L.

Articles 21-88 (Article 26 as amended by RA 10951

Include: RA 9346 Prohibiting Death Penalty
RA 4103 Indeterminate Sentence Law
PD 968 as amended by RA 10707 Prohibition Law

Cases:

G.R. No. 184500               September 11, 2012

PEOPLE OF THE PIIILIPPINES, Plaintiff-Appellee,

vs.
WENCESLAO NELMIDA @ "ESLAO," and RICARDO AJOK @ "PORDOY," Accused-Appellants.

DECISION

PEREZ, J.:

The subject of this present appeal is the Decision dated 18 June 2008 of the Court of Appeals in CA-
1 

G.R. HC No. 00246, affirming the Decision dated 30 September 2005 of the Regional Trial Court
2 

(RTC) of Kapatagan, Lanao del Norte, Branch 21, in Criminal Case No. 21-910, finding herein
appellants Wenceslao Nelmida @ "Eslao" (Wenceslao) and Ricardo Ajok @

"Pordoy" (Ricardo) guilty beyond reasonable doubt of double murder with multiple frustrated murder
and double attempted murder, thereby sentencing them to suffer the penalty of reclusion perpetua.
Appellants were likewise ordered to indemnify, jointly and severally, the heirs of each of the
deceased victims, i.e., Police Officer 3 Hernando P. Dela Cruz (PO3 Dela Cruz) and

Technical Sergeant Ramon Dacoco (T/Sgt. Dacoco), the amount of ₱ 50,000.00 each as moral
damages and ₱ 50,000.00 each as civil indemnity for the death of each of the said victims. Similarly,
appellants were directed to pay, jointly and severally, Mayor Johnny Tawan-tawan the amount of ₱
50,000.00 for and as attorney’s fees, as well as the costs of the suit.

Appellants and their co-accused Samuel Cutad @ "Sammy" (Samuel), Brigido Abais @ "Bidok"
(Brigido), Pedro Serafico @ "Peter" (Pedro), Eduardo Bacong, Sr. (Eduardo, Sr.), Eduardo Bacong,
Jr. @ "Junjun" (Eduardo, Jr.), Alejandro Abarquez (Alejandro), Ruben Bartolo @ "Yoyoy Bulhog"
(Ruben), Arnel Espanola @ "Toto Ilongo" (Arnel), Alfredo Paninsuro @ "Tambok" (Alfredo), Opao
Casinillo (Opao) and other John Does, were charged in an Amended Information dated 3 October
3 

2001 with the crime of double murder with multiple frustrated murder and double attempted murder,
the accusatory portion of which reads:

That on or about the 5th day of June 2001, at SAN MANUEL, Lala, Lanao del Norte, Philippines and
within the jurisdiction of this Honorable Court, the above-named appellants and their co-accused,
conspiring, confederating and mutually helping one another, armed with assorted high-powered
firearms and hand-grenade, did then and there willfully, unlawfully and feloniously, with treachery,
evident premidation (sic), taking advantage of their superiority in strength and in numbers, and with
intent to kill, ambush, attack, assault and use personal violence upon the persons of the following,
namely:

1. PO3 Dela Cruz, Philippine National Police (PNP);

 2. T/Sgt. Dacoco, Philippine Army (PA);

3. Private First Class (PFC) Haron Angni, PA;

4. PFC Gador Tomanto, PA;

4 

5. Juanito Ibunalo;

6. Mosanif Ameril;
5 

7. Macasubar Tandayao;
6 

8. Mayor Johnny Tawantawan; and 7 

9. Jun Palanas

by then and there firing and shooting them with said high-powered firearms thereby inflicting upon
the persons of PO3 De la Cruz, T/Sgt. Dacoco, PFC Haron Angni, PFC Gapor Tomanto, Juanito
Ibunalo, Mosanip Ameril and Macasuba Tandayao gunshot wounds which were the direct and
immediate cause of the death of PO3 De la Cruz and T/Sgt. Dacoco and the serious wounding of
said PFC Haron Angni, PFC Gapor Tomanto, Juanito Ibunalo, Mosanip Ameril and Macasuba
Tandayao that without the medical assistance would have caused their deaths, while Mayor Johnny
Tawan-tawan and Jun Palanas were not hit. 8

When arraigned, appellants Wenceslao and Ricardo, assisted by their counsel de parte and counsel
9 

de oficio, respectively; and their co-accused Samuel, likewise assisted by counsel de oficio, all
10  11 

entered separate pleas of

NOT GUILTY to the crime charged. The rest of the accused in this case, however, remained at
large. Trial on the merits ensued thereafter.

Meanwhile, or on 21 January 2003, however, the prosecution filed a Motion to Discharge Accused
Samuel To Be Utilized As State Witness, which the court a quo granted in an Order dated 12
12 

February 2003. Also, upon motion of the prosecution, the court a quo issued another Order dated
13 

17 March 2003, directing the release of Samuel from detention following his discharge as state
14 

witness.

As such, Samuel, together with 13 more witnesses, namely, Macasuba Tandayao (Macasuba),
Mosanip Ameril (Mosanip), PFC Gapor Tomanto (PFC Tomanto), Merlina Dela Cruz (Merlina),
Senior Police Inspector Renato Salazar (Senior P/Insp. Salazar), PFC Haron Angni (PFC Angni),
Senior Police Officer 4 Raul Torres Medrano (SPO4 Medrano), Senior Police Officer 1 Ferdinand
Suaring (SPO1 Suaring), Senior Police Officer 2 Ivan Mutia Evasco (SPO2 Evasco), Senior Police
Officer 4 Emmie Subingsubing (SPO4 Subingsubing), Juanito Ibunalo (Juanito), Senior

Police Officer 3 Tommy Umpa (SPO3 Umpa), and Mayor Johnny Tawan-tawan (Mayor Tawan-
tawan), testified for the prosecution.

The factual milieu of this case as culled from the testimonies of the aforesaid prosecution witnesses
is as follows:
On 5 June 2001, Mayor Tawan-tawan of Salvador, Lanao del Norte, together with his security
escorts composed of some members of the Philippine Army, Philippine National Police (PNP) and
civilian aides, to wit: (1) T/Sgt. Dacoco; (2) PFC Angni; (3) PFC Tomanto; (4) PO3 Dela Cruz; (5)
Juanito; (6) Mosanip; (7) Macasuba; and (8) a certain Jun, respectively, were in Tubod, Lanao del
Norte. In the afternoon, the group went home to Salvador, Lanao del Norte, on board the yellow
pick-up service vehicle of Mayor Tawan-tawan with Plate No. JRT 818 driven by Juanito. Sitting at
the passenger seat of the aforesaid vehicle was Mayor Tawan-tawan while those at the back seat
were Mosanip, Jun, and Macasuba, who was sitting immediately behind Juanito. Those seated on a
wooden bench installed at the rear (open) portion of the said yellow pick-up service vehicle were
PFC Tomanto, PFC Angni, PO3 Dela Cruz and T/Sgt. Dacoco. PFC Tomanto and PFC Angni were
sitting beside each other facing the right side of the road while PO3 Dela Cruz and T/Sgt. Dacoco
were both seated behind PFC Tomanto and PFC Angni facing the left side of the road. 15

At around 3:00 p.m. of the same day, appellants, together with their aforenamed co-accused,
brought Samuel to a waiting shed in Purok 2, San Manuel, Lala, Lanao del Norte, the one located on
the left side of the road going to Salvador, Lanao del Norte. Samuel was instructed by appellants
and their co-accused to stay in the said waiting shed while they assembled themselves in a diamond
position on both sides of the road, which is more or less five (5) meters away from the shed. Then,
appellants and their co-accused surreptitiously waited for the vehicle of the group of Mayor Tawan-
tawan.16

A few minutes later, Samuel saw the yellow pick-up service vehicle of Mayor Tawan-tawan
approaching towards the direction of Salvador, Lanao del Norte. The moment the yellow pick-up
service vehicle of Mayor Tawan-tawan passed by the aforesaid waiting shed, appellants and their
co-accused opened fire and rained bullets on the vehicle using high-powered firearms.

Both Macasuba, who was sitting immediately behind the driver, and PFC Tomanto, who was then
sitting on the rear (open) portion of the yellow pick-up service vehicle, saw appellant Wenceslao on
the right side of the road firing at them in a squatting position using an M-16 armalite rifle.

Macasuba was also able to identify appellants Ricardo, Pedro, Eduardo, Sr., Eduardo, Jr., Brigido
and Alfredo as among the ambushers. Mayor Tawan-tawan ordered Juanito to keep on driving to
avoid greater casualties. The vehicle stopped upon reaching the army and Civilian Armed Forces
Geographical Unit (CAFGU) detachment in Curva, Miagao, Salvador, Lanao del Norte. Mayor
Tawan-tawan then asked assistance therefrom. 17

Immediately after the ambush, appellants and their co-accused ran towards the house of Samuel’s
aunt located, more or less, 10 meters away from the site of the ambush to get their bags and other
stuff. The house of Samuel’s aunt was the place where appellants and their co-accused stayed prior
to the incident. Samuel followed appellants and their co-accused to the house of his aunt.
Thereafter, appellants and their co-accused hurriedly ran towards Barangay Lindongan, Municipality
of Baroy, Lanao del Norte. 18

On the occasion of the ambush, two security escorts of Mayor Tawan-tawan, namely, PO3 Dela
Cruz and T/Sgt. Dacoco, died, while others suffered injuries. In particular, Macasuba was slightly hit
on the head by shrapnel; Mosanip sustained injury on his shoulder that almost severed his left arm;
PFC Tomanto was hit on the right and left sides of his body, on his left leg and knee; PFC Angni was
hit on his left shoulder; and Juanito was hit on his right point finger, right head and left hip. Mayor
Tawan-tawan and Jun were not injured. 19

All the victims of the ambush, except Macasuba, were brought to Bontilao Country Clinic in
Maranding, Lala, Lanao del Norte, and were later transferred to Mindanao Sanitarium and Hospital
in Tibanga, Iligan City. PO3 Dela Cruz, however, died before reaching the hospital while T/Sgt.
Dacoco died in the hospital. PFC Tomanto stayed at Mindanao Sanitarium and Hospital for 13 days
before he was transferred to Camp Evangelista Hospital in Patag, Cagayan de Oro City, and then in
a hospital in Manila and Quezon City. PFC Angni stayed for seven (7) days in Mindanao Sanitarium
and Hospital before he was transferred to Camp Evangelista Hospital, where he was confined for
one (1) month. PFC Angni was transferred to V. Luna Hospital in Quezon City and was confined
therein for two (2) months.20

On the other hand, Mayor Tawan-tawan, Macasuba and the members of the CAFGU went back to
the site of the ambush but appellants and their co-accused were no longer there. Not long after,
SPO4 Medrano, Chief of Police of Salvador Municipal Police Station, Salvador, Lanao del Norte, and
his troops arrived. It was while inside the Salvador Municipal Police Station that SPO4 Medrano
heard gunfire and he came to know that the group of Mayor Tawan-tawan was ambushed prompting
him and his troops to go to the scene of the crime. Mayor Tawan-tawan informed SPO4 Medrano
that appellant Wenceslao was one of those responsible for the ambush. SPO4 Medrano and his
troops, then, conducted an investigation during which he noticed Samuel at the scene of the crime.
Upon interrogation Samuel denied any involvement in the ambush. Even so, SPO4 Medrano still
found Samuel suspicious, hence, he and his fellow police officers arrested him and turned him over
to a certain SPO4 Micabalo, Chief of Police of Lala, Lanao del Norte. Samuel was then brought to
Lala Municipal Jail in Lanao del Norte.

Subsequently, SPO4 Medrano, together with the members of the CAFGU, PNP and the rest of the
troops who were at the scene of the crime, found a trail of footprints believed to be from the culprits.
They conducted a hot pursuit operation towards Barangay Lindongan, Municipality of Baroy, Lanao
del Norte, where appellants and their co-accused were believed to have fled. They were able to
recover an M-16 armalite rifle caliber 5.26 concealed near a nipa hut. SPO4 Medrano then sent a
Spot Report and a follow-up report about the ambush. He did not, however, reveal the identity of
appellant Wenceslao so that with a warrant of arrest, appellant Wenceslao could be arrested at the
earliest possible time. SPO4 Medrano also informed the provincial headquarters about the incident
through a radio message. 21

The following day, or on 6 June 2001, Samuel informed SPO1 Suaring, member of PNP Lala
Municipal Police, Lala, Lanao del Norte, that there were electrical supplies and radio antenna in San
Manuel, Lala, Lanao del Norte, left by the malefactors. SPO1 Suaring, together with Samuel, Senior
P/Insp. Salazar, SPO4 Subingsubing and a certain SPO4 Sumaylo, proceeded to San Manuel, Lala,
Lanao del Norte, where they found the materials near the National Irrigation Administration (NIA)
canal, which is 30 meters away from the house of Samuel’s aunt. These were photographed. 22

Later, SPO2 Evasco, who was assigned at Lala Police Station, received a call from Barangay
Kagawad Renato Senahon (Brgy. Kgwd. Senahon) that a black backpack was found in Mount
Curay-curay, Rebe, Lala, Lanao del Norte, which is two (2) kilometers away from the highway.
Immediately, SPO2 Evasco and Brgy. Kgwd. Senahon went to the location. Upon inspection, they
recovered from the backpack an army camouflage with name cloth, one Garand pouch and one
fragmentation grenade cacao type. SPO2 Evasco then brought these to the police station in
Maranding, Lala, Lanao del Norte, and turned it over to Senior P/Insp. Salazar. 23

On 8 June 2001, Samuel executed his sworn statement identifying appellants and their co-accused
as the persons responsible for the ambush of Mayor Tawan-tawan and his companions. Samuel
was, thereafter, incarcerated at the Bureau of Jail Management and Penology (BJMP) in Tubod,
Lanao del Norte. 24
On 29 August 2001, or more than two (2) months after the ambush, appellant Wenceslao was
arrested while he was in Katipa, Lopez Jaena, Misamis Occidental. Appellant Ricardo, on the other
hand, was arrested on 20 December 2001 while working in Puting Bato in Sapad, Lanao del Norte. It
was Senior P/Insp. Salazar who effected the arrest of the appellants. 25

Appellants denied having any involvement in the ambush. Appellant Wenceslao presented as
witnesses Armida Nelmida (Armida), Jeffrey Paninsuro (Jeffrey), Luzviminda Apolinares
(Luzviminda), Rudy Alegado (Rudy), Sergeant Teofanis Garsuta (Sgt. Garsuta) and Master
Sergeant Pio Cudilla (M/Sgt. Cudilla). Appellant Ricardo, on the other hand, did not present any
witness other than himself.

Appellant Wenceslao testified that on 5 June 2001, he was in their house with his family. At around
1:00 p.m., he went outside their house to clean the pigsty and feed the pigs. Then, at around 2:30
p.m., Jacob Pepito, Rudy and a certain Romy, who is a military personnel, arrived to get a copy of
the election returns of the 15 May 2001 elections upon the orders of Tanny Pepito, a gubernatorial
candidate. He told them that he has no copy of the returns. He then advised them to get it to Atty.
Aldoni Umpa (Atty. Umpa) who has a copy. At that time, he, Jacob Pepito and Romy were outside
the house while his wife and nieces were just eight (8) to 10 meters away from them. After 10
minutes, his visitors left. Suddenly, appellant Wenceslao heard gunfire coming from the direction of
26 

the house of Mayor Tawan-tawan. His nephew, Jeffrey, approached and informed him that Mayor
Tawan-tawan and the latter’s group were ambushed. After about one (1) or two (2) minutes, he
again heard gunfire. This time the bullets were already hitting the roof and walls of their house. He
then instructed Jeffrey, who is also a CAFGU member, to report the said incident and to ask help
from the members of the Philippine Army stationed at Camp Allere, Salvador, Lanao del Norte. 27

When Jeffrey left, appellant Wenceslao stayed at their house. He did not know where his wife and
the rest of the women, who were in their house, went after the gunburst. After more or less 15
minutes, he walked barefooted and unarmed towards Camp Allere. There he saw M/Sgt. Cudilla and
he informed the former regarding the incident happened in their house. Not long after, a certain
Captain Esmeralda (Capt. Esmeralda), Commanding Officer of Bravo Company of the Philippine
Army, arrived. He also approached and informed Capt. Esmeralda about the incident in their house.
Capt. Esmeralda then ordered his men to board the samba and a six-by-six truck to fetch appellant
Wenceslao’s wife and relatives in Poblacion, Salvador, Lanao del Norte. A six-by-six truck returned
to Camp Allere carrying appellant Wenceslao’s wife and relatives. 28

On the evening of 5 June 2001, appellant Wenceslao, together with his wife and daughter, slept in
his father’s house located, more or less, 100 meters away from Camp Allere and stayed there for
five (5) days. Appellant Wenceslao’s wife then requested for transfer to their son’s house in
Kolambugan, Lanao del Norte, as she could no longer sleep because of what happened at their
house. Thus, they went to their son’s house in Kolambugan, Lanao del Norte, and stayed there for
eight (8) days. During that period of time, he did not hear of any case filed against him. No
policemen even bothered to arrest him. His wife, however, was still afraid, so they left the house of
their son and moved to Katipa, Lopez Jaena, Misamis Occidental. They stayed there until he was
arrested on 29 August 2001. 29

Appellant Wenceslao, however, disclosed that it would only take, more or less, a 15 minute-vehicle
ride from his residence in Poblacion, Salvador, Lanao del Norte, to the site of the ambush in San
Manuel, Lala, Lanao del Norte. Also, from his house to Camp Allere it would only take, more or less,
5 minute-vehicle ride. Appellant Wenceslao also admitted that he ran for the vice-mayoralty position
in Salvador, Lanao del Norte, against Rodolfo Oban during the 2001 elections. Way back in the 1998
elections, he ran for mayoralty position in the same locality against Mayor Tawan-tawan but he lost.
On both occasions, he and Mayor Tawan-tawan were no longer in the same political party. Similarly,
during the term of Mayor Tawan-tawan in 1998, appellant Wenceslao revealed that he and his son
were charged with illegal possession of firearm.30

Other defense witnesses, namely, Armida, Jeffrey and Luzviminda, who are appellant Wenceslao’s
wife, nephew and niece, respectively, corroborated appellant Wenceslao’s testimony on all material
points. They all denied that appellant Wenceslao has something to do with the ambush of Mayor
Tawan-tawan and his group. Nonetheless, Armida admitted that there is a road connecting San
Manuel, Lala, Lanao del Norte, to Salvador, Lanao del Norte. There are also vehicles for hire plying
the route of Salvador, Lanao del Norte, to San Manuel, Lala, Lanao del Norte, and vice-versa. 31

Another defense witness, Rudy, corroborated appellant Wenceslao’s testimony with respect to the
fact that on 5 June 2001, he, together with Jacob Pepito and a certain member of the army
intelligence group, went to the house of appellant Wenceslao to get the election returns. However,
he could not recall anything unusual that happened while he was in the house of appellant
Wenceslao. They left the house of appellant Wenceslao at around 2:45 p.m. Still, no unusual
incident happened thereafter. Rudy similarly revealed that he did not go inside the house of
appellant Wenceslao but merely waited for Jacob Pepito and a member of the army intelligence
group inside their vehicle parked at a distance of, more or less, three (3) meters from the house of
appellant Wenceslao. As such, he did not hear the subject of the conversation between appellant
Wenceslao, Jacob Pepito and a member of the army intelligence group. 32

Sgt. Garsuta, who also testified for the defense, stated that in the afternoon of 5 June 2001, while he
was at the legislative hall in Pigcarangan, Tubod, Lanao del Norte, to secure the canvass of the
elections, they received a radio call from M/Sgt. Cudilla informing them that Mayor Tawan-tawan
was ambushed and the house of appellant Wenceslao was strafed. Thereafter, Capt. Esmeralda
called them to board a six-by-six truck and to proceed to Salvador, Lanao del Norte. As they passed
by San Manuel, Lala, Lanao del Norte, they stopped to get some information from the police officers
therein. They proceeded to Camp Allere in Salvador, Lanao del Norte. They arrived at Camp Allere
at around 4:30 p.m. to 4:35 p.m. and there he saw appellant Wenceslao waiting and talking to 1st
Sgt. Codilla. Appellant Wenceslao then requested that his family and some personal effects be taken
from his house. Thus, Capt. Esmeralda ordered them to board a six-by-six truck and to proceed to
appellant Wenceslao’s house. Upon reaching the house of appellant Wenceslao, nobody was there.
Suddenly, appellant Wenceslao’s wife came out from the nearby house. Then they ordered her to
board a six-by-six truck after taking some personal belongings of appellant Wenceslao in the latter’s
house.33

M/Sgt. Cudilla alleged that at around, more or less, 3:00 p.m. of 5 June 2001, while he was at their
command post at Camp Allere, Salvador, Lanao del Norte, his detachment commander, a certain
T/Sgt. Quijano, called and informed him through radio that an ambush incident happened in his area
of responsibility, i.e., Curva Miagao, Salvador, Lanao del Norte. He advised T/Sgt. Quijano to verify
the incident. M/Sgt. Cudilla then called Capt. Esmeralda to inform the latter about the said ambush
incident. He, thereafter, prepared a perimeter defense in the camp. In the second call of T/Sgt.
Quijano, the latter told him that Mayor Tawan-tawan was ambushed. After about 15 minutes, M/Sgt.
Cudilla heard gunbursts from Poblacion, Salvador, Lanao del Norte. Later, more or less, 10 civilians
arrived at Camp Allere.

M/Sgt. Cudilla further confirmed that on 5 June 2001, also at around 3:00 p.m., he saw appellant
Wenceslao at the back of the stage inside Camp Allere near Km. Post one. Appellant Wenceslao
then informed him of the strafing incident in his house. When their commanding officer arrived,
appellant Wenceslao approached the former. Thereafter, a platoon was organized heading towards
Poblacion, Salvador, Lanao del Norte. 34
Appellant Ricardo, for his part, maintained that on 5 June 2001, he was also in his house in Purok 5,
Poblacion, Salvador, Lanao del Norte, attending to his wife and children because his wife had just
given birth in April 2001. In the afternoon thereof, he heard a gunburst somewhere in Poblacion,
Salvador, Lanao del Norte, followed by some commotion in the street. Later, his brother, Joji Ajok,
arrived and informed him that appellant Wenceslao was shot in his house. 35

Appellant Ricardo also confirmed that on the early evening of 5 June 2001, he and his family
transferred to the house of his parents-in-law at Camp Allere, Salvador, Lanao del Norte. He so
decided when he heard rumors that the supporters of Atty. Umpa, the political rival of Mayor Tawan-
tawan in the 2001 local elections, were being persecuted. Being one of Atty. Umpa’s supporters, he
got scared, prompting him to bring his family to Camp Allere. They stayed there until the following
morning and then he left alone for Ozamis City, Misamis Occidental, and stayed there for three (3)
months. Thereafter, he moved to Puting Bato in Sapad, Lanao del Norte, where he worked in the
farm of his friend. He stayed there until he was arrested on 20 December 2001. 36

Nevertheless, appellant Ricardo divulged that there was never an instance that Atty. Umpa was
harassed or intimidated by the group of Mayor Tawan-tawan. He claimed that only Atty. Umpa’s
supporters were harassed. He also revealed that prior to the ambush incident, there was never an
instance that he was threatened by the group of Mayor Tawan-tawan. He just presumed that Atty.
Umpa’s supporters were being harassed by the people of Mayor Tawan-tawan because others were
already harassed. 37

Finding the testimonies of the prosecution witnesses, most of whom were victims of the ambush, to
be credible, categorical, straightforward, spontaneous and consistent, coupled with their positive
identification of the appellants as among the perpetrators of the crime and their lack of ill-motive to
falsely testify against them, vis-à-vis the defense of denial and alibi proffered by the latter, the trial
court rendered its Decision on 30 September 2005 finding appellants guilty beyond reasonable
doubt of double murder with multiple frustrated murder and double attempted murder and imposing
upon them the penalty of reclusion perpetua. The dispositive portion of the aforesaid trial court’s
Decision states:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding herein
appellants Wenceslao and Ricardo GUILTY beyond reasonable doubt of the crime of double murder
with multiple frustrated murder and double attempted murder, and the Court hereby sentences them
to suffer the indivisible prison term of reclusion perpetua; to pay, jointly and severally, the heirs of the
late PO3 Dela Cruz the amount of ₱ 50,000.00 as moral damages and another sum of ₱ 50,000.00
for and by way of civil indemnity ex delicto; to pay, jointly and severally, the heirs of the late T/Sgt.
Dacoco the sum of ₱ 50,000.00 as moral damages plus ₱ 50,000.00 for and by way of civil
indemnity ex delicto; and to pay, jointly and severally, Ex-Mayor Johnny Tawantawan the amount of
₱ 50,000.00 for and as attorney’s fees, and the costs of suit.

The Armalite rifle with defaced serial number, the hand grenade and the Garand pouch are hereby
ordered turned-over to the Firearm and Explosive Unit of the PNP Headquarters, Pigcarangan,
Tubod, Lanao del Norte, for proper disposition as authorized by law.

