re-
evaluation of the merits of the case in order to determine the ultimate criminal responsibility of the
accused. In a Rule 65 petition, any resulting annulment of a criminal judgment is but a consequence
of the finding of lack of jurisdiction.

In view thereof, we find that the proper interpretation of Section 7 of Rule 120 must be that it is
inapplicable and irrelevant where the court’s jurisdiction is being assailed through a Rule 65 petition.
Section 7 of Rule 120 bars the modification of a criminal judgment only if the appeal brought before
the court is in the nature of a regular appeal under Rule 41, or an appeal by certiorari under Rule 45,
and if that appeal would put the accused in double jeopardy. As it is, we find no irregularity in the
partial annulment of the CA Decision in CA-G.R. No. 15520 in spite of its finality, as the judgment
therein was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

The orders of Caloocan City RTC

Branch 130 have no legal effect, as
they were issued without jurisdiction.

First, Tecson et al. filed their Applications for Probation with the wrong court. Part and parcel of our
criminal justice system is the authority or jurisdiction of the court to adjudicate and decide the case
before it. Jurisdiction refers to the power and capacity of the tribunal to hear, try, and decide a
particular case or matter before it.  That power and capacity includes the competence to pronounce
31

a judgment, impose a punishment,  and enforce or suspend  the execution of a sentencein

32 33

accordance with law.

The OSG questions  the entire proceedings involving the probation applications of Tecson et al.
34

before Caloocan City RTC Branch 130. Allegedly, the trial court did not have competence to take
cognizance of the applications, considering that it was not the court of origin of the criminal case.
The OSG points out that the trial court that originally rendered the Decision in Criminal Case No. C-
38340(91) was Branch 121 of the Caloocan City RTC.

The pertinent provision of the Probation Law is hereby quoted for reference:
SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best; Provided, That
no application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction. x x x x (Emphases supplied)

It is obvious from the foregoing provision that the law requires that an application for probation be
filed withthe trial court that convicted and sentenced the defendant, meaning the court of origin.
Here, the trial court that originally convicted and sentenced Tecson et al.of the crime of homicide
was Branch 121 – not Branch 130 – of the Caloocan City RTC.  Neither the judge of Branch 130 in
35

his Orders nor Tecson et al.in their pleadings have presented any explanation or shown any special
authority that would clarify why the Applications for Probation had not been filed with or taken
cognizance of by Caloocan City RTC Branch 121. While we take note that in a previous case, the
CA issued a Decision ordering the inhibition of Branch 121 Judge Adoracion G. Angeles from
hearing and deciding Criminal Case No. C-38340(91), the ruling was made specifically applicable to
the trial of petitioners therein, i.e. accused Concepcion, Ampil, Adriano, and S. Fernandez. 36

Tecson et al. thus committed a fatal error when they filed their probation applications with Caloocan
City RTC Branch 130, and not with Branch 121. We stress that applicants are not at liberty to
choose the forum in which they may seek probation, as the requirement under Section 4 of the
Probation law is substantive and not merely procedural. Considering, therefore, that the probation
proceedings were premised on an unwarranted exercise of authority, we find that Caloocan City
RTC Branch 130 never acquired jurisdiction over the case.

Second, the records of the casewere still with the CA when Caloocan City RTC Branch 130 granted
the probation applications. Jurisdiction over a case is lodged with the court in which the criminal
action has been properly instituted.  If a party appeals the trial court’s judgment or final
37

order,  jurisdiction is transferred to the appellate court. The execution of the decision is thus stayed
38

insofar as the appealing party is concerned.  The court of origin then loses jurisdiction over the
39

entire case the moment the other party’s time to appeal has expired.  Any residual jurisdiction of the
40

court of origin shall cease – including the authority to order execution pending appeal – the moment
the complete records of the case are transmitted to the appellate court.  Consequently, it is the
41

appellate court that shall have the authority to wield the power to hear, try, and decide the case
before it, as well as to enforce its decisions and resolutions appurtenant thereto. That power and
authority shall remain with the appellate court until it finally disposes of the case. Jurisdiction cannot
be ousted by any subsequent event, even if the nature of the incident would have prevented
jurisdiction from attaching in the first place.

According to Article 78 of the Revised Penal Code, "[n]o penalty shall be executed except by virtue
of a final judgment." A judgment of a court convicting or acquitting the accused of the offense
charged becomes final under any of the following conditions among others:  after the lapse of the
42

period for perfecting an appeal; when the accused waives the right to appeal; upon the grant of a
withdrawal ofan appeal; when the sentence has already been partially or totally satisfied or served;
or when the accused applies for probation. When the decision attains finality, the judgment or final
order is entered in the book of entries of judgments.  If the case was previously appealed to the CA,
43

a certified true copy of the judgment or final order must be attached to the original record, which
shall then be remanded to the clerk of the court from which the appeal was taken.  The court of
44

origin then reacquires jurisdiction over the case for appropriate action. It is during this time that the
court of origin may settle the matter of the execution of penalty or the suspension of the execution
thereof,  including the convicts’ applications for probation.
45 46
A perusal of the case records reveals that the CA had not yet relinquished its jurisdiction over the
case when Caloocan City RTC Branch 130 took cognizance of the Applications for Probation of
Tecson et al. It shows that the accused filed their respective applications  while a motion for
47

reconsideration was still pending before the CA  and the records were still with that court.  The CA
48 49

settled the motion only upon issuing the Resolution dated 30 August 2002 denying it, or about seven
months after Tecson et al. had filed their applications with the trial court.  In September 2002, or
50

almost a month before the promulgation of the RTC Order dated 11 October 2002 granting the
probation applications,  the OSG had filed Manifestations of Intent to File Petition for Certiorari with
51

the CA  and this Court.  Ultimately, the OSG assailed the CA judgments by filing before this Court a
52 53

Petition for Certiorari on 25 November 2002.  We noted the petition and then required respondents
54

to file a comment thereon.  After their submission of further pleadings and motions, we eventually
55

required all parties to file their consolidated memoranda.  The records of the case remained with the
56

CA until they were elevated to this Court in 2008. 57

For the foregoing reasons, we find that RTC Branch 130 had no jurisdiction to act on the probation
applications of Tecson et al. It had neither the power nor the authority to suspend their sentence,
place them on probation, order their final discharge, and eventually declare the case against them
terminated. This glaring jurisdictional faux pasis a clear evidence of either gross ignorance of the law
oran underhanded one-upmanship on the part of RTC Branch 130 or Tecson et al., or both – to
which this Court cannot give a judicial imprimatur.

In any event, Tecson et al. were ineligible to seek probation at the time they applied for it.
Probation  is a special privilege granted by the state to penitent qualified offenders who immediately
58

admit their liability and thus renounce their right to appeal. In view of their acceptance of their fate
and willingness to be reformed, the state affords them a chance to avoid the stigma of an
incarceration recordby making them undergo rehabilitation outside of prison. Some of the major
purposes of the law are to help offenders to eventually develop themselves into law-abiding and self
respecting individuals, as well as to assist them in their reintegration with the community.

It must be reiterated that probation is not a right enjoyed by the accused. Rather, it is an act of grace
orclemency conferred by the state. In Francisco v. Court of Appeals,  this Court explained thus:
59

It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by
all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally for the benefit of the
accused. The Probation Law should not therefore be permitted to divest the state or its government
of any of the latter’s prerogatives, rights or remedies, unless the intention of the legislature to this
end is clearly expressed, and no person should benefit from the terms of the law who is not clearly
within them. (Emphases supplied)

The OSG questions the validity of the grant of the probation applications of Tecson et al.  It points
60

out that when they appealed to the CA their homicide conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to Section 4 of Presidential Decree No. 968 (the
Probation Law).

We refer again to the full text ofSection 4 of the Probation Law as follows:

SEC. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best; Provided, That
no application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable. (Emphases supplied)

Indeed, one of the legal prerequisites of probation is that the offender must not have appealed the
conviction.  In the 2003 case Lagrosa v. Court of Appeals,  this Court was faced with the issue of
61 62

whether a convict may still apply for probation even after the trial court has imposed a non
probationable verdict, provided that the CA later on lowers the original penalty to a sentence within
the probationable limit. In that case, the trial court sentenced the accused to a maximum term of
eight years of prisión mayor, which was beyond the coverage of the Probation Law. They only
became eligible for probation after the CA reduced the maximum term of the penalty imposed to 1
year, 8 months and 21 days of prisión correccional.

In deciding the case, this Court invoked the reasoning in Francisco and ruled that the accused was
ineligiblefor probation, since they had filed an appeal with the CA. In Francisco, we emphasized that
Section 4 of the Probation Law offers no ambiguity and does not provide for any distinction,
qualification, or exception. What is clearis that all offenders who previously appealed their cases,
regardless of their reason for appealing, are disqualified by the law from seeking probation.
Accordingly, this Court enunciated in Lagrosathat the accused are disallowed from availing
themselves of the benefits of probation if they obtain a genuine opportunity to apply for probation
only on appeal as a result of the downgrading of their sentence from non-probationable to
probationable.

While Lagrosa was promulgated three months after Caloocan City RTC Branch 130 issued its
various Orders discharging Tecson et al. from probation, the ruling in Lagrosa, however, was a mere
reiteration of the reasoning of this Court since the 1989 case Llamado v. Court of Appeals  and
63

Francisco. The Applications for Probation of Tecson et al., therefore, should not have been granted
by RTC Branch 130, as they had appealed their conviction to the CA. We recall that respondents
were originally found guilty of homicide and sentenced to suffer 14 years, 8 months, and 1 day of
reclusion temporal as maximum. Accordingly, even if the CA later downgraded their conviction to
slight physical injuries and sentenced them to 20 days of arresto menor, which made the sentence
fall within probationable limits for the first time, the RTC should have nonetheless found them
ineligible for probation at the time.

The actions of the trial court must thus be adjudged as an arbitrary and despotic use of authority, so
gross that it divested the court of its very power to dispense justice. As a consequence, the RTC
Orders granting the Applications for Probation of Tecson et al. and thereafter discharging them from
their criminal liability must be deemed to have been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction.

Whether for lack of jurisdiction orfor grave abuse of discretion, amounting to lack or excess of
jurisdiction, we declare all orders, resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void for having been issued without
jurisdiction. We find our pronouncement in Galman v. Sandiganbayan  applicable, viz:
64

A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no
rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It
neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.
(Emphasis supplied)

The ultimate discharge of Tecson et

al. from probation did not totally
extinguish their criminal liability.

Accused Bantug asserts  that, in any event, their criminal liability has already been extinguished as
65

a result of their discharge from probation and the eventual termination of the criminal case against
them by Caloocan City RTC Branch 130. To support his argument, he cites the following provision of
the Revised Penal Code:

ARTICLE 89. How Criminal Liability is Totally Extinguished. — Criminal liability is totally
extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and all its effects.

4. By absolute pardon.

5. By prescription of the crime.

6. By prescription of the penalty.

7. By the marriage of the offended woman, as provided in article 344 of this Code.
(Emphasis supplied)

As previously discussed, a void judgment cannot be the source of legal rights; legally speaking, it is
as if no judgment had been rendered at all. Considering our annulment of the Orders of Caloocan
City RTC Branch 130 in relation to the probation proceedings, respondents cannot claim benefits
that technically do not exist.

In any event, Tecson et al.cannot invoke Article89 of the Revised Penal Code, as we find it
inapplicable to this case. One of the hallmarks of the Probation Law is precisely to "suspend the
execution of the sentence,"  and not to replace the original sentence with another, as we pointed out
66

in our discussion in Baclayon v. Mutia: 67

An order placing defendant on "probation" is not a "sentence" but is rather in effect a suspension of
the imposition of sentence. It is not a final judgment but is rather an "interlocutory judgment"in the
nature of a conditional order placing the convicted defendant under the supervision of the court for
his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if the conditions are violated. (Emphases supplied)

Correspondingly, the criminal liability of Tecson et al.remains.

In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.

Very recently, in Colinares v. People,  we revisited our ruling in Franciscoand modified our
68

pronouncements insofar as the eligibility for probation of those who appeal their conviction is
concerned. Through a majority vote of 9-6, the Court En Bancin effect abandoned Lagrosaand
settled the following once and for all:
69

Secondly, it is true that under the probation law the accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by
the regional trial court,now set aside; and, two, a conviction for attempted homicide by the Supreme
Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the
trial court’s judgment — even if this has been found in error. And, worse, Arnel will now also be
made to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for
probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw(the horse errs, the carabao gets
the whip). Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of Appealsthat the probation law requires that an
accused must not have appealed his conviction before he can avail himself of probation. But there is
a huge difference between Franciscoand this case.

xxxx

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. Hewas not in a position to say,
"By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation
under this Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains
that those who will appeal from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.

xxxx

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months maximum. This would
have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his.
The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory provisions. As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he comes within its letter; to do so
would be to disregard the teaching in many cases that the Probation Law should be applied in favor
of the accused not because it is a criminal law but to achieve its beneficent purpose.

xxxx

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he would havehad the right to apply for probation.
No one could say with certainty that he would have availed himself of the right had the RTC
doneright by him. The idea may not even have crossed his mind precisely since the penalty he got
was not probationable.

