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EN BANC [G.R. No. 135981. September 29, 2000] PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. RESOLUTION PANGANIBAN, J.

: It is a hornbook rule that an appeal in criminal cases opens the entire records to review. The Court may pass upon all relevant issues, including those factual in nature and those that may not have been brought before the trial court. This is true especially in cases involving the imposition of the death penalty, in which the accused must be allowed to avail themselves of all possible avenues for their defense. Even novel theories such as the "battered woman syndrome," which is alleged to be equivalent to self-defense, should be heard, given due consideration and ruled upon on the merits, not rejected merely on technical or procedural grounds. Criminal conviction must rest on proof of guilt beyond reasonable doubt.
The Case

For resolution by the Court is an Urgent Omnibus Motion filed by Appellant Marivic Genosa y Isidro in connection with the automatic review of the September 25, 1998 "Judgment" of the Regional Trial Court (RTC) of Ormoc City in Criminal Case No. 5016-0. The RTC found her guilty of parricide aggravated by treachery and sentenced her to death. In an Information dated November 14, 1996, Provincial Prosecutor I Rosario D. Beleta charged appellant-movant with parricide allegedly committed as follows: "That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: 'Cadaveric spasm. 'Body on the 2nd stage of decomposition. 'Face, black, blown[ ]up & swollen w/ evident post- mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. 'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. 'Abdomen distended w/ gas. Trunk bloated.' which caused his death." After arraignment and trial, the court a quo promulgated its Judgment, the dispositive portion of which reads: "WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages."
The Antecedents

Prior to the filing of her Appeal Brief, appellant submitted an Urgent Omnibus Motion, to bring "to the attention of the x x x Court certain facts and circumstances which, if found valid, could warrant the setting aside of [her] conviction and the imposition of the death penalty." Appellant alleges that the trial court grievously erred in concluding that she had lied about the means she employed in killing her husband. On the contrary, she had consistently claimed that she had shot her husband. Yet the trial judge simply ruled that the cause of his death was "cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital bone," which resulted from her admitted act of "smashing" him with a pipe. Such conclusion was allegedly unsupported by the evidence on record, which bore no forensic autopsy report on the body of the victim. Appellant further alleges that despite the evidence on record of repeated and severe beatings she had suffered at the hands of her husband, the trial court failed to appreciate her self-defense theory. She claims that under the surrounding circumstances, her act of killing her husband was equivalent to self-defense. Furthermore, she argues that if she "did not lie about how she killed her husband, then she did not lie about the abuse she suffered at his hands." She thus prays for the following reliefs:

"1. The Honorable Court allow an exhumation of the body of the victim, Ben M. Genosa, and a re-examination of the cause of death. 2. The Honorable Court submit accused-appellant for examination by qualified psychologists and psychiatrists of the Court to determine her state of mind at the time of the killing of her spouse, Ben M. Genosa. 3. Thereafter, the Honorable Court allow the reports of the psychologists and psychiatrists to form part of the records of the case for purposes of the automatic review or, in the alternative, to allow a partial re-opening of the case before a lower court in Metro Manila to admit the testimony of said psychologists and psychiatrists." On August 22, 2000, the solicitor general, on behalf of the State, filed his Comment, which substantially objected to the Motion on the ground that appellant had not been "deprived of her right to due process, substantial or procedural."
The Issues

In brief, the issues for our resolution are (1) whether the body of the victim should be exhumed and reexamined in order to ascertain the cause of his death, and (2) whether the appellant should be examined by qualified psychologists or psychiatrists in order to determine her state of mind at the time of the killing.
The Court's Ruling

The Court grants in part the Motion of appellant. We remand the case to the RTC for the reception of evidence from qualified psychologists or psychiatrists whom the parties may present to establish her state of mind at the time of the killing.
First Issue: No Need for a Reexamination of Cause of Death

Accused-appellant seeks the exhumation of the victim's body to be able to determine his exact cause of death, assailing the court a quo's conclusion that he was "smashed or beaten at the back of his head" rather than shot, as claimed by appellant. Considering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim's death. There is no need to exhume the body at this time and conduct an autopsy thereon for the purpose. Moreover, the matter of proving the cause of death should have been made before the trial court. Time and again, we have said that this Court is not a trier of facts. Neither will it authorize the firsthand reception of evidence, where the opportunity to offer the same was available to the party during the trial stage. Consistent with this principle alone, the prayer sought by appellant for the exhumation of the victim's body cannot be granted.
Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing

In seeking to be "examined and evaluated by psychologists and psychiatrists to bring into evidence the abuse inflicted upon her; [and] to determine whether such abuse will support the 'battered woman syndrome'," the appellant brings to the fore a novel defense theory. Through Counsel Katrina Legarda, she asks the Court to "re-evaluate the traditional elements" used in determining self-defense and to consider the "battered woman syndrome" as a viable plea within the concept of self-defense. Allegedly, there are four characteristics of the syndrome: (1) the woman believes that the violence was her fault; (2) she has an inability to place the responsibility for the violence elsewhere; (3) she fears for her life and/or her children's lives; and (4) she has an irrational belief that the abuser is omnipresent and omniscient. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings. Appellant further alleges that the syndrome is already a recognized form of self-defense in the United States and in Europe. In the US particularly, it is classified as a post-traumatic stress disorder, rather than a form of mental illness. It has been held admissible in order to assess a defendant's perception of the danger posed by the abuser. In view of the foregoing, Appellant Genosa pleads that she be allowed to present evidence to prove that her relationship with her spouse-victim had afflicted her with the syndrome. Allegedly, an expert can explain how her experiences as a battered woman had affected her perception of danger and her honest belief in its imminence, and why she had resorted to force against her batterer. The records of the case already bear some evidence on domestic violence between appellant and her deceased husband. A defense witness, Dr. Dino Caing, testified that she had consulted him at least six (6) times due to injuries related to domestic violence and twenty-three (23) times for severe hypertension due to emotional stress. Even the victim's brother and mother attested to the spouses' quarrels every now and then. The court a quo, however, simplistically ruled that since violence had not immediately preceded the killing, self-defense could not be appreciated.

Indeed, there is legal and jurisprudential lacuna with respect to the so-called "battered woman syndrome" as a possible modifying circumstance that could affect the criminal liability or penalty of the accused. The discourse of appellant on the subject in her Omnibus Motion has convinced the Court that the syndrome deserves serious consideration, especially in the light of its possible effect on her very life. It could be that very thin line between death and life or even acquittal. The Court cannot, for mere technical or procedural objections, deny appellant the opportunity to offer this defense, for any criminal conviction must be based on proof of guilt beyond reasonable doubt. Accused persons facing the possibility of the death penalty must be given fair opportunities to proffer all defenses possible that could save them from capital punishment. In People v. Parazo, after final conviction of appellant therein, this Court granted his Urgent Omnibus Motion and allowed him to undergo mental, neurologic and otolaryngologic examination and evaluation to determine whether he was a deaf-mute. Based on findings that he really was deaf and mute, yet unaided during the trial by an expert witness who could professionally understand and interpret his actions and mutterings, the Court granted him re-arraignment and retrial. It justified its action on the principle that "only upon proof of guilt beyond reasonable doubt may [the accused] be consigned to the lethal injection chamber." More recently in People v. Estrada, we likewise nullified the trial proceedings and remanded the case "to the court a quo for a conduct of a proper mental examination on accused-appellant, a determination of his competency to stand trial, and for further proceedings." In that case, the defense counsel had moved to suspend the arraignment of the accused, who could not properly and intelligently enter a plea because of his mental defect, and to confine him instead in a psychiatric ward. But the trial court denied the Motion, after simply propounding questions to the accused and determining for itself that he could understand and answer them "intelligently." After trial, he was convicted of murder aggravated by cruelty and thus sentenced to death. In nullifying the trial proceedings, this Court noted: "The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the state of a person's mental health. To determine the accused-appellant's competency to stand trial, the court, in the instant case, should have at least ordered the examination of accused-appellant, especially in the light of the latter's history of mental illness." It was held that in denying appellant an examination by a competent medical expert, the trial court practically denied him a fair trial prior to conviction, in violation of his constitutional rights. Moreover, proof of insanity could have exempted appellant from criminal liability. If the accused had not performed the act voluntarily, then he could not have been criminally liable. The Court, through Mr. Justice Reynato S. Puno, emphasized: "The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under the classical theory on which our penal code is mainly based, the basis of criminal liability is human free will. Man is essentially a moral creature with an absolutely free will to choose between good and evil. When he commits a felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily, i.e., with freedom, intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired." In the instant case, it is equally important to determine whether Appellant Genosa had acted freely, intelligently and voluntarily when she killed her spouse. The Court, however, cannot properly evaluate her battered-woman-syndrome defense, absent expert testimony on her mental and emotional state at the time of the killing and the possible psychological cause and effect of her fatal act. Unlike in Parazo, we cannot simply refer her for proper psychological or psychiatric examination and thereafter admit the findings and evaluation as part of the records of the cases for purposes of automatic review. The prosecution has likewise the right to a fair trial, which includes the opportunity to cross-examine the defense witnesses and to refute the expert opinion given. Thus, consistent with the principle of due process, a partial reopening of the case is apropos, so as to allow the defense the opportunity to present expert evidence consistent with our foregoing disquisition, as well as the prosecution the opportunity to cross examine and refute the same. WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic Genosa is PARTLY GRANTED. The case is hereby REMANDED to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Rollo, pp. 26-43. It was penned by Judge Fortunito L. Madrona. Branch 35. Rollo, pp. 9-10.

where minor batterings in the form of verbal or slight physical abuse occurs. With due respect. This state of mind of Marivic was . It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter in her mother's or her father's house after an acute battering incident. It operates upon the premise that a woman who has been cyclically abused and controlled over a period of time develops a fearful state of mind. Ecel Arano. They included. destructiveness and sometimes. even shouted back. Trapped in a cycle of violence and constant fear. the "Battered Woman Syndrome" has three phases. she resorted to killing her husband as no one could or did help her. she was experiencing a tension-building phase. whether out of fear or insensitivity. nurturing behavior. Panfilo Tero. only for the same cycle to begin all over again. death. whenever appellant requested for Arano's company. The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter. contusion. I register my dissent. The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. J. Appellant could not possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. Living in constant danger of harm or death. Here. it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. to wit: (1) the tensionbuilding phase. after which would begin the process of begging for forgiveness. and pain on the breasts.[3] six incidents of which were documented by the 1990-1995 medical records of Marivic. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming. fought off or even injured her husband during the tension-building phase. Clearly.: In convicting Marivic Genosa of the crime of parricide. would mean that no person would ever be able to prove self-defense in a battered woman case. also testified that appellant sought his help two months before she killed her husband. the defense was able to establish the occurrence on more than one occasion of the "tension-building phase" of the cycle. The barangay captain. She could not possibly have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before this time. among others. our esteemed colleague Mr.[5] All these recurring phases of cycle of violence. On more than 5 occasions. To require appellant to prove the state of mind of the deceased. (2) the acute battering incident phase which is characterized by brutality. Panganiban found that there was no factual basis to conclude that Marivic was suffering from ³Battered Woman Syndrome´ (BWS) at the time she took the life of her husband.DISSENTING OPINION YNARES-SANTIAGO. when she knew or felt that she was going to be killed by the deceased.[1] As exhaustively discussed in the ponencia. where the couple experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner. Nevertheless. Contrary to the findings in the ponencia. i. if only to prevent the onset of acute battery.[4] The tranquil period underwent by Marivic was shown by the repeated ³kiss and make-up´ episodes of their relationship. The battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate her condition. during the violent marriage she endured.. Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her husband. she knows that future beatings are almost certain to occur and will escalate over time. The various testimonies of appellant's witnesses clearly reveal that she knew exactly when she would once again be subjected to acute battery. or by simply staying out of his way. testified that she often asked the latter to sleep in her house as she was afraid every time her husband came home drunk. as seems to be required in the ponencia. again demonstrating that she was in the tension-building phase and was attempting to prevent another incident of acute battery. Marivic ran to her parents¶ house after violent fights with the deceased only to forgive the latter every time he would fetch her and promise to change. would lose at cockfights or would come home drunk. appellant felt trapped and helpless in the relationship as. in the end.e. the woman tries to pacify the batterer through a show of kind. multiple contusions and trauma on the different parts of her body even during her pregnancy in 1995. Justice Artemio V. and when it will seriously threaten her survival. She often tried to ignore her husband's attitude or. Her cousin. hematoma. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings. repentance and forgiveness developed a trauma in the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her death. as testified to by some witnesses for the prosecution.[2] The physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage. promises of change in behavior and return to the conjugal home. and (3) the tranquil period. She cannot possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-being. Appellant presented evidence to prove that the tension-building phase would occur whenever her husband would go out looking for other women.

Q What is there in the drawer? A I was aware that it was a gun. 1995 when she suffered from severe hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell.. they were not enough. drinking. TRUYA Q Mrs. The latest one was on November 6. Natividad A. Genosa. . and when he was about to pick-up the wallet and the blade. she was already having all those tensions. was it was more than ten years that she was suffering from emotional anguish. Dino Caing testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. . TABUCANON Q So you said that he dragged you towards the drawer? A Yes. that tragedy in your opinion? A I think for several weeks. This makes the foregoing testimony more worthy of great weight and credence considering that the same could not have been cunningly given to suit or conform to the profile of a battered woman. she was at the same time very depressed because she . could you say that this is not ordinary self-defense but a survival on her part? A Yes.. And when the husband was for a while very angry he calms down then and then (sic). thus ATTY. and on that very moment everything on my mind was pity on myself. giving more the facts and circumstances on this case that the books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. she candidly narrated how she felt immediately before she killed the deceased. I believe that somehow she's not rational. I remember. I was frightened I was about to die because of my blood pressure. before she was examined by experts on BWS. the husband was saying that the child she was carrying was not his own..[felt] almost like living in purgatory or even in hell when it was happening day in and day out. . that the husband was even going to cockfighting x x x A She was angry with him. Dr. The one he used to open the drawer I saw. I took pity on myself and I felt I was about to die also because of my blood pressure and the baby. then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic. it was a pipe about that long. So she was very angry. I know my blood pressure has raised. going out with barkadas. sir.. There were a lot of instance of abuses.. I was about to vomit. Xxx xxx xxx Q And what was it that triggered . She tried to fight him so there was a lot of fight and when she was able to escape. Unaware of the significance of her declarations. she was the one who was practically the bread earner of the family. that she was very much afraid of him. a clinical psychologist and an expert on BWS who examined Marivic. to save her child which she was carrying and to save her two children. so when the husband calmed down and he was asleep.revealed in her testimony given way back in 1998. But I remember before that the husband was looking for the gun and I think he was not able to open the cabinet because she had the key.. emotional abuse. The husband had very meager income. even womanizing. Moreover.[8] Furthermore. Dr. So during that time. she went to another room and she locked herself with the children.verbal abuse and. I smashed him then I ran to the room. assessed the effects of the repeated violence on the latter as follows: A What I remember . xxx xxx xxx[6] Q What else happened? A When I was in the room. Witness. She also had the experience of taunting from the husband for the reason that the husband even accused her of infidelity.. The husband was involved in a lot of vices. all those anxieties.[7] It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court but only here on automatic review... all she was concerned was to end up her misery. triggered a lot of physical abuse. I felt the same thing like what happened before I was admitted in PHILPHOS Clinic. I was about to vomit.[9] xxx xxx xxx PROS.. Dayan. xxx xxx xxx Q What happened when you were brought to the drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. being an expert witness... physical abuse. so I got the gun and shot him. being involved in cockfighting and in going home very angry which.. he was angry with her and I think he dragged her and even spun her around. sir. xxx xxx xxx A Considering all the physical sufferings that I've been through him. there was indeed basis for Marivic to fear death because of her medical history.

Threatening behavior or communication can satisfy the required imminence of danger. to require the battered person to await an obvious deadly attack before she can defend her life would amount to sentencing her to murder by installment. the cycle of violence perpetrated by the deceased." At that time I was also attending to my children who were doing their assignments. in order that self-defense may be appreciated.Q To what she did to her husband (sic)? A Yes. xxx xxx xxx A He was nagging . I beg to disagree. Quoted hereunder are the relevant testimonies of Marivic A When I arrived home. "why did you switch off the light when the children were there. xxx xxx xxx A He was drunk again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off the light and I said to him.. so he went to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television.[10] There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband. a need to survive with her two sons and [the] child she's bringing. xxx xxx xxx Q You said the children were scared. As stated in the ponencia. Marivic had every reason to believe that the deceased would kill her that night not only because the latter was verbally threatening to kill her while attempting to get a gun from the drawer. the unlawful aggression or the attack must be imminent and actually in existence. Q How do you describe this bolo? A 1 1/2 feet. me at that time and I just ignore[d] him because I want to avoid trouble for fear that he will beat me again. sir this is not an ordinary self-defense. only here.. He was angry with me for not answering his challenge. Q Had she not able to kill her husband. would she still be in the very short moment with the victim (sic)? A If she did not do that she believes that she will be the one who would be killed. he was already in his usual behavior. [was] it a bolo or a knife? A Bolo. actual occurrence of an assault is no longer a condition sine qua non before self defense may be upheld. but this [is] a need to survive. This interpretation must. be re-evaluated vis-a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome. which culminated in the physical assaults and an attempt to shoot Marivic when she was 8 months pregnant. took the place of unlawful aggression. The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter. he was yelling in his usual unruly behavior. Q What do you mean that he was about to attack you? A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.[11] xxx xxx xxx COURT To the witness xxx xxx xxx Q The bolo that you said which Ben was holding at that time. In the case at bar. thus entitling her to a complete self defense even if there was no actual employment of violence by the deceased at the time of the killing. Once BWS and an impending danger based on the conduct of the deceased in previous battering episodes are established. but more importantly because the deceased wounded her on the wrist with a bolo." As previously discussed. COURT INTERPRETER (The witness pointed to her wrist). and because of the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet. Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you [with] that bolo? A No. women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Again. xxx xxx xxx A He switch[ed] off the light and the children were shouting because they were scared and he was already holding a bolo. what else happened as Ben was carrying that bolo? A He was about to attack me so I ran to the room. however. Traditionally. COURT To the witness .

Q How do you describe the blade. Q So you said that he dragged you towards the drawer? A Yes. Q Just like spinning.[15] . I was afraid and I want to make sure I would deliver my baby safely. he dragged you? How did he drag. it was a pipe about that long. Q How did he do it? A He wanted to cut my throat.[12] xxx xxx xxx Q You screamed for help and he left.[14] xxx xxx xxx A After a couple of hours. TABUCANON Q Where did he bring you? A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as well be killed so there will be nobody to nag me.[13] xxx xxx xxx A I was frightened that my husband would hurt me. Q What is there in the drawer? A I was aware that it was a gun. sir. and when he was about to pick-up the wallet and the blade. I smashed him then I ran to the room. xxx xxx xxx Q Where did he whirl you.. Q When he left what did you do. then he dragged me again outside of the bedroom holding my neck. The one he used to open the drawer I saw. was it inside the bedroom or outside? A In our bedroom. is it sharp both edges? A Yes.. then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic. Q Is it a flexible blade? A It's a cutter. xxx xxx xxx Q What happened when you were brought to the drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. ATTY. your Honor. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. Q Then after the whirling what happened? A He kicked my ass and then I screamed.. I was about to vomit. Q How did he whirl you? A Whirled around.. Q With the same blade? A Yes sir. did your husband really whirl you? A Yes. he went back again and got angry with me for packing his clothes. ATTY.Q You were demonstrating a motion. because he once used it to me. Q What was your reason in packing his clothes? A I wanted him to leave us. TABUCANON Q You said that when Ben came back to your house.? A I packed all his clothes. whirling. that was the object used when he intimidate me. xxx xxx xxx Q You said that he dropped the blade. so I packed all his things then on the following day I will leave. how does it look like? A Three (3) inches long and 1/2 inch wide. do you know where he was going? A Outside perhaps to drink more. and on that very moment everything on my mind was pity on myself. for the record will you please describe this blade about 3 inches long. you? COURT INTERPRETER (The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backwards.

´ Verily. The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense. The danger posed or created in her mind by the latter's threats using bladed weapons. In the case of People v. the medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors. Her acquittal of the charge of parricide is therefore in order.[16] There are many things which cannot be proved by direct evidence. and fear. the natural response of the battered woman would be to defend herself even at the cost of taking the life of the batterer. appellant should be allowed the mitigating circumstance of passion and obfuscation. because I managed to run every time he scared (sic). Q And the whirling happened in the first incident? A Yes. aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep. To ignore the testimony and the evidence thus presented is to make impossible the proof of mental state. bred a state of fear. such that the ponente ably discussed the causes and effects of the syndrome. The prosecution did not object to the presentation of these physical and testimonial pieces of evidence.IN VIEW WHEREOF. sir. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing. at the very least. This would however be an empty victory if we deliberately close our eyes to the antecedents of this case. This. the first incident and then he left and then two (2) hours after he came back? A Yes. She can never be in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of acute battery. however. the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently satisfied in the present case. This. Expert testimony was presented and admitted to this effect. One of this is state of mind. Javier. cousins and even the barangay captain. TABUCANON Q In other words. and a triumph for battered women who are trapped in a culture of silence.[18] In the case at bar. is a noble recognition of the plight of. Q Who used that? A Ben.[17] it was held: Since accused-appellant has already admitted to the killing. Indeed. xxx xxx xxx COURT To the witness Q Why. The majority need not worry that women around the country will mastermind the killings of their husbands and then use this Decision to bolster their attempts to employ the BWS defense. sir. But what is the natural equanimity of a battered woman? Appellant was not a normal married woman. namely. where under the circumstances. it is incumbent upon him to prove the claimed mitigating circumstance of illness. there is more than sufficient physical evidence presented by the appellant from which her mental state can be inferred. xxx xxx xxx Q But he did not hit you with that? A Yes. appellant was allowed and did in fact present clear and convincing evidence that she was a battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". no medical finding was presented regarding his mental condition at the time of the killing. The facts are simple. there were two (2) incidents. In the case at bar. juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The esteemed ponente also correctly found that the appellant acted with diminished will-power. Q And the dragging with arms flexed in her neck and on that blade happened on the second incident (sic)? A Ye. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she killed her husband. Moreover. no person would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place. as found in the ponencia.RE-DIRECT BY ATTY. sir. what is that blade about? A A cutter about 3 inches long. I vote to ACQUIT Marivic Genos . supports a finding that the acts of violence and battery committed by the deceased were illegal and unlawful and were committed immediately before appellant could recover her natural equanimity. shame. However. In this case. This Court can hardly rely on the bare allegations of accused-appellant. Evidence as to the mental state need not be also "beyond reasonable doubt. nor on mere presumptions and conjectures. he failed to go further. Q He used that on you? A He scared me on that (sic).

petitioner elevated the case to this Court via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held before the criminal cases were filed in court.. Thus. he was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos. Third. No. 125865. The petition is not impressed with merit. In receiving ex-parte the DFA¶s advice and in motu proprio dismissing the two criminal cases without notice to the prosecution. First. slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime. such as defamation. should it so desire. under the Vienna Convention on Diplomatic Relations. It should be noted that due process is a right of the accused as much as it is of the prosecution.. J. DECISION YNARES-SANTIAGO. 2000] JEFFREY LIANG (HUEFENG). 53170 and 53171. The latter filed a motion for reconsideration which was opposed by the DFA.: Petitioner is an economist working with the Asian Development Bank (ADB). Second. for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal. The imputation of theft is ultra vires and cannot be part of official functions. in the name of official duty. under Section 45 of the Agreement which provides:-NVP "Officers and staff of the Bank including for the purpose of this Article experts and consultants performing missions for the Bank shall enjoy the following privileges and immunities: a. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time.FIRST DIVISION [G. the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. does not support the stand taken by petitioner and that of the DFA. It appears that even the government¶s chief legal counsel." It is therefore necessary to determine if petitioner¶s case falls within the ambit of Section 45(a).. Sometime in 1994. Petitioner was arrested by virtue of a warrant issued by the MeTC..). After the motion for reconsideration was denied. At any rate. the latter¶s right to due process was violated. respondent. PEOPLE OF THE PHILIPPINES. .400. January 28. the MeTC released him to the custody of the Security Officer of ADB. After fixing petitioner¶s bail at P2. the prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to present its controverting evidence. the Solicitor General. the commission of a crime is not part of official duty. vs. the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. but subject to the exception that the act was done in "official capacity.. enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. As already mentioned above. It is well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction. When its motion was denied. Fourth.00 per criminal charge. assuming petitioner is such. The DFA¶s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity.. Based on the said protocol communication that petitioner is immune from suit. a diplomatic agent. the MeTC judge without notice to the prosecution dismissed the two criminal cases." the immunity mentioned therein is not absolute. it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges.R. petitioner. The next day.

CA.2/22/00 9:47 AM See United States v.. Guinto. 38 SCRA 324 (1971) Section 1. JJ.Finally. suffice it to say that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar. 191 SCRA 713 (1990). 193 SCRA 282 (1991) M. Rarang.H. Besides. C. 114 SCRA 247 (1982) Section 31. preliminary investigation may be invoked only when specifically granted by law. Animos v.J.. People v. See also Minucher v. 270 SCRA 645 (1997) People v. 182 SCRA 644 (1990) Chavez v. the petition is DENIED. Davide. Rule 112. and Pardo. concur. WHEREFORE. Phil. Casiano. the absence of preliminary investigation does not affect the court¶s jurisdiction nor does it impair the validity of the information or otherwise render it defective. Wylie v. People v. 1 SCRA 478 (1961) . 174 SCRA 214 (1989). Jr. Bartolome. Veterans Affairs Office. on the contention that there was no preliminary investigation conducted. Kapunan. Being purely a statutory right. 368 (1992) Shauf v. CA. Gomez. 1 (c). (Chairman). v. Jr.. Puno. 209 SCRA 357. 214 SCRA 242 (1992) See Del Rosario. Dumlao v. Abejuela. SO ORDERED. The rule on criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the MeTC. Sandiganbayan. 117 SCRA 72 (1982). Rules of Criminal Procedure. CA.

DECISION DEL CASTILLO. petitioner filed on February 14. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines. 163267 : May 5.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. Pasay City. 1996. as well as the April 16. one does not have to be in actual physical possession thereof. No. Petitioner.R. 2004 Resolution which denied petitioners Motion for Reconsideration. the State Prosecutor found no probable cause to indict petitioner and thus recommended the reversal of the resolution finding probable cause and the dismissal of the complaint. 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the Holding of A Preliminary Investigation. 2003 Decision3cralaw of the Court of Appeals (CA) in CA-G. 1866. and within the jurisdiction of this Honorable Court.1 This Petition for Review on Certiorari2cralaw assails the October 15. the above-named accused.5cralaw as amended. Israel with SN F-36283 with one (1) magazine. Factual Antecedents In an Information6cralaw dated January 31. 2010 TEOFILO EVANGELISTA. at the Ninoy Aquino International Airport. One (1) Unit 9mm Jericho Pistol. 3. a Motion to Withdraw Information9cralaw was filed but it was denied by the trial court in an Order10cralaw dated March 26. 1998 Decision4cralaw of the Regional Trial Court (RTC) of Pasay City. 21805 which affirmed the January 23. Presidential Decree (PD) No. petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as follows: That on or about the 30th day of January 1996. Thereafter. vs. Philippines. custody and control the following items: 1. the State Prosecutor conducted the preliminary investigation. J. which includes constructive possession or the subjection of the thing to the owners control. wilfully. then and there. did. The law does not punish physical possession alone but possession in general. Respondent. unlawfully and feloniously have in his possession.R. THE PEOPLE OF THE PHILIPPINES. Nineteen (19) 9mm bullets.: To be guilty of the crime of illegal possession of firearms and ammunition. 1996. CR No. In a Resolution8cralaw dated March 6. CONTRARY TO LAW. accordingly. Branch 109 convicting petitioner Teofilo Evangelista for violation of Section 1. 2. viz: . After posting his bail. 1996. without the corresponding permit or license from competent authority.7cralaw The RTC granted the motion and.

trial ensued. he was approached by the PAL Station Manager in Dubai. 1996. That PAL Station Manager Mr. Nadurata surrendered the firearms to the airport authorities.Acting on the "Motion to Withdraw Information" filed by State Prosecutor Aida Macapagal on the ground that [there exists] no probable cause to indict the accused. Bustos admitted that petitioner was not assisted by counsel when the latter admitted that he bought the firearms in Angola. petitioner. The firearms were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board the airplane. 1996. 1996. Meanwhile. was being detained as he was found in possession of firearms. (SPO4 Bondoc). together with Agents Cuymo and Fuentabella. 13cralaw A referral letter14cralaw was prepared endorsing the matter to the Department of Justice. Acierto identified the firearms and ammunitions. SPO4 Federico Bondoc. Capt. proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner. but his effort yielded no record to show that the firearms were legally purchased. When arraigned on March 26.16cralaw the resolution of which was deferred pending submission of petitioners evidence. and that the Arabs will only release the passenger if the Captain of PAL would accept custody of the passenger [herein petitioner] and the firearms. Version of the Prosecution In the morning of January 30. Upon inquiry. the same is hereby denied. the Information having been already filed in Court. a Customs Police assigned at the Ninoy Aquino International Airport (NAIA) District Command. Capt. His office issued a certification15cralaw to that effect which he identified in court as Exhibit "A". Jr. Upon arrival in Manila. 657 would be arriving from Dubai bringing with him firearms and ammunitions. the matter should be left to the discretion of the Court to assess the evidence. herein appellant.17 Version of the Defense The defense presented Capt. Thereafter. the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with said office11cralaw nor licensed holder of aforesaid firearms and ammunitions. petitioner pleaded not guilty to the charge. Among the documents Bustos had gathered during his investigation were the Arrival Endorsement Form12cralaw and Customs Declaration Form. filed his Demurrer to Evidence. In open court. . was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. upon verification. for lack of merit. During the investigation. Edwin Nadurata (Capt. Maximo Acierto. with leave of court. Acierto. Nilo Umayaw was told by a Dubai Police that firearms and ammunitions were found in the luggage of a Filipino passenger coming from Angola going to the Philippines. so that the latter could leave Dubai. Bustos likewise verified from the Bureau of Customs. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the CA as follows: x x x On January 30. hence. where the firearms and ammunitions were turned over to him. Thereupon. Jr. petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items in Angola but the same were confiscated by the Dubai authorities. the prosecution and the defense agreed and stipulated on the following points: 1. which turned over the same to a PAL personnel in Dubai. that if said passenger will not be able to board the airplane. the PAL Station Manager in Dubai. Nadurata agreed to take custody of the firearms and the passenger. found that petitioner is not a licensed/registered firearm holder. he would be imprisoned in Dubai. After the prosecution rested its case. in view of the unavailability of the defenses intended witness. (Acierto). Capt. Nadurata). who informed him that a Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila. a member of the Philippine National Police (PNP) and representative of the FEO. Let the arraignment of the accused proceed. Acierto was summoned to the cockpit by the pilot. Shortly after lunch. Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were bought in Angola. Nilo Umayaw (Umayaw). Petitioner was then escorted to the arrival area to get his luggage and thereafter proceeded to the examination room where the luggage was examined and petitioner was investigated.

3. he was not represented by counsel and was forced to accept ownership of the guns. he was at Dubai International Airport waiting for his flight to the Philippines. That he was the one who turned over the subject firearms to Captain Edwin Nadurata. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. Umayaw told him that he will only be released if he admits ownership of the guns. Upon the request of Umayaw. At this point. Manila for proper disposition.21cralaw Forthwith. 5.00. 1. Upon arrival at the NAIA. Capt.19 On April 4. Ruling of the Regional Trial Court After new trial. SO ORDERED. . he saw the Arab policemen handing the guns to the pilot. Israel with SN F-36283 with one (1) magazine. the RTC rendered its Decision. the dispositive portion of which reads: In view of all the foregoing. While at the airport in Dubai. the Court finds accused TEOFILO E. Thereafter. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. petitioner was brought to the Duty Free area for his flight going to the Philippines. he was arrested by the Customs police and brought to the arrival area where his passport was stamped and he was made to sign a Customs Declaration Form without reading its contents. Arab policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. he was brought to a room at the ground floor of the NAIA where he was investigated. P. He declined and insisted that the guns are not his. The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered transmitted to the National Bureau of Investigation. 1998 reads: In view of all the foregoing. P. One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30. The above-mentioned firearms are hereby ordered forfeited in favor of the government and is ordered transmitted to the National Bureau of Investigation. 1866 as amended (Illegal Possession of Firearms and Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four (4) Months to Twenty (20) Years.D.D. the Pilot in command of PAL Flight 657. He came from Luwanda.000. When he was inside the plane. Manila for proper disposition. During the investigation. The Arabs maltreated him and forced him to admit ownership of the guns. 1996. 1.18cralaw Ruling of the Regional Trial Court On February 4. He denied ownership of the guns and the fact that he admitted having bought the same in Angola. petitioner filed a Motion for New Trial20cralaw which the RTC granted. The dispositive portion of the Decision dated January 23. 1997. That the subject firearms [were] turned over at Dubai. Angola where he was employed as a seaman at Oil International Limited. Edwin Nadurata who has already testified. Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to the Philippines. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1) Unit 9mm Jerico Pistol. petitioner took the witness stand narrating his own version of the incident as follows: On January 28. That [these are] the same firearms involved in this case. PAL Station Manager Umayaw came and talked to the policemen in Arabian dialect. That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista and the same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot. 1997. When he denied ownership of the same.2. 4. the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. the Court finds accused TEOFILO E.

On this ground alone. he does not claim that he was coerced or persuaded in affixing his signature thereon.22 Ruling of the Court of Appeals On appeal. Petitioner moved for reconsideration23cralaw but it was denied by the appellate court in its April 16. turned over the same to Capt. 2004 Resolution. While appellant claims that he signed the Customs Declaration Form without reading it because of his excitement. In his bid for acquittal. it cannot be said that appellant had already been arrested when he signed the Customs . 1996. At the outset. as a general rule. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation. Granting that Nilo Umayaw was merely told by the Dubai authorities that the firearms and ammunitions were found in the luggage of appellant and that Umayaw had no personal knowledge thereof.25cralaw In this recourse. Such stipulation of fact is binding on appellant. Issues Petitioner assigns the following errors: a. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm or ammunition within Philippine jurisdiction and he therefore could not have committed the crime charged against him. a petition for review on certiorari shall only raise questions of law considering that the findings of fact of the CA are. Illegal Possession of Firearms. however. d. the defense counsel stipulated that the subject firearms and ammunitions were confiscated from appellant and the same were given to PAL Station Manager Nilo Umayaw who. conclusive upon and binding on the Supreme Court. It ruled that the stipulations during the trial are binding on petitioner. 1866. 2003. petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-evaluate the credibility of their witnesses.24 We find the appeal devoid of merit. The preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Edwin Nadurata. As regards possession of subject firearms. there was constructive possession. the instant petition deserves to be denied outright. as the liberty of petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review. As correctly found by the CA: Appellants argument that he was never found in possession of the subject firearms and ammunitions within Philippine jurisdiction is specious. Hence.SO ORDERED. this petition. c. we are inclined to delve into the merits of the present petition. we emphasize that under Rule 45 of the Rules of Court. We are not persuaded. which contains the entry "2 PISTOL guns SENT SURRENDER TO PHILIPPINE AIRLINE. It is worthy to note that at the hearing of the case before the court a quo on October 8. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No. for the acts of a lawyer in the defense of a case are the acts of his client." proves that he was the one who brought the guns to Manila. Thus. Thus. petitioner argues that he could not have committed the crime imputed against him for he was never in custody and possession of any firearm or ammunition when he arrived in the Philippines. in turn. Naduratas custody during the flight from Dubai to Manila was for and on behalf of petitioner. the appellate court ruled that Capt. however. the CA affirmed the findings of the trial court in its Decision dated October 15. b. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime. the conclusion of the appellate court that he was in constructive possession of the subject firearms and ammunitions is erroneous. appellants signature on the Customs Declaration Form. Moreover. However.

especially considering petitioners admission during the clarificatory questioning by the trial court: Court: So. who interceded in his behalf with the Dubai Police for his flight in the Philippines. this constitutes judicial admission of his possession of the subject firearms and ammunitions. Court: The condition of his release was that he will have to bring the guns and ammunitions to the Philippines and this arrangement was made by the PAL Supervisor at Dubai and it was Mr. Even assuming that there was prior accomplishment of the form which contains incriminating details. In fact. Moreover. Petitioner was among those passengers. testified that he accepted custody of the firearms and of appellant in order that the latter. that the firearms and ammunitions will also be with you on your flight to Manila. As correctly observed by the CA. Court: [You] made mention of that condition. petitioner could have easily taken precautionary measures by not affixing his signature thereto. may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made. As will be noted. The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. Moreover. what goes on into the mind of the accused. it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in constructive possession of subject firearms and ammunitions.Declaration Form. 1996. your honor. Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf of appellant. is that correct? A: Yes. who was being detained in Dubai for having been found in possession of firearms. appellant admitted that it was only after he signed the Customs Declaration Form that he was brought to the ground floor of NAIA for investigation. it is improbable that the customs police were the ones who filled out the declaration form. that the Dubai police agreed to release you provided that you will bring the guns and ammunitions with you? Is that the condition of the Dubai Police? A: Yes. appellant was in constructive possession of the subject firearms. As such. it provides details that only petitioner could have possibly known or supplied. the veracity of which requires no further proof. Capt. could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession. Dela Rosa. While there was no showing that he was forced to sign the form. We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form since it is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police custody. would be released from custody. the kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same. it is clear now in the mind of the Court. the preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. As held in People v. Hardly can we accept such pretension. It is a customs requirement which petitioner had a clear obligation to comply. This admission. Or he could have registered his objection thereto especially when no life threatening acts were being employed against him upon his arrival in the country. as his real intent. He was merely escorted by Special Agent Acierto to the arrival area of the NAIA. the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30. Nadurata. not applicable in this case. Animus possidendi is a state of mind. Appellants witness.27cralaw To us. In other words. petitioner can only come up with the excuse that he was excited. therefore. Umayaw the PAL Supervisor. your honor. Obviously. we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon his arrival in the Philippines.28cralaw No such controversion is extant on record.26cralaw We find no cogent reason to deviate from the above findings. Emphasis was also given on the . Capt. Compliance with the constitutional procedure on custodial investigation is. Consequently.

Since there is no pending criminal case when he left Dubai. the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. Judicial action on the motion rests in the sound exercise of judicial discretion. the information specifically and categorically alleged that on or about January 30. In short. Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. In Solar Team Entertainment. firmly denied possession and ownership of the firearms. There is nothing procedurally improper on the part of the trial court in disregarding the result of the preliminary investigation it itself ordered. Pasay City. It bears to stress that the essence of the crime penalized under PD 1866.30cralaw Contrary to the arguments put forward by petitioner. He argues that such denial effectively deprived him of his substantive right to a preliminary investigation. the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. It may be well to recall that while in Dubai. Moreover. Petitioner contends that the trial court has no jurisdiction over the case filed against him. Inc v. And more than mere possession. The accomplishment by petitioner of the Customs Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in the Philippines. In this case. Judge How33cralaw we held: It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case. the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul32cralaw that once a complaint or information is filed in court. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal possession of firearm. the court should dismiss the action for want of jurisdiction. even in a situation between life and death. it stands to reason that there was no crime committed in Dubai. petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. the prosecution was able to ascertain that he has no license or authority to possess said firearms.29cralaw In order for the courts to acquire jurisdiction in criminal cases. The court is not dutifully bound by such finding of the investigating prosecutor. .stipulations and admissions made during the trial. 1996 petitioner was in possession. and may either agree or disagree with the recommendation of the Secretary of Justice. In denying the motion. Philippines. it is beyond reasonable doubt that the crime was perpetrated and completed in no other place except the Philippines. Furthermore. custody and control of the subject firearms at the Ninoy Aquino International Airport. any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the exceptions provided in Article 2 of the Revised Penal Code. Still. These pieces of evidence are enough to show that he was the owner and possessor of these items. In contrast. Since it has been shown that petitioner was already in the Philippines when he was found in possession of the subject firearms and determined to be without any authority to possess them. our criminal laws are not applicable. we entertain no doubt that the crime of illegal possession of firearms and ammunition for which he was charged was committed in the Philippines.31cralaw Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the latters finding of lack of probable cause to indict him. petitioners argument fails to persuade. an essential ingredient of the offense. petitioner. is primarily the accuseds lack of license to possess the firearm. He claims that his alleged possession of the subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for the Philippines. there is no record of any criminal case having been filed against petitioner in Dubai in connection with the discovered firearms. If the evidence adduced during the trial shows that the offense was committed somewhere else. as amended. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case. certainly a territory within the jurisdiction of the trial court. he had not committed a crime within the Philippines. The age-old but familiar rule that he who alleges must prove his allegation applies.

Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. Branch 109 dated January 23. as amended. the Court has reiterated the essential elements in People v. the penalty imposed by the RTC as affirmed by the CA is proper. . 21805 affirming the January 23. as amended by RA 8294 provides: Section 1.40.44.357 and caliber .00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than . The existence of the subject firearms and the ammunition were established through the testimony of Acierto. x x x The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30. Acquisition. Concerning petitioners lack of authority to possess the firearms.45 and also lesser calibered firearms but considered powerful such as caliber . MARIANO C. Hence. SPO4 Bondoc. it should be given retrospective application insofar as the penalty is concerned. .000. Eling34cralaw to wit: (1) the existence of subject firearm. 1998.22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided. CR No. As proof. the subject firearms and ammunition when he arrived in the Philippines on January 30.R. Unlawful Manufacture. Jr. WHEREFORE. The assailed Decision of the Court of Appeals in CA-G. we find no reason not to uphold petitioners conviction. and.Consequently. the prosecution proved beyond reasonable doubt the elements of the crime. it was ascertained that the name of petitioner does not appear in the list of registered firearm holders or a registered owner thereof. 1997 or after the commission of the crime on January 30. However. That no other crime was committed by the person arrested. 1998 Decision of the Regional Trial Court of Pasay City. however. (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. . Their existence was likewise admitted by petitioner when he entered into stipulation and through his subsequent judicial admission. convicting petitioner Teofilo Evangelista of violation of Section 1 of Presidential Decree No.000. 829436cralaw took effect on June 6. The testimony of SPO4 Bondoc. no significant facts and circumstances were shown to have been overlooked or disregarded which if considered would have altered the outcome of the case.00 is AFFIRMED. albeit constructively. the petition is DENIED. 1996.35 A final point. Republic Act (RA) No. In the instant case.41. SO ORDERED. and sentencing him to suffer the penalty of imprisonment of six years and one day to eight years and to pay a fine of P30. testified that upon verification. In fine. since it is advantageous to the petitioner. 1866. 1996. Moreover. Section 1 of PD 1866.38 caliber and 9 millimeter such as caliber . or the certification from the FEO would suffice to prove beyond reasonable doubt the second element. Prision mayor in its minimum period ranges from six years and one day to eight years. DEL CASTILLO Associate Justice . In the prosecution for the crime of illegal possession of firearm and ammunition. petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered to be conducted. he submitted a certification to that effect and identified the same in court. Jr. The records substantiate the RTC and CAs finding that petitioner possessed. Sale.

R. and BRION. 2007 of the Court of Appeals (CA) in CA-G. and P/Sr. VELASCO. No. PO3 Reynaldo Ramos of the Philippine National Police Regional Office IV (PNP R-IV). March 17. CR-H. TINGA.: This is an appeal from the Decision dated July 19. 2004 Decision in Criminal Case No. sell.76) GRAMS OF METHAMPHETAMINE [HYDROCHLORIDE]. conspiring. @ Tisoy. Inspector Lorna Tria. MONALYN [CERVANTES] y SOLAR @ Mona. accused-appellant and three others were charged with violation of Sec.. allegedly committed as follows: That. JR.000. Branch 53 in Manila.R. J. for the amount of FIVE HUNDRED THOUSAND (P500. No. CARPIO MORALES. JJ. (RA) 6425 or the Dangerous Drugs Act of 1972. Chairperson.. 00476 which affirmed the April 23. Plaintiff-Appellee.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION PEOPLE OF THE PHILIPPINES. J. a forensic chemical officer of the same regional office. Article III of Republic Act No.versus - MONALYN CERVANTES y SOLAR. CONTRARY TO LAW. deliver and give away to a poseur-buyer. 2000. . JR. Accused-appellant and her co-accused pleaded not guilty to the charge. acting in common accord. in the City of Manila. 15. 181494 Present: QUISUMBING. willfully. the prosecution presented in evidence the oral testimonies of William Todavia. G. confederating and mutually helping one another.00) PESOS. and within the jurisdiction of this Honorable Court. accused ISIDRO ARGUSON y ARENDELA. Promulgated: Accused-Appellant. did then and there. on or about April 5. Philippines. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of violation of Section 15. 2009 x-----------------------------------------------------------------------------------------x DECISION VELASCO. FOUR HUNDRED SEVENTY THREE POINT SEVENTY SIX (473. 00-181929 of the Regional Trial Court (RTC). as amended.. unlawfully and feloniously. Philippine Currency. commonly known as shabu. without authority of law or the corresponding license therefor. a regulated drug. The records show the following facts: In an Information dated April 7. Art. III of RA 6425 (selling or distributing a regulated drug). .C. In the ensuing trial. WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard. 2000.

where she allegedly met ARGUSON for the first time. wherefrom a man alighted and cursed him. Laboratory Service. Accused-appellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim. one of whom [was] an old man boarded her inside the van causing her to lose hold of her child. On April 6.76 grams of shabu packed in six small self-sealing transparent bags. who was holding a black plastic bag. her youngest child asked her to go to [McDonald¶s]. 2000. acting as poseur-buyers. saying ³pulis ako wag kang aalis dyan[!] ´ The . Harrison St. Very much later. inclusive of its sub markings. Since Arguson did not have enough supply of shabu in the premises. accused REQUIZ testified that on the date and time in question. As he moved backward from where he stood. D-115800 on the crystalline substance. 2000. For his part. When they arrived thereat at about 4:30 in the afternoon. were objected to by the defense: (a) Exhibit ³B´ ± Chemistry Report No. a commotion happened near his post. to wit: Accused-appellant testified that after she did laundry works at her house in Estrella Street near F. Per her report. the substance tested positive for methamphetamine hydrochloride or shabu. only to return a few minutes later this time with Arguson. as summarized by the CA in the decision now on appeal.000 worth of shabu. while he was watching a vehicle near [McDonald¶s]. Cavite. 2000. were introduced by the DPA to Arguson as the buyers of PhP 500. Thereafter. passing by F. received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson operating in Cavite. were also boarded into the same van. The black plastic bag containing the six small self-sealing bags of white crystalline substance was likewise taken to Camp Vicente Lim where PO3 Ramos prepared the booking sheets and arrest reports and the request for a qualitative analysis of the seized items. 2002. At about three o¶clock in the afternoon of that day. he was suddenly approached by a policeman who arrested him and boarded him inside a vehicle together with CERVANTES and REQUIZ. Ocampo St. he hired a vehicle owned by Todavia. On the other hand. a team led by SPO2 Geronimo Pastrana. Pasay City. They were taken to a cemetery where another vehicle came and took them to Camp Vicente Lim. After being shown the money bundle. requesting for qualitative analysis of the contents of the six transparent plastic bags. PO3 Ramos gave the pre-arranged signal to indicate the consummation of the drug deal and introduced himself as policeman. in the hearing of March 4. C/I Geronimo prepared and completed Chemistry Report No. Wilson Del Monte. whom she later came to know as DEL MONTE and REQUIZ. the prosecution. D-115800 prepared by C/I Geronimo. in front of the McDonald¶s branch in P. (c) Exhibits ³D´ and ³D-1´ to ³D-6´ ± Black plastic bag with markings. Finally. Tanza. PO3 Ramos and PO2 Balosbalos. later found to contain 473. accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day in question. is as follows: On April 5. and handed it to PO2 Balosbalos. two (2) younger male persons. when he bumped a parked van. Arguson instructed the would-be-buyers to wait for someone who will come out from the nearby Estrella St. Vito Cruz branch. For the purpose. Laguna.. and Richard Requiz. Upon arriving at the rest house. Regional Crime Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then conducted the standard physical and chemical examinations on the specimen referred to her. PO3 Ramos. Vito Cruz branch. he instructed the would-be-buyers to follow him to Pasay City. who in turn gave him the bundle of boodle money.The People¶s version of the incident. and PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at Arguson¶s rest house in Barangay Lambingan. 2000 to the Chief. based at Camp Vicente Lim in Calamba. he was riding a borrowed bicycle on his way to the Cultural Center. Apart from the witnesses¶ affidavits and other documents.B.. The CA decision likewise summarized the defense¶s account of what purportedly transpired. and approached PO3 Ramos to check if he still had the money. to buy ice cream. as may be expected. Acting on this bit of information. She then saw a woman who alighted from a nearby van and pointed her out to her companions. offered in evidence the following exhibits. Harrison on April 4. Arguson then took from Del Monte the bag. simultaneously showing him a bundle of money. the Regional Special Operations Group IV (RSOG-IV). there was a commotion going on in front of the restaurant. and six (6) self-sealing transparent bags allegedly containing the confiscated shabu.B. accused-appellant left. (b) Exhibit ³C´ ± Memorandum of RSOG-IV dated April 5. which. whom he did not know prior to that incident. accused-appellant emerged from Estrella St. and (d) Exhibit ³F´ ± Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses.

the RTC rendered judgment acquitting Del Monte and Requiz but finding accused-appellant guilty as charged and meting upon her the penalty of reclusion perpetua. CR-H. accused-appellant urged her acquittal on the ground of ³insufficiency of evidence.´ The CA added the observation that absent any evidence overturning the presumption of regularity in the performance of official functions. Arguson died during the course of the trial resulting in the dismissal of the case against him. counters that the prosecution has established that the buy-bust transaction took place. 2008. . Before the appellate court. 15. SO ORDERED. of Republic Act No. he was boarded into the van together with the other accused. and Finding the prosecution¶s evidence insufficient to prove the guilt of accused WILSON DEL MONTE and RICHARD REQUIZ beyond reasonable doubt. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of violation of Sec. thru the Office of the Solicitor General. Del Monte testified. 2004. and who are hereby ACQUITTED. that he was taken to a cemetery somewhere in Cavite where the arresting officers lingered for an hour before bringing him to Camp Vicente Lim. thus veritably reiterating their principal arguments raised in the CA. in view of the foregoing. On March 24.man left and when he returned. For its part. As the appellate court stressed. as evidence. which on the part of accused-appellant would be: THE [CA] GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. 2. the Court directed the transfer of the case to the CA where it was docketed as CA-G. On May 18.000. C/I Geronimo¶s forensic report ³carries the presumption of regularity in the performance of official functions [and] the entries thereon x x x are prima facie evidence of the facts therein stated.C. judgment is hereby rendered: 1. there was no clear identification of the contents of the confiscated sachets.00. must be upheld even if she did not personally testify in court. accused CERVANTES was with him. finding the elements necessary for the prosecution of illegal sale of drugs to have sufficiently been satisfied and the identification of accused-appellant having been established. The parties manifested their willingness to submit the case on the basis of the records already submitted.R. 2007. While not stated in the CA decision. 00476. and is sentenced to Reclusion Perpetua and to pay a fine in the amount of Php500. like accused-appellant. the probative value and admissibility of the forensic report prepared by C/I Geronimo. this Court required the parties to submit supplemental briefs if they so desired. pursuant to which the RTC forwarded the records of the case to this Court. On August 17. No. Thereafter. affirmed her conviction. Conformably with People v. 2007. accused-appellant filed a Notice of Appeal. Article III. who had resigned from the service.´ By its Decision dated July 19. These testimonies remained uncontroverted.´ particularly stating that the ³forensic chemist who actually conducted the laboratory examination on the specimens allegedly recovered from the accused was not presented in court x x x [and] hence. The fallo of the RTC Decision reads: WHEREFORE. and has presented the corpus delicti. The CA rejected accused-appellant¶s lament about one Inspector Tria testifying on the chemistry report she did not prepare. accused-appellant filed a Notice of Appeal of the CA affirmatory decision. Mateo. the People. the CA. 2004. 6425 as amended. has identified accused-appellant and her complicity in Arguson¶s illegal trade. On April 23.

the trial court acquitted Requiz and Del Monte. each testifying that they just happened to be near or passing by McDonald¶s at about 4:30 in the afternoon of April 4. sir. Arguson. Even if PO3 Ramos saw him to have held the bag for Arguson. who identified accused-appellant and described her role in the conspiracy to sell shabu. Any reasonable mind might ask: Why the contrasting treatment? Why consider PO3 Ramos as a highly credible eyewitness as against accused-appellant. a car park boy. during the actual buy bust±±are being indicted. stating: ³Clearly. The court does not find the evidence sufficient to pass the test of moral certainty to find accused Del Monte liable as charged. they were four (4). Atty. Both offered the defenses of denial and instigation. As may be noted. In the witness box. may we move to strike that out x x x. PO3 Ramos. accused-appellant emerged from said street. the testimony of the prosecution¶s principal witness. sir. when all these accused here return with Monalyn Cervantes.´ a benevolence denied to accused-appellant without so much of an acceptable explanation. Balosbalos gave Arguson the boodle money while I flash the signal x x x then we apprehended them.´ But two paragraphs later. as indicia of conspiracy. the Court resolves to acquit accused-appellant. Cruz: Your honor.The Court¶s Ruling After a circumspect study. We start off with the most basic. carrying the bag would relatively have the more serious implication being in itself a punishable act of possession of regulated drugs. with confederating with each and several others to sell shabu. 2000 when they were apprehended. the RTC went on to write: x x x While PO3 Ramos testified that the bag was initially held by accused Del Monte and then taken from him by accused Arguson. but an unreliable one as against Del Monte. but convicted accused-appellant. together with Richard.´ extended to Del Monte the ³benefit of the doubt. sir and handed it to Balosbalos. Without hesitation. accused Monalyn Cervantes¶ complicity with accused Isidro Arguson in the sale of shabu has been established by the testimony of PO3 Ramos. Wilson. disappearing from the scene and then coming back with the principal player. and Del Monte. Arguson. considering certain circumstances engendering reasonable doubt as to her guilt. There is no suggestion that accused-appellant. consisted of allegedly verifying whether the poseur-buyer still had the purchase money. and later re-appeared. there is no other evidence which can support the charge of conspiracy with Arguson and Cervantes x x x. What happened next is captured by the following answers of PO3 Ramos to the prosecutor¶s questions: Q: What did you see when Cervantes already returned? A: When Monalyn return the one holding the plastic bag was Wilson. on the basis alone of the testimony of a witness. PO3 Ramos pointed to Del Monte as the one holding the plastic bag allegedly containing the prohibited substance until Arguson took it from him and handed it over to PO2 Balosbalos. a laundry woman. while at the crime scene. in the company of the ostensible pusher. in its observation that ³it could have been possible that [Del Monte] was merely asked by x x x Arguson to carry the bag. PO3 testified that. Fiscal Formoso: That¶s part of the answer x x x now. Before us then is a situation where two persons±±accused-appellant. The overt acts performed by accused-appellant. Del Monte came accompanying Arguson carrying the drug-containing plastic bag no less. what happen[ed]? A: Arguson took the plastic bag from Wilson. asked the operatives to wait. Yet. As between the two acts performed. Q: Wilson? A: Yes. ever handled the merchandise or its container. after being told by Arguson to wait for someone who will come out from the street whence Arguson would enter. On the other hand. But the trial court. checked on the purchase money. it could have been possible that he was merely asked by Cervantes or Arguson to carry the bag. PO3 Ramos categorically stated that Del Monte was among the four who emerged with Arguson from a street. when both accused are complete strangers to the policeman? .

´ thusly: ³Chain of Custody´ means the duly recorded authorized movements and custody of seized drugs or controlled chemicals x x x from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Controlled Precursors and Essential Chemicals. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item. from the seizure of the prohibited drug up to the time it is offered into evidence. The Court cannot reluctantly close its eyes to the likelihood. tampering. is deemed to have also failed to prove beyond reasonable doubt accused-appellant¶s guilt. the exhibit¶s level of susceptibility to fungibility. the ³chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed. coupled with the presentation to the court of the traded prohibited substance. Essential. The need for the punctilious observance of the chain-of-custody process in drug-related cases is explained in Malillin in the following wise: While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain. where it was and what happened to it while in the witness¶ possession. if the inculpatory testimony is capable of two or more explanations. contamination and even substitution and exchange.´ defines ³chain of custody.To paraphrase an unyielding rule. then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. Implicit in these cases is first and foremost the identity and existence. a reversal of the appealed decision is indicated on another but more compelling ground. But even if we were to cast aside the foregoing equipoise rule. an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable. or when a witness has failed to observe its uniqueness. the object and its consideration. what is crucial is the identity of the buyer and seller. alteration or tampering±±without regard to whether the same is advertent or otherwise not±±dictates the level of strictness in the application of the chain of custody rule. this would ideally include testimony about every link in the chain. In every prosecution for illegal sale of dangerous drug. that at any of the links in the chain of custody over the same there could have . or the ³Guidelines on the Custody and Disposition of Seized Dangerous Drugs. In context. in such a way that everyone who touched the exhibit would describe how and from whom it was received. the date and time when such transfer of custody [was] made in the course of safekeeping and use in court as evidence. Series of 2002. and Laboratory Equipment. and the final disposition. the condition in which it was received. the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict. in appropriate cases is that the identity of the prohibited drug be established with moral certainty. and the payment for it. We shall explain. 1. the accused. People. having failed to positively and convincingly prove the identity of the seized regulated substance. or when its condition at the time of testing or trial is critical. In other words. This means that on top of the key elements of possession or sale. As a mode of authenticating evidence. The same standard likewise obtains in case the evidence is susceptible to alteration.´ So it is that in a slew of cases the Court has considered the prosecution¶s failure to adequately prove that the specimen submitted for laboratory examination was the same one supposedly seized from the offending seller or possessor as ground for acquittal. Sec. or sold by. the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. And as we stressed in Malillin v. this object evidence being an integral part of the corpus delicti of the crime of possession or selling of regulated/prohibited drug. There can be no such crime when nagging doubts persist on whether the specimen submitted for examination and presented in court was what was recovered from. We refer to the postulate that the prosecution. 1(b) of the Dangerous Drugs Board Regulation No. or at least the possibility. the delivery of the thing sold. therefore. xxxx A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. one consistent with the innocence of the accused persons and the other consistent with their guilt. and the condition in which it was delivered to the next link in the chain.

what about this Shabu. And C/I Geronimo. was not also presented. no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene. PO2 Balosbalos. He did not name the duty desk officer at Camp Vicente Lim to whom he specifically turned over the confiscated bag and sachets at least for recording.) As the Court distinctly notes in this case. Now. Ong. I made the booking sheet and I requested for their medical/physical examination x x x. sir. submitting for qualitative analysis the white crystalline substance confiscated by the buy-bust group. 21(1). a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with. of the individuals who came into direct contact with or had physical custody of the seized regulated items. the unnamed person who delivered the suspected shabu and the recipient of it at the laboratory were no-show in court to testify on the circumstances under which they handled the specimen or whether other persons had access to the specimen before actual testing. however. PO3 Ramos admitted as much. what did you do? A. you were able to arrest all the accused here. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. xxxx Q. physically inventory and photograph the [drug] in the presence of the accused or the person/s from whom such items were confiscated and/or seized.´ which. testify on whether or not the specimen turned over for analysis and eventually offered in court as exhibit was the same substance received from Arguson. What is on record is Exhibit ³C. is a memorandum PO3 Ramos prepared dated April 5. And she did not as she could not. after their arrest. i. PNP R-IV Crime Laboratory Service.been tampering. alteration or substitution of substances from other cases±±by accident or otherwise±±in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buy-bust operation. he did not indicate how he and his companions. In the witness box. xxxx Q. handled the seized plastic bag and its contents. a representative from the media and the Department of Justice (DOJ). even if she wanted to. no one testified on how the specimen was cared after following the chemical analysis. too. Now. 2000 from the RSOG-IV Director to the Chief. when you reach your office. (Emphasis added. Art. thus: Q. the prosecution cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt. II of RA 9165. as embodied in Sec. ³[T]hese questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Needless to stress. the apprehending officer/team having initial custody and control of the drug shall: immediately after seizure and confiscation.e. Then.´ It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. Now. what did you do there? A. right after the buy bust. . as earlier described. After informing their rights and the reason why we arrest them we brought them immediately to our office in Canlubang. Given the foregoing perspective. the analyzing forensic chemist. a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied. who was in possession of this Shabu x x x when you left the place and proceeded to Canlubang? A.. Hence. In this case. As the Court observed aptly in People v. in authenticating the same. only PO3 Ramos testified for the specific purpose of identifying the evidence. or his/her representative or counsel. Otherwise.

we ruled that a forensic chemist is a public officer and as such. Omero¶s reports that the seven sachets of white crystalline substance were ³positive for methylamphetamine hydrochloride´ or shabu are. unlike here where accused-appellant objected to Inspector Tria¶s competency to testify on the Geronimo chemical report. (Emphasis added. was incompetent to state that the specimen her former colleague analyzed was in fact shabu and was the same specimen delivered to the laboratory for chemical analysis. Uy. we wrote: x x x In People vs. In this regard. Otherwise. the accused persons were convicted of illegal sale of shabu even if the forensic chemist who prepared the corresponding laboratory report was not presented. i. that the Bandang ruling was cast against a different backdrop where: (1) the seized crystalline substance was the same item examined and tested positive for shabu and presented in court. the Court in effect stated in Malillin that unless the state can show by records or testimony that the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the object evidence at least between the time it came into the possession of the police officers until it was tested in the laboratory. a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. has held that the non-presentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal.. The prosecution cannot. While Inspector Tria can plausibly testify on the fact that C/I Geronimo prepared the chemical report in the regular course of her duties. Withal. et al. He should have objected to their admissibility at the time they were being offered. It does not prove compliance with the requisite chain of custody over the confiscated substance from the time of seizure of the evidence. Corollarily. So it was that in People v. (2) there was a compelling reason for not presenting the examining forensic chemist. Evidently. . Laguna. a circumstance not obtaining in this case. a demand which may be addressed by hewing to the chain-of-custody rule. and (3) accused Bandang.e. his report carries the presumption of regularity in the performance of his function and duties. there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. In this case. it must be stressed that Atty. she. Bandang. under Section 44 of Rule 130. therefore. at best. due execution. Adding a negative dimension to the prosecution¶s case is the non-presentation of C/I Geronimo and the presentation in her stead of Inspector Tria to testify on the chemical report C/I Geronimo prepared. which failure produces a serious doubt as to accused-appellant¶s guilt. Second. Enriquez raises his objection to the Initial Laboratory Report and Chemistry Report No. implying that the identity and integrity of prohibited drug was safeguarded throughout.) It should be pointed out. Ocampo St. D-1585-00 only now. did not raise any objection to the chemical report during trial. and authenticity of the results of the chemistry analysis. then the prosecution cannot maintain that it was able to prove the guilt of the accused beyond reasonable doubt.Just as clear is the fact that the exacting chain of custody rule was not observed. a justifying factor for the prosecution to dispense with her testimony. Thus. the Court. x x x entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. notably in People v. The familiar rule in this jurisdiction is that the admissibility of certain documents x x x cannot be raised for the first time on appeal. proof beyond reasonable doubt demands that ³unwavering exactitude´ be observed. C/I Geronimo¶s resignation from the service is not. conclusive in the absence of evidence proving the contrary. To be sure. the existence. however. as in this case. thus. the prosecution has not proved that the substance seized in front of the McDonald¶s was the same substance adduced in evidence as an indispensable element of corpus delicti of the crime. Inspector Tria. Inspector Tria¶s testimony on. and the presentation of. Kimura the Court said that in establishing the corpus delicti. the chemistry report in question only established. In it. In net effect. the objection shall be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. the parties stipulated that the confiscated seven plastic bags have been identified and examined and that the chemist stated in his report that the substance is positive for shabu. standing alone. rightfully assert that the six sachets seized from Arguson were the very same objects tested by C/I Geronimo and offered in court in proving the corpus delicti. At any rate. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang.

particularly successful honestto-goodness buy-bust operations. And to put things in the proper perspective. III of RA 6425 and imposed upon her the penalty of reclusion perpetua and a fine of PhP 500. as amended. as we made abundantly clear in People v.´ For failure then of the prosecution to establish the guilt of accused-appellant beyond reasonable doubt. non-compliance with the legal prescriptions of the Dangerous Drugs Act. To a point. she must perforce be exonerated from criminal liability.Both the trial and appellate courts made much of the presumption of regularity in the performance of official functions both with respect to the acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. 15. the error of which the PNP R-IV command later compounded. To be forewarned is to be forearmed. This aberration is oftentimes in turn attributable to the unfamiliarity of police operatives of extant rules and procedures governing the custody. x x x [it] cannot be regarded as binding truth. These lapses. Once challenged by evidence. simply because drug enforcement operatives tend to compromise the integrity and evidentiary worth of the seized illegal items. 2007 in CA-G. Associate Justice . WHEREFORE. Sanchez. not necessarily fatal to the prosecution of drug-related cases. VELASCO. any taint of irregularity vitiates the performance and negates the presumption. the presumption of regularity in the performance of official duty always yields to the presumption of innocence and does not constitute proof beyond reasonable doubt. and the integrity and evidentiary value of the evidence seized must be shown to have been preserved by the apprehending officer or team. We held in one case: The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant¶s conviction because.000. as in this case. even when nabbed in flagrante. the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. PRESBITERO J.R. that police procedures may still have some lapses. Art. Lest it be overlooked. Accused-appellant Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable doubt and is accordingly immediately RELEASED from custody unless she is being lawfully held for some lawful cause. Branch 53 in Manila which found her guilty of violating Sec. CR-H. the presumption is precisely just that²a mere presumption. But a final consideration. ³[f]irst. is hereby REVERSED and SET ASIDE. addressed. thus. the buy bust team committed serious lapses in the handling of the prohibited item from the very start of its operation. No. pushers and/or lesser players. is. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt of this Decision. their best efforts. 00476. This is. SO ORDERED. And as earlier discussed. The Court need not belabor this matter anew. Second. and explained in terms of their justifiable grounds.C. disputable and may be overturned by affirmative evidence of irregularity or failure to perform a duty. sometimes still end up in the acquittal of illegal drug manufacturers. the CA Decision dated July 19. The facts and the law of the case call for this kind of disposition. affirming that of the RTC. control. distributors. JR. must be recognized. the reliance on the presumptive regularity is tenable. however. and handling of seized drugs. This presumption is. The Court is cognizant of the campaign of the police and other drug enforcement agencies against the growing drug menace in the country. Unfortunately. however. an opportune time to remind all concerned about these rules and procedures and the guiding jurisprudence.

.00..... CHICO-NAZARIO. met er s mor e or less... Branch 29... in t h e f ollowing ma nner ... u nla wfu lly a nd f elonious ly def r aud MARG AR IT A VAS Q UEZ.... I n an I nf or mat ion f iled on 7 Oct ob er 1996 . wit h impr ovements t her eon which s he acqu ir ed fr om t he Nationa l H ousin g Aut hor it y (NH A) b y vir tu e of a Deed of Sale wit h M or t gage. Kalooka n Cit y conta ining an ar ea of f ort y. wit h int ent t o defr aud. without t he knowledg e and cons ent of MARG AR IT A VASQ UEZ.. Page 49. Nova liches. which a mou nt once in her p oss ess ion.000.. AUSTRIA-MARTINEZ. the sa id accus ed b eing t hen t he owner of a par cel of la nd locat ed at Bo.x DECISION CHICO-NAZARIO.versus - Promulgated: PEOPLE OF THE PHILIPPINES.... J. and REYES. p etit ioner .THIRD DIVISION LILIBETH ARICHETA. Chairperson. AZCUNA. misapplied. Ba gu mb ong. Book X V...: Assailed before Us is the Decision of the Court of Appeals in CA-G... September 21.075... in t he C it y of Manila. did t hen a nd ther e willfu lly. .R. JJ. Petitioner..eight (48 ) sq.... . 172500 Present: YNARES-SANTIAGO... t o wit : t he said accus ed well knowing t hat she ha d alr ea dy s old t h e said lot t o a thir d par ty.000. 238.. p lea ded not gu ilt y t o the cr ime char ged.00 wit h t he N H A. misappr opr iat ed a nd conver t ed t o her own p er s onal us e a nd b enefit. Philipp ine cur r ency.. When ar r aigned on 13 Januar y 1997. unla wf u lly and f elonious ly s old t he sa me lot t o MARG AR IT A VASQ UEZ as evidenced b y a D eed of Sale wit h assu mpt ion of Mor tga ge ex ecut ed b et ween her a nd M AR G ARIT A VAS Q UEZ on 27 t h Apr il.. t o the da ma ge a nd pr eju dice of MARG AR IT A VASQ UEZ in the a mou nt of P50... 96-152984. N o. Quita ngon and r ecor ded in t he latt er ¶s N otar ial Regist er as D oc.R... Philipp ines... in cons ider ation of which t he said M ARG AR IT A VASQ UEZ paid accus ed P50. 25540 which affirmed with modifications the Decision of the Regional Trial Court (RTC) of Manila. No. pet itioner was char ged wit h Estafa allegedly committ ed as f ollows : T hat somet ime in Apr il 1994. S er ies of 1994.00 and t o assu me t h e su m of P191.. convicting petitioner Lilibeth Aricheta of the crime of Estafa.. willfu lly. CR No.. in Criminal Case No.. ass ist ed b y cou ns el de oficio. 2007 x..... 1994 b ef or e N otar y Public N onilo A. G. Respondent.

b ecaus e s he st ill ha d no gat e pass or ID issu ed b y the N H A. bu t she was told t he gat e pass was not yet availab le. pr ivat e complaina nt or ally as ked p et it ioner t o r etur n t he P50. Pr ivat e comp la inant t estif ied t hat p et itioner was a fa mily fr iend whom s he ha d known f or mor e t ha n t en year s. pr ivat e comp lainant s ent p et it ioner a dema nd lett er . She t hen f iled b ot h civil and cr imin al cas es against p et it ioner . she s aid that when s he tr ied t o s ecur e t he gat e pass. but was told b y p etit ioner t hat s he cou ld not occup y t he sa me yet. Mr s. Cons equ ent ly. Cor der o was not an agent of p etit ioner . T he pr op er t y was wit hout wat er a nd electr icit y.00 she pa id her .p etit ioner ¶s b est fr iend. and st ill u noccupied. not yet finis hed. Manila. She a dded t hat p et it ioner did not t ell her t o sub mit t h e deed of sale t o t he N H A. T her eaft er . and t hat s he alr ea dy did. In Ma y 1994. s he went t o Bar anga y Ba gu mb ong. pr ivate comp laina nt called p et it ioner . Blk. kumar e and off icemate at the NH A -. On 27 Apr il 1994. Almost ever yday. in May 1 994. Aft er the ex ecut ion of t he docu ment and pa yment.convinced her t o bu y the hous e a n d lot sub ject of this cas e. pr ivat e comp la inant and p et it ioner ent er ed int o a D eed of Sale wit h Assu mpt ion of M or tga ge. She confr ont ed p et it ioner on the matt er . who was t he latt er ¶s sist er in. she pr es ent ed t he deed of sale t o a cer tain Amy C r uz who t old her t hat only p et it ioner was author ized t o get t he gat e pass. ´ T he pa yment of P50.la w. Pr ivate comp laina nt exp lained t hat she did not s ub mit t he deed of sale t o t he NH A b ecaus e she tr usted t he p etit ioner .00 and t o as su me pa yment of t he mont hly a mort izat ion t o the NH A f or twent y. It contained a pr ovis ion stating t hat ³the Vendor is t he abs olut e owner of the sa id pr op er t y and her eb y war r ants the Vendee from a ny la wf ul claim of whoms oever over t h e same.00 t o p et itioner was ma de b y pr ivat e comp la inant in t he latt er ¶s off ice locat ed at 329 NDC Comp ou nd. wher e she f ou nd out t hat someone was alr eady occu pying t he hous e and lot. and s econd. Pur eza St. N ova liches. P et itioner a ls o t old her t hat the p er s on who b ou ght it leas ed t he sa me t o anot her p er son. T he gr ou nd f loor ha d no par tit ion. H owever . and t he latt er admitt ed t hat s he ( p etit ioner ) sold it t o anot her p er s on. but was told t hat its issua nce was b eing dela yed. the pr e-tr ia l conf er ence was t er minat ed. which the latt er ignor ed. pr ivat e comp laina nt as ked p et it ioner ab out t he gat e pass. Sta. She us ed t o bu y viands fr om p et it ioner ¶s mot her . She nar r ated t hat on 2 7 .f ive (25 ) year s.000. while t h e s econd f loor ha d no r oom a nd ceiling. She even went t o t he hous e of p et it ioner who t old her tha t a case b et ween t he NH A a nd the develop er was the caus e of t he dela y. an off icemat e of pr ivat e compla ina nt at Kib ono Manufactur in g Company. Ms.000..f ir st. pr ivate comp laina nt went t o the NH A a nd was inf or med b y a cer tain Amy Cr uz that the gat e pass had a lr eady b een obta ined b y p et it ioner . in Apr il 199 4 b ef or e s he a gr eed t o bu y t he sa me. Pet itioner t old her she would b e able t o s ecur e t he gat e pass wit hin a mont h or in Ma y 1994. pr ivat e comp laina nt tr ied t o occup y t he hous e and lot. locat ed at Bar angay Bagu mb ong. T he f or mer was able t o s ee t he pr op er t y t wice . R ex elita C or der o .la w¶s off icemat e at the Nationa l H ousing Aut hor it y (NH A). de Gu zma n. Caloocan C it y.000. Calooca n C it y. T he pr os ecution pr es ent ed pr ivat e comp laina nt Mar gar ita S evilla Vasqu ez and N or ita A. 2. Pr ivat e comp laina nt agr eed t o pa y p et it ioner P50. Pr ivat e comp laina nt fur t her sa id t hat althou gh her s ist er -in. Under t he cir cu msta nces.. conf ir med t he tr ansact ion b et ween pr ivate comp laina nt and p et it ioner r egar ding t he sal e of the r ight of t he p et it ioner over t he hous e and lot involved in t his cas e. Pet it ioner a gr eed to s ell t o pr ivat e comp laina nt her r ights over a hous e a nd lot descr ib ed a s Lot 5.On 18 Febr uar y 1997. Mesa. de Guzma n. In Oct ob er 199 5. Nor ita A.

Alt hou gh she s igned the deed of sale. accus ed-p et it ioner app ealed t he decis ion t o t he C our t of App eals. s he st ill mor t ga ged t he pr op er t y t o Mar gar ita Galang wit hin one year fr om t he a war d of t he pr op er t y t o her . Via a not ice of app eal. She nar r ated t hat she fir st mor t gaged t he pr op er t y to Mar gar ita Galang who occup ied t he pr op er t y wit h t he con dit ion t hat she wou ld vacat e t he sa me when t he mon ey she loa ned is r etur ned. She has to pay mont hly a mor tizations f or t went y-f ive (25) year s to t h e NH A. but s he s igned a docu ment as evidence t hat s he r eceived mon ey. Mr s. Galang. s he was two f eet away fr om pr ivat e comp laina nt and p et ition er . sub ject matt er of t his cas e. the latt er is ent it led t o occup y t he pr op er t y which. . T her eaft er . t he Cour t of Ap p eals aff ir med wit h modif ications the tr ia l cour t¶s decis ion as follows : WHEREFORE. What s he under st ood was that if s he cannot r edeem t he pr op er t y wit hin s ix mont hs. was a war ded t o her thr ou gh a r affle at the NH A. t oget her wit h a not her off icemat e. In its decis ion dat ed 26 Apr il 2006. the tr ia l cour t pr omu lgat ed its D ecision convict ing accus ed -p et it ioner of Estafa. t he pr op er t y is deemed s old. Since p et it ioner has not r etur ned t he amou nt s h e bor r owed fr om Mar gar ita Gala ng. N onilo A. T he decr etal p or tion of t he decis ion r eads : WHEREFORE. On 25 Sept emb er 2000. the contr act was signed and s he. EI GHT (8) MO NT HS and T WENT Y-ON E (21 ) D AYS of prision correccional ma ximum to prision mayor min imum as maximu m wit h all the access or y p enalt ies pr ovided b y law and t o pay t he cost s. P et itioner t hen mor t ga ged t he same pr op er t y t o pr ivat e comp laina nt b ecau s e her ku mare was bor r owing mon ey fr om her . Pet itioner fur t her exp la ined t hat desp it e t he pr ohib it ion t o s ell or mor t ga ge t he pr op er t y wit hin t he 25. Aft er the s igning. Accus ed is her eb y s ent enced t o suff er the indet er minat e p ena lt y of T WO (2) YE ARS. ONE (1 ) D AY of pr is ion ma yor minimu m as minimu m t o EIG HT (8) YE ARS. EIGHT (8) MONT HS. she claimed s he is st ill the owner p er notice of the NH A. G UILT Y b eyond r eas onable doubt of t he cr ime of EST AFA a nd s he is her eb y s ent enced t o suff er the indet er minat e p enalt y of SIX (6) YE ARS. 2000 is her eb y A FFI RMED wit h MODI FICATI ONS. p et itioner t ook t he wit ness stand. She. She said t he pr op er t y ca nnot b e s old dur ing t his p er iod. She s aid s he has no pr oof t hat s he mor t ga ged t he p r op er ty t o Ms. ONE (1) D AY of the mediu m of pr is ion ma yor mediu m as maximu m wit h a ll the access or y p ena lties pr ovided b y law. in view of t he f or egoing. She signed a deed of sale b ut did not t ota lly r ead t he docu ment. Quita ngon who notar ized t he Deed of Sale wit h Assu mpt ion of M or tga ge. For the def ens e.Apr il 1994. accor ding t o p etit ioner . t he D ecis ion dat ed S ept emb er 25. is st ill in her na me. LIL IBET H AR ICHET A. was as ked b y pr ivat e compla ina nt t o act as wit ness es. and t o pay t he costs. Dur ing t he tr ansact ion.00 in cas h. De Gu zma n t est if ied s he saw p r ivat e comp laina nt give t o p et it ioner t he a mou nt of P50.000. Pet itioner t est ified t hat t he hous e a nd lot. did not inf or m pr ivat e comp la inant of t he f ir st mor t ga ge. a nd t hat pr ivat e comp laina nt would b e paying this p er s on. She ins ist ed t hat she did not s ell t he hous e and lot to pr ivat e comp laina nt but mer ely mor t gaged it t o her . s he sa id they app ear ed b ef or e Att y. Petit ioner denied p er s ona lly knowing t he pr ivat e compla ina nt. this C our t f inds t he accus ed. she was told b y pr ivat e comp lainant that someo ne wou ld b e ar r iving in their off ice wh o was s elling her r ights over s ome pr op er t y in Calooca n Cit y. T his p er s on tur ned out t o be t he p et it ioner . ELE VEN (1 1) MONT HS and T EN (10) D AYS of prision corr eccional mi nimum to m edium as minimu m t o EIG HT (8) YE ARS. howev er .year p er iod.

T he Cour t of App ea ls, in up holding p et itioner ¶s convict ion, r atiocinat ed: The Deed of Sale with Assumption of Mortgage (Exh. ³A´) dated April 27, 1994 and signed by accused Lilibeth L. Aricheta in favor of Margarita Vasquez speaks only of the mortgage with the National Housing Authority (NHA). Margarita Vasquez, as vendee, agreed to assume payment of the balance on the loan with NHA. Said instrument includes the warranty by Lilibeth L. Aricheta, as vendor, that she ³is the absolute owner of said property´ and ³warrants the vendee from any lawful claim of whomsoever over the same.´ (Exhibit ³A´). xxxx At the time accused-[appellant] signed the deed of sale in favor of Margarita Vasquez she represented to the latter that she was the absolute owner of the property subject matter of the sale. Accused-[appellant] warranted to defend said transaction from the claim of anybody whomsoever. Whether the previous transaction in favor of Magdalena Galang was a sale or a mortgage, aforesaid written guaranty embodied in the sale to Margarita Vasquez was violated. The representation, therefore, that accused-[appellant] was the absolute owner of the property sold to Margarita Vasquez and it was free from the claim of anybody was fraudulent. Said false pretense was simultaneous with the commission of the fraud. Margarita Vasquez was induced to deliver the sum of P50,000.00 on account of said fraudulent misrepresentation. Margarita Vasquez suffered damage.