The full period of the preventive imprisonment of the appellantsshall be credited to them and
deducted from their prison term provided they comply with the requirements of Article 29 of the
Revised Penal Code. Appellant Wenceslao was arrested on 29 August 2001 and detained since
then up to the present. While appellant Ricardo was arrested on 20 December 2001 and detained
since then up to the present.
Let the records of this case be sent to the archive files without prejudice on the part of the
prosecution to prosecute the case against the other accused who remain at-large, as soon as said
accused are apprehended. [Emphasis supplied].
38 

Unperturbed, appellants separately appealed the aforesaid trial court’s Decision to the Court of
Appeals via Notice of Appeal, and, thereafter, submitted their respective appeal briefs.
39 

In his brief, appellant Wenceslao assigned the following errors:

I.

THE TRIAL COURT ERRED IN DECLARING THAT THE TESTIMONIES OF THE PROSECUTION
WITNESSES ARE CREDIBLE AND NOT ORCHESTRATED LIES INTENDED TO FALSELY
IMPUTE THE CRIMINAL LIABILITY TO APPELLANT WENCESLAO;

II.

THE TRIAL COURT ERRED IN DECLARING THAT THE INCONSISTENCIES OF PROSECUTION

WITNESSES ARE HONEST INCONSISTENCIES ON MINOR AND TRIVIAL POINTS;

III.

THE TRIAL COURT ERRED IN RULING THAT [APPELLANTS WENCESLAO AND RICARDO]
FAILED TO CAST ILL-MOTIVE ON THE PART OF PROSECUTION WITNESSES AND THAT
THESE WITNESSES HAD NO IMPROPER AND NEFARIOUS MOTIVE IN TESTIFYING AGAINST
THE APPELLANTS;

IV.

THE TRIAL COURT FAILED TO APPRECIATE THE TESTIMONY OF THE MILITARY MEN WHO
ARE NEUTRAL, IMPARTIAL AND OBJECTIVE WITNESSES;

V.

THE TRIAL COURT ERRED IN RULING THAT APPELLANT WENCESLAO ABSCONDED AND IN
IMPUTING MALICE ON THE ACT OF [APPELLANT WENCESLAO] IN TEMPORARILY LEAVING
HIS RESIDENCE;

VI.

THE LOWER COURT ERRED IN CONVICTING APPELLANT WENCESLAO OF THE CRIME

CHARGED BASED ON TESTIMONIES WHICH ARE OF DOUBTFUL VERACITY;

VII.

THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OF [APPELLANT

WENCESLAO] BASED ON JURISPRUDENCE WHICH ARE NOT APPLICABLE IN THE CASE AT
BAR. 40

While appellant Ricardo, in his brief, raised this lone assignment of error:
THE COURT A QUO GRAVELY ERRED IN CONVICTING APPELLANT RICARDO DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 41

On 18 June 2008, the Court of Appeals rendered its now assailed Decision affirming appellants’
conviction of the crime charged. The Court of Appeals held that the evidence on record disclosed
that the alleged inconsistencies pointed to by appellant Wenceslao refer only to minor matters. The
same did not damage the credibility of the prosecution witnesses, particularly that of PFC Tomanto,
PFC Angni, Juanito and Mayor Tawan-tawan. Honest inconsistencies on minor and trivial points
serve to strengthen rather than destroy the credibility of a witness to a crime. Moreover, since the
prosecution witnesses positively identified appellants in open court as among the perpetrators of the
ambush, the same must prevail over the alleged inconsistencies, as well as the defense of denial
and alibi interposed by the appellants. Denial is a negative and self-serving assertion that cannot
overcome the victim’s affirmative, categorical and convincing testimony. In the same way, for alibi to
prosper, it must be established by positive, clear and satisfactory proof that it was impossible for the
accused to be at the scene of the crime at the time of its commission and not merely assert that he
was somewhere else. As in the present case, the trial court took judicial notice of the distance of
seven (7) kilometers between Salvador, Lanao del Norte, where appellants reside, and San Manuel,
Lala, Lanao del Norte, where the ambush incident took place. Appellants, therefore, could not
successfully invoke alibi as a defense because it was not physically impossible for them to have
been at the scene of the crime. The Court of Appeals then decreed as follows:
42 

WHEREFORE, in the light of the foregoing, the separate APPEALS are DENIED, and the appealed
Decision is hereby AFFIRMED. 43

Still undaunted, appellants elevated the aforesaid Decision of the Court of Appeals to this Court via
Notice of Appeal.

In a Resolution dated 19 November 2008, the Court required the parties to simultaneously submit
44 

their respective supplemental briefs, if they so desire. In lieu thereof, the Office of the Solicitor
General filed a Manifestation stating that it will no longer file a supplement to its Consolidated
45 

Appellee’s Brief dated 14 December 2006 there being no transactions, occurrences or events which
46 

have happened since the appellate court’s Decision was rendered.

Appellants, on the other hand, filed their separate Supplemental Briefs, which were a mere rehash
47 

of the arguments already discussed in their respective Appellant’s Briefs submitted before the
48 

appellate court. In his Supplemental Brief, appellant Wenceslao reiterates that: the trial court and the
Court of Appeals committed reversible errors when they decided a question of substance which is
not in accord with established facts and the applicable laws. He, once again, enumerated the
49 

following errors committed by the appellate court, thus:

I.

The court a quo and the Court of Appeals gravely erred when they ruled that the
inconsistencies committed by the prosecution witnesses are on minor and trivial points when
these inconsistencies are indicative of the innocence of appellant Wenceslao;

II.

The trial court and the Court of Appeals failed to consider as indicative of innocence of
appellant Wenceslao the fact that the authorities did not include in the police report the name
of appellant Wenceslao and did not arrest him immediately after the ambush, or within a
couple of months from the date of the ambush;
 III.

The trial court and the Court of Appeals committed reversible error when they deliberately
refused or failed to consider and appreciate the testimonies of the military officers who are
neutral, impartial, and objective witnesses;

IV.

Both the trial court and the Court of Appeals miserably failed to consider the evidence for the
defense despite the clear and unmistakable proof of their honesty and integrity;

V.

The trial court and the Court of Appeals clearly and deliberately misinterpreted the facts and
misapplied the laws regarding "flight" as an alleged indication of guilt;

VI.

The trial court and the Court of Appeals convicted appellant Wenceslaobased on
jurisprudence on "alibi" which are not applicable in the case at bar [Emphasis and italicized
50 

omitted].

Appellant Wenceslao contends that a thorough perusal of the testimonies of the prosecution
witnesses would show these are tainted with glaring inconsistencies, which are badges of lies and
dishonesty, thus, casting doubts on their credibility.

The inconsistencies referred to by appellant Wenceslao are as follows: (1) whether PFC Tomanto
and PFC Angni were already with Mayor Tawan-tawan from Salvador, Lanao del Norte, to Tubod,
Lanao del Norte, and vice-versa, or they merely hitched a ride in Mayor Tawan-tawan’s vehicle on
their way home to Salvador, Lanao del Norte; (2) if so, the place where PFC Tomanto and PFC
Angni hitched a ride in Mayor Tawan-tawan’s vehicle; (3) the officer from whom PFC Tomanto and
PFC Angni got permission in order to go home to Salvador, Lanao del Norte; (4) PFC Angni
allegedly knew appellant Wenceslao prior to the ambush incident on 5 June 2001 and he even saw
appellant Wenceslao as among the perpetrators of the ambush, yet, he did not mention the name of
the former in his affidavit; (5) Mayor Tawan-tawan should have mentioned the name of appellant
Wenceslao as one of those responsible in the ambush incident when he reported the same to SPO4
Medrano; (6) SPO4 Medrano should have included the name of appellant Wenceslao in the Spot
Reports he transmitted to the Provincial Police Office of the PNP and should have immediately
caused his arrest if he truly participated in the ambush incident; (7) it would no longer be necessary
to discharge Samuel and to make him as state witness if the victims of the ambush incident, indeed,
saw the perpetrators of the crime; and (8) if appellant Wenceslao was one of the ambushers,
Samuel would not have failed to mention the former in his sworn statement.

Appellant Wenceslao believes that the afore-enumerated inconsistencies only proved that he has no
participation in the ambush of Mayor Tawan-tawan and his companions. The declaration of his
innocence is thus called for.

Appellant Wenceslao further imputes ill-motive and malice on the testimonies of the prosecution
witnesses in testifying against him. The motive was to remove him, being the only non-Muslim
leader, in the Municipality of Salvador, Lanao del Norte, who has the courage to challenge the reign
of Mayor Tawan-tawan and his clan. It was also an act of revenge against him for opposing Mayor
Tawan-tawan during the 1998 elections. As to Samuel’s motive, appellant Wenceslao claims that it
was for self-preservation, freedom, leniency and some other consideration. Evidently, after Samuel’s
testimony, the latter was released from jail.

Appellant Wenceslao maintains that he was not at the ambush site on 5 June 2001 as can be
gleaned from the testimonies of M/Sgt. Cudilla and Sgt. Garsuta.

Lastly, appellant Wenceslao argues that his flight was not an indication of guilt. He justified his
temporary absence from his residence by stating that it was because of the traumatic experience of
his wife, who had no peace of mind since their house was riddled with bullets by lawless elements
without any cause.

With all the foregoing, the resolution of this appeal hinges primarily on the determination of credibility
of the testimonies of the prosecution witnesses.

Time and again, this Court held that when the issues revolve on matters of credibility of witnesses,
the findings of fact of the trial court, its calibration of the testimonies of the witnesses, and its
assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are
accorded high respect, if not conclusive effect. This is so because the trial court has the unique
opportunity to observe the demeanor of witnesses and is in the best position to discern whether they
are telling the truth. Moreover, credibility, to state what is axiomatic, is the sole province of the trial
51 

court. In the absence of any clear showing that it overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance that would have affected the result of the case, the
trial court's findings on the matter of credibility of witnesses will not be disturbed on appeal. A
52 

careful perusal of the records of this case revealed that none of these circumstances is attendant
herein.

The affirmance by the Court of Appeals of the factual findings of the trial court places this case under
the rule that factual findings are final and conclusive and may not be reviewed on appeal to this
Court. No reason has been given by appellants to deviate from the factual findings arrived at by the
trial court as affirmed by the Court of Appeals.

In the present case, most of the prosecution witnesses, i.e., Macasuba, Mosanip, PFC Tomanto,
PFC Angni, Juanito and Mayor Tawan-tawan, were victims of the 5 June 2001 ambush incident. As
such, they actually witnessed what exactly happened on that fateful day, especially Macasuba and
PFC Angni, who vividly saw appellant Wenceslao on the right side of the road and in a squatting
position firing at them with his M-16 armalite rifle. Macasuba and PFC Angni, having seated behind
the driver and on the rear (open) portion of the yellow pick-up service vehicle, respectively, both
facing the right side of the road, were in such a position to see without any obstruction how appellant
Wenceslao rained bullets on their vehicle with his M-16 armalite rifle while they were traversing the
road of San Manuel, Lala, Lanao del Norte, on their way home to Salvador, Lanao del Norte.
Macasuba was also able to identify appellant Ricardo, Pedro, Eduardo, Sr., Eduardo, Jr., Brigido
and Alfredo as among the perpetrators of the ambush.

It bears stressing that the ambush happened at around 3:00 p.m., in broad daylight, such that it
would not be impossible for Macasuba and PFC Angni to have seen and identified their assailants,
particularly appellant Wenceslao, who was once chief of Civilian Home Defense Force (CHDF), then
municipal councilor and twice elected vice-mayor of Salvador, Lanao del Norte, i.e., 1992 and 1995
elections, and appellant Ricardo, who is a resident of Poblacion, Salvador, Lanao del Norte. 53

The aforesaid assertions of Macasuba and PFC Angni were equally confirmed by Samuel, an
accused-turned-state-witness, who, in his testimony before the open court, narrated how appellants
and their co-accused, Pedro, Eduardo, Sr., Eduardo, Jr., Brigido, Alfredo, Alejandro, Ruben, Arnel,
and Opao, brought him in the waiting shed in Purok 2, San Manuel, Lala, Lanao del Norte;
assembled themselves in a diamond position on both sides of the road; surreptitiously waited for the
vehicle boarded by Mayor Tawan-tawan and his group; and executed the ambush from the moment
the vehicle boarded by Mayor Tawan-tawan and his group passed by the aforesaid waiting shed.

Samuel was in an advantageous position to substantiate the identities of the appellants and their co-
accused as the perpetrators of the ambush because he was near the scene of the crime, i.e., merely
five (5) meters away therefrom. This is aside from the fact that appellants and their co-accused were
the very same people who brought him to the site of the ambush. Appellants and their co-accused
likewise stayed for a long period of time in the house of Samuel’s aunt prior to the ambush incident
and Samuel is very well-acquainted with these people for he himself resided therein. 54

Given the foregoing, it is beyond any cavil of doubt that prosecution witnesses, Macasuba, PFC
Angni and Samuel, have firmly established the identities of appellants as the perpetrators of the
ambush. In addition, their testimonies on who and how the crime was committed were characterized
by the trial court as simple and candid. Even their answers to questions were simple, straightforward
and categorical. Such simplicity and candidness in their testimonies only prove that they were telling
the truth, thus, strengthening their credibility as witnesses.

Now, as regards the inconsistencies pointed out by appellant Wenceslao that allegedly cast doubt
on the credibility of the prosecution witnesses, this Court finds them frivolous, trivial, minor, irrelevant
and have nothing to do with the essential elements of the crime charged, i.e., double murder with
multiple frustrated murder and double attempted murder. In the same manner, they do not detract
from the fact that Mayor Tawan-tawan and his group, which includes PFC Tomanto and PFC Angni,
were ambushed by appellants and their co-accused on 5 June 2001 while on board the yellow pick-
up service vehicle as it passed by the waiting shed in Purok 2, San Manuel, Lala, Lanao del Norte.
And, said ambush resulted in the death of PO3 Dela Cruz and T/Sgt. Dacoco and injuries to
Macasuba, Mosanip, PFC Tomanto, PFC Angni and Juanito.

It is axiomatic that slight variations in the testimony of a witness as to minor details or collateral
matters do not affect his or her credibility as these variations are in fact indicative of truth and show
that the witness was not coached to fabricate or dissemble. An inconsistency, which has nothing to
do with the elements of a crime, is not a ground to reverse a conviction. 55

Similarly, PFC Angni and Samuel’s failure to name appellant Wenceslao in their affidavits/sworn
statements as one of the ambushers does not necessarily render their testimonies implausible and
unworthy of belief.

Inconsistencies between the sworn statement and direct testimony given in open court do not
necessarily discredit the witness. An affidavit, being taken ex-parte, is oftentimes incomplete and is
generally regarded as inferior to the testimony of the witness in open court. Judicial notice can be
taken of the fact that testimonies given during trial are much more exact and elaborate than those
stated in sworn statements, which are usually incomplete and inaccurate for a variety of reasons.
More so, because of the partial and innocent suggestions, or for want of specific inquiries. In
addition, an extrajudicial statement or affidavit is generally not prepared by the affiant himself but by
another who uses his own language in writing the affiant’s statement, hence, omissions and
misunderstandings by the writer are not infrequent. Indeed, the prosecution witnesses’ direct and
categorical declarations on the witness stand are superior to their extrajudicial statements. Similarly,
56 

the failure of a witness to immediately disclose the name of the culprit does not necessarily impair
his or her credibility.
57
A meticulous perusal of Samuel’s sworn statement reveals that he categorically mentioned therein
the name of appellant Wenceslao as one of the ambushers. In his sworn statement, Samuel
specifically stated that during the ambush, he saw appellant Wenceslao at the other side of the road,
just a few meters away from the bridge, who, at that time armed with an M-16 rifle, was likewise
firing towards the group of Mayor Tawan-tawan. 58

Above all, both PFC Angni and Samuel positively identified appellant Wenceslao in open court as
one of those responsible for the ambush of Mayor Tawan-tawan and his group. Such open court
59 

declaration is much stronger than their affidavits/sworn statements.

Mayor Tawan-tawan’s failure to disclose to SPO4 Medrano the name of appellant Wenceslao as one
of those responsible in the ambush and SPO4 Medrano’s failure to include the name of appellant
Wenceslao in the Spot Reports he transmitted to the Provincial Police Office of the PNP would not
inure to appellant Wenceslao’s benefit.

As can be gleaned from the transcript of stenographic notes, when Mayor Tawan-tawan and SPO4
Medrano met at the scene of the crime, the former immediately told the latter that appellant
Wenceslao was one of the ambushers. This belied the claim of appellant Wenceslao that Mayor
60 

Tawan-tawan did not tell SPO4 Medrano that he (appellant Wenceslao) was among the ambushers.
Also, SPO4 Medrano provided an explanation for his failure to state in his Spot Reports the name of
61 

appellant Wenceslao as one of the ambushers. And, even granting that his explanation would not
have been satisfactory, still, SPO4 Medrano’s failure to mention appellant Wenceslao’s name in his
Spot Reports was not fatal to the cause of the prosecution. More especially because appellant
Wenceslao was positively identified by the prosecution witnesses as one of the perpetrators of the
crime.

Even the discharge of Samuel to become state witness does not negate the fact that prosecution
witnesses, Macasuba and PFC Angni, indeed, saw appellants as among the perpetrators of the
crime. To note, appellants were not the only persons accused of the crime; they were many
including Pedro, Eduardo, Sr., Eduardo, Jr., Brigido, Alfredo, Alejandro, Ruben, Arnel, and Opao. In
order to give justice to the victims of the ambush, especially those who have died by reason thereof,
all persons responsible therefor must be penalized. Since Samuel knew all those who have
participated in the ambush incident, his testimony as to the other accused in this case is material to
strengthen the case of the prosecution against them. Unfortunately, the other accused in this case
remained at large until now.

As aptly observed by the trial court, thus:

x x x The Court is convinced without equivocation on the veracity of the testimonies of the
prosecution eyewitnesses who are all in one pointing to herein appellant Wenceslao as one of those
who participated in the ambush, and on the veracity of the testimonies of the two prosecution
eyewitnesses – Macasuba and Samuel – to the effect that appellant Ricardo was among the people
who perpetrated the said ambush.

The testimonies of these witnesses were simple and candid. The simplicity and candidness of their
testimonies only prove that they were telling the truth. Their answers to questions were simple,
straightforward and categorical; spontaneous, frank and consistent. Thus, a witness who testifies
categorically, spontaneously, frankly and consistently is a credible witness.
62

Appellant Wenceslao’s allegations of ill-motive and malice on the part of prosecution witnesses,
including Samuel, have no leg to stand on.
The records are bereft of any evidence to substantiate the claim of appellant Wenceslao that the
motive of the prosecution witnesses in testifying against him was to remove him as the only non-
Muslim leader in the Municipality of Salvador, Lanao del Norte, and that it was an act of revenge for
opposing Mayor Tawan-tawan during the 1998 elections. Appellant Wenceslao failed to present an
iota of evidence to support his aforesaid allegations. As properly stated by the Court of Appeals,
"mere allegation or claim is not proof. Each party must prove his own affirmative allegation." Also, it
must be emphasized that during the 1998 elections, it was Mayor Tawan-tawan who won the
mayoralty position. It is, therefore, highly implausible for Mayor Tawan-tawan, who emerged as the
victor, to take revenge against the losing candidate, appellant Wenceslao. As such, appellant
Wenceslao failed to prove any ill-motive on the part of the prosecution witnesses. It is settled that
where the defense fails to prove that witnesses are moved by improper motives, the presumption is
that they were not so moved and their testimonies are therefore entitled to full weight and credit. 63

To repeat, most of the prosecution witnesses are victims of the ambush. Being the aggrieved
parties, they all desire justice for what had happened to them, thus, it is unnatural for them to falsely
accuse someone other than the real culprits. Otherwise stated, it is very unlikely for these
prosecution witnesses to implicate an innocent person to the crime. It has been correctly observed
that the natural interest of witnesses, who are relatives of the victims, more so, the victims
themselves, in securing the conviction of the guilty would deter them from implicating persons other
than the culprits, for otherwise, the culprits would gain immunity.64

Contrary to appellant Wenceslao’s assertion, this Court is convince that his and appellant Ricardo’s
flight from the scene of the crime immediately after the ambush is an evidence of their guilt. It is
noteworthy that after the ambush incident, appellant Wenceslao immediately left his residence and
moved to his father’s house, then to his son’s house in Kolambugan, Lanao del Norte, and lastly to
Katipa, Lopez Jaena, Misamis Occidental, where he was arrested. Appellant Ricardo did the same
thing. From his residence in Poblacion, Salvador, Lanao del Norte, he transferred to his parents-in-
law’s house, then he left alone for Ozamis City, Misamis Occidental, and thereafter, moved to Puting
Bato in Sapad, Lanao del Norte, until he was arrested on 20 December 2001. If appellants were truly
innocent of the crime charged, they would not go into hiding rather they would face their accusers to
clear their names. Courts go by the biblical truism that "the wicked flee when no man pursueth but
the righteous are as bold as a lion."65

Appellants’ respective explanations regarding their flight fail to persuade this Court. It bears
emphasis that after the alleged strafing of appellant Wenceslao’s house, all he did is to move from
one place to another instead of having it investigated by the authorities. Until now, the alleged
strafing of his house remains a mystery. If that strafing incident truly happened, he would be much
eager to know who caused it in order to penalize the author thereof. Appellant Ricardo, on the other
hand, was allegedly afraid of being persecuted for being one of the supporters of Mayor Tawan-
tawan’s political rival. His fear, however, was more imaginary than real. The aforesaid claim of
appellant Ricardo was uncorroborated, hence, cannot be given any considerable weight.

In light of the clear, positive and straightforward testimonies of prosecution witnesses, coupled with
their positive identification of appellants as among the perpetrators of the ambush, appellants’
defense of denial and alibi cannot prosper.

As this Court has oft pronounced, both denial and alibi are inherently weak defenses which cannot
prevail over the positive and credible testimonies of the prosecution witnesses that appellants
committed the crime. For alibi to prosper, the requirements of time and place must be strictly met. It
66 

is not enough to prove that appellants were somewhere else when the crime happened. They must
also demonstrate by clear and convincing evidence that it was physically impossible for them to
have been at the scene of the crime at the approximate time of its commission. Unless
67 
substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving
of any weight in law. A mere denial, like alibi, is inherently a weak defense and constitutes self-
68 

serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration
of credible witnesses who testify on affirmative matters.69

In this case, both appellants claimed that they were just in their respective houses in Poblacion,
Salvador, Lanao del Norte, when the ambush incident happened and they have no involvement
whatsoever in the commission thereof.

To corroborate appellant Wenceslao’s testimony, the defense presented Armida, Jeffrey and
Luzviminda, who are appellant Wenceslao’s wife, nephew and niece, respectively. This Court,
however, cannot give credence to the testimonies of these defense witnesses. Being appellant
Wenceslao’s relatives, their testimonies are rendered suspect because the former’s relationship to
them makes it likely that they would freely perjure themselves for his sake. The defense of alibi may
not prosper if it is established mainly by the appellant himself and his relatives, and not by credible
persons. This Court further quote with conformity the observation made by the trial court, viz:
70 

FURTHER, the testimonies of the above-named witnesses for herein appellant Wenceslao were
shattered by the testimony of Rudy, another witness for appellant Wenceslao, who categorically told
the Court that during the time he and his companions Jacob Pepito and a certain Romy were in the
house of appellant Wenceslao in the afternoon of 5 June 2001, there was no unusual incident that
took place, as well as no unusual incident that happened when they left the house of appellant
Wenceslao at about 2:45 in the afternoon.

The foregoing testimony of Rudy clearly imparts that the visit of Rudy and his companions to the
house of appellant Wenceslao, if any, happened on another date. This will be so because if
appellant Wenceslao and his closely related witnesses are telling the truth that Jacob Pepito, Rudy
and Romy were in the house of appellant Wenceslao talking about the said election returns during
that fateful afternoon, then definitely, Rudy should have had known of the ambush incident, said
incident being spreaded throughout or shall we say, "the talk of the town" that afternoon of 5 June
2001.

If the ambush incident occurred on the day Rudy and his companions visited appellant Wenceslao,
then, no doubt that Rudywill tell the Court about it. But his testimony was otherwise. [Emphasis
71 

supplied].

In the same breath, appellant Ricardo’s defense of denial and alibi cannot be given any evidentiary
value as it was unsubstantiated. Appellant Ricardo never presented any witness to support his claim
that he was simply inside their house attending to his wife and children during the time that the
ambush incident happened. This Court reiterates that mere denial, if unsubstantiated by clear and
convincing evidence, is a self-serving assertion that deserves no weight in law. Between the
categorical and positive assertions of the prosecution witnesses and the negative averments of the
accused which are uncorroborated by reliable and independent evidence, the former indisputably
deserve more credence and are entitled to greater evidentiary weight. 72

Withal, it was not physically impossible for the appellants to be at the scene of the crime in the
afternoon of 5 June 2001. As observed by the trial court and the appellate court, Poblacion,
Salvador, Lanao del Norte, where both appellants’ reside, is only about seven (7) kilometers away
from San Manuel, Lala, Lanao del Norte, where the ambush took place. 73

All told, this Court affirms the findings of the trial court and the appellate court that, indeed,
appellants were among the perpetrators of the ambush against Mayor Tawan-tawan and his group.
Prosecution witnesses’ categorical, positive and straightforward testimonies, coupled with their
positive identification of appellants as among the perpetrators of the crime, prevail over appellants’
defense of bare denial and alibi.