The question in this case is ultimately one of fairness.  Is it fair to deny Arnel the right to apply for
1âwphi1

probation when the new penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation? (Emphases supplied)

In our Decision, we set aside the RTC and the CA judgments and found Tecson et al.ultimately liable
for the crime of reckless imprudence resulting in homicide. Pursuant to Article 365 of the Revised
Penal Code, the offense is punishable by arresto mayor in its maximum period (from 4 months and 1
day to 6 months) to prisión correccional in its medium period (from 2 years, 4 months, and 1 day to 4
years and 2 months). Considering that the new ruling in Colinares is more favorable to Tecson et al.,
we rule that they are now eligible to apply for probation. Since Fidelito Dizon (Dizon) was convicted
of the same crime, we hereby clarify that Dizon is also eligible for probation.

While we cannot recognize the validityof the Orders of RTC Branch 130, which granted the
Applications for Probation, we cannot disregard the fact that Tecson et al. have fulfilled the terms
and conditions of their previous probation program and have eventually been discharged therefrom.
Thus, should they reapply for probation, the trial court may, at its discretion, consider their
antecedent probation service in resolving whether to place them under probation at this time and in
determining the terms, conditions, and period thereof.

Final clarificatory matters

We now take this opportunity to correct an unintentional typographical error in the minimum term of
the penalty imposed on the accused Dizon and Tecson et al. While this issue was not raised by any
of the parties before us, this Court deems it proper to discuss the matter ex proprio motuin the
interest of justice. In the first paragraph of the dispositive portion of our Decision dated 1 February
2012, the fourth sentence reads as follows:

They are hereby sentenced to suffer anindeterminate prison term of four (4) months and one (1) day
of arresto mayor, as minimum, to four (4) years and two (2) months of prisión correccional, as
maximum.

As we had intended to impose on the accused the maximum term of the "penalty next lower" than
that prescribed by the Revised Penal Code for the offense of reckless imprudence resulting in
homicide, in accordance with the Indeterminate Sentence Law (ISL),  the phrase "and one (1) day,"
70

which had been inadvertently added, must be removed. Consequently, in the first paragraph of the
dispositive portion, the fourth sentence should now read as follows:

They are hereby sentenced to suffer anindeterminate prison term of four (4) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prisión correccional, as maximum. In
this instance, we further find it important to clarify the accessory penalties inherent to the principal
penalty imposed on Dizon and Tecson et al.

By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a corresponding accessory

penalty automatically attaches every time a court lays down a principal penalty outlined in Articles 25
and 27 thereof.  The applicable accessory penalty is determined by using as reference the principal
71

penaltyimposed by the court before the prison sentence is computed in accordance with the
ISL.  This determination is made in spite of the two classes ofpenalties mentioned in an
72

indeterminate sentence. It must be emphasized that the provisions on the inclusion of accessory
penalties specifically allude to the actual "penalty"  imposed, not to the "prison sentence"  set by a
73 74

court. We believe that the ISL did not intend to have the effect of imposing on the convict two distinct
sets of accessory penalties for the same offense.  The two penalties are only relevant insofar as
75

setting the minimum imprisonment period is concerned, after which the convict may apply for parole
and eventually seek the shortening of the prison term. 76

Under Article 365 of the Revised Penal Code, the prescribed penalty for the crime of reckless
imprudence resulting in homicide is arresto mayor in its maximum period to prisión correccionalin its
medium period. As this provision grants courts the discretion tolay down a penalty without regard to
the presence of mitigating and aggravating circumstances, the imposable penaltymust also be within
the aforementioned range.  Hence, before applying the ISL, we ultimately imposed on Dizon and
77

Tecson et al. the actual (straight) penalty  of four years and two months of prisión
78

correccional.  Pursuant to Article 43 of the Revised Penal Code, the penalty of prisión correccional
79

automatically carries with it  the following accessory penalties: ARTICLE 43. Prisión Correccional—
80

Its accessory penalties. — The penalty of prisión correccional shall carry with it that of suspension
from public office, from the right tofollow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen
months. The offender shall suffer the disqualification provided in this article although pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.

The duration of their suspension shall be the same as that of their principal penalty sans the ISL;
that is, for four years and two months  or until they have served their sentence in accordance with
81

law. Their suspension takes effect immediately, once the judgment of conviction becomes final. 82

We further point out that if the length of their imprisonment exceeds 18 months, they shall
furthermore suffer a perpetual special disqualification from the right of suffrage. Under Article 32 of
the RevisedPenal Code, if this accessory penalty attaches, it shall forever deprive them of the
exercise of their right (a) to vote in any popular election for any public office; (b) to be elected to that
office; and (c) to hold any public office.  Any public office that they may be holding becomes vacant
83

upon finality of the judgment.  The aforementioned accessory penalties can only be wiped out if
84

expressly remitted in a pardon. 85

Of course, the aforementioned accessory penalties are without prejudice to a grant of probation,
shouldthe trial court find them eligible therefor. As we explained in Baclayon,  the grant of probation
86

suspends the execution of the principal penalty of imprisonment, as well as that of the accessory
penalties. We have reiterated this point in Moreno v. Commission on Elections: 87

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant
of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well
as the accessory penalties of suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted
from the order granting probation the paragraph which required that petitioner refrain from continuing
with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special disqualification from the
right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant
of probation.

It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put on
hold for the duration of the probation. x x x x. During the period of probation, the probationer does
not serve the penalty imposed upon him by the court but is merely required to comply with all the
conditions prescribed in the probation order.

WHEREFORE, premises considered, the Motion for Partial Reconsideration of petitioner Gerarda H.
Villa in connection with G.R. Nos. 178057 & 178080 is hereby DENIED. The Motion for
Reconsideration filed by the Office of the Solicitor General concerning G.R. Nos. 155101 and
154954 is also DENIED.

The respective Motions for Clarification or Reconsideration of Antonio Mariano Almeda, Junel
Anthony D. Arna, Renato Bantug, Jr., and Vincent Tecson are likewise DENIED. In light of the
finding that Caloocan City Regional Trial Court Branch 130 acted without or in excess of its
jurisdiction in taking cognizance of the aforementioned Applications for Probation, we hereby
ANNUL the entire probation proceedings and SET ASIDE all orders, resolutions, or judgments
issued in connection thereto. We, however, CLARIFY that Antonio Mariano Almeda, Junel Anthony
D. Arna, Renato Bantug, Jr., Vincent Tecson, and Fidelito Dizon are eligible to apply or reapply for
probation in view of our recent ruling in Colinares v. People of the Philippines,  without prejudice to
88

their remaining civil liability, if any.

Furthermore, we issue a CORRECTION of the dispositive portion of our Decision dated 1 February
2012 and hereby delete the phrase "and one (1) day" located in the fourth sentence of the first
paragraph thereof. The sentence shall now read as follows: "They are hereby sentenced to suffer an
indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4) years and two
(2) months of prisi6n correccional, as maximum."

SO ORDERED.
G.R. No. 130144      May 24, 2001

MELECIA PAÑA and EMMANUEL TIGUMAN, petitioners, 

vs.
JUDGE FLORIPINAS C. BUYSER, Presiding Judge, Branch 30, RTC, THE PEOPLE OF THE
PHILIPPINES and the HEIRS OF JOSE JUANITE, SR. and JOSE JUANITE, JR.,  respondents. 

----------------------------------------

G.R. No. 130502-03      May 24, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
EMMANUEL TIGUMAN, MELECIA PAÑA, ROBERT BAYAN, JOHN DOE, and EFREN PAÑA
(ACQUITTED), accused,
EMMANUEL TIGUMAN and MELECIA PAÑA, accused–appellants. 

BUENA, J.:

For a simple land dispute, father and son were sprayed with bullets right in their own house by some
goons for hire. The culprits were Jose Bilboro Pomoy, Jr., alias "Robert Bayan," accused –
appellants Emmanuel Tiguman, a.k.a. "Manny," and Melecia Paña, who were convicted of murder
and sentenced to death by the trial court, filed with this court a petition for certiorari under rule 65,
docketed as G.R. No. 130144, imputing grave abuse of discretion to the lower court in convicting
them. Since their conviction is on automatic review due to the penalty imposed, docketed as G.R.
Nos. 130502-03, this Court treated their petition for certiorari as an appeal.1

On December 10, 1993, Jose Juanite, Sr. and his son Jose Juanite, Jr. were in their residence in
San Pedro, Alegria, Surigao del Norte conversing with members of their family. When someone
knocked on the door, ten-year old Teotimo Questo, Jr. opened it. Upon opening the door, a man
suddenly burst in and fired at Jose Juanite, Sr. His son, Jose Juanite, Jr., rushed towards the door it
close it but he was shot from the window by another man. The gunshot wounds sustained by both
father and son caused their instantaneous deaths.

This incident led to the filling of two (2) criminal information for murder against appellant Tiguman,
accused Pomoy, Jr. and one John Doe. Subsequently, the informations2 were amended to include
spouses Efren and appellant Paña, as principals by inducement. 

Upon arraignment appellants Tiguman and the spouses Paña pleaded not guilty to the charge.
Thereafter, trial ensued.

Pomoy, Jr. was arrested only after the prosecution has rested its case. When he was arraigned, he
initially pleaded not guilty to the separate charges of murder. Later however, his motion to plead
guilty to the lesser offense of homicide was granted which he was convicted. The Trial court issued
an order sentencing Pomoy, Jr. to suffer for each case the indeterminate penalty of six (6) years and
one (1) day of prision mayor minimum, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal medium, as maximum.3 

After trial, judgement was rendered by the lower court convicting appellant Tiguman, as principal by
direct participation, and appellant Paña , as principal by inducement, for the crime of murder and
sentenced each of them to death. However, the trial court acquitted appellant Paña's husband Efren
Paña for insufficiency of evidence. The dispositive portion of the court a quo's decision reads:4

"WHEREFORE, finding the accused Emmanuel (Manny) Tiguman and Melicia Paña GUILTY
beyond reasonable doubt in both cases as principals [Emmanuel (Manny) Tiguman, by direct
participation; Melicia Paña, by inducement] in the crimes of MURDER qualified by treachery,
defined and penalized in Article 248 of the Revised Penal Code, as amended by Section 6 of
Republic Act No. 7659, and after considering against them the aggravating circumstances of
evident premeditation, dwelling and price of reward, this Court hereby imposes upon each
one of the said accused the penalty of DEATH BY LETHAL INJECTION in each of these
cases; and, to pay the costs.

"The accused Emmanuel (Manny) Tiguman and Melicia Paña are hereby ordered, jointly and
severalty, to indemnify the heirs of Jose Juanite, Sr. and Jose Juanite Jr., respectively in the
sum of fifty Thousand (P50,000.00) Pesos, for the death of each of the forenamed
deceased; actual damages in the sum of One Hundred fifty Thousand (P100,000.00) Pesos,
for both deceased. 1âwphi1.nêt

"Pursuant to Supreme Court Administrative Circular No.2-92, dated January 20, 1992, the
bail bond posted for the provisional liberty of the accused Melicia Paña is hereby ordered
CANCELLED and said accused shall be placed in confinement, pending resolution of her
automatic appeal.

"Let the records of these cases be transmitted to the Supreme Court for automatic review.

"Relative to the accused Efren Paña, he is hereby ACQUITTED of the crime Murder,
charged in each of the herein information, for insufficiency of evidence. The bail bond,
therefore, posted for his provisional liberty is hereby ordered RELEASED. 

"In regard to the accused John Doe, let Criminal Case No. 4232 be ARCHIVED, subject to
be revived as soon said accused is identified and apprehended.

"SO ORDERED." 

Sought for before us is the reversal of the foregoing decision on the grounds that the trail court
committed errors-5

"1. When it convicted the appellants in the absents of evidence that would prove guilty
beyond reasonable doubt;

"2. When it admitted the testimony of accused Jose Bilboro Pomoy., Jr. alias Robert Bayan
as evidence in chief during the rebuttal stage of the trial;

"3. When it ignore the evidence for the defense which has clearly wrecked that of the
prosecution's just like the Walls of Jericho;

"4. When it imposed the death penalty without authority of law.