Petit ioner is now b ef or e us via a pet it ion f or r eview on certiorari r ais ing a sole iss u e: WHET HER T HE COURT OF APPEALS ERRED IN AFFIRMING T HE T RIAL COURT ¶S FINDINGS T HAT T HE PET IT IONER IS GUILT Y BE YOND RE ASON ABLE DO UBT OF T HE CRIME OF EST AFA.

Pet itioner cont ends t hat t he element of deceit which, in this cas e is t he ma king of fals e r epr es entat ions t hat she is t he owner of t he sub ject pr op er ty when s he tr ansact ed wit h pr ivat e comp la inant, is not pr es ent in t he cas e at bar becaus e at t he t ime s he tr ansact ed w it h pr ivat e comp la inant, s he was st ill t he owner t her eof. She cla ims t hat nowher e in t he r ecor ds of the cas e was it s hown t hat s he pr evious ly s old or mor tga ged t he sub ject pr op er t y a nd t hat t he r ecor ds of t h e NH A show t hat the pr op er t y r ema ined in her na me at the time s he dea lt wit h pr ivat e comp laina nt. Estafa under Ar t icle 315, par agr aph 2, of t he R evis ed P ena l C ode is committ ed b y any p er s on who defr auds a not her b y us ing a f ict it ious na me; or fals ely pr et ends t o p oss ess p ower , inf lu ence, qua lif icat ions, pr op er t y, cr edit, agency, bus iness or ima ginar y tr ansactions; or b y mea ns of s imilar deceits ex ecut ed pr ior to or simu ltaneous ly wit h t he commiss ion of fr aud. Under t his class of estafa, the element of deceit is indisp ensab le. T he elements of Estafa b y mea ns of deceit as def ined u nder Ar t icle 315(2 )(a) of t he R evis ed Pena l C ode ar e as f ollows : (1 ) t hat t her e must b e a fals e pr et ens e, fr audu lent act or fr audu lent mea ns; (2) t hat such fa ls e pr et ens e, fr audu lent act or fr audu lent mea ns must b e ma de or ex ecut ed pr ior t o or simu lta neous ly wit h t he commiss ion of t he fr aud; (3) t hat t he off ended par ty must ha v e r elied on t he fa ls e pr et ens e, fr audu lent act or fr audulent mea ns, that is, he was induced t o par t wit h his mon ey or pr op er t y b ecaus e of t he fals e pr et ens e, fr audu lent act or fr audu lent mea ns ; and (4 ) that as a r esult t her eof, the of f ended par ty suff er ed da ma ge. Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage

over another by false suggestions or by suppression of truth; and includes all forms of surprise, trick, cunning, dissembling and any other unfair way by which another is cheated. Deceit is a species of fraud. And deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it, to his legal injury. The false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money. In the absence of such requisite, any subsequent act of the accused, however fraudulent and suspicious it might appear, cannot serve as basis for prosecution for estafa under the said provision. As can be gleaned from the allegations in the information, petitioner was charged with Estafa for allegedly selling to private complainant the subject property knowing fully well that she had already sold the same to a third party. From this, it is therefore clear that the supposed false representation or false pretense made by petitioner to private complainant was that she was still the owner of the property when she sold it to private complainant. The prosecution relies heavily on the provision contained in the Deed of Sale with Assumption of Mortgage ³That the Vendor is the absolute owner of said property and hereby warrants the Vendee from any lawful claim of whomsoever over the same.´ It argues that petitioner, in executing said document in favor of private complainant, fraudulently represented that she is the absolute owner of the property and warranted that the transfer of rights over the property is free ³from any lawful claim of whomsoever over the same´ because at the time she made this representation, she had already sold/mortgaged the property to another person. The question to be resolved is whether the prosecution was able to prove beyond reasonable doubt the alleged false representation or false pretense contained in the information. As above explained, the alleged false representation or false pretense made by petitioner to private complainant was that she was still the owner of the property when she sold it to private complainant. To prove such allegation, the prosecution should first establish that the property was previously sold to a third party before it was sold to private complainant. The prosecution utterly failed to do this. The fundamental rule is that upon him who alleges rests the burden of proof. It made this allegation but it failed to support it with competent evidence. Except for private complainant¶s bare allegation that petitioner told her that she (petitioner) sold the property to another person, the records are bereft of evidence showing that the property was indeed previously sold to a third person before it was sold again to private complainant. What was shown by the prosecution and admitted by the defense is the fact that the property is being currently occupied by a person other than private complainant. This fact does not prove that the property was previously sold to another person before being sold again to private complainant. Even assuming arguendo that the property was previously mortgaged, this does not prove that petitioner is no longer its owner when she sold the same to private complainant. At most, it only shows that the property is encumbered and that there was no change in ownership which is contrary to the prosecution¶s claim that there was already a transfer of ownership before the property was sold to private complainant. The prosecution cannot rely on the warranty contained in the Deed of Sale with Assumption of Mortgage that ³the Vendor warrants the Vendee from any lawful claim of whomsoever over the same´ for the reason that the same is not alleged in the Information. This is not part of the charge against petitioner. Petitioner was indicted for making false representations to the private complainant that she is the owner of the property involved when this property was supposedly already sold to another person. The allegations were made pursuant to Section 9, Rule 110 of the Revised Rules of Criminal Procedure. She was not charged with falsely representing to private complainant that the property was not mortgaged or being occupied by a third person. The charge in the information is specific. The charge cannot be broadened to include what is not alleged to the detriment of the petitioner. If this were to be done, the petitioner¶s right to be informed of the nature and cause of the accusation against her would be violated. In Andaya v. People, this Court said: It is fundamental that every element constituting the offense must be alleged in the information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are

substantial matters and an accused¶s right to question his conviction based on facts not alleged in the information cannot be waived. No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.

We are not saying that petitioner did not commit any wrongdoing. There was indeed an injustice committed to private complainant when she was not able to occupy the property she bought from petitioner. The problem, however, is we cannot convict petitioner for an act not alleged in the information. To do so would be violative of the fundamental law of the land. Where the inculpatory facts and circumstances are susceptible of two or more interpretations, one of which is consistent with the innocence of the accused while the other may be compatible with the finding of guilt, the Court must acquit the accused because the evidence does not fulfill the test of moral certainty required for conviction. In the present case, the prosecution, which has the burden to prove beyond reasonable doubt all the essential elements of the felony, failed to discharge this burden. It failed to establish, as alleged in the information, the false representation or false pretense that petitioner supposedly committed; that is, the property in question was previously sold to another person before it was sold to private complainant. With this failure, the presumption of innocence in favor of petitioner prevails and we are thus constrained to render an acquittal. ALL THE FOREGOING CONSIDERED, the petition for review on certiorari is GRANTED. The decision of the Court of Appeals convicting petitioner of Estafa in CA-G.R. CR No. 25540 is REVERSED and SET ASIDE. Petitioner Lilibeth Aricheta is ACQUITTED of said charge on ground of reasonable doubt. No costs. SO ORDERED.

MINITA V. CHICO-NAZARIO Associate Justice

the Presiding Judge of the RTC of Baguio City.versus - CALLEJO. Chairman. SR. G. J. 1975. which was then still a municipality of the Province of Rizal.R. affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City. Feliciano Santos in Makati.* JJ. Eventually. Philippines. Petitioner. 165842 Present: PUNO. MANUEL to Rubylus [Gaña]. . the above-named accused EDUARDO P. being then previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been legally dissolved. in the City of Baguio. as one thing led to another. AUSTRIA-MARTINEZ. 2001.[5] It appeared in their marriage contract that Eduardo was single. Respondent. and was assured by them that their son was still single.: Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.SECOND DIVISION EDUARDO P. did then and there willfully. SR. Eduardo even brought his parents to Baguio City to meet Tina s parents. 26877. assuring her that he was single.. and within the jurisdiction of this Honorable Court. despite Tina s resistance.[4] He met the private complainant Tina B. She stayed in Bonuan. 1996 before Judge Antonio C. Eduardo went to Baguio City to visit her. Branch 3. unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL.. while Eduardo was 39. [3] The prosecution adduced evidence that on July 28. MANUEL.. Eduardo was charged with bigamy in an Information filed on November 7. They were married on April 22. who does not know the existence of the first marriage of said EDUARDO P. 1996. Gandalera in Dagupan City sometime in January 1996. herein complainant. Eduardo was married to Rubylus Gaña before Msgr. they went to a motel where. CR No.R. November 29. convicting Eduardo P. a Computer Secretarial student. 19562-R. the accusatory portion of which reads: That on or about the 22nd day of April. Tina was then 21 years old. J. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. No. Manuel of bigamy in Criminal Case No. Dagupan City for two days looking for a friend. and CHICO-NAZARIO. Branch 61. CONTRARY TO LAW. MANUEL. Promulgated: PEOPLE OF THE PHILIPPINES. Eduardo proposed marriage on several occasions. TINGA. Reyes. . Eduardo succeeded in having his way with her. 2005 x-----------------------------------------------------------------------------------------x DECISION CALLEJO. Afterwards.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract.[7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8] For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.[9] The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo s belief, that his first marriage had been dissolved because of his first wife s 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Peñalosa[11] and Manahan, Jr. v. Court of Appeals.[12] The Office of the Solicitor General (OSG) averred that Eduardo s defense of good faith and reliance on the Court s ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage;

the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainant s knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaña s presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. SO ORDERED.[17] Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONER S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18] The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaña had been absent for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouse s reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a GRO before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioner s conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.[19] The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the impression that in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy. [21] For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.[23] Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense. In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act.[28] He explained that: This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong

hence.[34] For one to be criminally liable for a felony by dolo. ignorance of the law is not an excuse because everyone is presumed to know the law. a felony by dolo (deceit). Under Article II.[36] The prosecution also proved that the petitioner married the private complainant in 1996. The petitioner. it enhances the welfare of the community. . there must be a confluence of both an evil act and an evil intent. in relation to Article 41 of the Family Code. Since a felony by dolo is classified as an intentional felony. as protection from the pains and the consequences of a second marriage. paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996.[30] Although the words with malice do not appear in Article 3 of the Revised Penal Code. a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead. as he had not heard from her for more than 20 years since 1975. As a general rule. it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code. Marriage is a social institution of the highest importance. Thus. The requirement of judicial declaration is also for the benefit of the State. Such judicial declaration also constitutes proof that the petitioner acted in good faith.[35] In the present case. the prosecution proved that the petitioner was married to Gaña in 1975. and if this be produced.evidence. safety. long after the effectivity of the Family Code. and such marriage was not judicially declared a nullity. the State shall protect and strengthen the family as a basic autonomous social institution. cannot be deemed guilty of the crime of bigamy. he could not be held guilty of bigamy in such case. Public policy. good order. [31] Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury. because of the many years that have elapsed since he has had any news of her whereabouts. as a consequence. and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence. the law presumes it to have been intentional. However. the petitioner is charged with bigamy. a felony cannot exist without intent. Ignorantia legis neminem excusat. Section 12 of the Constitution. Actus non facit reum. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. such phrase is included in the word voluntary. Article 3. The phrase or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. he was of the well-grounded belief that his first wife was already dead. however. and would negate criminal intent on his part when he married the private complainant and. mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones. precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. in spite of his endeavors to find her.[29] As gleaned from the Information in the RTC. it is deemed voluntary. the act shall be deemed not to constitute a crime. Indeed. the marriage is presumed to subsist. because there is no fraudulent intent which is one of the essential elements of the crime.[33] Indeed. failed to discharge his burden.[37] The laws regulating civil marriages are necessary to serve the interest. good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law. such defense negates malice or criminal intent. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present.[32] When the act or omission defined by law as a felony is proved to have been done or committed by the accused. nisi mens sit rea.

he shall be presumed dead for all purposes. A person in the armed forces who has taken part in war. Indeed.[39] Only with such proof can marriage be treated as so dissolved as to permit second marriages. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. a judgment of the presumptive death of the absent spouse. easily capable of forensic ascertainment and proof. Article 41 of the Family Code. 391. On marriage. The following shall be presumed dead for all purposes. The petitioner s sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced. an absence of five years shall be sufficient in order that his succession may be opened. and has been missing for four years. it being unknown whether or not the absentee still lives. an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph. Articles 390 and 391 of the Civil Code provide Art. which amended the foregoing rules on presumptive death. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void. are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law. men readily believe what they wish to be true. it being unknown whether or not. The consequences of an invalid marriage to the parties. unless before the celebration of the subsequent marriage. there are three parties to every civil marriage.[43] . To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable. except for those of succession.[41] namely. without prejudice to the effect of reappearance of the absent spouse. but by the subjective condition of individuals. The presumption of death of the spouse who had been absent for seven years. is created by law and arises without any necessity of judicial declaration. the absentee still lives. reads: Art. to innocent parties and to society.[42] However. the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee. or an aeroplane which is missing. After an absence of seven years. but upon certain objective facts easily capable of accurate judicial cognizance. the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. Art. is a maxim of the old jurists. Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties. two willing spouses and an approving State. the parties assume new relations to each other and the State touching nearly on every aspect of life and death.[40] Thus. A person who has been in danger of death under other circumstances and his existence has not been known for four years. not by certain extrinsic facts. 41. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. who has not been heard of for four years since the loss of the vessel or aeroplane. If he disappeared after the age of seventy-five years.In a real sense. 390. including the division of the estate among the heirs: (1) (2) (3) A person on board a vessel lost during a sea voyage. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code.

it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage.[44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. (b) the spouse present has a well-founded belief that the absent spouse is already dead. 1937. unnecessary. Thus. the courts are authorized to declare the presumptive death of a person after an absence of seven years. because he or she had been unheard from in seven years. the following conditions must concur. or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance. The Court reiterated its rulings in Szatraw. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken. In Gue v. and that proof of actual death of the person presumed dead being unheard from in seven years. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act. Calisterio:[46] In contrast. Republic of the Philippines. He opined that such provision presupposes that. subject to contrary proof. this Court ruled in Jones v. As explained by this Court in Armas v. for purposes of the marriage law. For the celebration of civil marriage. and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings. Hortiguela[47] that. In Lukban v. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41.[45] without prejudice to the effect of the reappearance of the absentee spouse. before the spouse present may contract a subsequent marriage. that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[50] The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. As early as March 6. would have to be made in another proceeding to have such particular fact finally determined. under Article 390 of the Civil Code. a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. in relation to Article 40. viz. He maintains that the supposition is not true. that the spouse present does not know his or her former spouse to be living. however. being a presumption juris tantum only. Lukban and Jones.[51] the Court declared that the words proper proceedings in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. The Court rejects petitioner s contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code.[53] A second . cannot reach the stage of finality or become final. of the Family Code. the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage.With the effectivity of the Family Code. superfluous and of no benefit to the petitioner.: (a) The prior spouse of the contracting party must have been absent for four consecutive years.[49] the Court declared that a judicial declaration that a person is presumptively dead. he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse. then a petition for such a declaration is useless. Former Chief Justice Ramon C. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. unlike the old rule.[52] the Court rejected the contention of the petitioner therein that. in order that a subsequent bigamous marriage may exceptionally be considered valid. under the 1988 Family Code. and (c) there is. Republic of the Philippines. for such presumption is still disputable and remains subject to contrary proof. the subsequent marriage is bigamous. Aquino was of the view that the provision of Article 349 or before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous and should be considered as not written.[48] In In Re Szatraw.

without prejudice to the latter s reappearance. on the other hand. appears to have been set to rest by Article 41 of the Family Code. however. which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry. which could then be made only in the proceedings for the settlement of his estate. even if it be annullable. otherwise. The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again. was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code. thus. likewise.[57] Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage. there is bigamy. the good faith of the present spouse in contracting a second marriage is already established. the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage. He says judicial declaration of presumptive death is now authorized for purposes of remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee.marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present. there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee. in some cases where an absentee spouse is believed to be dead. Affidavits will suffice. should not give rise to bigamy. it was held that the remarriage of the other spouse is bigamous even if done in good faith. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. Regalado. he cannot be convicted of the crime.[54] Former Senator Ambrosio Padilla was. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead. he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee.[61] Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code. an eminent authority on Criminal Law.[59] According to Retired Supreme Court Justice Florenz D. With the new law. conflict with Art.[60] Before such declaration. Reyes. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. there must be a judicial declaration of presumptive death. even if the present spouse is later charged with bigamy if the absentee spouse reappears. the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead. the weight of authority is that the clause before the absent spouse has been declared presumptively dead x x x should be disregarded because of Article 83. which. if not illegal. He posits that a second marriage. of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree. As explained by former Justice Alicia Sempio-Diy: Such rulings. where the ordinary rules of procedure in trial will not be followed. in a case where a spouse is absent for the requisite period.[55] Former Justice Luis B.[62] .[58] Of the same view is former Dean Ernesto L. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee.[56] The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code. paragraph 3 of the Civil Code. the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy. Dean Pineda further states that before. in that. Under Article 238 of the Family Code. a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code. a second marriage in good faith will not constitute bigamy. with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. however.

The OSG. (5) Illegal or arbitrary detention or arrest. and fourth. second. The spouse. por consiguiente. descendants. mental or psychological. third. (3) Seduction. the petitioner maintains. moral shock. 3 of this article. (2) Quasi-delicts causing physical injuries. 5 and 7 of the Civil Code and analogous cases.On the second issue. The parents of the female seduced. sin incluir en esta enumeración el delito de bigamia. y otros actos lascivos. 9 of this article in the order named. The appellate court ruled that it is not bound by the following ruling in People v. avers that the CA was not bound by its ruling in People v. likewise. Rodeo. (9) Acts mentioned in article 309.[66] Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219. and bigamy is not one of them.. 4. No existe. 3. Moral damages may be recovered in the following and analogous cases. wounded feelings. 30. 2219. abduction. or other lascivious acts. The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. moral damages may be recovered if they are the proximate result of the defendant s wrongful act or omission. rapto.. referred to in No.00 arriba mencionados.000. Pero si en dichos asuntos se adjudicaron daños.[65] An award for moral damages requires the confluence of the following conditions: first. Bondoc. Moral damages include physical suffering. . may also recover moral damages.[63] where an award of moral damages for bigamy was disallowed. serious anxiety. Though incapable of pecuniary computation. and brothers and sisters may bring the action mentioned in No.: Art. adulterio o concubinato. 27. or abused. The petitioner asserts that the appellate court failed to apply its ruling in People v. clearly sustained by the claimant. faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code. social humiliation. base legal para adjudicar aquí los daños de P5. mental anguish. 32.[64] The OSG posits that the findings and ruling of the CA are based on the evidence and the law. 26. the petitioner. the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code. 28. ascendants. The Court rules against the petitioner. rape. ello se debió indedublamente porque el articulo 2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de estupro. (6) Illegal search. likewise. it is not proscribed from awarding moral damages against the petitioner. violación. 34 and 35. slander or any other form of defamation. (1) A criminal offense resulting in physical injuries. the private complainant failed to adduce evidence to prove moral damages. (10) Acts and actions referred to in articles 21. (8) Malicious prosecution. abducted. raped. (7) Libel. there must be culpable act or omission factually established. fright. whether physical. besmirched reputation. and similar injury. 29. (4) Adultery or concubinage. viz. there must be an injury. the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant. In any case. paragraphs 1. Bondoc: .

the private complainant had no inkling that he was already married to another before they were married. Thus. This provision contains what is commonly referred to as the principle of abuse of rights. wounded feelings. as in form. absent physical injuries. and mental anguish are not recoverable where the actor is simply negligent. On the other hand. give everyone his due. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another. moral shock. he maintained the appearance of being a lawful husband to the private complainant. 20 and 21 of the Civil Code. See . etc. attributes and support of a single man she could have married lawfully and endured mental pain and humiliation.Thus. in Morris v. a legal wrong is thereby committed for which the wrongdoer must be responsible. but a continuous series of acts. in other respects. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Article 20 provides that every person who. According to Article 19. being bound to a man who it turned out was not her lawful husband. the private complainant agreed to marry the petitioner. Article 21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals. humiliation. The latter provision is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless. proportion. the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19. Nevertheless. Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case. give everyone his due. good customs or public policy shall compensate the latter for damages. bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. and sets certain standards which must be observed not only in the exercise of one s rights but also in the performance of one s duties. That she did not sustain any physical injuries is not a bar to an award for moral damages.)[68] Indeed. during and after his marriage with the private complainant were willful. (b) exercised in bad faith. willfully or negligently causes damage to another shall indemnify the latter for the same. social humiliation and similar injury arising out of an act or omission of another.[71] In the present case. The standards are the following: act with justice.[72] The Court rules that the petitioner s collective acts of fraud and deceit before. Day by day. the private complainant was an innocent victim of the petitioner s chicanery and heartless deception. and observe honesty and good faith. Indeed. an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. relation. the petitioner courted the private complainant and proposed to marry her. and (c) for the sole intent of prejudicing or injuring another. and observe honesty and good faith. She lived with the petitioner and dutifully performed her duties as his wife.[70] If the provision does not provide a remedy for its violation. every person must. corresponds to some others or resembling. believing all the while that he was her lawful husband. contrary to law. lost the consortium. deliberate and with malice and caused injury to the latter. besmirched reputation. there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance. in the exercise of his rights and in the performance of his act with justice. the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish. Macnab.[69] Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. who even stated in the certificate of marriage that he was single. damages for shame. moral anxieties. The elements for abuse of rights are: (a) there is a legal right or duty. He assured her that he was single. otherwise. fright. Thus. even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. the fraud consisting not of a single act alone. who changed her status from a single woman to a married woman. For two years or so until the petitioner heartlessly abandoned her.[73] the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that.

Local 24. even considerations of public policy would not prevent her from recovery. and that she does not base her cause of action upon any transgression of the law by herself. humiliation. 1953)..) 819. A. Larson v. 2 Harper & James.000 punitive damages on the first count. but which is in fact a criminal offense. etc. Besides.J. [1899] 1 Q. Burrows v. The criminal relations which followed. Dec. Riley. but rather that it might be a ground for enhancing her damages. at p. Furthermore. 591. 33 L. 324. Cooper. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude. McMillan. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Note. at p. 747.2d 833 (App. 70 Harv.. L. CF. 150 Mich.R. Rep. Kuzma v. Div.A. Ct. but was willfully and maliciously wrongful. and mental anguish for the plaintiff. No just basis appears for judicial interference with the jury s reasonable allowance of $1. Thatcher. recovery may be had for the ordinary. 38. 829.W. 17 L. had terrific headaches and lost quite a lot of weight. Evergreen Cemetery Co. See Spiegel v. humiliation. But the authorities all recognize that where the wrong is willful rather than negligent. in consequence of such misrepresentation. 147 Mass. Blossom v. 892. 17 N. and proximate consequences though they consist of shame. Rhodes. 1936). supra. 411. Local 24. Millinery Workers. 114 N. 8 Am. and mental anguish. Torts. he believes to be neither illegal nor immoral. Kuzma v Millinery Workers. (N. 117 A. The plaintiff testified that because of the defendant s bigamous marriage to her and the attendant publicity she not only was embarrassed and ashamed to go out but couldn t sleep but couldn t eat. Here the defendant s conduct was not merely negligent.E. 27 N. innocently on her part. supra. St. 9 Am. 626. Rawson.R. 517 (1957). 579. 1031 (1956). whereby the plaintiff was induced to marry him. 68 Vt. 33 A. Because the private complainant was an innocent victim of the petitioner s perfidy. 186 A 585 (Sup. Prosser. See Spiegel v. 102 Mass. he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. 336. Damages for such an injury were held to be recoverable in Sherman v. Wegner.2d 298 (App. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action. 94. 170 P.[74] 1955). gave her a remedy in tort for deceit. Exemplary Damages in the Law of Torts. 97 Am. supra. 224. 117 NJL 90. 339. Evergreen Cemetery Co. good morals and the interest and general welfare of society. in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendant s misrepresentation. Morril v. natural. It was bound to result in shame. Such considerations . Rev. 180. 395 and Kelley v. Super 249. 37 N.S. 106 Mass. Barrett. 816.J. The Court thus declares that the petitioner s acts are against public policy as they undermine and subvert the family as a social institution. Groswald:[75] Where a person is induced by the fraudulent representation of another to do an act which. In Cooper v. 434. were but one of the incidental results of the defendant s fraud for which damages may be assessed. 370. 721.. 37 N. supra.. 99 A. the court said that a false representation by the defendant that he was divorced from his former wife.Prosser. As held in Jekshewitz v. 1. Div. See Cabakov v. Sears v. 343. and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. Super. she is not barred from claiming moral damages. Palmer.B. Rep. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious.Y. 388. 99 Wash. that her illegal action was induced solely by the defendant s misrepresentation. etc.

SO ORDERED. 257 Mass. 520.00 for moral damages to be just and reasonable. 251.000. Associate Justice . R. Cantor. L.[76] Considering the attendant circumstances of the case. 49 A. the petition is DENIED.E. 958. SR. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. IN LIGHT OF ALL THE FOREGOING. 518. 154 N.distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. the Court finds the award of P200. ROMEO J. CALLEJO.

J. or more commonly known as technical malversation. Philippine Currency. Abdulla is now before this Court on petition for review under Rule 45.. to the damage and prejudice of public service. conspiring and confederating with MAHMUD I. as follows: WHEREFORE. Chairman SANDOVAL-GUTIERREZ. of the Sulu State College. Along with Nenita Aguil and Mahmud Darkis.000. premises considered. Accused Norma Abdulla is hereby convicted of the crime charged and is hereby meted a fine of three thousand pesos. accused Mahmud Darkis and Nenita P. pursuant to the second paragraph of Article 220 of the Revised Penal Code. Respondent. Petitioner.00). J. 23261 of the crime of illegal use of public funds defined and penalized under Article 220 of the Revised Penal Code. did then and there willfully. appellant was charged under an Information which pertinently reads: That on or about November. Promulgated: PEOPLE OF THE PHILIPPINES. apply for the payment of wages of casuals. CORONA. She . JJ. both public officers. ABDULLA and NENITA P. Sulu. respectively. Only appellant was found guilty and sentenced by the Sandiganbayan in its decision[2] dated August 25. without lawful authority. NO. which amount was appropriated for the payment of the salary differentials of secondary school teachers of the said school. and as such by reason of their positions and duties are accountable for public funds under their administration. Nenita Aguil and Mahmud Darkis. being then the President and cashier. ABDULLA. The cash bond posted by each of the said accused for their provisional liberty are hereby ordered returned to each of them subject to the usual auditing and accounting procedures. 150129 Present: . and GARCIA.NORMA A. 1989 or sometime prior or subsequent thereto. unlawfully and feloniously. appellant Norma A. G.versus PANGANIBAN. Appellant¶s co-accused. Case No. the amount of FORTY THOUSAND PESOS (P40.R. in Jolo.2000). AGUIL. CONTRARY TO LAW. being then the Administrative Officer V of the said school. also a public officer. CARPIO MORALES. 2005 x--------------------------------------------------------------------------------------DECISION GARCIA. Philippines and within the jurisdiction of this Honorable Court. were both acquitted. while in the performance of their functions. 2000 (promulgated on September 27. DARKIS.: Convicted by the Sandiganbayan[1] in its Crim. the above-named accused: NORMA A. Aguil are hereby acquitted of the crime charged. April 6.

the last paragraph of said decision shall read as follows: Accused Abdulla is hereby convicted of the crime charged and is hereby meted a fine of three thousand pesos. Region IX.is further imposed the penalty of temporary special disqualification for a period of six (6) years.[3] Still dissatisfied. 2000. Upon motion for reconsideration. Sandra Gopez dated February 9. 1989. SO ORDERED. now before this Court. Fund Source lump-sum appropriation authorized on page 370 of RA 6688 and the current savings under personal services. is hereby amended to the effect that the penalty of temporary special disqualification for six (6) years is hereby cancelled and set aside. and B C C-1 D E . Carague to the President of the Sulu State College dated October 30. Motion filed by the accused through Atty. The entry appearing in Exhibit C which reads: Purpose release partial funding for the conversion of 34 Secondary School Teacher positions to Instructor I items. from the Office of the Special Audit Team. pursuant to the second paragraph of Article 220 of the Revised Penal Code. the Sandiganbayan amended appellant¶s sentence by deleting the temporary special disqualification imposed upon her. The record shows that the prosecution dispensed with the presentation of testimonial evidence and instead opted to mark in evidence the following exhibits: EXHIBITS A DESCRIPTION Audit Report which is denominated as Memorandum of Commission on Audit. She shall also pay the costs of the suit. thus: Premises considered. Zamboanga City. COA. She shall also pay the costs of the suit. 1992. persistently pleas innocence of the crime charged. 1997 consisting of two (2) pages appearing on pages 225 to 226 of the record. SO ORDERED. the decision of this Court dated August 25. Hence. dated May 8. Certified copy of the DBM Advice of Allotment for the Year 1989. 1998 found on pages 382-a and 382-b of the records of this case. Manifestation filed by accused Norma Abdulla herself dated November 24. Certified Xerox copy of a letter from the Department of Budget and Management through Secretary Guillermo N. consisting of nine (9) pages. appellant.

1st par. hearing of September 23. Jolo.) and the Joint Resolution of the Office of the Ombudsman. that out of the thirty-four (34) secondary school teachers. 1. 1998. twenty-eight (28) were already holding the position of Secondary School Teacher III receiving the salary of Instructor I. who was the College President. only the six (6) teachers were entitled and paid salary differentials amounting to P8. In this recourse. pp. and Gerardo Concepcion. Exhibits `7 to `12. the notarized audit investigation report (Exhibit `A. 9. consisting of three (3) pages. Exhibits `1 to `6. 6688 [should be page 396 of RA 6688 (General Appropriations Act January 1 December 31. tsn.A. 1998. Accused Abdulla was able to sufficiently justify the payment of the salary differentials of only six (6). pp. 1998.00. and that the amount of P31. The undisputed facts. accused Mahmud Darkis. through its former president. Regional Office No. out of the thirty-four (34) teachers. 1989)] and the current savings under personal services of said school (Exhibits `B. tsn. 13). was approved by the Department of Budget and Management (DBM). was used to pay the terminal leave benefits of the six (6) casuals (Exhibits `D and `E. p. was the allotment by the DBM of the partial funding for the purpose of paying the salary differentials of the said thirty-four (34) secondary school teachers in the amount of forty thousand pesos (P40. inclusive. Director IV and Head of the Department of Budget and Management. 1998.516. who was the Administrative Officer of Sulu State College. as found by the Sandiganbayan itself: The evidence on record xxx show that the request for the conversion of thirty-four (34) secondary school teachers to Instructor I items of the Sulu State College. with the admission thereof by the court. tsn. and. 13 and 34. The defense proceeded to adduce its evidence by presenting four (4) witnesses. appearing in pages 383 to 385 of the record. pp. Mindanao (Exhibit `14-a ). hearing of September 23. Exhibit `18. appellant questions the judgment of conviction rendered against her. p.00 allotment. as the twenty-eight (28) teachers. that consequent to the approval of the said request.16. pp. `C and `C-1. Jr. 10-11). taken from the remaining balance of the P40. hearing of September 22. and that the remaining six (6) were still holding Secondary Teacher II positions and therefore receiving a salary lower than that of Instructor I so they were paid salary differentials (tsn. 4. accused Nenita Aguil. hearing of September 23. when she testified that out of the thirty-four (34) teachers. hearing of September 22. 1998. claiming that the Sandiganbayan erred: I XXX ON A QUESTION OF LAW IN INVOKING THE PRESUMPTION OF UNLAWFUL INTENT DESPITE EVIDENCE TO THE CONTRARY. namely. 8.000. pp. Zamboanga City. the Cashier of the same College. tsn. Sulu. pp. 6 to 25 and 26). accused Abdulla. 1998. 32-35. 4.000. appellant Norma Abdulla herself. II . p. par.F Prosecution s Opposition to the motion marked as Exhibit E dated February 11.00) sourced from the lump sum appropriation authorized on page 370 of R. 6 to 8. rested its case.370. who were occupying Teacher III positions. also point that said act of the accused is justified. Exhibit `14-A. inclusive. the prosecution immediately made its Formal Offer of Evidence. In fact. 10 and 11). tsn. 1998. were no longer entitled to salary differentials as they were already receiving the same salary rate as Instructor I (Exhibit `A.[4] Thereafter.. hearing of September 22.

And recognizing the primacy of the right. All doubts must be resolved in favor of the accused. or even any testimony.XXX ON A QUESTION OF LAW IN HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE THAT PETITIONER COMMITTED TECHNICAL MALVERSATION UNDER ARTICLE 220 OF THE REVISED PENAL CODE . would have already passed sentence against the accused. WHEREFORE. that quantum of proof has not been satisfied. of the Regional Trial Court of Camiling. Hence. that an act was done should never be hastily accepted as proof that it was really done. is REVERSED and SET ASIDE. we must declare both appellants not guilty and set them free. We are unable to accept as sufficient the quantum of proof required to convict appellant of rape based on the alleged victim s sole testimony. But. we are unable to accept the lower court s conclusion to convict appellant. she showed unnecessary dependence on her mother when identifying the father of her child. Perforce. But with seeds of doubt planted in our minds by unexplained circumstances in this case. So precious to her is the constitutional right of presumption of innocence unless proven otherwise that appellant came all the way to this Court despite the fact that the sentence imposed upon her by the Sandiganbayan was merely a fine of three thousand pesos. That her mother had to be ordered by the judge to go outside the courtroom impresses us as significant. In the words of People vs. An allegation. in dubilis reus est absolvendus. the Court had to acquit an accused charged of rape in People vs. Here. sometimes judges too. but though a credible witness despite her mental retardation. . In a judgment of acquittal in favor of two (2) accused charged of murder in People vs. people s minds. in dubilis reus est absolvendus.[5] the Court wrote: We are enraged by the shocking death suffered by the victim and we commiserate with her family. it has often happened that at the commencement of a trial. All doubts must be resolved in favor of the accused. The Court¶s faithful adherence to the constitutional directive imposes upon it the imperative of closely scrutinizing the prosecution¶s evidence to assure itself that no innocent person is condemned and that conviction flows only from a moral certainty that guilt has been established by proof beyond reasonable doubt. this Court. has invariably resolved it in favor of an accused. with no imprisonment at all. Tarlac. We cannot in conscience accept the prosecution s evidence here as sufficient proof required to convict appellants of murder. Appellant RUBEN LUMIBAO is ACQUITTED of the charge of rape on reasonable doubt. 2000. Pascua[7]: Our findings in the case at bar should not create the mistaken impression that the testimonies of the prosecution witnesses should always be looked at with askance. we are unable to accept the lower court s conclusion to convict appellants. the assailed decision dated May 26. here we must reckon with a dictum of the law. Nowhere is this rule more compelling than in a case involving the death penalty for a truly humanitarian Court would rather set ten guilty men free than send one innocent man to the death row. Proof must be closely examined under the lens of a judicial microscope and only proof beyond reasonable doubt must be allowed to convict. The Court grants the appeal. where doubt exists. Branch 68. here we must fall back on a truism of the law. His conviction is founded on the sole testimony of Agnes. Maternal coaching taints her testimony. Abujan. Hence. What we are driving at is that every accused is presumed innocent at the onset of an indictment. Similarly. De Jesus[6] on ground of reasonable doubt. to wit: With seeds of doubt planted in our minds by the conduct of proceedings on record.

52. Sia Tioan. McBrayer. provides. In People vs.[9] the Court held: The intent to kill is likewise presumed from the fact of death.G. attention is invited to pertinent law and rulings of the Supreme Court on the matter. 17 Phil. CA 53 O. Hermenigildo Bautista. the procedural rule relied upon does not apply at all to this case. intent to kill is conclusively presumed. (Emphasis supplied). intent to gain or animus lucrandi is presumed when one is found in possession of stolen goods precisely because the taking of another¶s property is an unlawful act. dolo may be inferred from the unlawful act. 496). 25 Phil. 54 Phil. For sure. in a Resolution penned by Justice Romeo Callejo. The Court must have to part ways with the Sandiganbayan in its reliance on Section 5 (b) of Rule 131 as basis for its imputation of criminal intent upon appellant. Rule 131 of the Rules of Court. Similarly. Rules of Court. Gemoya. Hence. Rule 131).G. is present. So it is that in People vs. If the act is criminal. 935. in People vs. 5[b]. Cueto. the presumption that the unlawful act of the accused was done with criminal intent had been satisfactorily proven by the prosecution (Sec. Sec. ruled in a Resolution[8] promulgated on September 17. as follows: Anent the allegation of the movant/accused that good faith is a valid defense in a prosecution for malversation as it would negate criminal intent on the part of the accused which the prosecution failed to prove. it is properly presumed that they were committed with full knowledge and with criminal intent. the Supreme Court ruled that `When it has been proven that the appellants committed the unlawful acts alleged. 106 Phil.[11] the Court held: . criminal intent was presumed. [10] the Court en banc categorically stated: If the victim dies because of a deliberate act of the malefactor. Further. Sr. although the offender was honestly mistaken as to the meaning of the law which he had violated (State vs. 634. 580. then criminal intent is presumed (Francisco y Martin. In her first assigned error. Reyes. invoking Section 5 (b). 30 Phil. 2001. When she raised this issue in her Motion for Reconsideration before the Sandiganbayan. appellant contends that the prosecution failed to adduce evidence to prove criminal intent on her part. unless the accused proves by convincing evidence that any of the justifying circumstances in Article 11 or any of the exempting circumstances in Article 12. In several cases (Tria. and it is done by a person. 139). `and it is incumbent upon them to rebut such presumption. clear it is from its very language that the disputable presumption of the existence of unlawful or criminal intent presupposes the commission of an unlawful act. `That an unlawful act was done with an unlawful intent. both of the Revised Penal Code. Thus. Cubelo. 98 NIC 619. 303. 5(b) of the Rule 131. that court. 38 Phil. In fact. intent to kill is presumed when the victim dies because the act of killing clearly constitutes an unlawful act. the same court also ruled that when the law plainly forbids an act to be done.We shall now assay appellant¶s guilt or innocence in the light of the foregoing crucibles. 5th Supp. Ballesteros. 1450). the law implies the guilty intent. Delim. Hence. inasmuch as the prosecution had proved that a criminal act was committed by the accused under Article 220 of the Revised Penal Code. Sing Cong Bieng and Co Kong. In the case at bar. The accused did not present any evidence to prove that no such criminal intent was present when she committed the unlawful act of technical malversation. 577. CA 40 O. Indeed.

not even for the purpose of identifying and proving the authenticity of the documentary evidence on which it rested its case. In the absence of any presumption of unlawful intent. an accused need not even offer evidence in his behalf. this Court has no basis to affirm appellant¶s conviction. Thus. The Court notes the odd procedure which the prosecution took in discharging its undertaking to prove the guilt of appellant beyond reasonable doubt. nisi mens sit rea.[13] The Sandiganbayan¶s improper reliance on Sec.Accused-appellant s contention that the animus lucrandi was not sufficiently established by the prosecution is devoid of merit. The prosecution definitely failed to prove unlawful intent on the part of appellant. Here. be accompanied by a criminal intent. the act of taking the victim s wristwatch by one of the accused Cergontes while accused-appellant Reyes poked a knife behind him sufficiently gave rise to the presumption. 5(b) of Rule 131 does not save the day for the prosecution¶s deficiency in proving the existence of criminal intent nor could it ever tilt the scale from the constitutional presumption of innocence to that of guilt. intent to gain or animus lucrandi may be presumed from the furtive taking of useful property pertaining to another. except in certain crimes made such by statute. unless special circumstances reveal a different intent on the part of the perpetrator. Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. to constitute a crime. and the general rule is that if it is proved that the accused committed the criminal act charged. appellant cannot be said to have committed an unlawful act when she paid the obligation of the Sulu State College to its employees in the form of terminal leave benefits such employees were entitled to under existing civil service laws. The intent to gain may be presumed from the proven unlawful taking. The presumption of criminal intent will not. In the absence of criminal intent. It is pertinent to note the high priority which laborers wages enjoy as claims against the employers funds and resources. In the case at bar. A judgment of conviction must rest on nothing less than moral certainty. the burden of proving by competent evidence that appellant¶s act of paying the terminal leave benefits of employees of the Sulu State College was done with criminal intent rests upon the prosecution. the prosecution did not present any single witness at all. This calls to mind the oft-repeated maxim `Actus non facit reum. There must be moral certainty in an unprejudiced mind that it was accused-appellant who committed the crime. the act must. And when the prosecution fails to discharge its burden of establishing the guilt of an accused. It is thus required that every circumstance favoring his innocence must be duly taken into account. It is true that a presumption of criminal intent may arise from proof of the commission of a criminal act. which expounds a basic principle in criminal law that a crime is not committed if the mind of the person performing the act complained of be innocent. it will be presumed that the act was . As it is. Settled is the rule that conviction should rest on the strength of evidence of the prosecution and not on the weakness of the defense. however.[12] the Court reversed a conviction for technical malversation of one who paid out the wages of laborers: There is no dispute that the money was spent for a public purpose payment of the wages of laborers working on various projects in the municipality. automatically apply to all charges of technical malversation because disbursement of public funds for public use is per se not an unlawful act. The weakness of the defense does not relieve it of this responsibility. x x x. Absent this required quantum of evidence would mean exoneration for accused-appellant. Although proof of motive for the crime is essential when the evidence of the robbery is circumstantial. Thus. The proof against him must survive the test of reason and the strongest suspicion must not be permitted to sway judgment. in a similar case.

by Function/Project Current Operating Expenditures ----------------------------------Maintenance and Other . 4. Neither can it be categorized as malum prohibitum. [16] She argued that the public funds in question. 3. having been established to form part of savings.994. which are: 1. the act is not criminal. The Court finds merit in appellant¶s submission.[14] The second assigned error refers to the failure of the prosecution to prove the existence of all the essential elements of the crime of technical malversation defined in Article 220 of the Revised Penal Code.[17] The pertinent portions of RA 6688 are reproduced hereunder: K. That the offender is a public officer.2 Sulu State College For general administration. higher education and secondary education services. [15] Appellant contends that the prosecution was unable to prove the second and third elements of the crime charged. were sourced from the ³lump sum appropriation´ authorized on page 370 (should be page 396) of R. the amount of forty thousand pesos (P40.000 New Appropriations. But it must be borne in mind that the act from which such presumption springs must be a criminal act In the case at bar. the mere commission of which makes the doer criminally liable even if he acted without evil intent.00) originally intended to cover the salary differentials of thirty four (34) secondary school teachers whose employment status were converted to Instructor I. That such public fund or property has been appropriated by law or ordinance. 6688 and the current savings under personal services of said school.A. As found by the Sandiganbayan no less..done with criminal intention and that it is for the accused to rebut this presumption. administration of personnel benefits. had therefore ceased to be appropriated by law or ordinance for any specific purpose.000. P 17. That there is public fund or property under his administration. That he applies the same to a public use other than that for which such fund or property has been appropriated by law or ordinance. 2. including locally-funded project as indicated hereunder . salary standardization.