As to the crime committed. The trial court, as well as the appellate court, convicted appellants of
double murder with multiple frustrated murder and double attempted murder. This Court believes,
however, that appellants should be convicted not of a complex crime but of separate crimes of two
(2) counts of murder and seven (7) counts of attempted murder as the killing and wounding of the
victims in this case were not the result of a single act but of several acts of the appellants, thus,
making Article 48 of the Revised Penal Code inapplicable.

Appellants and their co-accused simultaneous act of riddling the vehicle boarded by Mayor Tawan-
tawan and his group with bullets discharged from their firearms when the said vehicle passed by San
Manuel, Lala, Lanao del Norte, resulted in the death of two security escorts of Mayor Tawan-tawan,
i.e., PO3 Dela Cruz and T/Sgt. Dacoco.

Article 248 of the Revised Penal Code provides:

ART. 248. Murder. – Any person who, not falling within the provisions of article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any
of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.

xxxx

5. With evident premeditation. [Emphasis supplied].

Treachery, which was alleged in the Information, attended the commission of the crime. Time and
again, this Court, in a plethora of cases, has consistently held that there is treachery when the
offender commits any of the crimes against persons, employing means, methods or forms in the
execution thereof, which tend directly and specially to ensure its execution without risk to himself
arising from the defense that the offended party might make. There are two (2) conditions that must
concur for treachery to exist, to wit: (a) the employment of means of execution gave the person
attacked no opportunity to defend himself or to retaliate; and (b) the means or method of execution
was deliberately and consciously adopted. "The essence of treachery is that the attack is deliberate
and without warning, done in a swift and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape." 74

The deadly successive shots of the appellants and their co-accused did not allow the hapless
victims, i.e., PO3 Dela Cruz and T/Sgt. Dacoco, any opportunity to put up a decent defense. The
attack was executed by appellants and their-co-accused in such a vicious manner as to make the
defense virtually impossible. Under the circumstances, it is very apparent that appellants had murder
in their hearts when they waylaid their unwary victims. Thus, as to the death of PO3 Dela Cruz and
75 

T/Sgt. Dacoco, appellants should be held liable for murder.

The aggravating circumstance of abuse of superior strength, however, cannot be appreciated as it is

deemed absorbed in treachery. 76
Since the prosecution failed to prove the attending circumstance of evident premeditation, the
circumstance cannot likewise be appreciated. To prove this aggravating circumstance, the
prosecution must show the following: (1) the time when the offender determined to commit the crime;
(2) an act manifestly indicating that the offender clung to his determination; and (3) a lapse of time,
between the determination to commit the crime and the execution thereof, sufficient to allow the
offender to reflect upon the consequences of his act. None of these elements could be gathered
77 

from the evidence on record.

As regards the victims Macasuba, Mosanip, PFC Tomanto, PFC Angni and Juanito, although they
were injured during the ambush and were all hospitalized, except for Macasuba, it was not
mentioned that their injuries and wounds were mortal or fatal such that without the timely medical
assistance accorded to them, they would have died. However, it does not necessarily follow that the
78 

crimes committed against the aforenamed victims were simply less serious physical injuries. Also,
even though Mayor Tawan-tawan and Jun did not sustain any injury during the ambush, it does not
mean that no crime has been committed against them. The latter were just fortunate enough not to
have sustained any injury on the occasion thereof. Since appellants were motivated by the same
intent to kill, thus, as to Macasuba, Mosanip, PFC Tomanto, PFC Angni, Juanito, Mayor Tawan-
tawan and Jun, appellants should be held guilty of attempted murder.

What brings this case out of the ordinary is the issue of applicability of Article 48 of the Revised
Penal Code. Its resolution would determine whether the conviction of appellants must be for the
separate crimes of two (2) counts of murder and seven (7) counts of attempted murder or of the
complex crime of double murder with multiple frustrated murder and double attempted murder.

The concept of a complex crime is defined in Article 48 of the Revised Penal Code which explicitly
states that:
79

ART. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its maximum period. [Emphasis
supplied].

In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and
in the conscience of the offender they constitute only one crime, thus, only one penalty is imposed.
There are two kinds of complex crime. The first is known as compound crime, or when a single act
constitutes two or more grave or less grave felonies while the other is known as complex crime
proper, or when an offense is a necessary means for committing the other. The classic example of
the first kind is when a single bullet results in the death of two or more persons. A different rule
governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shots, such acts constitute separate and distinct crimes. 80

Evidently, there is in this case no complex crime proper. And the circumstances present in this case
do not fit exactly the description of a compound crime.

From its factual backdrop, it can easily be gleaned that the killing and wounding of the victims were
not the result of a single discharge of firearms by the appellants and their co-accused. To note,
appellants and their co-accused opened fire and rained bullets on the vehicle boarded by Mayor
Tawan-tawan and his group. As a result, two security escorts died while five (5) of them were
wounded and injured. The victims sustained gunshot wounds in different parts of their bodies.
Therefrom, it cannot be gainsaid that more than one bullet had hit the victims. Moreover, more than
one gunman fired at the vehicle of the victims. As held in People v. Valdez, each act by each
81 
gunman pulling the trigger of their respective firearms, aiming each particular moment at different
persons constitute distinct and individual acts which cannot give rise to a complex crime. 82

Obviously, appellants and their co-accused performed not only a single act but several individual
and distinct acts in the commission of the crime. Thus, Article 48 of the Revised Penal Code would
not apply for it speaks only of a "single act."

There are, however, several rulings which applied Article 48 of the Revised Penal Code despite the
fact that several acts were performed by several accused in the commission of the crime resulting to
the death and/or injuries to their victims.

In People v. Lawas, the members of the Home Guard, upon order of their leader, Lawas,
83 

simultaneously and successively fired at several victims. As a result, 50 persons died. It was there
held that the killing was the result of a single impulse as there was no intent on the part of the
accused to fire at each and every victim separately and distinctly from each other.

If the act or acts complained of resulted from a single criminal impulse, it constitutes a single
offense. However, "single criminal impulse" was not the only consideration in applying Article 48 of
the Revised Penal Code in the said case because there was therein no evidence at all showing the
identity or number of persons killed by each accused. There was also no conspiracy to perpetuate
the killing, thus, collective criminal responsibility could not be imputed upon the accused. Since it
was impossible to ascertain the number of persons killed by each of them, this Court was "forced" to
find all the accused guilty of only one offense of multiple homicide instead of holding each of them
responsible for 50 deaths. 84

Significantly, there was no conspiracy in People v. Lawas. However, as this Court held in People v.
Remollino, the Lawas doctrine is more of an exception than the general rule.
85 

There is conspiracy when two or more persons come to an agreement concerning the commission of
a felony and then decide to commit it. It arises on the very instant the plotters agree, expressly or
impliedly, to commit the felony and forthwith decide to pursue it. Once established, each and every
one of the conspirators is made criminally liable for the crime actually committed by any one of them.
In the absence of any direct proof, the agreement to commit a crime may be deduced from the mode
and manner of the commission of the offense or inferred from acts that point to a joint purpose and
design, concerted action, and community of interest. As such, it does not matter who inflicted the
mortal wound, as each of the actors incurs the same criminal liability, because the act of one is the
act of all.
86

The Information filed against appellants and their co-accused alleged conspiracy, among others.
Although the trial court did not directly state that a conspiracy existed, such may be inferred from the
concerted actions of the appellants and their co-accused, to wit: (1) appellants and their co-accused
brought Samuel to a waiting shed located on the left side of the road where the yellow pick-up
service vehicle boarded by Mayor Tawan-tawan and his group would pass; (2) appellants and their
co-accused, thereafter, assembled themselves on both sides of the road and surreptitiously waited
for the aforesaid yellow pick-up service vehicle; (3) the moment the yellow pick-up service vehicle
passed by the waiting shed, appellants and their co-accused opened fire and rained bullets thereon
resulting in the killing and wounding of the victims; (4) immediately, appellants and their co-accused
ran towards the house of Samuel’s aunt to get their bags and other stuff; (5) Samuel followed
appellants and their co-accused; and (6) appellants and their co-accused fled.

Conspiracy is very much evident from the afore-enumerated actuations of the appellants and their
co-accused. Clearly, their acts were coordinated. They were synchronized in their approach to riddle
with bullets the vehicle boarded by Mayor Tawan-tawan and his group. They were motivated by a
single criminal impulse ─ to kill the victims. Indubitably, conspiracy is implied when the accused
persons had a common purpose and were united in its execution. Spontaneous agreement or active
cooperation by all perpetrators at the moment of the commission of the crime is sufficient to create
joint criminal responsibility.
87

With the presence of conspiracy in the case at bench, appellants and their co-accused had assumed
joint criminal responsibility ─ the act of one is the act of all. The ascertainment of who among them
actually hit, killed and/or caused injury to the victims already becomes immaterial. Collective
responsibility replaced individual responsibility. The Lawas doctrine, premised on the impossibility of
determining who killed whom, cannot, to repeat, be applied.

Interestingly, in People v. De los Santos, People v. Abella, People v. Garcia and People v.
88  89  90 

Pincalin, this Court also applied Article 48 of the Revised Penal Code even though several acts
91 

were performed by the accused and conspiracy attended the commission of the crime.

In People v. De los Santos, a prison riot occurred for two consecutive days inside the national
92 

penitentiary between the members of two gangs, i.e., Sigue-Sigue Sputnik and Oxo. As a result,
nine (9) inmates were killed. Fourteen (14) inmates were then convicted for the crime of multiple
murder. The existence of conspiracy in the commission of the crime was duly proven. There was,
however, no discussion why the accused were convicted of a complex crime instead of separate
crimes.

In a similar case of People v. Abella, involving the massacre of certain prisoners in the Davao Penal
93 

Colony and a reprise of a similar riot that occurred in the national penitentiary on 16 February 1958
(subject of De los Santos), all the accused were also convicted for the complex crime of multiple
murder and multiple frustrated murder. Conspiracy likewise attended the commission of the crime.
This Court applied the ruling in De los Santos and elucidated that the ruling in the said case is
predicated on the theory that "when for the attainment of a single purpose which constitutes an
offense, various acts are executed, such acts must be considered only as one offense," a complex
one. The Lawas doctrine was equally applied although conspiracy had been duly proven. This Court
then stated that where a conspiracy animates several persons with a single purpose "their individual
acts in pursuance of that purpose are looked upon as a single act – the act of execution – giving rise
to a complex offense. The felonious agreement produces a sole and solidary liability: each
confederate forms but a part of a single being." 94

People v. Garcia and People v. Pincalin have the same factual background as De los Santos and
95  96 

Abella. They were the third and fourth cases, respectively, of prison riots resulting to the killing of
convicts by fellow convicts while inside the national penitentiary. In Garcia, the accused were
convicted for the complex crime of multiple murder and double attempted murder, while in Pincalin
the accused were convicted for the complex crime of double murder and frustrated murder. In both
cases, this Court found conspiracy to have attended the commission of the crime.

In applying Article 48 of the Revised Penal Code in Garcia and Pincalin, this Court, gave the same
justification as in Abella: that both cases were covered by the rule that "when for the attainment of a
single purpose, which constitutes an offense various acts are executed, such acts must be
considered as only one offense, a complex one." Correspondingly, "where a conspiracy animates
several persons with a single purpose, their individual acts done in pursuance of that purpose are
looked upon as a single act, the act of execution, giving rise to a complex offense. Various acts
committed under one criminal impulse may constitute a single complex offense. 97
We however found no intention by this Court to establish as doctrine, contrary to Lawas, that Article
48 is applicable even in cases where several acts were performed by the accused and conspiracy
attended the commission of the crime. In Pincalin, this Court has already clarified that: nonetheless,
this Court further held that "in other cases where several killings on the same occasion were
perpetrated, but not involving prisoners, a different rule may be applied, that is to say, the killings
would be treated as separate offenses, as opined by Mr. Justice Makasiar and as held in some
decided cases." 98

De los Santos, Abella, Garcia and Pincalin, therefore, were exceptions to the general rule stated in
Article 48 which exceptions were drawn by the peculiar circumstance of the cases.

It may be mentioned that in People v. Sanidad, this Court, once again, applied Article 48 of the
99 

Revised Penal Code although the circumstances of the case were not the same as in Lawas, De los
Santos, Abella, Garcia and Pincalin, where this Court departed from the general rule.

In Sanidad, suddenly and without a warning, several accused unleashed a volley of shots at the
jeepney boarded by the victims. Miraculously, all passengers, except Rolando Tugadi (Rolando),
survived the ambush and suffered only minor injuries. Conspiracy attended the commission of the
crime. Accused were convicted for the complex crime of murder and multiple attempted murder. We
there held that the case comes within the purview of Article 48 of the Revised Penal Code. Citing
Lawas and Abella, it was pronounced that although several independent acts were performed by the
accused, it was not possible to determine who among them actually killed Rolando; and that there
was no evidence that the accused intended to fire at each and every one of the victims separately
and distinctly from each other. On the premise that the evidence clearly shows a single criminal
impulse to kill Marlon Tugadi’s group as a whole, we repeated that where a conspiracy animates
several persons with a single purpose, their individual acts done in pursuance of that purpose are
looked upon as a single act, the act of execution, giving rise to a single complex offense. 100

The reliance in Sanidad, on Lawas and Abella is incorrect.

The application of the Abella doctrine, has already been clarified in Pincalin, thus: where several
killings on the same occasion were perpetrated, but not involving prisoners, a different rule may be
applied, that is to say, the killings would be treated as separate offenses. Since in Sanidad, the
killings did not involve prisoners or it was not a case of prisoners killing fellow prisoners. As such,
Abella would not apply.

To repeat, in Lawas, this Court was merely forced to apply Article 48 of the Revised Penal Code
because of the impossibility of ascertaining the number of persons killed by each accused. Since
conspiracy was not proven therein, joint criminal responsibility could not be attributed to the
accused. Each accused could not be held liable for separate crimes because of lack of clear
evidence showing the number of persons actually killed by each of them.

Proven conspiracy could have overcome the difficulty.

Our repeated ruling is that in conspiracy, the act of one is the act of all. It is as though each one
performed the act of each one of the conspirators. Each one is criminally responsible for each one of
the deaths and injuries of the several victims. The severalty of the acts prevents the application of
Article 48. The applicability of Article 48 depends upon the singularity of the act, thus the definitional
phrase "a single act constitutes two or more grave or less grave felonies." This is not an original
reading of the law. In People v. Hon. Pineda, the Court already recognized the "deeply rooted x x x
101 

doctrine that when various victims expire from separate shots, such acts constitute separate and
distinct crimes." As we observed in People v. Tabaco, clarifying the applicability of Article 48 of the
102 
Revised Penal Code, this Court further stated in Hon. Pineda that "to apply the first half of Article 48,
x x x there must be singularity of criminal act; singularity of criminal impulse is not written into the
law." 103

With all the foregoing, this Court holds appellants liable for the separate crimes of two (2) counts of
murder and seven (7) counts of attempted murder.

As to penalty. Under Article 248 of the Revised Penal Code, the penalty imposed for the crime of
murder is reclusion perpetua to death. There being neither aggravating nor mitigating circumstance,
the penalty to be imposed upon appellants is reclusion perpetua for each count, pursuant to
paragraph 2, Article 63 of the Revised Penal Code.
104  105

Appellants are also guilty of seven (7) counts of attempted murder. The penalty prescribed by law for
murder, i.e., reclusion perpetua to death, should be reduced by two degrees, conformably to Article
51 of the Revised Penal Code. Under paragraph 2, Article 61, in relation to Article 71 of the
106  107 

Revised Penal Code, such a penalty is prision mayor. There being neither mitigating nor aggravating
circumstance, the same should be imposed in its medium period pursuant to paragraph 1, Article
64 of the Revised Penal Code. Applying the Indeterminate Sentence Law in the case of attempted
108  109 

murder, the maximum shall be taken from the medium period of prision mayor, which is 8 years and
1 day to 10 years, while the minimum shall be taken from the penalty next lower in degree, i.e.,
prision correccional, in any of its periods, the range of which is 6 months and 1 day to 6 years. This
Court, therefore, imposed upon the appellants the indeterminate penalty of 4 years and 2 months of
prision correccional, as minimum, to 10 years of prision mayor, as maximum, for each count of
attempted murder.

As to damages. When death occurs due to a crime, the following damages may be awarded: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral
damages; (4) exemplary damages; and (5) temperate damages. 110

Article 2206 of the Civil Code provides that when death occurs as a result of a crime, the heirs of the
deceased are entitled to be indemnified for the death of the victim without need of any evidence or
proof thereof. Moral damages like civil indemnity, is also mandatory upon the finding of the fact of
murder. Therefore, the trial court and the appellate court properly awarded civil indemnity in the
111 

amount of ₱ 50,000.00 and moral damages also in the amount of ₱ 50,000.00 to the heirs of each
deceased victims.

Article 2230 of the Civil Code states that exemplary damages may be imposed when the crime was
committed with one or more aggravating circumstances. In this case, treachery may no longer be
considered as an aggravating circumstance since it was already taken as a qualifying circumstance
in the murder, and abuse of superior strength which would otherwise warrant the award of
exemplary damages was already absorbed in the treachery. However, in People v. Combate, this
112  113 

Court still awards exemplary damages despite the lack of any aggravating circumstance to deter
similar conduct and to serve as an example for public good. Thus, to deter future similar
transgressions, the Court finds that an award of ₱ 30,000.00 as exemplary damages in favor of the
heirs of each deceased victims is proper. The said amount is in conformity with this Court’s ruling in
114 

People v. Gutierrez. 115

Actual damages cannot be awarded for failure to present the receipts covering the expenditures for
the wake, coffin, burial and other expenses for the death of the victims. In lieu thereof, temperate
damages may be recovered where it has been shown that the victim’s family suffered some
pecuniary loss but the amount thereof cannot be proved with certainty as provided for under Article
2224 of the Civil Code. In this case, it cannot be denied that the heirs of the deceased victims
116 
suffered pecuniary loss although the exact amount was not proved with certainty. Thus, this Court
similarly awards ₱ 25,000.00 as temperate damages to the heirs of each deceased victims. 117

The surviving victims, Macasuba, Mosanip, PFC Tomanto, PFC Angni and Juanito, are also entitled
to moral, temperate and exemplary damages.

Ordinary human experience and common sense dictate that the wounds inflicted upon the aforesaid
victims would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar
injuries. It is only justifiable to grant them moral damages in the amount of ₱ 40,000.00 each in
118 

conformity with this Court’s ruling in People v. Mokammad. 119

The award of ₱ 25,000.00 each as temperate damages to Macasuba, Mosanip, PFC Tomanto, PFC
Angni and Juanito is also in order. It is beyond doubt that these victims were hospitalized and spent
money for their medication. As to Macasuba, although he was not confined in a hospital, it cannot be
gainsaid that he also spent for the treatment of the minor injuries he sustained by reason of the
ambush. However, they all failed to present any receipt therefor. Nevertheless, it could not be denied
that they suffered pecuniary loss; thus, it is only prudent to award temperate damages in the amount
of ₱ 25,000.00 to each of them. 1âwphi1

The award of exemplary damages is also in order. Thus, Macasuba, Mosanip, PFC Tomanto, PFC
Angni and Juanito are awarded exemplary damages in the amount of ₱ 30,000.00 to conform to
current jurisprudence.120

This Court likewise affirms the award of ₱ 50,000.00 for and as attorney’s fees, as well as costs of
the suit, in favor of Mayor Tawan-tawan.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. HC No.
00246 dated 18 June 2008 is hereby MODIFIED, as follows: (1) appellants are found guilty beyond
reasonable doubt of two (2) counts of murder thereby imposing upon them the penalty of reclusion
perpetua for each count; (2) appellants are also found guilty beyond reasonable doubt of seven (7)
counts of attempted murder thereby imposing upon them the indeterminate penalty of 4 years and 2
months of prision correccional, as minimum, to 10 years of prision mayor, as maximum, for each
count; (3) other than the civil indemnity and moral damages already awarded by the trial court and
the appellate court, appellants are further ordered to pay, jointly and severally, exemplary and
temperate damages in the amount of ₱ 30,000.00 and ₱ 25,000.00, respectively, to the heirs of each
deceased victims; and (4) appellants are also directed to pay, jointly and severally, Macasuba,
Mosanip, PFC Tomanto, PFC Angni and Juanito the amount of ₱ 40,000.00 each as moral
damages, ₱ 25,000.00 each as temperate damages and ₱ 30,000.00 each as exemplary damages.

Costs against appellants.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice
G.R. No. 199892               December 10, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARTURO PUNZALAN, JR., Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision  dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-
1 

H.C. No. 02816 denying the appeal of appellant Arturo Punzalan, Jr. of the Decision dated March
2 

21, 2007 of the Regional Trial Court (RTC) of fba, Zambales and affirming his conviction for the
complex crime of double murder with multiple attempted murder, with certain modifications on the
civil liability imposed on appellant. 3

In August 2002, Seaman 1st Class (SN1) Arnulfo Andal, SN1 Antonio Duclayna, SN1 Evelio
Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya, and SN1 Erlinger Bundang were among the
members of the Philippine Navy sent for schooling at the Naval Education and Training Command
(NETC) at San Miguel, San Antonio, Zambales. On August 10, 2002, at around 5:00 or 6:00 in the
afternoon, they went to the "All-in-One" Canteen to have some drink. Later, at around 10:00 in the
evening, they transferred to a nearby videoke bar, "Aquarius," where they continued their drinking
session. Shortly thereafter, a heated argument between SN1 Bacosa and appellant ensued
regarding a flickering light bulb inside "Aquarius." When SN1 Bacosa suggested that the light be
4 

turned off ("Patayin ang ilaw"), appellant who must have misunderstood and misinterpreted SN1
Bacosa’s statement belligerently reacted asking, "Sinong papatayin?," thinking that SN1 Bacosa’s
statement was directed at him. SN1 Cuya tried to pacify SN1 Bacosa and appellant, while SN1
5 

Bundang apologized to appellant in behalf of SN1 Bacosa. However, appellant was still visibly angry,
mumbling unintelligible words and pounding his fist on the table. 6

To avoid further trouble, the navy personnel decided to leave "Aquarius" and return to the NETC
camp. They walked in two’s, namely, SN1 Bundang and SN1 Domingo in the first group, followed by
the group of SN1 Bacosa and SN1 Cuya, and SN1 Andal and SN1 Duclayna in the last group, with
each group at one arm’s length distance from the other. Along the way, they passed by the NETC
7 

sentry gate which was being manned by SN1 Noel de Guzman and F1EN Alejandro Dimaala at that
time. SN1 Andal and SN1 Duclayna even stopped by to give the sentries some barbecue before
8 

proceeding to follow their companions. 9

Soon after the navy personnel passed by the sentry gate, SN1 De Guzman and F1EN Dimaala
flagged down a rushing and zigzagging maroon Nissan van with plate number DRW 706. The
sentries approached the van and recognized appellant, who was reeking of liquor, as the driver.
Appellant angrily uttered, "kasi chief, gago ang mga ‘yan!," while pointing toward the direction of the
navy personnel’s group. Even before he was given the go signal to proceed, appellant shifted gears
and sped away while uttering, "papatayin ko ang mga ‘yan!" While F1EN Dimaala was writing the
10 

van’s plate number and details in the logbook, he suddenly heard a loud thud. Meanwhile, SN1 De
Guzman saw how the van sped away towards the camp and suddenly swerved to the right hitting
the group of the walking navy personnel prompting him to exclaim to F1EN Dimaala, "chief,
binangga ang tropa!" SN1 De Guzman then asked permission to go to the scene of the incident and
check on the navy personnel. 11

When they were hit by the vehicle from behind, SN1 Cuya and SN1 Bacosa were thrown away
towards a grassy spot on the roadside. They momentarily lost consciousness. When they came to,
12 
they saw SN1 Duclayna lying motionless on the ground. SN1 Cuya tried to resuscitate SN1
13 

Duclayna, while SN1 Bacosa tried to chase the van. 14

SN1 Domingo was not hit by the van as he was in the first group and was pushed away from the
path of the speeding van. He was able to see the vehicle’s plate number. He also tried to chase the
van with SN1 Bacosa but they turned around when the vehicle made a U-turn as they thought that it
would come back for them. The vehicle, however, sped away again when other people started to
arrive at the scene of the incident.
15

SN1 De Guzman found SN1 Cuya administering cardiopulmonary resuscitation (CPR) on SN1
Duclayna. He also saw the misshapen body of SN1 Andal lying some 50 meters away, apparently
dragged there when the speeding van hit SN1 Andal. SN1 Cuya instructed SN1 De Guzman to get
an ambulance but the car of the officer on duty at that time arrived and they boarded SN1
Duclayna’s body to the vehicle to be brought to the hospital. The other injured navy personnel,
16 

namely, SN1 Cuya, SN1 Bacosa, and SN1 Bundang, were brought to the infirmary for treatment. 17

Members of the local police soon arrived at the scene of the crime. Senior Police Officer (SPO) 1
Roberto Llorico, the police investigator, found the bloodied lifeless body of SN1 Andal lying on the
side of the road. SPO1 Llorico was informed that appellant was the suspect. Fortunately, one of the
responding officers was appellant’s neighbor and led SPO1 Llorico to appellant’s place where they
found appellant standing near his gate. Appellant appeared drunk and was reeking of alcohol. They
also saw the van parked inside the premises of appellant’s place. Its front bumper was damaged.
When they asked appellant why he ran over the navy personnel, he simply answered that he was
drunk. The police officers then invited appellant to the police station and brought the van with them. 18

A post mortem examination was conducted on the bodies of SN1 Andal and SN1 Duclayna by Dr.
Jericho Cordero of Camp Crame Medical Division. Dr. Cordero’s findings were that the injuries
sustained by SN1 Andal were fatal and caused by a hard blunt object that hit his body. The force of
the impact was such that the internal organs like the kidneys, mesentery and spleen were also fatally
injured. SN1 Andal died of cardiorespiratory arrest as a result of massive blunt traumatic injuries to
the head, thorax and abdomen. On the other hand, SN1 Duclayna sustained fatal injuries to the
head and liver. The head and neck injuries were such that a lot of blood vessels were ruptured and
the fractures were embedded in the brain. The laceration on the liver, also a mortal injury, was a
blunt traumatic injury.
19

As regards the other navy personnel, SN1 Cuya suffered lacerated wounds on the head and
different parts of the body for which he was confined at the infirmary for about eighteen (18)
days; SN1 Bacosa sustained injuries on his knee and left hand and stayed in the infirmary for a
20 

day; and SN1 Bundang suffered injuries to his right foot.