After a careful and thought perusal of the evidence on record, the court is convinced that the
prosecution had discharged its burden by proving appellants' guilty with the requisite quantum of
evidence in criminal cases which is proof beyond reasonable doubbt.6
There is no doubt as to appellant Tiguman's direct participation. He was the principle triggerman who
shot Jose Juanite, Sr. to death since he was positively identified by Maria Elena Juanite who was
present at the scene when the shooting happened. According to Maria Elena, who is the daughter
and sister of the victims , at around 6:30 in the evening of December 10, 1993, when knocks on the
door were heard, her brother Juanite, Jr. requested the young Questo, Jr. to open the door. Upon
opening the door, appellant Tiguman went inside and shot Juanite, Sr. without warning. When her
brother Jose Juanite, Jr. rushed to close the door, Pomoy, Jr., who was positioned outside the house
of the Juanites, fired at Jose, Jr. from the window.

Moreover, appellant Tiguman's participation in the killing was affirmed in open court by no less than
his co-accused Pomoy, Jr. who pleaded guilty to lesser offense of homicide. According to her latter,
he was an information of appellant Tiguman. He also testified how appellant Paña solicited appellant
Tiguman, a scout ranger of the Philippine Army,7 to kill the Juanites for some monetary
consideration. The plant to kill was hatched in the house of the Paña spouses in their presence.
Pomoy, Jr. describe in the detail that the plan to kill the victims was on account of a land dispute and
that money was paid by appellant Paña to appellant Tiguman to accomplish the task. The killing was
facilitated with the aid of two (2) other men unknown to hem but were known to appellant Tiguman.
After killing the victims, Pomoy, Jr. left the placed and settled in Parañaque, Metro Manila upon the
advice of appellant Tiguman.8 Pomoy, Jr. narrated their evil design to the minutest details, facts
which could not have been known except only to the parties and their co-conspirators. All the more
this lends credence to the truth that appellants were indeed the culprits behind the fatal shooting.

Appellant, however, assail the admission of the testimony of Pomoy, Jr. as rebuttal witness on the
ground that the prosecution had already rested its case. This is misleading, because in the order of
trial set by the rules, the parties may present rebuttal evidence.9 It is settled that the right to present
evidence is reserved to the State no less than to the accused.10 The rules of evidence permit the use
of considerable discretion by the trial courts in the admission of rebuttal evidence. It cannot be said
that the trail court abused its discretion in this respect, where the trial defendant is not taken by
surprise and is not prevented from introducing evidence in sur-rebuttal.11 

In any case, assuming that the testimonies of prosecution witness Maria Elena Juanite and rebuttal
witness Pomoy, Jr., are inadmissible in evidence, the culpability of appellant Tiguman was clearly
established by the positive identification of other prosecution witnesses.

Testifying for the prosecution, the 10-year old Questo Jr., was actually present with the Juanites at
the time the shooting happened. He testified that prior to the shooting, he saw appellants Tiguman,
Pomoy, Jr. and an unidentified person on December 10, 1993, between 6;00 to 6:30 in the evening,
in the waiting shed of Purok 5, Barangay San Pedro, Alegria, Surigao del Norte, carrying a sack from
where the muzzles of firearms were protruding. The young boy, on the witness stand declared and
positively identified appellant Tiguman as the person who suddenly shot Juanite, Sr. in the latte's
house.12 Another prosecution witness, Arturo Balesteros, testified that moments after he heard
gunshot coming from the residence of the Juanites, he saw Manny Tiguman pass by, coming from
the direction of the Juanite house.

Against such overwhelming evidence, appellant Tiguman could only offer denied and alibi as his
defenses which are inherently weak and unreliable.13 He claims that at the time of the incident on
that fatal night, he was in camp Evangelista, Cagayan de Oro City, which is a neighboring city of the
province of Surigao del Norte. Appellant Tiguman's alibi is worthless in the face of his positive
identification14 by prosecution witnesses who have no motive to wrongly accuse him of such
ignominious crime. His alibi is self-serving and his bare denied is a negative declaration which
deserves no consideration and cannot prevail over the affirmative testimony which was corroborated
by further evidence.15 Another prosecution witness, Graciano Madelo, a driver in the ricemill of a
certain engineer in the locality, testified that appellant Tiguman was present in Alegria, Surigao del
Norte on the day the Juanites were killed. In fact, Madelo was tasked by Manny Tiguman to drive for
him to pick up Pomoy, Jr. and their unidentified companion. These threads of events form a chain of
circumstantial evidence which when taken together, clearly establish the presence of appellant
Tiguman in the crime scene. The record is bereft of evidence that these witnesses were motivated
by ill considerations and intent, hence their testimony is given full probative value.16

The other appellant, "Meling" Paña, was convicted below as principal by inducement. Prosecution
evidence showed that appellant Paña had motive to kill the Juanites because of a land dispute. It
appears that spouses Juanites filed an agrarian case against Efren Paña, husband of accused
appellant who was acquitted in said case, together with other people.17 When judgement was
rendered in favor of spouses Juanite, the spouses Paña harbored a grudge against the Juanites.
Prosecution witness Anita Sanchez, wife of Macario Sanchez, who was one of the respondents in
the DARAB case, testified assistance in ordered to "liquidate" Jose Juanite, Sr. Sanchez
subsequently learned that the Juanites were shot to death.

The domestic helper of the Juanites, Elena Siaboc, testified that appellant Paña requested from her
pictures of the victims which she obliged by giving them to appellant Paña. This shows that the
killing of the Juanites was conceived by appellant Paña. Since appellant Tiguman could not have
known the victims, a pictures was necessary to identify the targets.

Andy Acebedo, neighbor of spouses Paña likewise testified in court that on December 8, 1993 he
saw Pomoy, Jr., accused–appellant Tiguman, pass by and proceed to the house of the Pañas.
When he followed them, he overheard accused appellant Paña telling accused–appellant Tiguman,
Pomoy, Jr., and two persons unknown to him, to kill Jose Juanite, Sr. and Jr.

Prosecution witness Gemma Bacor, whose house is located just across the house of the Juanites,
testified that on that fateful night, while watching television, she heard gunfire. She opened the door
of her house and saw two persons in the street carrying firearms. Bacor further testified that on
January 2, 1994, the Paña spouses invited her to their residence and asked her to execute an
affidavit to the effect that what she saw on that her night were only children and not adults. Such
invitation to execute a misleading statement is an indicia of guilty of silence a living witness to their
horrible deed, and perpetrate an injustice to the poor victims of their greed.

Testimonies of prosecution witness are given weight and credence absent proof of ill will, or motive,
to testify against the accused. Prosecution witnesses, Andy Acebedo, Elena Siaboc, Gemma Bacor
are not maliciously motivated to testify against appellant Paña. The latter herself testified that there
exist no misunderstanding between her and the witnesses mentioned.

In this case, no reason appears for the Court to disregard the trial court's assessments. To wit:

"In summary, insofar as the accused Melecia Paña is concerned. there is proof beyond
reasonable doubt that, as a result exists on the part of said accused to caused the killing of
Jose Juanieta, Sr. and Jose Juanieta, Jr.; that, on November 25, 1993, the accused Melecia
Paña procured pictures of the said victims from prosecution witness Elena Siaboc; that, in
the evening of December 8, 1993, the accused Melecia Paña, Emmanuel (Manny) Tiguman,
Jose Bilboro Pomoy, Jr. a.k.a. Robert Bayan, and a certain Glen and Nonoy met in the Paña
residence and there, they planned, the killing of the Juanites, during which occasion the
accused Melecia Paña instructed Manny Tiguman and Robert Bayan, thus:'; that is all, ha?
You will kill Jose Juanite, Sr. and Jose Juanite, Jr.; that the accused Melicia Paña handed
the money to Manny Tiguman, saying: here is the money. This is one half of the total price,
'bahala na nimo' (it is up to you); and that, on January 2, 1994, the accused Melecia Paña
 and her husband, Efren Paña , invited prosecution witness Gemma Bacor to the formers
residence and there, the Paña spouses convinced the latter to execute an affidavit that
would declare that the persons, whom Gemma Bacor saw passing by her residence in the
evening of December 10, 1993, after she learned gunshots, were children and not adults,
contrary to what Gemma Bacor had actually seen.

"From the facts thus proven, there is no doubt that the accused Melicia Paña induced her co-
accused Emmanuel [Manny] Tiguman and Jose Bilboro Pomoy, Jr. (Robert Bayan) to kill
Jose Juanite, Sr. and Jose Juanite, Jr. in the evening of December 10, 1993, at San Pedro,
Alegria, Surigao del Norte."18

The trial court ruled that the crime committed was murder after finding that the killing were attended
by treachery, evident premeditation, dwelling and price or reward. Only one aggravating
circumstance is enough to qualify the killing to murder, the rest constitute generic aggravating
circumstances. We agree with the trial court that treachery was proven since the "attack was
sudden, unexpected, without warning, and without giving victims an opportunity to deafened
themselves or repel the aggression, as in fact the deceased did not sense any danger that they
would be shot by the assailants as there was no grudge and misunderstanding between
them."19 Dwelling is also aggravating considering that the assailants were in the sanctity of their own
home – which is perhaps the last bulwark of their safety. An unsuspecting knock on the door
betrayed that trust of peace in the family who were only conversing. Dwelling, or morada, is
aggravating when crime is committed in the dwelling of the offended party20 and the latter has not
given provocation.21 Provocation in dwelling must be: (a) given by the offended party, (b) sufficient,
and (c) immediate to the commission of the crime.22 no such provocation concurs herein. With
respect to evident premeditation, the hiring of Tiguman to kill the victims for a price, providing the
victims' picture and meeting to carry out the killing provide more than sufficient evidence to
appreciate the same. As to the circumstance of price or reward, it can only be appreciated against
appellant Tiguman since it was he who committed the felonious act for money. the same evidence
on price established conspiracy between the appellants. Consequently the act of one is the act of
all.23

The fact that the husband of appellant Paña, one of the alleged conspirators or induces in the killing,
was acquitted of the charges does not put to doubt appellant's culpability. Thought conspiracy is a
joint act, there is nothing irregular if the supposed co-conspirator is acquitted and others convicted.
Generally, conspiracy is only a means by which a crime is committed as the mere act of conspiring
is not by it self punishable. Hence, it does not follow that one person alone cannot be convicted
when there is conspiracy. As long as the acquittal of a co-conspirator does not remove the basis of a
charge of conspiracy, one defendant may be guilty of the offense.24

Murder committed in 1993 is penalized with reclusion temporal maximum to death.25 Under Article

64 of the Revised Penal Code, When only an aggravating circumstance is present in the commission
of the act, the maximum period shall be imposed, and whatever may be the number and nature of
the aggravating circumstances, the court may not impose a greater penalty than that prescribed by
law in its maximum period Considering however, the proscription in the 1987 Constitution on the
imposition of death penalty, the trial court erred in imposing on appellants Tiguman and Paña the
death penalty. The crimes in this case committed prior to the restoration of the Death Penalty law on
December 31, 1993.26 

With respect to the monetary awards, the civil indemnity of P50,000.00 awarded to each of the heirs
of two victims, as well as the additional P50,000.00 as moral damages each, are proper. The civil
indemnity is automatically granted to the offended party of his heirs in the case of death, without
need of further evidence other then the fact of the commission of the crime and the accused-
appellants' culpability therefor.27 On the actual damages of P150,000.00 awarded by the court a
quo, the same lack evidentiary basis on the records.28 No receipt or any document was presented in
support thereof. Nonetheless, the amount of P15,000.00 as temperate damages would suffice in lieu
of the unproven burial expenses.29 In addition to such monetary awards, P50,000.00 as exemplary
damages should have also been granted considering the presence of aggravating circumstances30

WHEREFORE, the decision of the trial court is hereby AFFIRMED with MODIFICATION that each

of Reclusion Perpetua, and are ordered to SOLIDARILY pay each of the heirs of the victims the civil
indemnity of P50,000.00, another P50,000.00 each as moral damage

SO ORDERED.
G.R. Nos. 131926 & 138991               June 18, 2003

PEOPLE OF THE PHILIPPINES, Appellee, 

vs.
MICHAEL U. PAGALASAN alias "Mike," RONNIE CABALO alias "Romy, ALADIN CABALO,
FERDINAND CORTEZ, a JOHN DOE identified only as FERNANDO, and a PETER DOE
identified only as "Bong," Accused.
MICHAEL U. PAGALASAN alias "Mike," Appellant.

DECISION

CALLEJO, SR., J.:

This is an automatic review of the Decision of the Regional Trial Court of General Santos City,
1 

Branch 35, convicting appellant Michael U. Pagalasan of two counts of kidnapping for ransom of
George Lim and his 10-year-old son Christopher Neal Lim and sentencing him to double death.