801. Secondary Education Services Total. Functions 608.873.000 608.612.000 ----------------- 3.967.000 57.000 P P 2.000 P 1.000 ----------------- B.000 ----------------- . Rehabilitatio n or Renovation of Buildings and Structures.000 2. General Administrati on and Support Services 2.000 ----------------2.544.612. Salary Standardizat ion 4.372.605.196.000 ------------------ 8.000 -----------------6.000 P 1. and Acquisition of ------------------ ----------------- 8.000 ----------------9.382.000 577. Construction .000 ------------------ 736.509.636. LocallyFunded Project 1.000 1.000 57.000 2.Personal Services -------------------- Operating Expenses ------------------- Capital Outlays ------------------- Total ------------------- A. Acquisition and Improvemen ts of Lands. Functions 1. Higher Education Services 5. Administrati on of Personnel Benefits 3.

148 146 4.G. Contributions Medicare Premiums Merit Increases Salary Standardization Bonuses and Incentives Others Total Other Compensation O1 Total Personal Services 185 1.873.000. The third element of the crime of technical malversation which requires that the public fund used should have been appropriated by law.994.000 ========== xxx New Appropriations. Sulu State College P 6.873 The Court notes that there is no particular appropriation for salary differentials of secondary school teachers of the Sulu State College in RA 6688. the absence of any law or ordinance appropriating the CRBI fund for the concreting of Barangay Jalung Road).00) allotment for payment of salary differentials of 34 secondary school teachers is not an ordinance or law contemplated in Article 220 of the Revised Penal Code.000 ========== P 8. for the payment of wages of laborers working on projects other than the Barangay Jalung Road) will not make the accused guilty of violation of Article 220 of the Revised Penal Code.579 6. is therefore absent. Functions/Locally-Funded Project Current Operating Expenditures Personal Services xxx xxx Total Salaries of Permanent Personnel Total Salaries and Wages of Contractual and Emergency Personnel Total Salaries and Wages 4. The Court has unequivocably ruled in Parungao vs.292 44 35 18 20 37 511 437 2. Sandiganbayan[18] that in the absence of a law or ordinance appropriating the public fund allegedly technically malversed (in that case.I.B.612.Equipment Total New Appropriatio ns. The authorization given by the Department of Budget and Management for the use of the forty thousand pesos (P40.000 ========== P 2. by Object of Expenditures (In Thousand Pesos) A. the use thereof for another public purpose (there.294 Other Compensation Honoraria and Commutable Allowances Cost of Living Allowances Employees Compensation Insurance Premiums Pag-I.509. .000 ========== P17.

23261 are REVERSED and SET ASIDE and appellant ACQUITTED of the crime charged against her.000. the appealed decision and resolution of the Sandiganbayan in Criminal Case No. No. for the payment of the terminal leave benefits of other school teachers of the Sulu State College. is ordered returned to her subject to the usual auditing and accounting procedures. cannot be held guilty of technical malversation in the absence. July 31. as here.R.Appellant herein. Acquittal is thus in order.00) released by the DBM for salary differentials. Accordingly. of any provision in RA 6688 specifically appropriating said amount for payment of salary differentials only. who used the remainder of the forty thousand pesos (P40. 2008] . The cash bond posted by appellant for her provisional liberty. if any. GARCIA Associate Justice THIRD DIVISION [G. CANCIO C. WHEREFORE. In fine. 180425. SO ORDERED. the petition is hereby GRANTED. the third and fourth elements of the crime defined in Article 220 of the Revised Penal Code are lacking in this case.

: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Court of Appeals (CA) Decision[1] in CA-G. wherein petitioner Felix Rait was convicted of attempted rape. at 2:00 o'clock in the morning. When she was there. Macasandig. wilfully (sic). accused FELIX RAIT is sentenced to an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period as the minimum to PRISION MAYOR in its medium period as the maximum under the same law. removing her panty. CR No. another neighbor. confederating together and mutually helping one another. Petitioner then forcibly inserted his finger into her vagina. directly by overt acts. 2007. Rait and Pitago were charged in an Information. touching her breasts. AAA was accompanied by her brother and stepmother to Operation Kahusay ug Kalinaw to report the incident.FELIX RAIT. they went to the Provincial Hospital for AAA to undergo medical examination. when Aurora Raez. Branch 20. On November 18. unlawfully and feloniously commence the commission of the crime of Rape. he tried to beat petitioner with a stick but the latter ran away. the above-named accused. by reason of some cause other than his own spontaneous desistance.[6] They then proceeded to the police station where the incident was recorded on the police blotter under Entry No. which reads: That on or about November 19. After drinking a glass of beer. this court hereby finds the accused Felix Rait guilty beyond reasonable doubt of the crime of Attempted Rape. Philippines and within the jurisdiction of this Honorable Court. Applying the Indeterminate Sentence Law. . premises considered. Accused herein is further ordered to pay the complainant the sum of P20. her brother requested her to buy cigarettes from a nearby store. on the person of a [17-year-old] minor. of November 19. Cagayan de Oro City. She initially refused.000. that in when (sic) offended party was able to kick them and the two ran away.m. AAA and her brother then went home to their parents' house in Tambo. more or less (sic) at Nazareth.000. PETITIONER. The Court of Appeals upheld the Decision[3] of the Regional Trial Court (RTC) of Cagayan de Oro City. but did not perform all the acts of execution which would produce the crime of Rape. The basic penalty for Attempted Rape under Article 335 is two degrees lower than Reclusion Perpetua or Prision Mayor in its full extent.R. 2003. with force and against the latter's will while she was in a state of intoxication. However. did then and there. the accused is entitled to a penalty lower to (sic) Prision Mayor or that of Prision Correccional in its full extent. AAA tried to shout for help but petitioner covered her mouth while Pitago held her feet. The accused is entitled to his credit in full (sic) in his favor the period during which he was under preventive imprisonment pending litigation. VS. joined them. 1993. When she was feeling weak. At about 3:00 a. [AAA]. Her brother went out to find petitioner. After trial. THE PEOPLE OF THE PHILIPPINES RESPONDENT. From there. RESOLUTION NACHURA. P5. When AAA's brother did find petitioner. (sic) hence. Contrary to and in violation of Article 335 in relation to Article 6. petitioner and his co-accused brought her out to 20th and 21 st Streets where the petitioner and his co-accused brought her to the side of the street and forcibly removed her pants and underwear. J. 1994. petitioner Rait and one Janiter Pitago arrived. They also went to Bombo Radyo to appeal for help in apprehending petitioner. The two ordered beer and invited AAA to join them. AAA [4] asked permission from her parents to go to her brother's house in Nazareth Street to get her athletic pants.[7] On May 26. conspiring. 2006 and its Resolution[2] dated October 10. she became drunk. Petitioner was on top of her and about to insert his penis into her vagina but she was able to kick both men and run away. AAA was forced to drink beer.[5] AAA then went to her brother's house and related the incident to him. While in the store. of the Revised Penal Code. 8085.00 pesos (sic) for actual damages and expenses and to pay the costs. the RTC rendered a Decision. holding her feet (by Janiter Pitago) and lying on top of her (by Felix Rait). the dispositive portion of which reads: WHEREFORE. by then and there (sic). Cagayan de Oro City and told them what happened.00 pesos (sic) as indemnity for Attempted rape to the complainant (sic). 23276 dated January 26.

Lamahang." Absent the unavoidable connection. which if carried out to its complete termination following its natural course. petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. and (3) in finding petitioner guilty beyond reasonable doubt of the crime of attempted rape despite the failure of the prosecution to prove his guilt. more than a mere planning or preparation. For what reason petitioner wanted the complainant unconscious. accused was convicted of attempted rape. constitutes an overt act of rape.e.SO ORDERED. In this case. Jr.[9] The CA denied the appeal and affirmed the trial court's ruling in all respects.. are conclusive upon this Court. concrete offense. If he is to be found guilty of any offense. The petition is bereft of merit. like the logical and natural relation of the cause and its effect. the findings of fact of the trial court. Recto in People vs. that which is the beginning of the execution of the offense by overt acts of the perpetrator. We are bound by such finding. i. Overt or external act has been defined as some physical activity or deed . (2) in not finding that petitioner was implicated in the case by reason of spite and vengeance. especially when affirmed by the CA. Upon review. stated that " the attempt which the Penal Code punishes is that which has a logical connection to a particular. leading directly to its realization and consummation. Petitioner now comes before this Court on the following grounds: THE HONORABLE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT CONVICTING THE PETITIONER FOR THE CRIME OF ATTEMPTED RAPE. DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH THE LAW ON RAPE AND JURISPRUDENCE ON THE MATTER. In Baleros. let alone touch her private part. then what obtains is an attempt to commit an indeterminate offense. if that was really his immediate intention. speaking thru Justice Claro M. There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. Harmonizing the above definition to the facts of this case. The next question that thus comes to the fore is whether or not the act of the petitioner.[12] he should be convicted only of unjust vexation.[11] Petitioner argues that he should be acquitted of the crime of attempted rape.is anybody's guess. First.[8] Petitioner appealed the judgment to the CA-Cagayan de Oro. The CA maintained that if the petitioner had no . As it were. contradictory and incredible testimonies. v. On the strength of those proven facts. THAT THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN [NOT DOWNGRADING] THE CRIME OF ATTEMPTED RAPE TO ACTS OF LASCIVIOUSNESS IF NOT THAT OF UNJUST VEXATION. he puts forward the theory that based on this Court's ruling in Baleros. the pressing of a chemical-soaked cloth while on top of Malou. [10] Petitioner's motion for reconsideration was likewise denied. it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. this Court reversed the conviction and found accused guilty of light coercion. We deny the Petition for Review. will logically and necessarily ripen into a concrete offense. the Court. the next question is: what was the offense committed? Petitioner argues that this Court's ruling in Baleros is applicable to his case. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou. indicating the intention to commit a particular crime. whichis not a juridical fact from the standpoint of the Penal Code. The CA sustained the conviction. People. the trial court found the acts imputed to petitioner to have been duly proven by the evidence beyond reasonable doubt. The Court declared: Expounding on the nature of an attemptedfelony. as where the purpose of the offender in performing an act is not certain. without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator. Petitioner alleged that the RTC erred in: (1) giving credence to the prosecution witnesses despite their inconsistent. meaning the nature of the act in relation to its objective is ambiguous.

we find that petitioner was correctly convicted of attempted rape. Plodding on. will logically and necessarily ripen into a concrete offense. distress or disturbance to the mind of the person to whom it is directed.[16] Thus. enough to convince us to arrive at a different conclusion. although not productive of some physical or material harm. and this is necessarily so. As aptly observedby then Justice Ramon C. Where the intended victim is an educated woman already mature in age. rape is attempted when the offender commences the commission of rape directly by overt acts. will have to come later. a practice disfavored under the rule on evidence in criminal cases. after the incident in question. At bottom then. torment. the appellate court indulges in plain speculation. the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal. in a majority of cases. both of the attacker and his victim. more than a mere planning or preparation. the overt acts must have an immediate and necessary relation to the offense. Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. logically. Aquino. To be sure. would unjustly annoy or irritate an innocent person. if not distressed by the acts of petitioner. Several facts attendant to this case distinguish it from Baleros. irritation. His sexual organ is not yet exposed because his intended victim is still struggling. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation. or as in this case. however. restraint or compulsion in information for unjust vexation. cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed. In the words of Viada. and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. And during the trial. petitioner's next step would. in relation to Article 335. He has to make her lose her guard first. while the series of acts committed by the petitioner do not determine attempted rape. no one can say with certainty what the intent of the accused is. her unconsciousness. It is necessary that the overt act should have been the ultimate step towards the consummation of the design. indicating the intention to commit a particular crime. The raison d'etre for the law requiring a direct overt act is that. without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime. As it were. it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded against."[14] Under Article 6. of the Revised Penal Code. The information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. It is not empty speculation to conclude that these acts were preparatory to the act of raping her. the acts of petitioner clearly establish his intention to commence the act of rape. which if carried out to its complete termination following its natural course. he would not have lain on top of the complainant. Petitioner had already successfully removed the victim's clothing and had inserted his finger into her vagina.intention to rape. The paramount question is whether the offender's act causes annoyance. For. mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. [15] This Court has held that an overt or external act is defined as some physical activity or deed. there is no need to allege malice. Verily. That Malou. the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious.[13] We are not persuaded by petitioner's argument. the Court is not saying that petitioner is innocent. they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. or an overt act or before any fragment of the crime itself has been committed. of any wrongdoing whatsoever. and this is so for the reason that so long as the equivocal quality remains. . that the attempt must have a causal relation to the intended crime. The acts are clearly "the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. be having carnal knowledge of the victim. Had it not been for the victim's strong physical resistance. the information against petitioner contains sufficient details to enable him to make his defense. xxxx Lest it be misunderstood. irrespective of his declared intent. Unlike in Baleros." The act done need not constitute the last proximate one for completion. under the premises. Wrote the CA: The shedding of the clothes. It is necessary. unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which. as earlier discussed.

2006 and its Resolution dated October 10. as the maximum. four (4) months.. We will rectify this error even as we affirm petitioner's conviction.. and the maximum of which is prision mayor medium. 23276 dated January 26. We note that the trial court's Decision sentenced petitioner to a prison term without specifying the period this sentence covers. or two degrees lower than reclusion perpetua. to PRISION MAYOR in its medium period. Petitioner should be sentenced to an indeterminate sentence the minimum of which is in the range of prision correccional. the foregoing premises considered. the penalty for consummated rape. as its maximum. JJ.R. . the trial court sentenced petitioner to "an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period. SO ORDERED. (Chairperson). The penalty for attempted rape is prision mayor. Austria-Marinez. concur. or within eight years and one day to ten years. and one (1) day of prision correccional medium. In all other respects.A final observation. or within six months and one day to six years. the trial court's Decision is AFFIRMED. the Court of Appeals Decision in CA-G." WHEREFORE. The petitioner is sentenced to an indeterminate sentence of two (2) years. 2007 affirming petitioner's conviction for ATTEMPTED RAPE are AFFIRMED WITH MODIFICATION . CR No. In this case. as the minimum. to ten (10) years of prision mayor medium. Ynares-Santiago. Chico-Nazario and Reyes. as minimum.

entitled People of the Philippines. and within the jurisdiction of this Honorable Court. the Decision2 of the Regional Trial Court (RTC) of Cavite.: This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G. Cavite. one RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the different parts of his body. In that helpless position. cerebral concussion or contusion.4 The doctor declared that the lacerated wound in the parietal area was slight and superficial and . He was even given a citation as a Bayaning Pilipino by the television network ABSCBN for saving the would-be victim. Esmeraldo and his two brothers. J. Ismael and Edgardo. did then and there. Edgardo mocked him for being jobless and dependent on his wife for support. At noon of May 2.. Lamberto Cagingin. et al. 2006 ESMERALDO RIVERA. On April 12. signed a medical certificate in which he declared that Ruben sustained lacerated wounds on the parietal area. Jr. CONTRARY TO LAW. ISMAEL RIVERA. to his damage and prejudice. SR. near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo. Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. Respondent. all surnamed Rivera. No. Momentarily. 27215 affirming. with intent to kill. The accusatory portion of the Information reads: That on or about the 3rd day of May 1998. They and their three children resided in Barangay San Isidro Labrador II. confederating and mutually helping one another. and feloniously attack. Ruben was brought to the hospital. conspiring. in Criminal Case No. multiple abrasions on the left shoulder and hematoma periorbital left. A heated exchange of words ensued. in the Municipality of Dasmariñas. the accused thus commenced the commission of the felony directly by overt acts. vs. He stopped driving in April 1998 after a would-be rapist threatened his life. CR No.m. Esmeraldo Rivera. v. the above-named accused. People who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben felt dizzy but managed to stand up. that is. His wife eked out a living as a manicurist. of attempted murder.. assault and hit with a piece of hollow block.R. the said Ruben Rodil was able to ran (sic) away and the timely response of the policemen. emerged from their house and ganged up on Ruben. 1998. Dasmariñas. At about 7:30 p. Ruben went to a nearby store to buy food. Branch 90. Edgardo hit Ruben three times with a hollow block on the parietal area.3 Ruben Rodil testified that he used to work as a taxi driver. hematoma on the left upper buttocks. an Information was filed in the RTC of Imus. a Sunday. Ismael and Edgardo fled to their house. hitting him at the back. Esmeraldo and Ismael continued mauling Ruben. Province of Cavite. Philippines. DECISION CALLEJO. EDGARDO RIVERA. Ruben resented the rebuke and hurled invectives at Edgardo. wilfully. with treachery and evident premeditation. Dr. charging Esmeraldo. Cavite. Esmeraldo. the next day. Ruben went to the store to buy food and to look for his wife. with modification. His attending physician.R. 1999. When policemen on board a mobile car arrived. Petitioners.G. 166326 January 25. Ismael and Edgardo. unlawfully. 6962-99. but failed to perform all the acts of execution which would produce the crime of Murder by reason of some causes other than their own spontaneous desistance. His three-year-old daughter was with him. PEOPLE OF THE PHILIPPINES. Ismael threw a stone at him.

on May 3. all the accused are found GUILTY beyond reasonable doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the prosecution has proved beyond reasonable doubt the culpability of the accused. SO ORDERED. the accused are to pay. the trial court rendered judgment finding all the accused guilty beyond reasonable doubt of frustrated murder.m. is MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum. 1998. and he was pulled away and brought to their house.9 The accused. He went home afterwards. the prosecution failed to prove treachery. They insist that the prosecution failed to prove that they had the intention to kill Ruben when they mauled and hit him with a hollow block. they should be held guilty only of attempted homicide. He managed to free himself from Ruben and the latter fled. now petitioners. intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used. Ruben challenged him and his brothers to come out and fight. Ruben¶s head hit the lamp post.7 On August 30. hence. civil indemnity to the private complainant in the amount of P30. A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Likewise. Ruben arrived and he went inside the house to avoid a confrontation. and. Cavite. he was throwing garbage in front of their house. which he had to take for one month. Cagingin. 2002. but Ruben grabbed him by the hair. The accused appealed to the CA.5 The doctor prescribed medicine for Ruben¶s back pain. Branch 90. For his part. Intent to kill was established by victim Ruben Rodil in his testimony as follows: . the CA held that the prosecution was able to prove petitioners¶ intent to kill Ruben: On the first assigned error. Ruben arrived at his house and banged the gate.00. premises considered. with modification. Petitioners aver that. the latter punched him. When he stood up.m. 1998. SO ORDERED. which rendered judgment on June 8. In all other respects. His brother Esmeraldo went out of their house and asked Ruben what the problem was. they should be held criminally liable for physical injuries only. The dispositive portion of the CA decision reads: WHEREFORE. he pulled at Edgardo¶s shirt and hair. Ruben fell to the ground. The dispositive portion of the decision reads: WHEREFORE.would heal from one to seven days. Even if petitioners had the intent to kill Ruben. the appealed decision. Edgardo declared that at about 1:00 p. His wife arrived. 2004 affirming. filed the instant petition for review on certiorari. alleging that the CA erred in affirming the RTC decision. When he went out of the house and talked to Ruben. He did not see his brother Edgardo at the scene. On the other hand. the Decision of the Regional Trial Court of Imus. Ruben banged the gate and ordered him to get out of their house and even threatened to shoot him. the decision appealed from is AFFIRMED. in the process. based on the testimony of Dr. on May 3. They wrestled with each other.000. Ismael testified that he tried to pacify Ruben and his brother Esmeraldo. hence. Edgardo arrived and pushed Ruben aside. Ruben sustained only a superficial wound in the parietal area.8 The trial court gave no credence to the collective testimonies of the accused and their witnesses.6 Esmeraldo testified that at around 1:00 p. jointly and severally. He fell to the ground.

Q: And while you were being boxed by Esmeraldo and Bong. the victim did not even have the slightest warning of the danger that lay ahead as he was carrying his three-year old daughter. Intent to kill was shown by the fact that the three (3) brothers helped each other maul the defenseless victim. and had the police not promptly intervened so that the brothers scampered away. Cagingin. An essential element of murder and homicide. Sir. The nature of the injury does not negate the intent to kill. When a wound is not sufficient to cause death.10 The Office of the Solicitor General (OSG). It was also established that the victim was hit by Edgardo "Dagul" Rivera. and even after he had already fallen to the ground. whether in their consummated. but intent to kill is evident. his two brothers Ismael and Edgardo "Dagul" Rivera. When a wound is not sufficient to cause death. what happened next? A: When I was already lying [down] xxx. Eyewitnesses to the crime. and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil. He was caught off-guard by the assault of Esmeraldo "Baby" Rivera and the simultaneous attack of the two other petitioners. appellants could have killed the victim had the hollow block directly hit his head. and even after he had already fallen to the ground. Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and. Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim Ruben Rodil was walking along St. As earlier stated by Dr. appellants could have killed the victim had the hollow block directly hit his head. what were they doing when you were hit with a hollow block by Dagol? A: I was already lying on the ground and they kept on boxing me while Dagol was hitting. thus. the crime is attempted. and had the police not promptly intervened so that the brothers scampered away. frustrated or attempted stage. Their intent to kill is very evident and was established beyond reasonable doubt. asserts that the decision of the CA is correct. Intent to kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim. for its part. Q: And what about the two (2). Cagingin. that one of them even picked up a cement hollow block and proceeded to hit the victim on the head with it three times. coming from St. but intent to kill is evident. soon thereafter. while general criminal intent is presumed from the commission of a felony by dolo. The Court of Appeals held: As earlier stated by Dr. not life threatening. Sir. Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera. that one of them picked up a cement hollow block and proceeded to hit the victim on the head with it three times. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence. . Dagol Rivera showed up with a piece of hollow block xxx and hit me thrice on the head. thus: The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by petitioners. A careful review of their testimonies revealed the suddenness and unexpectedness of the attack of petitioners. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo "Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. In this case. ganged up on the victim. Petitioners could have killed the victim had he not managed to escape and had the police not promptly intervened. while he was lying on the ground and being mauled by the other petitioners. the crime is attempted. Peter II. and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil. They further narrated that.11 The petition is denied for lack of merit. is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. The crime has been clearly established with petitioners as the perpetrators.

Edgardo hit him three times with a hollow block. The essential elements of an attempted felony are as follows: 1. petitioners are still criminally liable for attempted murder. the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to kill Ruben. no one can say with certainty what the intent of the accused is. and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. in a majority of cases. The offender¶s act be not stopped by his own spontaneous desistance. inter alia. or an overt act or before any fragment of the crime itself has been committed. (2) Such external acts have direct connection with the crime intended to be committed. The offender commences the commission of the felony directly by overt acts. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance. but still managed to hit the victim only in the parietal area.13 The first requisite of an attempted felony consists of two elements. Edgardo tried to hit Ruben on the head. 2. namely: (1) That there be external acts. It is necessary that the overt act should have been the ultimate step . thus: An overt or external act is defined as some physical activity or deed. the conduct of the malefactors before. In the present case. That the head wounds sustained by the victim were merely superficial and could not have produced his death does not negate petitioners¶ criminal liability for attempted murder. which if carried out to its complete termination following its natural course. unable to defend himself against the sudden and sustained assault of petitioners. The raison d¶etre for the law requiring a direct overt act is that. If the victim dies as a result of a deliberate act of the malefactors. will logically and necessarily ripen into a concrete offense. Even as Ruben fell to the ground.In People v. thus: There is an attempt when the offender commences the commission of a felony directly by overt acts. irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime. 4. 3. and this is so for the reason that so long as the equivocal quality remains. the circumstances under which the crime was committed and the motives of the accused. Esmeraldo and Ismael pummeled the victim with fist blows.12 the Court declared that evidence to prove intent to kill in crimes against persons may consist.14 The Court in People v. intent to kill is presumed. Even if Edgardo did not hit the victim squarely on the head. Lizada15 elaborated on the concept of an overt or external act. at the time. resulting in a lacerated wound and cerebral contusions. He does not perform all the acts of execution which should produce the felony. and this is necessarily so. Delim. in the means used by the malefactors. the nature. more than a mere planning or preparation. the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal. location and number of wounds sustained by the victim. missed. indicating the intention to commit a particular crime. without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator. or immediately after the killing of the victim. The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony.

Associate Justice . ROMEO J. petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was walking with his three-yearold daughter.towards the consummation of the design. who acted in concert.18 Obviously. there would be treachery. the penalty of prision mayor should be reduced by one degree. to six years and one day of prision mayor in its maximum period. Since petitioners are guilty only of attempted murder. as amended by Republic Act No. in relation to Article 71 of the Revised Penal Code. It is necessary. This is erroneous. the penalty for murder is reclusion perpetua to death. commenced the felony of murder by mauling the victim and hitting him three times with a hollow block. Under Article 248 of the Revised Penal Code." The act done need not constitute the last proximate one for completion. 7659.17 Even if the attack is frontal but is sudden and unexpected. such a penalty is prision mayor. Hence. as minimum. the penalty should be reduced by two degrees. as minimum. IN LIGHT OF ALL THE FOREGOING. Ruben would surely have died. If Edgardo had done so. as maximum. prision correccional. however. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. He was overwhelmed by the synchronized assault of the three siblings. In the words of Viada. Under paragraph 2 of Article 61. He had no chance to defend himself and retaliate. as maximum. SO ORDERED. The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period. they narrowly missed hitting the middle portion of his head.16 In the case at bar. No costs. as minimum. that the attempt must have a causal relation to the intended crime. giving no opportunity for the victim to repel it or defend himself. In the absence of any modifying circumstance in the commission of the felony (other than the qualifying circumstance of treachery). the maximum of the indeterminate penalty shall be taken from the medium period of prision mayor which has a range of from eight (8) years and one (1) day to ten (10) years. petitioners assaulted the victim because of the altercation between him and petitioner Edgardo Rivera a day before. petitioners. conformably to Article 51 of the Revised Penal Code. the petition is DENIED for lack of merit. CALLEJO. SR. to nine (9) years and four (4) months of prision mayor in its medium period. impervious of the imminent peril to his life. treachery is considered against all of them. To determine the minimum of the indeterminate penalty. We reject petitioners¶ contention that the prosecution failed to prove treachery in the commission of the felony. the overt acts must have an immediate and necessary relation to the offense. The essence of treachery is the sudden and unexpected attack on the victim. which has a range of six (6) months and one (1) day to six (6) years. to nine (9) years and four (4) months of prision mayor in its medium period.19 The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccional in its minimum period. There being conspiracy by and among petitioners. as maximum.

right in front of her bedroom door. Among them were private complainant Martina Lourdes Albano (Malou). In the evening of December 12. CR No. occupying Room 307 with her maid. Rommel Montes. petitioner Renato Baleros. 1991 charging petitioner with attempted rape reads as follow: That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court.R. assisted by counsel.. y David (CHITO) guilty of attempted rape. Branch 2. 1999 decision1 of the Court of Appeals (CA) in CA-G. J. Sampaloc. JR. PEOPLE OF THE PHILIPPINES. did then and there willfully. Upon arraignment on February 5. said acts being committed against her will and consent to her damage and prejudice. was a medical student of the University of Sto. and her classmates. Jr. Marvilou. Albano with a piece of cloth soaked in chemical with dizzying effects. Renato Alagadan and Christian Alcala. vs. Respondent. Manila. Tomas [UST] in 1991. pleaded "Not Guilty. petitioner. 17271 as reiterated in its March 31. The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila. the above-named accused. Early morning of the following day. 1992.: In this petition for review on certiorari.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. Joseph Bernard Africa. 91-101642 finding petitioner Renato Baleros. inside Unit 307. No. MALOU. holding . MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could not move. 138033 February 22.3 The accusatory portion of the information4 dated December 17. To prove its case. Marvilou Bebania (Marvilou). unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. «) along A. in Criminal Case No."5 Thereafter. her maid. 1999 resolution2 denying petitioner¶s motion for reconsideration. Lacson Street. the prosecution presented thirteen (13) witnesses. slept on a folding bed. 2006 RENATO BALEROS.H. assails and seeks the reversal of the January 13. Petitioner. as narrated in some detail in the decision of the CA. by forcefully covering the face of Martina Lourdes T. MALOU retired at around 10:30. DECISION GARCIA.R. established the following facts: Like most of the tenants of the Celestial Marie Building (hereafter "Building". Jr. Outside. Somebody was pinning her down on the bed. Their testimonies. trial on the merits ensued.

1993. Id).) Baleros Renato Jr. wearing a white t-shirt with ³µ«a marking on the front of the T-shirt T M and a Greek letter (sic) ¶ and below the quoted letters the word µ1946¶ µUST Medicine and Surgery¶´ (TSN. Aside from the window with grills which she had originally left opened. July 5. July 5. Over the intercom. 1992. 8). know. 355). Answers to Question number 5. Bernard Baptista. Meanwhile. the one without iron grills which leads to Room 306 of the Building (TSN. July 5. July 5. It was then when MALOU saw her bed « topsy-turvy. pp. but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here (Sgd. Lutgardo Acosta and Rommel Montes were staying. S/G Ferolin made the following entry in the security guard¶s logbook «: "0130H Baleros Renato Jr. 1991 was corroborated by Joseph Bernard Africa (Joseph). The man let her go and MALOU went straight to the bedroom door and roused Marvilou. p. Who it was she did not. October 9. p. another window inside her bedroom was now open. who was her classmate «. With this «the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed. October 16. He asked CHITO to produce the required written authorization and when CHITO could not. «. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert.M.6). of December 13. 1991. «. was friendly until a week prior to the attack. He « was wearing a t-shirt and shorts « Original Records. p. 33). 1993. only Joseph Bernard Africa was in the room. relented] «. To Room 310 of the Building where her classmates Christian Alcala. The only thing she had made out during their struggle was the feel of her attacker¶s clothes and weight. S/G Ferolin initially refused [but later. telling her: "Gusto kita. She wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN. 22). 1992. p. xxx xxx xxx Further. 1993. Her attacker had fled from her room going through the left bedroom window (Ibid. Her nightdress was stained with blue « (TSN. xxx xxx xxx . MALOU testified that her relation with CHITO. p. xxx.her tightly. p. however. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter. while he was on duty. mahal kita" (TSN. according to S/G Ferolin. 1993. 17).7) and requested permission to go up to Room 306. MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid. p. xxx." (Exhibit "A-2") That CHITO arrived at Room 306 at 1:30 A. (TSN. 13-14). p. MALOU continued fighting off her attacker by kicking him until at last her right hand got free. p. MALOU then proceeded to seek help. 22) and she rejected him. Still. CHITO confided his feelings for her. July 5. 9) and black shorts with the brand name ³Adidas´ (TSN.. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid. CHITO arrived at the Building at 1:30 in the early morning of December 13. 1993.

The colored gray bag had a handle and a strap. Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not belonging to them in their Unit. xxx xxx xxx. None was in Room 310 so Joseph went to their yet another classmate. At that time Christian. 45). People from the CIS came by before 8 o¶clock that same morning «. did Renato know what the contents of the bag were. 1993. a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid. Rommel Montes (Loyloy). While they were outside Room 310 talking with the authorities. pp. Joseph then went to MALOU¶s room and thereat was shown by Bernard the open window through which the intruder supposedly passed. CHITO did just that. xxx by the time CHITO¶s knocking on the door woke him up. With Bernard. He mentioned to the latter that something had happened and that they were not being allowed to get out of the building. a Black Adidas short pants. 1991. 6) a gray "Khumbella" bag cloth type (Ibid. xxx. because he glanced at the alarm clock beside the bed when he was awakened by the knock at the door «. That CHITO left his bag inside Room 310 in the morning of December 13. They likewise invited CHITO and Joseph to go with them to Camp Crame where the two (2) were questioned «. this time. Christian knew right away that it belonged to CHITO (Ibid. three (3) white T-shirts. Alagadan¶s testimony.Joseph was already inside Room 306 at 9 o¶clock in the evening of December 12. In their presence. p. Joseph also told CHITO to follow him to Room 310. p. p. Not until later that night at past 9 o¶clock in Camp Crame. a handkerchief . p. Christian recognized the t-shirt (Exhibit "D-4"). He followed after Joseph to Unit 310. another roommate of his. was what consisted mainly of Renato R. and the handkerchief (Exhibit "D-3) to be CHITO¶s because CHITO had lent the very same one to him «. CHITO used to wear on weekends. «. 7). Renato Alagadan at Room 401 to see if the others were there. He was able to fix the time of CHITO¶s arrival at 1:30 A. after their 3:30 class. and Renato went back to Room 310 at around 3 to 4 o¶clock that afternoon along with some CIS agents. Joseph was finally able to talk to CHITO «. 44-45) from inside their unit which they did not know was there and surrender the same to the investigators. «. 1991. xxx. he and his roommates. and socks (Ibid). 1991. the CIS opened the bag and pulled out its contents. and the handkerchief he saw CHITO used at least once in December. however. 23) when he let the latter in. p. they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it. . xxx. Loyloy found (TSN. An occupant of Room 310 « Christian Alcala (Christian) recalled in Court that in the afternoon of December 13. the Adidas short pants (Exhibit "D-5"). at about 6 to 6:30 in the morning of December 13.M. carrying his gray bag. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid. 1991. Bernard. by Bernard Baptista (Bernard). among others. January 12. was elongated to about 11/4 feet and appeared to be full but was closed with a zipper when Renato saw it then (Ibid. an underwear. 19-20). «. xxx xxx xxx Later. Gary. 1991 when he woke up again later to the sound of knocking at the door.. When he saw the gray bag. went inside to search the Unit. Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid. pp. It was at around 3 o¶clock in the morning of December 13. The t-shirt with CHITO¶s fraternity symbol.

as its main witness.) conducted laboratory examination on the specimen collated and submitted«. the defense sought to establish the following. thus: "SPECIMEN SUBMITTED: xxx xxx xxx: 1) One (1) small white plastic bag marked µUNIMART¶ with the following: xxx xxx xxx Exh µC¶ ± One (1) night dress colored salmon pink. non-volatile and/or metallic poison on the above stated specimens. of the Philippine National Police Crime Laboratory in Camp Crame. MALOU. he was likewise a member of the Tau Sigma Phi Fraternity «. 109. The forensic Chemist. FINDINGS: Toxicological examination conducted on the above stated specimens gave the following results: Exhs. a volatile poison. Ibid. p. Sampaloc. µC¶ and µD¶ contain chloroform. From Room 306 of the Celestial Marie Building «. PURPOSE OF LABORATORY EXAMINATION: To determine the presence of volatime (sic). Manila at about . Exhs. Leslie Chambers. a volatile poison. CHITO. 112) reads in part. wearing the prescribed barong tagalog over dark pants and leather shoes. Exh. C-487-91 (Exhibit "E". µE¶ and µF¶ are insufficient for further analysis. the petitioner himself.xxx xxx xxx. µF¶ ± One (1) black short (sic) marked µADIDAS¶. the defense presented. µB¶. (Exhibit "C". µE¶ ± One (1) white T-shirt marked µTMZI¶. CHITO was a medical student of « (UST). µA¶. He denied committing the crime imputed to him or making at any time amorous advances on Malou. 1991. Unfolding a different version of the incident. Her Chemistry Report No."6 (Words in bracket added) For its part.. 2) One (1) small white pl astic bag marked µJONAS¶ with the following: Exh. CONCLUSION: Exhs. Managuelod dated December 13. p. «. was known to him being also a medical student at the UST at the time. arrived at their Fraternity house located at « Dos Castillas. Original Records. With Robert Chan and Alberto Leonardo. Exh. having acted in response to the written request of PNP Superintendent Lucas M. µD¶ ± One (1) printed handkerchief. as culled from the same decision of the appellate court: In December of 1991. µC¶ and µD¶ ± POSITIVE to the test for chloroform.