21  22

Appellant was thereafter charged under an Information which reads as follows:

23 

That on or about the 10th day of August 2002, at about 11:00 o’clock in the evening, in Brgy. West
Dirita, Municipality of San Antonio, Province of Zambales, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with intent to kill, while driving and in control of a Nissan Van
with plate no. DRW 706, did there and then wil[l]fully, unlawfully and feloniously, bump, overrun,
smash and hit from behind with the use of the said van, the following persons: Antonio Duclayna,
Arnulfo Andal, Evelio Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, all members of
the Philippine [N]avy then assigned at the Naval Education and Training Command in San Antonio,
Zambales, thereby inflicting upon them the following physical injuries, to wit:

DANILO CUYA:
"Head Injury, grade 1 (Lacerated wound 5.0 cm, accipitoparietal area, (L) and lacerated wound,
Lower lip) 2 to VA"

EVELIO BACOSA:

"Multiple abrasion, wrist, volar surface (L), 2nd digit, abrasion, dorsun, (L) foot"

ERLINGER BUNDANG:

"Abrasion, medial maleolus, (R)"

ARNULFO ANDAL:

"Head Injury, Grade IV; (Depressed Fracture, Frontal: Lacerated wounds, 8.0 cm 3.0 cm. forehead,
and 5.0 cm parietal, (R);

Avulsion, medial aspect, upper arm to elbow, hip and enguinal area, (L);

Multiple abrasion, anterior and posterior chest, knees and (R) footsecondary to VA"

ANTONIO DUCLAYNA:

"Head Injury, Grade IV (Lacerated wound, Contusion, Hematoma (R) Parietal) secondary to VA"

which act of said accused directly caused the death of Arnulfo Andal and Antonio Duclayna, and in
so far as Danilo Cuya, Evelio Bacosa and Erlinger Bundang were concerned, said accused
performed all the acts of execution which would produce the crime of Murder as a consequence, but
nevertheless, did not produce said crime by reason of cause/s independent of his will, that is, by the
timely and able medical assistance rendered to said Danilo Cuya, Evelio Bacosa and Erlinger
Bundang, which prevented their death, and finally as to Cesar Domingo, said accused commenced
the commission of the acts constituting Murder directly by overt acts, but was not able to perform all
the acts of execution by reason of some cause other than accused’s own desistance, that is due to
the timely avoidance of the van driven by accused, and that the commission of the crimes was
attended with treachery, evident premeditation, cruelty and use of a motor vehicle, and by
deliberately and inhuman[ely] augmenting the suffering of the victim Arnulfo Andal, to the damage
and prejudice of Danilo Cuya, Evelio Bacosa, Erlinger Bundang and Cesar Domingo and the family
and heirs of the deceased Arnulfo Andang and Antonio Duclayna.

When arraigned, appellant maintained his innocence. 24

After pre-trial, trial ensued and the prosecution presented evidence to establish the facts stated
above.

In his defense, appellant testified that in the evening of August 10, 2002, he was drinking with Marvin
Acebeda and Romeo Eusantos at the "Aquarius" videoke bar. When he sang, the navy personnel
who were also inside the bar laughed at him as he was out of tune. He then stood up, paid his bills
and went out. After a while, Acebeda followed him and informed him that the navy personnel would
like to make peace with him. He went back inside the bar with Acebedo and approached the navy
personnel. When SN1 Bacosa appeared to reach out for appellant’s hand, appellant offered his hand
but SN1 Bacosa suddenly punched appellant’s right ear. To avoid further altercation, appellant left
the bar with Acebeda in tow. Appellant went home driving his van, with the spouses Romeo and
Alicia Eusantos who hitched a ride as passengers. When they passed by the sentry, somebody
threw stones at the van. When he alighted and inspected the vehicle, he saw that one of the
headlights was broken. Thereafter, he saw SN1 Bacosa and another man approaching him so he
went back inside the van but the duo boxed him repeatedly on his shoulder through the van’s open
window. When he saw the four other navy personnel coming towards him, he accelerated the van.
During the whole incident, Romeo was asleep as he was very drunk while Alicia was seated at the
back of the van. Upon reaching appellant’s home, the spouses alighted from the van and proceeded
to their place. After 20 minutes, police officers arrived at appellant’s house and told him that he
bumped some people. Appellant went with the police officers to the police station where he was
investigated and detained. 25

Appellant’s only other witness was Alicia Eusantos. She testified that she and her husband hitched a
ride with appellant in the evening of August 10, 2002. She did not notice any unusual incident from
the time they rode the vehicle until they alighted from it. She learned about the incident on the
following day only when her statement was taken by the police. 26

After the parties have rested their respective cases, the RTC of Iba, Zambales found appellant guilty
and rendered a Decision dated March 21, 2007 with the following dispositive portion:

IN VIEW THEREOF, accused ARTURO PUNZALAN, JR. is found GUILTY beyond reasonable
doubt of the complex crime of Double Murder qualified by treachery with Attempted Murder attended
by the aggravating circumstance of use of motor vehicle and is hereby sentenced to suffer the
penalty of Reclusion Perpetua.

For the death of SN1 Antonio Duclayna and SN1 Arnulfo Andal, civil indemnity of ₱50,000.00 each
is awarded to their heirs. This is in addition to the amount of moral damages at ₱50,000.00 each for
the emotional and mental sufferings, plus ₱12,095.00 to the heirs of Duclayna representing actual
damages.

Accused is likewise ordered to pay SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and
SN1 Erlinger Bundang ₱30,000.00 each or an aggregate amount of ₱120,000.00 as indemnity for
their attempted murder. 27

Appellant filed an appeal with the Court of Appeals. In his brief, appellant claimed that the trial court
28 

erred in not finding that he may not be held criminally liable as he merely acted in avoidance of
greater evil or injury, a justifying circumstance under paragraph 4, Article 11 of the Revised Penal
Code. His act of increasing his vehicle’s speed was reasonable and justified as he was being
attacked by two men whose four companions were also approaching. He asserted that the attack
against him by the two navy personnel constituted actual and imminent danger to his life and limb.
The sight of the four approaching companions of his attackers "created in his mind a fear of greater
evil," prompting him to speed up his vehicle to avoid a greater evil or injury to himself. According to
appellant, if he accidentally hit the approaching navy men in the process, he could not be held
criminally liable therefor. The instinct of self-preservation would make one feel that his own safety is
of greater importance than that of another. 29

Appellant further faulted the trial court in appreciating the qualifying circumstance of treachery. He
asserted that nothing in the records would show that he consciously or deliberately adopted the
means of execution. More importantly, treachery was not properly alleged in the Information. 30

The Office of the Solicitor General (OSG), on behalf of the People of the Philippines, refuted the
arguments of appellant and defended the correctness of the RTC Decision. In its brief, the OSG
31 

claimed that the trial court rightly rejected appellant’s defense of avoidance of greater evil or injury.
Appellant’s version of the events did not conform to the physical evidence and it was not consistent
with the testimony of his own witness.

The OSG also argued that treachery was appropriately appreciated by the trial court. The
Information was written in a way that sufficiently described treachery where "the unsuspecting
victims were walking towards their barracks and totally unprepared for the unexpected attack from
behind."32

After considering the respective arguments of the parties, the Court of Appeals rendered the
assailed Decision dated April 29, 2011 with the following decretal portion:

WHEREFORE, the instant Appeal is Denied. The assailed Decision, dated March 21, 2007, of the
Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-3492-I,
is AFFIRMED with MODIFICATION, in that Accused-Appellant is hereby ordered to pay the heirs of
SN1 Antonio Duclayna and SN1 Arnulfo Andal civil indemnity of Php75,000, moral damages of
Php75,000, temperate damages of Php25,000 and exemplary damages of Php30,000. In addition to
the foregoing damages, Accused-Appellant is as well held liable to pay the heirs of SN1 Andal the
amount of Php2,172,270.21 to represent the amount of loss of earning capacity of SN1 Andal.

Accused-Appellant is likewise ordered to pay the surviving victims, SN1 Evelio Bacosa, SN1 Cesar
Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang, moral and exemplary damages in the
amount of Php40,000 and Php30,000, respectively. Award of temperate damages in the amount of
Php25,000 is proper in favor of SN1 Bacosa, SN1 Cuya and SN1 Bundang for the unsubstantiated
amount of pecuniary losses they suffered on account of the injuries they sustained. SN1 Cesar
Domingo, however, is not entitled to temperate damages. 33

Hence, this appeal.

Both appellant and the OSG adopted the respective briefs they filed in the Court of Appeals. 34

Is appellant guilty of the complex crime of murder with frustrated murder?

After a thorough review of the records of this case and the arguments of the parties, this Court
affirms appellant’s conviction.

Both the RTC and the Court of Appeals found the evidence presented and offered by the
prosecution credible and that the "prosecution witnesses had overwhelmingly proved beyond
reasonable doubt the culpability of the Accused-Appellant." The Court of Appeals correctly observed
35 

that prosecution witnesses F1EN Dimaala and SN1 De Guzman "positively identified accused-
appellant as the one who hit and ran over the victims." The Court of Appeals further found:
36 

The testimonies of the prosecution witnesses, taken together, inevitably showed the criminal intent
of the Accused-Appellant to inflict harm on the victims. They testified on the incident in a clear,
concise, corroborative, and straightforward manner. Thus, their testimonies must prevail over the
testimony given by the Accused-Appellant which, on the other hand, was neither substantiated nor
supported by any evidence.

The prosecution witnesses testified that they actually saw how Accused-Appellant ran over the
victims who were walking inside the NETC camp on the night of August 10, 2002. Accused-
Appellant, who was driving his van from behind, suddenly bumped and ran over the victims. The
victims were thrown away, resulting in the instantaneous death of SN1 Duclayna and SN1 Andal and
causing injuries to the other victims.

xxxx

Accused-Appellant’s version of the crime, upon which the justifying circumstance of avoidance of
greater evil or injury is invoked, is baseless. This is because his assertions anent the existence of
the evil which he sought to be avoided [did] not actually exist as [they] neither conformed to the
evidence at hand nor [were] [they] consistent with the testimony of his own witness, Alicia Eusantos
x x x.

xxxx

Accused-Appellant’s own witness, Alicia Eusantos, not only failed to corroborate his claim but also
belied Accused-Appellant’s claim that he was attacked by the Philippine Navy personnel. Alicia
Eusantos categorically stated that she did not witness any unusual incident in the evening of August
10, 2002 while on board the Nissan Urvan Van driven by Accused-Appellant while they were cruising
the access road going to the NETC compound. Accused-Appellant’s claim, therefore, is more
imaginary than real. The justifying circumstance of Avoidance of Greater Evil or Injury cannot be
invoked by the Accused-Appellant as the alleged evil sought to be avoided does not actually exist. 37

Moreover, whether or not petitioner acted in avoidance of greater evil or injury is a question of fact. It
is an issue which concerns doubt or difference arising as to the truth or the falsehood of alleged
facts. In this connection, this Court declared in Martinez v. Court of Appeals :
38  39 

[T]he well-entrenched rule is that findings of fact of the trial court in the ascertainment of the
credibility of witnesses and the probative weight of the evidence on record affirmed, on appeal, by
the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any
justifiable reason to deviate from the said findings.

This Court has combed through the records of this case and found no reason to deviate from the
findings of the trial and appellate courts. There is nothing that would indicate that the RTC and the
Court of Appeals "ignored, misconstrued, misunderstood or misinterpreted cogent facts and
circumstances of substance, which, if considered, will alter the outcome of the case." 40

Under paragraph 4, Article 11 of the Revised Penal Code, to successfully invoke avoidance of
greater evil as a justifying circumstance,  the following requisites should be complied with:
41 

(1) the evil sought to be avoided actually exists;

(2) the injury feared be greater than that done to avoid it; and

(3) there be no other practical and less harmful means of preventing it.

The RTC and the Court of Appeals rejected appellant’s self-serving and uncorroborated claim of
avoidance of greater evil. The trial and appellate courts noted that even appellant’s own witness who
was in the van with appellant at the time of the incident contradicted appellant’s claim. Thus, the
RTC and the Court of Appeals concluded that the evil appellant claimed to avoid did not actually
exist. This Court agrees.
Moreover, appellant failed to satisfy the third requisite that there be no other practical and less
harmful means of preventing it. Under paragraph 4, Article 11 of the Revised Penal Code, infliction
of damage or injury to another so that a greater evil or injury may not befall one’s self may be
justified only if it is taken as a last resort and with the least possible prejudice to another. If there is
another way to avoid the injury without causing damage or injury to another or, if there is no such
other way but the damage to another may be minimized while avoiding an evil or injury to one’s self,
then such course should be taken.

In this case, the road where the incident happened was wide, some 6 to 7 meters in width, and the42 

place was well-lighted. Both sides of the road were unobstructed by trees, plants or
43 

structures. Appellant was a driver by occupation. However, appellant himself testified that when he
44  45 

shifted to the second gear and immediately stepped on the accelerator upon seeing the four navy
personnel approaching from in front of him, he did not make any attempt to avoid hitting the
46 

approaching navy personnel even though he had enough space to do so. He simply sped away
straight ahead, meeting the approaching navy personnel head on, totally unmindful if he might run
them over. He therefore miserably failed to resort to other practical and less harmful available
47 

means of preventing the evil or injury he claimed to be avoiding.

The appreciation of treachery as a circumstance that qualified the killing of SN1 Duclayna and SN1
Andal and the attempted killing of the others is also correct. This Court agrees with the following
disquisition of the Court of Appeals:

We find that the RTC correctly appreciated the existence of treachery in the commission of the
offense. Treachery qualifies the killing to murder. There is treachery when the offender commits any
of the crimes against persons, employing means, methods or forms in the execution thereof which
tend directly and especially to ensure its execution, without risk to himself arising from any defense
which the offended party might make. The elements of treachery are: (1) the employment of means
of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2)
the means of execution was deliberate or consciously adopted.

Accused-Appellant’s act of running over the victims with his van from behind while the victims were
walking inside the NETC camp was a clear act of treachery. The victims were not given any warning
at all regarding the assault of the Accused-Appellant. The victims were surprised and were not able
to prepare and repel the treacherous assault of Accused-Appellant. The prosecution witnesses
testified that after they had flagged down Accused-Appellant’s van, the latter accelerated and upon
reaching the middle of the road, it suddenly swerved to the right hitting the victims who were startled
by the attack.

xxxx

A close review of the information would disclose that the qualifying circumstance of treachery was
stated in ordinary and concise language and the said act was described in terms sufficient to enable
a layman to know what offense is intended to be charged, and enables the court to pronounce
proper judgment.

We quote pertinent portion of the information, which reads:

"x x x the said accused, with intent to kill, while driving and in control of a Nissan Van with plate No.
DRW 706, did then and there willfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, x x x."
Applying the Supreme Court’s discussion in People vs. Batin, citing the case of Balitaan v. Court of
First Instance of Batangas, to wit:

"The main purpose of requiring the various elements of a crime to be set forth in an Information is to
enable the accused to suitably prepare his defense. He is presumed to have no independent
knowledge of the facts that constitute the offense. x x x.

It is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be
stated in order to render the information sufficiently certain to identify the offense. As a general rule,
matters of evidence, as distinguished from facts essential to the description of the offense, need not
be averred. For instance, it is not necessary to show on the face of an information for forgery in what
manner a person is to be defrauded, as that is a matter of evidence at the trial.

We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is

replete with cases wherein we found the allegation of treachery sufficient without any further
explanation as to the circumstances surrounding it."

Clearly, We find that the information is sufficient as it not merely indicated the term treachery therein
but also described the act itself constituting treachery. Such statement, without a doubt, provided the
supporting facts that constituted the offense, sufficiently alleging the qualifying circumstance of
treachery when it pointed out the statement, "smash and hit from behind." (Emphases supplied;
48 

citations omitted.)

The essence of treachery is the sudden and unexpected attack by the aggressor on unsuspecting
victims, depriving the latter of any real chance to defend themselves, thereby ensuring its
commission without risk to the aggressor, and without the slightest provocation on the part of the
victims. The six navy personnel were walking by the roadside, on their way back to their camp. They
49 

felt secure as they have just passed a sentry and were nearing their barracks. They were totally
unaware of the threat to their life as their backs were turned against the direction where appellant’s
speeding van came. They were therefore defenseless and posed no threat to appellant when
appellant mowed them down with his van, killing two of them, injuring three others and one narrowly
escaping injury or death. Beyond reasonable doubt, there was treachery in appellant’s act. This was
sufficiently alleged in the Information which not only expressly mentioned treachery as one of the
circumstances attending the crime but also described it in understandable language:

[T]he said accused, with intent to kill, while driving and in control of a Nissan Van with plate no. DRW
706, did then and there willfully, unlawfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, the following persons: Antonio Duclayna, Arnulfo Andal, Evelio
Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, x x x. (Emphasis supplied.)
50 

Use of motor vehicle was also properly considered as an aggravating circumstance. Appellant
deliberately used the van he was driving to pursue the victims. Upon catching up with them,
appellant ran over them and mowed them down with the van, resulting to the death of SN1 Andal
and SN1 Duclayna and injuries to the others. Thereafter, he continued to speed away from the
51 

scene of the incident. Without doubt, appellant used the van both as a means to commit a crime and
to flee the scene of the crime after he committed the felonious act.

The felony committed by appellant as correctly found by the RTC and the Court of Appeals, double
murder with multiple attempted murder, is a complex crime contemplated under Article 48 of the
Revised Penal Code:
Art. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum period.

Appellant was animated by a single purpose, to kill the navy personnel, and committed a single act
of stepping on the accelerator, swerving to the right side of the road ramming through the navy
personnel, causing the death of SN1 Andal and SN1 Duclayna and, at the same time, constituting an
attempt to kill SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo. The crimes of murder and
52 

attempted murder are both grave felonies as the law attaches an afflictive penalty to capital
53 

punishment (reclusion perpetua to death) for murder while attempted murder is punished by prision
mayor, an afflictive penalty.
54  55

Under Article 248 of the Revised Penal Code, as amended, murder is punishable by reclusion
perpetua to death. Article 63 of the same Code provides that if the penalty prescribed is composed
56 

of two indivisible penalties, as in the instant case, and there is an aggravating circumstance the
higher penalty should be imposed. Since use of vehicle can be considered as an ordinary
aggravating circumstance, treachery, by itself, being sufficient to qualify the killing, the proper
imposable penalty – the higher sanction – is death. However, in view of the enactment of Republic
Act No. 9346, prohibiting the imposition of the death penalty, the penalty for the killing of each of the
57 

two victims is reduced to reclusion perpetua without eligibility for parole. The penalty of reclusion
58 

perpetua thus imposed by the Court of Appeals on appellant for the complex crime that he
committed is correct.

The awards of ₱75,000.00 civil indemnity and ₱75,000.00 moral damages to the respective heirs of
SN1 Andal and SN1 Duclayna are also proper. These awards, civil indemnity and moral damages,
are mandatory without need of allegation and proof other than the death of the victim, owing to the
fact of the commission of murder. 59

Moreover, in view of the presence of aggravating circumstances, namely the qualifying circumstance
of treachery and the generic aggravating circumstance of use of motor vehicle, the award of
₱30,000.00 exemplary damages to the respective heirs of the deceased victims is also correct. In 60 

addition, it cannot be denied that the heirs of the deceased victims suffered pecuniary loss although
the exact amount was not proved with certainty.  Thus, the award of ₱25,000.00 temperate
1âwphi1

damages to the heirs of each deceased victim is appropriate. 61

As it was proven that, at the time of his death, SN1 Andal had a monthly income of ₱13,245.55, the 62 

grant of ₱2,172,270.21 for loss of earning capacity is in order.63

As to the surviving victims, SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo, the Court of
Appeals correctly granted each of them ₱40,000 moral damages for the physical suffering, fright,
serious anxiety, moral shock, and similar injuries caused to them by the incident. And as the crime
64 

was attended by aggravating circumstances, each of them was properly given ₱30,000 exemplary
damages. 65

Finally, those who suffered injuries, namely, SN1 Cuya, SN1 Bacosa and SN1 Bundang, were
correctly awarded ₱25,000 temperate damages each for the pecuniary loss they suffered for
hospitalization and/or medication, although no receipts were shown to support said loss. 66

WHEREFORE, the appeal is hereby DENIED. The Decision dated April 29, 2011 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 02816 affirming the conviction of appellant Arturo Punzalan, Jr. for
the complex crime of double murder with multiple attempted murder, imposing upon him the penalty
of reclusion perpetua and ordering him to pay the following:
 (a) To the respective heirs of SN1 Arnulfo Andal and SN1 Antonio Duclayna:

(i) ₱75,000.00 civil indemnity;

(ii) ₱75,000.00 moral damages;

(iii) ₱30,000.00 exemplary damages; and

(iv) ₱25,000.00 temperate damages;

(b) To the heirs of SN1 Andal, ₱2,172,270.21 for loss of earning capacity;

(c) To each of the surviving victims, SN1 Danilo Cuya, SN1 Evelio Bacosa, SN1 Erlinger
Bundang and SN1 Cesar Domingo:

(i) ₱40,000.00 moral damages; and

(ii) ₱30,000.00 exemplary damages; and

(d) To SN1 Cuya, SN1 Bacosa and SN1 Bundang, ₱25,000.00 temperate damages each
is AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
 G.R. No. 194629, April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff–Appellee, v. DANTE DULAY, Accused–

Appellant.

DECISION

REYES, J.:

For review is the Decision1 dated May 26, 2010 of the Court of Appeals (CA) in CA–G.R.
CR–H.C. No. 03584 which affirmed the Decision2 dated September 30, 2008 of the
Regional Trial Court (RTC) of Cabarroguis, Quirino, Branch 31, finding accused–
appellant Dante Dulay (Dulay) guilty beyond reasonable doubt of the complex crime of
Murder and Frustrated Murder.

The following are the antecedent facts: chanRoblesvirtualLawlibrary

[Dulay] entered a plea of “not guilty” to the indictment which reads as follows:
"That on or about 6:30 in the evening of December 30, 2002 in Ligaya, Aglipay,
Quirino, Philippines and within the jurisdiction of this Honorable Court, the above–
named accused by using a grenade and by means of explosion, did then and there
willfully and unlawfully and after removing the safety pin of the said grenade, throw it
at the house of Orlando Legaspi Sr., producing a land explosion and as a
consequence[,] the shrapnels hit ORLANDO LEGASPI SR. to [sic] the different parts of
his body that caused his death.

That on the same occasion, said accused armed with the same grenade and by means
of explosion did then and there willfully and unlawfully threw the grenade after
removing its safety pin at the house of ORLANDO LEGASPI SR. causing loud explosion
as the shrapnel of the grenade hit ORLANDO LEGASPI, JR. Thus accused performed all
the acts of execution that would produce the crime of murder as a consequence but did
not produce it because of timely medical assistance rendered unto ORLANDO LEGASPI
JR. which prevented his death.

Acts contrary to law.”

The records reveal that in the evening of 30 December 2002 at around 6:30, Orlando
Jr. (or simply “Junior” ), a child about six years of age, was outside the kitchen of their
house located in Ligaya, Aglipay, Province of Quirino. His father, the late Orlando Sr.,
was also somewhere in the yard and was asking Junior to hand him a chair. They had
just finished dinner and were intending to watch the television later.