The Antecedents

The Spouses George and Desiree Lim and their three young children, one of whom was 10-year-old
Christopher Neal Lim, resided at Villa Consuelo Subdivision, General Santos City. The spouses
hired a security guard, Ferdinand Cortez, from the Valiant Security Agency to provide security
services to the family. On September 4, 1994, at 11:00 p.m., the spouses and their children were in
the master’s bedroom watching television. The couple’s housemaid, Julita Sarno, was in the kitchen.
She heard knocks on the kitchen door. Thinking that it was Ferdinand, she opened the door. Four
men, about 5’5" to 5’6" tall, each armed with handguns, two of whom were holding hand grenades,
barged into the kitchen. The four intruders wore bonnets over their faces. With them was Ferdinand,
whose hands were tied behind his back. When asked by the masked men where her employers
were, Julita responded that they were in their bedroom. On orders of the intruders, she knocked on
the bedroom door. When George’s daughter opened the door, three of the masked men barged into
the room, while the fourth masked man remained in the sala of the house. The three masked men
2 

shouted to George and Desiree: "Walang mangyayari sa inyo basta ibigay ninyo ang kailangan
namin." (Nothing will happen to you provided you give us what we want.) They ransacked the house,
3 

getting cash and valuables. The masked men gave Desiree a handwritten note, and dragged
4 

George and Christopher Neal Lim out of the bedroom through the sala to the garage, where
George’s Nissan car was parked for the night. George saw Ferdinand in the sala with his hands tied
behind his back. One of the masked men ordered George to hand over the key to his vehicle, to
board the car and occupy the back seat along with Christopher. Father and son did as they were
told. Two of the masked men positioned themselves on either side of George and Christopher. The
third man drove the car, while the fourth sat on the passenger’s seat beside the driver. The car
cruised along the national highway. When the car was nearing the Gambalan Kitchenette, George
and Christopher were blindfolded. The masked men told them that they would be brought to
Polomolok. After about fifteen minutes, the car stopped at Sitio Tupi. The two men who were seated
at the back and the masked man seated beside the driver alighted from the car, bringing Christopher
with them. George was transferred to the front seat beside the driver. George was told that he would
be transported to Maasim.

In the meantime, SPO2 Federico Paño, the duty officer of Police Precinct No. 2, received a radio
report that George Lim and his son Christopher had been kidnapped. Police investigators were
dispatched to the Lim residence to conduct an on-the-spot investigation. They brought Ferdinand
and Julita to the police station for investigation. SPO2 Renato Daga-as, SPO2 Datur Villanueva and
SPO1 Alimuddin Timbao were directed to establish a mobile checkpoint at the intersection of the
national highway and a dirt road (Espina Road). The three policemen boarded a Tamaraw mobile
car and parked it at the said intersection. At about thirty meters from the checkpoint, the masked
driver of the Nissan vehicle saw the police car. Instead of running the car through the checkpoint, the
driver stopped and switched off its headlights. He removed his bonnet and George’s blindfold,
warning the latter not to make any false move. George looked at the driver, who turned out to be the
appellant Michael Pagalasan.

The three police officers approached the car. Daga-as went to the right side of the car beside the
passenger seat, while Villanueva went to the left side, near the driver’s seat. For his part, Timbao
proceeded to the car’s rear end. Daga-as and Villanueva identified themselves to George and
Michael as police officers on the lookout for a certain George Lim and his son who had been
kidnapped in General Santos City. Daga-as inquired from George what his name was, and George
replied that he was Albert Lim. The driver identified himself as Michael Pagalasan. George gave a
false first name because he was afraid Michael might shoot him. Daga-as noticed that George’s
fingers were trembling. Villanueva knocked at the door on the driver’s side, and tried to open the
same, but it was locked. When Michael himself opened the door, Villanueva pulled him out of the
vehicle and brought him to the mobile car. Michael was suddenly in the custody of the policemen.
George then identified himself as one of the kidnapped victims. He also told the policemen that his
son was still with the other kidnappers. The policemen thereafter searched the Nissan car and found
a .38 caliber handgun with six live bullets in its chamber and a grenade under the driver’s seat. The
5  6  7 

policemen brought Michael and George to the police station where Ferdinand was being
interrogated by police investigators. Ferdinand told George that he had nothing to do with the
kidnapping, but before he could explain further, he was whisked into the investigation room. After
giving a sworn statement to the police investigator, George was allowed to go home. Desiree gave
George the handwritten letter earlier given to her by the kidnappers before they left the house that
evening. In the letter, the spouses were warned not to coordinate with the military, nor to take any
action in connection with the kidnapping without their knowledge or consent. They were also
informed that the malefactors would communicate with the couple, whether by letter or through the
telephone only through "MUBARAK II or 2." Julita executed an affidavit in connection with the
8 

kidnapping.9 

Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario to conduct a custodial
investigation on Michael. Recio asked Michael if he wanted to execute an affidavit, and Michael
replied that he was going to execute one. The police investigator inquired if he knew of any lawyer,
to which Michael replied in the negative. The police investigator then suggested Atty. Tomas C.
Falgui, a private practitioner, as his counsel. When Michael agreed, the police investigator phoned
the lawyer, requesting the latter to assist Michael while undergoing custodial investigation. The
lawyer agreed and forthwith proceeded to the police station. Michael gave his confession under
custodial investigation with the assistance of Atty. Falgui. 10 

In his confession, Michael admitted that upon orders of Ronnie Cabalo, he and three other men,
Aladin (Ronnie’s brother), a Muslim known as Ferdinand, and Bong (a resident of Purok Islam), had
kidnapped George and his son Christopher. Ronnie Cabalo instructed Michael to use George’s
vehicle to transport father and son to the banana plantation where Aladin, Ferdinand and Boy would
alight with Christopher, and to thereafter return George to his house. Aladin had given him a
handgun for his use. Ferdinand Cortez was in cahoots with them. He was at first reluctant to obey
Ronnie, but relented when he was told not to be afraid and to use the grenade in case of trouble.
George told him that he had already given money to Aladin, and that Michael’s companions had
taken some pieces of jewelry from him and his wife before they left the Lim residence.
In the light of Michael’s confession, farmer Hadji Aladin Malang Cabalo, Ronie Puntuan and
Fernando Quizon were arrested and detained at Camp Fermin Lira Barracks, General Santos City.
In the meantime, on September 6, 1994, George received another handwritten letter, ordering the
release of Michael and Ronie Puntuan because they were innocent, and demanding ₱3,000,000 for
Christopher’s release. 11 

On September 9, 1994, George received another handwritten letter dated September 9, 1994, this
time from "MUBARAK II or 2" informing him and his wife that the kidnappers did not want the military
to be involved nor innocent people to be prejudiced. The spouses were also warned that their son
would not be released alive unless Ronie Puntuan was freed in three days. On the same day at
12 

3:25 p.m., Ronie Puntuan, through counsel, filed a motion with the MTC praying that he be
transferred from the Camp Fermin Lira Barracks to the General Santos City Jail. 13 

In the morning of the following day, September 10, 1994, Christopher was rescued by policemen
without any ransom being paid. On September 13, 1994, George executed a sworn statement
relating to the incidents that happened from September 4, 1994 to September 10, 1994. 14 

Michael was charged with kidnapping for ransom and violation of PD 1866 before the Municipal Trial
Court (MTC) of General Santos City. 15 

During the initial stage of the preliminary investigation by the MTC on September 6, 1994, Atty.
Falgui appeared as Michael’s counsel and testified on what transpired immediately before, during
and after the custodial investigation, including Michael’s execution of his extrajudicial
confession. Michael was also placed on the witness stand and, with the assistance of counsel,
16 

testified on his extrajudicial confession. He affirmed the veracity of the contents of the said
confession. Subsequently, Michael, through his mother, secured the services of Atty. Emmanuel V.
17 

Fontanilla. On September 12, 1994, Michael executed an affidavit withdrawing his September 5,
1994 extrajudicial confession, in which he stated that: (a) he was not assisted by counsel of his own
choice when he executed the extrajudicial confession; and (b) Ronie Puntuan, who was arrested and
detained, was not Ronnie Cabalo. Michael also executed a counter-affidavit where he denied the
18 

accusations against him, and clarified that he was forced and intimidated into making his September
5, 1994 confession, and he was not provided with counsel of his own choice during custodial
investigation. His constitutional rights under custodial investigation were allegedly not sufficiently
explained to him. He filed the said affidavits with the MTC during the preliminary investigation.
19 

On September 23, 1994, the MTC issued a resolution finding probable cause for charging the
accused with kidnapping for ransom. The Office of the City Prosecutor conducted a reinvestigation
of the case. On October 4, 1994, the Office of the City Prosecutor issued a resolution ordering the
release of Hadji Aladin Malang Cabalo on the ground that he was not the Aladin Cabalo referred to
by Michael in his confession.20 

An Information for violation of PD 1866 was filed against Michael on October 17, 1994 with the
Regional Trial Court of General Santos City, Branch 22, docketed as Criminal Case No. 11062. On
November 3, 1994, Michael, Ronnie Cabalo, Aladin Cabalo, Ferdinand Cortez, a certain John Doe
identified as Fernando, and Peter Doe were charged with kidnapping for ransom in an Information,
docketed as Criminal Case No. 11098, which reads:

That on or about September 4, 1994, in General Santos City, Philippines, within the jurisdiction of
this Honorable Court, the said accused, conspiring, and confederating together and mutually helping
each other, did then and there willfully, unlawfully and feloniously kidnap George Lim, and his ten-
year-old son, Christopher Neal Lim, for the purpose of extorting ransom from the said victims.21 
The cases were raffled to Branch 22 of the Regional Trial Court. When arraigned in Criminal Case
No. 11062 for Violation of PD 1866, Michael pleaded not guilty. On February 6, 1995, Michael,
Ferdinand and Fernando Quizon were arraigned in Criminal Case No. 11098 and pleaded not
guilty. Ronnie Cabalo and Aladin Cabalo remained at-large. On August 24, 1995, the judge hearing
22 

the cases inhibited himself. Both cases were re-raffled, assigned to, and were tried jointly by Branch
35 of the Regional Trial Court.

During the trial, Michael, through counsel, admitted the truth of the contents of the affidavit executed
by Julita Sarno. Michael also executed an affidavit on December 5, 1995 alleging inter alia that he
23 

was forced at gunpoint by Boy and Aladin to barge into the Lim residence and drive the latter’s car,
and that he did not know Fernando Quizon. After the prosecution had presented all its witnesses, it
24 

filed a formal offer of its documentary evidence including Michael’s December 15, 1995 Sworn
Statement and his confession. Michael did not file any comment or opposition to the said offer. On
25 

May 3, 1996, the trial court issued an order admitting the prosecution’s documentary evidence,
including Michael’s confession. After the prosecution had rested its case, Fernando Quizon filed a
26 

demurrer to evidence in Criminal Case No. 11098. On July 2, 1996, the court issued an order
granting the demurrer to evidence of the said accused and acquitted him of the charge. 27 

The Defense and Evidence of the Accused

Ferdinand Cortez denied kidnapping George and Christopher. He testified that he had been
employed as a security guard by the Valiant Security Agency. He was assigned by the agency to
protect George Lim and his family. On the evening of September 4, 1994, Ferdinand was washing
George’s car in the garage. The house was surrounded by a 10-foot wall, and the gate was locked.
Ferdinand was shocked when masked men, armed with handguns, suddenly arrived. They poked
their guns at him, maltreated him, and tied his hands behind his back. The masked men knocked at
the door of the house and when the housemaid Julita Sarno opened it, the men dragged Ferdinand
towards the entrance, to make it appear that he was the one knocking. The masked men then
barged into the sala and tied Julita’s hands. Ferdinand claimed he never met any of the kidnappers
before September 4, 1994. He was puzzled why he was being implicated in the case.

For his part, Michael testified that he was a Muslim, 19 years of age, and an elementary school
graduate. He made a living as a conductor of his uncle’s jeepney. At night, the jeepney was parked
in Tambler, and it was where he usually slept. On the evening of September 4, 1994, at about 9:00
p.m., he was in their house at Purok Islam public market, General Santos City. His friend Bong
arrived, and invited him for a stroll and to accompany the latter to get a motorcycle. Michael agreed.
They took a tricycle and arrived at the Villa Consuelo Subdivision. Michael was surprised when the
tricycle stopped near the gate of the Lim residence and masked men suddenly appeared, poking
their guns at him. Bong fled, leaving Michael alone to fend for himself. The masked men ordered
Michael to drive a car, and warned him that if he refused, he would be killed. Momentarily, one of the
men emerged from the house, with George Lim in tow. George gave the key to his Nissan car to one
of the kidnappers, who in turn handed it over to Michael. The men forced George and his son
Christopher to board the car. Father and son were seated between two masked men. Afraid for his
life, Michael was forced to drive the car with one of the kidnappers pointing a gun at him, seated to
his right at the passenger’s side. The kidnappers ordered Michael to drive the car towards the
direction of Barangay Ligaya.