looking at his watch. Again riding on Alberto¶s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi. Rommel tried to open the door of Unit 306 « but was likewise unsuccessful. p. 26). Jose Duran. 1991. 3 John Street. black short pants with stripe. 36). xxx. 19). CHITO also looked at his own watch and saw that the time was 1:30 (Ibid. CHITO left the party with Robert Chan and Alberto at more or less past 1 A. socks and shoes" (TSN. xxx.M. CHITO was told by Rommel Montes that somebody. Joseph told him that something had happened and to just go to Room 310 which CHITO did. At Room 310. socks. 15). He asked the latter why this was so and. June 16. were brought to Camp Crame. Joseph was told to dress up and the two (2) of them. « approached him and even commented: "Okey ang suot mo ha. «changed to a thinner shirt and went to bed. already about ten (10) minutes had lapsed since CHITO first arrived (Ibid... underwear. CHITO included. 1994. p. He was already in his school uniform when. xxx . p. and toothbrush (Ibid. p. «. 1994. p. CHITO presented himself. father of MALOU. approached. 17-18) at room 306 in the afternoon of the previous day «. (Ibid. di mo mabuksan ang pinto (Ibid. at last answered the door. xxx. «. went to the room of MALOU and tried to rape her (TSN. without elaborating on it. p. "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. S/G Ferolin initially refused CHITO entry «. Soon after. San Juan. 25). 26-29). At the gate of the Building.M. He still had on the same short pants given by Perla Duran from the fraternity party (TSN. Joseph told him that the security guard was not letting anybody out of the Building «. CHITO knocked and «. Perla Duran. The party was conducted at the garden beside [the] swimming pool «. pp. of December 13. pp. It took another (5) minutes of calling out and knocking before Joseph.. sando. CHITO and Joseph. around 6:30 A. CHITO then decided to just call out to Joseph while knocking at the door. April 25. at No. Because of this. Joseph came to the room not yet dressed up. 20). found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly tried to open the door until Rommel Montes. S/G Ferolin called Unit 306 «. « the four (4) presidential nominees of the Fraternity. He had left his gray traveling bag containing "white tshirt. then asked him for the key to Room 306«. When S/G Ferolin finally let him in.7 o¶clock in the evening of December 12. xxx xxx xxx The CIS men looked inside the bedroom and on the windows. xxx CHITO had anticipated his turn « and was thus wearing his t-shirt and long pants when he was dunked. North Greenhills. CHITO . At 6 o¶clock in the morning of December 13. Telling him. April 25.. Albano. Dr. S/G Ferolin.. 1994. whom MALOU was not able to identify. . were being dunked one by one into the pool. He was included in the entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior fraternity brother. Congressman Rodolfo B. offered each « dry clothes to change into and CHITO put on the white t-shirt with the Fraternity¶s symbol and a pair of black shorts with stripes. CHITO woke up «. 1991. xxx. xxx. 1991 and proceeded to the Building which they reached at about 1:30 A.M. CHITO went up the floor. When two (2) CIS men came to the unit asking for Renato Baleros.

thus: WHEREFORE. inside Room 310 at more/less 6:30 to 7 o¶clock in the morning of December 13. evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied. he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). Both were one in saying that CHITO was wearing a barong tagalog. Duran¶s place at Greenhills. . CHITO denied putting in his gray bag which he had left at Room 306 in the early evening of December 12.000. the sum of P50. p. Managuelod asked Joseph inside his room and talked to him for 30 minutes. being volatile. Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her father¶s house. « CHITO and Joseph were physically examined by a certain Dr.00 by way of Moral and exemplary damages. Original Records. 1991 trying to open the door of Room 306 while clad in dark short pants and white barong tagalog. The black Adidas short pants purportedly found in the bag. He likewise disavowed placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 o¶clock in the early morning of December 13.9 On December 14. xxx. plus reasonable Attorney¶s fees of P30. made no effort to ask CHITO if the items thereat were his. under cool reflection and prescinding from the foregoing.M.8 Presented as defense expert witness was Carmelita Vargas. Col. June 16. 1991..00. and for the accused to pay the offended party Martina Lourdes T. p. guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS. alias "Chito". 1991 before going to the fraternity house. de Guzman who told them to strip «. as Minimum to TEN (10) YEARS of Prision Mayor as Maximum. the black striped short pants lent to him by Perla Duran (Exhibit "8-A". One of the CIS agents had taken it there and it was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who.M. At the hospital. with short pants and leather shoes at the time they parted after the party. Jr. On the other hand.. xxx xxx xxx Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp Crame Hospital «. a tenant of Room 310 of the said building. Albano. with t-shirt inside. and to pay the costs. TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional. In fact. with all the accessory penalties provided by law.When they arrived at Camp Crame «. 25). xxx xxx xxx CHITO had left his gray bag containing. when he was in Camp Crame. nor when he dressed up at about 6 o¶clock in the morning to go to school and brought his gray bag to Room 310 (Ibid. riding on the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the party.000. among others. 1991 party held in Dr. at any time on December 13. the Court finds the accused Renato D. when he and Joseph were brought before Fiscal Abesamis for inquest. of December 13. the trial court rendered its decision10 convicting petitioner of attempted rape and accordingly sentencing him. Alberto Leonardo and Robert Chan. also testified seeing CHITO between the hours of 1:30 and 2:00 A. 1994. however. No one interviewed CHITO to ask his side. He only found out for the first time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon. 1991 (TSN. without subsidiary imprisonment in case of insolvency. 1994. 1991. The next time that he saw it was between 8 to 9 P.7 Rommel Montes. 24). who both testified being with CHITO in the December 12. 345). a forensic chemistry instructor whose actual demonstration in open court showed that chloroform. Baleros. Also taking the witness stand for the defense were petitioner¶s fraternity brothers.

but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December 13. the prosecution . petitioner went to the CA whereat his appellate recourse was docketed as CA-G.SO ORDERED. 3. although a witness may not have actually witnessed the very act of commission of a crime. in its assailed Decision dated January 13. finding no basis in fact and in law to deviate from the findings of the court a quo. 2. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him. This constitutes direct evidence. absent sufficient. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to prove the same. Aggrieved. which forms part of circumstantial evidence.11 Petitioner moved for reconsideration. Otherwise stated. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the commission of the crime. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met. After a careful review of the facts and evidence on record in the light of applicable jurisprudence. 1991.R. he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when. hence. This is the second type of positive identification. SO ORDERED. he should be acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt. CR No. the decision appealed from is hereby AFFIRMED in toto. There are two types of positive identification. In not finding that the circumstances it relied on to convict the petitioner are unreliable. As stated at the threshold hereof. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. 17271. the CA. 5. inconclusive and contradictory. In not finding that proof of motive is miserably wanting in his case. 1999. to wit: WHEREFORE. the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. 1999.12 Petitioner is now with this Court. the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape. but his motion was denied by the CA in its equally assailed resolution of March 31. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the requisites for conviction based thereon. the Court is disposed to rule for petitioner¶s acquittal. on the contention that the CA erred 1. Costs against appellant. 6. 4. competent and convincing evidence to prove the offense charged.13 In the absence of direct evidence. There may. however. be instances where. affirmed the trial court¶s judgment of conviction. for instance.

may resort to adducing circumstantial evidence to discharge its burden. It is argued that petitioner¶s actuation thus described is an overt act contemplated under the law. 4. In the present case. had commenced the performance of an act indicative of an intent or attempt to rape the victim. He had access to the room of MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. As it turned out. when taken together with the other pieces of evidence constituting an unbroken chain. leads to only fair and reasonable conclusion.15 . If direct evidence is insisted under all circumstances. echoing what the CA said. Crimes are usually committed in secret and under condition where concealment is highly probable. 1991. The Solicitor General maintained that petitioner. were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals. A different witness.14 Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. Not only the Building security guard. for there can not be any other logical conclusion other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep. MALOU had made out the feel of her intruder¶s apparel to be something made of cotton material on top and shorts that felt satin-smooth on the bottom. The provision reads: Sec. by pressing on Malou¶s face the piece of cloth soaked in chemical while holding her body tightly under the weight of his own. S/G Ferolin. the positive identification of the petitioner forms part of circumstantial evidence. to prove. The Solicitor General. b) The facts from which the inferences are derived are proven. which is that petitioner was the intruder in question. he would not have lain on top of the victim. a black "Adidas" satin short pants. but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13. and a white fraternity T-shirt. and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. adds that if petitioner¶s intention was otherwise. a volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her face where the chemicalsoaked cloth had been pressed. identified these garments as belonging to CHITO. From CHITO¶s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it. this time. We quote with approval the CA¶s finding of the circumstantial evidence that led to the identity of the petitioner as such intruder: Chito was in the Building when the attack on MALOU took place. also stained with blue. Though it was dark during their struggle. This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape. laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and MALOU¶s night dress both contained chloroform. which. the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard. Christian Alcala. when sufficient ± Circumstantial evidence is sufficient for conviction if ± a) There is more than one circumstance. Circumstantial evidence. if not well-nigh impossible.

if that was really his immediate intention. is anybody¶s guess.21 In Perez vs. Where the intended victim is an educated woman already mature in age. Court of Appeals. rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the following circumstances: (1) By using force or intimidation. mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. He has to make her lose her guard first. i. which is not a juridical fact from the standpoint of the Penal Code. leading directly to its realization and consummation. let alone touch her private part. As it were. will logically and necessarily ripen into a concrete offense. Thus. and (3) When the woman is under twelve years of age or is demented.net Overt or external act has been defined as some physical activity or deed. For what reason petitioner wanted the complainant unconscious. he would not have lain on top of the complainant. petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. the appellate court indulges in plain speculation. both of the attacker and his victim. which if carried out to its complete termination following its natural course. The next question that thus comes to the fore is whether or not the act of the petitioner. concrete offense. indicating the intention to commit a particular crime. speaking thru Justice Claro M. For.16 Expounding on the nature of an attempted felony. constitutes an overt act of rape. (2) When the woman is deprived of reason or otherwise unconscious. then what obtains is an attempt to commit an indeterminate offense. slight. Lamahang.20 At bottom then.Under Article 335 of the Revised Penal Code. that which is the beginning of the execution of the offense by overt acts of the perpetrator. without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator.18 There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. the penetration. meaning the nature of the act in relation to its objective is ambiguous. is not completed.. His sexual organ is not yet exposed because his intended victim is still struggling. a practice disfavored under the rule on evidence in criminal cases. or as in this case. Plodding on. The CA maintained that if the petitioner had no intention to rape. like the logical and natural relation of the cause and its effect. Recto in People vs." Absent the unavoidable connection. it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape.19 Harmonizing the above definition to the facts of this case. Under Article 6. penetration is an essential act of execution to produce the felony. more than a mere planning or preparation. it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. In the crime of rape.e. in relation to the aforementioned article of the same code. pointing out that: xxx. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou. the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance.1avvphil. her unconsciousness. as where the purpose of the offender in performing an act is not certain. the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. however. for there to be an attempted rape. the Court. rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. will have to come later. Wrote the CA: The shedding of the clothes. . the pressing of a chemical-soaked cloth while on top of Malou.22 the Court acquitted therein petitioner of the crime of attempted rape.17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a particular.

inserting his hand inside her panty and touching her sexual organ.26 That Malou. And during the trial. distress or disturbance to the mind of the person to whom it is directed. unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which. after the incident in question. Verily. if not distressed by the acts of petitioner. To be sure. however. there is no need to allege malice. Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. would unjustly annoy or irritate an innocent person. GARCIA Associate Justice . the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila. the Court is not saying that petitioner is innocent. Lest it be misunderstood. torment. Jr. of any wrongdoing whatsoever. SO ORDERED. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation. with the accessory penalties thereof and to pay the costs. Thus.00. WHEREFORE. they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. Likewise in People vs. restraint or compulsion in an information for unjust vexation. Pancho.23 the Court held: xxx. is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of P200. Aquino. although not productive of some physical or material harm.25 The paramount question is whether the offender¶s act causes annoyance. the information against petitioner contains sufficient details to enable him to make his defense. The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from P5. As aptly observed by then Justice Ramon C. appellant was merely holding complainant¶s feet when his Tito Onio arrived at the alleged locus criminis.00 or both. mashing her breasts. do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant¶s sexual organ.24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. As it were. CANCIO C. xxx. is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape. Petitioner. embracing and kissing her.00 to P200. as earlier discussed. under the premises. Baleros. while admittedly obscene and detestable acts. irritation. cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed.xxx xxx xxx Petitioner¶s act of lying on top of the complainant. The information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. while the series of acts committed by the petitioner do not determine attempted rape. of the charge for attempted rape.

1990. 14196. is valid. the Supreme Court denied a petition for review on certiorari of the conviction. Marcos could no longer exercise legislative powers as the Batasan Pambansa was functioning and exercising sole legislative powers. 1985. P D 1990 became effective after fifteen (15) days from July 1. 2 Upon the remand of the record to the lower court. Presidential Decree No.G. COURT OF APPEALS. and. or on July 16. for which he was sentenced to imprisonment of eight (8) months. The contention is without merit. President Marcos was vested with legislative powers concurrently with the Batasan Pambansa. On May 26. Iloilo City. in Criminal Case No. At that time. hence. petitioner filed a motion for probation contending that he was eligible for probation because at the time he committed the offense in 1981. FLORENTINO P. J. Branch 31. is null and void on the ground that at that time President Ferdinand E. 1990 amending Presidential Decree No. petitioner. 1996. 14196 of the Regional Trial Court. 1 By decision promulgated on February 27. On July 29. this appeal. in accordance with Article 2 of the Civil Code. Branch 31." 8 It is not ex post facto in its application. vs. No. On August 20. enacted on October 5. on June 2." 6 Petitioner maintains the view that Presidential Decree No. 1988. convicted petitioner of violation of Batas Pambansa Bilang 22. the Regional Trial Court. 1990. the trial court denied petitioner's motion for probation. 1995. Regional Trial Court. Iloilo City. PARDO. the Court of Appeals affirmed the conviction. providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. 3 On November 12. 1985 but said issue was released for circulation only on July 1. an accused who had appealed his conviction was still qualified to apply for probation and that the law that barred an application for probation of an accused who had interposed an appeal was ex post facto in its application. 1996. 1985. Iloilo City. 7 Consequently. HON. in his capacity as Presiding Judge. arising from his conviction of violation of Batas Pambansa Bilang 22. . not applicable to him. 5 At issue in this case is whether petitioner could qualify to apply for probation under Presidential Decree No. respondent. FAJARDO. 4 Hence. 1986. PEDRONIO. 1990. 968. "was printed in Volume 81 of the Official Gazette dated December 30. 1990. became effective in 1986. issued on October 5. 1996. 1986.R. He appealed to the Court of Appeals. 1999 DANIEL G. petitioner filed with the Court of Appeals a petition for certiorari to annul the lower court's denial of his application for probation. We deny the petition. and sentenced him to suffer the penalty of eight (8) months imprisonment and to pay the costs. Presidential Decree No. hence. 1990. On January 5. PEOPLE OF THE PHILIPPINES and STATION COMMANDER OF ILOILO CITY. 968 since he had appealed from his conviction in 1988. Branch 33. 128508 February 1. 1986. after Presidential Decree No. the Court of Appeals denied due course to the petition.: The case is an appeal via certiorari taken by petitioner from a decision of the Court of Appeals that denied due course to his motion for probation in Criminal Case No.

he could avail himself of probation since the law as it stood at that time provided that an accused convicted of a crime may apply for probation even if he had appealed the conviction. petitioner could have appealed if convicted and still availed himself of probation. At that time.. 13 Presidential Decree No. 1988. Presidential Decree No. and. On October 13. 10 Presidential Decree No. 1990. 16 and. petitioner no longer had the option to appeal and still apply for probation if unsuccessful in the appeal.The law applies only to accused convicted after its effectivity. 11 It may not be considered as an ex post facto law. Jr. amending the probation law. petitioner was convicted on May 26. However.J. the Solicitor General 14 submitted a manifestation positing the view that petitioner's application for probation may still be considered because when petitioner committed the offense in 1981. 1985. 12 At the time of the commission of the offense charged²violation of Batas Pambansa Bilang 22²in 1981.R. 9 An ex post facto law is one that punishes an act as a crime which was innocent at the time of its commission. he could no longer apply for probation since he had appealed. was not yet applicable at the time the accused was finally convicted. 1985. and he appealed. JJ. Melo and Martinez. concur. it is inapplicable because there.. What is more. 1990 although enacted on October 5. The case he cited is a Court of Appeals decision. the Court DENIES the petition for review on certiorari of the decision of the Court of Appeals in CA-G. Costs against petitioner.. SO ORDERED. Regrettably. WHEREFORE. 41447. 1990. the accused's conviction became final on October 14. 15 We do not share his view. Hence. was published in the Official Gazette on December 30. We find it unnecessary to resolve the other issues that petitioner has raised questioning the constitutionality and wisdom of Presidential Decree No. not a precedent. hence. like the Probation Law that it amends. 1985. C. . hence. Davide. is not penal in character. 1990 was then in full effect. 1997. the Solicitor General has cited a Court of Appeals decision that is inapplicable to this case because the facts were not similar. SP No.

.. Article II of Republic Act No. 2004 of the Regional Trial Court (RTC).. JJ. JR...k. with the crime of violation of Sec. Branch 168. Branch 168.. J. otherwise known as the ³Comprehensive Dangerous Drugs Act of 2002. .. .-x DECISION QUISUMBING.. culled from the records..a. Chairperson.. ³Mike´. 2003... petitioner Michael Padua and Edgar Allan Ubalde were charged before the RTC. VELASCO.... J.. 2005. 2008 x.. PEOPLE OF THE PHILIPPINES.. 168546 Present QUISUMBING...MICHAEL PADUA. of the Court of Appeals in CA-G..... charges Edgar Allan Ubalde y Velchez a.... 2005 and Resolution dated June 14. No.. ³Allan´ and Michael Padua y Tordel a.. Respondent..R.. Petitioner. Promulgated: July 23.R. The Information reads: The Prosecution. SP No. Padua¶s petition for certiorari before the Court of Appeals assailed the Orders dated May 11.... The facts. which had denied his petition for probation. 2004 and July 28... CARPIO MORALES.. 86977 which had respectively dismissed Michael Padua¶s petition for certiorari and denied his motion for reconsideration. through the undersigned Public Prosecutor. 9165. are as follows: On June 16...a..´ for selling dangerous drugs... Pasig City of violating Section 5..: This petition for review assails the Decision dated April 19.....k. Pasig City. and BRION.versus TINGA... G...

00). 2004. in a Decision dated February 6. 968). 2004. Padua. The City Prosecutor was also directed to submit his comment on the said petition within five days from receipt of the order. however. The RTC in an Order dated February 10. a police poseur-buyer. 5 Art. 9165. Republic Act No. shall be imposed should [the] accused fail to pay the fine pursuant to Art.000. conspiring and confederating together and both of them mutually helping and aiding one another. assisted by his counsel de oficio. deliver and give away to PO1 Roland A. During the pre-trial conference on February 2. 2004. and within the jurisdiction of this Honorable Court. Art. sentences him to suffer an indeterminate sentence of six (6) years and one (1) day of Prision Mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum and a fine of Five Hundred Thousand Pesos (P500. (a) and (i).A. Hence. .D. 3 of the Revised Penal Code. 5 par.A. however. the RTC found Padua guilty of the crime charged: In view of the foregoing. Thus.] 8369. the accused. Chief Probation and Parole Officer Josefina J. Contrary to law. II of R. 9165. Pasana submitted a Post-Sentence Investigation Report to the RTC recommending that Padua be placed on probation.86 grams of dried marijuana fruiting tops. and therefore. one (1) folded newsprint containing 4. II. He further alleged that he possesses all the qualifications and none of the disqualifications under the said laws. (a) and (i) thereof. committed as follows: On or about June 6. the RTC on the same date issued an Order stating that the former plea of Padua of not guilty was considered withdrawn. a minor. entered a plea of not guilty. The prosecutor interposed no objection. [No. 2004 alleging that he is a minor and a firsttime offender who desires to avail of the benefits of probation under Presidential Decree No. 39 par. 5 par. No. Panis. Act No. No subsidiary imprisonment. 9165 in relation to R. a dangerous drug. which was found positive to the tests for marijuana. Sec. otherwise known as ³The Probation Law of 1976´ and Section 70 of Rep. Padua subsequently filed a Petition for Probation dated February 10. Padua¶s counsel manifested that his client was willing to withdraw his plea of not guilty and enter a plea of guilty to avail of the benefits granted to first-time offenders under Section 70 of Rep. SO ORDERED.A. No. 8369 Sec. seventeen (17) years old. When arraigned on October 13. not being lawfully authorized to sell any dangerous drug. did then and there willfully. unlawfully and feloniously sell. 9165 in relation to R.5. in Pasig City. the Court finds accused Michael Padua y Tordel guilty of [v]iolation of Sec. 2003. Edgar Allan Ubalde y Velchez and Michael Padua y Tordel. 2003. No. Padua was re-arraigned and pleaded guilty. Act No. in violation of the said law. 2004 directed the Probation Officer of Pasig City to conduct a PostSentence Investigation and submit a report and recommendation within 60 days from receipt of the order. 968 (P. On April 6.

However. 9165 specifically refer to violations of either Section 15 or Section 11.´ (underlining supplied) WHEREFORE. ± Any person convicted for drug trafficking or pushing under this Act. On the other hand.Time Minor Offender in Lieu of Imprisonment. but the Court of Appeals. all under Article VIII of R. 24. 9165.A. public respondent Pairing Judge Agnes Reyes-Carpio issued an Order denying the Petition for Probation on the ground that under Section 24 of Rep. Senior PPO Teodoro Villaverde recommended that minor Michael Padua y Tordel be placed on probation. SO ORDERED. otherwise known as the Child and Welfare Code. this petition where he raises the following issues: I. 2005. 2004. the matter before the Court being an application for probation by minor Michael Padua y Tordel and not the suspension of his sentence. on May 11. dismissed his petition. the petition is hereby DENIED for lack of merit and ordered DISMISSED. the Petition for Probation filed by Michael Padua y Tord[e]l should be. More importantly. Section 70 is under Article VIII of R. 2004. 9165. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Act No. in view of the foregoing. regardless of the penalty imposed by the Court. as amended.D.A. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE DENIAL OF THE PETITION FOR PROBATION WHICH DEPRIVED PETITIONER¶S RIGHT AS A MINOR UNDER . Pasana. which deal with the suspension of sentence and commitment of youthful offender. The dispositive portion of the decision reads: WHEREFORE. therefore. 9165 which deals with the Program for Treatment and Rehabilitation of Drug Dependents. while the provisions of R. 968. cannot avail of the privilege granted by the Probation Law or Presidential Decree No. the Court is of the view and so holds that minor Michael Padua y Tordel who was charged and convicted of violating Section 5. Josefina J. R. anchoring his recommendation on Articles 189 and 192 of P. as it is hereby DENIED. do not find application in this case.A. cannot avail of probation under said section in view of the provision of Section 24 which is hereunder quoted: ³Sec. any person convicted of drug trafficking cannot avail of the privilege granted by the Probation Law. The court ruled thus: Before this Court now is the Post-Sentence Investigation Report (PSIR) on minor Michael Padua y Tordel prepared by Senior Parole and Probation Officer Teodoro Villaverde and submitted by the Chief of the Pasig City Parole and Probation Office. Hence. 9165. In the aforesaid PSIR. Padua filed a motion for reconsideration of the order but the same was denied on July 28. SO ORDERED. as amended. He filed a petition for certiorari under Rule 65 with the Court of Appeals assailing the order. 603. in a Decision dated April 19.A. premises considered. Sections 54 to 76. Article II. particularly Section 70 thereof deals with Probation or Community Service for First. Such articles. Padua filed a motion for reconsideration of the Court of Appeals decision but it was denied. Nowhere in Article VIII was [v]iolation of Section 5 ever mentioned.

9165 INSTEAD OF SECTION 70. the ³Juvenile Justice and Welfare Act of 2006. SECTION 32 OF A.ADMINISTRATIVE ORDER NO. WHETHER OR NOT [THE] ACCUSED[¶S] RIGHT [TO BE RELEASED UNDER RECOGNIZANCE] HAS BEEN VIOLATED OR DEPRIVED IN THE LIGHT OF R. ³Without jurisdiction´ means that the court acted with absolute lack of authority. (2) such tribunal. CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER DEPARTMENT OF JUSTICE APPROPRIATING FUNDS THEREFOR AND OTHER PURPOSES. For certiorari to prosper. ARTICLE VIII OF THE SAME LAW. prejudice. 02-1-18-SC OTHERWISE KNOWN AS THE ³RULE ON JUVENILES IN CONFLICT WITH THE LAW´ HAS NO APPLICATION TO THE INSTANT CASE. a board or any officer exercising judicial or quasi-judicial functions. ARTICLE II OF R. II. Simply. No. the following requisites must concur: (1) the writ is directed against a tribunal. 02-1-18-SC otherwise known as the ³Rule on Juveniles in Conflict with the Law´ have application in this case? As to the first issue. and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law. II. and (3) there is no appeal or any plain. In its Comment. the issues are: (1) Did the Court of Appeals err in dismissing Padua¶s petition for certiorari assailing the trial court¶s order denying his petition for probation? (2) Was Padua¶s right under Rep. speedy and adequate remedy in the ordinary course of law.M. The Office of the Solicitor General (OSG).M. In other words. 9344. [02-1-18-SC] OTHERWISE KNOWN AS [THE] RULE ON JUVENILES IN CONFLICT WITH THE LAW. 9344 OTHERWISE KNOWN AS AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM.A. representing public respondent. NO. There is ³excess of jurisdiction´ when the court transcends its power or acts without any statutory authority. Act No. we rule that the Court of Appeals did not err in dismissing Padua¶s petition for certiorari.A. or personal hostility. . or with grave abuse of discretion amounting to lack or excess of jurisdiction. THE TRIAL COURT AND THE COURT OF APPEALS HAVE LEGAL BASIS IN APPLYING SECTION 24. power is exercised in an arbitrary or despotic manner by reason of passion. the OSG countered that I. opted to adopt its Comment as its Memorandum. board or officer has acted without or in excess of jurisdiction.´ violated? and (3) Does Section 32 of A. ³Grave abuse of discretion´ implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction.

9165 for selling dangerous drugs. To illustrate. 9165. 968. cannot avail of the privilege granted by the Probation Law or Presidential Decree No. while a person charged and convicted of selling dangerous drugs shall suffer life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500. regardless of the penalty imposed by the Court. a person arrested for using illegal or dangerous drugs is meted only a penalty of six months rehabilitation in a government center. index animi sermo. Act No. it must be given its literal meaning and applied without attempted interpretation. cannot avail of the privilege granted by the Probation Law or P. as minimum. for the first offense under Section 15 of Rep. Act No. The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators. the Court of Appeals correctly pointed out that the intention of the legislators in Section 24 of Rep. there is the maxim verba legis non est recedendum.) The law is clear and leaves no room for interpretation.000. The law indeed appears strict and harsh against drug traffickers and drug pushers while protective of drug users. are given the chance to mend their ways. as amended.00) under Section 5. Padua was charged and convicted for violation of Section 5.000. 9165. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. The elementary rule in statutory construction is that when the words and phrases of the statute are clear and unequivocal. (Emphasis supplied. Article II of Rep. users and possessors alike.A review of the orders of the RTC denying Padua¶s petition for probation shows that the RTC neither acted without jurisdiction nor with grave abuse of discretion because it merely applied the law and adhered to principles of statutory construction in denying Padua¶s petition for probation. to wit: SEC. Act No. 9165 that any person convicted of drug trafficking cannot avail of the privilege of probation. ± Any person convicted for drug trafficking or pushing under this Act. . Act No. It is clear under Section 24 of Rep. Hence. 968. plain and free from ambiguity. the law could have easily declared so. If a statute is clear. The Court of Appeals also correctly stated that had it been the intention of the legislators to exempt from the application of Section 24 the drug traffickers and pushers who are minors and first time offenders. are categorically disqualified from availing the law on probation. No. youthful drug dependents. like Padua. Moreover. their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says.D. Rep. 24.00) to Ten Million Pesos (P10. Furthermore. This is what is known as the plain-meaning rule or verba legis. while drug traffickers and pushers. Act No.000. It is expressed in the maxim. regardless of the penalty imposed. 9165 is to provide stiffer and harsher punishment for those persons convicted of drug trafficking or pushing while extending a sympathetic and magnanimous hand in Section 70 to drug dependents who are found guilty of violation of Sections 11 and 15 of the Act. Any person convicted for drug trafficking or pushing. or from the words of a statute there should be no departure. or speech is the index of intention.

Act No. No. Petitioner has already reached 21 years of age or over and thus. Act No.M. Section 38 of Rep. Act No. the court shall determine whether to discharge the child. the petition is DENIED. Act 9344. WHEREFORE. Furthermore. the application of Sections 38 and 40 appears moot and academic as far as his case is concerned. 9344 and Section 32 of A. suspension of sentence under Section 38 of Rep. order execution of sentence. 9344. No. Act No. 02-1-18-SC otherwise known as the ³Rule on Juveniles in Conflict with the Law´ has application in this case. the ³Juvenile Justice and Welfare Act of 2006´ was violated. Nor can he argue that Section 32 of A. Thus. Section 40 of Rep. QUISUMBING Associate Justice . or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21 years. the court shall place the child in conflict with the law under suspended sentence. instead of pronouncing the judgment of conviction. The assailed Decision dated April 19. SO ORDERED LEONARDO A. 2005 of the Court of Appeals are AFFIRMED. Padua cannot argue that his right under Rep. 2005 and the Resolution dated June 14. provides that once the child reaches 18 years of age. 9344 provides that once a child under 18 years of age is found guilty of the offense charged. Section 68 of Rep. 9344 could no longer be retroactively applied for petitioner¶s benefit. 02-1-18-SC both pertain to suspension of sentence and not probation. Act No. could no longer be considered a child for purposes of applying Rep.As for the second and third issues.M. 9344. however.

who is one of the registered owners of Lot No. together with her co-accused Ildefonsa. signed the document. The dispositive portion of the Decision reads: WHEREFORE. together with Concepcion Abangan (Concepcion). Branch 57.: Before Us is a Petition for Certiorari1 under Rule 65 of the Revised Rules of Court filed by petitioner Lourdes A. but acquitted Ildefonsa. 81981. who is a brother of the registered owners of the lot.R. Perfecta Abangan and Eleuteria Abangan. manifested that co-accused Valentine was already dead and requested that his name be dropped from the information. 113267. 177961 April 7. and OCT No. 113266. and accordingly. TWO (2) MONTHS and ONE (1) DAY to SIX (6) YEARS. CEB-CR No. Gines Abellana. Private complainant Gaspar Abangan (Gaspar) is the grandson of Lamberto Abangan. disallowing petitioner¶s application for probation in Criminal Case No. the Court of Appeals affirmed the Order4 dated 22 July 2003 of the Regional Trial Court (RTC) of Cebu. ENRIQUETA LOQUILLANO-BELARMINO. as the signatures contained therein were not the signatures of the true owners of the land. is accused in Criminal Case No. Presiding Judge. vs. RO-2740 in the names of Andrea Abangan. CBU-35455. Fabian Abangan. the RTC convicted petitioner of the crime of Falsification of Public Documents under Article 172(1) in relation to Article 171 of the Revised Penal Code. who was already dead. Petitioner and co-accused Ildefonsa are the grand-daughters of Eleuteria Abangan. On 28 November 2000. 3608-A and 3608-B. in view of the foregoing. In its assailed Decision. Lot No. During the initial trial. The undisputed facts are as follows: Petitioner. namely. Ildefonsa Anoba (Ildefonsa) and Valentine Abellanosa (Valentine). the title to the lot was transferred to the name of the latter under TCT No. However. allegedly falsified an Extrajudicial Declaration of Heirs with Waiver of Rights and Partition Agreement. Branch 57. 2009 LOURDES A. With respect to Lot No. 3608 was subdivided into two lots. PEOPLE OF THE PHILIPPINES and HON. Petitioner. Petitioner. No. Petitioner and Ildefonsa also allegedly caused it to appear that a certain Remedios Abangan. counsel for all the accused. Lot No. RTC. which is registered under Original Certificate of Title (OCT) No. 3608-A was transferred to the name of co-accused Concepcion and was registered under Transfer Certificate of Title (TCT) No. petitioner was able to execute a Deed of Absolute Sale in favor of one Perpetua Sombilon. 3608-B. Sergio Abangan. Petitioner and co-accused Ildefonsa were arraigned on 20 July 1994 while co-accused Concepcion was never arrested. RO-2740 was cancelled.G. and denied petitioner¶s Motion for Reconsideration thereof. By virtue of the Extrajudicial Declaration of Heirs.R. the court finds Lourdes Abellanosa Sable guilty beyond reasonable doubt of the crime charged and hereby sentences her to suffer an indeterminate penalty of FOUR (4) YEARS.5 . DECISION CHICO-NAZARIO. J. the court finds accused Ildefonsa Anoba not guilty. Respondents. Antonino Abangan. SABLE. Atty. Sable seeking the reversal and the setting aside of the Decision2 dated 14 December 2006 and Resolution3 dated 21 February 2007 of the Court of Appeals in CA-G. 3608. Cebu City. CBU-35455 of Falsification of Public Documents under Article 172(1) in relation to Article 171 of the Revised Penal Code.

the Court of Appeals denied the petition for lack of merit. After several postponements due to the vacancy in the court a quo. filed Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment with Reconsideration and Explanation8 on 12 June 2003 alleging. Pending resolution of the Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment with Reconsideration. on 20 November 2003. the dispositive portion of which reads as follows: WHEREFORE. CEBCR No. in an Order10 dated 22 July 2003. Petitioner¶s Notice of Appeal was also denied for having been filed out of time. while her Motion for Reconsideration and her application for probation were pending resolution before the RTC. all are hereby denied. that petitioner¶s counsel did not receive the Order because it was received by a certain Che who was undergoing practicum in her counsel¶s law office.Thereafter. Hence.R. respondent Judge denied the Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment. as a result. 2003. petitioner moved for the reconsideration of the 22 July 2003 Order and intimated her desire to apply for probation instead of appealing the judgment of conviction. stating that the alleged failure of petitioner¶s counsel to timely appeal the judgment of conviction following the denial of the reconsideration thereof could not amount to excusable negligence. it was Che¶s last day at the office.11 In a Motion12 dated 15 October 2003. through counsel. On the day of receipt thereof.15 . the application for probation must necessarily fail because the remedies of appeal and probation are alternative and mutually exclusive of each other. an entry of judgment was issued on 5 June 2003. raising the sole issue of whether or not the respondent court acted with grave abuse of discretion in denying the application for probation. petitioner again prayed for the Recall of the Warrant of Arrest against her. 81981. The Court of Appeals refused to reconsider its earlier Decision in a Resolution dated 21 February 2007. the motion was submitted for resolution only on 29 June 2001. The same was denied by respondent Judge Enriqueta Loquillano-Belarmino in an Order7 dated 20 November 2003. In its Decision14 dated 14 December 2006.9 Subsequently.13 Petitioner filed a Petition for Certiorari under Rule 65 before the Court of Appeals docketed as CA-G. a copy of the Order denying reconsideration of the judgment was received by petitioner¶s counsel. petitioner filed a Motion for Reconsideration6 of said RTC Decision on 20 January 2001. It further enunciated that a notice of appeal of judgment filed six months after the denial of the motion for reconsideration was denied is filed out of time and. accused¶s motion for reconsideration of the Order dated July 22. Due to petitioner¶s failure to interpose a timely appeal. motion to recall warrant of arrest and motion to allow accused to avail of the benefits of the Probation Law. On 25 August 2003. On 13 December 2002. Petitioner¶s counsel further alleged that he was of the belief that his Motion for Reconsideration of the judgment of conviction would be rescheduled for hearing after the same had been postponed due to the vacancy in the court a quo. Petitioner. Finally. among other things. this Petition for Certiorari under Rule 65 of the Rules of Court raising the sole issue: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE TRIAL COURT¶S ORDER DENYING PETITIONER¶S APPLICATION FOR PROBATION. petitioner filed a Notice of Appeal on 17 June 2003. the RTC issued the assailed Order.

That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. the moment of truth well nigh at hand and the service of his sentence inevitable. In the present petition before Us. 6 of the Rules of Court. and the filing of the application after the time of appeal has lapsed is injurious to the recourse of the applicant.The petitioner prays that the instant petition be granted by allowing her to apply for probation and ordering the RTC through respondent Judge to act on the application for probation by the petitioner. the Solicitor General argues that the Court of Appeals properly denied the petition before it because. Consequently. after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal. The filing of the application shall be deemed a waiver of the right to appeal. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.that when his conviction is finally affirmed on appeal. it is procedurally flawed for being an improper recourse.19 . Provided. An application for probation shall be filed with the trial court. We find the Petition devoid of merit. This outlaws the element of speculation on the part of the accused -. 4. The need to file it within such period is intended to encourage offenders. which states that an "appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. as amended." thus rendering nugatory the appellate court¶s affirmance of his conviction. based upon the recommendation of the probationer who may be assigned to conduct the investigation of said application. reads: Sec. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state the time. the trial court may. effort and expenses to jettison an appeal.to wager on the result of his appeal -. the application for probation must necessarily fail." In Palo v. who are willing to be reformed and rehabilitated. who manifest spontaneity. petitioner already filed a Notice of Appeal before the RTC on 17 June 2003. the application for probation was filed out of time pursuant to Rule 122. Grant of Probation. petitioner filed the application for probation on 25 August 2003. and secondly. Probation is a special privilege granted by the state to a penitent qualified offender. The Probation Law is patently clear that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. for non-compliance with the mandatory requirement of the law that an application for probation must be filed within the period for perfecting an appeal.17 (Emphasis supplied. Furthermore.) It is quite clear from the afore-quoted provision that an application for probation must be made within the period for perfecting an appeal. suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. For the State. contrition and remorse. first." The law expressly requires that an accused must not have appealed his conviction before he can avail himself of probation. almost eight months from the time the assailed judgment of the RTC became final.18 this Court held that what the law requires is that the application for probation must be filed within the period for perfecting an appeal.16 The pertinent provision of the Probation Law. Militante. Clearly. to avail themselves of probation at the first opportunity. because before the application was instituted.²Subject to the provisions of this Decree. Sec. probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated. he now applies for probation as an "escape hatch.

This was the reason why the Probation Law was amended. Rule 124. which is not identical with a petition for review under Rule 65. i.22 This just obviously manifests the intention of petitioner to benefit from the remedy of probation just in case the remedy of appeal is not given due course. On the other hand. and not due to petitioner counsel¶s self.lawphil. including that to be taken under Rule 45. Where an appeal is available.20 We also note that the petitioner is unable to make up her mind as to what recourse she will pursue.21 while in her Memorandum she questioned the denial of her appeal. we find that there is an error in the mode of appeal used by petitioner. petitioner cannot avail herself of both. Time and again..23 The explanation given by petitioner as to the cause of the failure to appeal the judgment of conviction is flimsy.27 Accordingly. the proper mode of appeal should be a Petition for Review under Rule 45.e. whereby lawyers working therein promptly receive notices and pleadings intended for cases. final orders or resolutions of the Court of Appeals in any case. this appeal is not within the exceptions. not under Rule 65. Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment.1avvphi1. Under the Rules. The Court has also often repeated that clerk¶s negligence that adversely affects the cases handled by lawyers is binding upon the latter. speedy and adequate remedy. the Court has admonished law firms to adopt a system of distributing pleadings and notices. which would be but a continuation of the appellate process over the original case. petitioner elevated this petition via a Petition for Certiorari under Rule 65. decisions.24 Finally. It has been held that the proper remedy of the party aggrieved by a decision of the Court of Appeals is a petition for review under Rule 45.admitted mistake or negligence in not giving proper instruction to his staff. Petitioner¶s counsel claims that the Order of the RTC denying the Motion for Reconsideration dated 20 January 2001 was received by a certain Che. "[e]xcept as provided in the last paragraph of Section 13. regardless of the nature of the action or proceedings involved.28 Therefore. such must be due to some unexpected or unavoidable event. There is nothing capricious in not granting an appeal after the time to file the same has lapsed. all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.26 One of the requisites of certiorari is that there be no available appeal or any plain. and he attributed the non-receipt of the Order to her and claimed that the mistake was excusable. may be appealed to us by filing a petition for review. precisely to put a stop to the practice of appealing from judgments of conviction even if the sentence is probationable.zw+ We agree with the Court of Appeals that to constitute excusable negligence. Under Rule 122. when a party adopts an improper remedy. as a general rule. Under Rule 45. for the purpose of securing an acquittal and applying for the probation only if the accused fails in his bid. since in her petition for Certiorari she questioned the denial of her probation. therefore. nor is there anything arbitrary in denying an application for probation after a notice of appeal has been filed. as in this case.net . Section 3(e) of the Rules of Court. there is no abuse of discretion amounting to lack or excess of jurisdiction in the Court of Appeals¶ Decision and Resolution affirming the trial court¶s Orders denying petitioner¶s Notice of Appeal. and the application for probation. a special civil action under Rule 65 is an independent action based on the specific ground therein provided and. cannot be availed of as a substitute for the lost remedy of an ordinary appeal.25 appeal to the Supreme Court must be via a petition for Review under Rule 45. who was a student doing practicum in his law office. subject to the exceptions." Here. Prevailing jurisprudence treats appeal and probation as mutually exclusive remedies because the law is unmistakable about it and. certiorari will not prosper even if the ground therefor is grave abuse of discretion. his petition may be dismissed outright. Since.