Wondering why the dog was barking loudly, Mrs. Engracia Legaspi peeped from inside
the kitchen and noticed Dulay’s dog in the vicinity. She surmised that its master,
[Dulay], was also present. Junior’s elder sister, Melanie went out to look for the dog–
leash to transfer the mutt to another area.

Using the flashlight he was constantly prohibited from playing with, Junior directed a
beam towards the grassy area where he discovered [Dulay] whom he recognized
because of the characteristic “mumps” below his left ear. Melanie also saw [Dulay] as
he was staring at Orlando Sr. Their uncle Dante suddenly threw something that
resembled a ball, towards the cemented part of the yard. It turned out to be a grenade,
and it landed about seven meters from where Junior and his father were. [Dulay] then
went away on his bicycle towards the direction of his house, x x x.

When the grenade exploded, Junior was hurt in his pelvic area, while his father was
fatally hit by shrapnel, causing his death. Melanie rushed to the succor of her bloodied
father, barely noticing Junior who was likewise lying on the ground, but was still
conscious and crying. Engracia hollered for help from the neighborhood. Because of the
firecrackers in that New Year’s Eve, people did not readily render assistance, until they
realized the intensity of the explosion that shook the ground.

Police operatives who arrived at the crime scene instructed the assisting neighbors to
locate the grenade fragments. In the early morning of 31 December 2002, three of the
male neighbors continued the search and found a grenade safety lever, along with a
torn–out pair of rubber shoes in the road near Dulay’s house. Examining the rubber
shoes which turned out to belong to the latter, the three men further recovered a
grenade ring pin from inside the left shoe.

Orlando Sr. was rushed to the hospital but he expired shortly thereafter. His Certificate
of Death states that he died of cardio–respiratory arrest due to hemorrhagic shock due
to “transection of the right kidney, perforation of the duodenum, pancreas and stomach
due to grenade blast injury.”

[Dulay’s] alibi consists of his purported trip from the house of his uncle Onofre Dulay in
Gamis to his friend, Joel Ritualo in another barangay, Dibul. According to his story, he
was Onofre’s caretaker while the latter was in Manila. Since he had no electricity in
Gamis, he went on a bike to Ritualo to have his Motolite battery recharged. While
waiting for the recharging to finish, he went on a drinking spree with Ritualo and
another man, Pepito Maluret, until around 7:30 p.m. when he bid the two liquor–
companions goodbye. With the energized battery in tow, he left, but Ritualo insisted on
accompanying him to the road as he was already drunk. Not long afterwards, Ritualo
hailed the passenger jeepney that passed them which was driven by his uncle, witness
Robert Daileg.

In convicting Dulay, the trial court noted that Junior had no ill–motive to testify falsely
against his uncle. Against the self–serving alibi of the appellant, the prosecution
witnesses positively identified the perpetrator because they were familiar with him, the
court added.3 (Citations omitted)

The RTC found Dulay guilty beyond reasonable doubt of the complex crime of Murder
with Attempted Murder. The dispositive portion of the RTC ruling is as follows: chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing consideration, the Court finds accused Dante
Dulay GUILTY beyond reasonable doubt with the complex crime of Murder with
Attempted Murder and is hereby sentenced to Reclusion Perpctua.

1. He is further ordered to pay the heirs Orlando Legaspi Sr., the sum of

[P]50,000[.00] as civil indemnity, and moral damages in the amount of
[P]50,000.00[.]
 2. Also he must pay [P]30,000[.00] pesos as moral damages to Orlando
Legaspi, Jr.

3. [P]115,956[.00] as actual expenses/damage [s] for the hospitalization of

the two victims, namely: Orlando Legaspi, Sr., and Orlando Legaspi,
Jr.

SO ORDERED[.]4

On appeal, the CA affirmed the conviction with modification.  The fallo of the judgment
reads:chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing, the

challenged Decision is AFFIRMED with MODIFICATION. Accordingly, the accused–
appellant is convicted of the complex crime of murder and frustrated murder and is
sentenced to suffer: chanRoblesvirtualLawlibrary

1) the penalty of reclusion perpetua without eligibility for parole;

2) the award of actual damages in the amount of [P] 115,956.00 for the hospital
expenses of the two victims;
3) the award of civil indemnity for the death of Orlando Sr., in the increased amount of
[P]75,000.00;
4) the award of moral damages in the respective amounts of |P]75,000.00 and
[P]55,000.00 for Orlando Senior and Junior; [and]
5) the award of exemplary damages in the amount of [P]30,000.00 each for both
Orlando Senior and Junior.

IT IS SO ORDERED.5

The CA held that pursuant to Republic Act No. 9346, the penalty of death which would
have been imposable is properly reduced to reclusion perpetua but the RTC erred in
stating in the body of the decision that Dulay was guilty as well of “frustrated murder”
as charged in the Information with respect to the bomb–injured Orlando Legaspi, Jr.
(Junior), and yet convicted him in the dispositive part only of “attempted murder.” The
prosecution was able to establish that all acts of execution, not merely preparatory
acts, were performed to produce the felony as a consequence, but Junior nevertheless
survived for reasons independent of the will of the perpetrator; that is, the timely
medical assistance to him.6

The records of this case were then elevated to this Court pursuant to CA
Resolution7 dated August 5, 2010, which gave due course to Dulay’s notice of appeal.

Our Ruling

"It is settled that this Court will not interfere with the trial court’s assessment of the
witnesses' credibility, absent any indication or showing that the trial court overlooked
some material facts or gravely abused its discretion, especially where, as in this case,
such assessment is affirmed by the CA. In the present case, we see no compelling
reason to disturb the factual findings of the courts a quo”
Dulay averred that he was in Dibul, Saguday, Quirino, when the crime occurred. While
defense witness Robert Daileg (Daileg) testified that Dulay rode as a passenger in the
former’s jeepney from Dibul to Gamis one night, Daileg cannot even remember the
exact date when this occurred. Consequently, Daileg cannot adequately support Dulay’s
version of facts that the latter was somewhere else that fateful night.

For the defense of alibi  to prosper, the appellant must prove that he was somewhere
else when the offense was committed and that he was so far away that it was not
possible for him to have been physically present at the place of the crime or at its
immediate vicinity at the time of its commission.9 Since Dulay was not able to prove
that he was in Dibul when the crime was committed, both the CA and the RTC were
correct in disregarding his alibi. Junior and Melanie, Junior’s elder sister, on the other
hand, have both positively identified Dulay as the assailant. On this score, this Court
has held in a number of cases that denial and alibi are weak defenses, which cannot
prevail against positive identification.10

As regards the crime committed against Junior, the Court is in accord with the CA’s
conclusion that Dulay is guilty of frustrated murder. 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.”

Applying the foregoing to the case at bar, Dulay has performed all acts of execution in
throwing the grenade which could have caused Junior’s death as a consequence, but
because of immediate medical assistance, a cause independent of Dulay’s will, Junior
survived.12

The Court thus affirms the CA decision, with modification on the awarded indemnities.

First, the Court retains the award by the CA of P75,000.00 as moral damages,
exemplary damages at P30,000.00 and civil indemnity at P75,000.00 to the heirs of
Orlando Legaspi, Sr. (Orlando, Sr.) in conformity with our ruling in People v.
Barde.13 Next, the Court awards moral and exemplary damages to Junior in the
amounts of P50,000.00 and P20,000.00, respectively. Furthermore, the Court upholds
the CA’s award of P115,956.00 as actual damages for the hospital expenses of both
Orlando Sr. and Junior. Lastly, the Court imposes an interest of six percent (6%) per
annum on the award of civil indemnity and all damages from the date of finality of
judgment until fully paid consistent with prevailing jurisprudence.14

WHEREFORE, the appeal is DENIED. The Decision dated May 26, 2010 of the Court of
Appeals in CA–G.R. CR–H.C. No. 03584 is AFFIRMED WITH MODIFICATION in that
accused–appellant Dante Dulay is ordered: (a) to pay the heirs of Orlando Legaspi, Sr.
the amount of P75,000.00 as civil indemnity; P75,000.00 as moral damages and
P30,000.00 as exemplary damages; (b) to pay Orlando Legaspi, Jr., the amount
ofP50,000.00 as moral damages and P20,000.00 as exemplary damages; and (c) to
pay P115,956.00 as actual damages for the hospital expenses of both Orlando Legaspi,
Sr. and Orlando Legaspi, Jr. An interest of six percent (6%)  per annum is imposed on
the award of civil indemnity and all damages from the date of finality of this judgment
until fully paid.
SO ORDERED.

Sereno, C.J., (Chairperson), Leonardo–De Castro, Bersamin, and Villarama, Jr.,

JJ., concur.
G.R. No. 109266 December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner,

vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE
OF THE PHILIPPINES, respondents.

Amado M. Santiago, Jr. for petitioner.

The Solicitor General for the People of the Philippines.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the
Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis
Garchitorena of the Sandiganbayan, disqualified from acting in said criminal case; and (b) the
Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp.
2-35 and pp. 36-94).

On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with
violation of Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, allegedly committed by her favoring "unqualified" aliens with the benefits of
the Alien Legalization Program (Rollo, p. 36).

On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R.
No. 99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from
proceeding with Criminal Case No. 16698 on the ground that said case was intended solely to
harass her as she was then a presidential candidate. She alleged that this was in violation of Section
10, Article IX-C of the Constitution which provides that "(b)ona fide candidates for any public office
shall be free from any form of harassment and discrimination." The petition was dismissed on
January 13, 1992.

On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which
motion was set for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).

On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is
a member, set the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)

On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a
pending motion for inhibition, and that petitioner intended to file a motion for a bill of particulars
(Rollo, pp. 43-44).

On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the
arraignment (Rollo, p. 45).

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The
motion stated that while the information alleged that petitioner had approved the application or
legalization of "aliens" and gave them indirect benefits and advantages it lacked a list of the favored
aliens. According to petitioner, unless she was furnished with the names and identities of the aliens,
she could not properly plead and prepare for trial.

On November 12, 1992 and upon motion of petitioner in G.R.

No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan
(First Division) to reset the arraignment to a later date and to dispose of the two incidents pending
before it (Re: disqualification of Presiding Justice Garchitorena and the motion for the bill of
particulars).

At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated
categorically that they would file only one amended information against petitioner.

However, on December 8, 1992, the prosecution filed a motion to

admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).

On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March
11, 1993, denying the motion for his disqualification (Rollo, pp. 151-164).

On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32
Amended Informations and ordering petitioner to post the corresponding bail bonds within ten days
from notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32 Amended Informations was set
for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).

Hence, the filing of the instant petition.

Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March
25, 1993, ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case
until the question of his disqualification is finally resolved by this Court and from enforcing the
resolution dated March 11, 1993, ordering petitioner to post bail bonds for the 32 Amended
Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).

Re: Disqualification of the Sandiganbayan Presiding Justice

The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is
letter in the July 29, 1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of
the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his public statements . . . when he sits in judgment on
the merits of the case . . ." (Rollo, pp. 16-17).

The letter in question was written in response to an item in Teodoro Benigno's column in the July 22,
1992 issue of the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that said order reflected a "perverse morality" of
the Sandiganbayan and the lack of "legal morality" of its Presiding Justice, thus:

I cannot, for example accept the legal morality of Sandiganbayan Justice Francis
Garchitorena who would stop Miriam Defensor Santiago from going abroad for a
Harvard scholarship because of graft charges against her. Some of the most
 perfidious Filipinos I know have come and gone, left and returned to these shores
without Mr. Garchitorena kicking any kind of rumpus. Compared to the peccadilloes
of this country's outstanding felons, what Miriam is accused of is kindergarten stuff.
The Sandiganbayan Supremo got a lot of headlines for stopping Miriam but I contend
this is the kind of perverse morality we can do without (Rollo, p. 156).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads
as follows:

(c) Mrs. Santiago has never informed any court where her cases are pending of her
intention to travel, whether the Regional Trial Court where she is charged with
soliciting donations from people transacting with her office at Immigration or before
the Sandiganbayan where she is charged with having favored unqualified aliens with
the benefits of the Alien Legalization Program nor even the Supreme Court where
her petition is still pending (Rollo, p. 158).

In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena

that petitioner had been charged before the Sandiganbayan "with having favored unqualified aliens
with the benefits of the Alien Legalization Program."

The statement complained of was just a restatement of the Information filed against petitioner in
Criminal Case No. 16698 in connection with which the hold-departure order was issued. Said
Information specified the act constituting the offense charged, thus:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, in
Manila, Philippines, and within the jurisdiction of this Honorable Court, accused
Miriam Defensor-Santiago, being then the Commissioner of the Commission on
Immigration and Deportation, with evident bad faith and manifest partiality, did then
and there willfully, unlawfully and criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1, 1984 in violation of Executive
Order No. 324 dated April 13, 1988 which does not allow the legalization of the
same, thereby causing undue injury to the government and giving unwarranted
benefits and advantages to said aliens in the discharge of the official and
administrative functions of said accused (Rollo, p. 36).

It appears that petitioner tried to leave the country without first securing the permission of the
Sandiganbayan, prompting it to issue the hold-departure order which Benigno viewed as uncalled
for. The letter of Presiding Justice Garchitorena, written in defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing criminal charges in court, with no exception,
have to secure permission to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no occasion for the letter had
Benigno not written his diatribe, unfair at that, against the Sandiganbayan.

Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan
sits in three divisions with three justices in each division. Unanimity among the three members is
mandatory for arriving at any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character
of the Sandiganbayan thus renders baseless petitioner's fear of prejudice and bias on the part of
Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).

Re: Claim of denial of due process

Petitioner cannot complain that her constitutional rights to due process were violated by reason of
the delay in the termination of the preliminary investigation. According to her, while the offense was
allegedly committed "on or before October 17, 1988", the information was filed only on May 9, 1991
and the amended informations on December 8, 1992 (Rollo, p. 14).

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there

indeed was an unexplained inaction on the part of the public prosecutors inspite of the simplicity of
the legal and factual issues involved therein.

In the case at bench, there was a continuum of the investigatory process but it got snarled because
of the complexity of the issues involved. The act complained of in the original information came to
the attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of
the Manila Standard. Immediately thereafter, the investigatory process was set in motion. The
investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of
petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela Llana but
on request of petitioner herself the investigation was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft
resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo the
hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the
Ombudsman in March 1991.

We note that petitioner had previously filed two petitions before us involving Criminal Case No.
16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary
investigation and the filing of the information against her in those petitions. a piece-meal
presentation of issues, like the splitting of causes of action, is self-defeating.

Petitioner next claims that the Amended Informations did not charge any offense punishable under
Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under
Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation
adopted the policy of approving applications for legalization of spouses and unmarried, minor
children of "qualified aliens" even though they had arrived in the Philippines after December 31,
1983. she concludes that the Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information
(People v. Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion
that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in
the Philippines after January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in "evident bad faith and manifest partiality in the execution of her
official functions."
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of
R.A. No. 3019.

The claims that the acts complained of were indeed authorized under Executive Order No. 324, that
petitioner merely followed in good faith the policy adopted by the Board of Commissioners and that
the aliens were spouses or unmarried minor children of persons qualified for legalization of stay, are
matters of defense which she can establish at the trial.

Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue
injury to any party, including the Government," there are two ways of violating Section 3 (e) of R.A.
No. 3019. These are: (a) by causing undue injury to any party, including the Government; and (b) by
giving any private party any unwarranted benefit, advantage or preference.

In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

The use of the distinctive term "or" connotes that either act qualifies as a violation of
Section 3 (a). In other words the act of giving any private party any unwarranted
benefit, advantage or preference is not an indispensable element of the offense of
"causing any undue injury to any party" as claimed by petitioners although there may
be instances where both elements concur.

Re: Delito continuado

Be that as it may, our attention was attracted by the allegation in the petition that the public
prosecutors filed 32 Amended Informations against petitioner, after manifesting to the
Sandiganbayan that they would only file one amended information (Rollo, pp. 6-61). We also noted
that petitioner questioned in her opposition to the motion to admit the 32 Amended Informations, the
splitting of the original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore
proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor in
her petition.

We find that, technically, there was only one crime that was committed in petitioner's case, and
hence, there should only be one information to be file against her.

The 32 Amended Informations charge what is known as delito continuado or "continued crime" and
sometimes referred to as "continuous crime."

In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the
concept of delito continuado has been a vexing problem in Criminal Law — difficult as it is to define
and more difficult to apply.

According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed
during a period of time; unity of penal provision violated; and unity of criminal intent or purpose,
which means that two or more violations of the same penal provisions are united in one and same
instant or resolution leading to the perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality

there is only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code,
1957 ed., p. 102; Penal Science and Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal intent or
resolution (Criminal Law, 1988 ed. pp. 53-54).

Applying the concept of delito continuado, we treated as constituting only one offense the following
cases:

(1) The theft of 13 cows belonging to two different owners committed by the accused
at the same time and at the same period of time (People v. Tumlos, 67 Phil. 320
[1939] ).

(2) The theft of six roosters belonging to two different owners from the same coop
and at the same period of time (People v. Jaranillo, 55 SCRA 563 [1974] ).

(3) The theft of two roosters in the same place and on the same occasion (People v.
De Leon, 49 Phil. 437 [1926] ).

(4) The illegal charging of fees for services rendered by a lawyer every time he
collects veteran's benefits on behalf of a client, who agreed that the attorney's fees
shall be paid out of said benefits (People v. Sabbun, 10 SCRA 156 [1964] ). The
collection of the legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under the same criminal
impulse (People v. Lawas, 97 Phil. 975 [1955] ).

On the other hand, we declined to apply the concept to the following cases:

(1) Two estafa cases, one of which was committed during the period from January 19
to December 1955 and the other from January 1956 to July 1956 (People v. Dichupa,
113 Phil. 306 [1961] ). The said acts were committed on two different occasions.

(2) Several malversations committed in May, June and July, 1936, and falsifications
to conceal said offenses committed in August and October 1936. The malversations
and falsifications "were not the result of only one purpose or of only one resolution to
embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).

(3) Two estafa cases, one committed in December 1963 involving the failure of the
collector to turn over the installments for a radio and the other in June 1964 involving
the pocketing of the installments for a sewing machine (People v. Ledesma, 73
SCRA 77 [1976] ).

(4) 75 estafa cases committed by the conversion by the agent of collections from
customers of the employer made on different dates (Gamboa v. Court of Appeals, 68
SCRA 308 [1975]).

The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied
to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up
claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).

Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws,
unless the latter provide the contrary. Hence, legal principles developed from the Penal Code may
be applied in a supplementary capacity to crimes punished under special laws.
The question of whether a series of criminal acts over a period of time creates a single offense or
separate offenses has troubled also American Criminal Law and perplexed American courts as
shown by the several theories that have evolved in theft cases.

The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of
several things, whether belonging to the same or different owners, at the same time and place
constitutes but one larceny. Many courts have abandoned the "separate larceny doctrine," under
which there is a distinct larceny as to the property of each victim. Also abandoned was the doctrine
that the government has the discretion to prosecute the accused or one offense or for as many
distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).

The American courts following the "single larceny" rule, look at the commission of the different
criminal acts as but one continuous act involving the same "transaction" or as done on the same
"occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW
1119; State v. Larson, 85 Iowa 659, 52 NW 539).

An American court held that a contrary rule would violate the constitutional guarantee against putting
a man in jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed
that the doctrine is a humane rule, since if a separate charge could be filed for each act, the accused
may be sentenced to the penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).

In the case at bench, the original information charged petitioner with performing a single criminal act
— that of her approving the application for legalization of aliens not qualified under the law to enjoy
such privilege.

The original information also averred that the criminal act : (i) committed by petitioner was in
violation of a law — Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done
on a single day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of the original information, except
that instead of the word "aliens" in the original information each amended information states the
name of the individual whose stay was legalized.

At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they
would file only one amended information embodying the legalization of stay of the 32 aliens. As
stated in the Order dated November 12, 1992 of the Sandiganbayan (First Division):

On the matter of the Bill of Particulars, the prosecution has conceded categorically
that the accusation against Miriam Defensor Santiago consists of one violation of the
law represented by the approval of the applications of 32 foreign nationals for
availment (sic) of the Alien Legalization Program. In this respect, and responding
directly to the concerns of the accused through counsel, the prosecution is
categorical that there will not be 32 accusations but only one . . . (Rollo, p. 59).

The 32 Amended Informations aver that the offenses were committed on the same period of
time, i.e., on or about October 17, 1988. The strong probability even exists that the approval of the
application or the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as
when the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the
Government suffered a single harm or injury. The Sandiganbayan in its Order dated November 13,
1992 stated as follows:

. . . Equally, the prosecution has stated that insofar as the damage and prejudice to
the government is concerned, the same is represented not only by the very fact of
the violation of the law itself but because of the adverse effect on the stability and
security of the country in granting citizenship to those not qualified (Rollo, p. 59).

WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the
Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal
Case No. 16698 is MODIFIED in the sense that the Office of the Special Prosecutor of the Office of
the Ombudsman is directed to consolidate the 32 Amended Informations (Criminal Cases Nos.
18371 to 18402) into one information charging only one offense under the original case number, i.e.,
No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED
insofar as to the disqualification of Presiding Justice Francis Garchitorena is concerned.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Puno, JJ.,
concur.
G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner,
vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.

DECISION

TINGA, J.:

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the
Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the
Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the
elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on
the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was
sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already
granted probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the
sentence of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also
argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the
probation shall operate to restore to him all civil rights lost or suspended as a result of his conviction
and to fully discharge his liability for any fine imposed. The order of the trial court dated December
18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result
of his conviction, including the right to vote and be voted for in the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary
hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified
from running for Punong Barangay.

The Comelec First Division adopted this recommendation. On motion for reconsideration filed with
the Comelec en banc, the Resolution of the First Division was affirmed. According to the
Comelec en banc, Sec. 40(a) of the Local Government Code provides that 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, are disqualified from running for
any elective local position. 5 Since Moreno was released from probation on December 20, 2000,
disqualification shall commence on this date and end two (2) years thence. The grant of probation to
Moreno merely suspended the execution of his sentence but did not affect his disqualification from
running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take
precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is
a much later enactment and a special law setting forth the qualifications and disqualifications of
elective local officials.
In this petition, Moreno argues that the disqualification under the Local Government Code applies
only to those who have served their sentence and not to probationers because the latter do not
serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the
Local Government Code because it is a special law which applies only to probationers. Further, even
assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes
an implied pardon of his previous misconduct.

In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor
General argues that this Court in Dela Torre v. Comelec 7 definitively settled a similar controversy by
ruling that conviction for an offense involving moral turpitude stands even if the candidate was
granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and
remains totally unaffected notwithstanding the grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out
material differences between his case and Dela Torre v. Comelec which allegedly warrant a
conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for
violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of
Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for
probation nearly four (4) years after his conviction and only after appealing his conviction, such that
he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified
therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec.
40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase "within two (2)
years after serving sentence" found in Sec. 40(a) of the Local Government Code, which reads:

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; [Emphasis supplied.]

....

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the
crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the
first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime
involving moral turpitude was never raised in the petition for disqualification because the ground
relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged
disqualification from running for a local elective office within two (2) years from his discharge from
probation after having been convicted by final judgment for an offense punishable by Four (4)
Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the
crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue
being whether Moreno’s sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the
grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government
Code was based primarily on the finding that the crime of fencing of which petitioner was convicted
involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase
"within two (2) years after serving sentence" should have been interpreted and understood to apply
both to those who have been sentenced by final judgment for an offense involving moral
turpitude and to those who have been sentenced by final judgment for an offense punishable by one
(1) year or more of imprisonment. The placing of the comma (,) in the provision means that the
phrase modifies both parts of Sec. 40(a) of the Local Government Code.

The Court’s declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we
should add, ought to be considered an obiter in view of the fact that Dela Torre was not even entitled
to probation because he appealed his conviction to the Regional Trial Court which, however,
affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the
alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or
opportunism on the part of an accused who, although already eligible, did not at once apply for
probation, but did so only after failing in his appeal. 9

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase
"service of sentence," understood in its general and common sense, means the confinement of a
convicted

person in a penal facility for the period adjudged by the court. 10 This seemingly clear and
unambiguous provision, however, has spawned a controversy worthy of this Court’s attention
because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the
law to include even those who did not serve a day of their sentence because they were granted
probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not
serve the adjudged sentence having been granted probation and finally discharged by the trial court.

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 11 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.