When the car reached a dark portion of the road in Barangay Ligaya, three of the men alighted,
bringing Christopher with them. Michael then pleaded to George to bring him first to Tambler, where
the jeepney of his uncle was parked. Michael wanted to sleep there instead of going home. George
agreed, and drove the car himself through Barangay Makar. George told Michael that they had to
travel along Espina road, a dirt road, instead of the regular road because they might encounter
policemen, and Christopher might be killed by his kidnappers. However, the car had to stop at the
intersection of the national highway and Espina Road when George saw policemen and the mobile
police car parked at the intersection.

Michael was arrested by the police, blindfolded, and brought to the mobile car where he was also
mauled. His head was banged against the sides of the mobile car. At the precinct, Michael was
mauled anew by the policemen. It was only after he had given his statement to a police investigator
that Atty. Falgui arrived and told Michael, "I am your lawyer." Atty. Falgui instructed Michael to tell
28 

the whole truth. When his mother Camaria Opong visited him, he told her that he had been
29 

blindfolded and mauled at the station, and that because of this, his body ached. She saw a big hump
in his head. On September 8, 1994, she secured the services of Atty. Fontanilla as counsel of her
son. The lawyer went to the City Jail and talked to Michael. Michael showed the lawyer the
contusions and bruises on his body, and the scratches on his neck. Michael told the lawyer that he
had been maltreated by an inmate at the detention cell. He also narrated that he knew nothing about
the kidnapping and that he was only hired by somebody to drive a car. Michael assured the lawyer
that he was not aware of the purpose of the culprits in kidnapping George and Christopher. On
September 9, 1994, Atty. Fontanilla executed an affidavit reiterating the information Michael
conveyed to him. On September 16, 1994, Michael filed an urgent motion for medical check-up,
30 

which the court granted. 31 

Dra. Virginia Ramirez, Officer-In-Charge of the City Integrated Health Services, examined Michael
on September 22, 1994 and found him suffering from myalgia residual or muscle pains due to
mauling, which she surmised took place about one week to ten days before the examination. She
issued a medical certificate of the said examination.
32 

On September 24, 1997, the trial court rendered judgment acquitting Ferdinand Cortez and
convicting Michael of kidnapping for ransom, the decretal portion of which reads:

JUDGMENT

WHEREFORE, premises considered, the accused is hereby sentenced as follows:

In Criminal Case No. 11062 for failure of the prosecution to prove the accusation against the
accused Michael Pagalasan beyond reasonable doubt, he is hereby ACQUITTED of the crime
charged.

In Criminal Case No. 11098, the accused Michael Pagalasan is hereby found guilty of the crime of
kidnapping for ransom as defined and penalized under Article 267 as amended by Section 8 of
Republic Act 7659, and there being no modifying circumstance to consider, he is sentenced to suffer
the EXTREME PENALTY OF DEATH insofar as the case of George Lim is concerned.

The same penalty of death shall also be imposed against Michael Pagalasan in the case of
Christopher Neal Lim who was kidnapped on the same occasion and was released only on the sixth
day after his captivity.

The case of Ferdinand Cortez, for lack of sufficient evidence to convict him, he is hereby
ACQUITTED of the crime charged.

SO ORDERED. 33 
The trial court ruled in Criminal Case No. 11098 that with or without the confession of Michael, the
prosecution adduced proof beyond reasonable doubt that he, in conspiracy with three others,
kidnapped George and Christopher. It found the testimony of George straightforward and positive,
credible and entitled to full probative weight. The trial court sentenced Michael to double death on its
finding that he and his cohorts kidnapped George and Christopher for the purpose of extorting
ransom. It disbelieved Michael’s confession implicating Ferdinand Cortez, and acquitted the latter for
failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court likewise
acquitted Michael in Criminal Case No. 11062.

Michael, now the appellant, asserts that:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF
KIDNAPPING FOR RANSOM OF CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF
KIDNAPPING FOR RANSOM OF ONE GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN
LAW.

III

THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE
ACCUSED-APPELLANT AND IN GIVING CREDENCE TO THE INCONSISTENT TESTIMONY OF
GEORGE LIM. 34 

The appellant is guilty of

kidnapping Christopher
under Article 267 of the
Revised Penal Code.

On the first assignment of error, the appellant avers that the prosecution failed to prove his guilt
beyond cavil of doubt for the crime of kidnapping Christopher. George’s testimony that the gun and
hand grenade were found in the car, under the seat beside the driver is inconsistent with his own
35 

statement before the police investigator that the said gun and grenade were found in the appellant’s
possession; hence, the testimony of George is incredible and barren of probative weight. The case
for the prosecution was enfeebled by its failure to present Christopher to testify on his kidnapping
and to corroborate the testimony of his father. The failure of the prosecution to present Christopher
as a witness raised the presumption that if he had been so presented, he would have testified on
matters adverse to the prosecution. For its part, the Office of the Solicitor General contends that the
testimony of George, its principal witness, as well as those of its other witnesses, is sufficient to
prove, beyond reasonable doubt, that the appellant conspired with three others in kidnapping
Christopher for ransom. There was no need for the prosecution to present Christopher to testify on
his kidnapping, as his testimony would be merely corroborative of his father’s account of events.

The contention of the appellant is barren of merit.

Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention. – Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death:

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, female, or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No.
7659).

For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond
reasonable doubt all the elements of the crime, namely: (a) the offender is a private individual; (b) he
kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention
or kidnapping must be illegal; and (d) in the commission of the offense any of the following
circumstances is present: (1) the kidnapping or detention lasts for more than three days; (2) it is
committed by simulating public authority; (3) any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are made; or (4) the person kidnapped or
detained is a minor, female, or a public officer. If the victim of kidnapping and serious illegal
36 

detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped
and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.

The essential elements for this crime is the deprivation of liberty of the victim under any of the
above-mentioned circumstances coupled with indubitable proof of intent of the accused to effect the
same. There must be a purposeful or knowing action by the accused to forcibly restrain the victim
37 

coupled with intent. 38 

Judge Learned Hand once called conspiracy "the darling of the modern prosecutor’s
nursery." There is conspiracy when two or more persons agree to commit a felony and decide to
39 

commit it. Conspiracy as a mode of incurring criminal liability must be proven separately from and
40 

with the same quantum of proof as the crime itself. Conspiracy need not be proven by direct
evidence. After all, secrecy and concealment are essential features of a successful conspiracy.
Conspiracies are clandestine in nature. It may be inferred from the conduct of the accused before,
during and after the commission of the crime, showing that they had acted with a common purpose
and design. Paraphrasing the decision of the English Court in Regina v. Murphy, conspiracy may
41  42 

be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of
the same unlawful object, each doing a part so that their combined acts, though apparently
independent of each other, were, in fact, connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment. To hold an accused guilty as a co-principal by
43 

reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance
of the complicity. There must be intentional participation in the transaction with a view to the
44 

furtherance of the common design and purpose. 45 

The United States Supreme Court in Braverman v. United States, held that the precise nature and
46 

extent of the conspiracy must be determined by reference to the agreement which embraces and
defines its objects. For one thing, the temporal dimension of the conspiracy is of particular
importance. Settled as a rule of law is that the conspiracy continues until the object is attained,
unless in the meantime the conspirator abandons the conspiracy or is arrested. There is authority to
the effect that the conspiracy ends at the moment of any conspirator’s arrest, on the presumption,
albeit rebuttable, that at the moment the conspiracy has been thwarted, no other overt act
contributing to the conspiracy can possibly take place, at least as far as the arrested conspirator is
concerned. The longer a conspiracy is deemed to continue, the greater the chances that additional
47 

persons will be found to have joined it. There is also the possibility that as the conspiracy continues,
there may occur new overt acts. If the conspiracy has not yet ended, then the hearsay acts and
declarations of one conspirator will be admissible against the other conspirators and one conspirator
may be held liable for substantive crimes committed by the others. 48 

Each conspirator is responsible for everything done by his confederates which follows incidentally in
the execution of a common design as one of its probable and natural consequences even though it
was not intended as part of the original design. Responsibility of a conspirator is not confined to the
49 

accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses
incident to and growing out of the purpose intended. Conspirators are held to have intended the
50 

consequences of their acts and by purposely engaging in conspiracy which necessarily and directly
produces a prohibited result that they are in contemplation of law, charged with intending the
result. Conspirators are necessarily liable for the acts of another conspirator even though such act
51 

differs radically and substantively from that which they intended to commit. The Court agrees with
52 

the ruling of the Circuit Court of Appeals (Second District) per Judge Learned Hand in United States
v. Peoni "that nobody is liable in conspiracy except for the fair import of the concerted purpose or
53 

agreement as he understood it; if later comers change that, he is not liable for the change; his
liability is limited to the common purpose while he remains in it." Earlier, the Appellate Court of
Kentucky in Gabbard v. Commonwealth held that:
54 

The act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so that
the connection between them may be reasonably apparent, and not a fresh and independent project
of the mind of one of the confederates, outside of or foreign to the common design, and growing out
of the individual malice of the perpetrator.

Equally persuasive is the pronouncement of the Circuit Court of Appeals (Second District) in United
States v. Crimms, that it is never permissible to enlarge the scope of the conspiracy itself by proving
55 

that some of the conspirators, unknown to the rest, have done what was beyond the reasonable
intendment of the common understanding. This is equally true when the crime which the
conspirators agreed upon is one of which they severally might be guilty though they were ignorant of
the existence of some of its constitutive facts. Also, while conspirators are responsible for
consequent acts growing out of the common design they are not for independent acts growing out of
the particular acts of individuals.
56 

In this case, the evidence on record inscrutably shows that the appellant and his three cohorts were
armed with handguns; two of them had hand grenades, and all of them had masks over their faces.
They gained entry into the Lim residence after overpowering the security guard Ferdinand and the
housemaid Julita, and tying their hands behind their backs. One of the masked men remained in the
sala, while the three others barged into the bedroom of George and Desiree, and kidnapped George
and his ten-year-old son Christopher. The appellant and his cohorts forced father and son to board
George’s car. The appellant drove the car, dropped off Christopher and his cohorts at Sitio Tupi, and
drove on with George in the car towards the direction of Maasim.

The collective, concerted and synchronized acts of the appellant and his cohorts before, during and
after the kidnapping constitute indubitable proof that the appellant and his three companions
conspired with each other to attain a common objective: to kidnap George and Christopher and
detain them illegally. The appellant was a principal by direct participation in the kidnapping of the two
victims.

The trial court found the testimony of George straightforward and positive, and entitled to credit and
full probative weight. The legal aphorism is that the findings of facts of the trial court, its calibration
57 

of the testimonies of witnesses and of their probative weight, its conclusions anchored on its findings
are accorded high respect by the appellate court, if not conclusive effect, because of the unique
advantage of the trial court of observing at close range the demeanor, conduct and deportment of
witnesses as they regale the trial court with their testimonies. It is true that the appellate court is not
58 

bound by the findings and conclusions of the trial court if the latter ignored, misunderstood,
misapplied or misinterpreted cogent facts and circumstances, which, if considered, would change
the outcome of the case. This ruling, however, is inapplicable in the case at bar, since the appellant
59 

failed to establish that the trial court erred in this wise.

George testified that when the policemen found the gun and grenade inside his car, the appellant
60 

was already at the police station. However, in his September 13, 1994 Affidavit, George stated that
61  62 

the policemen found the gun when the appellant was frisked, while the grenade was spotted under
the passenger’s seat, beside the driver. This seeming inconsistency between the two statements
does not discredit his testimony nor his credibility for the following reasons: (a) it is of judicial
knowledge that affidavits being taken ex parte are almost always incomplete and often inaccurate
and are generally inferior to the testimony of a witness in open court; (b) the credibility of George’s
63 

testimony cannot be impeached by the inconsistent statements contained in his sworn statement
because the said statement was not admitted in evidence; and Section 34, Rule 132 of the Revised
Rules of Evidence provides that the Court shall not consider evidence which has not been formally
offered; besides, George was not confronted with his sworn statement and accorded an opportunity
to explain the inconsistency; (c) the inconsistency refers to trivial, minor and collateral matters and
64 

not to the substance of his testimony. Such minor inconsistency even enhances its veracity as the
variances erase any suspicion of a rehearsed testimony. A truth-telling witness is not always
65 

expected to give an error-free testimony, considering the lapse of time and the treachery of human
memory. 66 

Neither is the case for the prosecution impaired by the failure of the prosecution to present
Christopher as its witness. It bears stressing that George’s testimony is corroborated by Julita and
the three arresting officers. Besides, case law has it that the testimony of a single witness, if positive
and credible, is sufficient to sustain a judgment of conviction. The law does not require the
67 

testimonies of at least two witnesses for the conviction of an accused for kidnapping and serious
illegal detention. The prosecution has the discretion to decide on who to call as witness during the
trial, and its failure to present a particular witness does not give rise to the presumption that
evidence willfully suppressed would be adverse if withheld, where the evidence is at the disposal of
the appellant and is merely cumulative or corroborative. In this case, the testimony of George is, by
68 

itself, independently of Christopher’s testimony, sufficient proof of the guilt of the appellant. George
had personal knowledge of the facts and circumstances of the kidnapping, as he himself had been
kidnapped along with his young son. His failure to testify on where Christopher was detained after
the three cohorts of the appellant had alighted from the car with Christopher, and the circumstances
surrounding the rescue do not weaken the case of the prosecution, as the said facts and
circumstances had occurred after the crime of kidnapping had already been a fait accompli.
The prosecution failed to prove
that in kidnapping George and
Christopher, the appellant and
his cohorts intended to extort
ransom.