WHEREFORE. the instant Petition for Certiorari under Rule 65 is hereby DISMISSED. CHICO-NAZARIO Associate Justice . No costs. MINITA V. premises considered. The Decision dated 14 December 2006 and Resolution dated 21 February 2007 of the Court of Appeals are AFFIRMED. SO ORDERED.

the team conducted the necessary surveillance on petitioner. Quezon City.1 However. THE PEOPLE OF THE PHILIPPINES. hindi sa nakaraan. No.: THE law looks forward. Jerry C. Roque.. petitioner.) No.8 They put him under arrest. DECISION REYES. SPO2 Antonio M. the said accused without any authority of law. INSP. Ang batas ay tumitingin sa hinaharap. Central Police District Command. 2008 SR. checking his hideouts in Cavite. in Quezon City. ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. Valeroso in a case for kidnapping with ransom. bearing Serial Number 5231511 with five (5) live ammunition.6 Eventually. vs..12 Petitioner was then brought to the police station for questioning. The Facts On July 10. non respicit. the team proceeded to the Integrated National Police (INP) Central Station at Culiat. informed him of his constitutional rights.16 Petitioner was then charged with illegal possession of firearm and ammunition under Presidential Decree (P. The Information read: That on or about the 10th day of July. the records verifier.1-a These are the rule.7 SPO2 Disuanco and his team approached petitioner. at around 9:30 a. A new law has a prospective. Manila. J. JERRY C. shall be given retroactive effect. penal laws that favor a guilty person. and bodily searched him. Insp. R.G. unlawfully and knowingly have in his/her possession and under his/her custody and control .14 Epifanio Deriquito. respondent. not retroactive. and Bulacan. 1996. presented a certification15 to that effect signed by Edwin C. the exception and exception to the exception on effectivity of laws. We apply the exception rather than the rule in this petition for review on certiorari of the decision of the Court of Appeals (CA). Philippines. effect. VALEROSO.D. Gayunpaman. received a dispatch order2 from the desk officer.T. 1996. chief records officer of the Firearms and Explosive Division.13 A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc. 1866.m. Caloocan.5 After a briefing.9 Found tucked in his waist10 was a Charter Arms. who is not a habitual criminal. affirming with modification that of the Regional Trial Court (RTC) in Quezon City.R. Lex prospicit. Disuanco of the Criminal Investigation Division.3 The order directed him and three (3) other policemen to serve a warrant of arrest4 issued by Judge Ignacio Salvador against petitioner Sr. did then and there willfully. where they saw petitioner as he was about to board a tricycle. finding petitioner liable for illegal possession of a firearm. 164815 February 22.17 as amended. never backward.

1996.28 However. Angelito Moreno. July 15.21 They trained their guns at him22 and pulled him out of the room. 38 "Charter Arms" revolver bearing Serial No. Philippines. testified that on July 10.24 SPO2 Disuanco stood guard outside with him.25 Moments later. Jr.20 He was roused from his slumber when four (4) heavily armed men in civilian clothes bolted the room. unable to present the documentation relative to the firearm because it was confiscated by the police.23 The raiding team went back inside and searched and ransacked the room.39 . SPO3 Timbol identified his signature34 on the said receipt. Col."27 He was also told that there was a standing warrant for his arrest. an operative came out of the room and exclaimed. Quezon City. 1996. (Sgd. he was not allowed to engage the services of a counsel. YAP Assistant City Prosecutor18 With the assistance of his counsel de parte.31 Petitioner contended that the police had an axe to grind against him.37 During all those times.35 Adrian Yuson. Petitioner further lamented that when he was incarcerated. Sales was likewise subject of a complaint filed with the Ombudsman by his wife.19 Trial on the merits ensued. Neither was he allowed to see or talk to his family. Jerry C. 1996. SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. 199333 covering the subject firearm and its ammunition. Timbol.32 SPO3 Timbol. While still with the Narcotics Command. of the Narcotics Command testified that he issued to petitioner a Memorandum Receipt dated July 1. without first having secured the necessary license/permit issued by the proper authorities. Fearing for his life. Oscar Pagulayan. They then tied his hands and placed him near the faucet.30 According to petitioner. do it right now. CONTRARY TO LAW. SPO3 Agustin R. he was fast asleep in the boarding house of his children located at Sagana Homes. Quezon City.) GLORIA VICTORIA C.29 Neither was the raiding group armed with a valid search warrant. 1996. Valeroso. however. 52315 with five (5) live ammo. he pointed to petitioner¶s room. Insp. a gun was poked at him. Sales was later on appointed as the head of the unit that conducted the search in his boarding house.36 They grabbed his shoulder and led him out. an occupant of the room adjacent to where petitioner was arrested.One (1) cal. Romulo Sales to white-wash a drug-related investigation involving friends of the said police officer. Petitioner recounted that on July 10. the search done in the boarding house was illegal. he turned down a request of Col. the defense version was supplied by the combined testimonies of petitioner Sr. he was not shown any proof when he asked for it. "Hoy. Atty. and Adrian Yuson. Jr. Upon the other hand. The gun seized from him was duly licensed and covered by necessary permits. He was. This was upon the verbal instruction of Col. Barangay New Era. so if you are planning do so something.38 He was asked where petitioner was staying. Col. two (2) policemen suddenly entered his room as he was preparing for school. petitioner pleaded not guilty when arraigned on October 9. may nakuha akong baril sa loob!"26 Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because there¶s a shoot to kill order against you.

They forcibly opened his locker. Issues Petitioner raises the following issues for Our consideration: I. On May 4. The gun subject of this case is hereby ordered confiscated in favor of the government. who was clad only in his underwear.00).Four (4) policemen then entered the room.51 petitioner resorted to the present petition under Rule 45. The fallo of the CA decision reads: Verily. Let the same be put in trust in the hands of the Chief of the PNP. 1998.42 While a policeman remained near the faucet to guard petitioner.45 RTC and CA Dispositions On May 6. 1998. the Court hereby finds the accused guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree No.49 His motion for reconsideration50 having been denied through a Resolution dated August 3.44 which yielded the subject firearm. the trial court found petitioner guilty as charged.46 Petitioner moved to reconsider47 but his motion was denied on August 27. WHEREFORE. the appellate court affirmed with modification the RTC disposition. 1866 as amended by Republic Act No. 2004.48 He appealed to the CA. SO ORDERED.43 They began searching the whole place. II. 2004. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. SO ORDERED. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF . disposing as follows: WHEREFORE. with the foregoing MODIFICATION as to the penalty.40 He witnessed how they pointed a gun at petitioner. the penalty imposed by the trial court upon the accused-appellant is modified to 4 years and 2 months as minimum up to 6 years as maximum. 8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum period or from 4 years. the decision appealed from is hereby AFFIRMED in all other respects. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE.41 He also witnessed how they forcibly brought petitioner out of his room. 2 months and 1 day as minimum to 6 years as maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15. three (3) others went back inside the room.000. III.

the certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130. However. It may be true that the contents of said certification are only prima facie evidence of the facts stated there. the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms.56 As for petitioner¶s lack of authority to possess the firearm.62 This contention deserves scant consideration. or a certification from.52 (Underscoring supplied) Our Ruling In illegal possession of firearm and ammunition. or by a person in the performance of a duty specifically enjoined by law. however.54 Defense witness Yuson also identified the firearm. which are derived from his own perception.55 Its existence was likewise admitted by no less than petitioner himself. First. the chief records officer of the same office. are prima facie evidence of the facts therein stated. Deriquito testified that a verification of the Charter Arms Caliber . 52315 with the Firearms and Explosives Division at Camp Crame revealed that the seized pistol was not issued to petitioner.61 On this score. Manila. The certification is outside the scope of the hearsay rule. Entries in official records.60 Otherwise.53 The prosecution was able to discharge its burden. Thus. the failure of petitioner to present controverting evidence makes the presumption unrebutted. ± Entries in official records made in the performance of his official duty by a public officer of the Philippines. The search was conducted after his arrest and after he was taken out of the room he was occupying. Section 44 of the Rules of Court which provides: Sec.59 The prosecution more than complied when it presented both. the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition. raises several points which he says entitles him to no less than an acquittal. that is. and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. 44. It was registered in the name of a certain Raul Palencia Salvatierra of Sampaloc.THE MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).58 The Court on several occasions ruled that either the testimony of a representative of. Deriquito presented a certification signed by Roque. petitioner says that the seizure of the subject firearm was invalid. The assessment of credibility of witnesses lies with the trial court. the presumption stands.38 bearing Serial No. The general rule is that a witness can testify only to those facts which he knows of his personal knowledge. The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco. the testimony is objectionable for being hearsay.57 As proof. . Petitioner.

assuming that there indeed was one. a reading of Timbol¶s testimony on cross-examination70 would reveal that there was an unusual facility by which said receipt was issued to petitioner.69 However. However. where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies. Rule 132 of the Rules of Court. The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition. for the exclusion in evidence of the subject firearm and its ammunition.72 We note that petitioner contradicted himself when he argued for the validity of the Memorandum Receipt and. findings of the trial court are given the highest degree of respect if not finality. at the same time. the assessment of the trial courts are generally viewed as correct and entitled to great weight. SPO3 Timbol. Its issuance utterly lacked the usual necessary bureaucratic constraints. Rivera:63 x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular.Petitioner¶s version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. Col. We find no compelling reason not to accept its observation on this score. as aptly put by Justice Ynares-Santiago in People v. in an appeal. We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief.67 Although petitioner is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties. Moreno. Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly decorated. Petitioner¶s act may result to an absurd situation where the Memorandum Receipt is declared valid. That would have made their nefarious scheme easier. Clearly. We thus agree with the Office of the Solicitor General that framing up petitioner would have been a very risky proposition.68 it is only a presumption. petitioner insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command.64 (Underscoring supplied) The trial court found the prosecution version worthy of credence and belief. Common sense would dictate that he must necessarily be authorized to carry a gun.65 but have effected a number of successful arrests66 as well. testified that he issued the Memorandum Receipt to petitioner based on the verbal instruction of his immediate superior. it may be overthrown by evidence to the contrary. Had the arresting officers really intended to cause the damnation of petitioner by framing him up. they could have easily "planted" a more incriminating evidence rather than a gun. Furthermore. it was issued to petitioner under questionable circumstances. Jr. while the subject firearm and its . Second. The demeanor of the person on the stand can draw the line between fact and fancy or evince if the witness is telling the truth or lying through his teeth. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. Third. petitioner claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution71 in violation of Section 34.

Chief Justice Araullo. "but founded on the very principles on which the right of the State to punish and the commination of the penalty are based. such as rimfire handgun. as amended. the existence of the subject firearm and its five (5) live ammunition were established through the testimony of SPO2 Disuanco. and regards it not as an exception based on political considerations. tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. ammunition or machinery. No. Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. or possess any firearm. In People v. The present law now states: SECTION 1.77 As previously stated. was the governing law at the time petitioner committed the offense on July 10. part of firearm. R.78 Yuson also identified said firearm. 1866. The doctrine was affirmed in the recent case of People v.81 during the pendency of the case with the trial court. deal in. Acquisition. as amended.32 and other firearm of similar firepower. considering that the imprisonment is lowered to prision correccional in its maximum period84 from reclusion temporal in its maximum period to reclusion perpetua85 under P.A.D.000) shall be imposed upon any person who shall unlawfully manufacture. 1866.D. Penal and civil liabilities Petitioner was charged with the crime of illegal possession of firearms and ammunition under the first paragraph of Section 1 of P. . Unlawful Manufacture.80 We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence. (Underscoring supplied) As a general rule.D. 8294 amended P. tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided. However. No. . is when the law is advantageous to the accused. Contrary to petitioner¶s claim. acquire. deal in. ammunition. 1997. It provides that "[t]he penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture. No.75 Even assuming arguendo that they were not offered.380 or .A. Orehuela.79 Petitioner even admitted its existence. or machinery. the subject firearm73 and its five (5) live ammunition74 were offered in evidence by the prosecution. The existence of an unlicensed firearm may be established by testimony.000. 8294. Malinao. but as a rule founded on principles of strict justice. ± The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15. as long as there is competent testimony as to its existence. No. the same is still advantageous to the accused. In any case. dispose.ammunition which are supposedly covered by the Memorandum Receipt are excluded as evidence. No. however.D. That would have made the Memorandum Receipt useless. this is "not as a right" of the offender. part of firearm. That no other crime was committed. penal laws should not have retroactive application.82 An exception to this rule. acquire. No.76 the non-presentation of the pistol did not prevent the conviction of the accused.00 is imposed by R. negligence. petitioner¶s contention has no leg to stand on. 1866 on July 6. or possess any low-powered firearm."83 Although an additional fine of P15. lest they acquire the character of an ex post facto law. it is not offered in evidence. 1996. even without its presentation at trial. Sale. if it is lost)." P. or fortuitous event (for example. According to Mr. 1866. petitioner¶s stance must still fail. dispose.

86 Hence.88 As to the subject firearm and its five (5) live ammunition. their proper disposition should be made under Article 45 of the Revised Penal Code89 which provides. as minimum term. Court of Appeals87 and Barredo v. The minimum term shall be one degree lower. WHEREFORE. REYES Associate Justice . the Decision of the Court of Appeals dated May 4. The penalty of four (4) years and two (2) months of prision correccional medium. is the prescribed penalty and will form the maximum term of the indeterminate sentence. 2004 is AFFIRMED in full. to six (6) years of prision correccional maximum. the penalty imposed by the CA is correct. among others. RUBEN T. prision correccional maximum which ranges from four (4) years. which is prision correccional in its medium period (two [2] years. that the proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the government. is in consonance with the Court¶s ruling in Gonzales v. Vinarao. two (2) months and one (1) day to six (6) years. SO ORDERED. as maximum term. four [4] months and one [1] day to four [4] years and two [2] months).Applying the Indeterminate Sentence Law.

-versusDEL CASTILLO.. No. G. appellant Hermie M. a five-year old minor child. Chairperson. and reintegration in accordance with Republic Act No. J. JACINTO. and PEREZ.: Once again. VELASCO. otherwise known as ³An Act Establishing a Comprehensive Juvenile Justice and Welfare System. . we recite the time-honored principle that the defense of alibi cannot prevail over the victim¶s positive identification of the accused as the perpetrator of the crime. 1679-13-141[1]. CONTRARY TO LAW. 182239 Present: CORONA. Promulgated: March 16. at barangay xxx. Jacinto].C. 9344. Nevertheless.´ Convicted for the rape of five-year-old AAA. Appropriating Funds Therefor and for Other Purposes. rehabilitation. municipality of xxx. Accused-Appellant.J. Plaintiff-Appellee. Jacinto seeks before this Court the reversal of the judgment of his conviction. 2003 at about 7:00 o¶clock in the evening more or less. LEONARDO-DE CASTRO. DECISION PEREZ. the victim being only five years old. JJ. appellant was accused of the crime of RAPE allegedly committed as follows: That on or about the 28th day of January. the court must be convinced that there was physical impossibility on the part of the accused to have been at the locus criminis at the time of the commission of the crime. province of xxx and within the jurisdiction of this Honorable Court. Creating the Juvenile Justice and Welfare Council under the Department of Justice. For it to prosper. unlawfully and feloniously had carnal knowledge with one AAA..R. with the qualifying/aggravating circumstance of minority. [Hermie M.PEOPLE OF THE PHILIPPINES. a child in conflict with the law. JR. shall still be entitled to the right to restoration. whose judgment of conviction has become final and executory only after his disqualification from availing of the benefits of suspended sentence on the ground that he/she has exceeded the age limit of twenty-one (21) years. The Facts In an Information dated 20 March 2003 filed with the Regional Trial Court and docketed as Criminal Case No. with lewd design did then and there willfully. 2011 HERMIE M.

the daughter of [MMM]?´ but the latter ignored his question. FFF went home to check on his daughter. and rebuttal witness Julito Apiki [Julito] may be summarized in the following manner: FFF and appellant have been neighbors since they were born. She had no underwear on and he saw white substance and mud on her vagina. During pre-trial. midclavicular line 5. Already half-naked from waist down. removed her panty. afterwhich. appellant entered a plea of not guilty. embraced her. M. At about past 6 o¶clock in the evening of 28 January 2003. He was wearing sleeveless shirt and a pair of short pants. Julito was still watching television at the house of Rita. At the store. and. and boxed him. to which she replied that appellant raped her. He found her face greasy. There he made her lie down on harrowed ground. Evidence for the Prosecution The testimonies of AAA. There was mud on her head and blood was oozing from the back of her head. Multiple abrasions with erythema along the neck area. Dr. appellant left and proceeded to the Perochos. AAA followed CCC. FFF found appellant at the house of the Perochos. 3. he went back to appellant. Julito left and found appellant at the Perochos. removed her panty and boxed her on the chest. Julito proceeded to the house of Rita to watch television. her father FFF. FFF was not alarmed. AAA was crying. She. When CCC returned without AAA. issued a medical certificate dated 29 January 2003. He thought she was watching television at the house of her aunt Rita Lingcay [Rita]. FFF sent his eight-year-old daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA likewise knows appellant well. while appellant. he mounted her. showing that she was born on 3 December 1997. It reads: Injuries seen are as follows: 1. Rural Health Physician. FFF also had AAA undergo a physical check up at the municipal health center.On 15 July 2003. FFF and AAA proceeded to the police station to have the incident blottered. Hematoma over the left upper arm. the defense admitted the existence of the following documents: (1) birth certificate of AAA. Genital and peri-anal area soiled with debris and whitish mucoid-like material 7. choked her and boxed her breast. He bore no grudge against appellant prior to the incident. asked again. lateral area 4.´ AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants when he held her hand while on the road near the store. That of appellant lies at the back approximately 80 meters from FFF. Petechial hemorrhages on both per-orbital areas. ³Wait a minute because I will wash the dirt of my elbow (sic) and my knees. paravertebral area 6. 2. and that he proceeded thereafter to the Perochos. while her legs were pushed apart. ³Bads. told appellant that the policemen were coming to which the appellant responded. She was without slippers. did you really rape the child.D. To access the road. Appellant replied that he was asked to buy rum at the store and that AAA followed him. Julito asked appellant. Bernardita M. and (3) medical certificate. Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. FFF heard AAA crying and calling his name from downstairs. On that same evening. fetching water. Gaspar. All of them left the store at the same time. She usually calls him kuya. that he threw away her pair of slippers. went towards the direction of the ³lower area or place. and passing by her house on his way to the road. Afterwards. appellant has to pass by FFF¶s house. True enough. AAA told him that appellant brought her from the store to the grassy area at the back of the house of the Perochos. FFF¶s house is along the road. They walked towards the rice field near the house of spouses Alejandro and Gloria Perocho [the Perochos]. Meanwhile.´ Also. at around 7:45 in the evening of even date. who held the hand of AAA. Julito pitied her. Hematoma over the upper anterior chest wall. Gloria. AAA and her mother MMM arrived. appellant often visits FFF because they were close friends. He asked the appellant what he did to AAA. in turn. He checked for any injury and found on her neck a contusion that was already turning black. the frequency of which the latter describes to be ³every minute [and] every hour. Introitus is erythematous with minimal bleeding . She and appellant used to be friends until the incident. She sees him all the time ± playing at the basketball court near her house. Abrasion over the posterior trunk. She felt pain and cried.. Appellant¶s aunt. upon presentation of the original or upon identification thereof by the physician.´ Julito did found the elbows and knees of appellant with dirt. pushed his penis into her vagina and made a push and pull movement. (2) police blotter entry on the rape incident. and asked what happened to her. went straight home crying. he saw appellant place AAA on his lap. Trial ensued with the prosecution and the defense presenting witnesses to prove their respective versions of the story.

pointed a finger at him. The child did not answer. Jacinto guilty beyond reasonable doubt of rape committed upon a 5-year old girl. a barangay councilor. Hymenal lacerations at the 5 o¶clock and 9 o¶clock position Impression MULTIPLE SOFT TISSUE INJURIES HYMENAL LACERATIONS Upon the recommendation of Dr. at 7 o¶clock in the evening. Around three (3) minutes later. who was also at the party. From where she was. This did not alarm her because she thought it was just a game. Christine Ruth B. carry AAA. the judgment of the court imposing the death penalty upon the accused is amended in order to consider the privileged mitigating circumstance of minority. This time. She witnessed the punching incident and testified that appellant was twice boxed by FFF. The trial court appreciated the evidence and reduced the penalty from death to reclusion perpetua. (sic) Evidence for the Defense Interposing the defense of alibi. appellant went to the Perochos to attend a birthday party. She recalled that appellant was back around five (5) minutes later. the Regional Trial Court rendered its decision. Appellant claimed that he lives with his aunt. and another Civilian Voluntary Organization (CVO) member admonished FFF. Luzvilla saw Julito. Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was at the Perochos at the time of the commission of the crime. = Findings is consistent with Dr. the pertinent portion of which reads: P. He. Julito. This time. FFF arrived. Appellant¶s uncle Alejandro. he boxed appellant and asked again why he molested his daughter. Since the store is only about 20 meters from the house. sister-in-law of appellant¶s aunt. Gloria. Gaspar findings except No. Luzvilla. The penalty impos[a]ble upon the accused. Julito tightly embraced AAA and asked her what happened. who was wearing black short pants and black T-shirt. AAA did not answer.E. At 6:30 in the evening. FFF came in the second time and again boxed appellant. At 6:08 in the evening. Julito released her and went out of the house. Thus: WHEREFORE. Upon Antonia¶s advice. AAA was slowly following behind. appellant gave a different version of the story. he had a bolo pointed at appellant. who was wearing only a pair of black short pants without a shirt on. brandished a bolo. Luzvilla also followed FFF to the Perochos. pick up AAA on the road. He paced back and forth. On 26 March 2004. confirmed that he was in her house attending the birthday party. not appellant. however. Gaspar. According to her. therefore[. AAA came in crying. Dr. Antonia Perocho [Antonia]. AAA submitted herself to another examination at the provincial hospital on the following day. he was able to return after three (3) minutes. Bernardita M. FFF left but returned at around 8 o¶clock in the evening. boxed him.000 as rape indemnity and P50. Micabalo. Around 7:10. AAA¶s face was covered and she was wiggling. appellant¶s uncle sent him to the store to buy Tanduay Rum. including appellant and his uncle Alejandro Perocho [Alejandro]. she was watching the television along with other people at the house of Rita. Antonia testified that.8. running towards the house of Rita. Gloria. In addition. and that appellant went out between 6 and 7 in the evening to buy a bottle of Tanduay from the store. She went out to relieve herself at the side of the tree beside the road next to the house of the Perochos. 6 and 7 there is no bleeding in this time of examination.000.00 as moral damages.000. testified on the behavior of Julito after the rape incident was revealed. She also observed that appellant¶s white shorts and white sleeveless shirt were clean. and whenever he was asked to buy something from the store. and left. FFF tapped the left shoulder of the appellant. Luzvilla followed them. not with his parents whose house stands at the back of FFF¶s house. Just outside the house. Appellant further testified that at past 7 o¶clock in the evening. To corroborate his testimony. appellant was still in the kitchen when she returned.] is reduced to . Meanwhile. admitted that he occasionally worked for FFF. saw appellant at the kitchen having a drink with his uncle Alejandro and the rest of the visitors. At about 8 o¶clock in the morning of 28 January 2003. He was certain of the time because he had a watch . Julito embraced AAA and asked what the appellant did to her. He denied that there was a need to pass by the house of FFF in order to access the road or to fetch water. the dispositive portion of which reads: WHEREFORE. After 10 minutes. and accused him of molesting AAA. she saw Julito. Medical Officer III of the provincial hospital. Luzvilla even went further to state that she actually saw Julito. now in a white T-shirt. Appellant¶s aunt. With costs The defense moved to reopen trial for reception of newly discovered evidence stating that appellant was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the crime was committed on 28 January 2003. were gathered together in a drinking session. finding accused Hermie M. while the visitors. the lady of the house. On sur-rebuttal. attended to her and issued a medico-legal certificate dated 29 January 2003. the court sentences him to death and orders him to pay [AAA] P75. entered the house drunk. AAA always approached him.

Mateo and the Internal Rules of the Supreme Court allowing an intermediate review by the Court of Appeals of cases where the penalty imposed is death. the Court of Appeals AFFIRMED the decision of the trial court with the following MODIFICATIONS: xxx that Hermie M. Q What was that? . threat or intimidation. natural. xxxAppealed to this Court. Jacinto is ordered to indemnify the victim in the sum of P75. OMANDAM: xxxx Q You said Hermie laid you on the ground. AAA testified PROS. (2) in view of the intrinsic nature of the crime of rape in which only two persons are usually involved. Q When he mounted you what did he do. The vivid narration of the acts culminating in the insertion of appellant¶s organ into the vagina of five-year-old AAA and the medical findings of the physicians sufficiently proved such fact. Before the Court of Appeals. how were your legs positioned? A They were apart. P75. or (c) by means of fraudulent machination or grave abuse of authority. On 29 August 2007.000. and P25. or life imprisonment. I A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in the absence of any of the following circumstances: (a) through force. appellant argued that ³THE COURT A QUO GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF RAPE´ by invoking the principle that ³if the inculpatory facts and circumstances are capable of two or more reasonable explanations. did he move? A He moved his ass. though innocent. More so. as minimum.000. what else did he do to you? A He mounted me. when the testimony is supported by the medico-legal findings of the examining physician. Necessarily.reclusion perpetua. On 19 November 2007. we consider the three well-entrenched principles: (1) an accusation for rape can be made with facility. was he facing you? A Yes. then the evidence does not pass the test of moral certainty and will not suffice to support a conviction. the testimony of the complainant must be scrutinized with extreme caution. to disprove. the credible. Q Who pushed them apart? A Hermie. to seventeen (17) and four (4) months of reclusion temporal. Q When Hermie mounted you. the defense of alibi cannot prevail over the victim¶s positive identification of the perpetrator of the crime. Both parties manifested that they have exhaustively discussed their positions in their respective briefs and would no longer file any supplement. he made a push and pull movement.00 as civil indemnity. the Court of Appeals gave due course to the appellant¶s Notice of Appeal. the case was transferred to the Court of Appeals for its disposition in view of the ruling in People v. Further.´ Our Ruling We sustain the judgment of conviction.00 as moral damages. Q When he made a push and pull movement. and (3) the evidence for the prosecution must stand or fall on its own merits. it is difficult to prove but more difficult for the accused. This Court required the parties to simultaneously file their respective supplemental briefs.000. one of which is consistent with the innocence of the accused and the other with his guilt. Q Did Hermie push anything at you? A Yes. and cannot be allowed to draw strength from the weakness of the evidence for the defense. Appellant Hermie M.00 as exemplary damages and to pay the costs. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1) day to twelve (12) years of prision mayor. and convincing testimony of the victim may be sufficient to convict the accused. reclusion perpetua. (b) when the offended party is deprived of reason or otherwise unconscious. That the crime of rape has been committed is certain. removed your panty and boxed you. except when it is established that it was physically impossible for the accused to have been at the locus criminis at the time of the commission of the crime. as maximum. In the determination of the innocence or guilt of a person accused of rape.

says so. that it was accused. and that appellant was elsewhere when the crime was committed. asked him ³What is this incident. The credible testimony of AAA corroborated by the physician¶s finding of penetration conclusively established the essential requisite of carnal knowledge. The defense attempted to impute the crime to someone else ± one Julito Apiki. Further. Q Did you cry? A Yes. youth and immaturity are normally badges of truth and honesty. AAA had known appellant all her life. The defense would want us to believe that it was Julito who defiled AAA. the medical findings and the testimony of Dr. she says in effect all that is essential to show that rape was committed. The straightforward and consistent answers to the questions.´ and that such object could have been an erect male organ. that the redness of the introitus could have been ³the result of the repeated battering of the object. Julito Apiki. We should not. was convincing and persuasive. We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA. II The real identity of the assailant and the whereabouts of the appellant at the time of the commission of the crime are now in dispute. was steadfast and did not equivocate. Pare?´. Accused also admitted that on the same evening. their furtive glances. misconstrued. thus corroborating the latter¶s testimony that he confronted accused after hearing of the incident from the child. the supposed real culprit. When a woman. asserting that it was accused who is younger. and who was wearing a sleeveless shirt and shorts at the time he raped her. said it all ± she had been raped. especially when he is not a stranger to her. Q Where did he push his penis? A To my vagina. we cannot agree with the appellant that the trial court erred in finding his denial and alibi weak despite the presentation of witnesses to corroborate his testimony. Q Was it painful? A Yes. but the child. on rebuttal.´ On the other hand. . Q What was painful? A My vagina. sighs and the scant or full realization of their oath. calmness. In a long line of cases. who molested her. overlook the fact that a victim of rape could readily identify her assailant. Glaring inconsistencies were all over their respective testimonies that even destroyed the credibility of the appellant¶s very testimony. Moreover. this Court has consistently ruled that the determination by the trial court of the credibility of the witnesses deserves full weight and respect considering that it has ³the opportunity to observe the witnesses¶ manner of testifying. as correctly observed by the trial court: xxx His and his witness¶ attempt to throw the court off the track by imputing the crime to someone else is xxx a vain exercise in view of the private complainant¶s positive identification of accused and other corroborative circumstances. The certainty of the child. more so a minor. Significantly. however. Micabalo revealed that the hymenal lacerations at 5 o¶clock and 9 o¶clock positions could have been caused by the penetration of an object. or misinterpreted. overlooked. whom she called ³kuya´ and who used to play basketball and fetch water near their house.´ Further. who is older. unusually intelligent for one so young.´ unless it is shown that material facts and circumstances have been ³ignored.A His penis. appellant and AAA even walked together from the road near the store to the situs criminus that it would be impossible for the child not to recognize the man who held her hand and led her all the way to the rice field. and not Julito. which were phrased and re-phrased in order to test that AAA well understood the information elicited from her. considering that she could have a good look at him during the commission of the crime.

the defense of alibi cannot prosper. not her husband. Luzvilla¶s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho. The defense failed thuswise.Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay. we find the trial court¶s appreciation in order. Above all. it was only later. Its witnesses cannot qualify as such. for alibi to prosper. and that they had already been drinking long before he bought Tanduay at the store. wife of his uncle Alejandro. time and again. and after the rape incident because he was then at work. to tell her father that Hermie had raped her. Neither was the testimony of Luzvilla credible enough to deserve consideration. Paraiso. it is necessary that the corroboration is credible.´ Even assuming for the sake of argument that we consider the corroborations on his whereabouts. Just like appellant. Also. It was actually the fish vendor. The child declared that after being raped. She could have merely presumed that the accused slept all throughout. This was contradicted by the testimony of his aunt Gloria. that the court must be convinced that it would be physically impossible for the accused to have been at the locus criminis at the time of the commission of the crime. thus. the same having been offered preferably by disinterested witnesses. We reiterate. the testimonies of relatives and friends corroborating that of the appellant that he was in their company at the time of the commission of the crime were likewise disregarded by this Court in the following manner: . Luzvilla testified that Alejandro joined the drinking session. Further. On cross-examination. This belied Luzvilla¶s claim that Julito wore a white shirt on his way to the house of Rita. who asked appellant to buy Tanduay. and the defense. He must demonstrate that he was so far away and could not have been physically present at the scene of the crime and its immediate vicinity when the crime was committed. crying. In People v. during. she went straight home. still. as testified to by Gloria. She did not first drop into the house of Lita Lingkay to cry among strangers who were watching TV. When the child was seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan. Thus: xxx. she revealed that her husband was not around before. the distance of two thousand meters from the place of the commission of the crime was considered not physically impossible to reach in less than an hour even by foot. ³they being related or were one way or another linked to each other. a short-sleeved shirt. were consistent in saying that appellant wore a sleeveless shirt. Antonia recalled that AAA arrived at the house of Rita at 7:30. the drinking session started only after the appellant¶s errand to the store. as testified to by AAA and Julito. while both the prosecution. as Luzvilla Balucan would have the court believe. Luzvilla¶s recollection differ in that Julito wore a T-shirt (colored black and later changed to white). this Court disregarded the testimony of the defense witness attesting that the accused was fast asleep when she left to gather bamboo trees and returned several hours after. In People v. that he gave the bottle to his uncle. after she had been brought there by her mother Brenda so that Lita Lingkay could take a look at her just as Julito Apiki said. Physical impossibility refers to distance and the facility of access between the situs criminis and the location of the accused when the crime was committed. Antonia recalled that Julito arrived without a shirt on. This is contrary to Gloria¶s statement that her husband was at work. Inasmuch as it would take the accused not more than five minutes to rape the victim. In addition. contrary to Luzvilla¶s story that she saw AAA walking towards Rita¶s house three (3) minutes after she returned to the Perochos at 6:38 in the evening. and. Antivola. In this respect. He arrived from work only after FFF came to their house for the second time and boxed appellant.

68 of Republic Act No. unless the child is found to have acted with discernment. We recognize its retroactive application following the rationale elucidated in People v. in which case. is contrary to ordinary human experience. Clearly. All considered. 9344] allows the retroactive application of the Act to those who have been convicted and are serving sentence at the time of the effectivity of this said Act. 1997 is unacceptable. Likewise. not farfetched that the appellant easily sneaked out unnoticed. however. Nicolas. vouched for the appellant¶s physical presence in the fishpond at the time Rachel was raped. (Emphasis supplied. Unfortunately. then returned to the fishpond as if he never left. therefore. . appellant could have committed the rape after buying the bottle of Tanduay and immediately returned to his uncle¶s house. Such circumstance includes the gruesome nature of the crime and the minor¶s cunning and shrewdness. Imposable Penalty Sec. and along the way inveigled the victim. the appellant¶s part-time employer. brought her inside his house and ravished her. save from the 5-minute errand to the store. who. It was impossible for Marites to have kept an eye on the appellant for almost four hours. (Emphasis supplied. considering that the farmland where the crime was committed is just behind the house of the Perochos. and who were below the age of 18 years at the time of the commission of the offense. we find that the prosecution has sufficiently established the guilt of the appellant beyond reasonable doubt. With more reason. xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. the Court of Appeals correctly considered Republic Act No. admittedly was 50 meters away from the fishpond. was very much occupied with her task of counting and recording the fishes being harvested. Their claim that the appellant never left their sight the entire afternoon of December 4.) Criminal Liability. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age from criminal liability. in unison. 6 of Republic Act No. It is. and Marites Capalad. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3) years before it was enacted on 28 April 2006. ³the appropriate proceedings´ in accordance with the Act shall be observed.Ruben Nicolas. since she testified that she. III In the determination of the imposable penalty. could not have focused his entire attention solely on the appellant. the claim of the defense witnesses that appellant never left their sight. the Act should apply to this case wherein the conviction by the lower court is still under review. the appellant¶s sister-inlaw and co-worker. too. Mr. the defense failed to prove that it was physically impossible for appellant to have been at the time and place of the commission of the crime. Moreover. It is. it would take appellant only a few minutes to bring AAA from the road near the store next to the Perochos down the farmland and consummate the crime. As correctly pointed out by the Court of Appeals. was a stone¶s throw away from the fishpond. an established fact that the appellant¶s house where the rape occurred. Such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case. We determine discernment in this wise: Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. Sarcia: [Sec. the testimonies of his corroborating witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the crime.) As in the cases above cited.

therefore. Nonetheless. And. The respective awards of civil indemnity and moral damages in the amount of P75.00 each are.In the present case. appellant should be meted the penalty of reclusion perpetua. Civil Liability We have consistently ruled that: The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime committed. However. Appropriate Disposition after the Lapse of the Period of Suspension of Sentence Republic Act No. and (2) the privileged mitigating circumstance of minority of the appellant. proper. the proper imposable penalty for the accused-appellant is reclusion perpetua. however. calls for the reduction of the penalty: (1) the prohibition against the imposition of the penalty of death in accordance with Republic Act No. the penalty of death is still the penalty to be reckoned with. to seventeen (17) years and four (4) months of reclusion temporal. Automatic Suspension of Sentence. Leonardo-de Castro. when the offender is a minor under 18 years. but always in the proper period. for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority.00 to P30. which has the effect of reducing the penalty one degree lower than that prescribed by law. Likewise. it lowered the penalty one degree from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision mayor.] and (2) boxing the victim xxx. the Court of Appeals excluded death from the graduation of penalties provided in Article 71 of the Revised Penal Code. The following. as maximum. the amount of exemplary damages should be increased from P25. in its appreciation of the privileged mitigating circumstance of minority of appellant. 9346. We differ. the Court En Banc.000. Considering that she was only five (5) years old when appellant defiled her on 28 January 2003. Bon. In a more recent case.00 as civil indemnity and P75. Duration.00 as moral damages. regardless of whether the penalty actually imposed is reduced to reclusion perpetua. despite the presence of the privileged mitigating circumstance of minority which effectively lowered the penalty by one degree. pursuant to Article 68 of the Revised Penal Code.00. Accordingly. Thus: . in its medium period. clarified: Under Article 68 of the Revised Penal Code.000. The birth certificate of AAA shows that she was born on 3 December 1997. to weaken her defense´ are indicative of then seventeen (17) year-old appellant¶s mental capacity to fully understand the consequences of his unlawful action. (Emphasis supplied.000. the fact that the offender was still a minor at the time he committed the crime has no bearing on the gravity and extent of injury suffered by the victim and her family. Relying on People v. to prevent detection[.000. which would have warranted the imposition of the death penalty. we affirm the damages awarded by the Court of Appeals in the amount of P75. we agree with the Court of Appeals that: ³(1) choosing an isolated and dark place to perpetrate the crime. Thus. as minimum. the corresponding imposable penalty should be modified. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is pronounced. through the Honorable Justice Teresita J.) Accordingly.000. Consequently. the law prescribing the death penalty when rape is committed against a child below seven (7) years old applies. the penalty next lower than that prescribed by law shall be imposed. consistent with prevailing jurisprudence.

overturning the ruling in Gubaton. however. Since R. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court to cover heinous crimes in the application of the provision on the automatic suspension of sentence of a child in conflict with the law.SEC. or by [Senator Miriam Defensor-Santiago¶s] proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding.A.D. These developments notwithstanding. (Emphasis supplied. What matters is that the offender committed the offense when he/she was still of tender age. reclusion perpetua or life imprisonment. without need of application: Provided. and may have acted with discernment. No. which reflected the same position.) xxxx Applying Declarador v. The legislative intent reflected in the Senate deliberations on Senate Bill No. . 38. among others. Even in heinous crimes. instead of pronouncing the judgment of conviction. xxx (Italics supplied in Sarcia. appellant is now twenty-five (25) years old. but the welfare. we find that the benefits of a suspended sentence can no longer apply to appellant. the Court of Appeals held that. 603 and A. 38 of R. Gubaton. That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt. No. unlike P. No.D. by the Local Council for the Protection of Children (LCPC). the Court En Banc promulgated the Revised Rule on Children in Conflict with the Law. The age of the child in conflict with the law at the time of the promulgation of the judgment of conviction is not material. so long as he/she committed the crime when he/she was still a child. then the child could be recommended by the Department of Social Welfare and Development (DSWD).A. 603. The offender shall be entitled to the right to restoration. as amended. accused with. to give meaning to the legislative intent of the Act. However. 9344. Unfortunately.Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged. this Court promulgated the decision in Sarcia. the promotion of the welfare of a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-one (21) years. he/she has been convicted of an offense punishable by death. or may have committed a serious offense. rehabilitation and reintegration in accordance with the Act in order that he/she is given the chance to live a normal life and become a productive member of the community. 9344 does not distinguish between a minor who has been convicted of a capital offense and another who has been convicted of a lesser offense. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if. best interests. . consistent with Article 192 of Presidential Decree No. the Court is guided by the basic principle of statutory construction that when the law does not distinguish. maybe 16 years old to below 18 years old is charged. In construing Sec. which was promulgated on 18 August 2006. Meanwhile. No. and restoration of the child should still be a primordial or primary consideration. the court shall determine and ascertain any civil liability which may have resulted from the offense committed. Section 40 of the law and Section 48 of the Rule are clear on the matter.) On 24 November 2009. the court shall place the child in conflict with the law under suspended sentence. the intention should still be the child¶s restoration. The said P. rehabilitation and reintegration. 02-1-18-SC. Thus: The xxx provision makes no distinction as to the nature of the offense committed by the child in conflict with the law. the Court should also not distinguish and should apply the automatic suspension of sentence to a child in conflict with the law who has been found guilty of a heinous crime. Automatic Suspension of Sentence. Be that as it may.M. The pertinent portion of the deliberation reads: If a mature minor. on 10 September 2009. the aforestated provision does not apply to one who has been convicted of an offense punishable by death. reclusion perpetua or life imprisonment. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum age of twenty-one (21) years. we should not distinguish.