Clearly, the period within which a person is under probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation
suspends the execution of the sentence. During the period of probation, 12 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. 13
It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case.
They focused on the fact that Moreno’s judgment of conviction attained finality upon his application
for probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec.
40(a) of the Local Government Code unequivocally disqualifies only those who have been
sentenced by final judgment for an offense punishable by imprisonment of one (1) year or
more, within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of
the grant of probation which, we reiterate, should not be equated with service of sentence, should
not likewise be disqualified from running for a local elective office because the two (2)-year period of
ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position.
Sec. 16 of the Probation Law provides that "[t]he final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his
liability for any fine imposed as to the offense for which probation was granted." Thus, when Moreno
was finally discharged upon the court’s finding that he has fulfilled the terms and conditions of his
probation, his case was deemed terminated and all civil rights lost or suspended as a result of his
conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives
room for judicial interpretation, 14 our conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the
intended meaning of the phrase "service of sentence," i.e., whether the legislature also meant to
disqualify those who have been granted probation. The Court’s function, in the face of this seeming
dissonance, is to interpret and harmonize the Probation Law and the Local Government
Code. Interpretare et concordare legis legibus est optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or
immunity conferred by the state, which is granted to a deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of which he was convicted. 15 Thus, the
Probation Law lays out rather stringent standards regarding who are qualified for probation. For
instance, it provides that the benefits of probation shall not be extended to those sentenced to serve
a maximum term of imprisonment of more than six (6) years; convicted of any offense against the
security of the State; those who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less
than P200.00; those who have been once on probation; and those who are already serving sentence
at the time the substantive provisions of the Probation Law became applicable. 16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code
covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers
probationable offenses. In spite of this, the provision does not specifically disqualify probationers
from running for a local elective office. This omission is significant because it offers a glimpse into
the legislative intent to treat probationers as a distinct class of offenders not covered by the
disqualification.

Further, it should be mentioned that the present Local Government Code was enacted in 1991,
some seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the
enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to
have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification
from holding public office. That it chose not to include probationers within the purview of the
provision is a clear expression of the legislative will not to disqualify probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception to
the Local Government Code. While the Local Government Code is a later law which sets forth the
qualifications and disqualifications of local elective officials, the Probation Law is a special legislation
which applies only to probationers. It is a canon of statutory construction that a later statute, general
in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special
provisions of such earlier statute. 17

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the
disqualification to include Moreno, the Comelec committed an egregious error which we here
correct. We rule that Moreno was not disqualified to run for Punong Barangay of Barangay Cabugao,
Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of
the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of
Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the
poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where
he said that "it would be far better to err in favor of popular sovereignty than to be right in complex
but little understood legalisms."

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en

banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well
as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The
Commission on Elections is directed to proceed in accordance with this Decision. No
pronouncement as to costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice
G.R. No. 182748               December 13, 2011

ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what
distinguishes frustrated homicide from attempted homicide; and c) when an accused who appeals
may still apply for probation on remand of the case to the trial court.

The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated
homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-
2213.1

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000,
he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took
a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 ½ inches in diameter. Rufino fell unconscious
as Jesus fled.

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the
roadside. Ananias tried to help but someone struck him with something hard on the right temple,
knocking him out. He later learned that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking
outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital.

Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The doctor testified that these injuries were serious
and potentially fatal but Rufino chose to go home after initial treatment.

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He
testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who
were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather
than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times
on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending
himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and
tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone.
Arnel then fled and hid in his sister’s house. On September 4, 2000, he voluntarily surrendered at
the Tigaon Municipal Police Station.

Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of
the incident. His three companions were all drunk. On his way home, Diomedes saw the three
engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of
frustrated homicide and sentenced him to suffer imprisonment from two years and four months of
prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify
for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking
conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty
imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in
the absence of evidence to support it.3 Not satisfied, Arnel comes to this Court on petition for review.

In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to
submit their respective positions on whether or not, assuming Arnel committed only the lesser crime
of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor,
as minimum, to two years and four months of prision correccional, as maximum, he could still apply
for probation upon remand of the case to the trial court.

Both complied with Arnel taking the position that he should be entitled to apply for probation in case
the Court metes out a new penalty on him that makes his offense probationable. The language and
spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argues
that under the Probation Law no application for probation can be entertained once the accused has
perfected his appeal from the judgment of conviction.

The Issues Presented

The case essentially presents three issues:

1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a
stone;

2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated
homicide; and

3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced
probationable penalty, whether or not he may still apply for probation on remand of the case
to the trial court.

The Court’s Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in
self-defense when he hit Rufino back with a stone.

When the accused invokes self-defense, he bears the burden of showing that he was legally justified
in killing the victim or inflicting injury to him. The accused must establish the elements of self-
defense by clear and convincing evidence. When successful, the otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent of the accused.4

In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the
person whom the offender killed or injured committed unlawful aggression; (2) that the offender
employed means that is reasonably necessary to prevent or repel the unlawful aggression; and (3)
that the person defending himself did not act with sufficient provocation.5
If the victim did not commit unlawful aggression against the accused, the latter has nothing to
prevent or repel and the other two requisites of self-defense would have no basis for being
appreciated. Unlawful aggression contemplates an actual, sudden, and unexpected attack or an
imminent danger of such attack. A mere threatening or intimidating attitude is not enough. The victim
must attack the accused with actual physical force or with a weapon.6

Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone
testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnel’s testimony that it was Rufino who started it. Arnel’s only other
witness, Diomedes, merely testified that he saw those involved having a heated argument in the
middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered
injuries in the hands of Rufino and his companions.7

In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel was the
aggressor. Although their versions were mottled with inconsistencies, these do not detract from their
core story. The witnesses were one in what Arnel did and when and how he did it. Compared to
Arnel’s testimony, the prosecution’s version is more believable and consistent with reality, hence
deserving credence.8

Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated
homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have
resulted in death as in fact it did not?

The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life.
The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent.9 And the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on his victim.10

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked
Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the
wounds that Arnel inflicted on his victim, the Court is convinced that he intended to kill him.

The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In
Palaganas v. People,11 we ruled that when the accused intended to kill his victim, as shown by his
use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely
medical assistance, the crime is frustrated murder or frustrated homicide. If the victim’s wounds are
not fatal, the crime is only attempted murder or attempted homicide.

Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the
victim’s wounds. While Dr. Belleza testified that "head injuries are always very serious,"12 he could
not categorically say that Rufino’s wounds in this case were "fatal." Thus:

Q: Doctor, all the injuries in the head are fatal?

A: No, all traumatic injuries are potentially treated.

Q: But in the case of the victim when you treated him the wounds actually are not fatal on
that very day?

A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case
the patient preferred to go home at that time.
Q: The findings also indicated in the medical certificate only refers to the length of the wound
not the depth of the wound?

A: When you say lacerated wound, the entire length of the layer of scalp.

Q: So you could not find out any abrasion?

A: It is different laceration and abrasion so once the skin is broken up the label of the frontal
lo[b]e, we always call it lacerated wound, but in that kind of wound, we did not measure the
depth.13

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred
fracture or that he bled internally as a result of the pounding of his head. The wounds were not so
deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza
further testified:

Q: So, in the medical certificate the wounds will not require surgery?

A: Yes, Madam.

Q: The injuries are slight?

A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus –
the problem the contusion that occurred in the brain.

xxxx

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?

A: Head injury at least be observed within 24 hours, but some of them would rather go home
and then come back.

Q: So the patient did not stay 24 hours in the hospital?

A: No, Your Honor.

Q: Did he come back to you after 24 hours?

A: I am not sure when he came back for follow-up.14

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution’s
claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel
liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender.

Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from
the judgment of the RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the
maximum of the penalty imposed on him should be lowered to imprisonment of four months of
arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With
this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the
case to the RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state
only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: "That no
application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction."15 Since Arnel appealed his conviction for frustrated homicide, he
should be deemed permanently disqualified from applying for probation.

But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to
such privilege; he certainly does not have. What he has is the right to apply for that privilege. The
Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him
to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether
or not to grant him the privilege of probation, taking into account the full circumstances of his case.

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 Appeals16 that 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 Francisco and this case.

In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral
defamation and sentenced him to a prison term of one year and one day to one year and eight
months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he
chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When
the acquittal did not come, he wanted probation. The Court would not of course let him. It served him
right that he wanted to save his cake and eat it too. He certainly could not have both appeal and
probation.

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed
his conviction before he can avail himself of probation. This requirement "outlaws the element of
speculation on the part of the accused—to wager on the result of his appeal—that when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory the
appellate court’s affirmance of his conviction."17
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. He was 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.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him.
He claimed that the evidence at best warranted his conviction only for attempted, not frustrated,
homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the
beginning to bring down the penalty to the level where the law would allow him to apply for
probation.

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
lavvphil

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.18 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.19

One of those who dissent from this decision points out that allowing Arnel to apply for probation after
he appealed from the trial court’s judgment of conviction would not be consistent with the provision
of Section 2 that the probation law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel who appeals from a judgment convicting
him, it is claimed, shows no penitence.

This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however,
it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years.
How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it
would be sending him straight behind bars. It would be robbing him of the chance to instead undergo
reformation as a penitent offender, defeating the very purpose of the probation law.

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 have had the right to apply for probation.
No one could say with certainty that he would have availed himself of the right had the RTC done
right 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
probation when the new penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31,
2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY
beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as moral
damages, without prejudice to petitioner applying for probation within 15 days from notice that the
record of the case has been remanded for execution to the Regional Trial Court of San Jose,
Camarines Sur, in Criminal Case T-2213.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice
 M. Articles 89-113

Cases:

G.R. No. 227704, April 10, 2019

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. SUSAN SAYO Y REYES

AND ALFREDO ROXAS Y SAGON, ACCUSED-APPELLANTS.

DECISION

CAGUIOA, J.:

Subject of this appeal1 is the Decision2 of June 26, 2015 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 04914 which affirmed the Decision3 dated September 23, 2010 of
the Regional Trial Court (RTC), Pasig City, Branch 261, convicting accused-appellants
Susan Sayo y Reyes (Sayo) and Alfredo Roxas y Sagon (Roxas) (collectively referred to
as accused-appellants) for violation of Republic Act No. (RA) 9208 or the Anti-
Trafficking in Persons Act of 2003.4

Facts

On November 16, 2005, accused-appellants were indicted under the following

Information:5

That on November 15, 2005, in Pasig City, and within the jurisdiction of the Honorable
Court, accused Susan Sayo, willfully and unlawfully, did then and there, recruit and
transport minors [AAA6 ], 15 years old, [BBB7 ] 16 years old, together with [CCC8 ], by
taking advantage of their vulnerability, for the purpose of prostitution and sexual
exploitation; while accused Alfredo Roxas, in conspiracy with accused Sayo, did then
and there, willfully, and unlawfully, own, manage and operate a room in his apartment
in Pasig City used as a prostitution den, receive and harbor said trafficked persons, also
by taking advantage of their vulnerability and for the purpose of prostitution and sexual
exploitation.

Contrary to law.9

Accused-appellants pleaded not guilty upon arraignment.

The prosecution's and defense's contrasting versions of the events, as summarized by

theCA, are as follows:
The Prosecution's Evidence

The combined testimonies of AAA, BBB, and CCC known as the "plaza girls" disclosed
that several months prior to November 15, 2005, these "plaza girls" have been under
the control and supervision of SAYO as commercial sex workers. AAA testified in open
court that she was only fifteen (15) years old at the time she began working for SAYO
in December 2004. The Certificate of Live Birth issued by the National Statistics Office
showed that she was born on May 2, 1990. Same is true with BBB who testified that
she was born on November 11, 1989 and thus, indeed, a minor during their rescue on
November 15, 2005.

The "plaza girls" were introduced to SAYO on different occasions in 2004 by other
"plaza girls." SAYO then started to act as a pimp providing them with male customers
for a certain percentage. The "plaza girls" give her a flat rate of Fifty Pesos (P50.00) for
every male customer who will pay them Three Hundred Pesos (P300.00) and Two
Hundred Pesos (P200.00) for every Seven Hundred Pesos (P700.00) paying customer.

SAYO would regularly furnish AAA, BBB and CCC with male customers on the average
five (5) customers per week. Whenever they have customers, SAYO would bring them
either to a motel or to ALFREDO ROXAS's house who provides them a room for One
Hundred Pesos (P100.00) for thirty (30) minutes use of the room. ROXAS also provides
condom for the male customers at Thirty Pesos (P30.00).

On November 3, 2005, the Criminal Investigation and Detection Group-Women and

Children Complaint Division (CIDG-WCCD) received a letter from the International
Justice Mission (IJM), an International Non Government Human Rights Organization,
requesting for police assistance on the possible rescue of three (3) minors exploited for
prostitution in Pasig City.

Acting on said request, PO2 Leonardo So conducted on November 8, 2005 further

surveillance to confirm the veracity of the report. It was verified and confirmed that
there were rampant offerings of minor prostitutes at the Pasig Plaza, specifically by a
pimp named SUSAN SAYO. Hence, on November 15, 2005, the CIDG-WCCD headed by
Superintendent Sotera P. Macatangay conceptualized an entrapment operation called
"Oplan Sagip Angel." A team was organized composed of WCCD operatives,
representatives from IJM and DSWD-NCR for the rescue operation.

During the briefing, PO3 Anthony Ong, PO2 Leonardo So and an agent from IJM were
designated to act as poseur-costumers. Then, one (1) five hundred peso bill and fifteen
(15) one hundred peso bills amounting to Two Thousand Pesos (P2,000.00) were
prepared and sent to PNP-Crime Laboratory for Ultra Violet Powder dusting. The peso
bills would be utilized during the entrapment operation as payments to the owner of the
apartment/room, for the pimp and for the services of the "plaza girls".

The "Oplan Sagip Angel" operatives proceeded to the target area in Pasig City. The
three men who were tasked to pretend as customers stayed in front of the church at
the Pasig Plaza. They were approached by SAYO who bluntly asked if they wanted
women and she further inquired if they wanted 15 year-old girls. The three customers
agreed to take the 15 year-old girls offered by SAYO for Three Hundred Pesos
(P300.00) each. Thereafter, SAYO informed the three customers about a room in
Baltazar Street which they could rent for P100.00 for each couple. The customers
agreed on the price.

Meanwhile, SAYO informed the "plaza girls" on November 15, 2005 that they have
customers for that night. AAA, BBB and CCC met SAYO at the Pasig Plaza. There, she
introduced them to the three men. The three male customers were actually the agents
of the ClOG-WCCD and IJM. After the negotiation was concluded, all of them proceeded
to the house of ALFREDO ROXAS at No. 638 Baltazar Street, Brgy. Sto. Tomas, Pasig
City on board a tricycle. Upon reaching the house, they were greeted by "FRED" ROXAS
who openly discussed with SAYO in front of the customers and the ["]plaza girls["]
regarding the transaction for the night. ROXAS told that the room rate for each couple
is P100.00. AAA saw the customers gave to ROXAS the Three Hundred Pesos
(P300.00).

The undercover agents, SAYO and ROXAS talked about the payment for the girls'
services outside the house. When the Nine Hundred Pesos (P900.00) was handed by
one of the customers to SAYO to cover the payment for the services of AAA, BBB and
CCC, the CIDG-WCCO agents announced that it was a raid. At that point, PO3 Anthony
Ong executed the pre-arranged signal, in reaction to which, the back-up operatives who
were deployed in different strategic locations rushed towards them and arrested SAYO
and ROXAS.

Recovered from the possession of ALFREDO ROXAS was the marked money amounting
to Three Hundred Pesos (P300.00), the payment for the use of the room for sexual
activities while the Nine Hundred Pesos (P900.00) intended for the sexual services to be
provided by the "plaza girls" was recovered from SUSAN SAYO. Thereafter, the two
[accused-]appellants and the "plaza girls" were brought to the headquarters of CIDG-
WCCD in Camp Crame Quezon City for investigation, documentation and medico-legal
examination. After staying there for a day, the "plaza girls" were brought under the
care of the Department of Social Welfare and Development (DSWD) in Marilac Hills,
Alabang, Muntinlupa City.

The [Defense's] Evidence

xxxx

SAYO testified on direct examination that on November 15, 2005, between 9:00 to 9:30
o'clock in the evening, while barking for jeepney passengers in front of the Pasig
Cathedral Church, she saw CCC, AAA and BBB together with the three male persons.
This group of men and CCC approached her and arrested her. CCC asked her to
accompany them to ALFREDO's house in exchange for One Hundred Pesos (Pl 00.00).
SAYO agreed and they boarded a tricycle heading towards Sto. Tomas, Pasig City.
Thereat, SAYO was surprised when a man suddenly grabbed her arm when she alighted
from the tricycle. She was taken to a dark place and hauled immediately to a vehicle
and brought to jail where she met for the first time her co accused ROXAS.

xxxx

ALFREDO ROXAS, on the other hand, claimed that on the night of November 15, 2005,
he was sleeping in his house in Baltazar Street, Sto. Tomas. He was awakened by the
barks of the dogs. He went outside to see for himself what was that commotion all
about. He saw CCC and Susan [Sayo] along with the men[,] AAA and BBB. One of the
men asked him if they could rent his room since it was the birthday of [CCC's]
compadre, but he refused. After rejecting their request for several times, the male
persons forced him to accept the money which turned out to be dusted with ultra violet
powder. He admitted having known CCC, AAA and BBB for about 6 to 7 months prior to
the incident. As for SAYO, he just only met her on that day of November 15, 2005 in
front of the church in the Pasig Plaza. When asked how he came to know CCC, AAA and
BBB, he said that they were just introduced to him by someone in their place.10

Ruling of the RTC

The RTC promulgated its Decision11 on September 23, 2010.

The RTC first discussed the procedural infirmity in the Information as it contained more
than one offense. Under Section 13, Rule 110 of the Revised Rules of Criminal
Procedure, the Information must charge only one offense except when the law
prescribes a single punishment for various offenses.

Sayo was charged with recruiting and transporting AAA and BBB (minors), as well as
CCC (of legal age) for prostitution. In the same Information, Roxas was separately
accused of managing and operating a room in his apartment to be used for prostitution.
Thus, the Information was duplicitous. Be that as it may, the RTC held that the
accused-appellants had waived any objection to the Information as they failed to object
prior to their arraignment. Citing Dimayacyac v. Court of Appeals,12 the RTC held that
with the waiver, the accused may be charged and convicted of as many offenses as
those charged in the Information and proved during trial.13

On the substantive issue, the RTC held that the prosecution was able to prove the guilt
of accused-appellants beyond reasonable doubt. The testimonies of AAA, BBB, and. CCC
were clear, categorical, and corroborative of each other's testimony. The testimony of
the arresting officer, PO2 Anthony Ong (PO2 Ong), was also categorical and
straightforward regarding the investigation, pre-surveillance, entrapment procedure,
and arrest of the accused-appellants. 14

On the other hand, both accused-appellants merely interposed the defenses of denial
and alibi which are both inherently weak defenses. For denial to prosper, there must be
strong evidence that the accused was not capable of committing the crime. For alibi,
the accused must prove that he was at some other place which made it physically
impossible for him to be at the locus criminis at the time of commission. Contrary to the
accused's defenses, the RTC held that in fact, both the accused in this case were
arrested as a result of an entrapment operations.15

The dispositive portion of the RTC Decision held:

WHEREFORE, in light of all the foregoing considerations, accused SUSAN SAYO y REYES
is hereby found. GUILTY beyond reasonable doubt of Qualified Trafficking in Persons
under Section 4 (a,e) and Section 6 (a) of R.A. 9208 insofar as minors AAA and BBB,
and is sentenced to suffer life imprisonment and to pay a fine of Two Million Pesos
([P]2,000,000.00) insofar as minors AAA and BBB are concerned.

Accused ALFREDO ROXAS y SAGON is likewise found GUILTY beyond reasonable doubt
of Qualified Trafficking in Persons under Section 5 (a) and Section 6 (a) of R.A. 9208,
insofar as minors AAA and BBB are concerned, and is sentenced to suffer life
imprisonment and to pay a fine of Two Million Pesos ([P]2,000,000.00).

As for complainant [CCC] who was no longer a minor at the time of commission of the
offense, accused Susan Sayo is found GUILTY beyond reasonable doubt of the offense
of trafficking in persons under Section 4 (a, e) of R.A. 9208 and is sentenced to suffer
imprisonment of twenty (20) years and to pay a fine of One million pesos
(P1,000,000.00). Accused Alfredo Roxas y Sagon is likewise found GUILTY beyond
reasonable doubt of the offense of trafficking in persons under Section S(a) of R.A.
9208 and is sentenced to suffer the penalty of imprisonment of fifteen (15) years and
to pay a fine of Five hundred thousand pesos (P500,000.00).

SO ORDERED.16

The CA Decision

On appeal, the CA affirmed the RTC Decision with modification, by adding an award of
moral and exemplary damages, but only to AAA and BBB. There was no discussion on
the omission of CCC in the award of damages.17

The dispositive portion of the CA Decision stated:

WHEREFORE, premises considered, the assailed Decision of the trial court dated

September 23, 2010 is AFFIRMED with MODIFICATIONS. As modified:

(1) SUSAN SAYO Y REYES is hereby found GUILTY beyond reasonable doubt of

violating Section 4 (a) (e) qualified by Section 6 (a) of Republic Act No. 9208 insofar as
minors AAA and BBB are concerned and is sentenced to suffer the penalty of LIFE 
IMPRISONMENT without eligibility for parole and to pay a fine of Two Million Pesos
(P2,000,000.00). In addition, she is ordered to pay each AAA and BBB P500,000.00 as
moral damages; and P100,000.00 as exemplary damages.

(2) ALFREDO ROXAS Y SAGON is likewise found GUILTY beyond reasonable doubt of

violating Section 5 (a) qualified by Section 6 (a) of R.A. No. 9208, insofar as minors
AAA and BBB are concerned, and is sentenced to suffer the penalty of LIFE
IMPRISONMENT without eligibility for parole and to pay a fine of Two Million Pesos
(P2,000,000.00). In addition, he is ordered to pay each AAA and BBB P500,000.00 as
moral damages; and P100,000.00 as exemplary damages.

(3) As for the complainant CCC, who was no longer a minor at the time of the
commission of the offense, SUSAN SAYO Y REYES is found GUILTY beyond
reasonable doubt of violating Section 4 (a) (e) of R.A. 9208 and is sentenced to suffer
imprisonment of Twenty (20) years and to pay a fine of One Million Pesos
(P1,000,000.00). ALFREDO ROXAS Y SAGON is likewise found GUILTY beyond
reasonable doubt of violating Section 5 (a) of R.A. 9208 and is sentenced to suffer the
penalty of imprisonment of Fifteen (15) years and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00).

SO ORDERED.18

Accused-appellants filed a Notice of Appeal19 on July 30, 2015, which was given due
course by the CA in its Resolution20 dated August 20, 2015. Both plaintiff-appellee and
accused-appellants manifested before the Court that they would not be filing
supplemental briefs.21

In a Certification22 issued on May 12, 2017, the Correctional Institution for Women,

Bureau of Corrections, certified that Sayo had died on November 30, 2011 due to
multiple organ failure, secondary to cervical cancer, attaching thereto the Certificate of
Death23 issued by the Office of the Civil Registrar.

Issue

Whether the guilt of Roxas was proven beyond reasonable doubt.

The Court's Ruling

Sayo's death extinguished her

criminal and civil liability

At the outset, the Court notes that Sayo had already died on November 30, 2011. Thus,
the death of Sayo extinguished her criminal liability. Article 89, paragraph 1 of the
Revised Penal Code provides:

ART. 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[.]

Likewise, the civil liability of Sayo arising from her criminal liability is extinguished upon
her death. The rules on the effect of the death of the accused on civil liability pending
appeal are summarized in People v. Bayotas:24

1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice Regalado,
in this regard, "the death of the accused prior to final judgment terminates his criminal
liability and only  the civil liability directly arising from and based solely on the offense
committed, i.e., civil liability ex delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused,
if the same may also be predicated on a source of obligation other than delict Article
1157 of the Civil Code enumerates these other sources of obligation from which the civil
liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action and
subject to Section I, Rule 111 of the 1985 Rules on Criminal Procedure as amended.
This separate civil action may be enforced either against the executor/administrator or
the estate of the accused, depending on the source of obligation upon which the same
is based as explained above.25

Applying these established rules in the instant case, the death of Sayo extinguished her
criminal and civil liability inasmuch as she is no longer a defendant to stand as the
accused; the civil action is also extinguished, as it is grounded on the criminal action.26

Thus, the Decision of the Court will now solely focus on the criminal liability of Roxas.
G.R. No. 168641             April 27, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
CLEMENTE BAUTISTA, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari filed by the People of the Philippines assailing the
Decision1 of the Court of Appeals (CA) dated June 22, 2005 in CA-G.R. SP No. 72784, reversing the
Order of the Regional Trial Court (RTC), Branch 19, Manila and dismissing the criminal case for
slight physical injuries against respondent on the ground that the offense charged had already
prescribed.

The undisputed facts are as follows.

On June 12, 1999, a dispute arose between respondent and his co-accused Leonida Bautista, on
one hand, and private complainant Felipe Goyena, Jr., on the other.

Private complainant filed a Complaint with the Office of the Barangay of Malate, Manila, but no
settlement was reached. The barangay chairman then issued a Certification to file action dated
August 11, 1999.2

On August 16, 1999, private complainant filed with the Office of the City Prosecutor (OCP) a
Complaint for slight physical injuries against herein respondent and his co-accused. After conducting
the preliminary investigation, Prosecutor Jessica Junsay-Ong issued a Joint Resolution dated
November 8, 1999 recommending the filing of an Information against herein respondent. Such
recommendation was approved by the City Prosecutor, represented by First Assistant City
Prosecutor Eufrocino A. Sulla, but the date of such approval cannot be found in the records. The
Information was, however, filed with the Metropolitan Trial Court (MeTC) of Manila, Branch 28 only
on June 20, 2000.