The trial court convicted the appellant of kidnapping George and Christopher for ransom and
sentenced him to double death on its finding that the appellant and his co-accused conspired to
extort ransom for the release of the victims. For his part, the appellant contends that the prosecution
failed to prove the element of extorting ransom. The appellant argues that he cannot be held liable
for kidnapping for ransom, even if after his arrest on September 4, 1994 his co-conspirators actually
demanded ransom for Christopher’s release. The prosecution failed to prove that he had knowledge
of and concurred with the said demand.

The Court agrees with the appellant. The second paragraph of Article 267 of the Revised Penal
Code reads:

The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.

The provision is pursuant to Rep. Act No. 1084 approved on June 15, 1984 derived from the so-
called "Lindbergh Law" in the United States, approved on June 22, 1932, as amended on May 13,
1934.

To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal
detention for ransom, the prosecution must prove beyond reasonable doubt the following: (a) intent
on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his
liberty; (c) motive of the accused, which is extortion of ransom from the victim or any other person. In
kidnapping or serious illegal detention for ransom, the purpose of extorting ransom is a qualifying
circumstance which must be alleged in the Information and proved by the prosecution as the crime
itself by words and overt acts of the accused before, during and after the kidnapping and detention
of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to
be committed. Although kidnapping for a certain purpose is a qualifying circumstance, the law does
69 

not require that the purpose be accomplished. Ransom employed in the law is so used in its
70 

common or ordinary sense: a sum of money or other thing of value, price, or consideration paid or
demanded for redemption of a kidnapped or detained person, a payment that releases from
captivity. It may include benefits not necessarily pecuniary which may accrue to the kidnapper or a
71 

third person as a condition for the release of the victim.72 

In this case, the prosecution was able to prove beyond reasonable doubt that the appellant
conspired with three others to kidnap the victims. However, it failed to prove that they intended to
extort ransom from the victims themselves or from some other person, with a view to obtaining the
latter’s release. The kidnapping by itself does not give rise to the presumption that the appellant and
his co-conspirators’ purpose is to extort ransom from the victims or any other person.

The only evidence adduced by the prosecution to prove the element of extorting ransom are the
three handwritten letters: the first was received by Desiree on September 4, 1994, while the second
and third letters were received by George on September 6 and 9, 1994, respectively.

The handwritten letter received by Desiree on September 4, 1994, "first letter" for brevity, reads:
Para Sa Inyo Mr. & Mrs. Lim,

Una wag na wag kayong gumawa ng hakbang na hindi namin alam o gusto, lalong-lalo na sa
pakikipag-usap sa militar o magkoordinate sa militar ay hindi namin gustong mangyari ang ganon
mga sistem. Ang pangalawa, wag na wag kayong tumanggap ng negotiator na walang palatandaan
na galing sa amin, pakiusap lang yon na dapat ninyong sundin, madidisgrasya ang aming dala kung
kayo’y magkakamali ng hakbang.

Maliwanag sana sa inyo ang aming mga salaysay.

Note…

Palatandaan na galing sa aming hakbang ay ito –

MR. MUBARAK II or 2

Sulat man o telephone 73 

The letter received by George on September 6, 1994, "second letter" for brevity, reads:

Ronie Puntuan

Michael Pagalasan

Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan bago natin tapusin ang usapan
tatlong milyong piso (3,000,000) katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga
sundalo. Kailangan ang Black Out News. Huwag kang magkakamali Mr. Lim. Kunting sipyot mo
patay ang anak mo. Isang araw lamang ang tagal namin sa inyo.

(Sgd.) 74 

The handwritten letter received by George on September 9, 1994, "third letter" for brevity, reads:

Para sayo Mr. & Mrs. Lim,

Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-una, ayaw namin na mga asong
militar na makialam. Pangalawa, ayaw namin sa grupo na idamay ang tao na walang-alam.
Alalahanin mo mabuti lahat ng mga kataga na iniwan ko sayo, Mr. Lim. Ang taong dinampot ng
militar sa purok islam na si Ronie, ang taong yan walang conection (sic) sa grupo, sa madaling
usapan, Mr. Lim, alalahanin mo ang anak mo sa oras na tatlong araw na taong yan hindi makalabas.
Ang isipin mo ang anak mo hindi rin makalabas hanggat sa mabulok sa lupa (maliwanag).

(Sign)

Palatandaan

MUBARAK II - 2 75 

As gleaned from the three letters, there was no demand for ransom in exchange for George and
Christopher’s liberty. While there is a demand for ransom of ₱3,000,000 in the second letter, and a
demand for the release of Ronie Puntuan within three days in the third letter, the said demands are
in consideration of Christopher’s release from custody, and not that of George.

Even then, the prosecution failed to adduce evidence that the second letter demanding ransom in
the amount of ₱3,000,000 for the release of Christopher actually came from the appellant and his
co-conspirators. It bears stressing that in the first letter, the kidnappers made it clear to the couple
that only those communications, whether by letter or by telephone, bearing the name "MR.
MUBARAK II or 2" came from them:

Note…

Palatandaan na galing sa aming hakbang ay ito –

MR. MUBARAK II or 2

Sulat man o telephone 76 

The second letter received by George was signed by an unidentified person. It was not stated that
the letter came from "MUBARAK II-2." That the second letter could not have come from the
appellant and his cohorts is buttressed by the fact that the third letter, which came from "MUBARAK
II-2," does not even mention any demand for ransom in the amount of ₱3,000,000 for Christopher’s
release.

The Court can only surmise, but it is possible that the signatory and sender of the second letter
could have been acting independently of the appellant and his co-conspirators in order to profit from
the kidnapping. It bears stressing that the kidnapping of Christopher and George was already known
when the appellant was arrested on September 4, 1994, and the crime had already been reported to
the police authorities. Persons other than the co-conspirators of the appellant could have written the
letter.

Since there is no evidence that the signatory and sender of the second letter is a co-conspirator of
the appellant, the latter is not bound by the said letter, conformably to Section 28, Rule 130 of the
Revised Rules of Evidence which reads:

Sec. 28. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration,
or omission of another, except as hereinafter provided.

Even if it is assumed for the nonce that the second letter came from a co-conspirator, the same is
not binding on the appellant, absent evidence aliunde that he knew of and concurred with the said
ransom demand. It bears stressing that when George received the second letter on September 6,
1994, the appellant had already been arrested and detained. The conspiracy forged by the appellant
and his cohorts on or before September 4, 1994 had already ceased, when on the said date, the
appellant was arrested by the policemen and detained. 77 

Neither is the third letter admissible in evidence against the appellant to prove that he conspired with
others to demand the release of Ronie Puntuan in consideration for Christopher’s freedom. The
appellant and his cohorts could not have planned to demand ransom for the release of Ronie
Puntuan as early as September 4, 1994, the date of the kidnapping: Ronie had not yet been arrested
on this date. The appellant was arrested first, and Ronie’s detention was only to follow. Furthermore,
the third letter was sent to George on September 9, 1994. At that point, the appellant had already
been arrested by the policemen, and was already in jail. There is no evidence that while in jail, the
appellant had knowledge of and concurred with the said ransom demand. It may be reasonably
inferred that the appellant’s co-conspirators could have decided to demand Ronie Puntuan’s release
as a consideration for Christopher’s liberty, while the appellant was already languishing in jail. The
said demand for ransom was a new and independent project of the appellant’s co-conspirators,
growing out of their own malice, without any a priori knowledge on the part of the appellant or his
post facto concurrence therewith. Indeed, the records show that on September 9, 1994, the very day
the co-conspirators sent the third letter to George, Ronie Puntuan through counsel Atty. Jose Jerry
L. Fulgar, also the counsel for the appellant, filed a motion with the MTC, praying that he be detained
at the General Santos City Jail:

WHEREFORE, premises considered, it is most respectfully prayed that an order be please issued
directing that accused Ronie Puntuan be please detained at General Santos City Jail with the
instruction that the said accused be separated from his co-accused as desired by the Police
Officers.78 

That the appellant plotted with his co-conspirators to demand the release of Ronie Puntuan as a
condition for Christopher’s liberty is too far-fetched, considering that Ronie and the appellant had the
same lawyer. Ronie Puntuan himself, through his and the appellant’s counsel, prayed to the court
that he be transferred from Camp Fermin Lira Barracks to the General Santos City Jail.

The appellant is also guilty

of slight illegal detention of
George under Article 268
of the Revised Penal Code.

Aside from convicting the appellant of kidnapping Christopher, the trial court also convicted him of
kidnapping George under Article 267 of the Revised Penal Code. But the Office of the Solicitor
General contends that the appellant is guilty of another felony: slight illegal detention under Article
268 of the Revised Penal Code, because none of the circumstances enumerated in Article 267 of
the Revised Penal Code is present in the kidnapping and detention of George. The prosecution may
have failed to prove that the appellant and his co-conspirators intended to extort ransom for
George’s release; however, as a matter of substantive law, the appellant may be held guilty of two
separate crimes, although he and his co-conspirators kidnapped George and Christopher on the
same occasion and from the same situs. As a matter of procedural law, the appellant may be
convicted of slight illegal detention under the Information for kidnapping for ransom as the former is
necessarily included in the latter crime.

The Court agrees with the Office of the Solicitor General. The appellant is guilty of slight illegal
detention under Article 268 of the Revised Penal Code which reads:

Art. 268. Slight illegal detention. – The penalty of reclusion temporal shall be imposed upon any
private individual who shall commit the crimes described in the next preceding article without the
attendance of any of the circumstances enumerated therein.

The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the
crime.

If the offender shall voluntarily release the person so kidnapped or detained within three days from
the commencement of the detention, without having attained the purpose intended, and before the
institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and
medium periods and a fine not exceeding seven hundred pesos. (As amended by Republic Act No.
18).
While the epigraph or title of the article mentions only slight illegal detention, kidnapping committed
in connection with the lower offense of slight illegal detention is also covered by the article.
79 

The felony has the following essential elements:

1. That the offender is a private individual.

2. That he kidnaps or detains another, or in any other manner deprives him of his liberty.

3. That the act of kidnapping or detention is illegal.

4. That the crime is committed without the attendance of any of the circumstances
enumerated in Art. 267. 80 

The crime of slight illegal detention is consummated upon the occurrence of all the elements thereof.
"A day," in the last paragraph of Article 268 of the Revised Penal Code, should be understood as
twenty-four hours, to be counted from the deprivation of the liberty of the victim until the cessation
thereof. As Cuello Calon put it: "El plazo de los tres dias de veinte cuatro horas y desde el momento
de la privacion de libertad si en que esta cesare." The rescue or escape of the victim within three
81 

days from his kidnapping and detention is not an exempting circumstance. The voluntary release by
the offender of the victim within three days from his detention, without the offender having attained
his purpose and before the institution of criminal proceedings against him for slight illegal detention,
is not an exempting circumstance; it merely serves to reduce the penalty to prision mayor in its
maximum and medium periods and a fine not exceeding ₱700.

In this case, the appellant is a private individual. George had been kidnapped and detained illegally
by the appellant and his cohorts, but only for less than a day. George regained his freedom after the
appellant had been arrested at the intersection of the national highway and Espina Road. There is
no evidence that the appellant and his cohorts kidnapped George for the purpose of extorting
ransom for his release. There is likewise no evidence that they inflicted any serious physical injuries
on George, or simulated public authority, or threatened to kill him. Furthermore, there is no evidence
that the appellant and his cohorts intended to detain the victim for more than three days.