Following the pronouncement in Sarcia. 00213 finding appellant Hermie M. the case shall be remanded to the court of origin to effect appellant¶s confinement in an agricultrual camp or other training facility.00 as exemplary damages. and (2) appellant is ordered to pay the victim P75.00 as moral damages. ± A child in conflict with the law may. maintained. in lieu of confinement in a regular penal institution.000. 9344. 9344. in coordination with the DSWD. Sec. Jacinto guilty beyond reasonable doubt of qualified rape is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant is reduced to reclusion perpetua. JOSE PORTUGAL PEREZ Associate Justice . after conviction and upon order of the court. The case is hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of Republic Act No. supervised and controlled by the BUCOR. P75. and P30.Thus. WHEREFORE. appellant may be confined in an agricultural camp or any other training facility in accordance with Sec. 51 of Republic Act No.R. CR HC No. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. be made to serve his/her sentence.00 as civil indemnity.000. 51.000. SO ORDERED. in an agricultural camp and other training facilities that may be established. the Decision dated 29 August 2007 of the Court of Appeals in CA-G.

They alighted on Zabarte Road in front of the school. Branch 87. He and the victim¶s brother rushed the girl to the Sta. Novaliches. appellee. . did then and there willfully. Thereafter. RENATO GARCIA y ROMANO. appellant pleaded ³not guilty´. manage and operate the same along Zabarte Road in said City. NPJ-948 did then and there unlawfully and feloniously drive. On arraignment. However. But as Bentley was running towards his sister. causing as consequence of his said carelessness. managed and operated by him to hit and bump. while driving his passenger jeepney along Zabarte Road. she died four days later. 1998. 2004] PEOPLE OF THE PHILIPPINES. 1998. a passenger jeepney driven by appellant. from the elbow to the shoulder could be the result of the skin¶s contact with a rough surface. to the damage and prejudice of the heirs of the said Sanily Billon y Trinidad. the said accused. boarded a passenger jeepney on their way to Sacred Heart School in Barangay Kaligayahan. 1998. unlawfully and feloniously ran said vehicle over the victim thereby causing her serious and mortal wounds which were the direct and immediate cause of her untimely death. reckless. in Criminal Case No. J. negligence. the said vehicle so driven. Emmanuel Reyes. DECISION YNARES-SANTIAGO. trial on the merits followed. Medico-legal of the Southern Police District. the vehicle suddenly accelerated with its front tire running over Sanily¶s stomach. impudence and lack of precaution. February 23. The jeepney stopped. Sanily fell and was thrown to the ground a meter away from the vehicle. as in fact it hit and bumped Sanily Billon y Trinidad. testified that the attending physician. Philippines. negligent and impudent manner. she was transferred to the Quezon City General Hospital (QCGH) where she was operated. a pedestrian. he heard a thud. The prosecution alleged that at around 12:00 noon of May 22. Bentley Billon and his younger sister. No. Dr. He narrated that at around noon on May 22. 153591. hit her on the left side of the body. Sanily. thereafter. vs. Fort Bonifacio. who was writhing in excruciating pain. Lucia Hospital but due to lack of medical facilities. coming from Camarin and heading towards Quirino Highway. Bentley and appellant pulled Sanily. A week later. Santiago C. but they transferred her to the Quezon City General Hospital which has better facilities. Sagad. He immediately applied his breaks and alighted to check what it was. he learned that the victim died. he saw a boy crossing the street followed by the victim.: Appellant Renato Garcia y Romano was charged with Murder before the Regional Trial Court of Quezon City. resulting to her death due to internal bleeding. Appellant admitted having ran over the victim. by then and there making the said vehicle run at a speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to person/s of the traffic at said place at the time. He opined that the blunt force may have also caused lacerations in the victim¶s intestine and the abrasions on the arm. with intent to kill. While the vehicle was running. qualified by evident premeditation and use of motor vehicle. Bentley crossed the street and waited on the center island for Sanily to cross. noted lacerations in Sanily¶s liver and spleen which was caused by a blunt/strong force on the victim¶s body. but claimed that it was an accident. He saw to his horror a girl sprawled underneath his vehicle between the front and the rear tires. While Sanily was crossing the street. in a careless.[G. Dr.R. being then the driver and/or person in charge of an Isuzu Jitney bearing Plate No. CONTRARY TO LAW. Quezon City to attend remedial classes. Q-98-79961 in an Information which reads: That on or about the 22nd day of May. from underneath the vehicle and brought her to the Sta. Lucia Hospital. appellant. in Quezon City.

to wit: I THE TRIAL COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSEDAPPELLANT THE QUALIFYING CIRCUMSTANCE OF EVIDENT PREMEDITAION II THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS CHARGED. this is more consistent with the unrebutted evidence that the jeepney. during the space of time sufficient to arrive at a calm judgment. Bentley. The elements of evident premeditation are: (1) a previous decision by the appellant to commit the crime. the trial court rendered judgment. As such. Furthermore. the trial court erred in convicting appellant of the crime of murder qualified by evident premeditation. and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow appellant to reflect upon the consequences of his acts. Therefore. The issue to be resolved is whether or not appellant is guilty of murder or reckless imprudence resulting in homicide. we find that no sufficient time elapsed for appellant to decide to commit the crime and reflect on its consequences. which had no handbrake. must be resolved in favor of appellant. Fifty Thousand Pesos (P50. The victim¶s brother. was moving fast and that appellant became confused when the accident occurred. From his narration. there was no showing that appellant performed other overt acts to show that he was determined to commit murder. testified that the vehicle stopped after it bumped the victim. While it is possible that appellant deliberately ran over the victim. it is equally possible. .00) as civil indemnity for the death of Sanily and Five Hundred Thousand Pesos (P500. 2002. Hence this appeal. appellant¶s act of bringing the victim to the hospital despite numerous opportunities to flee from the scene is more compatible with a state of mind devoid of criminal intent. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent. the dispositive portion of which reads: WHEREFORE. finding appellant guilty beyond reasonable doubt of Murder and sentenced him to suffer the penalty of reclusion perpetua. Appellant argues that the trial court gravely erred in finding that the qualifying circumstance of evident premeditation attended the commission of the offense. These circumstances do not obtain in the case at bar. In view of the gravity of the offense involved. We find from a careful review of the facts on record that the unfortunate incident was more the result of reckless imprudence than of malicious intent. Moreover. but it moved forward and ran over the prostrate body of her sister. for which.00) as actual damages including attorney¶s fees. that the vehicle moved forward because appellant failed to control its momentum. He claims that he did not intentionally run over the victim when his vehicle bumped her because he was rattled and was no longer aware of what he was doing. Indeed. the trial court should have been more circumspect in weighing the evidence of both parties. Our own evaluation of the evidence reveals that appellant had no intention to kill the victim. Appellant could have reacted on instinct and relied on sheer impulse to respond to the situation at hand. SO ORDERED.On May 2. said RENATO GARCIA y ROMANO is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of Sanily Billon the sum of One Hundred and Twenty Three Thousand and Five Hundred Pesos (P123.00) as moral damages. he cannot be held liable for an intentional felony. raising the following errors. and not criminal intent. All reasonable doubt intended to demonstrate negligence. judgment is hereby rendered finding accused guilty beyond reasonable doubt of the crime of Murder. (2) an overt act/acts manifestly indicating that the appellant clung to his determination. The trial court held that appellant is guilty of murder qualified by evident premeditation because he deliberately ran over the slumped body of the victim.000.500. if not more probable.000. He contends that the mere allegation by the prosecution that he bumped the victim and intentionally ran over her body is not sufficient to establish evident premeditation. Cost against the accused.

the imprudencia punible. He should have observed due diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while passing the area. P58.000.000. to four (4) years and two (2) months of prision correccional. degree of intelligence. Jr. as maximum. doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. maximum to prision correccional. The award of exemplary damages is deleted for lack of factual basis. which is three (3) years.00 as actual damages must likewise be modified. it is his duty to be cautious. all those of his fellow-beings. Q-98-79961. but without malice.00 as civil indemnity. Carpio and Azcuna. Branch 87. each of which shall form one period. In intentional crimes.000. if not from instinct.Thus. careful. under Art. P50. Davide.S. and he is sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor. the Decision of the Regional Trial Court of Quezon City. we explained the rationale behind this crime as follows: A man must use common sense. 365 (2) of the Revised Penal Code. Applying the provisions of the Indeterminate Sentence Law. or occupation. minimum. what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment. the act itself is punished.00. what is principally penalized is the mental attitude or condition behind the act. v. appellant should be sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor. (Chairman).000.00 as moral damages.90 as actual damages and P50. Maleza.257. would ever be exposed to all manner of danger and injury. which is arresto mayor.. which ranges from two (2) years. six (6) months and twenty-one (21) days to four (4) years. appellant is guilty of reckless imprudence resulting in homicide defined in Article 365 of the Revised Penal Code. and place. the penalty shall be divided into three equal portions of time. The trial court correctly awarded P50. convicting appellant of the crime of murder is REVERSED and SET ASIDE. four (4) months and one (1) day to six (6) years. appellant is entitled to a minimum term to be taken from the penalty next lower in degree. lack of care or foresight.000. In U. rights and property. in fact.00 should be reduced to P50.. as minimum. JJ. Appellant is ordered to pay the heirs of the victim. in negligence or imprudence. Panganiban. C.000. and prudent. the award of moral damages in the amount of P500. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Appellant Renato Garcia y Romano is found guilty beyond reasonable doubt of the crime reckless imprudence resulting in homicide.00 as civil indemnity. and other circumstances regarding persons.90 for hospital bills and funeral expenses. Otherwise his own person. Costs de oficio. physical condition. Under Article 65 of the Revised Penal Code. Accordingly. and exercise due reflection in all his acts. spent P58. homicide resulting from reckless imprudence in the use of motor vehicle is prision correccional in its medium and maximum periods. as minimum. However. The mother of the victim presented receipts that they. time. . The fact that she received P40. as maximum. to four (4) years and two (2) months of prision correccional. the proper penalty shall be within the medium period.J.00 from insurance will not affect the award of actual damages. The imposable penalty.257. the dangerous recklessness. concur. Article 365 of the Revised Penal Code.000. Appellant showed an inexcusable lack of precaution when he disregarded a traffic sign cautioning motorists to slow down and drove his vehicle in full speed despite being aware that he was traversing a school zone and pedestrians were crossing the street. nine (9) months and ten (10) days. then through fear of incurring punishment. such as homicide or murder. There being no aggravating or mitigating circumstance. as amended. states that reckless imprudence consists in voluntarily. Compared to intentional felonies. as amended. in view of the foregoing. SO ORDERED. WHEREFORE. in Civil Case No. The award of P30.

they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Thus. Mendez. 2006 ROLLIE CALIMUTAN. Municipality of Aroroy. No. companion of the victim Cantre when the alleged crime took place.6 During the arraignment on 21 May 1997.m. at sitio Capsay. but along the way. On 04 February 1996.7 In the course of the trial. He also urged victim Cantre and petitioner Calimutan to just go home. unlawfully and feloniously attack. in the morning thereof. Their testimonies are collectively summarized below. 1996. (2) Belen B. upon seeing Bulalacao. did then and there willfully. victim Cantre stopped for a moment and held his back. Petitioner. allegedly committed as follows ± That on or about February 4. September 11. dated 29 August 2001. PEOPLE OF THE PHILIPPINES. even convincing petitioner Calimutan to put down another stone he was already holding. Respondents. petitioner Calimutan dashed towards the backs of victim Cantre and witness Sañano. Masbate. CR No. a Senior Medico-Legal Officer of the National Bureau of Investigation (NBI). The Information3 filed with the RTC charged petitioner Calimutan with the crime of homicide. petitioner Calimutan pleaded not guilty to the crime of homicide charged against him. mother of the victim. While Bulalacao ran away. 23306. DECISION CHICO-NAZARIO.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court. victim Cantre complained of the pain in the left side of his back hit by the stone. ET AL. When hit by the stone.. 1996. the above-named accused with intent to kill. as big as a man¶s fist. Masbate. hitting him at the back left portion of his body. had a drinking spree at a videoke bar in Crossing Capsay.1 affirming the Decision of the Regional Trial Court (RTC). Ronaldo B. namely: (1) Dr. Masbate. he was provisionally released5 after posting sufficient bailbond. together with two other companions.R.R. Province of Masbate. a warrant4 for the arrest of petitioner Calimutan.2 finding petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. On 09 January 1997. the RTC issued. Panique. resulting in laceration of spleen due to impact which caused his death a day after. Cantre. at around 10:00 a.. Barangay Panique. Masbate. J. 8184. of Masbate. however. Philippines within the jurisdiction of this Honorable Court. Witness Sañano accompanied victim Cantre to the latter¶s house. Victim Cantre was harboring a grudge against Bulalacao. on 02 December 1996. Witness Sañano put himself between the victim Cantre and petitioner Calimutan. in Criminal Case No. From the videoke bar. Aroroy. CONTRARY TO LAW. 152133 February 9. petitioner Rollie Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G. Philip Cantre. Petitioner Calimutan then picked up a stone. the prosecution presented three witnesses. and attempted to pacify the two. suspecting the latter as the culprit responsible for throwing stones at the Cantre¶s house on a previous night. the victim Cantre and witness Sañano proceeded to go home to their respective houses. vs.G. Branch 46. which he threw at victim Cantre. and on the way. Accordingly. and (3) Rene L. the victim Cantre and witness Sañano. dated 19 November 1998. victim Cantre suddenly punched him. hitting him at the left side of his back. assault and throw a stone at PHILIP CANTRE. . Sañano.

The Post-Mortem Examination Report10 and Certification of Death. His family would have wanted to bring him to a doctor but they had no vehicle. Aroroy. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996. Ulanday. he reported the following findings ± Body. he complained of backache and stomachache.0 cms.8 Victim Cantre immediately told his mother. when they met with the . along mid-line. Stomach contains small amount of whitish fluid and other partially digested food particles.0 cms. Conchita S. 16. 2. Ulanday.13 To counter the evidence of the prosecution. Masbate. In his testimony before the RTC. on their way to Crossing Capsay. Calimutan.12 after which. massive. Hematoma. Mendez confirmed the possibility that the victim Cantre was stoned to death by petitioner Calimutan. herein petitioner. He again complained of backache and also of stomachache. He was able to eat a little. Hence. posterior chest wall. fairly well-preserved with sign of partial autopsy. the defense presented the sole testimony of the accused. Dr. Belen. Hemoperitoneum. and was unable to eat. xxxx CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN. Other visceral organ. By nighttime.They arrived at the Cantre¶s house at around 12:00 noon. pale and embalmed. with the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation. The exhumation and autopsy of the body of the victim Cantre was conducted by Dr. victim Cantre was examined by Dr. requested for an exhumation and autopsy of the body of the victim Cantre by the NBI. Ronaldo B. Laceration.m. spleen. The laceration of the spleen can be caused by any blunt instrument. clotte [sic]. He explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. abdomen. stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning. He was sweating profusely and his entire body felt numb. Ulanday. Mendez affirmed the contents of his exhumation and autopsy report. on 04 February 1996. such as a stone. Dr. and shortly thereafter. of the following day. he died. when victim Cantre asked for some food. According to petitioner Calimutan.m. Michael Bulalacao. of the stoning incident involving petitioner Calimutan. the Municipal Health Officer of Aroroy.3 x 1. Masbate.0 x 8. victim Cantre was alternately feeling cold and then warm. Mendez on 15 April 1996.. but he also later vomited whatever he ate.. At around 3:00 a. Panique. at about 1:00 p. For the last time. and witness Sañano left victim Cantre to the care of the latter¶s mother. clad in white Barong Tagalog and blue pants placed inside a wooden golden-brown coffin and buried in a concrete niche. 05 February 1996. he was walking with his house helper.11 issued and signed by Dr.9 Right after his death. Contused-abrasion. Belen. left side. Belen was wiping his son with a piece of cloth. Unsatisfied with the findings of Dr. the Cantre family.

and victim Cantre chased after them. 249 of the Revised Penal Code with no mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum. WHEREFORE.000. The physical injury of hematoma as a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The Court of Appeals.00) Pesos as compensatory damages and the sum of Fifty Thousand (P50. Petitioner Calimutan allegedly reported the incident to a kagawad of Barangay Panique and to the police authorities and sought their help in settling the dispute between Bulalacao and the victim Cantre.15 On 19 November 1998. he still had a family to take care of. dated 29 August 2001.17 sustained the conviction of homicide rendered by the RTC against petitioner Calimutan. the victim Cantre died the following day. As far as he knew. No. vs. the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Art. Revised Penal Code. Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. 4 of the Revised Penal Code. petitioner Calimutan picked up a stone. The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one and the accused committed a felony causing physical injuries to the victim. to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as maximum. Bulalacao. Petitioner Calimutan attempted to pacify the victim Cantre but the latter refused to calm down. pulling out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble. The victim Cantre took hold of Bulalacao and punched him several times. The crime committed is Homicide as defined and penalized under Art. (Art.R. 310). the RTC rendered its Decision. 249 of the Revised Penal Code. and pronouncing that ± It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion. in its Decision. 1. and to indemnify the heirs of Philip Cantre the sum of Fifty Thousand (P50. Par. without subsidiary imprisonment in case of insolvency. The accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended. refused to seek medical help despite the advice of petitioner Calimutan and. 1964) One is not relieved from criminal liability for the natural consequences of one¶s illegal acts merely because one does not intend to produce such consequences (U. While it appears that the victim was the unlawful aggressor at the beginning. petitioner Calimutan was about ten meters away from the victim Cantre and was too frightened to move any closer for fear that the enraged man would turn on him. CA-G. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar on the night of 04 February 1996. Brobst. because after the boxing Michael was able to run. When he saw that the victim Cantre was about to stab Bulalacao. 4. People vs. Jan. instead.000. Petitioner Calimutan and Bulalacao then started to run away. The throwing of the stone to the victim which was a retaliatory act can be considered unlawful.00) Pesos as moral damages. and threw it at the victim Cantre. 13. hence the accused can be held criminally liable under paragraph 1 of Art. ratiocinating thus ± . meanwhile. chose to go back to his hometown. but witness Sañano was able to pacify the victim Cantre.14 Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident on 04 February 1996. 03532-CR.16 essentially adopting the prosecution¶s account of the incident on 04 February 1996. on 05 February 1996. because of food poisoning. either "to kill or be killed. but the aggression already ceased after Michael was able to run and there was no more need for throwing a stone. 14 Phil. Narciso. Petitioner Calimutan maintained that he had no personal grudge against the victim Cantre previous to the stoning incident.victim Cantre and witness Sañano. He was able to hit the victim Cantre on his right buttock. a stranger.S. which he described as approximately one-inch in diameter." At this point.

Conchita Ulanday. Besides. The Court of Appeals. he is entitled to acquittal (People vs. November 23. dated 15 January 2002. in its Resolution. as reported by Dr. 32146. Municipal Health Officer of Aroroy.18 denied the Motion for Reconsideration filed by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled upon in its Decision. As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar. The trial court¶s evaluation of the testimony of Dr. 1981). arguing that ± x x x [I]t was Dra.The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused by the stone thrown at the victim by the accused which. Masbate was the first physician of the government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that the cause of his death was due to food poisoning while the second government physician NBI Medico Legal Officer Dr. a Senior Medico Legal Officer of the NBI after the exhumation of the victim¶s cadaver« The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Delmendo. dated 29 August 2001. the accused-appellant does not deny. dated 19 November 1998.19 . if accused-appellant was convinced that the victim indeed died of food poisoning. She was not made available for cross-examination on the accuracy and correctness of her findings. Comes now petitioner Calimutan.R. finding accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED. why did they not present her as their witness to belie the report of the Medico-Legal Officer of the NBI. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose findings are at variance with each other materially. (2) consequently. Dr. in view of the foregoing. seeking (1) the reversal of the Decisions of the RTC. Conchita Ulanday. It resulted to a traumatic injury of the abdomen causing the laceration of the victim¶s spleen. dated 29 August 2001. Ronaldo Mendez. by way of the present Petition for Review on Certiorari. "C") of the MedicoLegal Officer of the NBI who testified and was cross-examined by the defense. the decision of the Regional Trial Court of Masbate. Conchita Ulanday stating that the cause of the victim¶s death was food poisoning. Dr. convicting him of the crime of homicide. Branch 46. and. This is clearly shown by the autopsy report prepared by Dr. WHEREFORE. Conchita Ulanday¶s post mortem report cannot prevail over the autopsy report (Exh. constituted reasonable doubt as to the liability of petitioner Calimutan for the said death. Ulanday was not even presented to testify in court hence she was not even able to identify and/or affirm the contents of her report. It was likewise shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim. No. Petitioner Calimutan contended that the existence of the two autopsy reports. it is humbly contended that the same issue raised a reasonable doubt on the culpability of the petitioner. and of the Court of Appeals. it suffices to reaise [sic] reasonable doubt as to the petitioner¶s guilt and therefore. G. Mendez is accorded the highest respect because it had the opportunity to observe the conduct and demeanor of said witness. his acquittal of the said crime based on reasonable doubt. with dissimilar findings on the cause of death of the victim Cantre.

splenic and gastric arteries) as well as the accompanying veins. both the RTC and the Court of Appeals had properly accorded it great weight and probative value. and having performed a thorough autopsy on the body of the victim Cantre. this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan liable for the death of the victim Cantre. Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre. Compression or blow on the area may cause detachment. then his report and testimony must be seriously considered by this Court. Mendez. whose "competency and academic qualification and background" was admitted by the defense itself. gynecology. located in the peritoneal cavity. The loop of the duodenum. forming a triangle bounded by the ribs on the two sides and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from any direction. whether in the manner by which Dr. resulted in the latter¶s death. They may sufficiently establish the causal relationship between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which. The area in the middle superior half of the abdomen. Moreover. In his testimony.23 and although it does not necessarily bind the courts.25 the same source expounds that ± The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and grinding effects of wheels of motor vehicles. One source explains the nature of abdominal injuries24 in the following manner ± The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the internal organs. Cyril H. and such other branches of medicine germane to the issues involved in a case. Dr. contusion of the organs (Legal Medicine 1980.22 Dr. such as the stone thrown by petitioner Calimutan at the victim Cantre. It bears to emphasize that Dr. 41). are vital pieces of evidence against petitioner Calimutan. In this triangle are found several blood vessels changing direction. Mendez¶s testimony as an expert witness is evidence. reference to other resource materials on abdominal injuries would also support the conclusion of Dr. p. stretch-stress. Wecht et.20 In the Petition at bar. Undoubtedly. toxicology..21 As a Senior Medico-Legal Officer of the NBI. Mendez clearly and consistently explained that the spleen could be lacerated or ruptured when the abdominal area was hit with a blunt object. The areas most vulnerable are the point of attachment of internal organs. an accused in a criminal case may only be convicted if his or her guilt is established by proof beyond reasonable doubt. Dr. the exhumation and autopsy report and the personal testimony before the RTC of prosecution witness.In this jurisdiction. subsequently. Mendez performed the autopsy on the body of the victim Cantre or in his findings. Dr. laceration. its branches (the hepatic. Having testified as to matters undeniably within his area of expertise. Mendez was presented by the prosecution as an expert witness. especially at the source of its blood supply and at the point where blood vessels change direction. in particular. surgery. his findings as to the cause of death of the victim Cantre are more than just the mere speculations of an ordinary person. NBI Senior Medico-Legal Officer Dr. Although the organ is protected at its upper portion by the ribs and . Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind. particularly the celiac trunk. Mendez is presumed to possess sufficient knowledge of pathology. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of his spleen. As to injuries to the spleen. the ligament of Treitz and the pancreas are in the retroperitoneal space. With no apparent mistake or irregularity. and the stomach and transverse colon are in the triangle. it does not demand absolute certainty and the exclusion of all possibility of error.

Ulanday. The laceration of the victim Cantre¶s spleen can be caused by a stone thrown hard enough. Invoking Dr. could rupture the spleen. The spleen. sledding and bicycle injuries. Other than being stoned by petitioner Calimutan. Injury to the spleen cannot. namely Sañano and Belen Cantre. the prosecution was able to establish that the proximate cause of the death of the victim Cantre was the stone thrown at him by petitioner Calimutan. unbroken by any efficient intervening cause. bounded by the rib cage. and fragile ± even without causing any other external physical injury. an injury sustained after being hit by a stone thrown at him by petitioner Calimutan. is the most frequently injured organ following blunt trauma to the abdomen or the lower thoracic cage. Based on the foregoing discussion. Hence. after being hit at the back by the stone thrown at him by petitioner Calimutan. the stone need not hit the victim Cantre from the front. there are some terms in the above-quoted paragraphs difficult to comprehend for people without medical backgrounds. Between the two of them. he died. superficial. Ulanday¶s post-mortem report. and blows incurred during contact sports are frequently implicated in children. the abdominal area is more than just the waist area. Therefore. Automobile accidents provide the predominating cause. the said witnesses accounted for the whereabouts. The post-mortem report. Accordingly. Not even the post-mortem report of Dr. x x x The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or lacerate the spleen ± an organ described as vulnerable. which qualifies as a nonpenetrating trauma26 ± Nonpenetrating Trauma. actions. there may not always be a perceptible external injury to the victim. until finally. 28 she found that "x x x . there are some points that can be plainly derived therefrom: (1) Contrary to common perception. Before the encounter with petitioner Calimutan and Bulalacao. the defense insisted on the possibility that the victim Cantre died of food poisoning. and physical condition of the victim Cantre during the said period. be attributed to an obvious. this Court is morally persuaded that the victim Cantre died from a lacerated spleen. produces the injury. Certainly. (2) The spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. However. alone or in combination with other viscera. does not necessarily contradict his testimony before the RTC that none of the external injuries of the victim Cantre were fatal. Proximate cause has been defined as "that cause. at all times. she held back from making a categorical statement that it was so. while falls. Ulanday in her post-mortem report. the findings of Dr. external injury such as a cut or bruise. the victim Cantre seemed to be physically fine. it is usually affected by trauma. there was no other instance when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration of his spleen.also by the air-containing visceral organs."27 The two other witnesses presented by the prosecution. as well as in the death certificate of the victim Cantre. and without which the result would not have occurred. which. yet on account of its superficiality and fragility. a closer scrutiny of the words used by Dr. Mendez that the victim Cantre died of internal hemorrhage from his lacerated spleen. The entire abdominal area is divided into different triangles. the victim Cantre had continuously complained of backache. can raise reasonable doubt as to the cause of death of the victim Cantre. though. Nevertheless. his physical condition rapidly deteriorated. Even impact from a stone hitting the back of the victim Cantre. in the area of the afore-mentioned triangle. reveals that although she suspected food poisoning as the cause of death. Subsequently. in natural and continuous sequence. x x x. and (3) Although the spleen had already been ruptured or lacerated. In the post-mortem report. cannot be given much weight and probative value for the following reasons ± First. and the cause of the laceration of the spleen was the stone thrown by petitioner Calimutan at the back of the victim Cantre. the Municipal Health Officer who first examined the body of the victim Cantre. had adequately recounted the events that transpired on 04 February 1996 to 05 February 1996. and the spleen is located in the upper triangle.

And in the Certification. CANTRE? A: I stated in the certification and even in the Death Certificate about "Food Poisoning".the provable (sic) cause of death was due to cardio-respiratory arrest. Food poisoning must be confirm (sic) by laboratory e(x)am. Second. 10. 29 she wrote that the immediate cause of death was "Cardio-Respiratory Arrest" and the antecedent cause was "Food Poisoning Suspect. Q: Did you conduct an autopsy on his cadaver? A: I did sir. I made an incision on the abdomen and I explored the internal organs of the cadaver with my hand in search for any clotting inside. sir. Q That was part of the autopsy you have conducted? . What I stated in the Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning." There was no showing that further laboratory tests were indeed conducted to confirm Dr. 08. Dr. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located? A: On the left portion of his back. is it possible that if somebody be hit by a hard object on that part of his body. Mendez described in his testimony before the RTC31 how he conducted the autopsy of the body of the victim Cantre. measuring as that size of a 25 centavo coin. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver." In the death certificate of the victim Cantre. Q: What gave you that suspicion of poisoning? A: As there were no external signs of fatal injuries except that of the contusion or abrasion. Ulanday¶s suspicion that the victim Cantre suffered from food poisoning. In contrast. 09. but not as exhaustive as that done by the NBI Medico-legal. I did not conduct an exhaustive autopsy. as follows ± Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case? A We opened the head. Did you open the body of the cadaver? A: As I have already stated sir. Q: Now. I did not open the body of the cadaver. Dr. 06. But that would depend on how strong or forceful the impact was. 07. Ulanday executed before the NBI a sworn statement30 in which she had explained her findings in the post-mortem report. I based my suspicion from the history of the victim and from the police investigation. I didn¶t state that he was a case of food poisoning. chest and the abdomen. what do you want to state regarding your certification on the death of PHILIP B. But I found none. and without such confirmation. sir. I even recommended that an examination be done to confirm that suspicion. to wit ± 05. his SPLEEN could be injured? A: Yes. her suspicion as to the cause of death remains just that ± a suspicion. Q: Now.

32 As this Court already expounded in the case of People v. (3) the evidence is at the disposal of . there is no showing that the eyewitnesses who were not presented in court as witnesses were not available to the accused. deserves to be given credence by the courts. The testimonies of the other witnesses may.A Yes. medico-legal officers of the NBI don¶t do what other doctors do as they make causes of death as internal hemorrhage we particularly point to the injury of the body like this particular case the injury was at the abdomen of the victim. Besides. Q What in particular internal organs you have examined? A The brain. Third. the lungs. If the prosecution has several eyewitnesses. xxxx Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen. as in the instant case. Q What particular organ are you referring to? A The spleen. Mendez and his definitive finding of a ruptured spleen as the cause of death of the victim Cantre. Jumamoy33 ± The prosecution's failure to present the other witnesses listed in the information did not constitute. as opposed to the exhaustive autopsy performed by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located? A Along the midline but the damaged organ was at the left. the heart. then the latter. the liver. sir. The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre provides an adequate explanation for their apparent inconsistent findings as to the cause of death. suppression of evidence. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful. what other matters did you do in connection therewith? A We examined the internal organs. sir. be dispensed with for being merely corroborative in nature. the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. without doubt. Comparing the limited autopsy conducted by Dr. that the prosecution no longer presented Dr. contrary to the contention of the accused. the kidneys. will you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen? A We. the pancreas plus the intestines. therefore. (2) the evidence suppressed or withheld is merely corroborative or cumulative. Q Aside from opening the head as well as the body of the victim Philip Cantre. Ulanday before the RTC despite being included in its list of witnesses did not amount to a willful suppression of evidence that would give rise to the presumption that her testimony would be adverse to the prosecution if produced.

" (People vs. While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen. Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence ± Reckless imprudence consists in voluntarily. As stated in Art. preventing the defense from calling on. perhaps believing that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her testimony. physical condition and other circumstances regarding persons. and (2) culpable felonies. and (4) the suppression is an exercise of a privilege. it being simply the incident of another act performed without malice. negligence. discussed in the succeeding paragraphs. The injury caused by the offender to another person is "unintentional. It was a judgment call for the prosecution to no longer present Dr. this Court. and petitioner Calimutan and his helper Bulalacao. In culpable felonies. in good conscience. While the evidence on record suggests that a running grudge existed between the . with the appropriate court processes. and conversely. or even compelling. in particular: (1) intentional felonies. doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act. he should have compelled their appearance. It should be remembered that the meeting of the victim Cantre and witness Sañano. or had completely overlooked. was a chance encounter as the two parties were on their way to different destinations. an injury which resulted from being hit by the stone thrown at him by petitioner Calimutan. The victim Cantre and witness Sañano were on their way home from a drinking spree in Crossing Capsay. on the one hand. is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or offense for which the petitioner should have been convicted for. attribute to petitioner Calimutan any malicious intent to injure. There are several circumstances. taking into consideration his employment or occupation. Instead. Ulanday to testify in court as its witness if it truly believed that her testimony would be adverse to the case presented by the prosecution. however. Moreover. while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed. the act or omission of the offender is malicious. by compulsory process. but without malice. 3.both parties. the victim Cantre. nonetheless. that substantiate the view of this Court that the death of victim Cantre was a result of petitioner Calimutan¶s reckless imprudence. on the other. 3. the act or omission of the offender is not malicious. much less to kill. degree of intelligence. that demonstrate petitioner Calimutan¶s lack of intent to kill the victim Cantre. this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide. In the language of Art. Sara. Dr. has the intention to cause an injury to another. There was nothing. the wrongful act results from imprudence. the significance of such circumstances. to testify as his own witnesses or even as hostile witnesses. time and place. Ulanday before the RTC. 55 Phil.34 In the Petition at bar. the act is performed with deliberate intent (with malice). this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code. as rendered by the RTC and affirmed by the Court of Appeals. this Court cannot. and in the absence of such intent. in performing the act or in incurring the omission. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender ± In intentional felonies. The offender. The RTC and the Court of Appeals may have failed to appreciate. 939). if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution. lack of foresight or lack of skill.

00 as moral damages. who was only 15 years old and stood at about five feet. petitioner Calimutan remains civilly liable for such death. the assailed Decision of the Court of Appeals in CA-G. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50. What is obvious to this Court was petitioner Calimutan¶s intention to drive away the attacker who was. CR No. 23306. He failed to consider that a stone the size of a man¶s fist could inflict substantial injury on someone. it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan. retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50. The above-described incident could not have taken more than just a few minutes.R. perhaps unaware. as earlier described. the victim Cantre could have hurt Bulalacao.000. This Court. under the pressure of the circumstances. WHEREFORE.000. dated 19 November 1998. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan. CHICO-NAZARIO Associate Justice . That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who.00 as civil indemnity for his death and another P50. or even completely disbelieving. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray. when they met on the road. Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latter¶s death. SO ORDERED. was forced to act as quickly as possible. Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide. in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. therefore. at 26 years of age and with a height of five feet and nine inches. that he could throw a stone with such force as to seriously injure.35 Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre. The attack of the victim Cantre was swift and unprovoked. affirming the Decision of the RTC in Criminal Case No. with no regard as to the position of the victim Cantre. despite being done with reckless imprudence rather than with malicious intent. kill someone. The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing. He also miscalculated his own strength. He suddenly punched Bulalacao. it does take into account that the victim Cantre was considerably older and bigger. 8184. dated 29 August 2001. Even with his bare hands.00 as civil indemnity for the latter¶s death and P50. With this in mind. the boy he attacked.000. which spurred petitioner Calimutan into responsive action. or at the very least. at that point. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife. at a quite lengthy distance of ten meters.00 as moral damages.000. and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. of harming the victim Cantre. it was the victim Cantre who was the initial aggressor. MINITA V. compared to Bulalacao. he threw the stone rashly and impulsively. his act was committed with inexcusable lack of precaution. or worse. the victim Cantre. much younger and smaller in built than the victim Cantre.victim Cantre and Bulalacao. the latter also desisted from any other act of violence against the victim Cantre. the helper and companion of petitioner Calimutan.1avvphil. It was a very brief scuffle.net In both versions of the events of 04 February 1996 submitted by the prosecution and the defense. under Article 365 of the Revised Penal Code. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. is hereby MODIFIED. and to protect his helper Bulalacao who was.

coordinate and reciprocal. 2009 LARRY V. vs. 76653²one for reckless imprudence resulting in damage to property²against petitioner Larry V. PEOPLE OF THE PHILIPPINES.: The right of a person using public streets and highways for travel in relation to other motorists is mutual.18 The sketch. who was also traversing Ortigas Avenue. and that the impact²which entered from the right-hand side of Arnold¶s car to the left²was established on the frontal center of the latter vehicle which thus caused the left-hand side of its hood to curl upward. Jr. who had earlier passed by Wack Wack Subdivision. 147437 May 8.1 He is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own. J. Respondent.16 a traffic investigator of the Mandaluyong Police Force who at the time was manning the police outpost in front of the Philippine Overseas Employment Administration Building. DECISION TINGA. sent it turning 180 degrees until it finally settled on the outer lane of Ortigas Avenue. Branch 163 in Criminal Case No. the road was wet.14 It appears that it was the fender on the left-hand side of petitioner¶s car that made contact with Arnold¶s car.5 This Petition for Review6 seeks the reversal of the Decision7 of the Court of Appeals in CA-G. was able to keep its momentum and general direction even upon impact²was stalled along Ortigas Avenue a few feet away from the intersection and facing the direction of San Juan whereas Arnold¶s car . Petitioner. shows petitioner¶s car² which.17 Patrolman Santos interrogated both petitioner and Arnold and made a sketch depicting the relative positions of the two colliding vehicles after the impact.13 The force exerted by petitioner¶s car heaved Arnold¶s car several feet away from the break in the island. the private offended party. The mishap occurred at approximately 7:45 in the evening.R.11 That night. CR No. 14819 dated 28 February 1995. Petitioner. No. Caminos.3 it is nevertheless his duty to operate his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others4 as well as for his own. The vehicles involved were a Mitsubishi Super Saloon9 driven by petitioner and a Volkswagen Karmann Ghia10 driven by Arnold Litonjua (Arnold).R. The assailed decision affirmed the judgment of conviction8 rendered by the Regional Trial Court of Pasig City. had contributed to the vehicular collision subject of the instant case. right in front of Gate 6 of East Greenhills Subdivision. signed by both petitioner and Arnold and countersigned by Patrolman Santos. but reduced the latter¶s civil liability on account of the finding that the negligence of Arnold Litonjua.12 Arnold. it seems. He prepared to make a left turn as he reached the intersection of Ortigas Avenue and Columbia Street. was headed towards the direction of San Juan and he approached the same intersection from the opposite direction.15 Arnold immediately summoned to the scene of the collision Patrolman Ernesto Santos (Patrolman Santos). The case is rooted on a vehicular collision that happened on the night of 21 June 1988 at the intersection of Ortigas Avenue and Columbia Street in Mandaluyong City. was traversing Ortigas Avenue toward the direction of Epifanio Delos Santos Avenue. JR.. CAMINOS.G.2 Although he is not an insurer against injury to persons or property. and as soon as he had maneuvered the turn through the break in the traffic island the Mitsubishi car driven by petitioner suddenly came ramming into his car from his right-hand side.