Respondent sought the dismissal of the case against him on the ground that by the time the
Information was filed, the 60-day period of prescription from the date of the commission of the crime,
that is, on June 12, 1999 had already elapsed. The MeTC ruled that the offense had not yet
prescribed.

Respondent elevated the issue to the RTC via a Petition for Certiorari, but the RTC denied said
petition and concurred with the opinion of the MeTC.

Respondent then filed a Petition for Certiorari with the CA. On June 22, 2005, the CA rendered its
Decision wherein it held that, indeed, the 60-day prescriptive period was interrupted when the
offended party filed a Complaint with the OCP of Manila on August 16, 1999. Nevertheless, the CA
concluded that the offense had prescribed by the time the Information was filed with the MeTC,
reasoning as follows:

In the case on hand, although the approval of the Joint Resolution of ACP Junsay-Ong bears no
date, it effectively terminated the proceedings at the OCP. Hence, even if the 10-day period for the
CP or ACP Sulla, his designated alter ego, to act on the resolution is extended up to the utmost limit,
it ought not have been taken as late as the last day of the year 1999. Yet, the information was filed
with the MeTC only on June 20, 2000, or already nearly six (6) months into the next year. To use
once again the language of Article 91 of the RPC, the proceedings at the CPO was
"unjustifiably stopped for any reason not imputable to him (the accused)" for a time very
much more than the prescriptive period of only two (2) months. The offense charged had,
therefore, already prescribed when filed with the court on June 20, 2000. x x x3 (Emphasis supplied)

The dispositive portion of the assailed CA Decision reads as follows:

WHEREFORE, we hereby REVERSE and SET ASIDE the appealed Orders of both courts below

and Criminal Case No. 344030-CR, entitled: "People of the Philippines, Plaintiff, -versus- Clemente
Bautista and Leonida Bautista, Accused," is ordered DISMISSED. Costs de oficio.

SO ORDERED.4

Petitioner now comes before this Court seeking the reversal of the foregoing CA Decision. The Court
gives due course to the petition notwithstanding the fact that petitioner did not file a Motion for
Reconsideration of the decision of the CA before the filing of herein petition. It is not a condition sine
qua non for the filing of a petition for review under Rule 45 of the Rules of Court.5

The Court finds merit in the petition.

It is not disputed that the filing of the Complaint with the OCP effectively interrupted the running of
the 60-day prescriptive period for instituting the criminal action for slight physical injuries. However,
the sole issue for resolution in this case is whether the prescriptive period began to run anew after
the investigating prosecutor’s recommendation to file the proper criminal information against
respondent was approved by the City Prosecutor.

The answer is in the negative.

Article 91 of the Revised Penal Code provides thus:

Art. 91. Computation of prescription of offenses. - The period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their agents,
and shall be interrupted by the filing of the complaint or information, and shall commence to run
again when such proceedings terminate without the accused being convicted or acquitted, or
are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philipppine Archipelago.
(Emphasis supplied)

The CA and respondent are of the view that upon approval of the investigating prosecutor's
recommendation for the filing of an information against respondent, the period of prescription began
to run again. The Court does not agree. It is a well-settled rule that the filing of the complaint with the
fiscal’s office suspends the running of the prescriptive period.6

The proceedings against respondent was not terminated upon the City Prosecutor's approval of the
investigating prosecutor's recommendation that an information be filed with the court. The
prescriptive period remains tolled from the time the complaint was filed with the Office of the
Prosecutor until such time that respondent is either convicted or acquitted by the proper court.
The Office of the Prosecutor miserably incurred some delay in filing the information but such mistake
or negligence should not unduly prejudice the interests of the State and the offended party. As held
in People v. Olarte,7 it is unjust to deprive the injured party of the right to obtain vindication on
account of delays that are not under his control. All that the victim of the offense may do on his part
to initiate the prosecution is to file the requisite complaint.8

The constitutional right of the accused to a speedy trial cannot be invoked by the petitioner in the
present petition considering that the delay occurred not in the conduct of preliminary investigation or
trial in court but in the filing of the Information after the City Prosecutor had approved the
recommendation of the investigating prosecutor to file the information.

The Office of the Solicitor General does not offer any explanation as to the delay in the filing of the
information. The Court will not be made as an unwitting tool in the deprivation of the right of the
offended party to vindicate a wrong purportedly inflicted on him by the mere expediency of a
prosecutor not filing the proper information in due time.

The Court will not tolerate the prosecutors’ apparent lack of a sense of urgency in fulfilling their
mandate. Under the circumstances, the more appropriate course of action should be the filing of an
administrative disciplinary action against the erring public officials.

WHEREFORE, the Petition is hereby GRANTED. The Decision of the Court of Appeals in CA-G.R.
SP No. 72784 is hereby REVERSED and SET ASIDE and the Decision of the Regional Trial Court
of Manila in Civil Case No. 02-103990 is hereby REINSTATED.

Let the Secretary of the Department of Justice be furnished a copy of herein Decision for appropriate
action against the erring officials.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
G.R. No. 152662               June 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
MA. THERESA PANGILINAN, Respondent.

DECISION

PEREZ, J.:

The Office of the Solicitor General (OSG) filed this petition for certiorari under Rule 45 of the Rules
1 

of Court, on behalf of the Republic of the Philippines, praying for the nullification and setting aside of
the Decision of the Court of Appeals (CA) in CA-G.R. SP No. 66936, entitled "Ma. Theresa
2 

Pangilinan vs. People of the Philippines and Private Complainant Virginia C. Malolos."

The fallo of the assailed Decision reads:

WHEREFORE, the instant petition is GRANTED. Accordingly, the assailed Decision of the Regional
Trial Court of Quezon City, Branch 218, is REVERSED and SET ASIDE and Criminal Cases Nos.
89152 and 89153 against petitioner Ma. Theresa Pangilinan are hereby ordered DISMISSED. 3

Culled from the record are the following undisputed facts:

On 16 September 1997, Virginia C. Malolos (private complainant) filed an affidavit-complaint for

estafa and violation of Batas Pambansa (BP) Blg. 22 against Ma. Theresa Pangilinan (respondent)
with the Office of the City Prosecutor of Quezon City. The complaint alleges that respondent issued
nine (9) checks with an aggregate amount of Nine Million Six Hundred Fifty-Eight Thousand Five
Hundred Ninety-Two Pesos (₱9,658,592.00) in favor of private complainant which were dishonored
upon presentment for payment.

On 5 December 1997, respondent filed a civil case for accounting, recovery of commercial
documents, enforceability and effectivity of contract and specific performance against private
complainant before the Regional Trial Court (RTC) of Valenzuela City. This was docketed as Civil
Case No. 1429-V-97.

Five days thereafter or on 10 December 1997, respondent filed a "Petition to Suspend Proceedings
on the Ground of Prejudicial Question" before the Office of the City Prosecutor of Quezon City, citing
as basis the pendency of the civil action she filed with the RTC of Valenzuela City.

On 2 March 1998, Assistant City Prosecutor Ruben Catubay recommended the suspension of the
criminal proceedings pending the outcome of the civil action respondent filed against private
complainant with the RTC of Valenzuela City. The recommendation was approved by the City
Prosecutor of Quezon City.

Aggrieved, private complainant raised the matter before the Department of Justice (DOJ).

On 5 January 1999, then Secretary of Justice Serafin P. Cuevas reversed the resolution of the City
Prosecutor of Quezon City and ordered the filing of informations for violation of BP Blg. 22 against
respondent in connection with her issuance of City Trust Check No. 127219 in the amount of
₱4,129,400.00 and RCBC Check No. 423773 in the amount of ₱4,475,000.00, both checks totaling
the amount of ₱8,604,000.00. The estafa and violation of BP Blg. 22 charges involving the seven
other checks included in the affidavit-complaint filed on 16 September 1997 were, however,
dismissed.

Consequently, two counts for violation of BP Blg. 22, both dated 18 November 1999, were filed
against respondent Ma.Theresa Pangilinan on 3 February 2000 before the Office of the Clerk of
Court, Metropolitan Trial Court (MeTC), Quezon City. These cases were raffled to MeTC, Branch
31on 7 June 2000.

On 17 June 2000, respondent filed an "Omnibus Motion to Quash the Information and to Defer the
Issuance of Warrant of Arrest" before MeTC, Branch 31, Quezon City. She alleged that her criminal
liability has been extinguished by reason of prescription.

The presiding judge of MeTC, Branch 31, Quezon City granted the motion in an Order dated 5
October 2000.

On 26 October 2000, private complainant filed a notice of appeal. The criminal cases were raffled to
RTC, Branch 218, Quezon City.

In a Decision dated 27 July 2001, the presiding judge of RTC, Branch 218, Quezon City reversed the
5 October 2000 Order of the MeTC. The pertinent portion of the decision reads:

xxx Inasmuch as the informations in this case were filed on 03 February 2000 with the Clerk of Court
although received by the Court itself only on 07 June 2000, they are covered by the Rule as it was
worded before the latest amendment. The criminal action on two counts for violation of BP Blg. 22,
had, therefore, not yet prescribed when the same was filed with the court a quo considering the
appropriate complaint that started the proceedings having been filed with the Office of the
Prosecutor on 16 September 1997 yet.

WHEREFORE, the assailed Order dated 05 October 2000 is hereby REVERSED AND SET ASIDE.
The Court a quo is hereby directed to proceed with the hearing of Criminal Cases Nos. 89152 and
89153. 4

Dissatisfied with the RTC Decision, respondent filed with the Supreme Court a petition for review on
5 

certiorari under Rule 45 of the Rules of Court. This was docketed as G.R. Nos. 149486-87.

In a resolution dated 24 September 2000, this Court referred the petition to the CA for appropriate
6 

action.

On 26 October 2001, the CA gave due course to the petition by requiring respondent and private
complainant to comment on the petition.

In a Decision dated 12 March 2002, the CA reversed the 27 July 2001 Decision of RTC, Branch 218,
Quezon City, thereby dismissing Criminal Case Nos. 89152 and 89153 for the reason that the cases
for violation of BP Blg. 22 had already prescribed.

In reversing the RTC Decision, the appellate court ratiocinated that:

xxx this Court reckons the commencement of the period of prescription for violations of Batas
Pambansa Blg. 22 imputed to [respondent] sometime in the latter part of 1995, as it was within this
period that the [respondent] was notified by the private [complainant] of the fact of dishonor of the
subject checks and, the five (5) days grace period granted by law had elapsed. The private
respondent then had, pursuant to Section 1 of Act 3326, as amended, four years therefrom or until
the latter part of 1999 to file her complaint or information against the petitioner before the proper
court.

The informations docketed as Criminal Cases Nos. 89152 and 89152(sic) against the petitioner
having been filed with the Metropolitan Trial Court of Quezon City only on 03 February 2000, the
said cases had therefore, clearly prescribed.

xxx

Pursuant to Section 2 of Act 3326, as amended, prescription shall be interrupted when proceedings
are instituted against the guilty person.

In the case of Zaldivia vs. Reyes the Supreme Court held that the proceedings referred to in Section
7 

2 of Act No. 3326, as amended, are ‘judicial proceedings’, which means the filing of the complaint or
information with the proper court. Otherwise stated, the running of the prescriptive period shall be
stayed on the date the case is actually filed in court and not on any date before that, which is in
consonance with Section 2 of Act 3326, as amended.

While the aforesaid case involved a violation of a municipal ordinance, this Court, considering that
Section 2 of Act 3326, as amended, governs the computation of the prescriptive period of both
ordinances and special laws, finds that the ruling of the Supreme Court in Zaldivia v. Reyes likewise
8 

applies to special laws, such as Batas Pambansa Blg. 22. 9

The OSG sought relief to this Court in the instant petition for review.  According to the OSG, while it
1âwphi1

admits that Act No. 3326, as amended by Act No. 3585 and further amended by Act No. 3763 dated
23 November 1930, governs the period of prescription for violations of special laws, it is the
institution of criminal actions, whether filed with the court or with the Office of the City Prosecutor,
that interrupts the period of prescription of the offense charged. It submits that the filing of the
10 

complaint-affidavit by private complainant Virginia C. Malolos on 16 September 1997 with the Office
of the City Prosecutor of Quezon City effectively interrupted the running of the prescriptive period of
the subject BP Blg. 22 cases.

Petitioner further submits that the CA erred in its decision when it relied on the doctrine laid down by
this Court in the case of Zaldivia v. Reyes, Jr. that the filing of the complaint with the Office of the
11 

City Prosecutor is not the "judicial proceeding" that could have interrupted the period of prescription.
In relying on Zaldivia, the CA allegedly failed to consider the subsequent jurisprudence superseding
12 

the aforesaid ruling.

Petitioner contends that in a catena of cases, the Supreme Court ruled that the filing of a complaint
13 

with the Fiscal’s Office for preliminary investigation suspends the running of the prescriptive period.
It therefore concluded that the filing of the informations with the MeTC of Quezon City on 3 February
2000 was still within the allowable period of four years within which to file the criminal cases for
violation of BP Blg. 22 in accordance with Act No. 3326, as amended.

In her comment-opposition dated 26 July 2002, respondent avers that the petition of the OSG should
be dismissed outright for its failure to comply with the mandatory requirements on the submission of
a certified true copy of the decision of the CA and the required proof of service. Such procedural
lapses are allegedly fatal to the cause of the petitioner.
Respondent reiterates the ruling of the CA that the filing of the complaint before the City
Prosecutor’s Office did not interrupt the running of the prescriptive period considering that the
offense charged is a violation of a special law.

Respondent contends that the arguments advanced by petitioner are anchored on erroneous
premises. She claims that the cases relied upon by petitioner involved felonies punishable under the
Revised Penal Code and are therefore covered by Article 91 of the Revised Penal Code (RPC) and 14 

Section 1, Rule 110 of the Revised Rules on Criminal Procedure. Respondent pointed out that the
15 

crime imputed against her is for violation of BP Blg. 22, which is indisputably a special law and as
such, is governed by Act No. 3326, as amended. She submits that a distinction should thus be made
between offenses covered by municipal ordinances or special laws, as in this case, and offenses
covered by the RPC.

The key issue raised in this petition is whether the filing of the affidavit-complaint for estafa and
violation of BP Blg. 22 against respondent with the Office of the City Prosecutor of Quezon City on
16 September 1997 interrupted the period of prescription of such offense.

We find merit in this petition.

Initially, we see that the respondent’s claim that the OSG failed to attach to the petition a duplicate
original or certified true copy of the 12 March 2002 decision of the CA and the required proof of
service is refuted by the record. A perusal of the record reveals that attached to the original copy of
the petition is a certified true copy of the CA decision. It was also observed that annexed to the
petition was the proof of service undertaken by the Docket Division of the OSG.

With regard to the main issue of the petition, we find that the CA reversively erred in ruling that the
offense committed by respondent had already prescribed. Indeed, Act No. 3326 entitled "An Act to
Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin," as amended, is the law applicable to BP Blg. 22 cases. Appositely, the law
reads:

SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules: (a) xxx; (b) after four years for those punished by
imprisonment for more than one month, but less than two years; (c) xxx.

SECTION 2. Prescription shall begin to run from the day of the commission of the violation of the
law, and if the same be not known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and
shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of not less than thirty (30)
days but not more than one year or by a fine for its violation, it therefor prescribes in four (4) years in
accordance with the aforecited law. The running of the prescriptive period, however, should be tolled
upon the institution of proceedings against the guilty person.

In the old but oft-cited case of People v. Olarte, this Court ruled that the filing of the complaint in the
16 

Municipal Court even if it be merely for purposes of preliminary examination or investigation, should,
and thus, interrupt the period of prescription of the criminal responsibility, even if the court where the
complaint or information is filed cannot try the case on the merits. This ruling was broadened by the
Court in the case of Francisco, et.al. v. Court of Appeals, et. al. when it held that the filing of the
17 

complaint with the Fiscal’s Office also suspends the running of the prescriptive period of a criminal
offense.

Respondent’s contention that a different rule should be applied to cases involving special laws is
bereft of merit. There is no more distinction between cases under the RPC and those covered by
special laws with respect to the interruption of the period of prescription. The ruling in Zaldivia v.
Reyes, Jr. is not controlling in special laws. In Llenes v. Dicdican, Ingco, et al. v.
18  19 

Sandiganbayan, Brillante v. CA, and Sanrio Company Limited v. Lim, cases involving special laws,
20  21  22 

this Court held that the institution of proceedings for preliminary investigation against the accused
interrupts the period of prescription. In Securities and Exchange Commission v. Interport Resources
Corporation, et. al., the Court even ruled that investigations conducted by the Securities and
23 

Exchange Commission for violations of the Revised Securities Act and the Securities Regulations
Code effectively interrupts the prescription period because it is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases.

In fact, in the case of Panaguiton, Jr. v. Department of Justice, which is in all fours with the instant
24 

case, this Court categorically ruled that commencement of the proceedings for the prosecution of the
accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the
offenses they had been charged under BP Blg. 22. Aggrieved parties, especially those who do not
sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily
further simply because of circumstances beyond their control, like the accused’s delaying tactics or
the delay and inefficiency of the investigating agencies.

We follow the factual finding of the CA that "sometime in the latter part of 1995" is the reckoning date
of the commencement of presumption for violations of BP Blg. 22, such being the period within
which herein respondent was notified by private complainant of the fact of dishonor of the checks
and the five-day grace period granted by law elapsed.

The affidavit-complaints for the violations were filed against respondent on 16 September 1997. The
cases reached the MeTC of Quezon City only on 13 February 2000 because in the meanwhile,
respondent filed a civil case for accounting followed by a petition before the City Prosecutor for
suspension of proceedings on the ground of "prejudicial question". The matter was raised before the
Secretary of Justice after the City Prosecutor approved the petition to suspend proceedings. It was
only after the Secretary of Justice so ordered that the informations for the violation of BP Blg. 22
were filed with the MeTC of Quezon City.

Clearly, it was respondent’s own motion for the suspension of the criminal proceedings, which
motion she predicated on her civil case for accounting, that caused the filing in court of the 1997
initiated proceedings only in 2000.

As laid down in Olarte, it is unjust to deprive the injured party of the right to obtain vindication on
25 

account of delays that are not under his control. The only thing the offended must do to initiate the
prosecution of the offender is to file the requisite complaint.

IN LIGHT OF ALL THE FOREGOING, the instant petition is GRANTED. The 12 March 2002
Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Department of Justice
is ORDERED to re-file the informations for violation of BP Blg. 22 against the respondent.

SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice

G.R. No. 163753               January 15, 2014

DR. ENCARNACION C. LUMANTAS, M.D., Petitioner,

vs.
HANZ CALAPIZ, REPRESENTED BY HIS PARENTS, HILARIO CALAPIZ, JR. and HERLITA
CALAPIZ, Respondent.

DECISION

BERSAMIN, J.:

The acquittal of the accused does not necessarily mean his absolution from civil liability.

The Case

In this appeal, an accused desires the reversal of the decision promulgated on February 20,
2003,  whereby the Court of Appeals (CA) affirmed the judgment rendered on August 6, 1999 by the
1

Regional Trial Court (RTC), Branch 13, in Oroquieta City ordering him to pay moral damages despite
his acquittal of the crime of reckless imprudence resulting in serious physical injuries charged
against him.2

Antecedents

On January 16, 1995, Spouses Hilario Calapiz, Jr. and Herlita Calapiz brought their 8-year-old son,
Hanz Calapiz (Hanz), to the Misamis Occidental Provincial Hospital, Oroquieta City, for an
emergency appendectomy. Hanz was attended to by the petitioner, who suggested to the parents
that Hanz also undergo circumcision at no added cost to spare him the pain. With the parents’
consent, the petitioner performed the coronal type of circumcision on Hanz after his appendectomy.
On the following day, Hanz complained of pain in his penis, which exhibited blisters. His testicles
were swollen. The parents noticed that the child urinated abnormally after the petitioner forcibly
removed the catheter, but the petitioner dismissed the abnormality as normal. On January 30, 1995,
Hanz was discharged from the hospital over his parents’ protestations, and was directed to continue
taking antibiotics.

On February 8, 1995, Hanz was confined in a hospital because of the abscess formation between
the base and the shaft of his penis. Presuming that the ulceration was brought about by Hanz’s
appendicitis, the petitioner referred him to Dr. Henry Go, an urologist, who diagnosed the boy to
have a damaged urethra. Thus, Hanz underwent cystostomy, and thereafter was operated on three
times to repair his damaged urethra.

When his damaged urethra could not be fully repaired and reconstructed, Hanz’s parents brought a
criminal charge against the petitioner for reckless imprudence resulting to serious physical injuries.
On April 17, 1997, the information  was filed in the Municipal Trial Court in Cities of Oroquieta City
3

(MTCC), to which the latter pleaded not guilty on May 22, 1998.  Under the order of April 30, 1999,
4

the case was transferred to the RTC pursuant to Supreme Court Circular No. 11-99. 5

At the trial, the Prosecution presented several witnesses, including Dr. Rufino Agudera as an expert
witness and as the physician who had operated on Hanz twice to repair the damaged urethra. Dr.
Agudera testified that Hanz had been diagnosed to have urethral stricture and cavernosal injury left
secondary to trauma that had necessitated the conduct of two operations to strengthen and to
lengthen the urethra. Although satisfactorily explaining that the injury to the urethra had been caused
by trauma, Dr. Agudera could not determine the kind of trauma that had caused the injury.

In his defense, the petitioner denied the charge. He contended that at the time of his examination of
Hanz on January 16, 1995, he had found an accumulation of pus at the vicinity of the appendix two
to three inches from the penis that had required immediate surgical operation; that after performing
the appendectomy, he had circumcised Hanz with his parents’ consent by using a congo instrument,
thereby debunking the parents’ claim that their child had been cauterized; that he had then cleared
Hanz on January 27, 1995 once his fever had subsided; that he had found no complications when
Hanz returned for his follow up check-up on February 2, 1995; and that the abscess formation
between the base and the shaft of the penis had been brought about by Hanz’s burst appendicitis.

Ruling of the RTC

In its decision rendered on August 6, 1999,  the RTC acquitted the petitioner of the crime charged for
6

insufficiency of the evidence. It held that the Prosecution’s evidence did not show the required
standard of care to be observed by other members of the medical profession under similar
circumstances. Nonetheless, the RTC ruled that the petitioner was liable for moral damages
because there was a preponderance of evidence showing that Hanz had received the injurious
trauma from his circumcision by the petitioner. The decision disposed as follows:

WHEREFORE, for insufficiency of evidence, this court renders judgment acquitting the accused, Dr.
Encarnacion Lumantas, of reckless imprudence resulting in serious physical injuries, but ordering
him to pay Hanz Calapiz ₱50,000.00 as moral damages. No costs.

SO ORDERED.

Ruling of the CA

On appeal, the CA affirmed the RTC,  sustaining the award of moral damages. It opined that even if
7

the petitioner had been acquitted of the crime charged, the acquittal did not necessarily mean that
he had not incurred civil liability considering that the Prosecution had preponderantly established the
sufferings of Hanz as the result of the circumcision.

The petitioner moved for reconsideration, but the CA denied the motion on April 28, 2004. 8

Hence, this appeal.

Issue

Whether the CA erred in affirming the petitioner’s civil liability despite his acquittal of the crime of
reckless imprudence resulting in serious physical injuries.

Ruling

The petition for review lacks merit.

It is axiomatic that every person criminally liable for a felony is also civilly liable.  Nevertheless, the
9

acquittal of an accused of the crime charged does not necessarily extinguish his civil liability. In
Manantan v. Court of Appeals,  the Court elucidates on the two kinds of acquittal recognized by our
10

law as well as on the different effects of acquittal on the civil liability of the accused, viz:

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the
accused.  First is an acquittal on the ground that the accused is not the author of the act or omission
1âwphi1

complained of. This instance closes the door to civil liability, for a person who has been found to be
not the perpetrator of any act or omission cannot and can never be held liable for such act or
omission. There being no delict, civil liability ex delicto is out of the question, and the civil action, if
any, which may be instituted must be based on grounds other than the delict complained of. This is
the situation contemplated in Rule 111 of the Rules of Court. The second instance is an acquittal
based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused
has not been satisfactorily established, he is not exempt from civil liability which may be proved by
preponderance of evidence only.

The Rules of Court requires that in case of an acquittal, the judgment shall state "whether the
evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did not exist." 11

Conformably with the foregoing, therefore, the acquittal of an accused does not prevent a judgment
from still being rendered against him on the civil aspect of the criminal case unless the court finds
and declares that the fact from which the civil liability might arise did not exist.