Although the appellant and his co-conspirators kidnapped George and Christopher on the same
occasion and from the same situs, the appellant is guilty of two separate crimes: kidnapping under
Article 267 of the Revised Penal Code, and slight illegal detention under Article 268 of the Revised
Penal Code. The appellant and his co-conspirators were animated by two sets of separate criminal
intents and criminal resolutions in kidnapping and illegally detaining the two victims. The criminal
intent in kidnapping Christopher was separate from and independent of the criminal intent and
resolution in kidnapping and detaining George for less than three days. In the mind and conscience
of the appellant, he had committed two separate felonies; hence, should be meted two separate
penalties for the said crimes: one for kidnapping under Article 267 of the Revised Penal Code and
another for slight illegal detention under Article 268 of the same code. The felony of slight illegal
82 

detention is necessarily included in the crime of kidnapping for ransom; thus, the appellant may be
convicted of the former crime under an Information for kidnapping for ransom. 83 

PENALTIES FOR THE CRIMES

COMMITTED BY THE APPELLANT

The crimes committed by the appellant were aggravated by dwelling, the victims having been
84 

kidnapped in their house; by the use of motor vehicle, the victims having been transported by the
85 
appellant from their house with the use of George’s car; and by a band, the crime having been
committed by the appellant and three co-conspirators. However, the Court cannot consider these
86 

aggravating circumstances in determining the proper penalties for the said crimes, because the
same were not alleged in the Information as mandated by Sections 8 and 9, Rule 110 of the Revised
Rules of Criminal Procedure. Although the said rules took effect after the commission of the crimes
87 

by the appellant, the same is favorable to the appellant; hence, should be applied retroactively.
88 

The appellant is not entitled to the privileged mitigating circumstance under the second paragraph of
Article 268 of the Revised Penal Code because he did not voluntarily release George within three
89 

days from the kidnapping. George was recovered by the policemen at the intersection of the national
highway and Espina Road.

The prescribed penalty for kidnapping under Article 267 of the Revised Penal Code as amended by
Rep. Act No. 7659 is reclusion perpetua to death. There being no aggravating circumstance or
modifying circumstance in the commission of the crime, the proper penalty for the said crime is
reclusion perpetua, conformably to Article 63 of the Revised Penal Code. The prescribed penalty for
slight illegal detention is reclusion temporal in its full period, with a range of twelve years and one
day to twenty years. To determine the minimum of the indeterminate penalty, the penalty shall be
reduced by one degree, prision mayor, which has a range of six years and one day to twelve years.
The minimum of the indeterminate penalty shall be taken from the full range of the penalty at the
discretion of the Court. The maximum of the indeterminate penalty shall be taken from the medium
period of reclusion temporal, conformably to Article 64, paragraph 1 of the Revised Penal Code.
Hence, the appellant shall suffer an indeterminate penalty of nine years and four months of prision
mayor in its medium period as minimum, to sixteen years and five months of reclusion temporal in its
medium period as maximum.

CIVIL LIABILITIES OF THE APPELLANT

Although the prosecution adduced testimonial evidence that the appellant and his co-conspirators
ransacked the bedroom of the victims and took cash and valuables, the prosecution nevertheless
failed to adduce any documentary evidence to prove the amount of the said cash and the value of
the jewelry. Hence, Spouses George and Desiree Lim are not entitled to actual damages.

Under Article 2219, paragraph 5 of the New Civil Code, moral damages may be recovered. In this
case, the prosecution adduced testimonial evidence that for the crimes committed by the appellant
and his co-conspirators, Spouses George and Desiree suffered mental anguish, fright and serious
anxiety caused by the kidnapping of George and their son Christopher. Considering the factual
milieu in this case, the Court believes that the said spouses are entitled to moral damages in the
amount of ₱100,000 for the kidnapping of Christopher, and the amount of ₱50,000 for the illegal
detention of George. The appellant is also liable to the spouses for exemplary damages in the total
amount of ₱50,000 for the two crimes conformably with current jurisprudence. 90 

IN LIGHT OF ALL THE FOREGOING, the Decision dated September 27, 1997 of the Regional Trial
Court of General Santos City, Branch 35, is AFFIRMED WITH MODIFICATIONS. Appellant Michael
Pagalasan alias "Mike" is found guilty of kidnapping under Article 267, paragraph 4 of the Revised
Penal Code and there being no modifying circumstances in the commission of the crime is hereby
sentenced to suffer the penalty of reclusion perpetua. Appellant Michael Pagalasan alias "Mike" is
found guilty beyond reasonable doubt of the crime of slight illegal detention under Article 268 of the
Revised Penal Code and there being no modifying circumstances in the commission of the crime is
hereby sentenced to suffer an indeterminate penalty of from nine years and four months of prision
mayor in its medium period as minimum to sixteen years and five months of reclusion temporal in its
medium period as maximum. The said appellant is ordered to pay to Spouses George and Desiree
Lim the total amount of ₱150,000 as moral damages; and ₱50,000 as exemplary damages in the
two cases.

Costs de oficio.

SO ORDERED.
G.R. No. 135981             January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee, 

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she
shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision of the Regional Trial
1 

Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
 provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages." 2 

The Information charged appellant with parricide as follows:

3 

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of

Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death." 4 

With the assistance of her counsel, appellant pleaded not guilty during her arraignment on March 3,
5 

1997. In due course, she was tried for and convicted of parricide.
6 

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time,
Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however,
appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte
where they lived with their two children, namely: John Marben and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for the masiaorunner to place a
bet. Arturo did not see appellant arrive but on his way home passing the side of the
Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied
'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He
was able to get inside through the kitchen door but only after destroying a window to reach a
hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the
police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas'
rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3
Acodesin proceeded to the house and went inside the bedroom where they found the dead
body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparadora
metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom
was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible
for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and
his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later filed against appellant. She concluded
 that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went home despite appellant's request for her
to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom." (Citations omitted)
7 

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent. 

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben
and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until
the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on
masiao numbers was rampant. I was waiting for the ushers and runners so that I can place
my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic
Genosa' that he should leave her and that Ben would always take her back after she would
leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos. )
8 

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified
that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped
through the window of his hut which is located beside the Genosa house and saw 'the
spouses grappling with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work as he was to go
fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was
the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive
'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and
I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep in the house as
Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx   xxx   xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and
the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who
is qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the
evening. She sought his help to settle or confront the Genosa couple who were experiencing
'family troubles'. He told Marivic to return in the morning, but he did not hear from her again
and assumed 'that they might have settled with each other or they might have forgiven with
each other.'

xxx   xxx   xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas
lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did
not bother anyone in Manila, rented herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded
by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he
kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his
things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa residence. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at
the time of the incident, and among her responsibilities as such was to take charge of all
medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there,
she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a
blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area
of the head' which she described as a 'fracture'. And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and
further found treachery as an aggravating circumstance, thus sentencing her to the ultimate
penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben Genosa and the re-
examination of the cause of his death; allow the examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of
said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the
only qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and discovered that 'there are lots of
variables that cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion
of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually
think very lowly of themselves and so when the violence would happen, they usually think
that they provoke it, that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion
of himself. But then emerges to have superiority complex and it comes out as being very
arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low
tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and
drugs. And they become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also, they see often
how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave
her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself
which makes her hope her husband will change, the belief in her obligations to keep the
family intact at all costs for the sake of the children.

xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house,
or lock themselves in another room, or sometimes try to fight back triggering 'physical
violence on both of them.' She said that in a 'normal marital relationship,' abuses also
happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and
'even would cause hospitalization on the victim and even death on the victim.'

xxx   xxx   xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it
was her opinion that Marivic fits the profile of a battered woman because 'inspite of her
feeling of self-confidence which we can see at times there are really feeling (sic) of loss,
such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in
the past.'

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing
for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.

xxx   xxx   xxx
"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was
in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he
was connected with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-
86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to
become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably
ten to twenty thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes confined.
The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.'
Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic constitutional stamina of
the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis
or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as
if it were real, although she is not actually being beaten at that time. She thinks 'of nothing
but the suffering.'
 xxx   xxx   xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love of the parents. As to the batterer, he
normally 'internalizes what is around him within the environment.' And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is so macho; he shows
his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx   xxx   xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in her mind or in his mind.'

xxx   xxx   xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted
for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and
social case studies as a help in forming his diagnosis. He came out with a Psychiatric
Report, dated 22 January 2001.

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He
said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point in time that things
happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is
mentally stress (sic) because of the predicament she is involved.'

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated." 9 

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a
pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan and Alfredo Pajarillo, supposedly experts on domestic
10  11 

violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12 

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.
 "7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death." 13 

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14 

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented. 

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation. 15 

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago, this16 

Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
 deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic. The defense raised no objection to
17 

these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben. Axiomatic is the rule that a judicial admission is conclusive upon
18 

the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made. Other than merely attacking the non-
19 

presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake. 

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of
said acts actually caused the victim's death." Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present. As the former further points out, neither the trial court nor the
20 

prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence. Well-settled is the rule
21 

that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense. 22 
The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or
23 

defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."
24 

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman." 25 

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve. 26 

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence," which has three phases: (1) the tension-building phase; (2) the acute battering incident;
27 

and (3) the tranquil, loving (or, at least, nonviolent) phase.

28 

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident.
29 

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt. 30 

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other. 31 

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you
and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx   xxx   xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

 Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me."  32 

Referring to his "Out-Patient Chart" on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
33 

bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr.
Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What
do you mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.
Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told
me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir. 

xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month
of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I
have a record here, also the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.
 Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 

34 

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.
35 

Ecel Arano also testified that for a number of times she had been asked by Marivic to sleep at the
36 

Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling. Marivic relates in detail the following backdrop of the fateful night
37 

when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, 'he was not home yet'. I was
worried because that was payday, I was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.
Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if
any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light
when the children were there.' At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag
you?
COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:
 Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me."  38 

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one
who was practically the bread earner of the family. The husband was involved in a lot of
vices, going out with barkadas, drinking, even womanizing being involved in cockfight and
 going home very angry and which will trigger a lot of physical abuse. She also had the
experience a lot of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was not his own. So
she was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out."  39 

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below: 

"Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx   xxx   xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

 A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes. 40 

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."41 

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, which was based on his interview and examination of Marivic Genosa. The Report said that
42 

during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x." 43 

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'" 44 

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common
myths and misconceptions about battered women. 45 

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape." In her years of research, Dr. Walker found that "the abuse
46 

often escalates at the point of separation and battered women are in greater danger of dying then." 47 

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them." 48 

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49 

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness. 50 

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism." After being repeatedly and severely
51 

abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."
52 

A study conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
53 

"even if a person has control over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying to escape." He said that it was
the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances." 54 

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape. Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
55 

relationship. Unless a shelter is available, she stays with her husband, not only because she
56 

typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more. 57 

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quohow the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not prove
the existence of the syndrome. In other words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house; that Ben would seek
58 

her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS. 

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas. 

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense. 59 

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense -- she must have
60 

actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not
merely imaginary. Thus, the Revised Penal Code provides the following requisites and effect of self-
61 

defense: 62 

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden
63 

and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person. In the
64 
present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'" Still, impending danger
65 

(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger. Considering such circumstances and the existence of BWS, self-defense may
66 

be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense. In the
67 

absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim. Thus, Marivic's killing of Ben was not completely justified under the circumstances.
68 

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not been raised by the
parties.
69 

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows: 

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed continuously. Marivic
truly experienced at the hands of her abuser husband a state of psychological paralysis
which can only be ended by an act of violence on her part."  70 

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder. Expounding thereon, he said:
71 

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is
the public and social support available to the victim. If nobody is interceding, the more she
will go to that disorder....
 xxx   xxx   xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder
is injury to the head, banging of the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it
is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book specifically that after six (6) months
is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder."  72 

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x
his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated." 73 

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts.There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 and 10 of Article 13 of the Revised Penal Code, this
74  75 

circumstance should be taken in her favor and considered as a mitigating factor.  76 

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that
this state of mind is present when a crime is committed as a result of an uncontrollable burst of
passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason. To appreciate this circumstance, the following requisites should concur: (1) there
77 

is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time, during which the
accused might recover her normal equanimity. 78 

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. His abusive and violent acts, an
79 

aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
80 

[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and
the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is
beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight months pregnant with their
child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part. 

Second Legal Issue:

Treachery
There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make. In order to qualify an act as treacherous, the circumstances invoked
81 

must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. Because of the gravity of the
82 

resulting offense, treachery must be proved as conclusively as the killing itself.

83 

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx   xxx   xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I
ran to the other room.

Q What else happened?

 A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer." 84 

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant. 85 

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must

have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked. There is no
86 

showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor. 87 

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 of the same Code. The penalty of reclusion temporal in its
88  89 

medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense. Under the Indeterminate Sentence Law, the
90 
minimum of the penalty shall be within the range of that which is next lower in degree -- prision
mayor -- and the maximum shall be within the range of the medium period of reclusion temporal. 

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be
released from detention on parole. 91 

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established. 

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.

However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
 DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio
V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from
"Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I
register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of
self-defense. It operates upon the premise that a woman who has been cyclically abused and
controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or
death, she knows that future beatings are almost certain to occur and will escalate over time. Her
intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is
forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and
constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive
possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an
existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate
on her acts and to choose a less fatal means of eliminating her sufferings.1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to

wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight physical
abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering incident phase which is
characterized by brutality, destructiveness and sometimes, death. The battered woman usually
realizes that she cannot reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief and the batterer may
show a tender and nurturing behavior towards his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more
than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's
witnesses clearly reveal that she knew exactly when she would once again be subjected to acute
battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she
was afraid every time her husband came home drunk. Clearly, whenever appellant requested for
Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo
Tero, also testified that appellant sought his help two months before she killed her husband, again
demonstrating that she was in the tension-building phase and was attempting to prevent another
incident of acute battery. Appellant presented evidence to prove that the tension-building phase
would occur whenever her husband would go out looking for other women, would lose at cockfights
or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by
some witnesses for the prosecution, even shouted back, fought off or even injured her husband
during the tension-building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to
the death of her husband, i.e., when she knew or felt that she was going to be killed by the
deceased. She could not possibly have testified with clarity as to prior tension-building phases in the
cycle as she had never tried to kill her husband before this time.
It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant
would seek shelter in her mother's or her father's house after an acute battering incident, after which
would begin the process of begging for forgiveness, promises of change in behavior and return to
the conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in
the ponencia, would mean that no person would ever be able to prove self-defense in a battered
woman case. Appellant could not possibly prove whether the deceased felt provoked into battering
by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole
support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped
and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or
did help her, whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by
Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter.2 The
physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage,3 six
incidents of which were documented by the 1990-1995 medical records of Marivic. They included,
among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on
the different parts of her body even during her pregnancy in 1995.4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than
5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive
the latter every time he would fetch her and promise to change.5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in
the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her
death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before
she was examined by experts on BWS. Unaware of the significance of her declarations, she
candidly narrated how she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key. [T]hen he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity on myself,
then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
 xxx       xxx       xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was
frightened I was about to die because of my blood pressure.

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and
I felt I was about to die also because of my blood pressure and the baby, so I got the gun
and shot him.7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic
before the lower court but only here on automatic review. This makes the foregoing testimony more
worthy of great weight and credence considering that the same could not have been cunningly given
to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino
Caing testified that he treated Marivic for hypertension due to domestically related emotional stress
on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe
hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined
Marivic, assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional
anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and...
physical abuse. The husband had very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices, going out
with barkadas, drinking, even womanizing, being involved in cockfighting and in going home
very angry which... triggered a lot of physical abuse. She also had the experience of taunting
from the husband for the reason that the husband even accused her of infidelity, the
husband was saying that the child she was carrying was not his own. So she was very angry,
she was at the same time very depressed because she .. .[felt] almost like living in purgatory
or even in hell when it was happening day in and day out.

xxx       xxx       xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties,
they were not enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun
her around. She tried to fight him so there was a lot of fight and when she was able to
escape, she went to another room and she locked herself with the children. And when the
husband was for a while very angry he calms down then and then (sic). But I remember
before that the husband was looking for the gun and I think he was not able to open the
cabinet because she had the key. So during that time, I remember, that she was very much
 afraid of him, so when the husband calmed down and he was asleep, all she was concerned
was to end up her misery, to save her child which she was carrying and to save her two
children. I believe that somehow she's not rational.9

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this
case that the books you studied in the expertise in line and in the 77 hour contact with
appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on
her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to
survive with her two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the
victim (sic)?

A If she did not do that she believes that she will be the one who would be killed.10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that
it was an apprehension of death and the instinct to defend her and her unborn child's life that drove
her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was
allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter.
Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack
must be imminent and actually in existence. This interpretation must, however, be re-evaluated vis-
a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered
Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear
for their life and thus respond in self-defense. Once BWS and an impending danger based on the
conduct of the deceased in previous battering episodes are established, actual occurrence of an
assault is no longer a condition sine qua non before self defense may be upheld. Threatening
behavior or communication can satisfy the required imminence of danger. As stated in
the ponencia, to require the battered person to await an obvious deadly attack before she can
defend her life would amount to sentencing her to murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the
physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place
of unlawful aggression, thus entitling her to a complete self defense even if there was
no actual employment of violence by the deceased at the time of the killing. Marivic had every
reason to believe that the deceased would kill her that night not only because the latter was verbally
threatening to kill her while attempting to get a gun from the drawer, but more importantly because
the deceased wounded her on the wrist with a bolo, and because of the deceased's previous
conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder
are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx       xxx       xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble
for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d]
hi[s] provocation and he switch off the light and I said to him, "why did you switch off the light
when the children were there." At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting because they were scared and
he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.11

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.
Q Were you wounded or were there inflictions on your body when he was holding and trying
to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx       xxx       xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx       xxx       xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the
following day I will leave, I was afraid and I want to make sure I would deliver my baby
safely.14

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes,
then he dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag...
you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me
that "you might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key. [T]hen he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity on myself,
then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

xxx       xxx       xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me.15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two
(2) hours after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

 Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In
the case at bar, there is more than sufficient physical evidence presented by the appellant from
which her mental state can be inferred. The prosecution did not object to the presentation of these
physical and testimonial pieces of evidence, namely, the medical records of 23 instances of
domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay
captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to
kill her spouse in the first place. The majority need not worry that women around the country will
mastermind the killings of their husbands and then use this Decision to bolster their attempts to
employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of

passion and obfuscation. This, at the very least, supports a finding that the acts of violence and
battery committed by the deceased were illegal and unlawful and were committed immediately
before appellant could recover her natural equanimity. But what is the natural equanimity of a
battered woman? Appellant was not a normal married woman. She can never be in a state of natural
equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly found that the appellant acted with diminished
will-power. However, he failed to go further. In the case of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the
claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the
accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of the killing. This Court can hardly rely on the
bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and
convincing evidence was shown that accused-appellant was suffering an illness which diminished
his exercise of will-power at the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that
she was a battered woman for 13-14 years and that she suffered from the "Battered Woman
Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus
presented is to make impossible the proof of mental state. Evidence as to the mental state need not
be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes
was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS
justified the killing of the deceased. The danger posed or created in her mind by the latter's threats
using bladed weapons, bred a state of fear, where under the circumstances, the natural response of
the battered woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is

a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes
to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered
Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the
charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

G.R. No. 168852           September 30, 2008

SHARICA MARI L. GO-TAN, Petitioner, 

vs.
SPOUSES PERFECTO C. TAN and JUANITA L. TAN, Respondents.*

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Resolution1 dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in Civil Case
No. Q-05-54536 and the RTC Resolution2 dated July 11, 2005 which denied petitioner's Verified Motion
for Reconsideration. 

The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were married.3 Out of
this union, two female children were born, Kyra Danielle4 and Kristen Denise.5 On January 12, 2005,
barely six years into the marriage, petitioner filed a Petition with Prayer for the Issuance of a Temporary
Protective Order (TPO)6 against Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L.
Tan (respondents) before the RTC. She alleged that Steven, in conspiracy with respondents, were
causing verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs (e)(2)
(3)(4), (h)(5), and (i)7 of Republic Act (R.A.) No. 9262,8 otherwise known as the "Anti-Violence Against
Women and Their Children Act of 2004."

On January 25, 2005, the RTC issued an Order/Notice9 granting petitioner's prayer for a TPO. 

On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance of
Permanent Protection Order Ad Cautelam and Comment on the Petition,10 contending that the RTC
lacked jurisdiction over their persons since, as parents-in-law of the petitioner, they were not covered by
R.A. No. 9262. 

On February 28, 2005, petitioner filed a Comment on Opposition11 to respondents' Motion to Dismiss
arguing that respondents were covered by R.A. No. 9262 under a liberal interpretation thereof aimed at
promoting the protection and safety of victims of violence. 

On March 7, 2005, the RTC issued a Resolution12 dismissing the case as to respondents on the ground
that, being the parents-in-law of the petitioner, they were not included/covered as respondents under R.A.
No. 9262 under the well-known rule of law "expressio unius est exclusio alterius."13

On March 16, 2005, petitioner filed her Verified Motion for Reconsideration14 contending that the doctrine
of necessary implication should be applied in the broader interests of substantial justice and due process. 

On April 8, 2005, respondents filed their Comment on the Verified Motion for Reconsideration15 arguing
that petitioner's liberal construction unduly broadened the provisions of R.A. No. 9262 since the
relationship between the offender and the alleged victim was an essential condition for the application of
R.A. No. 9262.

On July 11, 2005, the RTC issued a Resolution16 denying petitioner's 

Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the coverage
of R.A. No. 9262 would be a strained interpretation of the provisions of the law.

Hence, the present petition on a pure question of law, to wit:

WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF

SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE OF A PROTECTIVE ORDER,
IN ACCORDANCE WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE "ANTI-VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004".17

Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of Section 47 of
R.A. No. 9262 which explicitly provides for the suppletory application of the Revised Penal Code (RPC)
and, accordingly, the provision on "conspiracy" under Article 8 of the RPC can be suppletorily applied to
R.A. No. 9262; that Steven and respondents had community of design and purpose in tormenting her by
giving her insufficient financial support; harassing and pressuring her to be ejected from the family home;
and in repeatedly abusing her verbally, emotionally, mentally and physically; that respondents should be
included as indispensable or necessary parties for complete resolution of the case.

On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3
thereof explicitly provides that the offender should be related to the victim only by marriage, a former
marriage, or a dating or sexual relationship; that allegations on the conspiracy of respondents require a
factual determination which cannot be done by this Court in a petition for review; that respondents cannot
be characterized as indispensable or necessary parties, since their presence in the case is not only
unnecessary but altogether illegal, considering the non-inclusion of in-laws as offenders under Section 3
of R.A. No. 9262.

The Court rules in favor of the petitioner.

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as "any act or a series of
acts committed by any person against a woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty." 

While the said provision provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of
conspiracy under the RPC. 

Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus: 

SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other
applicable laws, shall have suppletory application. (Emphasis supplied) 

Parenthetically, Article 10 of the RPC provides: 

ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the future may be
punishable under special laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the contrary. (Emphasis
supplied)
Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to
crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a
particular matter.

Thus, in People v. Moreno,18 the Court applied suppletorily the provision on subsidiary penalty under
Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the "Revised Motor
Vehicle Law," noting that the special law did not contain any provision that the defendant could be
sentenced with subsidiary imprisonment in case of insolvency. 

In People v. Li Wai Cheung,19 the Court applied suppletorily the rules on the service of sentences
provided in Article 70 of the RPC in favor of the accused who was found guilty of multiple violations of
R.A. No. 6425, otherwise known as the "Dangerous Drugs Act of 1972," considering the lack of similar
rules under the special law. 

In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define the
words "principal," "accomplices" and "accessories" under R.A. No. 8042, otherwise known as the "Migrant
Workers and Overseas Filipinos Act of 1995," because said words were not defined therein, although the
special law referred to the same terms in enumerating the persons liable for the crime of illegal
recruitment. 

In Yu v. People,21 the Court applied suppletorily the provisions on subsidiary imprisonment under Article
39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the "Bouncing Checks Law," noting
the absence of an express provision on subsidiary imprisonment in said special law. 

Most recently, in Ladonga v. People,22 the Court applied suppletorily the principle of conspiracy under
Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein. 

With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied
suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be
supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily
applicable, may be applied suppletorily.

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the
precise extent or modality of participation of each of them becomes secondary, since all the conspirators
are principals.23

It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence
against women and their children may be committed by an offender through another, thus: 

SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and
their children is committed through any of the following acts:

xxx

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,

that alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts: 

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child; 
 (3) Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will; 

(4) Destroying the property and personal belongings or inflicting harm to animals or pets
of the woman or her child; and 

(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the protection order that may be issued for the purpose of preventing further acts of violence
against the woman or her child may include 

individuals other than the offending husband, thus: 

SEC. 8. Protection Orders. – x x x The protection orders that may be issued under this Act shall include
any, some or all of the following reliefs: 

(a) Prohibition of the respondent from threatening to commit or committing, personally or through
another, any of the acts mentioned in Section 5 of this Act; 1avvphi1.net

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of
victims of violence against women and their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law24 and that this intent must be effectuated by the
courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for
liberal construction as will best ensure the attainment of the object of the law according to its true intent,
meaning and spirit - the protection and safety of victims of violence against women and children.

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

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

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

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

SO ORDERED.