however.00. resident manager of Fewkes Corporation. was actually carefully traversing Ortigas Avenue on second gear. he stated that he had brought his car to a full stop before turning left but that the front portion thereof was already two (2) feet into the other lane of Ortigas Avenue and well beyond the median line of the traffic island.294.26 Arnold¶s testimony established that his vehicle was at a full stop at the intersection when the incident happened.00.28 On crossexamination. the lone defense witness."22 It also indicated that the vision of the drivers was obstructed by the "center island flower bed."21 was "turning left" whereas petitioner¶s car was "going straight" and was "exceeding lawful speed. came swerving from the outer lane of the road to the left and rushing toward the island where Arnold¶s car was executing a turn. was a company driver in the employ of Fortune Tobacco. Arnold¶s car. depicted by broken lines. testified that the estimation of the cost of repairs to be made on the car was initially made by SKB Motors Philippines.25 At the ensuing trial.had settled on the outer lane of Ortigas Avenue with its rear facing the meeting point of the median lines of the intersecting streets at a 45-degree angle. The estimation report dated 30 June 1988 showed the total cost of repairs to be P73. and that he even slowed down as he approached the intersection. which had "no right of way. In an effort to exonerate himself from liability. Mariano Tanigan. and it bloated the total cost of repairs to P139.27 Told by the trial court to demonstrate how the incident transpired. who was with him at the time of the incident.24 He entered a negative plea on arraignment.35 In its 18 September 1992 Decision. admitted that he personally made and signed the said estimation report and that Antonio had already delivered a check representing the payment for half of the total assessment. Inc. a traffic accident investigation report (TAIR)20 was forthwith issued by P/Cpl. The necessary works on the car. he executed a sketch which showed that his car had not yet invaded the portion of the road beyond the median line of the island and that the path taken by petitioner¶s car. the father of Arnold in whose name the Volkswagen car was registered. The report revealed that at the time of the collision.32 The estimation report was dated 13 December 1991. according to his own estimate. The trial court relied principally on the sketch made by Patrolman Santos depicting the post-collision positions of the two vehicles² that piece of evidence which neither of the parties assailed at the trial²and found that of the two conflicting accounts of how the collision happened it was Arnold¶s version that is consistent with the evidence. His speed at the time. Nato of the Eastern Police District. Inc.36 the trial court found petitioner guilty as charged. was between 25 and 30 kph because he had just passed by the stoplight located approximately 100 meters away at the junction of Ortigas Avenue and EDSA. It pointed . SKB Motors allegedly ceased in its operation.29 but he claimed on re-direct examination that he had stopped at the intersection in order to keep the traffic open to other vehicles and that it was then that petitioner bumped his car.30 Antonio Litonjua (Antonio).31 Meanwhile. He lamented that it was Arnold¶s car which bumped his car and not the other way around and that he had not seen Arnold¶s car coming from the left side of the intersection²which seems to suggest that Arnold¶s car was in fact in motion or in the process of making the turn when the collision occurred. claiming that that he."23 Petitioner was subsequently charged before the Regional Trial Court of Pasig City with reckless imprudence resulting in damage to property. he admitted the correctness of the entry in the TAIR to the effect that he was turning left when hit by petitioner¶s car. Antonio N. moments before the collision. he imputed negligence to Arnold as the cause of the mishap.962.19 At the close of the investigation. Patrolman Santos admitted having executed the sketch which depicts the post-collision positions of the two vehicles. assigned to drive for the company secretary.33 Ricardo Abrencia. had not been performed by SKB Motors because the needed materials had not been delivered. On re-cross examination. according to Antonio.34 Petitioner. so Antonio procured another repair estimation this time from Fewkes Corporation.

it recommends the reduction of both the fine and the civil indemnity as the same are beyond what the prosecution was able to prove at the trial.out that just because Arnold had no right of way. would have in fact noticed on-coming vehicles coming across his path had he employed proper precaution. however. The Court denies the petition.38 argues that petitioner¶s negligence is the proximate cause of the collision and that Arnold Litonjua¶s negligence was contributory to the accident which. The Court of Appeals agreed with the factual findings of the trial court. in its Comment. before entering the other lane of the road. degree of intelligence. (d) that material damage results. wanton or reckless disregard for the safety of others within the meaning of reckless driving statutes has been held to involve a conscious choice of a course of action which injures another. or with knowledge of facts which would disclose the danger to any reasonable person.39 Imprudence connotes a deficiency of action. physical condition and other circumstances regarding persons. does not bar recovery of damages. is solely to be blamed for the incident especially absent any showing that there was any obstruction to his line of sight. as shown in the TAIR. Reckless imprudence generally defined by our penal law consists in voluntarily but without malice.00 as well as a fine in the same amount.37 This notwithstanding. for vehicles that could likewise be possibly entering the intersection from his right side. whether or not one of the drivers of the colliding automobiles is guilty of the offense is a question that lies in the manner and circumstances of the operation of the motor vehicle. petitioner was still unsatisfied with the ruling of the appellate court. (b) that the act is voluntary. It concluded that petitioner. the trial court ordered petitioner to pay civil indemnity in the amount of P139. In its Decision dated 28 February 1995.41 Willful. namely.44 Among the elements constitutive of the offense.40 Thus. in prosecutions for reckless imprudence resulting in damage to property. either with knowledge of serious danger to others involved. he filed the present petition for review in which he maintains Arnold¶s own negligence was the principal determining factor that caused the mishap and which should thus defeat any claim for damages. (c) that the same is without malice. and (e) that there has been inexcusable lack of precaution on the part of the offender. doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act. by his voluntary act without malice.294. according to the trial court. Additionally. However. Seeking an acquittal. Accordingly. Petitioner.43 and a finding of guilt beyond reasonable doubt requires the concurrence of the following elements. and a willful and wanton disregard of the consequences is required. petitioner believes that the Court of Appeals had misapplied the principle of last clear chance in this case. time and place. taking into consideration his employment or occupation. the appellate court affirmed the judgment of conviction rendered by the trial court against petitioner. In declaring him liable to the charge despite the existence of negligence attributable to Arnold. it mitigated the award of civil indemnity on its finding that Arnold himself was likewise reckless in maneuvering a left turn inasmuch as he had neglected to look out. by reason of his own admission that he did not notice Arnold¶s car at the intersection. does not account for fault on his part since it was in fact petitioner¶s car that came colliding with Arnold¶s car. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes foreseen.42 Hence. The Office of the Solicitor General (OSG). what perhaps is most central to a finding of guilt is the conclusive determination that the accused has exhibited. (a) that the offender has done or failed to do an act. something more than mere negligence in the operation of a motor vehicle is necessary to constitute the offense of reckless driving. an inexcusable lack of precaution because it is that which supplies the criminal intent so indispensable as to bring an act of .

their truth must reasonably be admitted. moreover. however. Insofar as such facts are consistent with that finding. is necessarily subjective as it must conform to the peculiarities of a given case but in all cases.53 Speeding. No. as otherwise stated. not greater nor less than is reasonable and proper.A. our attention must necessarily drift to the most fundamental factual predicate. certainly.51 or. if we must determine whether petitioner in this case has shown a conscious indifference to the consequences of his conduct. It states: SEC. Inasmuch as the Revised Penal Code. the inquiry as to whether the accused could be held liable for the offense is a question that must be addressed by the facts and circumstances unique to a given case.54 This standard of reasonableness is actually contained in Section 35 of R.45 This. limb and property of any person. is indicative of imprudent behavior because a motorist is bound to exercise such ordinary care and drive at a reasonable rate of speed commensurate with the conditions encountered on the road. is one of the principal considerations in determining whether a motorist has been reckless in driving an automobile. that petitioner has not been able to discharge that burden inasmuch as the physical evidence on record is heavy with conviction way more than his bare assertion that his speed at the time of the incident was well within what is controllable. without regard to whether the private offended party may himself be considered likewise at fault. does not detail what particular act or acts causing damage to property may be characterized as reckless imprudence. however. nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead. on approach to the junction.46 that is.47 and evidence of the extent of the damage caused may show the force of the impact from which the rate of speed of the vehicle may be modestly inferred. and of any other condition then and there existing. shifts the burden of proof so as to require the accused to show that under the circumstances he was not driving in a careless or imprudent manner. of course. 4136. the width of the highway. .52 We find.48 While an adverse inference may be gathered with respect to reckless driving49 from proof of excessive speed under the circumstances50 ²as in this case where the TAIR itself shows that petitioner approached the intersection in excess of lawful speed²such proof raises the presumption of imprudent driving which may be overcome by evidence. Rate of speed. and no person shall drive any motor vehicle upon a highway at such speed as to endanger the life. Aside from the entry in the TAIR. The fact that the hood of Arnold¶s car was violently wrenched as well as the fact that on impact the car even turned around 180 degrees and was hurled several feet away from the junction to the outer lane of Ortigas Avenue²when in fact Arnold had already established his turn to the left on the inner lane and into the opposite lane²clearly demonstrate that the force of the collision had been created by a speed way beyond what petitioner¶s estimation. the physical evidence on record likewise seems to negate petitioner¶s contention. And we proceed from petitioner¶s contention that at the time the collision took place.²(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed. having due regard for the traffic. which noted petitioner¶s speed to be beyond what is lawful. Restriction as to speed. Indeed. The photographs taken of Arnold¶s car clearly show that the extent of the damage to it could not have been caused by petitioner¶s car running on second gear at the speed of 25-30 kph. in connection with other circumstances. it is that which will enable the driver to keep the vehicle under control and avoid injury to others using the highway. however. Thus. as with all criminal prosecutions. the facts of this case do warrant a finding that petitioner.mere negligence and imprudence under the operation of the penal law. What is reasonable speed. because a conscious indifference to the consequences of the conduct is all that that is required from the standpoint of the frame of mind of the accused. he was carefully driving the car as he in fact approached the intersection on second gear and that his speed allegedly was somewhere between 25 and 30 kph which under normal conditions could be considered so safe and manageable as to enable him to bring the car to a full stop when necessary. 35. was traveling at a speed far greater than that conveniently fixed in his testimony.

where the view at an intersection is obstructed and an approaching motorist cannot get a good view to the right or left until he is close to the intersection. the inescapable conclusion is that he had inexcusably breached the elementary duties of a responsible. it defies logic to accord even a semblance of truth to petitioner¶s assertion that he had not seen Arnold¶s car entering the intersection laterally from his left especially when the said car admittedly had already taken two feet of the other lane of the road²the lane on which petitioner was proceeding to cross²and well beyond the median line of the intersecting road on which Arnold proceeded after making the turn. Indeed. that a motorist actually foresee the probability of harm or that the particular injury which resulted was foreseeable. enable him to arrest his momentum and forestall the certainty of the collision. 56 It is must be stressed that this restriction on speed assumes more importance where the motorist is approaching an intersection. It is not necessary. Ordinary or reasonable care in the operation of a motor vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street or highway. then with more reason that he exhibit a relatively higher level of care when the intersection is blind at the point where the roads meet. the degree of care and attention required of a driver in a particular case in exercising reasonable care will vary with and must be measured in the light of all the surrounding circumstances. knowing what he knew or should have known. Since he is chargeable with what he should have observed only had he exercised the commensurate care required under the circumstances of the case. nevertheless.65 The ultimate test. prudent and reasonable motorist. is to be found in the reasonable foreseeability that harm might result if commensurate care is not exercised.57 A driver approaching an intersection is generally under duty.62 On this score. however. it would suffice that he.Even apart from statutory regulations as to speed.63 In other words. to be vigilant and to have the vehicle under control as to be able to stop at the shortest possible notice. among others. prudence would dictate that he take particular care to observe the traffic before entering the intersection or otherwise use reasonable care to avoid a collision. to put the vehicle to a full stop to avoid injury to others using the highway. in other words. anticipate that harm of a general nature as that suffered was to materialize. in the position of an ordinary prudent man. In general. he must look for vehicles that might be approaching from within the radius that denotes the limit of danger. a motorist is nevertheless expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the conditions encountered 55 which will enable him to keep the vehicle under control and. such that it must be commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle.58 that is. In other words. inasmuch as he (Arnold). what brings certain failure in petitioner¶s case is his own admission that he had not seen Arnold¶s car making a left turn at the intersection. as shown by the evidence. It can only be surmised at this point that petitioner had inexcusably fallen short of the standard of care in a situation which called for more precaution on the highway in failing to make an observation in the interest at least of his own safety whether or not it was safe to enter the crossing. had been able to establish himself at the intersection significantly ahead of petitioner. as in fact it did not.66 The evidence in this case is teeming with suggestion that petitioner had failed to foresee the certainty of the collision that was about to happen as he entered the junction in question . Of course. whenever necessary. not even the fact that the view at the intersection was blocked by the flower bed on the traffic island could provide an excuse for petitioner as it has likewise been established that he approached the intersection at such a speed that could not.60 which means that he is bound is to move with the utmost caution until it is determinable that he can proceed safely and at the slowest speed possible61 so that the vehicle could be stopped within the distance the driver can see ahead.59 Since compliance with this duty is measured by whether an approaching motorist has exercised the level of precaution required under the circumstances. there had been an arduous debate at the trial as to whether Arnold¶s car was in motion or at a full stop at the intersection moments before the collision. he must observe a sense of proportionality between precaution and the peculiar risks attendant or even inherent in the condition of the road64 which are open to ordinary observation.

especially considering that his lateral vision at the intersection was blocked by the structures on the road. In the same way, he failed to solidly establish that such failure to foresee the danger lurking on the road could be deemed excusable as indeed his contention that he was running at a safe speed is totally negated by the evidence derived from the physical facts of the case. Yet, petitioner clings to a chance of acquittal. In his petition, he theorizes that the negligence of Arnold, which according to the Court of Appeals was incipient in character, was actually the principal determining factor which caused the mishap and the fact that the TAIR indicated that Arnold had no right of way, it is he himself who had the status of a favored driver. The contention is utterly without merit. In traffic law parlance, the term "right of way" is understood as the right of one vehicle to proceed in a lawful manner in preference to another approaching vehicle under such circumstances of direction, speed and proximity as to give rise to a danger of collision unless one of the vehicles grants precedence to the other.67 Although there is authority to the effect that the right of way is merely of statutory creation and exists only according to express statutory provision,68 it is generally recognized, where no statute or ordinance governs the matter, that the vehicle first entering an intersection is entitled to the right of way, and it becomes the duty of the other vehicle likewise approaching the intersection to proceed with sufficient care to permit the exercise of such right without danger of collisions.69 In our setting, the right of way rule is governed by Section 42 of Republic Act (R.A.) No. 4136,70 which materially provides: Section 42. Right of Way. (a) When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise hereinafter provided. The driver of any vehicle traveling at an unlawful speed shall forfeit any right which he might otherwise have hereunder. (b) The driver of a vehicle approaching but not having entered an intersection shall yield the right of a way to a vehicle within such intersection or turning therein to the left across the line of travel of such first-mentioned vehicle, provided the driver of the vehicle turning left has given a plainly visible signal of intention to turn as required in this Act. x x x. The provision governs the situation when two vehicles approach the intersection from the same direction and one of them intends make a turn on either side of the road. But the rule embodied in the said provision, also prevalent in traffic statutes in the United States, has also been liberally applied to a situation in which two vehicles approach an intersection from directly opposite directions at approximately the same time on the same street and one of them attempts to make a left-hand turn into the intersecting street, so as to put the other upon his right, the vehicle making the turn being under the duty of yielding to the other.71 Nevertheless, the right of way accorded to vehicles approaching an intersection is not absolute in terms. It is actually subject to and is affected by the relative distances of the vehicles from the point of intersection.72 Thus, whether one of the drivers has the right of way or, as sometimes stated, has the status of a favored driver on the highway, is a question that permeates a situation where the vehicles approach the crossing so nearly at the same time and at such distances and speed that if either of them proceeds without regard to the other a collision is likely to occur.73 Otherwise stated, the statutory right of way rule under Section 42 of our traffic law applies only where the vehicles are approaching the intersection at approximately the same time and not where one of the vehicles enter the junction substantially in advance of the other. Whether two vehicles are approaching the intersection at the same time does not necessarily depend on which of the vehicles enters the intersection first. Rather, it is determined by the imminence of collision when the

relative distances and speeds of the two vehicles are considered.74 It is said that two vehicles are approaching the intersection at approximately the same time where it would appear to a reasonable person of ordinary prudence in the position of the driver approaching from the left of another vehicle that if the two vehicles continued on their courses at their speed, a collision would likely occur, hence, the driver of the vehicle approaching from the left must give the right of precedence to the driver of the vehicle on his right.751avvphi1 Nevertheless, the rule requiring the driver on the left to yield the right of way to the driver on the right on approach to the intersection, no duty is imposed on the driver on the left to come to a dead stop, but he is merely required to approach the intersection with his vehicle under control so that he may yield the right of way to a vehicle within the danger zone on his right.76 He is not bound to wait until there is no other vehicle on his right in sight before proceeding to the intersection but only until it is reasonably safe to proceed.77 Thus, in Adzuara v. Court of Appeals,78 it was established that a motorist crossing a thru-stop street has the right of way over the one making a turn; but if the person making the turn has already negotiated half of the turn and is almost on the other side so that he is already visible to the person on the thru-street, he is bound to give way to the former. Moreover, in a prosecution for reckless or dangerous driving, the negligence of the person who was injured or who was the driver of the motor vehicle with which the accused¶s vehicle collided does not constitute a defense.79 In fact, even where such driver is said to be guilty of a like offense, proof thereof may never work favors to the case of the accused.80 In other words, proof that the offended party was also negligent or imprudent in the operation of his automobile bears little weight, if at all, at least for purposes of establishing the accused¶s culpability beyond reasonable doubt. Hence, even if we are to hypothesize that Arnold was likewise negligent in neglecting to keep a proper lookout as he took a left turn at the intersection, such negligence, contrary to petitioner¶s contention, will nevertheless not support an acquittal. At best, it will only determine the applicability of several other rules governing situations where concurring negligence exists and only for the purpose of arriving at a proper assessment of the award of damages in favor of the private offended party. But it must be asked: do the facts of the case support a finding that Arnold was likewise negligent in executing the left turn? The answer is in the negative. It is as much unsafe as it is unjust to assume that Arnold, just because the TAIR so indicated that he at the time had no right of way, that Arnold had performed a risky maneuver at the intersection in failing to keep a proper lookout for oncoming vehicles. In fact, aside from petitioner¶s bare and self-serving assertion that Arnold¶s fault was the principal determining cause of the mishap as well as his allegation that it was actually Arnold¶s car that came colliding with his car, there is no slightest suggestion in the records that could tend to negate what the physical evidence in this case has established. Clearly, it was petitioner¶s negligence, as pointed out by the OSG, that proximately caused the accident.1avvphi1 Finally, on the issue of damages, inasmuch as petitioner had not extended efforts to present countervailing evidence disproving the extent and cost of the damage sustained by Arnold¶s car, the award assessed and ordered by the trial court must stand. All told, it must be needlessly emphasized that the measure of a motorist¶s duty is such care as is, under the facts and circumstances of the particular case, commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle, and in proportion to or commensurate with the peculiar risk attendant on the circumstances and conditions in the particular case,81 the driver being under the duty to know and to take into consideration those circumstances and factors affecting the safe operation of the vehicle which would be open to ordinary observation.82 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 14819 dated 28 February 1995 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Pasig, Branch 163 in Criminal Case No. 76653 dated 18 September 1992 is REINSTATED. SO ORDERED. DANTE O. TINGA Associate Justice

ELVIRA YU OH, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No. CR No. 16390, promulgated on January 30, 1996, affirming the conviction of petitioner Elvira Yu Oh by the Regional Trial Court (RTC), Branch 99, Quezon City and the resolution dated May 30, 1996 which denied her motion for reconsideration. The facts as borne by the records are as follows: Petitioner purchased pieces of jewelry from Solid Gold International Traders, Inc., a company engaged in jewelry trading. Due to her failure to pay the purchase price, Solid Gold filed civil cases against her for specific performance before the Regional Trial Court of Pasig. On September 17, 1990, petitioner and Solid Gold, through its general manager Joaquin Novales III, entered into a compromise agreement to settle said civil cases. The compromise agreement, as approved by the trial court, provided that petitioner shall issue a total of ninetynine post-dated checks in the amount of P50,000.00 each, dated every 15th and 30th of the month starting October 1, 1990 and the balance of over P1 million to be paid in lump sum on November 16, 1994 which is also the due date of the 99th and last postdated check. Petitioner issued ten checks at P50,000.00 each, for a total of P500,000.00, drawn against her account at the Equitable Banking Corporation (EBC), Grace Park, Caloocan City Branch. Novales then deposited each of the ten checks on their respective due dates with the Far East Bank and Trust Company (FEBTC). However, said checks were dishonored by EBC for the reason ³Account Closed.´ Dishonor slips were issued for each check that was returned to Novales. On October 5, 1992, Novales filed ten separate Informations, docketed as Criminal Cases Nos. 92-26243 to 9236252 before the RTC of Quezon City charging petitioner with violation of Batas Pambansa Bilang 22, otherwise known as the Bouncing Checks Law. Except for the dates and the check numbers, the Informations uniformly allege: That on or about the « in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to JOAQUIN P. LOVALES III to apply on account or for value Equitable Banking Corp. Grace Park Caloocan Branch Check No. « dated « payable to SOLID GOLD INTERNATIONAL TRADERS, INC. in the amount of P50,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said SOLID GOLD INTERNATIONAL TRADERS, INC. the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW. The cases were consolidated and subsequently raffled to Branch 99 of the said RTC. Upon arraignment, accused pleaded not guilty. Trial then ensued. On December 22, 1993, the RTC rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court finds the accused GUILTY of ten counts of violation of BP 22 and hereby sentences her to a penalty of one year imprisonment for each count, or a total of ten years, to be served in accordance with the limitation prescribed in par. 4, Article 70 of the Revised Penal Code and to indemnify complainant the amount of the checks in their totality, or in the amount of P500,000.00.

SO ORDERED. the Court of Appeals affirmed the decision of the trial court with costs against appellant. 22 of the Revised Penal Code (RPC). 7691 in view of Art. Hence. it failed to consider that the reason of ³closed account´ for the dishonor of the ten checks in these cases is not the statutory cause to warrant prosecution. THUS IN EFFECT RENDERING THE JUDGMENT OF CONVICTION PROMULGATED BY THE TRIAL COURT BELOW AND AFFIRMED BY THE COURT OF APPEALS PATENTLY NULL AND VOID FOR HAVING BEEN RENDERED WITHOUT OR IN EXCESS OF JURISDICTION. if any. We will resolve the first and third issues before considering the second issue. it overlooked the fact that no notice of dishonor had been given to the appellant as drawer of the dishonored checks. the issues of this case may be stated as follows: (1) whether or not the appellate court erred in not granting retroactive effect to Republic Act No. AND IN SO DOING THE DECISION APPEALED FROM INDULGED ITSELF IN ³JUDICIAL LEGISLATION´ TO FAVOR THE PROSECUTION AND TO WORK GRAVE INJUSTICE TO THE ACCUSED. II THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING IN FAVOR OF ACCUSEDAPPELLANT THE FACT THAT NO NOTICE OF DISHONOR HAD BEEN GIVEN HER AS DRAWER OF THE DISHONORED ³CHECKS´ PURSUANT TO THE REQUIREMENT EXPRESSLY PROVIDED UNDER BATAS PAMBANSA BILANG 22. it failed to consider that there is only one act which caused the offense. NO. . SUBSTANTIVE AND REMEDIAL OR PROCEDURAL. 22 OF THE REVISED PENAL CODE. 22. Petitioner appealed to the Court of Appeals alleging that: the RTC has no jurisdiction over the offense charged in the ten informations. Finding the appeal to be without merit. OR LIBERALLY IN FAVOR OF THE ACCUSED´ AND THAT ³IT IS ALWAYS THE DUTY OF THE COURT TO RESOLVE THE CIRCUMSTANCES OF EVIDENCE UPON A THEORY OF INNOCENCE RATHER THAN UPON A THEORY OF GUILT WHERE IT IS POSSIBLE TO DO SO´. Blg.A. Blg. herein petition raising the following errors: I THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING THE JURISDICTIONAL ISSUE IN FAVOR OF THE ACCUSED-APPELLANT BY UNJUSTLY DEPRIVING HER OF THE LEGAL BENEFITS OF GIVING RETROACTIVE EFFECT TO THE PROVISIONS OF R. 7691 EXPANDING THE JURISDICTION OF THE INFERIOR COURTS TO COVER THE OFFENSES INVOLVED IN THESE CASES PURSUANT TO ART. and (3) whether or not the appellate court erred in construing B. 185 of the Negotiable Instruments Law. 22. Simply worded. III THAT THE COURT OF APPEALS ERRED IN CONSTRUING THE PROVISIONS OF BATAS PAMBANSA BILANG 22 CONTRARY TO THE WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT ³PENAL STATUTES. BY THE CONSECRATED RULE.P. much more a conviction. and it disregarded the definition of what a µcheck¶ is under Sec. CONSTRUED STRICTLY AGAINST THE STATE. under B.P. and not ten separate cases. ARE. (2) whether or not notice of dishonor is dispensable in this case.

P. as defined by this Court. Said provision reads: ART. as this term is defined in Rule 5 of Article 62 of this Code. No. in this case. laws defining the jurisdiction of courts are substantive in nature and not procedural for they do not refer to the manner of trying cases but to the authority of the courts to hear and decide certain and definite cases in the various instances of which they are susceptible. counters that the arguments of petitioner are baseless contending that: penal laws are those which define crimes and provides for their punishment. Neither from an express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the RTC prior to its effectivity. although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving sentence. 7691. which took effect on April 24. erstwhile tried exclusively by the Regional Trial Courts. Consequently.A. Petitioner argues that: the failure of the appellate court to give retroactive application to R. 7691 is not a penal law. R. Retroactive effect of penal laws. No. ± Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony. R.A. R. at that time.A. neither does it treat of the nature of crimes and its punishment.00. 7691 does not prohibit certain acts or provides penalties for its violation.A. 7691 was not yet effective. 22 of the RPC finds no application to the case at bar. Municipal Circuit Trial Courts and the Metropolitan Trial Court´ whereby it reapportions the jurisdiction of said courts to cover certain civil and criminal case. 7691 is concerned.A. and the Court of Appeals is guilty of judicial legislation in stating that after the arraignment of petitioner. 7691 is a penal law in the sense that it affects the jurisdiction of the court to take cognizance of criminal cases. the Court fully agrees with the Solicitor General and holds that Article 22 of the Revised Penal Code finds no application to the case at bar. Art. 22 of the RPC does not apply in the present case. where it was held: ³[a] perusal of R.000. Art. in its Comment. 7691. No. in so far as the retroactive effect of R. taken separately. R. 22. 22 of the Revised Penal Code which provides that penal laws shall have retroactive effect insofar as they favor the person guilty of the felony. 7691 is a violation of Art. It also defines crime. No. 7691 is laid down in the opening sentence thereof as ³An Act Expanding the Jurisdiction of the Municipal Trial Courts. No. The Solicitor General. said cases could no longer be transferred to the MTC without violating the rules on double jeopardy. who is not a habitual criminal.A. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. B. . the purpose of enacting R. 7691 is a substantive law and not a penal law as nowhere in its provisions does it define a crime neither does it provide a penalty of any kind. jurisdiction is determined by the law in force at the time of the filing of the complaint.A. and therefore. Yolanda Velasco. consequently. No.´ On this point. because that is not so provided in R. R. is an act of the legislature that prohibits certain acts and establishes penalties for its violations. and once acquired. that same is limited only to pending civil cases that have not reached pre-trial stage as provided for in Section 7 thereof and as clarified by this Court in People vs. 7690 in view of Article 22 of the RPC. or both such fine and imprisonment at the discretion of the court. the RTC was vested with jurisdiction to try petitioner¶s cases when the same were filed in October 1992. 1979. the offense covered by each of the ten Informations in this case falls within the exclusive original jurisdiction of the Municipal Trial Court under Sec.A.A.A. 22. No. jurisdiction is not affected by subsequent legislative enactments placing jurisdiction in another tribunal. treats of its nature and provides for its punishment. Blg.First issue ± Whether or not the Court of Appeals erred in not giving retroactive effect to R.A.A. provides the penalty of imprisonment of not less than thirty days but not more than one year or by a fine of not less than but not more then double the amount of the check which fine shall in no case exceed P200. A penal law. 2 of R.

P. Municipal and Municipal Circuit Trial Courts jurisdiction to try cases punishable by imprisonment of not more than six (6) years. . where the law is clear and unambiguous. Since R. 7691 vests jurisdiction on courts. Petitioner insists that: penal statutes must be strictly construed and where there is any reasonable doubt. 22 was initially explained by the Court in the landmark case of Lozano vs. There is therefore no merit in the claim of petitioner that R. The Court has held that a ³law vesting additional jurisdiction in the court cannot be given retroactive effect. injure the banking system and eventually hurt the welfare of society and the public interest. or whether issued in payment of preexisting obligations or given in mutual or simultaneous exchange for something of value. but an offense against public order. The mischief it creates is not only a wrong to the payee or holder but also an injury to the public. and vested on the Metropolitan.P. 22 embraces cases of ³no funds´ or ³closed accounts´ when the express language of B. Because of its deleterious effects on the public interest. . multiplied a thousandfold.R. 7691 was not yet in force at the time of the commencement of the cases in the trial court. Again. Blg. whether present dated or postdated.A. which is the date indicated on the face of the postdated check. Blg. The effects of the issuance of a worthless check transcend the private interests of the parties directly involved in the transaction and touches the interests of the community at large. Martinez where we held that: The gravamen of the offense punished by B. No. Blg. 7691 should be retroactively applied to this case and the same be remanded to the MTC. hence. No.. No.P. It also points out that the doctrine laid down in Lozano vs. The law punished the act not as an offense against property. under pain of penal sanctions. the practice is proscribed by law.P. it is apparent that said law is substantive.P. Court of Appeals. Martinez was reiterated in People vs. but an ordinary bill of exchange payable at a fixed date. a postdated check. but only civilly and not criminally.´ R. has enlarged by implication the meaning of the statute which amounts to judicial legislation. The Solicitor General counters that a postdated check is still a check and its being a postdated instrument does not necessarily make it a bill of exchange ³payable at a fixed or determinable future time´ since it is still paid on demand on the date indicated therein or thereafter just like an ordinary check. can very well pollute the channels of trade and commerce. 1994. hence. we agree with the Solicitor General and find petitioner¶s claim to be without merit. Martinez that the ³language of B. Blg. the trial court also erroneously cited a portion in the case of Lozano vs. is technically not a special kind of a bill of exchange. not being drawn payable on demand. Blg. the making or worthless checks and putting them in circulation. amended B. it can no longer be argued that the statement in the case of Lozano regarding the scope of ³checks´ is mere obiter dictum. No.P. 129. called check. It took effect only during the pendency of the appeal before the Court of Appeals. this Court held that ³jurisdiction being a matter of substantive law.´ Third issue ± Whether or not the Court of Appeals erroneously construed B. 7691 which took effect on June 15. 22 penalizes only the issuance of checks that are subsequently dishonored by the drawee bank for ³insufficiency´ of funds or credit. it must always be resolved in favor of the accused. the law must be taken as it is. Blg. The rationale behind B. the instrument is still valid and the obligation covered thereby..P.A. in construing that B. in the interpretation of the meaning of a ³check´. 22.´ since the same is mere obiter dictum. 22 is broad enough to cover all kinds of checks. In the case of Cang vs. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment « The thrust of the law is to prohibit. The harmful practice of putting valueless commercial papers in circulation. devoid of judicial addition or subtraction. Nitafan.A. the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court. the Court of Appeals. Blg.A.

the offenses defined under B. ordered the bank to stop payment. B. the drawer does not have sufficient funds in or credit with the bank for payment and the checks were subsequently dishonored upon presentment. The prosecution must also prove that the issuer. Blg.P.P. we can easily glean that the members of the then Batasang Pambansa intended it to be comprehensive as to include all checks drawn against banks. People. Nitafan. the drawee bank for the payment of the check in full upon its presentment. this Court also held that the terms and conditions surrounding the issuance of the checks are irrelevant since its primordial intention is to ensure the stability and commercial value of checks as being virtual substitutes for currency. 22 or the Bouncing Check¶s Law seeks to prevent the act of making and issuing checks with the knowledge that at the time of issue.P. 22. In Recuerdo vs. In People vs. which is to discourage the issuance of worthless checks due to its harmful effect to the public. Blg.The same is reiterated in Cueme vs.P. . 22 is broad enough to cover all kinds of checks. 2. B. Blg. 22 does not include µpostdated checks¶ and cases of µclosed accounts¶ has no leg to stand on. The term ³closed accounts´ is within the meaning of the phrase ³does not have sufficient funds in or credit with the drawee bank´. In this light. By its very nature. Blg. or credit with. draws or issues any check to apply to account or for value. Blg. Blg. in Lozano vs. it is easy to see that the claim of petitioner that B. Martinez.P.P. or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value. whether present dated or postdated. was explicit in ruling that the language of B. Petitioner failed to show any cogent reason for us to disturb the findings of the RTC and the Court of Appeals. Blg. The accused makes. . at the .P.P. To be convicted thereunder. But even if We retrace the enactment of the ³Bouncing Check Law´ to determine the parameters of the concept of ³check´. The accused knows at the time of the issuance that he or she does not have sufficient funds in. 3. 22 « does not distinguish but merely provides that ³[a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank « which check is subsequently dishonored « shall be punished by imprisonment « Ubi lex non distinguit nec nos distinguere debemus. Anent the second issue: whether or not notice of dishonor is dispensable in the case at bar. it is not enough that the prosecution establishes that checks were issued and that the same were subsequently dishonored. 22 was purposely enacted to prevent the proliferation of worthless checks in the mainstream of daily business and to avert not only the undermining of the banking system of the country but also the infliction of damage and injury upon trade and commerce occasioned by the indiscriminate issuances of such checks. the Supreme Court reiterated this point and held that: B. Petitioner¶s claim that cases of ³closed accounts´ are not included in the coverage of B. Blg. 22 has no merit considering the clear intent of the law. This Court. without any valid reason. the following elements must be proved: 1. People where we pronounced that: . and The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer. For liability to attach under B. 22 are against public interest.

Section 2 of B. Elvira Yu Oh did not also have enough funds or money in the bank within which to cover the amount of the checks? A: .time of the check¶s issuance. The question however is. sir. underscoring supplied). when presented within ninety (90) days from the date of the check. is it sufficient justification to exonerate petitioner from her criminal and civil liabilities for issuing the bouncing checks? The trial court ruled that the second element is present because: « the accused knew at the time of issuance of the checks that she did not have sufficient funds in or credit with her drawee bank for the payment of the checks in full upon their presentment [as] admitted by her in the Counter-Affidavit she executed during the preliminary investigation of these criminal cases (itals.P. Evidence of knowledge of insufficient funds. as follows: SEC. Since the second element involves a state of mind which is difficult to establish. or if there is no proof as to when such notice was received by the drawer. Blg. shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon. ³1´. or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. In this case. That the time of the issuance of the said checks. TAGANAS: Q: And the reason you agreed to the terms and conditions for the issuance of post-dated checks because you are also aware the particular time the accused Mrs. if such notice of non-payment by the drawee bank is not sent to the maker or drawer. I am not aware. . the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof.. he failed to pay the amount of the check or to make arrangement for its payment. due notice and information had been so given to Solid Gold anent the actual status of the checks that the same might not be able to cover the amount of the said checks so stated therein « (Exhibit ³N´. Joaquin Novales III: ATTY. had knowledge that he did not have enough funds or credit in the bank of payment thereof upon its presentment. Based on this section. was petitioner furnished a notice of dishonor? If not.. drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank. sir. 2. ± The making. ours). it is not disputed that checks were issued by petitioner and said checks were subsequently dishonored. to wit: 4. 22 created a prima facie presumption of such knowledge. This fact became evident again during the cross-examination by the accused¶s counsel of the prosecution¶s witness. The presumption or prima facie evidence as provided in this section cannot arise. since there would simply be no way of reckoning the crucial 5-day period. Q: To your knowledge when the accused had already admitted to you that she had not enough money to pay you? A: That is the terms and promise and agreed upon.

this requirement cannot be taken lightly because Section 2 provides for an opportunity for the drawer to effect full payment of the amount appearing on the check. that her postdated checks would be honored by the drawee bank. Basic also is the doctrine that in criminal cases. In convicting petitioner. Hence. Since service of notice is an issue. In cases for violation of B. (itals. sir. In the case at bar. Blg.. ³L-2´. ³F-2´. ³E-2´. Blg. . ³H-2´. The Court of Appeals sustained the RTC. ³J-2´. there is already prima facie evidence of knowledge of insufficiency of funds on the part of the accused from her failure to pay the amount due on the checks or to make arrangements for payment in full by the drawee bank within five banking days after she received notice of their dishonor. it is necessary that the prosecution prove that the issuer had received a notice of dishonor.P. Thus. and not to petitioner. all of said checks would bounce. 24-26) At any rate. The notices of dishonor that were presented in court and marked as Exhibits ³D2´. she was aware and even told private complainant that the checks might not be able to cover the amount stated therein. ³G-2´. ³K-2´.P. Q: You still believe that although she does not have enough money she still issued checks to you? A: Yes.P. Solid Gold. to wit: . the trial court. 2). for cases of B. ³C-2´ were all sent to the private complainant.P. . The absence of said notice therefore deprives an accused of an opportunity to preclude criminal prosecution. Indeed. (TSN. . that you never suspected that she did not have enough money to cover the checks agreed upon and issued to you? A: Yes. ³I-2´. (itals. 22. mentioned that herein petitioner received notices of dishonor. sir. nowhere in the records is there proof that the prosecution ever presented evidence that petitioner received or was furnished a notice of dishonor. Neither can We agree that accused-appellant was still entitled to notice of dishonor of the bouncing checks as she had no more checking account with the drawee bank at the time of the dishonor of the ten checks in question.Q: But inspite of the fact that she already told you about that. accused-appellant need not be notified anymore of the obvious dishonor of her rubber checks. Knowing that she had already closed her checking account with the drawee bank. 22. 22 there should be clear proof of notice. In other words. April 6. within five banking days from notice of dishonor. each of the checks having been presented within ninety days from their respective dated (B. 22. we find that the appellate court erred in convicting petitioner. Q: And inspite of the fact she told you you never suspected that she did not have enough money to cover you . . appellant has a right to demand ± and the basic postulate of fairness requires ± that the notice of dishonor be actually sent to and received by her to afford her to opportunity to aver prosecution under B. the quantum of proof required is proof beyond reasonable doubt. ours) Although the trial court in its decision. ours) Based on the law and existing jurisprudence. The defense did not controvert this evidence. certainly accused-appellant would not have expected. procedural due process demands that a notice of dishonor be actually served on petitioner. 1993. Blg. Blg. even in her wildest imagination. Sec. pp. the person alleging that the notice was served must prove the fact of service. gave probative weight on the admission of petitioner in her Counter-Affidavit which she submitted during the preliminary investigation that at the time of issuance of the subject checks. Accused-appellant must have realized that by closing her checking account after issuing the ten postdated checks.

Quisumbing. as understood by the trial court itself in the herein aforequoted portion of its decision. however. 22 on ten counts for insufficiency of evidence. For these reasons.P. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal. Inc. discloses that no personal demands were made on appellant before the filing of the complaints against her. JJ. However.00 plus interest thereon at the rate of 12% per annum from date of finality of herein judgment.000. she is ordered to pay complainant Solid Gold International Traders.. Bellosillo. the total amount of Five Hundred Thousand Pesos (P500. we reverse the ruling of the Court of Appeals affirming the trial court¶s conviction of petitioner for violation of B. SO ORDERED.P. This is without prejudice. Blg. ³Account Closed´ and we have explicitly held in said cases that ³it is essential for the maker or drawer to be notified of the dishonor of her check.P. Blg. the assailed Decision and Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. 22.000. General Manager Novales knew of the non-availability of sufficient funds when appellant issued the subject checks to him. WHEREFORE. This Court has held that there is no violation of B. (Chairman).. and Callejo.P. petitioner already knew that the checks will bounce anyway. Blg. A perusal of the testimony of the prosecution witness Joaquin Novales III. 22.The Solicitor General contends that notice of dishonor is dispensable in this case considering that the cause of the dishonor of the checks was ³Account Closed´ and therefore. Sr. we cannot with moral certainty convict her of violation of B.00) with 12% interest per annum from date of finality of herein judgment. This argument has no merit. Moreover. concur. so she could pay the value thereof or make arrangements for its payment within the period prescribed by law´ and omission or neglect on the part of the prosecution to prove that the accused received such notice of dishonor is fatal to its cause. 22 if complainant was told by the drawer that he has no sufficient funds in the bank. . Petitioner Elvira Yu Oh is ACQUITTED of the offense of violation of B. General Manager of complainant Solid Gold. to her civil liability towards private complainant Solid Gold in the amount of P500. Thus. absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law. The Court has decided numerous cases where checks were dishonored for the reason.