Although it found the Prosecution’s evidence insufficient to sustain a judgment of conviction against
the petitioner for the crime charged, the RTC did not err in determining and adjudging his civil liability
for the same act complained of based on mere preponderance of evidence.  In this connection, the
12

Court reminds that the acquittal for insufficiency of the evidence did not require that the
complainant’s recovery of civil liability should be through the institution of a separate civil action for
that purpose. 13

The petitioner’s contention that he could not be held civilly liable because there was no proof of his
negligence deserves scant consideration. The failure of the Prosecution to prove his criminal
negligence with moral certainty did not forbid a finding against him that there was preponderant
evidence of his negligence to hold him civilly liable.  With the RTC and the CA both finding that Hanz
14

had sustained the injurious trauma from the hands of the petitioner on the occasion of or incidental
to the circumcision, and that the trauma could have been avoided, the Court must concur with their
uniform findings. In that regard, the Court need not analyze and weigh again the evidence
considered in the proceedings a quo. The Court, by virtue of its not being a trier of facts, should now
accord the highest respect to the factual findings of the trial court as affirmed by the CA in the
absence of a clear showing by the petitioner that such findings were tainted with arbitrariness,
capriciousness or palpable error.

Every person is entitled to the physical integrity of his body.  Although we have long advocated the
1âwphi1

view that any physical injury, like the loss or diminution of the use of any part of one’s body, is not
equatable to a pecuniary loss, and is not susceptible of exact monetary estimation, civil damages
should be assessed once that integrity has been violated. The assessment is but an imperfect
estimation of the true value of one’s body. The usual practice is to award moral damages for the
physical injuries sustained.  In Hanz’s case, the undesirable outcome of the circumcision performed
15

by the petitioner forced the young child to endure several other procedures on his penis in order to
repair his damaged urethra. Surely, his physical and moral sufferings properly warranted the amount
of ₱50,000.00 awarded as moral damages.
Many years have gone by since Hanz suffered the injury. Interest of 6% per annum should then be
imposed on the award as a sincere means of adjusting the value of the award to a level that is not
only reasonable but just and commensurate. Unless we make the adjustment in the permissible
manner by prescribing legal interest on the award, his sufferings would be unduly compounded. For
that purpose, the reckoning of interest should be from the filing of the criminal information on April
17, 1997, the making of the judicial demand for the liability of the petitioner.

WHEREFORE, the Court AFFIRMS the decision promulgated on February 20, 2003, with the
modification that legal interest of 6% per annum to start from April 17, 1997 is imposed on the award
of:₱50,000.00 as moral damages; and ORDERS the petitioner to pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice
G.R. No. 210148               December 8, 2014

ANTONIO L. DALURAYA, Petitioner,
vs.
MARLA OLIVA, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari  are the Decision  dated June 28, 2013 and the
1 2

Resolution  dated November 22, 2013 rendered by the Court of Appeals (CA) in CA-G.R. SP No.
3

125113 finding petitioner Antonio L. Daluraya (Daluraya) civilly liable for the death of Marina Arabit
Oliva (Marina Oliva) despite having been acquitted for Reckless Imprudence Resulting in Homicide
on the ground of insufficiency of evidence.

The Facts

On January 4, 2006, Daluraya was charged in an Information  for Reckless Imprudence Resulting in
4

Homicide in connection with the death  of Marina Oliva. Records reveal that sometime in the
5

afternoon of January 3, 2006, Marina Oliva was crossing the street when a Nissan Vanette, bearing
plate number UPN-172 and traversing EDSA near the Quezon Avenue flyover in Quezon City, ran
her over.  While Marina Oliva was rushed to the hospital to receive medical attention,she eventually
6

died, prompting her daughter, herein respondent Marla Oliva (Marla), to file a criminal case for
Reckless Imprudence Resulting in Homicide against Daluraya, the purported driver of the vehicle. 7

During the proceedings, the prosecution presented as witness Shem Serrano (Serrano), an eye-
witness to the incident, who testified that on said date, he saw a woman crossing EDSA heading
towards the island near the flyover and that the latter was bumped by a Nissan Vanette bearing plate
number UPN-172. The prosecution also offered the testimonies of (a) Marla, who testified as to the
civil damages sustained by her family as a result of her mother’s death; (b) Dr. Paul Ortiz (Dr. Ortiz),
who presented his findings on the autopsy conducted upon the body of Marina Oliva; and (c) Police
Senior Inspector Lauro Gomez (PSI Gomez), who conducted the investigation following the incident
and claimed that Marina Oliva was hit by the vehicle being driven by Daluraya, albeit he did not
witness the incident. 8

After the prosecution rested its case, Daluraya filed an Urgent Motion to Dismiss
(demurrer)  asserting, inter alia, that he was not positively identified by any of the prosecution
9

witnesses as the driver of the vehicle that hit the victim, and that there was no clear and competent
evidence of how the incident transpired. 10

The MeTC Ruling

In an Order  dated May 24, 2010, the Metropolitan Trial Court of Quezon City, Branch 38 (MeTC)
11

granted Daluraya’s demurrer and dismissed the case for insufficiency of evidence. It found that the
testimonies of the prosecution witnesses were wanting in material details and that they failed to
sufficiently establish that Daluraya committed the crime imputed upon him.  Deconstructing the
12
testimonies of the prosecution witnesses individually, the MeTC found that: (a) Marla merely testified
on the damages sustained by her family but she failed to identify Daluraya as the driver of the
vehicle that hit her mother; (b) Serrano also did not identify

Daluraya as the driver of the said vehicle; (c) Dr. Ortiz merely testified on the autopsy results; and
(d) PSI Gomez, while he did investigate the incident, likewise declared thathe did not witness the
same. 13

Marla moved for reconsideration,  which the MeTC denied in an Order  dated November 4, 2010,
14 15

clarifying that the grant of Daluraya’s demurrer had the effect of an acquittal and that reconsideration
of its Order granting Daluraya’s demurrer would violate the latter’s right against double
jeopardy.  With respect to the civil aspect of the case, the MeTC likewise denied the same, holding
16

that no civil liability can be awarded absent any evidence proving that Daluraya was the person
responsible for Marina Oliva’s demise. 17

Aggrieved, Marla appealed  to the Regional Trial Court of Quezon City, Branch 76 (RTC), insisting
18

that the MeTC failed to make any finding as to the civil liability of Daluraya,  which finding was not
19

precluded by the dismissal of the criminal aspect of the case.

The RTC Ruling

In a Decision  dated September 8, 2011, the RTC dismissed the appeal and affirmed the MeTC’s
20

ruling,declaring that "the act from which the criminal responsibility may spring did not at all exist."
21

Marla filed a motion for reconsideration  which, although filed beyond the reglementary period, was
22

nonetheless accepted. However, the RTC found the same without merit and thus, sustained the
factual findings and rulings of the MeTC in its Order  dated May 10, 2012. Dissatisfied, Marla
23

elevated the case to the CA via petition for review, maintaining that Daluraya must be held civilly
liable.

The CA Ruling

In a Decision  dated June 28, 2013, the CA granted the petition and reversed the RTC Decision,
24

ordering Daluraya to pay Marla the amounts of ₱152,547.00 as actual damages, ₱50,000.00 as civil
indemnity, and ₱50,000.00 as moral damages.  In so ruling, the CA held that the MeTC’s Order
25

showed that Daluraya’s acquittal was based on the fact that the prosecution failed to prove his guilt
beyond reasonable doubt. As such, Daluraya was not exonerated from civil liability. 26

Moreover, the CA considered the following pieces of evidence to support its finding that Daluraya
must be held civilly liable: (a) the inadmissible sworn statement executed by Daluraya where he
admitted that he drove the subject vehicle which hit Marina Oliva; (b) the conclusion derived from
Serrano’s testimony that the woman he saw crossing the street who was hit by a Nissan Vanette
with plate number UPN-172, and the victim who eventually died, are one and the same; (c) the
Philippine National Police Referral Letter of one Police Chief Inspector Virgilio Pereda identifying
Daluraya as the suspectin the case of Reckless Imprudence Resulting in Homicide involving the
death of Marina Oliva, and stating that he brought the victim to the Quezon City General Hospital for
treatment but was declared dead on arrival; and (d) the subject vehicle was registered in the name
of Daluraya’s aunt, Gloria Zilmar,  who authorized him to claim the vehicle from the MeTC.
27 28

Daluraya filed a motion for reconsideration,  which the CA denied in a Resolution  dated November
29 30

22, 2013,hence, this petition.

 The Issue Before the Court

The sole issue advanced for the Court’s resolution is whether or not the CA was correct in finding
Daluraya civilly liable for Marina Oliva’s death despite his acquittal in the criminal case for Reckless
Imprudence Resulting in Homicide on the ground of insufficiency of evidence.

The Court’s Ruling

The petition is meritorious.

Every person criminally liable for a felony is also civilly liable. The acquittal of an accused of the
crime charged, however, does not necessarily extinguish his civil liability.  In Manantan v. CA,  the
31 32

Court expounded on the two kinds of acquittal recognized by our law and their concomitant effects
on the civil liability of the accused, as follows:

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused.
First is an acquittal on the ground that the accused is not the author of the actor omission
complained of. This instance closes the door to civil liability, for a person who has been found to be
not the perpetrator of any act or omission cannot and can never be held liable for such act or
omission. There being no delict, civil liability ex delictois out of the question, and the civil action, if
any, which may be instituted must be based on grounds other than the delict complained of. This is
the situation contemplated inRule 111 of the Rules of Court. The second instance is an acquittal
based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused
has not been satisfactorily established, he is not exempt from civil liability which may be proved by
preponderance of evidence only. 33

In Dayap v. Sendiong,  the Court explained further:

34

The acquittal of the accused does not automatically preclude a judgment against him on the civil
aspect of the case.  The extinction of the penal action does not carry with it the extinction of the civil
1âwphi1

liability where: (a) the acquittal is based on reasonable doubt as only preponderance of evidence is
required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of
the accused does not arise from or is not based upon the crime of which the accused is acquitted.
However, the civil action based on delictmay be deemed extinguished if there is a finding on the final
judgment in the criminal action that the act or omission from which the civil liability may arise did not
exist or where the accused did not commit the acts or omission imputed to him.

Thus, if demurrer is granted and the accused is acquitted by the court, the accused has the right to
adduce evidence on the civil aspect of the case unless the court also declares that the act or
omission from which the civil liability may arise did not exist. This is because when the accused files
a demurrer to evidence, he has not yet adduced evidence both on the criminal and civil aspects of
the case. The only evidence on record is the evidence for the prosecution. What the trial court
should do is issue an order or partial judgment granting the demurrer to evidence and acquitting the
accused, and set the case for continuation of trial for the accused to adduce evidence on the civil
aspect of the case and for the private complainant to adduce evidence by way of rebuttal.
Thereafter, the court shall render judgment on the civil aspect of the case. 35

(Emphases supplied)

In case of an acquittal, the Rules of Court requires that the judgment state "whether the evidence of
the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist."36

A punctilious examination of the MeTC’s Order, which the RTC sustained, will show that Daluraya’s
acquittal was based on the conclusion that the act or omission from which the civil liability may arise
did not exist, given that the prosecution was not able to establish that he was the author of the crime
imputed against him. Such conclusion is clear and categorical when the MeTC declared that "the
testimonies of the prosecution witnesses are wanting in material details and they did not sufficiently
establish that the accused precisely committed the crime charged against him."  Furthermore, when
37

Marla sought reconsideration of the MeTC’s Order acquitting Daluraya, said court reiterated and
firmly clarified that "the prosecution was not able to establish that the accused was the driver of the
Nissan Vanette which bumped Marina Oliva"  and that "there is no competent evidence on hand
38

which proves that the accused was the person responsible for the death of Marina Oliva." 39

Clearly, therefore, the CA erred in construing the findings of the MeTC, as affirmed by the RTC, that
Daluraya’s acquittal was anchored on reasonable doubt, which would necessarily call for a remand
of the case to the court a quo for the reception of Daluraya’s evidence on the civil aspect.  Records
1âwphi1

disclose that Daluraya’s acquittal was based on the fact that "the act or omission from which the civil
liability may arise did not exist" in view of the failure of the prosecution to sufficiently establish that he
was the author of the crime ascribed against him. Consequently, his civil liability should be deemed
as non-existent by the nature of such acquittal.

WHEREFORE, the petition is GRANTED. The Decision dated June 28, 2013 and the Resolution
dated November 22, 2013 of the Court of Appeals in CA-G.R. SP No. 125113 are hereby
REVERSED and SET ASIDE. The Decision dated September 8,2011 and the Order dated May 10,
2012 of the Regional Trial Court of Quezon City, Branch 76 are REINSTATED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice
G.R. No. 192123               March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless
imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of
Appeals (CA). He had been part of the team of anesthesiologists during the surgical pull-through
operation conducted on a three-year old patient born with an imperforate anus. 1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 1992  with an imperforate anus. Two days after
2

his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine
out through the abdominal wall,  enabling him to excrete through a colostomy bag attached to the
3

side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-
through operation.  Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr.
5

Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr.
Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).  During the
6

operation, Gerald experienced bradycardia,  and went into a coma.  His coma lasted for two
7 8

weeks,  but he regained consciousness only after a month.  He could no longer see, hear or move.
9 10 11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint
for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of
Manila against the attending physicians. 12

Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr.
Solidum,  alleging: –
13

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an
anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer
the anesthesia on three-year old baby boy GERALD ALBERT GERCAYO, represented by his
mother, MA. LUZ GERCAYO, the former having been born with an imperforate anus [no anal
opening] and was to undergo an operation for anal opening [pull through operation], did then and
there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of
his judgment would dictate under said circumstance, by failing to monitor and regulate properly the
levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a consequence of his said carelessness and
negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect
called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to
his damage and prejudice.

Contrary to law. 14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC
pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),  where it was
15

docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable
doubt of reckless imprudence resulting to serious physical injuries,  decreeing:
16

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM
GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as
minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the amount of ₱500,000.00 as moral damages
and ₱100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED. 17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,  the RTC
18

excluded them from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond
reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1)
year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify jointly
and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of ₱500,000.00
as moral damages and ₱100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled. 19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,  pertinently stating and ruling:
20

The case appears to be a textbook example of res ipsa loquitur.

xxxx

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As
noted by the OSG, the accused himself testified that pre-operation tests were conducted to ensure
that the child could withstand the surgery. Except for his imperforate anus, the child was healthy.
The tests and other procedures failed to reveal that he was suffering from any known ailment or
disability that could turn into a significant risk. There was not a hint that the nature of the operation
itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident
to a failure in the proper administration of anesthesia, the gravamen of the charge in this case. The
High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent
upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to
the patient if due care had been exercised, an inference of negligence may be drawn giving rise to
an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury
sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of a trial
court the respect they deserve in the absence of a showing of arbitrariness or disregard of material
facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a
presumption of negligence, it need not offend due process, as long as the accused is afforded the
opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in this
light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED. 21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010. 22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME
CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF
THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE
ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN
 AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE
CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES

IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE
APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND
THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE.
THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE
CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED

THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING
THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY
AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO
OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS. 23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res
ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal
negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine
res ipsa loquitur means that "where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want of care."  It is simply
24

"a recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence. It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge." 25
Jarcia, Jr. v. People  has underscored that the doctrine is not a rule of substantive law, but merely a
26

mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts and
circumstances of a given case, is not meant to and does not dispense with the requirement of proof
of culpable negligence against the party charged. It merely determines and regulates what shall be
prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can
be invoked when and only when, under the circumstances involved, direct evidence is absent and
not readily available.
27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and
exhaustively explained in Ramos v. Court of Appeals,  where the Court said –
28

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character
as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur
in medical negligence cases presents a question of law since it is a judicial function to determine
whether a certain set of circumstances does, as a matter of law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons
of skill and experience are competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to the statements and acts
of physicians and surgeons, external appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised, an inference
of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why it
occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, removal of the wrong part of the body when
another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the
removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden
of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he
could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be
satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of
the person charged; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.
29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it
should be conceded without difficulty that the second and third elements were present, considering
that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and
that the patient, being then unconscious during the operation, could not have been guilty of
contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the imperforate anus,
Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the
heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-
through operation, or during the administration of anesthesia to the patient, but such fact alone did
not prove that the negligence of any of his attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting
them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,  relevant
31

portions of the decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the
treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and
some breathing difficulty. Early in the morning of January 9 the patient was restless, and at 1:30 a.m.
Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it was in
satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital, advising
him that the patient was having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital
called a second time to advise the doctor that the patient was not responding. The doctor ordered
that a medicine be administered, and he departed for the hospital. When he arrived, the physician
who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined
him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30
a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air
passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know
what caused the air passage to suddenly close.

xxxx

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious
mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that
the injury rarely occurs does not in itself prove that the injury was probably caused by someone's
negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself
enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472
(1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence
presented is insufficient to establish the first element necessary for application of res ipsa loquitur
doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place
over a very short period of time. Under these circumstances it would not be reasonable to infer that
the physician was negligent. There was no palpably negligent act. The common experience of
mankind does not suggest that death would not be expected without negligence. And there is no
expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether
the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person
that degree of care, precaution, and vigilance that the circumstances justly demand, whereby such
other person suffers injury.  Reckless imprudence, on the other hand, consists of voluntarily doing or
32

failing to do, without malice, an act from which material damage results by reason of an inexcusable
lack of precaution on the part of the person performing or failing to perform such act. 33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly
regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane. In
affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and
conclusions in his report except for an observation which, to all intents and purposes, has become
the storm center of this dispute. He wanted to correct one piece of information regarding the dosage
of the anesthetic agent administered to the child. He declared that he made a mistake in reporting a
100% halothane and said that based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A
and 1-B to indicate the administration at intervals of the anesthetic agent.

(b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit
3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient was noted to
 have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately administered. However,
the bradycardia persisted, the inhalational agent was shut off, and the patient was ventilated
with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did
not respond until no cardiac rate can be auscultated and the surgeons were immediately told
to stop the operation. The patient was put on a supine position and CPR was initiated.
Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage –
still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45
secs, patient’s vital signs returned to normal. The entire resuscitation lasted approximately 3-
5 mins. The surgeons were then told to proceed to the closure and the child’s vital signs
throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with
100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or
another, he read it as 100% halothane. He was asked to read the anesthesia record on the
percentage of the dosage indicated, but he could only sheepishly note I can’t understand the
number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It
only contains the information that the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1
hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be apparent that the
100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen
introduced after something went amiss in the operation and the halothane itself was reduced or shut
off.

The key question remains – what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and
the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the
assurance that he gave his patient the utmost medical care, never leaving the operating room except
for a few minutes to answer the call of nature but leaving behind the other members of his team Drs.
Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not
100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was therefore conversant of the things that
happened. She revealed that they were using a machine that closely monitored the concentration of
the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the
bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of
halothane used in the operation is one percent (1%) delivered at time intervals of 15 minutes. He
studiedly mentions – the concentration of halothane as reflected in the anesthesia record (Annex D
of the complaint-affidavit) is only one percent (1%) – The numbers indicated in 15 minute increments
for halothane is an indication that only 1% halothane is being delivered to the patient Gerard
Gercayo for his entire operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly eliminated by the body
during the entire operation.

xxxx

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr.
Vertido on the question of the dosage of the anesthetic used on the child would not really validate
the non-guilt of the anesthesiologist. Led to agree that the halothane used was not 100% as initially
believed, he was nonetheless unaware of the implications of the change in his testimony. The court
observed that Dr. Vertido had described the condition of the child as hypoxia which is deprivation of
oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a failing
central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual
acuity and abnormal motor function, are manifestations of this condition or syndrome. But why would
there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court,
whether oxygen or halothane was the object of mistake, the detrimental effects of the operation are
incontestable, and they can only be led to one conclusion – if the application of anesthesia was
really closely monitored, the event could not have happened. 34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt
because the circumstances cited by the CA were insufficient to establish that Dr. Solidum had been
guilty of inexcusable lack of precaution in monitoring the administration of the anesthetic agent to
Gerald. The Court aptly explained in Cruz v. Court of Appeals  that:
35

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical science. In the recent case of
Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a
doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has a duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same circumstances. It is in this aspect of
medical malpractice that expert testimony is essential to establish not only the standard of care of
the profession but also that the physician's conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation.

xxxx

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's
negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on
the part of the surgeon as well as a causal connection of such breach and the resulting death of his
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending physician was absolved of
liability for the death of the complainant’s wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for
which recovery is sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes.’ In other words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.’"

An action upon medical negligence – whether criminal, civil or administrative – calls for the plaintiff to
prove by competent evidence each of the following four elements, namely: (a) the duty owed by the
physician to the patient, as created by the physician-patient relationship, to act in accordance with
the specific norms or standards established by his profession; (b) the breach of the duty by the
physician’s failing to act in accordance with the applicable standard of care; (3) the causation, i.e.,
there must be a reasonably close and causal connection between the negligent act or omission and
the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable
risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the
patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case
exists. Because most medical malpractice cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician must be determined from
expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care and skill commonly possessed and
exercised by similar specialists under similar circumstances. The specialty standard of care may be
higher than that required of the general practitioner.
37

The standard of care is an objective standard by which the conduct of a physician sued for
negligence or malpractice may be measured, and it does not depend, therefore, on any individual
physician’s own knowledge either. In attempting to fix a standard by which a court may determine
whether the physician has properly performed the requisite duty toward the patient, expert medical
testimony from both plaintiff and defense experts is required. The judge, as the trier of fact,
ultimately determines the standard of care, after listening to the testimony of all medical experts.
38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to
provide guidance to the trial court on what standard of care was applicable. It would consequently be
truly difficult, if not impossible, to determine whether the first three elements of a negligence and
malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served
as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused
on how his Committee had conducted the investigation.  Even then, the report of his Committee was
39

favorable to Dr. Solidum,  to wit:

40

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru
operation and was administered general anesthesia by a team of anesthesia residents. The patient,
at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation
for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of
the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re-established in less than five (5) minutes and
that oxygen was continuously being administered throughout, unfortunately, as later become
manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the
committee find that the same were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on the part of the
anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also
presented as a Prosecution witness, but his testimony concentrated on the results of the physical
examination he had conducted on Gerald, as borne out by the following portions of his direct
examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this
case, halothane was used as a sole anesthetic agent.

xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45
minutes after the operation, the patient experienced a bradycardia or slowing of heart rate, now as a
doctor, would you be able to tell this Honorable Court as to what cause of the slowing of heart rate
as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time
because is some reason one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking
about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate,
now what is the immediate cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you
do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the neck,
when you press that, you produce the slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of
oxygen by the patient, would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is
a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a bradycardia
but a … to counter act the Hypoxia that is being experienced by the patient

(sic).

xxxx

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and
other anesthetic medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir. 41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the

anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this
Honorable court your last paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the
production of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at
this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor,
this Xerox copy if you can show to this Honorable Court and even to this representation the word
"one hundred" or 1-0-0 and then call me.

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call
me and even the attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell
me, yes or no?

WITNESS I’m trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily,
because this is just a xerox copy presented by the fiscal, that the percentage here that the
Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this portion,
temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this 1%
Halothane also be bracketed and the same be marked as our Exhibit "1-A".

xxxx

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors
that contributed to Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call
hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that might
lead to this Hypoxia at the time of this operation is that correct?

WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to
operations being conducted by the doctor at the time when the operation is being done might also
contribute to that hypoxia is that correct?

A That is a possibility also.

xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that
this Gerald might [be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir. 42

At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his
imperforate anus, considered a major operation, had exposed him to the risk of suffering the same
condition.  He then corrected his earlier finding that 100% halothane had been administered on
43

Gerald by saying that it should be 100% oxygen. 44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of
anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other
anesthetic medications."  However, the foregoing circumstances, taken together, did not prove
45

beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other
factors related to Gerald’s major operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience
bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the
anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its
corresponding side effects did occur." 46

The existence of the probability about other factors causing the hypoxia has engendered in the mind
of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of
reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to
United States v. Youthsey: 47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a
doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to
accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides,
you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to
act on the faith of it in the most important and crucial affairs of your life, you may properly convict
him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof
beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil
liability.  But we cannot now find and declare him civilly liable because the circumstances that have
1âwphi1

been established here do not present the factual and legal bases for validly doing so. His acquittal
did not derive only from reasonable doubt. There was really no firm and competent showing how the
injury to Gerard had been caused. That meant that the manner of administration of the anesthesia
by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia
experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on
the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation
but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the
unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly
liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with
the criminal action refers only to that arising from the offense charged.  It is puzzling, therefore, how
48

the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr.
Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity,
had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and
whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave
abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA
overlooked. We deem it important, then, to express the following observations for the instruction of
the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to
be heard was not respected from the outset. The R TC and the CA should have been alert to this
fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party. Such a rule would enforce the constitutional
guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be
properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability
seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should
first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila
must be shown to be a corporation "engaged in any kind of industry." The term industry means any
department or branch of art, occupation or business, especially one that employs labor and capital,
and is engaged in industry.  However, Ospital ng Maynila, being a public hospital, was not engaged
49

in industry conducted for profit but purely in charitable and humanitarian work.  Secondly, assuming
50

that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an
employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald.
Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that
civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the
execution against him was unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS
ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the
crime of reckless imprudence resulting to serious physical injuries; and MAKES no pronouncement
on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR: