Mala in se and mala prohibita

Taer v. CA, G.R. No. 85204, June 18, 1990

G.R. No. 85204 June 18, 1990

JORGE TAER, petitioner,
vs.
THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Lord M. Marapao for petitioner.

The Solicitor General for respondents.

SARMIENTO, J.:

This is a petition for review on certiorari of the decision rendered by the Court of Appeals in "People v. Jorge Taer," CA-G.R. CR
No. 01213, 1 dated May 26, 1988, which affirmed in toto the conviction of Jorge Taer for the crime of cattle rustling by the Regional
Trial Court of Bohol in Criminal Case No. 3104, 2 and the resolution of the same court denying the petitioner's Motion for
Reconsideration.

After the required preliminary investigation in the 11th Municipal Circuit Court at Valencia-
Dimiao, in the province of Bohol, the following information was filed in the then Court of First
Instance of Bohol, 14th Judicial District, Branch IV, at Tagbilaran City:

The undersigned, Third Assistant Provincial Fiscal, hereby accuses Emilio

Namocatcat alias Milio, Mario Cago, Jorge Taer and Cerilo Saludes for the
crime of Theft of Large Cattle, committed as follows:

That on or about the 5th day of December, 1981, in barangay Lantang,

municipality of Valencia, province of Bohol, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping with each other, with the intent of
gain and without the consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and lead away two (2) male carabaos with
the total value of FOUR THOUSAND PESOS (P4,000.00), Philippine Currency,
belonging to and owned by Tirso Dalde and Eladio Palaca; to the damage and
prejudice of the said offended parties in the aforestated amount.

Acts committed contrary to the provisions of Articles 308, 309 and 310 of the
Revised Penal Code, with the aggravating circumstance of nighttime being
purposely sought for or taken advantage by the accused to facilitate the
commission of the crime.

City of Tagbilaran, June 1, 1982.  3

After proper proceedings and trial, Saludes and Cago were acquitted but Taer and Namocatcat were convicted. The dispositive portion of
the decision of the trial court, dated July 6, 1984, reads as follows:

WHEREFORE, the Court finds accused Emilio Namocatcat and Jorge Taer GUILTY
beyond doubt of the theft of large cattle and appreciating against them the
 aggravating circumstance of nocturnity and pursuant to Presidential Decree No. 533
each is hereby sentenced to undergo the indeterminate penalty of imprisonment of
from SIX (6) YEARS and ONE DAY TO FOURTEEN (14) YEARS, TEN (10)
MONTHS and TWENTY ONE (21) DAYS, together with the accessory penalties, and
to pay the costs; they are entitled to credit for their preventive imprisonment.
Accused Mario Cago and Cirilo Saludes are ACQUITTED for insufficiency of
evidence. 4

Only Jorge Taer appealed to the Court of Appeals. The Court of Appeals, finding the evidence
of the prosecution that conspiracy indeed existed between Emilio Namocatcat and Jorge
Taer, affirmed in toto the decision appealed from. But the affirmance did not affect Emilio
Namocatcat because, as adverted to earlier, he did not appeal his conviction by the Regional Trial
Court.

Hence, this petition for review was filed by Taer alone.

In sum, Taer interposed these twin arguments:

1. That the extent of his participation did not go beyond the participation of the original
defendants Cirilo Saludes and Mario Cago. Therefore, he submits that the acquittal of these two
by the trial court should also lead to his acquittal; 
5

2. That the only evidence proving the alleged conspiracy between him and Emilio Namocatcat
was the confession of his co-accused Emilio Namocatcat. However this should not be
considered as admissible because the same is hearsay under the rule of res inter alios
acta. 
6

The undisputed facts as found by the trial court show that:

In the evening of December 5, 1981, accused Cirilo Saludes slept in the house of his compadre
accused Jorge Taer at Datag, Garcia-Hernandez, Bohol, whereat he was benighted. At about 2:00
o'clock dawn, December 6, 1981, accused Emilio Namocatcat and Mario Cago arrived at Taer's
house with two (2) male carabaos owned by and which Namocatcat wanted Taer to tend. The
said carabaos were left at Taer's place.

Tirso Dalde and Eladio Palaca of Lantang, Valencia Bohol discovered in the morning of
December 6, 1981 that their respective male carabaos, 3 to 4 years old, were missing at the
different grazing grounds whereat they tied the same the afternoon preceding.

After searching in vain for the carabaos at the vicinity, Dalde and Palaca reported the matter to
the police. On December 15, 1981, one Felipe Reyes of Hinopolan, Valencia, Bohol, informed
Dalde that he saw the latter's lost carabao at Datag, Garcia-Hernandez. Forthwith Dalde and
Palaca went on that day to Datag and there they found their missing carabaos tied to a
bamboo thicket near the house accused Taer who was then not in the house as he was in
Napo, Garcia-Hernandez, attending the fiesta where he cooked for the accused Saludes. Upon
query by Dalde and Palaca why their carabaos were found at his place, accused Taer, according to
Dalde and Palaca replied that the carabaos reached his place tied together without any person in
company. According to accused Taer, what he told Dalde and Palaca was that the carabaos
were brought to his place by the accused Namocatcat who asked him to tell anybody looking
for them that they just strayed thereat.
The 2 carabaos were taken by Dalde and Palaca from accused Taer's possession on that day,
December 15.  7

xxx xxx xxx

The Court of Appeals would consider these as proof of the existence of conspiracy:

Altho (sic) accused Taer admitted that before December 6, 1981, he had not met
accused Namocatcat since 1975 and had not previously tended any carabao
belonging to Namocatcat, it is unbelievable that Taer was not suspicious of the
origin of the 2 male carabaos which to say the least were delivered to him to be
tended under strange circumstances, to wit, at the unholy hour of 2:00 o'clock
dawn after a travel of 14 kilometers' in the dead of the night. He unreservedly
accepted the charge of tending them with the agreement as to the sharing of the
produce out of said carabaos (sic) use. If, as he asserted, Namocatcat left the
carabaos with him with the word that if anybody would look for them he was to tell
that the carabaos just strayed into his other carabaos (sic), the more Taer ought to
be more suspicious as to the origin of said carabaos, yet, since that dawn delivery on
December 6, 1981, until they were retrieved from his possession, he never apprised
the barangay captain, living just 2 kilometers away from his house, about the matter.
He continued to hold on to the stolen carabaos until they were recovered 10 days
later.

Ordinarily, one would not hold on to a thing he suspects to be stolen to obviate any
criminal responsibility or implication. But accused Taer did the opposite-a clear
indication that he and accused Namocatcat did have some kind of an unlawful
agreement regarding the stolen carabaos. He did not even reveal immediately to the
authorities that the carabaos delivered to him by Namocatcat were stolen and he
tried his best to keep under cover Namocatcat's Identity.

The Court, therefore, finds that conspiracy between accused Namocatcat and Taer in
the theft of the carabaos has been established beyond doubt.  8

xxx xxx xxx

We disagree with the findings of the respondent court; they are mere suspicions and
speculations. The circumstances adverted to above do not establish conspiracy beyond
reasonable doubt.

There is conspiracy when two or more persons come to an agreement regarding the
commission of an offense and decide to commit it. Although the facts may show a unity of
purpose and unity in the execution of the unlawful objective, essential however is an
agreement to commit the crime and a decision to commit it.  9

Only recently we emphasized the rule that:

Conspiracy must be established not by conjectures, but by positive and

conclusive evidence. The same degree of proof necessary to establish the crime is
required to support a finding of the presence of criminal conspiracy, which is, proof
beyond reasonable doubt.  10
Thus mere knowledge, acquiescence to, or approval of the act, without cooperation or
agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the
intentional participation in the transaction with a view to the furtherance of the common
design and purpose.

At most the facts establish Taer's knowledge of the crime. And yet without having participated either
as principal or as an accomplice, for he did not participate in the taking of the carabaos, he took part
subsequent to the commission of the act of taking by profiting himself by its effects. Taer is thus only
an accessory after the fact.

Article 19 of the Revised Penal Code states:

Accessories are those who, having knowledge of the commission of the crime, and
without having participated therein, either as principals or accomplices, take part
subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the

crime;  11

xxx xxx xxx

person who received any property from another, and used it, knowing that the same property had
been stolen is guilty as an accessory because he is profiting by the effects of the crime." By
employing the two carabaos in his farm, Taer was profiting by the objects of the theft.  12

On the conspiracy charge, the most cogent proof that the prosecution could ever raise was the
implication made by the accused Namocatcat (he did not appeal his conviction to the Court of
Appeals) in his affidavit of confession. 
13

However, the settled rule is that the rights of a party can not be prejudiced by an act, declaration, or
omission of another.  14

The testimony, being res inter alios acta, can not affect another except as provided in the Rules of
Court. This rule on res inter alios acta specifically applies when the evidence consists of an
admission in an extrajudicial confession or declaration of another because the defendant has no
opportunity to cross-examine the co-conspirator testifying against him.  15

Since this is the only evidence of the prosecution to prove the conspiracy with Namocatcat, this
uncorroborated testimony can not be sufficient to convict Taer.

The offense for which Taer is accused is covered by Articles 308, 309, and 310, as amended by "Me
Anti-Cattle Rustling Law of 1974. 1116 The penalty imposed on the principal for the crime of cattle
rustling is:

Sec. 8. Penal provisions. — Any person convicted of cattle rustling as herein defined
shall, irrespective of the value of the large cattle involved, be punished by prision
mayor in its maximum period to reclusion temporal in its medium period if the offense
is committed without violence against or intimidation of persons or force upon things.
If the offense is committed with violence against or intimidation of persons or force
upon things, the penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed. If a person is seriously injured or killed as a result or on
 the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to
death shall be imposed.  17

xxx xxx xxx

Inasmuch as Taer's culpability is only that of an accessory after the fact, under Art. 53 of the Revised
Penal Code, the penalty lower by two degrees than that prescribed by law for the consummated
felony shall be imposed.

The penalty two degrees lower than that imposed under the first sentence of Section 8 of PD No.
533 is arresto mayor maximum or 4 months and one day to 6 months to prision correccional medium
or 2 years 4 months and 1 day to 4 years and 2 months. In addition, the Revised Penal Code
provides that when the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, the courts shag observe the rule that when
there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed
by law in its medium period.   Hence the imposable penalty would be prision correccional minimum
18

or 6 months and 1 day to 2 years and 4 months imprisonment.

Since the maximum term of imprisonment exceeds one year, we apply the Indeterminate
Sentence Law.  19

This law provides that the maximum term of imprisonment shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said code which is prision
correccional minimum or 6 months and 1 day to 2 years and 4 months. And the minimum shall be
within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty
next lower would be in the range of destierro maximum or 4 years 2 months and 1 day to 6 years
to arresto mayor medium or 2 months and 1 day to 4 months.

WHEREFORE, the decision rendered by the Regional Trial Court of Tagbilaran and affirmed by the
respondent Court of Appeals is hereby MODIFIED in that the herein JORGE TAER is convicted as
an accessory of the crime of cattle-rustling as defined and penalized by PD No. 533 amending Arts.
308, 309, and 310 of the Revised Penal Code and he will serve the minimum penalty within the
range of arresto mayor medium, which we shall fix at 4 months imprisonment and the maximum
penalty of prision correccional minimum which we shall fix at 2 years.

With costs.

SO ORDERED.

Garcia v. CA, G.R. No. 157171, March 14, 2006

G.R. No. 157171             March 14, 2006

ARSENIA B. GARCIA, Petitioner,
vs.
HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents

DECISION

QUISUMBING, J.:
This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 24547 1that
affirmed the conviction of petitioner by the Regional Trial Court2of Alaminos City, Pangasinan,
Branch 54, for violation of Section 27(b) of Republic Act No. 6646. 3

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial
elections, an information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos,
charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and
petitioner, with violation of Section 27(b). The information reads:

That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995
elections, in the Municipality of Alaminos, Province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia,
Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray,
Chairman, Vice-Chairman, and Member-Secretary, respectively, of the Municipal Board of
Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring
with, confederating together and mutually helping each other, did, then and there, willfully, and
unlawfully decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six
thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in
the one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of said municipality,
with Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423 to one thousand
nine hundred twenty-one (1,921) votes as reflected in the Statement of Votes by Precincts with
Serial No. 008423 and Certificate of Canvass with Serial No. 436156 with a difference of five
thousand seventy-seven (5,077) votes.

CONTRARY TO LAW.4

In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of
evidence, except petitioner who was convicted as follows:

xxx

5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond
reasonable doubt, of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the
votes of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that this
finding is a violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6)
YEARS as maximum, but applying the INDETERMINATE SENTENCE LAW, the minimum penalty is
the next degree lower which is SIX (6) MONTHS; however, accused Arsenia B. Garcia is not entitled
to probation; further, she is sentenced to suffer disqualification to hold public office and she is also
deprived of her right of suffrage.

The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to
commit her person to the Bureau of Correctional Institution for Women, at Metro Manila, until further
orders from the court.

No pronouncement as to costs.

IT IS SO ORDERED.5

Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision,
thus,
WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification,
increasing the minimum penalty imposed by the trial court from six (6) months to one (1) year.

SO ORDERED.6

The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning
the following as errors of the appellate court:

ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT,
NAMELY, THAT IT COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE
VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE
PETITIONER DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS
BECAUSE PETITIONER WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE.

II

ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES
DURING THE TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.

III

ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED
THE REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN
THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD.

IV

THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL
OR INTENTIONAL.7

Petitioner contends that (1) the Court of Appeals’ judgment is erroneous, based on speculations,
surmises and conjectures, instead of substantial evidence; and (2) there was no motive on her part
to reduce the votes of private complainant.

Respondent on the other hand contends that good faith is not a defense in the violation of an
election law, which falls under the class of mala prohibita.

The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in
se or mala prohibita? Could good faith and lack of criminal intent be valid defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts
complained of are inherently immoral, they are deemed mala in se, even if they are punished by a
special law.8Accordingly, criminal intent must be clearly established with the other elements of the
crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the
criminal acts are not inherently immoral but become punishable only because the law says they are
forbidden. With these crimes, the sole issue is whether the law has been violated. 9Criminal intent is
not necessary where the acts are prohibited for reasons of public policy. 10

Section 27(b) of Republic Act No. 6646 11provides:

SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in
Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an
election offense:

xxx

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases,
or decreases the votes received by a candidate in any election or any member of the board who
refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered
votes.

xxx

Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise, even errors and mistakes
committed due to overwork and fatigue would be punishable. Given the volume of votes to be
counted and canvassed within a limited amount of time, errors and miscalculations are bound to
happen. And it could not be the intent of the law to punish unintentional election canvass errors.
However, intentionally increasing or decreasing the number of votes received by a candidate is
inherently immoral, since it is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an act which the law
punishes, unless the contrary shall appear. 13Thus, whoever invokes good faith as a defense has the
burden of proving its existence.

Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the
Municipality of Alaminos, Pangasinan was conducted as follows:

1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results
thereof were sealed and forwarded to the Municipal Board of Canvassers for canvassing;

2. The number of votes received by each candidate in each precinct was then recorded in
the Statement of Votes with appellant, in her capacity as Chairman, reading the figures
appearing in the results from the precincts and accused Viray, in his capacity as secretary of
the Board, entering the number in the Statements of Votes as read by the appellant. Six
Statements of Votes were filled up to reflect the votes received by each candidate in the 159
precincts of the Municipality of Alaminos, Pangasinan.

3. After the number of votes received by each candidate for each precincts were entered by
accused Viray in the Statements of Votes, these votes were added by the accused Palisoc
and de Vera with the use of electrical adding machines.

4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes
were handed to appellant who reads the subtotal of votes received by each candidate in the
precincts listed in each Statement of Votes. Accused Viray [then] records the subtotal in the
proper column in the Statement of Votes.

5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de
Vera added all the subtotals appearing in all Statement of Votes.
 6. After the computation, the corresponding machine tape on which the grand total was
reflected was handed to appellant who reads the same and accused Viray enters the figure
read by appellant in the column for grand total in the Statement of Votes. 14

Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each
precinct, nor of the number of votes entered as subtotals of votes received in the precincts listed in
SOV Nos. 008417 to 008422 was raised as an issue.

At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at
the grand total of votes received by each candidate for all 159 precincts in SOV No. 008423. 15The
grand total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921 instead of
6,921, or 5,000 votes less than the number of votes private complainant actually received. This error
is also evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and
Romero.16

During trial of this case, petitioner admitted that she was indeed the one who announced the figure
of 1,921, which was subsequently entered by then accused Viray in his capacity as secretary of the
board.17Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7),
though it was not her duty. To our mind, preparing the COC even if it was not her task, manifests an
intention to perpetuate the erroneous entry in the COC.18

Neither can this Court accept petitioner’s explanation that the Board of Canvassers had no idea how
the SOV (Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of
6,921 votes. As chairman of the Municipal Board of Canvassers, petitioner’s concern was to assure
accurate, correct and authentic entry of the votes. Her failure to exercise maximum efficiency and
fidelity to her trust deserves not only censure but also the concomitant sanctions as a matter of
criminal responsibility pursuant to the dictates of the law. 19

The fact that the number of votes deducted from the actual votes received by private complainant,
Sen. Aquilino Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of
liability under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a
candidate in an election is already punishable under the said provision. 20

At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The
Court has consistently held that factual findings of the trial court, as well as of the Court of Appeals
are final and conclusive and may not be reviewed on appeal, particularly where the findings of both
the trial court and the appellate court on the matter coincide. 21

Public policy dictates that extraordinary diligence should be exercised by the members of the board
of canvassers in canvassing the results of the elections. Any error on their part would result in the
disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and its
supporting statements of votes prepared by the municipal board of canvassers are sensitive election
documents whose entries must be thoroughly scrutinized. 22

In our review, the votes in the SOV should total 6,998. 23

As between the grand total of votes alleged to have been received by private complainant of 6,921
votes and statement of his actual votes received of 6,998 is a difference of 77 votes. The
discrepancy may be validly attributed to mistake or error due to fatigue. However, a decrease of
5,000 votes as reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot
be allowed to remain on record unchallenged, especially when the error results from the mere
transfer of totals from one document to another.
WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals
sustaining petitioner’s conviction but increasing the minimum penalty in her sentence to one year
instead of six months is AFFIRMED.

SO ORDERED.

Dela Torre v. COMELEC, G.R. No. 121592, July 5, 1996

G.R. No. 121592 July 5, 1996

ROLANDO P. DELA TORRE, petitioner,

vs.
COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents.

RESOLUTION

FRANCISCO, J.:p

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

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

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

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

(b) xxx xxx xxx.

In disqualifying the petitioner, the COMELEC held that:

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

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

xxx xxx xxx

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

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

The two (2) issues to be resolved are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Art. 22. Everyone person who through an act of performance by another, or any
other means, acquires or comes into possession of something at the expense of the
latter without just or legal ground, shall return the same to him.
 Art. 2154. If something is received when there is no right to demand it, and it was
unduly delivered through mistake, the obligation to return it arises.

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

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

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

supplied.]

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

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

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

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

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

Scope and characteristics

Generality

Minucher v. CA, G.R. No. 142396, February 11, 2003

G.R. No. 142396             February 11, 2003

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

VITUG, J.:

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

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

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

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

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

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested the restaurant people to x x x
place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for
which he was paid. Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After
some haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the
money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m.,
he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the
pair of carpets.1awphi1.nét

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

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

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

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

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water." 1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on
the ground that he, not being a resident of the Philippines and the action being one in personam,
was beyond the processes of the court. The motion was denied by the court, in its order of 13
December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which could likewise
be construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration
of the court order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative relief.
Scalzo argued that in cases involving the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo
denied the motion for reconsideration in its order of 15 October 1989.

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

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

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

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R.
No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On
31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity
of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition for review
with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of
Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this
Court reversed the decision of the appellate court and remanded the case to the lower court for trial.
The remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion to
dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to
the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of
his official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic
immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

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

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

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

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

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

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

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

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his position,
which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue
of diplomatic immunity." 4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug
dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S.,
(and) having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make
the actual arrest." Scalzo has submitted to the trial court a number of documents -
 1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

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

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

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

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

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

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

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

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

Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of
Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attaché of the United States diplomatic
mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit
12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3)
to conduct complex criminal investigations involving international criminal conspiracies which affect
the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among
the city states of ancient Greece, among the peoples of the Mediterranean before the establishment
of the Roman Empire, and among the states of India, the person of the herald in time of war and the
person of the diplomatic envoy in time of peace were universally held sacrosanct. By the end of the
7 

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

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

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

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

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

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

are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity,
thereby divesting the trial court of jurisdiction over his person.

"x x x x x x x x x

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

"x x x x x x x x x

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

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

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

matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It
might be recalled that the privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction. The government of the United States itself, which Scalzo claims to be acting for, has
16 

formulated its standards for recognition of a diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses an acknowledged diplomatic title and
"performs duties of diplomatic nature." Supplementary criteria for accreditation are the possession
17 

of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note
formally representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an
essentially full-time basis. Diplomatic missions are requested to provide the most accurate and
18 
descriptive job title to that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category. 19

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

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

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

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

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

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

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

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

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

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

"x x x x x x x x x

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

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

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

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

SO ORDERED.

Liang v. People, G.R. No. 125865, January 28, 2000

G.R. No. 125865           January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received
an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered
by immunity from legal process under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the MeTC
judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, petitioner elevated the case to this Court 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. 1âwphi1.nêt

The petition is not impressed with merit.

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

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

Second, under Section 45 of the Agreement which provides:

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

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

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done
in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty. The 3 

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

not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions. As already mentioned above, the commission of a
5 

crime is not part of official duty.

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

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

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

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

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âwphi1.nêt

Territoriality

Del Socorro v. Wilsem, G.R. No. 193707, December 10, 2014

G.R. No. 193707               December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN
WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the Orders  dated February 19, 2010 and September 1, 2010, respectively, of
1

the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled
People of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No.
CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence
Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted
marriage in Holland on September 25, 1990.  On January 19, 1994, they were blessed with a son
2

named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen
(16) years of age. 3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by
the appropriate Court of Holland.  At that time, their son was only eighteen (18) months
4

old.  Thereafter, petitioner and her son came home to the Philippines.
5 6
According to petitioner, respondent made a promise to provide monthly support to their son in the
amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or
less).  However, since the arrival of petitioner and her son in the Philippines, respondent never gave
7

support to the son, Roderigo. 8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and
since then, have been residing thereat.  Respondent and his new wife established a business known
9

as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City.  To date, 10

all the parties, including their son, Roderigo, are presently living in Cebu City. 11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter. 12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No.
9262 for the latter’s unjust refusal to support his minor child with petitioner.  Respondent submitted
13

his counter-affidavit thereto, to which petitioner also submitted her reply-affidavit.  Thereafter, the
14

Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an information for
the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality of
Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and
still continue to deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor,
of financial support legally due him, resulting in economic abuse to the victim. CONTRARY TO
LAW. 15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.  Consequently, respondent was arrested and, subsequently, posted bail.  Petitioner
16 17

also filed a Motion/Application of Permanent Protection Order to which respondent filed his
Opposition.  Pending the resolution thereof, respondent was arraigned.  Subsequently, without the
18 19

RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2) prescription of the
crime charged. 20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,  dismissing the instant
21

criminal case against respondent on the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is an alien, the dispositive part of which
states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense
with respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010. 22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation
to support their child under Article 195  of the Family Code, thus, failure to do so makes him liable
23

under R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged to
support their minor children regardless of the obligor’s nationality." 24

On September 1, 2010, the lower court issued an Order  denying petitioner’s Motion for
25

Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the
memorandum of the prosecution. Thus, the court hereby reiterates its ruling that since the accused
is a foreign national he is not subject to our national law (The Family Code) in regard to a parent’s
duty and obligation to givesupport to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262
applies to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give such support, it is the considered opinion of the
court that no prima faciecase exists against the accused herein, hence, the case should be
dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010. 26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under
Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the
fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic
v. Sunvar Realty Development Corporation,  which lays down the instances when a ruling of the trial
28

court may be brought on appeal directly to the Supreme Court without violating the doctrine of
hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this
Court, in case only questions of law are raised or involved. This latter situation was one that
petitioners found themselves in when they filed the instant Petition to raise only questions of law. In
Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to
wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered
in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for
review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions
of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or
mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination of the probative value of
the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt
concerns the correct application of law and jurisprudence on the matter. The resolution of the issue
must rest solely on what the law provides on the given set of circumstances. 29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto
concerns the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not
a foreign national has an obligation to support his minor child under Philippine law; and whether or
not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law
concerning the liability of a foreign national who allegedly commits acts and omissions punishable
under special criminal laws, specifically in relation to family rights and duties. The inimitability of the
factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of the courts. Thus,
in the present case, considerations of efficiency and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do
not fully agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that
the legal obligation to support exists.

Petitioner invokes Article 195  of the Family Code, which provides the parent’s obligation to support
30

his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in
relation to Article 26 of the Family Code,  respondent is not excused from complying with his
31

obligation to support his minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by
petitioner that she, as well as her minor son, are entitled to financial support.  Respondent also
32

added that by reason of the Divorce Decree, he is not obligated topetitioner for any financial
support.33

On this point, we agree with respondent that petitioner cannot rely on Article 195  of the New Civil
34

Code in demanding support from respondent, who is a foreign citizen, since Article 15  of the New
35

Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the same only applies to
Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject
to the laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his
child, as well as the consequences of his failure to do so. 37

In the case of Vivo v. Cloribel,  the Court held that –

38

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of
the Philippines, for that Code cleaves to the principle that family rights and duties are governed by
their personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign
country (cf. Civil Code, Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under
Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This
does not, however, mean that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law.  In the present case, respondent hastily concludes that being a
40

national of the Netherlands, he is governed by such laws on the matter of provision of and capacity
to support.  While respondent pleaded the laws of the Netherlands in advancing his position that he
41

is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the
issuance of a divorce decree), because Llorente v. Court of Appeals,  has already enunciated that:
42

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they must be alleged and proved. 43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine
of processual presumption shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the same as our local or
domestic or internal law.  Thus, since the law of the Netherlands as regards the obligation to support
44

has not been properly pleaded and proved in the instant case, it is presumed to be the same with
Philippine law, which enforces the obligation of parents to support their children and penalizing the
non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,  the Court held that a divorce obtained in a foreign land as
45

well as its legal effects may be recognized in the Philippines in view of the nationality principle on the
matter of status of persons, the Divorce Covenant presented by respondent does not completely
show that he is notliable to give support to his son after the divorce decree was issued. Emphasis is
placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s
obligation to support his child is specifically stated,  which was not disputed by respondent.
46

We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability,in light of the ruling in Bank of America, NT and SA v.
American Realty Corporation,  to wit:
47

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy
of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of
Laws. 48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to
support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable
in the Philippines because it would be of great injustice to the child to be denied of financial support
when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his
former wife, in consonance with the ruling in San Luis v. San Luis,  to wit:
49

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe
considered marriedto the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served. (Emphasis added) 50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section
5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom
of movement or conduct by force or threat of force, physical or other harm or threat of physical or
other harm, or intimidation directed against the woman or child. This shall include, butnot limited to,
the following acts committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

xxxx
(2) Depriving or threatening to deprive the woman or her children of financial support legally due her
or her family, or deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or
custody of minor childrenof access to the woman's child/children. 51

Under the aforesaid special law, the deprivation or denial of financial support to the child is
considered anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in
petitioner’s claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which provides that: "[p]enal laws and those of public security
and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to support his child with petitioner is committed
here in the Philippines as all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged against respondent. It is
likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a
legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime  under Section 24 of R.A. No. 9262, which
52

provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty
(20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,  which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the
53

instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls
for an examination of the probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has
jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET
ASIDE. The case is REMANDED to the same court to conduct further proceedings based on the
merits of the case.

SO ORDERED.

AAA v. BBB, G.R. No. 212448, January 11, 2018

G.R. No. 212448, January 11, 2018

AAA*, Petitioner, v. BBB,* Respondent.

DECISION
 TIJAM, J.:

May Philippine courts exercise jurisdiction over an offense constituting psychological

violence under Republic Act (R.A.) No. 9262,1 otherwise known as the Anti-Violence
Against Women and their Children Act of 2004, committed through marital infidelity,
when the alleged illicit relationship occurred or is occurring outside the country?

The above question is addressed to this Court in the present Petition2 for the issuance
of a writ of certiorari under Rule 45 of the Rules of Court, to nullify the Resolutions
dated February 24, 20143 and May 2, 20144 of the Regional Trial Court (RTC) of Pasig
City, Branch 158, in Criminal Case No. 146468. The assailed resolutions granted the
motion to quash the Information5 which charged respondent BBB under Section 5(i) of
R.A. No. 9262, committed as follows:

On or about April 19, 2011, in Pasig City, and within the jurisdiction of this Honorable
Court, [BBB], being then legally married to [AAA], caused herein [AAA] mental and
emotional anguish by having an illicit relationship with a certain Lisel Mok as confirmed
by his photograph with his purported paramour Lisel Mok and her children and the e-
mailed letter by his mother mentioning about the said relationship, to the damage and
prejudice of [AAA], in violation of the aforecited law.

Contrary to law.

We briefly recount the antecedents.

Petitioner AAA and BBB were married on August 1, 2006 in Quezon City. Their union
produced two children: CCC was born on March 4, 2007 and DDD on October 1, 2009.6

In May of 2007, BBB started working in Singapore as a chef, where he acquired

permanent resident status in September of 2008. This petition nonetheless indicates his
address to be in Quezon City where his parents reside and where AAA also resided from
the time they were married until March of 2010, when AAA and their children moved
back to her parents' house in Pasig City.7

AAA claimed, albeit not reflected in the Information, that BBB sent little to no financial
support, and only sporadically. This allegedly compelled her to fly extra hours and take
on additional jobs to augment her income as a flight attendant. There were also
allegations of virtual abandonment, mistreatment of her and their son CCC, and
physical and sexual violence. To make matters worse, BBB supposedly started having
an affair with a Singaporean woman named Lisel Mok with whom he allegedly has been
living in Singapore. Things came to a head on April 19, 2011 when AAA and BBB had a
violent altercation at a hotel room in Singapore during her visit with their kids.8 As can
be gathered from the earlier cited Information, despite the claims of varied forms of
abuses, the investigating prosecutor found sufficient basis to charge BBB with causing
AAA mental and emotional anguish through his alleged marital infidelity.9

The Information having been filed, a warrant of arrest was issued against BBB. AAA was
also able to secure a Hold-Departure Order against BBB who continued to evade the
warrant of arrest. Consequently, the case was archived. 10
On November 6, 2013, an Entry of Appearance as Counsel for the Accused With
Omnibus Motion to Revive Case, Quash Information, Lift Hold Departure Order and
Warrant of Arrest11 was filed on behalf of BBB. Granting the motion to quash on the
ground of lack of jurisdiction and thereby dismissing the case, the trial court reasoned:

Here, while the Court maintains its 28 October 2011 ruling that probable cause exists in
this case and that [BBB] is probably guilty of the crime charged, considering, however,
his subsequent clear showing that the acts complained of him had occurred in
Singapore, dismissal of this case is proper since the Court enjoys no jurisdiction over
the offense charged, it having transpired outside the territorial jurisdiction of this Court.

xxxx

The Court is not convinced by the prosecution's argument that since [AAA] has been
suffering from mental and emotional anguish "wherever she goes", jurisdiction over the
offense attaches to this Court notwithstanding that the acts resulting in said suffering
had happened outside of the Philippines. To the mind of the Court, with it noting that
there is still as yet no jurisprudence on this score considering that Republic Act
9262 is relatively a new law, the act itself which had caused a woman to suffer mental
or emotional anguish must have occurred within the territorial limits of the Court for it
to enjoy jurisdiction over the offense. This amply explains the use of the emphatic word
"causing" in the provisions of Section 5(i), above, which denotes the bringing about
or into existence of something. Hence, the mental or emotional anguish suffered by a
woman must have been brought about or into existence by a criminal act which must
logically have occurred within the territorial limits of the Court for jurisdiction over the
offense to attach to it. To rule otherwise would violate or render nugatory one of the
basic characteristics of our criminal laws - territoriality.

In the listing provided in the law itself - "repeated verbal and emotional abuse, and
denial of financial support or custody of minor children of (sic) access to the woman's
child/children"- it becomes clear that there must be an act which causes the "mental or
emotional anguish, public ridicule or humiliation", and it is such act which partakes of a
criminal nature. Here, such act was the alleged maintenance of "an illicit relationship
with a certain Liesel Mok" which has been conceded to have been committed in
Singapore.

Granting, without conceding, that the law presents ambiguities as written, quashal of
the Information must still be ordered following the underlying fundamental principle
that all doubts must be resolved in favor of [BBB]. At best, the Court draws the
attention of Congress to the arguments on jurisdiction spawned by the law.12 (Emphasis
in the original)

Aggrieved by the denial of the prosecution’s motion for reconsideration of the dismissal
of the case, AAA sought direct recourse to this Court via the instant petition on a pure
question of law. AAA posits that R.A. No. 9262 is in danger of becoming transmogrified
into a weak, wobbly, and worthless law because with the court a quo's ruling, it is as if
husbands of Filipino women have been given license to enter into extra-marital affairs
without fear of any consequence, as long as they are carried out abroad. In the main,
AAA argues that mental and emotional anguish is an essential element of the offense
charged against BBB, which is experienced by her wherever she goes, and not only in
Singapore where the extra-marital affair takes place; thus, the RTC of Pasig City where
she resides can take cognizance of the case.

In support of her theory, AAA draws attention to Section 7 of R.A. No. 9262, which
provides:

Sec. 7. Venue - The Regional Trial Court designated as a Family Court shall have
original and exclusive jurisdiction over cases of violence against women and their
children under this law. In the absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where the crime or any of
its elements was committed at the option of the complainant. (Emphasis ours)

As to the ambiguity in the law hypothetically referred to in the assailed order, AAA
directs us to:

Section 4. Construction. - This Act shall be liberally construed to promote the protection
and safety of victims of violence against women and their children.

In his Comment13 filed on January 20, 2015, BBB contends that the grant of the motion
to quash is in effect an acquittal; that only the civil aspect of a criminal case may be
appealed by the private offended party; and. that this petition should be dismissed
outright for having been brought before this Court by AAA instead of the Office of the
Solicitor General (OSG) as counsel for the People in appellate proceedings. BBB
furthermore avers that the petition was belatedly filed.

We tackle first the threshold issue of whether or not this Court should entertain the
petition.

It must be stated beforehand that BBB is plainly mistaken in asserting that the instant
petition was belatedly filed. The date erroneously perceived by BBB as the date of AAA's
Motion for Extension14 was filed - June 2, 2014 - refers to the date of receipt by the
Division Clerk of Court and not the date when the said motion was lodged before this
Court. The motion was in fact filed on May 27, 2014, well within the period that AAA
had under the Rules of Court to file the intended petition. Thus, considering the
timeliness of the motion, this Court in a Resolution15 dated June 9, 2014, granted AAA
an additional period of thirty (30) days or until June 26, 2014 to file a petition for
review.

In AAA's motion for extension of time, it was mentioned that she was awaiting the
OSG's response to her Letter16 dated May 26, 2014 requesting for representation.
Since, the OSG was unresponsive to her plea for assistance in filing the intended
petition, AAA filed the present petition in her own name before the lapse of the
extension given her by this Court or on June 25, 2014.

We find that under the circumstances, the ends of substantial justice will be better
served by entertaining the petition if only to resolve the question of law lodged before
this Court. In Morillo v. People of the Philippines, et al.,17 where the Court entertained a
Rule 45 petition which raised only a question of law filed by the private offended party
in the absence of the OSG's participation, we recalled the instances when the Court
permitted an offended party to file an appeal without the intervention of the OSG. One
such instance is when the interest of substantial justice so requires.18

Morillo,19 also differentiated between dismissal and acquittal, thus:

Acquittal is always based on the merits, that is, the defendant is acquitted
because the evidence does not show that defendant's guilt is beyond a
reasonable doubt; but dismissal does not decide the case on the merits or that
the defendant is not guilty. Dismissal terminates the proceeding, either
because the court is not a court of competent jurisdiction, or the evidence
does not show that the offense was committed within the territorial
jurisdiction of the court, or the complaint or information is not valid or
sufficient in form and substance, etc. The only case in which the word dismissal is
commonly but not correctly used, instead of the proper term acquittal, is when, after
the prosecution has presented all its evidence, the defendant moves for the dismissal
and the court dismisses the case on the ground that the evidence fails to show beyond
a reasonable doubt that the defendant is guilty; for in such case the dismissal is in
reality an acquittal because the case is decided on the merits. If the prosecution fails
to prove that the offense was committed within the territorial jurisdiction of
the court and the case is dismissed, the dismissal is not an acquittal, inasmuch
as if it were so the defendant could not be again prosecuted before the court
of competent jurisdiction; and it is elemental that in such case, the defendant
may again be prosecuted for the same offense before a court of competent
jurisdiction.20 (Citation omitted and emphasis in the original)

The grant of BBB's motion to quash may not therefore be viewed as an acquittal, which
in limited instances may only be repudiated by a petition for certiorari under Rule 65
upon showing grave abuse of discretion lest the accused would be twice placed in
jeopardy.21

Indubitably, "the Rules do not prohibit any of the parties from filing a Rule 45 Petition
with this Court, in case only questions of law are raised or involved."22 "There is a
question of law when the issue does not call for an examination of the probative value
of the evidence presented or of the truth or falsehood of the facts being admitted, and
the doubt concerns the correct application of law and jurisprudence on the matter."23

Further, the question of whether or not the RTC has jurisdiction in view of the peculiar
provisions of R.A. No. 9262 is a question of law. Thus, in Morillo,24 the Court reiterated
that:

[T]he jurisdiction of the court is determined by the averments of the complaint or

Information, in relation to the law prevailing at the time of the filing of the complaint or
Information, and the penalty provided by law for the crime charged at the time of its
commission. Thus, when a case involves a proper interpretation of the rules and
jurisprudence with respect to the jurisdiction of courts to entertain complaints filed
therewith, it deals with a question of law that can be properly brought to this Court
under Rule 45.25 (Citations omitted)

We are not called upon in this case to determine the truth or falsity of the charge
against BBB, much less weigh the evidence, especially as the case had not even
proceeded to a full-blown trial on the merits. The issue for resolution concerns the
correct application of law and jurisprudence on a given set of circumstances, i.e.,
whether or not Philippine courts are deprived of territorial jurisdiction over a criminal
charge of psychological abuse under R.A. No. 9262 when committed through marital
infidelity and the alleged illicit relationship took place outside the Philippines.

The novelty of the issue was even recognized by the RTC when it opined that there is
still as yet no jurisprudence on this score, prompting it to quash the Information even
as it maintained its earlier October 28, 2011 ruling that probable cause exists in the
case.26 Calling the attention of Congress to the arguments on jurisdiction spawned by
the law,27 the RTC furnished copies of the assailed order to the House of
Representatives and the Philippine Senate through the Committee on Youth, Women
and Public Relations, as well as the Committee on Justice and Human Rights.28

The issue acquires special significance when viewed against the present economic
reality that a great number of Filipino families have at least one parent working
overseas. In April to September 2016, the number of overseas Filipino workers who
worked abroad was estimated at 2.2 million, 97.5 percent of which were comprised of
overseas contract workers or those with existing work contract; while 2.5 percent
worked overseas without contract.29 It is thus necessary to clarify how R.A. No. 9262
should be applied in a question of territorial jurisdiction over a case of psychological
abuse brought against the husband when such is allegedly caused by marital infidelity
carried on abroad.

Ruling of the Court

There is merit in the petition.

"Physical violence is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also common."30 In this
regard, Section 3 of R.A. No. 9262 made it a point to encompass in a non-limiting
manner the various forms of violence that may be committed against women and their
children:

Sec. 3. Definition of Terms.- As used in this Act,

(a) "Violence against women and their children" refers to any act or a series of
acts committed by any person against a woman who is his wife, former wife, or against
a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate,
within or without the family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It
includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a

woman or her child. It includes, but is not limited to:
xxxx

C. "Psychological violence" refers to acts or omissions causing or likely to cause

mental or emotional suffering of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member of the family to which
the victim belongs, or to witness pornography in any form or to witness abusive injury
to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation
of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:

xxxx

As jurisdiction of a court over the criminal ease is determined by the allegations in the
complaint or information, threshing out the essential elements of psychological abuse
under R.A. No. 9262 is crucial. In Dinamling v. People,31 this Court already had occasion
to enumerate the elements of psychological violence under Section 5(i) of R.A. No.
9262, as follows:

Section 5. Acts of Violence Against Women and Their Children. - The crime of violence
against women and their children is committed through any of the following acts:

xxxx

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her
child, including, but not limited to, repeated verbal and emotional abuse, and denial of
financial support or custody of minor children or access to the woman's child/children.

From the aforequoted Section 5(i), in relation to other sections of R[.]A[.] No. 9262,
the elements of the crime are derived as follows:

(1) The offended party is a woman and/or her child or children;

   
(2) The woman is either the wife or former wife of the offender, or is a woman with whom the
offender has or had a sexual or dating relationship, or is a woman with whom such
offender has a common child. As for the woman's child or children, they may be legitimate
or illegitimate, or living within or without the family abode;
   
(3) The offender causes on the woman and/or child mental or emotional anguish; and
   
(4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and
emotional abuse, denial of financial support or custody of minor children or access to the
 children or similar such acts or omissions.

xxxx

It bears emphasis that Section 5(i) penalizes some forms of psychological

violence that are inflicted on victims who are women and children. Other forms of
psychological violence, as well as physical, sexual and economic violence, are
addressed and penalized in other sub- parts of Section 5.

xxxx

Psychological violence is an element of violation of Section 5(i) just like the

mental or emotional anguish caused on the victim. Psychological violence is
the means employed by the perpetrator, while mental or emotional anguish is
the effect caused to or the damage sustained by the offended party. To
establish psychological violence as an element of the crime, it is necessary to show
proof of commission of any of the acts enumerated in Section 5(i) or similar such acts.
And to establish mental or emotional anguish, it is necessary to present the testimony
of the victim as such experiences are personal to this party. x x x.32 (Citations omitted
and emphasis ours)

Contrary to the interpretation of the RTC, what R.A. No. 9262 criminalizes is not the
marital infidelity per se  but the psychological violence causing mental or emotional
suffering on the wife. Otherwise stated, it is the violence inflicted under the said
circumstances that the law seeks to outlaw. Marital infidelity as cited in the law is only
one of the various acts by which psychological violence may be committed. Moreover,
depending on the circumstances of the spouses and for a myriad of reasons, the illicit
relationship may or may not even be causing mental or emotional anguish on the wife.
Thus, the mental or emotional suffering of the victim is an essential and distinct
element in the commission of the offense.

In criminal cases, venue is jurisdictional. Thus, in  Treñas v. People,33 the Court

explained that:

The place where the crime was committed determines not only the venue of
the action but is an essential element of jurisdiction. It is a fundamental rule that
for jurisdiction to be acquired by courts in criminal cases, the offense should have been
committed or any one of its essential ingredients should have taken place within the
territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the
territory where the court has jurisdiction to take cognizance or to try the offense
allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a
person charged with an offense allegedly committed outside of that limited territory.
Furthermore, the jurisdiction of a court over the criminal case is determined by
the allegations in the complaint or information. And once it is so shown, the court
may validly take cognizance of the case. However, if the evidence adduced during
the trial shows that the offense was committed somewhere else, the court
should dismiss the action for want of jurisdiction.34 (Emphasis in the original)
In Section 7 of R.A. No. 9262, venue undoubtedly pertains to jurisdiction. As correctly
pointed out by AAA, Section 7 provides that the case may be filed where the crime or
any of its elements was committed at the option of the complainant. While the
psychological violence as the means employed by the perpetrator is certainly an
indispensable element of the offense, equally essential also is the element of mental or
emotional anguish which is personal to the complainant. The resulting mental or
emotional anguish is analogous to the indispensable element of damage in a
prosecution for estafa, viz:

The circumstance that the deceitful manipulations or false pretenses employed by the
accused, as shown in the vouchers, might have been perpetrated in Quezon City does
not preclude the institution of the criminal action in Mandaluyong where the damage
was consummated. Deceit and damage are the basic elements of estafa.

The estafa involved in this case appears to be a transitory or continuing offense. It

could be filed either in Quezon City or in Rizal. The theory is that a person charged with
a transitory offense may be tried in any jurisdiction where the offense is in part
committed. In transitory or continuing offenses in which some acts material and
essential to the crime and requisite to its consummation occur in one province and
some in another, the court of either province has jurisdiction to try the case, it being
understood that the first court taking cognizance of the case will exclude the others x x
x[.]35

What may be gleaned from Section 7 of R.A. No. 9262 is that the law contemplates that
acts of violence against women and their children may manifest as transitory or
continuing crimes; meaning that some acts material and essential thereto and requisite
in their consummation occur in one municipality or territory, while some occur in
another. In such cases, the court wherein any of the crime's essential and material acts
have been committed maintains jurisdiction to try the case; it being understood that
the first court taking cognizance of the same excludes the other. Thus, a person
charged with a continuing or transitory crime may be validly tried in any municipality or
territory where the offense was in part committed.36

It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or
act of violence under Section 5(i) of R.A. No. 9262 in relation to Section 3(a),
Paragraph (C) was committed outside Philippine territory, that the victim be a resident
of the place where the complaint is filed in view of the anguish suffered being a
material element of the offense. In the present scenario, the offended wife and children
of respondent husband are residents of Pasig City since March of 2010. Hence, the RTC
of Pasig City may exercise jurisdiction over the case.

Certainly, the act causing psychological violence which under the information relates to
BBB's marital infidelity must be proven by probable cause for the purpose of formally
charging the husband, and to establish the same beyond reasonable doubt for purposes
of conviction. It likewise remains imperative to acquire jurisdiction over the husband.
What this case concerns itself is simply whether or not a complaint for psychological
abuse under R.A. No. 9262 may even be filed within the Philippines if the illicit
relationship is conducted abroad. We say that even if the alleged extra marital affair
causing the offended wife mental and emotional anguish is committed abroad, the
same does not place a prosecution under R.A. No. 9262 absolutely beyond the reach of
Philippine courts.

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

February 24, 2014 and May 2, 2014 of the Regional Trial Court of Pasig City, Branch
158, in Criminal Case No. 146468 are SET ASIDE. Accordingly, the Information filed in
Criminal Case No. 146468 is ordered REINSTATED.

SO ORDERED.

Prospectivity

Co v. CA, G.R. No. 100776, October 28, 1993

[G.R. No. 100776. October 28, 1993.]

ALBINO S. CO, Petitioner, v. COURT OF APPEALS and PEOPLE OF THE

PHILIPPINES, Respondents.

Antonio P. Barredo for Petitioner.

The Solicitor General for the people.

DECISION

NARVASA, J.:

In connection with an agreement to salvage and refloat a sunken vessel — and in

payment of his share of the expenses of the salvage operations therein stipulated —
petitioner Albino Co delivered to the salvaging firm on September 1, 1983 a check
drawn against the Associated Citizens’ Bank, postdated November 30, 1983, in the sum
of P361,528.00. 1 The check was deposited on January 3, 1984. It was dishonored two
days later, the tersely-stated reason given by the bank being: "CLOSED ACCOUNT." 
chanrobles.com:chanrobles.com.ph
chanrobles virtualawlibrary

A criminal complaint for violation of Batas Pambansa Bilang 22 2 was filed by the
salvage company against Albino Co with the Regional Trial Court of Pasay City. The
case eventuated in Co’s conviction of the crime charged, and his being sentenced to
suffer a term of imprisonment of sixty (60) days and to indemnify the salvage company
in the sum of P361,528.00. chanrobles law library

Co appealed to the Court of Appeals. There he sought exoneration upon the theory that
it was reversible error for the Regional Trial Court to have relied, as basis for its verdict
of conviction, on the ruling rendered on September 21, 1987 by this Court in Que v.
People, 154 SCRA 160 (1987) 3 — i.e., that a check issued merely to guarantee the
performance of an obligation is nevertheless covered by B.P. Blg. 22. This was because
at the time of the issuance of the check on September 1, 1983, some four (4) years
prior to the promulgation of the judgment in Que v. People on September 21, 1987, the
delivery of a "rubber" or "bouncing" check as guarantee for an obligation was not
considered a punishable offense, an official pronouncement made in a Circular of the
Ministry of Justice. That Circular (No. 4), dated December 15, 1981, pertinently
provided as follows:chanrobles law library

"2.3.4. Where issuance of bouncing check is neither estafa nor violation of B.P. Blg. 22.

Where the check is issued as part of an arrangement to guarantee or secure the

payment of an obligation, whether pre-existing or not, the drawer is not criminally
liable for either estafa or violation of B.P. Blg. 22 (Res. No. 438, s. 1981, Virginia
Montano v. Josefino Galvez, June 19, 1981; Res. No. 707, s. 1989; Alice Quizon v.
Lydia Calingo, October 23, 1981, Res. No. 769, s. 1981, Alfredo Guido v. Miguel A.
Mateo, Et Al., November 17, 1981; Res. No. 589, s. 1981, Zenaida Lazaro v. Maria
Aquino, August 7, 1981)." cralaw virtua1aw library

This administrative circular was subsequently reversed by another issued on August 8,

1984 (Ministry Circular No. 12) — almost one (1) year after Albino Co had delivered the
"bouncing" check to the complainant on September 1, 1983. Said Circular No. 12, after
observing inter alia that Circular No. 4 of December 15, 1981 appeared to have been
based on "a misapplication of the deliberation in the Batasang Pambansa, . . . (or) the
explanatory note on the original bill, i.e., that the intention was not to penalize the
issuance of a check to secure or guarantee the payment of an obligation," decreed as
follows: 4

"Henceforth, conforming with the rule that an administrative agency having interpreting
authority may reverse its administration interpretation of a statute, but that its new
interpretation applies only prospectively (Waterbury Savings Bank v. Danaher, 128
Conn., 476; 20 a2d 455 (1941), in all cases involving violation of Batas Pambansa Blg.
22 where the check in question is issued after this date, the claim that the check is
issued as a guarantee or part of an arrangement to secure an obligation or to facilitate
collection will no longer be considered as a valid defense." cralaw virtua1aw library

Co’s theory was rejected by the Court of Appeals which affirmed his conviction. Citing
Senarillos v. Hermosisima, 101 Phil. 561, the Appellate Court opined that the Que
doctrine did not amount to the passage of new law but was merely a construction or
interpretation of a pre-existing one, i.e., BP 22, enacted on April 3, 1979.

From this adverse judgment of the Court of Appeals, Albino Co appealed to this Court
on certiorari under Rule 45 of the Rules of Court. By Resolution dated September 9,
1991, the Court dismissed his appeal. Co moved for reconsideration under date of
October 2, 1991. The Court required comment thereon by the Office of the Solicitor
General. The latter complied and, in its comment dated December 13, 1991,
extensively argued against the merits of Albino Co’s theory on appeal, which was
substantially that proffered by him in the Court of Appeals. To this comment, Albino Co
filed a reply dated February 14, 1992. After deliberating on the parties’ arguments and
contentions, the Court resolved, in the interests of justice, to reinstate Albino Co’s
appeal and adjudicate the same on its merits.

"Judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines," according to Article 8 of the Civil Code. "Laws
shall have no retroactive effect, unless the contrary is provided," declares Article 4 of
the same Code, a declaration that is echoed by Article 22 of the Revised Penal Code:
"Penal laws shall have a retroactive effect insofar as they favor the person guilty of a
felony, who is not a habitual criminal . . ." 5

The principle of prospectivity of statutes, original or amendatory, has been applied in

many cases. These include: Buyco v. PNB, 961) 2 SCRA 682 (June 30, 1961), holding
that Republic Act No. 1576 which divested the Philippine National Bank of authority to
accept back pay certificates in payment of loans, does not apply to an offer of payment
made before effectivity of the act; Largado v. Masaganda, Et Al., 5 SCRA 522 (June 30,
1962), ruling that RA 2613, as amended by RA 3090 on June, 1961, granting to inferior
courts jurisdiction over guardianship cases, could not be given retroactive effect, in the
absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect that
Sections. 9 and 10 of Executive Order No. 90, amending Section 4 of PD 1752, could
have no retroactive application; Peo. v. Que Po Lay, 94 Phil. 640, holding that a person
cannot be convicted of violating Circular No. 20 of the Central, when the alleged
violation occurred before publication of the Circular in the Official Gazette; Baltazar v.
C.A., 104 SCRA 619, denying retroactive application to P.D. No. 27 decreeing the
emancipation of tenants from the bondage of the soil, and P.D. No. 316 prohibiting
ejectment of tenants from rice and corn farmholdings, pending the promulgation of
rules and regulations implementing P.D. No. 27; Nilo v. Court of Appeals, 128 SCRA
519, adjudging that RA 6389 which removed "personal cultivation" as a ground for the
ejectment of a tenant cannot be given retroactive effect in the absence of a statutory
statement for retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the
old Administrative Code by RA 4252 could not be accorded retroactive effect; Ballardo
v. Borromeo, 161 SCRA 500, holding that RA 6389 should have only prospective
application; (see also Bonifacio v. Dizon, 177 SCRA 294 and Balatbat v. CA, 205 SCRA
419).

The prospectivity principle has also been made to apply to administrative rulings and
circulars, to wit: ABS-CBN Broadcasting Corporation v. CTA, Oct. 12, 1981, 108 SCRA
142, holding that a circular or ruling of the Commissioner of Internal Revenue may not
be given retroactive effect adversely to a taxpayer; Sanchez v. COMELEC, 193 SCRA
317, ruling that Resolution No. 90-0590 of the Commission on Elections, which directed
the holding of recall proceedings, had no retroactive application; Romualdez v. CSC,
197 SCRA 168, where it was ruled that CSC Memorandum Circular No. 29, s. 1989
cannot be given retrospective effect so as to entitle to permanent appointment an
employee whose temporary appointment had expired before the Circular was issued.

The principle of prospectivity has also been applied to judicial decisions which,
"although in themselves not laws, are nevertheless evidence of what the laws
mean, . . . (this being) the reason why under Article 8 of the New Civil Code, ‘Judicial
decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system . . .’"

So did this Court hold, for example, in Peo. v. Jabinal, 55 SCRA 607, 611: jgc:chanrobles.com.ph

"It will be noted that when appellant was appointed Secret Agent by the Provincial
Government in 1962, and Confidential Agent by the Provincial commander in 1964, the
prevailing doctrine on the matter was that laid down by Us in People v. Macarandang
(1959) and People v. Lucero (1958). 6 Our decision in People v. Mapa, 7 reversing the
aforesaid doctrine, came only in 1967. The sole question in this appeal is: should
appellant be acquitted on the basis of Our rulings in Macarandang and Lucero, or should
his conviction stand in view of the complete reversal of the Macarandang and Lucero
doctrine in Mapa? . . .

Decisions of this Court, although in themselves not laws, are nevertheless evidence of
what the laws mean, and this is the reason why under Article 8 of the New Civil Code,
‘Judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system . . .’ The interpretation upon a law by this Court constitutes, in a
way, a part of the law as of the date that law was originally passed, since this Court’s
construction merely establishes the contemporaneous legislative intent that the law
thus construed intends to effectuate. The settled rule supported by numerous
authorities is a restatement of the legal maxim ‘legis interpretatio legis vim obtinet’ —
the interpretation placed upon the written law by a competent court has the force of
law. The doctrine laid down in Lucero and Macarandang was part of the jurisprudence,
hence, of the law, of the land, at the time appellant was found in possession of the
firearm in question and when he was arraigned by the trial court. It is true that the
doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be applied
prospectively, and should not apply to parties who had relied on the old doctrine and
acted on the faith thereof. This is especially true in the construction and application of
criminal laws, where it is necessary that the punishability of an act be reasonably
foreseen for the guidance of society."cralaw virtua1aw library

So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of
Appeals, Et. Al. (G.R. No. 97973) and Development Bank of the Philippines v. Court of
Appeals, Et. Al. (G.R. No 97998), Jan. 27, 1992, 205 SCRA 515, 527-528: 8

"We sustain the petitioners’ position. It is undisputed that the subject lot was
mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest bidder
at a foreclosure sale on June 18, 1977, and then sold to the petitioners on September
29, 1979.

At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as
amended was that enunciated in Monge and Tupas cited above. The petitioners
Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to
Article 8 of the Civil Code ‘judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.’ But while our
decisions form part of the law of the land, they are also subject to Article 4 of the Civil
Code which provides that ‘laws shall have no retroactive effect unless the contrary is
provided.’ This is expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against retroactivity is easy to perceive.
The retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v.
Certeza, 3 SCRA 565 [1061]).

The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607
[1974] ‘. . . when a doctrine of this Court is overruled and a different view is adopted,
the new doctrine should be applied prospectively and should not apply to parties who
had relied on the old doctrine and acted on the faith thereof." cralaw virtua1aw library

A compelling rationalization of the prospectivity principle of judicial decisions is well set

forth in the oft-cited case of Chicot County Drainage Dist. v. Baxter States Bank, 308
US 371, 374 [1940]. The Chicot doctrine advocates the imperative necessity to take
account of the actual existence of a statute prior to its nullification, as an operative fact
negating acceptance of "a principle of absolute retroactive invalidity." cralaw virtua1aw library

Thus, in this Court’s decision in Tañada v. Tuvera, 9 promulgated on April 24, 1985 —
which declared "that presidential issuances of general application, which have not been
published, shall have no force and effect," and as regards which declaration some
members of the Court appeared "quite apprehensive about the possible unsettling
effect . . . (the) decision might have no acts done in reliance on the validity of those
presidential decrees . . ." — the Court said: jgc:chanrobles.com.ph

". . . The answer is all too familiar. In similar situations in the past this Court had taken
the pragmatic and realistic course set forth in Chicot County Drainage District vs Baxter
Bank (308 U.S. 371, 374) to wit: jgc:chanrobles.com.ph

"The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shelby County, 118 US 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects — with respect to particular conduct, private and
official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public policy in
the light of the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those which have
engaged the attention of courts, state and federal, and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive invalidity
cannot be justified."cralaw virtua1aw library

Much earlier, in De Agbayani v. PNB, 38 SCRA 429 — concerning the effects of the
invalidation of "Republic Act No. 342, the moratorium legislation, which continued
Executive Order No. 32, issued by the then President Osmeña, suspending the
enforcement of payment of all debts and other monetary obligations payable by war
sufferers," and which had been "explicitly held in Rutter v. Esteban (93 Phil. 68 [1953]
10 . . . (to be) in 1953 ‘unreasonable, and oppressive, and should not be prolonged a
minute longer . . ." — the Court made substantially the same observations, to wit: 11

". . . The decision now on appeal reflects the orthodox view that an unconstitutional act,
for that matter an executive order or a municipal ordinance likewise suffering from that
infirmity, cannot be the source of any legal rights or duties. Nor can it justify any
official act taken under it. Its repugnancy to the fundamental law once judicially
declared results in its being to all intents and purposes a mere scrap of paper . . . It is
understandable why it should be so, the Constitution being supreme and paramount.
Any legislative or executive act contrary to its terms cannot survive.

Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the declaration
of nullity such challenged legislative or executive act must have been in force and had
to be complied with. This is so as until after the judiciary, in an appropriate case,
declares its invalidity, it is entitled to obedience and respect. Parties may have acted
under it and may have changed their positions. What could be more fitting than that in
a subsequent litigation regard be had to what has been done while such legislative or
executive act was in operation and presumed to be valid in all respects. It is now
accepted as a doctrine that prior to its being nullified, its existence as a fact must be
reckoned with. This is merely to reflect awareness that precisely because the judiciary
is the governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can exercise
the power of judicial review that may lead to a declaration of nullity. It would be to
deprive the law of its quality of fairness and justice then, if there be no recognition of
what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: ‘The actual existence of a

statute, prior to such a determination [of unconstitutionality], is an operative fact and
may have consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects, — with respect to particular relations,
individual and corporate, and particular conduct, private and official’ (Chicot County
Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]). This language has
been quoted with approval in a resolution in Araneta v. Hill (93 Phil. 1002 [1953]) and
the decision in Manila Motor Co., Inc. v. Flores (99 Phil. 738 [1956]). An even more
recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v.
Cuerva and Co. (L-21114, Nov. 28, 1967, 21 SCRA 1095)." cralaw virtua1aw library

Again, treating of the effect that should be given to its decision in Olaguer v Military
Commission No 34, 12 — declaring invalid criminal proceedings conducted during the
martial law regime against civilians, which had resulted in the conviction and
incarceration of numerous persons — this Court, in Tan v. Barrios, 190 SCRA 686, at p.
700, ruled as follows:jgc:chanrobles.com.ph

"In the interest of justice and consistency, we hold that Olaguer should, in principle, be
applied prospectively only to future cases and cases still ongoing or not yet final when
that decision was promulgated. Hence, there should be no retroactive nullification of
final judgments, whether of conviction or acquittal, rendered by military courts against
civilians before the promulgation of the Olaguer decision. Such final sentences should
not be disturbed by the State. Only in particular cases where the convicted person or
the State shows that there was serious denial of constitutional rights of the accused,
should the nullity of the sentence be declared and a retrial be ordered based on the
violation of the constitutional rights of the accused, and not on the Olaguer doctrine. If
a retrial is no longer possible, the accused should be released since the judgment
against him is null on account of the violation of his constitutional rights and denial of
due process.
 x          x           x

The trial of thousands of civilians for common crimes before the military tribunals and
commissions during the ten-year period of martial rule (1971-1981) which were created
under general orders issued by President Marcos in the exercise of his legislative
powers is an operative fact that may not just be ignored. The belated declaration in
1987 of the unconstitutionality and invalidity of those proceedings did not erase the
reality of their consequences which occurred long before our decision in Olaguer was
promulgated and which now prevent us from carrying Olaguer to the limit of its logic.
Thus did this Court rule in Municipality of Malabang v Benito, 27 SCRA 533, where the
question arose as to whether the nullity of creation of a municipality by executive order
wiped out all the acts of the local government abolished." 13

It would seem, then, that the weight of authority is decidedly in favor of the proposition
that the Court’s decision of September 21, 1987 in Que v. People, 154 SCRA 160
(1987) 14 — i.e., that a check issued merely to guarantee the performance of an
obligation is nevertheless covered by B.P. Blg. 22 — should not be given retrospective
effect to the prejudice of the petitioner and other persons similarly situated, who relied
on the official opinion of the Minister of Justice that such a check did not fall within the
scope of B.P. Blg. 22.

Inveighing against this proposition, the Solicitor General invokes U.S. V. Go Chico, 14
Phil. 128, applying the familiar doctrine that in crimes mala prohibita, the intent or
motive of the offender is inconsequential, the only relevant inquiry being, "has the law
been violated?" The facts in Go Chico are substantially different from those in the case
at bar. In the former, there was no official issuance by the Secretary of Justice or other
Government officer construing the special law violated; 15 and it was there observed,
among others, that "the defense . . . (of) an honest misconstruction of the law under
legal advice" 16 could not be appreciated as a valid defense. In the present case, on
the other hand, the defense is that reliance was placed, not on the opinion of a private
lawyer but upon an official pronouncement of no less than the attorney of the
Government, the Secretary of Justice, whose opinions, though not law, are entitled to
great weight and on which reliance may be placed by private individuals as reflective of
the correct interpretation of a constitutional or statutory provision; this, particularly in
the case of penal statutes, by the very nature and scope of the authority that resides in
his office as regards prosecutions for their violation. 17 Senarillos v. Hermosisima,
supra, relied upon by the respondent Court of Appeals is crucially different in that in
said case, as in U.S. v. Go Chico, supra, no administrative interpretation antedated the
contrary construction placed by the Court on the law invoked.

This is after all a criminal action all doubts in which, pursuant to familiar, fundamental
doctrine, must be resolved in favor of the accused. Everything considered, the Court
sees no compelling reason why the doctrine of mala prohibita should override the
principle of prospectivity, and its clear implications as hereinabove set out and
discussed, negativing criminal liability.

WHEREFORE, the assailed decisions of the Court of Appeals and of the Regional Trial
Court are reversed and set aside, and the criminal prosecution against the accused-
petitioner is DISMISSED, with costs de oficio.
SO ORDERED.
Republic v. Euginio, G.R. No. 174629, February 14, 2008

G.R. No. 174629             February 14, 2008

REPUBLIC OF THE PHILIPPINES, Represented by THE ANTI-MONEY LAUNDERING COUNCIL

(AMLC), petitioner,
vs.
HON. ANTONIO M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC, MANILA, BRANCH 34,
PANTALEON ALVAREZ and LILIA CHENG, respondents.

DECISION

TINGA, J.:

The present petition for certiorari and prohibition under Rule 65 assails the orders and resolutions
issued by two different courts in two different cases. The courts and cases in question are the
Regional Trial Court of Manila, Branch 24, which heard SP Case No. 06-114200 1 and the Court of
Appeals, Tenth Division, which heared CA-G.R. SP No. 95198. 2 Both cases arose as part of the
aftermath of the ruling of this Court in Agan v. PIATCO3 nullifying the concession agreement
awarded to the Philippine International Airport Terminal Corporation (PIATCO) over the Ninoy
Aquino International Airport – International Passenger Terminal 3 (NAIA 3) Project.

I.

Following the promulgation of Agan, a series of investigations concerning the award of the NAIA 3
contracts to PIATCO were undertaken by the Ombudsman and the Compliance and Investigation
Staff (CIS) of petitioner Anti-Money Laundering Council (AMLC). On 24 May 2005, the Office of the
Solicitor General (OSG) wrote the AMLC requesting the latter’s assistance "in obtaining more
evidence to completely reveal the financial trail of corruption surrounding the [NAIA 3] Project," and
also noting that petitioner Republic of the Philippines was presently defending itself in two
international arbitration cases filed in relation to the NAIA 3 Project. 4 The CIS conducted an
intelligence database search on the financial transactions of certain individuals involved in the
award, including respondent Pantaleon Alvarez (Alvarez) who had been the Chairman of the PBAC
Technical Committee, NAIA-IPT3 Project.5 By this time, Alvarez had already been charged by the
Ombudsman with violation of Section 3(j) of R.A. No. 3019. 6 The search revealed that Alvarez
maintained eight (8) bank accounts with six (6) different banks.7

On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005, 8 whereby the Council
resolved to authorize the Executive Director of the AMLC "to sign and verify an application to inquire
into and/or examine the [deposits] or investments of Pantaleon Alvarez, Wilfredo Trinidad, Alfredo
Liongson, and Cheng Yong, and their related web of accounts wherever these may be found, as
defined under Rule 10.4 of the Revised Implementing Rules and Regulations;" and to authorize the
AMLC Secretariat "to conduct an inquiry into subject accounts once the Regional Trial Court grants
the application to inquire into and/or examine the bank accounts" of those four individuals. 9 The
resolution enumerated the particular bank accounts of Alvarez, Wilfredo Trinidad (Trinidad), Alfredo
Liongson (Liongson) and Cheng Yong which were to be the subject of the inquiry. 10 The rationale for
the said resolution was founded on the cited findings of the CIS that amounts were transferred from
a Hong Kong bank account owned by Jetstream Pacific Ltd. Account to bank accounts in the
Philippines maintained by Liongson and Cheng Yong. 11 The Resolution also noted that "[b]y
awarding the contract to PIATCO despite its lack of financial capacity, Pantaleon Alvarez caused
undue injury to the government by giving PIATCO unwarranted benefits, advantage, or preference in
the discharge of his official administrative functions through manifest partiality, evident bad faith, or
gross inexcusable negligence, in violation of Section 3(e) of Republic Act No. 3019." 12

Under the authority granted by the Resolution, the AMLC filed an application to inquire into or
examine the deposits or investments of Alvarez, Trinidad, Liongson and Cheng Yong before the
RTC of Makati, Branch 138, presided by Judge (now Court of Appeals Justice) Sixto Marella, Jr. The
application was docketed as AMLC No. 05-005. 13 The Makati RTC heard the testimony of the Deputy
Director of the AMLC, Richard David C. Funk II, and received the documentary evidence of the
AMLC.14 Thereafter, on 4 July 2005, the Makati RTC rendered an Order (Makati RTC bank inquiry
order) granting the AMLC the authority to inquire and examine the subject bank accounts of Alvarez,
Trinidad, Liongson and Cheng Yong, the trial court being satisfied that there existed "[p]robable
cause [to] believe that the deposits in various bank accounts, details of which appear in paragraph 1
of the Application, are related to the offense of violation of Anti-Graft and Corrupt Practices Act now
the subject of criminal prosecution before the Sandiganbayan as attested to by the Informations,
Exhibits C, D, E, F, and G."15 Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to
inquire and examine the deposits, investments and related web accounts of the four. 16

Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis Villa-Ignacio, wrote a
letter dated 2 November 2005, requesting the AMLC to investigate the accounts of Alvarez,
PIATCO, and several other entities involved in the nullified contract. The letter adverted to probable
cause to believe that the bank accounts "were used in the commission of unlawful activities that
were committed" in relation to the criminal cases then pending before the Sandiganbayan. 17 Attached
to the letter was a memorandum "on why the investigation of the [accounts] is necessary in the
prosecution of the above criminal cases before the Sandiganbayan." 18

In response to the letter of the Special Prosecutor, the AMLC promulgated on 9 December 2005
Resolution No. 121 Series of 2005,19 which authorized the executive director of the AMLC to inquire
into and examine the accounts named in the letter, including one maintained by Alvarez with DBS
Bank and two other accounts in the name of Cheng Yong with Metrobank. The Resolution
characterized the memorandum attached to the Special Prosecutor’s letter as "extensively justif[ying]
the existence of probable cause that the bank accounts of the persons and entities mentioned in the
letter are related to the unlawful activity of violation of Sections 3(g) and 3(e) of Rep. Act No. 3019,
as amended."20

Following the December 2005 AMLC Resolution, the Republic, through the AMLC, filed an
application21 before the Manila RTC to inquire into and/or examine thirteen (13) accounts and two (2)
related web of accounts alleged as having been used to facilitate corruption in the NAIA 3 Project.
Among said accounts were the DBS Bank account of Alvarez and the Metrobank accounts of Cheng
Yong. The case was raffled to Manila RTC, Branch 24, presided by respondent Judge Antonio
Eugenio, Jr., and docketed as SP Case No. 06-114200.

On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry order) granting
the Ex Parte Application expressing therein "[that] the allegations in said application to be impressed
with merit, and in conformity with Section 11 of R.A. No. 9160, as amended, otherwise known as the
Anti-Money Laundering Act (AMLA) of 2001 and Rules 11.1 and 11.2 of the Revised Implementing
Rules and Regulations."22 Authority was thus granted to the AMLC to inquire into the bank accounts
listed therein.

On 25 January 2006, Alvarez, through counsel, entered his appearance 23 before the Manila RTC in
SP Case No. 06-114200 and filed an Urgent Motion to Stay Enforcement of Order of January 12,
2006.24 Alvarez alleged that he fortuitously learned of the bank inquiry order, which was issued
following an ex parte application, and he argued that nothing in R.A. No. 9160 authorized the AMLC
to seek the authority to inquire into bank accounts ex parte.25 The day after Alvarez filed his motion,
26 January 2006, the Manila RTC issued an Order 26 staying the enforcement of its bank inquiry order
and giving the Republic five (5) days to respond to Alvarez’s motion.

The Republic filed an Omnibus Motion for Reconsideration 27 of the 26 January 2006 Manila RTC
Order and likewise sought to strike out Alvarez’s motion that led to the issuance of said order. For
his part, Alvarez filed a Reply and Motion to Dismiss28 the application for bank inquiry order. On 2
May 2006, the Manila RTC issued an Omnibus Order 29 granting the Republic’s Motion for
Reconsideration, denying Alvarez’s motion to dismiss and reinstating "in full force and effect" the
Order dated 12 January 2006. In the omnibus order, the Manila RTC reiterated that the material
allegations in the application for bank inquiry order filed by the Republic stood as "the probable
cause for the investigation and examination of the bank accounts and investments of the
respondents."30

Alvarez filed on 10 May 2006 an Urgent Motion 31 expressing his apprehension that the AMLC would
immediately enforce the omnibus order and would thereby render the motion for reconsideration he
intended to file as moot and academic; thus he sought that the Republic be refrained from enforcing
the omnibus order in the meantime. Acting on this motion, the Manila RTC, on 11 May 2006, issued
an Order32 requiring the OSG to file a comment/opposition and reminding the parties that judgments
and orders become final and executory upon the expiration of fifteen (15) days from receipt thereof,
as it is the period within which a motion for reconsideration could be filed. Alvarez filed his Motion for
Reconsideration33 of the omnibus order on 15 May 2006, but the motion was denied by the Manila
RTC in an Order34 dated 5 July 2006.

On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation 35 wherein he manifested having
received reliable information that the AMLC was about to implement the Manila RTC bank inquiry
order even though he was intending to appeal from it. On the premise that only a final and executory
judgment or order could be executed or implemented, Alvarez sought that the AMLC be immediately
ordered to refrain from enforcing the Manila RTC bank inquiry order.

On 12 July 2006, the Manila RTC, acting on Alvarez’s latest motion, issued an Order 36 directing the
AMLC "to refrain from enforcing the order dated January 12, 2006 until the expiration of the period to
appeal, without any appeal having been filed." On the same day, Alvarez filed a Notice of
Appeal37 with the Manila RTC.

On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for Clarification.38 Therein, he alleged

having learned that the AMLC had began to inquire into the bank accounts of the other persons
mentioned in the application for bank inquiry order filed by the Republic. 39 Considering that the
Manila RTC bank inquiry order was issued ex parte, without notice to those other persons, Alvarez
prayed that the AMLC be ordered to refrain from inquiring into any of the other bank deposits and
alleged web of accounts enumerated in AMLC’s application with the RTC; and that the AMLC be
directed to refrain from using, disclosing or publishing in any proceeding or venue any information or
document obtained in violation of the 11 May 2006 RTC Order. 40

On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC issued an
Order41 wherein it clarified that "the Ex Parte Order of this Court dated January 12, 2006 can not be
implemented against the deposits or accounts of any of the persons enumerated in the AMLC
Application until the appeal of movant Alvarez is finally resolved, otherwise, the appeal would be
rendered moot and academic or even nugatory."42 In addition, the AMLC was ordered "not to
disclose or publish any information or document found or obtained in [v]iolation of the May 11, 2006
Order of this Court."43 The Manila RTC reasoned that the other persons mentioned in AMLC’s
application were not served with the court’s 12 January 2006 Order. This 25 July 2006 Manila RTC
Order is the first of the four rulings being assailed through this petition.

In response, the Republic filed an Urgent Omnibus Motion for Reconsideration 44 dated 27 July 2006,
urging that it be allowed to immediately enforce the bank inquiry order against Alvarez and that
Alvarez’s notice of appeal be expunged from the records since appeal from an order of inquiry is
disallowed under the Anti money Laundering Act (AMLA).

Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a Petition for Certiorari,
Prohibition and Mandamus with Application for TRO and/or Writ of Preliminary Injunction 45 dated 10
July 2006, directed against the Republic of the Philippines through the AMLC, Manila RTC Judge
Eugenio, Jr. and Makati RTC Judge Marella, Jr.. She identified herself as the wife of Cheng
Yong46 with whom she jointly owns a conjugal bank account with Citibank that is covered by the
Makati RTC bank inquiry order, and two conjugal bank accounts with Metrobank that are covered by
the Manila RTC bank inquiry order. Lilia Cheng imputed grave abuse of discretion on the part of the
Makati and Manila RTCs in granting AMLC’s ex parte applications for a bank inquiry order, arguing
among others that the ex parte applications violated her constitutional right to due process, that the
bank inquiry order under the AMLA can only be granted in connection with violations of the AMLA
and that the AMLA can not apply to bank accounts opened and transactions entered into prior to the
effectivity of the AMLA or to bank accounts located outside the Philippines. 47

On 1 August 2006, the Court of Appeals, acting on Lilia Cheng’s petition, issued a Temporary
Restraining Order48 enjoining the Manila and Makati trial courts from implementing, enforcing or
executing the respective bank inquiry orders previously issued, and the AMLC from enforcing and
implementing such orders. On even date, the Manila RTC issued an Order 49 resolving to hold in
abeyance the resolution of the urgent omnibus motion for reconsideration then pending before it until
the resolution of Lilia Cheng’s petition for certiorari with the Court of Appeals. The Court of Appeals
Resolution directing the issuance of the temporary restraining order is the second of the four rulings
assailed in the present petition.

The third assailed ruling50 was issued on 15 August 2006 by the Manila RTC, acting on the Urgent
Motion for Clarification51 dated 14 August 2006 filed by Alvarez. It appears that the 1 August 2006
Manila RTC Order had amended its previous 25 July 2006 Order by deleting the last paragraph
which stated that the AMLC "should not disclose or publish any information or document found or
obtained in violation of the May 11, 2006 Order of this Court." 52 In this new motion, Alvarez argued
that the deletion of that paragraph would allow the AMLC to implement the bank inquiry orders and
publish whatever information it might obtain thereupon even before the final orders of the Manila
RTC could become final and executory.53 In the 15 August 2006 Order, the Manila RTC reiterated
that the bank inquiry order it had issued could not be implemented or enforced by the AMLC or any
of its representatives until the appeal therefrom was finally resolved and that any enforcement
thereof would be unauthorized. 54

The present Consolidated Petition55 for certiorari and prohibition under Rule 65 was filed on 2
October 2006, assailing the two Orders of the Manila RTC dated 25 July and 15 August 2006 and
the Temporary Restraining Order dated 1 August 2006 of the Court of Appeals. Through an Urgent
Manifestation and Motion56 dated 9 October 2006, petitioner informed the Court that on 22
September 2006, the Court of Appeals hearing Lilia Cheng’s petition had granted a writ of
preliminary injunction in her favor.57 Thereafter, petitioner sought as well the nullification of the 22
September 2006 Resolution of the Court of Appeals, thereby constituting the fourth ruling assailed in
the instant petition.58
The Court had initially granted a Temporary Restraining Order 59 dated 6 October 2006 and later on a
Supplemental Temporary Restraining Order60 dated 13 October 2006 in petitioner’s favor, enjoining
the implementation of the assailed rulings of the Manila RTC and the Court of Appeals. However, on
respondents’ motion, the Court, through a Resolution61 dated 11 December 2006, suspended the
implementation of the restraining orders it had earlier issued.

Oral arguments were held on 17 January 2007. The Court consolidated the issues for argument as
follows:

1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15 August 2006 which
deferred the implementation of its Order dated 12 January 2006, and the Court of Appeals,
in issuing its Resolution dated 1 August 2006, which ordered the status quo in relation to the
1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila,
both of which authorized the examination of bank accounts under Section 11 of Rep. Act No.
9160 (AMLA), commit grave abuse of discretion?

(a) Is an application for an order authorizing inquiry into or examination of bank

accounts or investments under Section 11 of the AMLA ex-parte in nature or one
which requires notice and hearing?

(b) What legal procedures and standards should be observed in the conduct of the
proceedings for the issuance of said order?

(c) Is such order susceptible to legal challenges and judicial review?

2. Is it proper for this Court at this time and in this case to inquire into and pass upon the
validity of the 1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the
RTC-Manila, considering the pendency of CA G.R. SP No. 95-198 (Lilia Cheng v. Republic)
wherein the validity of both orders was challenged?62

After the oral arguments, the parties were directed to file their respective memoranda, which they
did,63 and the petition was thereafter deemed submitted for resolution.

II.

Petitioner’s general advocacy is that the bank inquiry orders issued by the Manila and Makati RTCs
are valid and immediately enforceable whereas the assailed rulings, which effectively stayed the
enforcement of the Manila and Makati RTCs bank inquiry orders, are sullied with grave abuse of
discretion. These conclusions flow from the posture that a bank inquiry order, issued upon a finding
of probable cause, may be issued ex parte and, once issued, is immediately executory. Petitioner
further argues that the information obtained following the bank inquiry is necessarily beneficial, if not
indispensable, to the AMLC in discharging its awesome responsibility regarding the effective
implementation of the AMLA and that any restraint in the disclosure of such information to
appropriate agencies or other judicial fora would render meaningless the relief supplied by the bank
inquiry order.

Petitioner raises particular arguments questioning Lilia Cheng’s right to seek injunctive relief before
the Court of Appeals, noting that not one of the bank inquiry orders is directed against her. Her
"cryptic assertion" that she is the wife of Cheng Yong cannot, according to petitioner,
"metamorphose into the requisite legal standing to seek redress for an imagined injury or to maintain
an action in behalf of another." In the same breath, petitioner argues that Alvarez cannot assert any
violation of the right to financial privacy in behalf of other persons whose bank accounts are being
inquired into, particularly those other persons named in the Makati RTC bank inquiry order who did
not take any step to oppose such orders before the courts.

Ostensibly, the proximate question before the Court is whether a bank inquiry order issued in
accordance with Section 10 of the AMLA may be stayed by injunction. Yet in arguing that it does,
petitioner relies on what it posits as the final and immediately executory character of the bank inquiry
orders issued by the Manila and Makati RTCs. Implicit in that position is the notion that the inquiry
orders are valid, and such notion is susceptible to review and validation based on what appears on
the face of the orders and the applications which triggered their issuance, as well as the provisions
of the AMLA governing the issuance of such orders. Indeed, to test the viability of petitioner’s
argument, the Court will have to be satisfied that the subject inquiry orders are valid in the first place.
However, even from a cursory examination of the applications for inquiry order and the orders
themselves, it is evident that the orders are not in accordance with law.

III.

A brief overview of the AMLA is called for.

Money laundering has been generally defined by the International Criminal Police Organization
(Interpol) `as "any act or attempted act to conceal or disguise the identity of illegally obtained
proceeds so that they appear to have originated from legitimate sources." 64 Even before the passage
of the AMLA, the problem was addressed by the Philippine government through the issuance of
various circulars by the Bangko Sentral ng Pilipinas. Yet ultimately, legislative proscription was
necessary, especially with the inclusion of the Philippines in the Financial Action Task Force’s list of
non-cooperative countries and territories in the fight against money laundering. 65 The original AMLA,
Republic Act (R.A.) No. 9160, was passed in 2001. It was amended by R.A. No. 9194 in 2003.

Section 4 of the AMLA states that "[m]oney laundering is a crime whereby the proceeds of an
unlawful activity as [defined in the law] are transacted, thereby making them appear to have
originated from legitimate sources."66 The section further provides the three modes through which the
crime of money laundering is committed. Section 7 creates the AMLC and defines its powers, which
generally relate to the enforcement of the AMLA provisions and the initiation of legal actions
authorized in the AMLA such as civil forefeiture proceedings and complaints for the prosecution of
money laundering offenses.67

In addition to providing for the definition and penalties for the crime of money laundering, the AMLA
also authorizes certain provisional remedies that would aid the AMLC in the enforcement of the
AMLA. These are the "freeze order" authorized under Section 10, and the "bank inquiry order"
authorized under Section 11.

Respondents posit that a bank inquiry order under Section 11 may be obtained only upon the pre-
existence of a money laundering offense case already filed before the courts. 68 The conclusion is
based on the phrase "upon order of any competent court in cases of violation of this Act," the word
"cases" generally understood as referring to actual cases pending with the courts.

We are unconvinced by this proposition, and agree instead with the then Solicitor General who
conceded that the use of the phrase "in cases of" was unfortunate, yet submitted that it should be
interpreted to mean "in the event there are violations" of the AMLA, and not that there are already
cases pending in court concerning such violations. 69 If the contrary position is adopted, then the bank
inquiry order would be limited in purpose as a tool in aid of litigation of live cases, and wholly inutile
as a means for the government to ascertain whether there is sufficient evidence to sustain an
intended prosecution of the account holder for violation of the AMLA. Should that be the situation, in
all likelihood the AMLC would be virtually deprived of its character as a discovery tool, and thus
would become less circumspect in filing complaints against suspect account holders. After all, under
such set-up the preferred strategy would be to allow or even encourage the indiscriminate filing of
complaints under the AMLA with the hope or expectation that the evidence of money laundering
would somehow surface during the trial. Since the AMLC could not make use of the bank inquiry
order to determine whether there is evidentiary basis to prosecute the suspected malefactors, not
filing any case at all would not be an alternative. Such unwholesome set-up should not come to
pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it has
established and encourage the unfounded initiation of complaints for money laundering.

Still, even if the bank inquiry order may be availed of without need of a pre-existing case under the
AMLA, it does not follow that such order may be availed of ex parte. There are several reasons why
the AMLA does not generally sanction ex parte applications and issuances of the bank inquiry order.

IV.

It is evident that Section 11 does not specifically authorize, as a general rule, the issuance ex
parte of the bank inquiry order. We quote the provision in full:

SEC. 11. Authority to Inquire into Bank Deposits. ― Notwithstanding the provisions of

Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791,
and other laws, the AMLC may inquire into or examine any particular deposit or investment with any
banking institution or non bank financial institution upon order of any competent court in cases of
violation of this Act, when it has been established that there is probable cause that the deposits or
investments are related to an unlawful activity as defined in Section 3(i) hereof or a money
laundering offense under Section 4 hereof, except that no court order shall be required in cases
involving unlawful activities defined in Sections 3(i)1, (2) and (12).

To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into
or examine any deposit of investment with any banking institution or non bank financial
institution when the examination is made in the course of a periodic or special examination,
in accordance with the rules of examination of the BSP. 70 (Emphasis supplied)

Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a
judicial order in cases where there is probable cause that the deposits or investments are related to
kidnapping for ransom,71 certain violations of the Comprehensive Dangerous Drugs Act of
2002,72 hijacking and other violations under R.A. No. 6235, destructive arson and murder. Since
such special circumstances do not apply in this case, there is no need for us to pass comment on
this proviso. Suffice it to say, the proviso contemplates a situation distinct from that which presently
confronts us, and for purposes of the succeeding discussion, our reference to Section 11 of the
AMLA excludes said proviso.

In the instances where a court order is required for the issuance of the bank inquiry order, nothing in
Section 11 specifically authorizes that such court order may be issued ex parte. It might be argued
that this silence does not preclude the ex parte issuance of the bank inquiry order since the same is
not prohibited under Section 11. Yet this argument falls when the immediately preceding provision,
Section 10, is examined.

SEC. 10. Freezing of Monetary Instrument or Property. ― The Court of Appeals,

upon application ex parte  by the AMLC and after determination that probable cause exists that any
monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i)
 hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for
a period of twenty (20) days unless extended by the court.73

Although oriented towards different purposes, the freeze order under Section 10 and the bank
inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the
AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially,
Section 10 uses specific language to authorize an ex parte application for the provisional relief
therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex
parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed
such intent in the law, as it did with the freeze order under Section 10.

Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the
same time, through the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not
the Court of Appeals, which had authority to issue a freeze order, whereas a bank inquiry order
always then required, without exception, an order from a competent court. 74 It was through the same
enactment that ex parte proceedings were introduced for the first time into the AMLA, in the case of
the freeze order which now can only be issued by the Court of Appeals. It certainly would have been
convenient, through the same amendatory law, to allow a similar ex parte procedure in the case of a
bank inquiry order had Congress been so minded. Yet nothing in the provision itself, or even the
available legislative record, explicitly points to an ex parte judicial procedure in the application for a
bank inquiry order, unlike in the case of the freeze order.

That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is
confirmed by the present implementing rules and regulations of the AMLA, promulgated upon the
passage of R.A. No. 9194. With respect to freeze orders under Section 10, the implementing rules
do expressly provide that the applications for freeze orders be filed ex parte,75 but no similar
clearance is granted in the case of inquiry orders under Section 11. 76 These implementing rules were
promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the Securities and
Exchange Commission,77 and if it was the true belief of these institutions that inquiry orders could be
issued ex parte similar to freeze orders, language to that effect would have been incorporated in the
said Rules. This is stressed not because the implementing rules could authorize ex
parte applications for inquiry orders despite the absence of statutory basis, but rather because the
framers of the law had no intention to allow such ex parte applications.

Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC 78 to enforce the
provisions of the AMLA specifically authorize ex parte applications with respect to freeze orders
under Section 1079 but make no similar authorization with respect to bank inquiry orders under
Section 11.

The Court could divine the sense in allowing ex parte proceedings under Section 10 and in
proscribing the same under Section 11. A freeze order under Section 10 on the one hand is aimed at
preserving monetary instruments or property in any way deemed related to unlawful activities as
defined in Section 3(i) of the AMLA. The owner of such monetary instruments or property would thus
be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order
anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the
dissipation of such funds even before the order could be issued.

On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical
seizure of property of the account holder. What the bank inquiry order authorizes is the examination
of the particular deposits or investments in banking institutions or non-bank financial institutions. The
monetary instruments or property deposited with such banks or financial institutions are not seized in
a physical sense, but are examined on particular details such as the account holder’s record of
deposits and transactions. Unlike the assets subject of the freeze order, the records to be inspected
under a bank inquiry order cannot be physically seized or hidden by the account holder. Said
records are in the possession of the bank and therefore cannot be destroyed at the instance of the
account holder alone as that would require the extraordinary cooperation and devotion of the bank.

Interestingly, petitioner’s memorandum does not attempt to demonstrate before the Court that the
bank inquiry order under Section 11 may be issued ex parte, although the petition itself did devote
some space for that argument. The petition argues that the bank inquiry order is "a special and
peculiar remedy, drastic in its name, and made necessary because of a public necessity… [t]hus, by
its very nature, the application for an order or inquiry must necessarily, be ex parte." This argument
is insufficient justification in light of the clear disinclination of Congress to allow the issuance ex
parte of bank inquiry orders under Section 11, in contrast to the legislature’s clear inclination to allow
the ex parte grant of freeze orders under Section 10.

Without doubt, a requirement that the application for a bank inquiry order be done with notice to the
account holder will alert the latter that there is a plan to inspect his bank account on the belief that
the funds therein are involved in an unlawful activity or money laundering offense. 80 Still, the account
holder so alerted will in fact be unable to do anything to conceal or cleanse his bank account records
of suspicious or anomalous transactions, at least not without the whole-hearted cooperation of the
bank, which inherently has no vested interest to aid the account holder in such manner.

V.

The necessary implication of this finding that Section 11 of the AMLA does not generally authorize
the issuance ex parte of the bank inquiry order would be that such orders cannot be issued unless
notice is given to the owners of the account, allowing them the opportunity to contest the issuance of
the order. Without such a consequence, the legislated distinction between ex parte proceedings
under Section 10 and those which are not ex parte under Section 11 would be lost and rendered
useless.

There certainly is fertile ground to contest the issuance of an ex parte order. Section 11 itself
requires that it be established that "there is probable cause that the deposits or investments are
related to unlawful activities," and it obviously is the court which stands as arbiter whether there is
indeed such probable cause. The process of inquiring into the existence of probable cause would
involve the function of determination reposed on the trial court. Determination clearly implies a
function of adjudication on the part of the trial court, and not a mechanical application of a standard
pre-determination by some other body. The word "determination" implies deliberation and is, in
normal legal contemplation, equivalent to "the decision of a court of justice." 81

The court receiving the application for inquiry order cannot simply take the AMLC’s word that
probable cause exists that the deposits or investments are related to an unlawful activity. It will have
to exercise its

own determinative function in order to be convinced of such fact. The account holder would be
certainly capable of contesting such probable cause if given the opportunity to be apprised of the
pending application to inquire into his account; hence a notice requirement would not be an empty
spectacle. It may be so that the process of obtaining the inquiry order may become more
cumbersome or prolonged because of the notice requirement, yet we fail to see any unreasonable
burden cast by such circumstance. After all, as earlier stated, requiring notice to the account holder
should not, in any way, compromise the integrity of the bank records subject of the inquiry which
remain in the possession and control of the bank.
Petitioner argues that a bank inquiry order necessitates a finding of probable cause, a characteristic
similar to a search warrant which is applied to and heard ex parte. We have examined the supposed
analogy between a search warrant and a bank inquiry order yet we remain to be unconvinced by
petitioner.

The Constitution and the Rules of Court prescribe particular requirements attaching to search
warrants that are not imposed by the AMLA with respect to bank inquiry orders. A constitutional
warrant requires that the judge personally examine under oath or affirmation the complainant and
the witnesses he may produce,82 such examination being in the form of searching questions and
answers.83 Those are impositions which the legislative did not specifically prescribe as to the bank
inquiry order under the AMLA, and we cannot find sufficient legal basis to apply them to Section 11
of the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it
contemplates a direct object but not the seizure of persons or property.

Even as the Constitution and the Rules of Court impose a high procedural standard for the
determination of probable cause for the issuance of search warrants which Congress chose not to
prescribe for the bank inquiry order under the AMLA, Congress nonetheless disallowed ex
parte applications for the inquiry order. We can discern that in exchange for these procedural
standards normally applied to search warrants, Congress chose instead to legislate a right to notice
and a right to be heard— characteristics of judicial proceedings which are not ex parte. Absent any
demonstrable constitutional infirmity, there is no reason for us to dispute such legislative policy
choices.

VI.

The Court’s construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy
considerations. If sustained, petitioner’s argument that a bank account may be inspected by the
government following an ex parte proceeding about which the depositor would know nothing would
have significant implications on the right to privacy, a right innately cherished by all notwithstanding
the legally recognized exceptions thereto. The notion that the government could be so empowered is
cause for concern of any individual who values the right to privacy which, after all, embodies even
the right to be "let

alone," the most comprehensive of rights and the right most valued by civilized people. 84

One might assume that the constitutional dimension of the right to privacy, as applied to bank
deposits, warrants our present inquiry. We decline to do so. Admittedly, that question has proved
controversial in American jurisprudence. Notably, the United States Supreme Court in U.S. v.
Miller85 held that there was no legitimate expectation of privacy as to the bank records of a
depositor.86 Moreover, the text of our Constitution has not bothered with the triviality of allocating
specific rights peculiar to bank deposits.

However, sufficient for our purposes, we can assert there is a right to privacy governing bank
accounts in the Philippines, and that such right finds application to the case at bar. The source of
such right is statutory, expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act
of 1955. The right to privacy is enshrined in Section 2 of that law, to wit:

SECTION 2. All deposits of whatever nature with banks or banking institutions in the
Philippines including investments in bonds issued by the Government of the
Philippines, its political subdivisions and its instrumentalities, are hereby considered
as of an absolutely confidential nature and may not be examined, inquired or looked into
by any person, government official, bureau or office, except upon written permission of the
 depositor, or in cases of impeachment, or upon order of a competent court in cases of
bribery or dereliction of duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation. (Emphasis supplied)

Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in
the Philippines.87 Subsequent laws, including the AMLA, may have added exceptions to the Bank
Secrecy Act, yet the secrecy of bank deposits still lies as the general rule. It falls within the zones of
privacy recognized by our laws.88 The framers of the 1987 Constitution likewise recognized that bank
accounts are not covered by either the right to information 89 under Section 7, Article III or under the
requirement of full public disclosure 90 under Section 28, Article II.91 Unless the Bank Secrecy Act is
repealed or

amended, the legal order is obliged to conserve the absolutely confidential nature of Philippine bank
deposits.

Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the
Bank Secrecy Act itself prescribes exceptions whereby these bank accounts may be examined by
"any person, government official, bureau or office"; namely when: (1) upon written permission of the
depositor; (2) in cases of impeachment; (3) the examination of bank accounts is upon order of a
competent court in cases of bribery or dereliction of duty of public officials; and (4) the money
deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No. 3019, the Anti-
Graft and Corrupt Practices Act, has been recognized by this Court as constituting an additional
exception to the rule of absolute confidentiality,92 and there have been other similar recognitions as
well.93

The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may
inquire into a bank account upon order of any competent court in cases of violation of the AMLA, it
having been established that there is probable cause that the deposits or investments are related to
unlawful activities as defined in Section 3(i) of the law, or a money laundering offense under Section
4 thereof. Further, in instances where there is probable cause that the deposits or investments are
related to kidnapping for ransom, 94 certain violations of the Comprehensive Dangerous Drugs Act of
2002,95 hijacking and other violations under R.A. No. 6235, destructive arson and murder, then there
is no need for the AMLC to obtain a court order before it could inquire into such accounts.

It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11
of the AMLA is a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is
when "the money deposited or invested is the subject matter of the litigation." The orientation of the
bank inquiry order is simply to serve as a provisional relief or remedy. As earlier stated, the
application for such does not entail a full-blown trial.

Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it
does not mean that the later law has dispensed with the general principle established in the older
law that "[a]ll deposits of whatever nature with banks or banking institutions in the Philippines x x x
are hereby considered as of an absolutely confidential nature." 96 Indeed, by force of statute, all bank
deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions
referred to above. There is disfavor towards construing these exceptions in such a manner that
would authorize unlimited discretion on the part of the government or of any party seeking to enforce
those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely
confidential nature of bank deposits against affirming the authority to inquire into such accounts,
then such doubts must be resolved in favor of the former. Such a stance would persist unless
Congress passes a law reversing the general state policy of preserving the absolutely confidential
nature of Philippine bank accounts.
The presence of this statutory right to privacy addresses at least one of the arguments raised by
petitioner, that Lilia Cheng had no personality to assail the inquiry orders before the Court of Appeals
because she was not the subject of said orders. AMLC Resolution No. 75, which served as the basis
in the successful application for the Makati inquiry order, expressly adverts to Citibank Account No.
88576248 "owned by Cheng Yong and/or Lilia G. Cheng with Citibank N.A.," 97 whereas Lilia Cheng’s
petition before the Court of Appeals is accompanied by a certification from Metrobank that Account
Nos. 300852436-0 and 700149801-7, both of which are among the subjects of the Manila inquiry
order, are accounts in the name of "Yong Cheng or Lilia Cheng." 98 Petitioner does not specifically
deny that Lilia Cheng holds rights of ownership over the three said accounts, laying focus instead on
the fact that she was not named as a subject of either the Makati or Manila RTC inquiry orders. We
are reasonably convinced that Lilia Cheng has sufficiently demonstrated her joint ownership of the
three accounts, and such conclusion leads us to acknowledge that she has the standing to assail via
certiorari the inquiry orders authorizing the examination of her bank accounts as the orders interfere
with her statutory right to maintain the secrecy of said accounts.

While petitioner would premise that the inquiry into Lilia Cheng’s accounts finds root in Section 11 of
the AMLA, it cannot be denied that the authority to inquire under Section 11 is only exceptional in
character, contrary as it is to the general rule preserving the secrecy of bank deposits. Even though
she may not have been the subject of the inquiry orders, her bank accounts nevertheless were, and
she thus has the standing to vindicate the right to secrecy that attaches to said accounts and their
owners. This statutory right to privacy will not prevent the courts from authorizing the inquiry anyway
upon the fulfillment of the requirements set forth under Section 11 of the AMLA or Section 2 of the
Bank Secrecy Act; at the same time, the owner of the accounts have the right to challenge whether
the requirements were indeed complied with.

VII.

There is a final point of concern which needs to be addressed. Lilia Cheng argues that the AMLA,
being a substantive penal statute, has no retroactive effect and the bank inquiry order could not
apply to deposits or investments opened prior to the effectivity of Rep. Act No. 9164, or on 17
October 2001. Thus, she concludes, her subject bank accounts, opened between 1989 to 1990,
could not be the subject of the bank inquiry order lest there be a violation of the constitutional
prohibition against ex post facto laws.

No ex post facto law may be enacted,99 and no law may be construed in such fashion as to permit a
criminal prosecution offensive to the ex post facto clause. As applied to the AMLA, it is plain that no
person may be prosecuted under the penal provisions of the AMLA for acts committed prior to the
enactment of the law on 17 October 2001. As much was understood by the lawmakers since they
deliberated upon the AMLA, and indeed there is no serious dispute on that point.

Does the proscription against ex post facto laws apply to the interpretation of Section 11, a provision
which does not provide for a penal sanction but which merely authorizes the inspection of suspect
accounts and deposits? The answer is in the affirmative. In this jurisdiction, we have defined an ex
post facto law as one which either:

(1) makes criminal an act done before the passage of the law and which was innocent when
done, and punishes such an act;

(2) aggravates a crime, or makes it greater than it was, when committed;

(3) changes the punishment and inflicts a greater punishment than the law annexed to the
crime when committed;
 (4) alters the legal rules of evidence, and authorizes conviction upon less or different
testimony than the law required at the time of the commission of the offense;

(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and

(6) deprives a person accused of a crime of some lawful protection to which he has

become entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty. (Emphasis supplied)100

Prior to the enactment of the AMLA, the fact that bank accounts or deposits were involved in
activities later on enumerated in Section 3 of the law did not, by itself, remove such accounts from
the shelter of absolute confidentiality. Prior to the AMLA, in order that bank accounts could be
examined, there was need to secure either the written permission of the depositor or a court order
authorizing such examination, assuming that they were involved in cases of bribery or dereliction of
duty of public officials, or in a case where the money deposited or invested was itself the subject
matter of the litigation. The passage of the AMLA stripped another layer off the rule on absolute
confidentiality that provided a measure of lawful protection to the account holder. For that reason,
the application of the bank inquiry order as a means of inquiring into records of transactions entered
into prior to the passage of the AMLA would be constitutionally infirm, offensive as it is to the ex post
facto clause.

Still, we must note that the position submitted by Lilia Cheng is much broader than what we are
willing to affirm. She argues that the proscription against ex post facto laws goes as far as to prohibit
any inquiry into deposits or investments included in bank accounts opened prior to the effectivity of
the AMLA even if the suspect transactions were entered into when the law had already taken effect.
The Court recognizes that if this argument were to be affirmed, it would create a horrible loophole in
the AMLA that would in turn supply the means to fearlessly engage in money laundering in the
Philippines; all that the criminal has to do is to make sure that the money laundering activity is
facilitated through a bank account opened prior to 2001. Lilia Cheng admits that "actual money
launderers could utilize the ex post facto provision of the Constitution as a shield" but that the
remedy lay with Congress to amend the law. We can hardly presume that Congress intended to
enact a self-defeating law in the first place, and the courts are inhibited from such a construction by
the cardinal rule that "a law should be interpreted with a view to upholding rather than destroying
it."101

Besides, nowhere in the legislative record cited by Lilia Cheng does it appear that there was an
unequivocal intent to exempt from the bank inquiry order all bank accounts opened prior to the
passage of the AMLA. There is a cited exchange between Representatives Ronaldo Zamora and
Jaime Lopez where the latter confirmed to the former that "deposits are supposed to be exempted
from scrutiny or monitoring if they are already in place as of the time the law is enacted." 102 That
statement does indicate that transactions already in place when the AMLA was passed are indeed
exempt from scrutiny through a bank inquiry order, but it cannot yield any interpretation that records
of transactions undertaken after the enactment of the AMLA are similarly exempt. Due to the
absence of cited authority from the legislative record that unqualifiedly supports respondent Lilia
Cheng’s thesis, there is no cause for us to sustain her interpretation of the AMLA, fatal as it is to
the anima of that law.

IX.

We are well aware that Lilia Cheng’s petition presently pending before the Court of Appeals likewise
assails the validity of the subject bank inquiry orders and precisely seeks the annulment of said
orders. Our current declarations may indeed have the effect of preempting that0 petition. Still, in
order for this Court to rule on the petition at bar which insists on the enforceability of the said bank
inquiry orders, it is necessary for us to consider and rule on the same question which after all is a
pure question of law.

WHEREFORE, the PETITION is DISMISSED. No pronouncement as to costs.

SO ORDERED.

3. Pro Reo Principle

4. Ex Post Facto Law

5. Interpretation of penal laws

Ursua v. CA, G.R. No. 112170, April 10, 1996

[G.R. No. 112170. April 10, 1996.]

CESARIO URSUA, Petitioner, v. COURT OF APPEALS AND PEOPLE OF THE

PHILIPPINES, Respondents.

SYLLABUS

1. STATUTORY CONSTRUCTION; STATUTES; CONSTRUED WITH REFERENCE TO THE

INTENDED SCOPE AND PURPOSE. — Time and again we have decreed that statutes are
to be construed in the light of the purposes to be achieved and the evils sought to be
remedied. Thus in construing a statute the reason for its enactment should be kept in
mind and the statute should be construed with reference to the intended scope and
purpose. The court may consider the spirit and reason of the statute, where a literal
meaning would lead to absurdity, contradiction, injustice, or would defeat the clear
purpose of the lawmakers.

2. ID.; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF
ALIASES) PURPOSE IS TO REGULATE THE USE OF ALIASES IN BUSINESS
TRANSACTION. — The objective and purpose of C.A. No. 142 have their origin and
basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names
other than True Names, Prescribing the Duties of the Director of the Bureau of
Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof,
and other purposes, which was approved on 14 November 1931 and amended by Act
No. 4147, approved on 28 November 1934. The enactment of C.A. No. 142 as amended
was made primarily to curb the common practice among the Chinese of adopting scores
of different names and aliases which created tremendous confusion in the field of trade.
Such a practice almost bordered on the crime of using fictitious names which for
obvious reasons could not be successfully maintained against the Chinese who, rightly
or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus
penalized the act of using an alias name, unless such alias was duly authorized by
proper judicial proceedings and reocrded in the civil register.
3. CRIMINAL LAW; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE
THE USE OF ALIASES); ALIAS, DEFINED. — An alias is a names or names used by a
person or intended to be used by him publicly and habitually usually in business
transactions in addition to his real name by which he is registered at birth or baptized
the first time or substitute name authorized by a competent authority. A man’s name is
simply the sound or sounds by which he is commonly designated by his fellows and by
which they distinguish him but sometimes a man is known by several different names
and these are known as aliases.

4. ID.; ID.; USE OF FICTITIOUS NAME IN A SINGLE TRANSACTION WITHOUT

INTENDING TO BE KNOWN BY THIS NAME IN ADDITION TO HIS REAL NAME, NOT A
VIOLATION THEREOF. — The use of a fictitious name or a different name belonging to
another person in a single instance without any sign or indication that the user intends
to be known by this name in addition to his real name from that day forth does not fall
within the prohibition contained in C.A. No. 142 as amended.

5. ID.; ID.; ID.; CASE AT BAR. — This is so in the case at bench. It is not disputed that
petitioner introduced himself in the Office of the Ombudsman as "Oscar Perez," which
was the name of the messenger of his lawyer who should have brought the letter to
that office in the first place instead of petitioner. He did so while merely serving the
request of his lawyer to obtain a copy of the complaint in which petitioner was
a Respondent. There is no question then that "Oscar Perez" is not an alias name of
petitioner. There is no evidence showing that he had used or was intending to use that
name as his second name in addition to his real name. The use of the name "Oscar
Perez" was made by petitioner in an isolated transaction where he was not even legally
required to expose his real identity. For, even if he had identified himself properly at
the Office of the Ombudsman, petitioner would still be able to get a copy of the
complaint as a matter of right, and the Office of the Ombudsman could not refuse him
because the complaint was part of public records hence open to inspection and
examination by anyone under the proper circumstances. While the act of petitioner may
be covered by other provisions of law, such does not constitute an offense within the
concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and
fraud in business transactions which the anti-alias law and its related statutes seek to
prevent are not present here as the circumstances are peculiar and distinct from those
contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a
valid presumption that undesirable consequences were never intended by a legislative
measure and that a construction of which the statute is fairly susceptible is favored,
which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious
consequences. Indeed, our mind cannot rest easy on the proposition that petitioner
should be convicted on a law that does not clearly penalize the act done by him.
Wherefore, the questioned decision of the Court of Appeals affirming that of the
Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO
URSUA is ACQUITTED of the crime charged.

6. STATUTORY CONSTRUCTION; A PENAL STATUTE LIKE COMMONWEALTH ACT 142,

AS AMENDED, CONSTRUED STRICTLY AGAINST THE STATE AND IN FAVOR OF THE
ACCUSED. — As C.A. No. 142 is a penal statute, it should be construed strictly against
the State and in favor of the accused. The reason for this principle is the tenderness of
the law for the rights of individuals and the object is to establish a certain rule by
conformity to which mankind would be safe, and the discretion of the court limited.
 DECISION

BELLOSILLO, J.:

This is a petition of a review of the decision of the Court of Appeals which affirmed the
conviction of petitioner by the Regional Trial Court of Davao City for violation of Sec. 1
of C. A No. 142, as amended by R.A. No 6085, otherwise known as "An Act to Regulate
the Use of Alliases." 1

Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer
assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato
requested the Office of the Ombudsman in Manila to conduct an Investigation on a
complainant for bribery, dishonesty, abuse of authority and giving of unwarranted
benefits by petitioner and other officials of the Department of Environment and Natural
Resources. The complaint was initiated by the Sangguniang Panlalawigan of Cotabato
through a resolution advising the Governor to report the involvement of petitioner and
others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the
area. 2

On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the
Ombudsman in Davao City requesting that he be furnished copy of the complaint
against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request
to the Office of the Ombudsman because his law firm’s messenger, Oscar Perez, had to
attend to some personal matters. Before proceeding to the Office of the Ombudsman
petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for
the document since he was one of the respondents before the Ombudsman. However,
Perez advised him not to worry as he could just sign his (Perez) name if ever he would
be required to acknowledge receipt of the complaint. 3

When petitioner arrived at the Office of the Ombudsman in Davao City he was
instructed by the security officer to register in the visitors’ logbook. Instead of writing
down his name petitioner wrote the name "Oscar Perez" after which he was told to
proceed to the Administrative Division for the copy of the complaint he needed. He
handed the letter of Atty. Palmones to the Chief of the Administrative Division, Ms.
Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he
acknowledged by writing the name "Oscar Perez." 4

Before petitioner could leave the premises he was greeted by an acquaintance, Josefa
Amparo, who also worked in the same office. They conversed for a while then he left.
When Loida learned that the person who introduced himself as "Oscar Perez" was
actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station,
Loida reported the matter to the Deputy Ombudsman who recommended that petitioner
be accordingly charged.

On 18 December 1990, after the prosecution had completed the presentation of its
evidence, petitioner without leave of court filed a demurrer to evidence alleging that the
failure of the prosecution to prove that his supposed alias was different from his
registered name in the local civil registry was fatal to its cause. Petitioner argued that
no document from the local civil registry was presented to show the registered name of
accused which according to him was a condition sine qua non for the validity of his
conviction.chanrobles lawlibrary : rednad

The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A.
No. 142 as amended by R. A. No. 6085. He was sentenced to suffer a prison term of
one (1) year and one (1) day of prison correccional minimum as minimum, to four (4)
years of prison correccional medium as maximum, with all the accessory penalties
provided for by law, and to pay a fine of P4, 000.00 plus costs.

Petitioner appealed to the Court of Appeals.

On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified
the penalty by imposing an indeterminate term of one (1) year as minimum to three
(3) years as maximum and a fine of P5,000.00.

Petitioner now comes to us for review of his conviction as he reasserts his innocence.
He contends that he has not violated C.A. No. 142 as amended by R. A. No. 6085 as he
never used any alias name; neither is "Oscar Perez" his alias. An alias, according to
him, is a term which connotes the habitual use of another name by which a person is
also known. He claims that he has never been known as "Oscar Perez" and that he only
used such name on one occasion and it was with the express consent of Oscar Perez
himself. It is his position that an essential requirement for a conviction under C.A. No.
142 as amended by R. A. No. 6085 has not been complied with when the prosecution
failed to prove that his supposed alias was different from his registered name in the
Registry of Births. He further argues that the Court of Appeals erred in not considering
the defense theory that he was charged under the wrong law. 5

Time and again we have decreed that statutes are to be construed in the light of the
purposes to be achieved and the evils sought to be remedied. Thus in construing a
statute the reason for its enactment should be kept in mind and the statute should be
construed with reference to the intended scope and purpose. 6 The court may consider
the spirit and reason of the statute, where a literal meaning would lead to absurdity,
contradiction, injustice, or would defeat the clear purpose of the lawmakers. 7

For a clear understanding of the purpose of C.A. No. 142 as amended, which was
allegedly violated by petitioner, and the surrounding circumstances under which the law
was enacted, the pertinent provisions thereof, its amendments and related statutes are
herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its
amendment by R. A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It
provides as follows: chanrob1es virtual 1aw library

Section 1. Except as a pseudonym for literary purposes, no person shall use any name
different from the one with which he was christened or by which he has been known
since his childhood, or such substitute name as may have been authorized by a
competent court. The name shall comprise the patronymic name and one or two
surnames.
Section 2. Any person desiring to use an alias or aliases shall apply for authority
therefor in proceedings like those legally provided to obtain judicial authority for a
change of name. Separate proceedings shall be had for each alias, and each new
petition shall set forth the original name and the alias or aliases for its use of which
judicial authority has been obtained, specifying the proceedings and the date on which
such authority was granted. Judicial authorities for the use of aliases shall be recorded
in the proper civil register. . .

The above law was subsequently amended by R. A. No. 6085, approved on 4 August
1969. As amended, C.A. No. 142 nor reads: chanrob1es virtual 1aw library

Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other
entertainment purposes and in athletic events where the use of pseudonym is a
normally accepted practice, on person shall use any name different from the one with
which he was registered at birth in the office of the local civil registry or with which he
was baptized for the first time, or in case of an alien, with which he was registered in
the bureau of immigration upon entry; or such substitute name as may have been
authorized by a competent court: Provided, That persons whose births have not been
registered in any local civil registry and who have not been baptized, have one year
from the approval of this act within which to register their names in the civil registry of
their residence. The name shall comprise the patronymic name or two surnames.

Sec. 2. Any person desiring to use an alias shall apply for authority therefor in
proceeding like those legally provided to obtain judicial authority for a change of name
and no person shall be allowed to secure such judicial authority for more than one alias.
The petition for an alias shall set forth the person’s baptismal and family name and the
name recorded in the civil registry, if different, his immigrant’s name if an alien, and his
pseudonym, if he has such names other than his original or real name, specifying the
reason or reasons for the desired alias. The judicial authority for the use of alias, the
Christian name and the alien immigrant’s name shall be recorded in the proper local
civil registry, and no person shall use any name or names other than his original or real
name unless the same is or are duly recorded in the proper local civil registry.

The objective and purpose of C A. No. 142 have their origin and basis in act No. 3883,
An Act to Regulate the Use in Business Transactions of Names other than True Names,
Prescribing the Duties of the Director of the Bureau of Commerce And Industry in its
enforcement, Providing Penalties for Violations therefor, and for other purposes, which
was approved on 14 November 1931 and amended by Act No. 4147, approved on 28
November 1934. 8 The pertinent provisions of Act No. 3883 as amended follow —

Section 1. It shall be unlawful for any person to use or sign, on any written or printed
receipt including receipt for tax or business or any written or printed contract not
verified by a notary public or on any written or printed evidence of any agreement or
business transactions, any name used in connection with his business other than his
true name, or keep conspicuously exhibited in pain view in or at the place where his
business is conducted, if he is engaged in a business, any sign announcing a firm name
or business name or style without first registering such other name, or such firm name,
or business name or style in the Bureau of Commerce together with his true name and
that of any other person having a joint or common interest with him in such contract
agreement, business transaction, or business. . .
For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to
curb the common practice among the Chinese of adopting scores of different names
and aliases which created tremendous confusion in the field of trade. Such a practice
almost bordered on the crime of using fictitious names which for obvious reasons could
not be successfully maintained against the Chinese who, rightly or wrongly, claimed
they possessed a thousand and one names. C.A. No. 142 thus penalized the act of
using an alias name, unless such alias was duly authorized by proper judicial
proceeding and recorded in the civil register. 9

In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain the meaning,
concept and ill effects of the use of an alias within the purview of C.A. No. 142 when we
ruled —

There can hardly be any doubt that petitioner’s use of alias ‘Kheng Chiau Young’ in
addition to his real name Yu Cheng Chiau’ would add to more confusion. That he is
known in his business, as manager of the Robert Reid, Inc., by the former name, is not
sufficient reason to allow him its use. After all, petitioner admitted that he is known to
his associates by both names. In fact, the Anselmo Trinidad, Inc., of which he is a
customer, known him by his real name. Neither would the fact that he had encountered
certain difficulties in his transactions with government offices which required him to
explain why he bore two names, justify the grant of his petition, for petitioner could
easily avoid said difficulties by simply using and sticking only to his real name ‘Yu
Cheng Chiau.’

The fact that petitioner intends to reside permanently in the Philippines, as shown by
his having filed a petition for naturalization in Branch V of the above-mentioned court,
argues the more against the grant of his petition, because if naturalized as a Filipino
citizen, there would then be no necessity for his further using said alias, as it would be
contrary to the usual Filipino way and practice of using only one name in ordinary as
well as business transactions. And, as the lower court correctly observed, if he believes
(after he is naturalized) that it would be better for him to write his name following the
Occidental method, ‘he can easily file a petition for change of name, so that in lieu of
the name ‘Yu Kheng Chian,’ he can, abandoning the same, ask for authority to adopt
the name Kheng Chiau Young.’

All things considered, we are of the opinion and so hold, that petitioner has not shown
satisfactory proper and reasonable grounds under the aforequoted provisions of
Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his petition
for the use of an alias name.

Clearly therefore an alias is a name or names used by a person or intended to be used

by him publicly and habitually usually in business transactions in addition to his real
name by which he is registered at birth or baptized the first time or substitute name
authorized by a competent authority. A man’s name is simply the sound or sounds by
which he is commonly designated by his fellows and by which they distinguish him but
sometimes a man is known by several different names and these are known as aliases.
11 Hence, the use of a fictitious name or a different name belonging to another person
in a single instance without any sign or indication that the user intends to be known by
this name in addition to his real name from that day forth does not fall within the
prohibition contained in C.A. No. 142 as amended. This is so in the case at bench.

It is not disputed that petitioner introduced himself in the Office of the Ombudsman as
"Oscar Perez," which was the name of the messenger of his lawyer who should have
brought the letter to that office in the first place instead of petitioner. He did so while
merely serving the request of his lawyer to obtain the copy of the complaint in which
petitioner was a Respondent. There is no question then that "Oscar Perez" is not an
alias name of petitioner. There is no evidence showing that he had used or was
intending to use that name as his second name in addition to his real name. The use of
the name "Oscar Perez" was made by petitioner in an isolated transaction where he was
not even legally required to expose his real identity. For, even if he had identified
himself properly at the Office of the Ombudsman, petitioner would still be able to get a
copy of the complaint as a matter of right, and the Office of the Ombudsman could not
refuse him because the complaint was part of public records hence open to inspection
and examination by anyone under the proper circumstances.

While the act of petitioner may be covered by other provisions of law, such does not
constitute an offense within the concept of C.A. No. 142 as amended under which he is
prosecuted. The confusion and fraud in business transactions which the anti-alias law
and is related statutes seek to prevent are not present here as the circumstances are
peculiar and distinct from those contemplated by the legislature in enacting C.A. No.
142 as amended. There exists a valid presumption that undesirable consequences were
never intended by a legislative measure and that a construction of which the statute is
fairly susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil and injurious consequences. 12 Moreover, as C.A. No. 142
is a penal statute, it should be construed strictly against the State and in favor of the
accused. 13 The reason for this principle is the tenderness of the law for the rights of
individuals and the object is to establish a certain rule by conformity to which mankind
would be safe, and the discretion of the court limited. 14 Indeed, our mind cannot rest
easy on the proposition that petitioner should be convicted on a law that does not
clearly penalize the act done by him.

WHEREFORE, the questioned decision of the Court of Appeals affirming that of the
Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO
URSUA is ACQUITTED of the crime charged.

SO ORDERED.
Cosep v. People, G.R. No. 110353, May 21, 1998

G.R. No. 110353. May 21, 1998

TOMAS H. COSEP, Petitioner, v. PEOPLE OF THE PHILIPPINES and

SANDIGANBAYAN, Respondents.

DECISION

ROMERO, J.:

Petitioner, Tomas Cosep, was the Municipal Planning and Development Coordination
Officer of Olutanga, Zamboanga del Sur. In 1987, the Municipality decided to construct
an artesian well for one of its localities. Hence, it secured the services of private
complainant Angelino E. Alegre to undertake the said project, under a pakyaw
arrangement for the contract price of P5,000.00 payable after completion of the
project. Petitioner, being the Planning Officer of the Municipality, monitored the
progress of the construction.

After the project was finished, petitioner secured the amount of P5,000.00 from the
Municipal Treasurer. However, only P4,500.00 was given to the private complainant,
the balance being allegedly withheld by petitioner as reimbursement for his expenses in
processing the papers in the Municipal Treasurers Office.

Aggrieved, private complainant filed a complaint before the Sandiganbayan, First

Division, docketed as Criminal Case No. 17503 against petitioner for violating Section
3(b) of R.A. No. 3019. The information reads:

That on or about August of 1987, or immediately prior and subsequent thereto, in

Olutanga, Zamboanga del Sur, and within the jurisdiction of this Honorable Court,
accused, a public officer, being the Municipal Planning and Development Officer of the
said municipality, with the duty to administer and award government projects and to
prepare the necessary documents required for money claims against the municipality of
OLUTANGA, Zamboanga del Sur, did then and there, wilfully and unlawfully demand
and receive five hundred pesos (500.00) from a certain Angelino Alegre as a
consideration for awarding the construction of the artesian well, Solar, Olutanga and for
facilitation the necessary documents for the money claims of the latter from the
Municipality of Olutanga for constructing the above mentioned Artesian Well.

Contrary to law.

On April 10, 1992, petitioner entered a plea of not guilty to the charge. Thereafter, trial
on the merits ensued.

In an effort to escape liability, petitioner advances the theory that private complainant
was never a contractor, but was merely a laborer entitled to a daily rate of P20.00.
Moreover, the amount of P4,500.00 he gave to the private complainant represents the
total salary of the other thirteen (13) workers who constructed the artesian well.
Hence, he could not have withheld the said P500.00 since there was none in the first
place. To bolster his contention, petitioner presented as evidence the Time Book and
Payroll Sheet,1 and a Memorandum dated May 10, 1987, issued by the Mayor of
Olutanga indicating that private complainant was hired as the head laborer during the
construction of the artesian well.2cräläwvirtualibräry

Apparently, not impressed with petitioners defense, the Sandiganbayan, in a decision

dated April 15, 19933 ruled against him, viz.:

WHEREFORE, the Court finds the accused, Tomas Cosep y Hibayan, guilty beyond
reasonable doubt of the crime defined in Section 3, paragraph (b), Republic Act 3019,
as amended, and applying the Indeterminate Sentence Law, imposes upon him the
penalties of imprisonment ranging from six (6) years and one (1) month, as minimum,
to nine (9) years and twenty (20) days, as maximum, and of perpetual disqualification
from public office. The court orders him to pay Angelino E. Alegre, the private
complainant, P500.00 representing the amount which the accused demanded and
received from him.

SO ORDERED.

Petitioner has filed the instant petition contending that: (a) he was not accorded an
impartial trial by the Sandiganbayan and (b) his guilt was not proven beyond
reasonable doubt to justify his conviction.

Regarding the first assignment of error, petitioner bewails the fact that during his
testimony the Justices of the Sandiganbayan actively participated in the proceeding by
propounding no less than sixty-eight questions4 which, in his opinion, were indications
of partiality or prejudgment of guilt. Specifically, he cites the questions on pages 34 to
42 of the Transcript of Stenographic Notes5 as indications of the Justices hostility
against him.

We do not agree.

Admittedly, Petitioner, like any other accused individual, is entitled to a fair trial before
an impartial and neutral judge as an indispensable imperative of due process.6 Judges
must not only be impartial, but must also appear to be impartial as an added assurance
to the parties that the decision will be just.7 However, this is not to say that judges
must remain passive or silent during the proceedings. Since they are in a better
position to observe the demeanor of the witness as he testifies on the witness stand, it
is only natural for judges to ask questions to elicit facts with a view to attaining justice
for the parties. Questions designed to clarify points8 and to elicit additional relevant
evidence are not improper.9 Also, the judge, being the arbiter, may properly intervene
in the presentation of evidence to expedite and prevent unnecessary waste of time.10 cräläwvirtualibräry

With the above doctrines serving as guidelines, we have scrutinized carefully the
questions propounded by the Justices, and none was indicative of their partiality for the
prosecution in proving its case against the petitioner. More precisely, on pages 34 to 35
of the Transcript of Stenographic Notes, the gist of the questions were on the
monitoring procedure being undertaken by the petitioner in supervising the project.
While on pages 36 to 39, the questions dealt with the identities and qualifications of the
workers who participated in the construction of the project. Those on pages 41 to 42,
referred to queries which sought to clarify the facts and circumstances of another case
filed against the petitioner by a certain Mr. Macapala. All told, these questions cannot
be said to have crossed the limits of propriety. In propounding these questions, the
Justices merely attempted to ferret the the truth as to the facts to which the witness
was testifying.

In any case, if petitioner were under the impression that the Justices were unduly
interfering in his testimony, he was free to manifest his objection.11 However, the
records show that he answered the questions freely and without any objection from his
counsel on the alleged active participation of the Justices when he gave his testimony.

While we do not see any merit in petitioners first assigned error, we, however, agree
with him that his guilt was not adequately proven beyond reasonable doubt by the
prosecution.
It is well settled that whether the accused is guilty or not of the offense charged is a
question which involves a determination of facts as presented by the prosecution and
the defense. The duty to ascertain which is more credible is lodged with the trial court
which had the opportunity to observe the witness directly and to test his credibility by
his demeanor on the stand. Thus, the Sandiganbayans factual findings are generally
accorded respect, even finality, unless: (1) the conclusion is a finding grounded entirely
on speculations, surmises and conjectures; (2) the inferences made are manifestly
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on
misapprehension of facts or premised on the absence of evidence on the record.12 A re-
examination of the entire proceedings of the instant case compels us to take exception
to the aforementioned general rule.

It must be borne in mind that criminal cases elevated by convicted public officials from
the Sandiganbayan deserve the same thorough review by this Court as criminal cases
involving ordinary citizens, simply because the constitutional presumption of innocence
must be overcome by proof beyond reasonable doubt.13 cräläwvirtualibräry

Where the state fails to meet the quantum of proof required to overcome the
constitutional presumption, the accused is entitled to acquittal, regardless of the
weakness or even the absence of his defense14 for any conviction must rest on the
strength of the prosecutions case and not on the weakness of the defense.

Going over the records and the TSN of the private complainant, we entertain serious
misgivings about his testimony, especially after he had erred as regards important facts
and information, not to mention the questionable lapses of memory. Indeed, for
evidence to be believed, it must not only proceed from the mouth of a credible witness
but must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances.15 cräläwvirtualibräry

It is worthy to note that private complainant narrated that he was the one who paid the
workers their wages during the construction of the well.16 However, it baffles us that in
paying these workers, he never bothered to have them sign any payroll or voucher
receipt,17 a practice which is routine for those engaged in hiring workers for
construction projects. At the very least, the payroll or voucher receipts are necessary,
not only for accounting purposes, but for protection against spurious or unsubstantiated
claims that may arise. Simply put, private complainants behavior was in total disregard
of logic and usual management practice expected from a prudent businessman.

What is incredible is the failure of private complainant to remember even a single name
of his workers.18 Since six of the thirteen (13) laborers bore his own surname Alegre, it
strains credulity that he could not remember any of them. Obviously, private
complainants claim that he is a contractor is a falsehood.

If he were indeed one, he should have presented documentary evidence to support his
claim. In fact, the record is bereft of any project study, purchase order, delivery
receipt, proofs of procurement of materials and other evidence which would sustain the
finding that he was indeed a contractor engaged in his normal work. His testimony
alone in this regard is grossly inadequate, thus rendering the prosecutions cause
inherently weak.
Likewise, in the Time and Book Payroll Sheet19 issued by the Municipality, a document
duly signed by the private complainant stated that he was the head laborer during the
construction. In the early case of U.S. v. Carrington,20 we have asserted the public
document character of the municipal payroll; as such, it is prima facie evidence of the
facts stated therein.21 The same can only be rebutted by other competent
evidence22 and cannot be overcome by the testimony of a single witness.23 As earlier
stated, private complainant never even offered any evidence to contravene the
presumption that the recitals in the municipal payroll giving his status as a head laborer
were true. Besides, the Time and Payroll Sheet, having been signed by the Municipal
Treasurer, it is clothed with the presumption of regularity, particularly since it was not
objected to by the private complainant.

Aside from the foregoing considerations, private complainant signed the payroll sheet
indicating his status as a head laborer. Therefore, this representation is conclusive upon
him and he cannot deny or disprove the same without violating the principle of
estoppel.

All these considerations taken together, it is clear that the prosecution failed to
establish private complainants assertion that he is a contractor. Hence, we agree with
the defense that private complainant, as laborer, together with thirteen (13) other
workers was entitled only to a total of P4,475.00 and not P5,000.00 representing their
salaries. This being the case, the P4,500.00 that he received from petitioner was even
in excess of the amount which he and the other workers, was originally entitled to.
Consequently, to affirm petitioners conviction would result in a serious injustice. It is
axiomatic that in every criminal prosecution, if the state fails to discharge its burden of
proving the guilt of the accused beyond reasonable doubt, it fails utterly.24 Accordingly,
when the guilt of the accused has not been proven with moral certainty, it is our policy
of long standing that the presumption of innocence of the accused must be favored and
his exoneration be granted as a matter of right.25 cräläwvirtualibräry

WHEREFORE, in view of the foregoing, the assailed decision of the Sandiganbayan

insofar as it convicted and sentenced petitioner Tomas Cosep of violating Section 3(b)
of R.A. No. 3019 is hereby SET ASIDE. Petitioner Cosep is ACQUITTED on grounds of
reasonable doubt. Costs against the appellant.

SO ORDERED.

Mallillin v. People, G.R. No. 172953, April 30, 2008

G.R. No. 172953             April 30, 2008

JUNIE MALILLIN Y. LOPEZ, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.:
The presumption of regularity in the performance of official functions cannot by its lonesome
overcome the constitutional presumption of innocence. Evidence of guilt beyond reasonable doubt
and nothing else can eclipse the hypothesis of guiltlessness. And this burden is met not by
bestowing distrust on the innocence of the accused but by obliterating all doubts as to his culpability.

In this Petition for Review1 under Rule 45 of the Rules of Court, Junie Malillin y Lopez (petitioner)
assails the Decision2 of the Court of Appeals dated 27 January 2006 as well as its Resolution 3 dated
30 May 2006 denying his motion for reconsideration. The challenged decision has affirmed the
Decision4 of the Regional Trial Court (RTC) of Sorsogon City, Branch 52 5 which found petitioner
guilty beyond reasonable doubt of illegal possession of methamphetamine hydrochloride, locally
known as shabu, a prohibited drug.

The antecedent facts follow.

On the strength of a warrant6 of search and seizure issued by the RTC of Sorsogon City, Branch 52,
a team of five police officers raided the residence of petitioner in Barangay Tugos, Sorsogon City on
4 February 2003. The team was headed by P/Insp. Catalino Bolanos (Bolanos), with PO3 Roberto
Esternon (Esternon), SPO1 Pedro Docot, SPO1 Danilo Lasala and SPO2 Romeo Gallinera
(Gallinera) as members. The search—conducted in the presence of barangay kagawad Delfin Licup
as well as petitioner himself, his wife Sheila and his mother, Norma—allegedly yielded two (2) plastic
sachets of shabu and five (5) empty plastic sachets containing residual morsels of the said
substance.

Accordingly, petitioner was charged with violation of Section 11, 7 Article II of Republic Act No. 9165,
otherwise known as The Comprehensive Dangerous Drugs Act of 2002, in a criminal information
whose inculpatory portion reads:

That on or about the 4th day of February 2003, at about 8:45 in the morning in Barangay
Tugos, Sorsogon City, Philippines, the said accused did then and there willfully, unlawfully
and feloniously have in his possession, custody and control two (2) plastic sachets of
methamphetamine hydrochloride [or] "shabu" with an aggregate weight of 0.0743 gram, and
four empty sachets containing "shabu" residue, without having been previously authorized by
law to possess the same.

CONTRARY TO LAW.8

Petitioner entered a negative plea.9 At the ensuing trial, the prosecution presented Bolanos, Arroyo
and Esternon as witnesses.

Taking the witness stand, Bolanos, the leader of the raiding team, testified on the circumstances
surrounding the search as follows: that he and his men were allowed entry into the house by
petitioner after the latter was shown the search warrant; that upon entering the premises, he ordered
Esternon and barangay kagawad Licup, whose assistance had previously been requested in
executing the warrant, to conduct the search; that the rest of the police team positioned themselves
outside the house to make sure that nobody flees; that he was observing the conduct of the search
from about a meter away; that the search conducted inside the bedroom of petitioner yielded five
empty plastic sachets with suspected shabu residue contained in a denim bag and kept in one of the
cabinets, and two plastic sachets containing shabu which fell off from one of the pillows searched by
Esternon—a discovery that was made in the presence of petitioner. 10 On cross examination, Bolanos
admitted that during the search, he was explaining its progress to petitioner's mother, Norma, but
that at the same time his eyes were fixed on the search being conducted by Esternon. 11
Esternon testified that the denim bag containing the empty plastic sachets was found "behind" the
door of the bedroom and not inside the cabinet; that he then found the two filled sachets under a
pillow on the bed and forthwith called on Gallinera to have the items recorded and marked. 12 On
cross, he admitted that it was he alone who conducted the search because Bolanos was standing
behind him in the living room portion of the house and that petitioner handed to him the things to be
searched, which included the pillow in which the two sachets of shabu were kept;13 that he brought
the seized items to the Balogo Police Station for a "true inventory," then to the trial court 14 and
thereafter to the laboratory.15

Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered the examination on the seized
items, was presented as an expert witness to identify the items submitted to the laboratory. She
revealed that the two filled sachets were positive of shabu and that of the five empty sachets, four
were positive of containing residue of the same substance. 16 She further admitted that all seven
sachets were delivered to the laboratory by Esternon in the afternoon of the same day that the
warrant was executed except that it was not she but rather a certain Mrs. Ofelia Garcia who received
the items from Esternon at the laboratory.17

The evidence for the defense focused on the irregularity of the search and seizure conducted by the
police operatives. Petitioner testified that Esternon began the search of the bedroom with Licup and
petitioner himself inside. However, it was momentarily interrupted when one of the police officers
declared to Bolanos that petitioner's wife, Sheila, was tucking something inside her underwear.
Forthwith, a lady officer arrived to conduct the search of Sheila's body inside the same bedroom. At
that point, everyone except Esternon was asked to step out of the room. So, it was in his presence
that Sheila was searched by the lady officer. Petitioner was then asked by a police officer to buy
cigarettes at a nearby store and when he returned from the errand, he was told that nothing was
found on Sheila's body.18 Sheila was ordered to transfer to the other bedroom together with her
children.19

Petitioner asserted that on his return from the errand, he was summoned by Esternon to the
bedroom and once inside, the officer closed the door and asked him to lift the mattress on the bed.
And as he was doing as told, Esternon stopped him and ordered him to lift the portion of the
headboard. In that instant, Esternon showed him "sachet of shabu" which according to him came
from a pillow on the bed.20 Petitioner's account in its entirety was corroborated in its material respects
by Norma, barangay kagawad Licup and Sheila in their testimonies. Norma and Sheila positively
declared that petitioner was not in the house for the entire duration of the search because at one
point he was sent by Esternon to the store to buy cigarettes while Sheila was being searched by the
lady officer.21 Licup for his part testified on the circumstances surrounding the discovery of the plastic
sachets. He recounted that after the five empty sachets were found, he went out of the bedroom and
into the living room and after about three minutes, Esternon, who was left inside the bedroom,
exclaimed that he had just found two filled sachets.22

On 20 June 2004 the trial court rendered its Decision declaring petitioner guilty beyond reasonable
doubt of the offense charged. Petitioner was condemned to prison for twelve years (12) and one (1)
day to twenty (20) years and to pay a fine of P300,000.00.23 The trial court reasoned that the fact
that shabu was found in the house of petitioner was prima facie evidence of petitioner's animus
possidendi sufficient to convict him of the charge inasmuch as things which a person possesses or
over which he exercises acts of ownership are presumptively owned by him. It also noted petitioner's
failure to ascribe ill motives to the police officers to fabricate charges against him. 24

Aggrieved, petitioner filed a Notice of Appeal. 25 In his Appeal Brief26 filed with the Court of Appeals,
petitioner called the attention of the court to certain irregularities in the manner by which the search
of his house was conducted. For its part, the Office of the Solicitor General (OSG) advanced that on
the contrary, the prosecution evidence sufficed for petitioner's conviction and that the defense never
advanced any proof to show that the members of the raiding team was improperly motivated to hurl
false charges against him and hence the presumption that they had regularly performed their duties
should prevail.27

On 27 January 2006, the Court of Appeals rendered the assailed decision affirming the judgment of
the trial court but modifying the prison sentence to an indeterminate term of twelve (12) years as
minimum to seventeen (17) years as maximum.28 Petitioner moved for reconsideration but the same
was denied by the appellate court.29 Hence, the instant petition which raises substantially the same
issues.

In its Comment,30 the OSG bids to establish that the raiding team had regularly performed its duties
in the conduct of the search.31 It points to petitioner's incredulous claim that he was framed up by
Esternon on the ground that the discovery of the two filled sachets was made in his and Licup's
presence. It likewise notes that petitioner's bare denial cannot defeat the positive assertions of the
prosecution and that the same does not suffice to overcome the prima facie existence of animus
possidendi.

This argument, however, hardly holds up to what is revealed by the records.

Prefatorily, although the trial court's findings of fact are entitled to great weight and will not be
disturbed on appeal, this rule does not apply where facts of weight and substance have been
overlooked, misapprehended or misapplied in a case under appeal. 32 In the case at bar, several
circumstances obtain which, if properly appreciated, would warrant a conclusion different from that
arrived at by the trial court and the Court of Appeals.

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of
possession of a prohibited substance be established with moral certainty, together with the fact that
the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the
offense and the fact of its existence is vital to a judgment of conviction. 33 Essential therefore in these
cases is that the identity of the prohibited drug be established beyond doubt. 34 Be that as it may, the
mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral
certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the
substance illegally possessed in the first place is the same substance offered in court as exhibit
must also be established with the same unwavering exactitude as that requisite to make a finding of
guilt. The chain of custody requirement performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed. 35

As a method of authenticating evidence, 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.36 It would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses would then describe
the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same. 37

While testimony about a perfect chain is not always the standard because it is almost always
impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the
item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time
of testing or trial is critical, or when a witness has failed to observe its uniqueness. 38 The same
standard likewise obtains in case the evidence is susceptible to alteration, tampering,
contamination39 and even substitution and exchange.40 In other words, the exhibit's level of
susceptibility to fungibility, 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.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the
exhibit is small and is one that has physical characteristics fungible in nature and similar in form to
substances familiar to people in their daily lives.41 Graham vs. State42 positively acknowledged this
danger. In that case where a substance later analyzed as heroin—was handled by two police
officers prior to examination who however did not testify in court on the condition and whereabouts
of the exhibit at the time it was in their possession—was excluded from the prosecution evidence,
the court pointing out that the white powder seized could have been indeed heroin or it could have
been sugar or baking powder. It ruled that unless the state can show by records or testimony, the
continuous whereabouts of the exhibit at least between the time it came into the possession of police
officers until it was tested in the laboratory to determine its composition, testimony of the state as to
the laboratory's findings is inadmissible. 43

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. The Court cannot
reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the
chain of custody over the same there could have 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. Hence, in authenticating the same, a
standard more stringent than that applied to cases involving objects which are readily identifiable
must be applied, 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.

A mere fleeting glance at the records readily raises significant doubts as to the identity of the
sachets of shabu allegedly seized from petitioner. Of the people who came into direct contact with
the seized objects, only Esternon and Arroyo testified for the specific purpose of establishing the
identity of the evidence. Gallinera, to whom Esternon supposedly handed over the confiscated
sachets for recording and marking, as well as Garcia, the person to whom Esternon directly handed
over the seized items for chemical analysis at the crime laboratory, were not presented in court to
establish the circumstances under which they handled the subject items. Any reasonable mind might
then ask the question: Are the sachets of shabu allegedly seized from petitioner the very same
objects laboratory tested and offered in court as evidence?

The prosecution's evidence is incomplete to provide an affirmative answer. Considering that it was
Gallinera who recorded and marked the seized items, his testimony in court is crucial to affirm
whether the exhibits were the same items handed over to him by Esternon at the place of seizure
and acknowledge the initials marked thereon as his own. The same is true of Garcia who could
have, but nevertheless failed, to testify on the circumstances under which she received the items
from Esternon, what she did with them during the time they were in her possession until before she
delivered the same to Arroyo for analysis.

The prosecution was thus unsuccessful in discharging its burden of establishing the identity of the
seized items because it failed to offer not only the testimony of Gallinera and Garcia but also any
sufficient explanation for such failure. In effect, there is no reasonable guaranty as to the integrity of
the exhibits inasmuch as it failed to rule out the possibility of substitution of the exhibits, which
cannot but inure to its own detriment. This holds true not only with respect to the two filled sachets
but also to the five sachets allegedly containing morsels of shabu.
Also, contrary to what has been consistently claimed by the prosecution that the search and seizure
was conducted in a regular manner and must be presumed to be so, the records disclose a series of
irregularities committed by the police officers from the commencement of the search of petitioner's
house until the submission of the seized items to the laboratory for analysis. The Court takes note of
the unrebutted testimony of petitioner, corroborated by that of his wife, that prior to the discovery of
the two filled sachets petitioner was sent out of his house to buy cigarettes at a nearby store. Equally
telling is the testimony of Bolanos that he posted some of the members of the raiding team at the
door of petitioner's house in order to forestall the likelihood of petitioner fleeing the scene. By no
stretch of logic can it be conclusively explained why petitioner was sent out of his house on an
errand when in the first place the police officers were in fact apprehensive that he would flee to
evade arrest. This fact assumes prime importance because the two filled sachets were allegedly
discovered by Esternon immediately after petitioner returned to his house from the errand, such that
he was not able to witness the conduct of the search during the brief but crucial interlude that he was
away.

It is also strange that, as claimed by Esternon, it was petitioner himself who handed to him the items
to be searched including the pillow from which the two filled sachets allegedly fell. Indeed, it is
contrary to ordinary human behavior that petitioner would hand over the said pillow to Esternon
knowing fully well that illegal drugs are concealed therein. In the same breath, the manner by which
the search of Sheila's body was brought up by a member of the raiding team also raises serious
doubts as to the necessity thereof. The declaration of one of the police officers that he saw Sheila
tuck something in her underwear certainly diverted the attention of the members of petitioner's
household away from the search being conducted by Esternon prior to the discovery of the two filled
sachets. Lest it be omitted, the Court likewise takes note of Esternon's suspicious presence in the
bedroom while Sheila was being searched by a lady officer. The confluence of these circumstances
by any objective standard of behavior contradicts the prosecution's claim of regularity in the exercise
of duty.

Moreover, Section 2144 of the Implementing Rules and Regulations of R.A. No. 9165 clearly outlines
the post-seizure procedure in taking custody of seized drugs. In a language too plain to require a
different construction, it mandates that the officer acquiring initial custody of drugs under a search
warrant must conduct the photographing and the physical inventory of the item at the place where
the warrant has been served. Esternon deviated from this procedure. It was elicited from him that at
the close of the search of petitioner's house, he brought the seized items immediately to the police
station for the alleged purpose of making a "true inventory" thereof, but there appears to be no
reason why a true inventory could not be made in petitioner's house when in fact the apprehending
team was able to record and mark the seized items and there and then prepare a seizure receipt
therefor. Lest it be forgotten, the raiding team has had enough opportunity to cause the issuance of
the warrant which means that it has had as much time to prepare for its implementation. While the
final proviso in Section 21 of the rules would appear to excuse non-compliance therewith, the same
cannot benefit the prosecution as it failed to offer any acceptable justification for Esternon's course
of action.

Likewise, Esternon's failure to deliver the seized items to the court demonstrates a departure from
the directive in the search warrant that the items seized be immediately delivered to the trial court
with a true and verified inventory of the same,45 as required by Rule 126, Section 1246 of the Rules of
Court. People v. Go47 characterized this requirement as mandatory in order to preclude the
substitution of or tampering with said items by interested parties. 48 Thus, as a reasonable
safeguard, People vs. Del Castillo49 declared that the approval by the court which issued the search
warrant is necessary before police officers can retain the property seized and without it, they would
have no authority to retain possession thereof and more so to deliver the same to another
agency.50 Mere tolerance by the trial court of a contrary practice does not make the practice right
because it is violative of the mandatory requirements of the law and it thereby defeats the very
purpose for the enactment.51

Given the foregoing deviations of police officer Esternon from the standard and normal procedure in
the implementation of the warrant and in taking post-seizure custody of the evidence, the blind
reliance by the trial court and the Court of Appeals on the presumption of regularity in the conduct of
police duty is manifestly misplaced. The presumption of regularity is merely just that—a mere
presumption disputable by contrary proof and which when challenged by the evidence cannot be
regarded as binding truth.52 Suffice it to say that this presumption cannot preponderate over the
presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. 53 In the
present case the lack of conclusive identification of the illegal drugs allegedly seized from petitioner,
coupled with the irregularity in the manner by which the same were placed under police custody
before offered in court, strongly militates a finding of guilt.

In our constitutional system, basic and elementary is the presupposition that the burden of proving
the guilt of an accused lies on the prosecution which must rely on the strength of its own evidence
and not on the weakness of the defense. The rule is invariable whatever may be the reputation of
the accused, for the law presumes his innocence unless and until the contrary is shown. 54 In dubio
pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt
inevitably becomes a matter of right.

WHEREFORE, the assailed Decision of the Court of Appeals dated 27 January 2006 affirming with
modification the judgment of conviction of the Regional Trial Court of Sorsogon City, Branch 52, and
its Resolution dated 30 May 2006 denying reconsideration thereof, are REVERSED and SET
ASIDE. Petitioner Junie Malillin y Lopez is ACQUITTED on reasonable doubt and is accordingly
ordered immediately released from custody unless he is being lawfully held for another offense.

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.

SO ORDERED.

6. Retroactive effect of penal laws

B. Felonies

1. Criminal liabilities and felonies

People v. Delim, G.R. No. 142773, January 28, 2003

G.R. No. 142773             January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARLON DELIM, LEON DELIM, MANUEL DELIM alias "BONG" (At Large), ROBERT DELIM (At
Large), and RONALD DELIM alias "BONG", accused-appellants.

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision, 1 dated January 14, 2000, of the Regional Trial
Court, Branch 46, Urdaneta City, finding accused appellants Marlon Delim, Leon Delim and Ronald
Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the
supreme penalty of death. The court also ordered accused-appellants to pay, jointly and severally,
the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary
damages.

Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and Robert, all
surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads:

"That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and
within the jurisdiction of this Honorable Court, the above-named accused, armed with short
firearms barged-in and entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premedidation (sic), conspiring with one another, did then and there,
wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out
and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house
guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter
with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and
prejudice of his heirs.

CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659."2

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were
apprehended. Accused Robert and Manuel remain at-large.

At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not
guilty to the charge.

At the trial, the prosecution established the following relevant facts 3 —

Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald
Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname
Delim after he was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife,
Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their
surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their
relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit
Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison,
Pangasinan.

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to
have their supper in their home. Joining them were Modesto and Rita's two young grandchildren,
aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald
suddenly barged into the house and closed the door. Each of the three intruders was armed with a
short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed
and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto. 4 Marlon, Robert and
Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison,
Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and
Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto
and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto
only at around 7:00 a.m. the following day, January 24, 1999.

As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Niño, at Sitio
Labayog, informed the latter of the incident the night before and sought his help for the retrieval of
Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to
first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail.
They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to
locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to
the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there.
On January 26, 1999, Randy reported the incident to the police authorities.

At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida
Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit,
Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was
already dead. The cadaver was bloated and in the state of decomposition. It exuded a bad odor.
Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately
rushed to the police station to report the incident and to seek assistance.

When informed of the discovery of Modesto's cadaver, the local chief of police and SPO2 Jovencio
Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes.
Pictures were taken of the cadaver.5 Rita and Randy divulged to the police investigators the names
and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible
for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto
and killed him. Rita and Randy gave their respective sworn statements to the police
investigators.6 Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but
failed to find them in their respective houses. The police officers scoured the mountainous parts of
Barangays Immalog and Labayog to no avail.

The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which
reads:

"SIGNIFICANT EXTERNAL FINDINGS:

 Body  both upper extremities are flexed
 both lower extremities are flexed
 (+) body decomposition
 (+) worms coming out from injuries
 10 x 10 ml. GSW, pre-auricular area, right
 20 x 20 ml. GSW, mandibular areas, right
 10 x 10 ml. GSW, maxillary area, right
 10 x 10 ml. GSW, below middle nose, directed upward (POE)
 30 x 40 ml. GSW, mid parieto — occipital area (POEx)
 2 x 1 cms. lacerated wound, right cheek
 1 x 1 cm. stabbed wound, axillary area, left
 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
 1 x 1 cm. stabbed wound medial aspect D/3rd, left arm
 #3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left
forearm
 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
 10 x 6 cms. Inflamed scrotum
  penis inflamed
SIGNIFICANT INTERNAL FINDINGS:
 no significant internal findings
CAUSE OF DEATH:
 GUN SHOT WOUND, HEAD."7

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The
police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no
licenses for their firearms.8

Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had
pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R,
and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court
in Urdaneta, Pangasinan.9

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. 10

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and
sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from
Modesto's house.

He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing
him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier
who allegedly had a quarrel with him concerning politics.

Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita
Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after
leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a
hollow-block factory in that city where he was a stay-in worker.

Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went home to his
hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred
that on January 23, 1999, his brother was at her house to give her his laundry. She claimed that the
distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus.
Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January
1998 up to February 1999.11

Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January
29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila
on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting
foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City.

The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive
portion of the trial court's decision reads:

"WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby

rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of
Aggravated Murder, an offense defined and penalized under Article 248 of the Revised
Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald
Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as
 provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify
the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the amount of
P25,000.00 as exemplary damages.

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the
Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of
promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta
City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed
Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision.

SO ORDERED."12

The trial court appreciated treachery as a qualifying circumstance and of taking advantage of
superior strength, nighttime and use of unlicensed firearms as separate of aggravating
circumstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail
the decision alleging that:

"I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE

CASE AT BAR.

III

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO

ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13

Before resolving the merits of the case at bar, we first resolve the matter of whether the crime
charged in the Information is murder or kidnapping. During the deliberation, some distinguished
members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with
kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form
in light of the allegation therein that the accused "willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter." They submit that the foregoing allegation constitutes the act
of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the
fact that the Information went further to charge accused with the killing of the victim should be of no
moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated —
these being conclusions of law — but by the actual recital of facts in the complaint or information.
They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald
and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for
kidnapping the victim.
It bears stressing that in determining what crime is charged in an information, the material
inculpatory facts recited therein describing the crime charged in relation to the penal law violated are
controlling. Where the specific intent of the malefactor is determinative of the crime charged such
specific intent must be alleged in the information and proved by the prosecution. A decade ago, this
Court held in People v. Isabelo Puno, et al.,14 that for kidnapping to exist, there must be indubitable
proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and
not where such restraint of his freedom of action is merely an incident in the commission of another
offense primarily intended by the malefactor. This Court further held:

"x x x Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it
has been held that the detention and/or forcible taking away of the victims by the accused,
even for an appreciable period of time but for the primary and ultimate purpose of killing
them, holds the offenders liable for taking their lives or such other offenses they committed in
relation thereto, but the incidental deprivation of the victims' liberty does not constitute
kidnapping or serious illegal detention."15

If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of
the victim's liberty does not constitute the felony of kidnapping but is merely a preparatory act to the
killing, and hence, is merged into, or absorbed by, the killing of the victim. 16 The crime committed
would either be homicide or murder.

What is primordial then is the specific intent of the malefactors as disclosed in the information or
criminal complaint that is determinative of what crime the accused is charged with — that of murder
or kidnapping.

Philippine and American penal laws have a common thread on the concept of specific intent as an
essential element of specific intent crimes. Specific intent is used to describe a state of mind which
exists where circumstances indicate that an offender actively desired certain criminal consequences
or objectively desired a specific result to follow his act or failure to act. 17 Specific intent involves a
state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific
intent must be alleged in the Information and proved by the state in a prosecution for a crime
requiring specific intent.18 Kidnapping and murder are specific intent crimes.

Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred
from the circumstances of the actions of the accused as established by the evidence on record. 19

Specific intent is not synonymous with motive. Motive generally is referred to as the reason which
prompts the accused to engage in a particular criminal activity. Motive is not an essential element of
a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for
the commission of the offense charged does not show guilt and absence of proof of such motive
does not establish the innocence of accused for the crime charged such as murder. 20 The history of
crimes shows that murders are generally committed from motives comparatively trivial. 21 Crime is
rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to
deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be
convicted for kidnapping.22 In kidnapping for ransom, the motive is ransom. Where accused kills the
victim to avenge the death of a loved one, the motive is revenge.

In this case, it is evident on the face of the Information that the specific intent of the malefactors in
barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the
attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely
incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the
information that the primary intent of the malefactors was to deprive Modesto of his freedom or
liberty and that killing him was merely incidental to kidnapping.23 Irrefragably then, the crime charged
in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under
Article 268 thereof.

The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite
quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder.

In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil
of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of
the evidence of the accused. The proof against the accused must survive the test of reason; the
strongest suspicion must not be permitted to sway judgment. 24

In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two
things: first, the criminal act and second, defendant's agency in the commission of the act. 25 Wharton
says that corpus delicti includes two things: first, the objective; second, the subjective element of
crimes.26 In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the
death of the party alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally responsible for the act which
produced the death.27 To prove the felony of homicide or murder, there must be incontrovertible
evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words,
that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the victim. If the
victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct

evidence or by circumstantial or presumptive evidence. 28

In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto
sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds, 29 defensive in nature.
The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing
of the victim as well as the nature, number and location of the wounds sustained by said victim are
evidence of the intent by the malefactors to kill the victim with all the consequences flowing
therefrom.30 As the State Supreme Court of Wisconsin held in Cupps v. State:31

"This rule, that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally act
deliberately and by the determination of their own will, and not from the impulse of blind
passion, the law presumes that every man always thus acts, until the contrary appears.
Therefore, when one man is found to have killed another, if the circumstances of the
homicide do not of themselves show that it was not intended, but was accidental, it is
presumed that the death of the deceased was designed by the slayer; and the burden of
proof is on him to show that it was otherwise."

The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It
relied on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of
murder. Circumstantial evidence consists of proof of collateral facts and circumstances from which
the existence of the main fact may be inferred according to reason and common experience. 32 What
was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised
Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or
presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites
concur:

"x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived have been established; and (c) the combination of all the circumstances is such as to
warrant a finding of guilt beyond reasonable doubt." 33

The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of accused for the
offense charged.34 For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the hypothesis that accused is
guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt. 35 If the prosecution adduced the requisite circumstantial
evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the
accused to controvert the evidence of the prosecution.

In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to
prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill
Modesto:

1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed
with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then
seized Modesto and herded him out of his house:

"FISCAL TOMBOC: What were you doing then at that time in your house?

A         We were eating, sir.

Q         You said we, who were your companions eating then at that time?

A         My father, my mother and the two children and myself, sir.

Q         While taking your supper that time, do you recall if there was anything unusual that
happened at that time?

A         When we were about to start to eat three armed men entered our house.

Q         Do you know these three armed men who entered your house?

A         Yes, sir.

Q         Who are they, name them one by one?

A         Marlon Delim, Robert Delim and Ronald Delim.

Q         Are these three persons inside the courtroom now?

A         Two of them, sir.

Q         Who are these two who are inside the courtroom?

A         Marlon and Ronald, sir.

Q         Will you please stand up and point to them?

A         (Witness is pointing to a person seated on the bench inside the courtroom, who, when
his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person
seated on the bench inside the courtroom, who, when his name was asked he answered
Ronald Delim).

Q         You said that these two armed persons entered your house, what kind of arm were
they carrying at that time?

A         Short handgun, sir.

Q         When these three armed persons whom you have mentioned, armed with short
firearms, what did they do then when they entered your house?

A         They took my father, sir.

Q         Who took your father?

A         Marlon Delim, Robert Delim and Ronald Delim, sir.

Q         When these three persons took your father, what did you do then?

A         None, sir.

COURT: How did they get your father?

A         They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC: Who poked a gun?

A         Marlon Delim, sir.

Q         Again, Mr. Witness, will you point to the person who poked a gun?

A         (Witness is pointing to Malon (sic) Delim, one of the accused).

Q         After bringing your father out from your house, what transpired next?

A         Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

COURT: You said your father was taken out, who?

A         Marlon, Robert and Ronald, sir.

FISCAL TOMBOC: Where did these three persons bring your father?
 A         I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside?

A         Inside our house, sir.

Q         You said that Marlon poked a gun at your father, is that correct?

A         Yes, sir.

Q         What did Ronald and Robert do while Marlon was poking his gun to your father?

A         Ronald and Robert were the ones who pulled my father out, sir."36

Randy's account of the incident was corroborated by his mother, Rita, who testified:

"PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at
around 6:30 in the evening while preparing for your supper three (3) armed men entered
inside your house, who were these three (3) men who entered your house?

A         I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO: We just make of record that the witness is taking her time to answer,
Your Honor.

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered
your house, are these three (3) persons who entered your house in Court now?

A         They are here except the other one, sir.

Q         Will you please step down and point to the persons who entered your house?

A         Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

Q         After these three (3) armed men entered your house, what happened then?

A         My husband was brought out, sir.

Q         What is the name of your husband?

A         Modesto Delim, sir."37

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun,
acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat
until 7:00 a.m. of the next day:

"FISCAL TOMBOC: When your father was pulled out from your house by these three
persons, what did you and your mother do while these three persons were taking out of your
house?
 A         We did not do anything because Manuel and Leon Delim guarded us.

COURT: Where, in your house?

A         Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out by these three
persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then?

A         They were at the door, sir.

COURT: Why do you know that they were guarding you?

A         Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these two persons were
guarding you, these Leon and Manuel?

A         They were armed, sir.

Q         What do you mean by armed?

A         They have gun, sir.

Q         What kind of firearm?

A         Short firearm, sir.

Q         By the way, where are these Leon and Manuel now, if you know?

A         Leon is here, sir.

Q         About Manuel?

A         None, sir.

Q         Will you please stand up and point at Leon, Mr. Witness?

A         (Witness pointed to a person seated on the bench inside the courtroom, who when
his name was asked, answered, Leon Delim)." 38

3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house
with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24,
1999 to prevent them from seeking help from their relatives and police authorities.

4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was
found under the thick bushes in a grassy area in the housing project located about 200 meters away
from the house of Modesto. The cadaver exuded bad odor and was already in the state of
decomposition:
 "Q         So what did you do then on January 27, where did you look for your father?

A         The same place and at 3:00 o'clock P.M., we were able to find my father.

COURT: Where?

A         At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you were able to look for
your father on January 27, 1999 at 3:00 o'clock P.M.?

A         Yes, sir.

Q         Who?

A         My Aunt, sir.

Q         What is the name of your Aunt?

A         Nida Pucal, sir.

Q         Who else?

A         Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT: When you found your father, what was his condition?

A         He was dead, sir.

COURT: Go ahead.

FISCAL TOMBOC: You said that he was already dead, what was his appearance then when
you saw him dead?

A         He has bad odor, sir, in the state of decompsition (sic)."39

The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of
Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that
his penis and scrotum were inflamed. The victim sustained five gunshot wounds and defensive
wounds on the left arm and forearm:

"PROS. TOMBOC:

Q         Will you please tell the Honorable Court your findings, Doctora?

WITNESS:

A         First finding: Upon seeing the cadaver, this is the position of the body, both upper
extremities are flexed and both lower extremities are flexed (Nakakukot).
Q         How many days had already elapsed when you autopsied the cadaver of the victim,
Doctora?

A         Four (4) days upon the recovery of the body, sir.

Q         And what was your findings Doctora?

A         The body was already under the state of decomposition, sir, with foul odor and there
were so many worms coming out from the injuries, there were tiny white worms, sir.

Q         What else did you observe Doctora?

A         Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the
victim was an igorot (sic) and they have tradition that they will bury immediately. Whether
they like it or not I should do it, sir.

Q         What else Doctora?

A         And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also
20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit.

Q         So there were two (2) gunshot wounds (GSW) Doctora?

A         Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW,
below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid
parieto-occipital area (POEx).

Q         How many all in all are the gunshot wound?

A         Five (5) sir.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed
wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x
1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial
aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and
#3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left
forearm.

Q         How many stabbed wound are there Doctora?

A         There were seven (7) stabbed wounds, sir.

Q         Those stabbed wounds were defensive wounds, Doctora?

A         Yes sir."40
The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and
the distention of his scrotum and penis are evidence that the cadaver was in the stage of
putrefaction and that the victim had been dead for a period ranging from three to six
days.41 Admittedly, there are variant factors determinative of the exact death of the victim. An equally
persuasive authority states:

"Chronological Sequence of Putrefactive Changes Occurring in Tropical

Region:
Time Since Condition of the Body
Death
48 hours Ova of flies seen. Trunk bloated. Face discolored and
swollen. Blisters present. Moving maggots seen
72 hours Whole body grossly swollen and disfigured. Hair and nails
loose. Tissues soft and discolored."42

The lapse of two or three to four days from the seizure of the victim in the evening of January 23,
1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon
of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of
the contention of the prosecution that the victim was killed precisely by the very malefactors who
seized him on January 23, 1999.

5. When police authorities went to the residences of all the malefactors, the latter had flown the coop
and were nowhere to be found:

"COURT: In connection with this case, you investigated the wife and son of Modesto Delim?

A         Yes, sir.

Q         In the course of the investigation did you come to know who were the suspects?

A         Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his
brothers, sir.

Q         What are the names of the brothers?

A         Manuel Delim, Leon Delim I cannot remember the others, sir.

Q         By reason of that information were you able to apprehend any of them for
investigation?

A         No, sir.

Q         Why?

A         Because when we were dispatched by the Chief of Police no Delim brothers could be
found, they all left the place, sir.

Q         In what place did you look for the brothers Delim?

A         Within the vicinity, sir.

 Q         In what place?

A         Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place
where the cadaver was found in Paldit, sir.

Q         Where did you look for the Delim brothers?

A         Nearby barangays, Immalog, sir.

Q         Wherelse (sic)?

A         Labayog, Sison, sir.

Q         Wherelse?

A         In mountainous part of Immalog, part of Tuba Benguet, sir.

Q         What was the result?

A         Negative result, sir."43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of
Modesto and Rita:

"COURT: These Leon and Manuel Delim are they known to you prior to that day, January
23, 1999?

A         Yes, sir, I know them.

Q         Why do you know Manuel and Leon prior to January 23, 1999?

A         They are my neighbors, sir.

Q         How about Marlon, Robert and Bongbong do you know them before January 23,
1999?

A         I know them, sir.

Q         Why do you know them?

A         They used to go to our house, sir.

Q         I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your
husband's name is Modesto Delim are they related with each other?

A         Yes, sir."44

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is
strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the
commission of an offense does not create a legal presumption of guilt, nevertheless, the same is
admissible in evidence against them and if not satisfactorily explained in a manner consistent with
their innocence, will tend to show that they, in fact, killed Modesto. 45

It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill
Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or
grudge between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on
the other before the incident, or any motivation on the part of the three malefactors to cause harm to
Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon,
Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial
notice that nowadays persons have killed or committed serious crimes for no reason at all. 46 In this
case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hog-tied, put a piece of cloth in his mouth and
after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and
the cadaver of Modesto was found concealed under the bushes and already in a state of
putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and
died because of a gunshot wound on the head. The criminal acts and the connection of Marlon,
Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt,
the act itself furnishes the evidence, that to its perpetration there was some causes or influences
moving the mind.47 The remarkable tapestry intricately woven by the prosecution should not be
trashed simply because the malefactors had no motive to kill Modesto.

Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald
and Leon to rebut the same and explain what happened to the victim after taking him from his house
in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the
victim may have been able to escape and that thereafter a person or some other persons may have
killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely
denied having seized and killed the victim and interposed alibi as their defense.

Leon is equally guilty for the death of Modesto because the evidence on record shows that he
conspired with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the
victim.

There is conspiracy when two or more persons agree to commit a felony and decide to commit
it.48 Conspiracy must be proven with the same quantum of evidence as the felony itself, more
specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by
direct evidence or by circumstantial evidence. Conspiracy is deducible from the acts of the
malefactors before, during and after the commission of the crime which are indicative of a joint
purpose, concerted action and concurrence of sentiment. 49 To establish conspiracy, it is not essential
that there be proof as to the existence of a previous agreement to commit a crime. 50 It is sufficient if,
at the time of the commission of the crime, the accused had the same purpose and were united in its
execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who
among the accused actually shot and killed the victim. 51 This is based on the theory of a joint or
mutual agency ad hoc for the prosecution of the common plan:

"x x x The acts and declarations of an agent, within the scope of his authority, are considered
and treated as the acts and declarations of his principal. 'What is so done by an agent, is
done by the principal, through him, as his mere instrument.' Franklin Bank of Baltimore v.
Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be
proved to have existed, or rather if evidence be given to the jury of its existence, the acts of
one in furtherance of the common design are the acts of all; and whatever one does in
furtherance of the common design, he does as the agent of the co-conspirators.' R. v.
O'Connell, 5 St.Tr. (N.S.) 1, 710."52
In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice,
they wield one arm and the law says that the acts, words and declaration of each, while in the
pursuit of the common design, are the acts, words and declarations of all. 53

In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed
with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door
thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned
Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of
January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized
and executed with precision evincing a preconceived plan or design of all the malefactors to achieve
a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were — (a) to act as a lookout; (b) to ensure that Rita and Randy remain in
their house to prevent them from seeking assistance from police authorities and their relatives before
their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and
Ronald.54 Patently, Leon, a lookout for the group, is guilty of the killing of Modesto. 55 Leon may not
have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a
principal by direct participation.56 If part of a crime has been committed in one place and part in
another, each person concerned in the commission of either part is liable as principal. No matter
how wide may be the separation of the conspirators, if they are all engaged in a common plan for the
execution of a felony and all take their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct connection between the actor and the
crime.57

Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same
were marred by inconsistencies.

1. Randy initially stated that he did not know where the assailants brought his father. Later
however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison,
Pangasinan;

2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their
house. She later changed her testimony and declared that it was Robert, together with
Marlon and Ronald who barged into the house;

3. Rita likewise testified that two men stood outside the house guarding them. Later, she
testified that after the three men brought out the victim, the two other accused entered the
house and guarded them there;

4. Rita claimed that she went out to look for her husband the next day, or on January 25,
1999, and she was accompanied by her son Randy. However, Randy testified that he was
alone when he looked for his father from January 24 to 26, 1999. 58

We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial
court, its calibration of the collective testimonies of witnesses and its assessment of the probative
weight thereof and its conclusions culled from its findings are accorded by the appellate court great
respect, if not conclusive effect, because of its unique advantage of observing at close range the
demeanor, deportment and conduct of the witnesses as they give their testimonies before the court.

In the present case, the trial court gave credence and full probative weight to the testimonies of the
witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were
moved by any improper or ill motive in testifying against the malefactors and the other accused;
hence, their testimonies must be given full credit and probative weight. 59 The inconsistencies in the
testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative
weight. It must be borne in mind that human memory is not as unerring as a photograph and a
person's sense of observation is impaired by many factors including the shocking effect of a crime. A
truth-telling witness is not always expected to give an error-free testimony considering the lapse of
time and the treachery of human memory. What is primordial is that the mass of testimony jibes on
material points, the slight clashing of statements dilute neither the witnesses' credibility nor the
veracity of his testimony.60 Variations on the testimony of witnesses on the same side with respect to
minor, collateral or incidental matters do not impair the weight of their united testimony to the
prominent facts.61 Inconsistencies on minor and trivial matters only serve to strengthen rather than
weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony.  62

Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms
and the true meaning of answers to isolated questions propounded to a witness is to be ascertained
by due consideration of all the questions propounded to the witness and his answers thereto. 63

Randy's testimony that he did know where the malefactors brought his father is not inconsistent with
his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accused-appellants but he saw the
direction to which they went. While it may be true that when asked to identify the three who barged
into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout
her testimony that those who barged into their house were Ronald and Marlon. Leon's counsel never
cross-examined Rita and impeached her testimony on her identification of Leon as one of those who
barged into their house to give her an opportunity to explain her perceived inconsistency
conformably with Rule 132, Section 13, of the Revised Rules of Evidence which reads:

"Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be related to him,
with the circumstances of the times and places and the persons present, and he must be
asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any question is put to him
concerning them."64

Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired
impeachment of her.65 As to whether Rita and Randy were together in looking for Modesto or Leon
merely stood guard by the door of the house or entered the house are inconsequential. The fact is
that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for
the seizure and killing of Modesto.

This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita
bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they
responded with consistency upon material details that could only come from a firsthand knowledge
of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to
disregard the findings of the trial court regarding their credibility.

Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving
credence and probative weight to their evidence to prove their defense of alibi. They aver that their
collective evidence to prove their defense is strong.

We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in
criminal prosecution because the same is easy to concoct between relatives, friends and even those
not related to the offender.66 It is hard for the prosecution to disprove. For alibi to merit approbation
by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and
convincing evidence that they were in a place other than the situs criminis at the time of the
commission of the crime; that it was physically impossible for them to have committed the said
crime.67 They failed to discharge their burden. Moreover, Rita and Randy positively and
spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he
claimed he was when the crime was committed, was only two kilometers away from the house of
Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to
prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City
does not constitute proof that he was in Laoag City on the day of the commission of the crime. With
respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided
in, left Dumaguete City and arrived in Manila on January 29, 1999.

The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of
treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of
superior strength and the use of unlicensed firearms as separate aggravating circumstances. The
Office of the Solicitor General contends that indeed treachery was attendant in the killing of
Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article
248 of the Revised Penal Code.

The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and
penalized by Article 248 of the Revised Penal Code.

Qualifying circumstances such as treachery and abuse of superior strength must be alleged and
proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions
are utterly insufficient and cannot produce the effect of qualifying the crime. 68 As this Court held: "No
matter how truthful these suppositions or presumptions may seem, they must not and cannot
produce the effect of aggravating the condition of defendant." 69 Article 14, paragraph 16 of the
Revised Penal Code provides that there is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution thereof which tend directly
and especially to insure its execution, without risk to himself arising from the defense which the
offended party might make. For treachery to be appreciated as a qualifying circumstance, the
prosecution is burdened to prove the following elements: (a) the employment of means of execution
which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of
execution is deliberately or consciously adopted. 70 Although the victim may have been defenseless
at the time he was seized but there is no evidence as to the particulars of how he was assaulted and
killed, treachery cannot be appreciated against the accused. 71 In this case, the victim was
defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any
witness or conclusive evidence that Modesto was defenseless immediately before and when he was
attacked and killed. It cannot be presumed that although he was defenseless when he was seized
the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To
take advantage of superior strength means to purposely use force that is out of proportion to the
means of defense available to the person attacked. 72 What is primordial, this Court held in People v.
Rogelio Francisco73 is that the assailants deliberately took advantage of their combined strength in
order to consummate the crime. It is necessary to show that the malefactors cooperated in such a
way as to secure advantage from their superiority in strength. 74 In this case, the prosecution failed to
adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority
when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were
armed while Modesto was not does not constitute proof that the three took advantage of their
numerical superiority and their handguns when Modesto was shot and stabbed. 75

In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and
penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period.
Although the special aggravating circumstance of the use of unlicensed firearms was proven during
the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to
possess the firearm. Lack of license to possess a firearm is an essential element of the crime of
violation of PD 1866 as amended by Republic Act No. 8294, or as a special aggravating
circumstance in the felony of homicide or murder.76 Neither can dwelling, although proven, aggravate
the crime because said circumstance was not alleged in the Information as required by Rule 110,
Section 8, of the Revised Rules of Court.77 Although this rule took effect on December 1, 2000, after
the commission of the offense in this case, nonetheless it had been given retroactive effect
considering that the rule is favorable to the accused. 78

There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon
should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety
of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which
shall be taken from the medium period of reclusion temporal, ranging from 14 years, 8 months and
one day to 17 years and 4 months.

Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum
of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with
prevailing jurisprudence.79 The amount of P25,000.00 as exemplary damages is in order. 80 In
addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof,
likewise in consonance with prevailing jurisprudence. 81

IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with
MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found
guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of
the Revised Penal Code. There being no modifying circumstances in the commission of the crime,
each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one
(1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are
hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by
way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of
P25,000.00 by way of exemplary damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez,
Corona, Carpio-Morales and Azcuna, JJ., concur.
Vitug, J., see separate opinion.
Ynares-Santiago, J., joins the dissenting opinion of J. Vitug.
Gutierrez, J., joins Justice Vitug in his dissenting opinion.

Separate Opinions

VITUG, J.:

Circumstantial evidence has been defined as that which relates to a series of facts other than the
fact in issue which, by experience, are found to be so associated with such fact that, in relation of
cause and effect, they lead to a veritable conclusion. There should, for circumstantial evidence to
warrant a criminal conviction, be a) more than one circumstance; b) proof of the facts from which the
inference is derived; and c) a clear showing that the combination of all the circumstances can aptly
support a conviction beyond reasonable doubt.1 The use of circumstantial evidence in criminal
cases, prompted by sheer necessity, has long been an accepted, practice but with one important
caveat — it must be used with utmost care and, when its exacting standards are not met, it is
correctly ignored.

On 04 May 1999, the following Information was filed against Marlon, Leon, Manuel, Robert and
Ronald, all surnamed Delim; viz:

"That on or about January 23, 1999 in the evening at Brgy. Bila, Sison, Pangasinan, and
within the jurisdiction of this Honorable Court, the above-named accused armed with short
firearms barged in and entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premeditation, conspiring with one another, did then and there,
willfully, unlawfully and feloniously grab, hold, hog-tie, gag with a piece of cloth, brought out
and abduct Modesto Delim, (while) accused Leon and Manuel Delim stayed in the house
(and) guarded and prevented the wife and son of Modesto Delim from helping the latter,
thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the
damage and prejudice of his heirs.

"Contrary to Article 248, Revised Penal Code, as amended by Republic Act No. 7659." 2

The evidence would show that Modesto Delim was forcibly abducted from his residence by
appellants, all armed, on the night of 23 January 1999. But to say that the same group was also
responsible for his death, days later, or that his violent end was the consequence of the abduction,
and nothing more, would be to unduly put to risk our standard of moral certainty required for all
convictions.

It was approximately six-thirty on the evening of 23 January 1999. Three armed men suddenly
barged into the house of Modesto Delim in Brgy. Bila, Sison, Pangasinan. Modesto, who was then
about to take his supper with his wife Rita Manalo Bantas, his teen-age son Randy Manalo Bantas,
and his two grandchildren, was suddenly seized by the intruders. Randy identified the malefactors to
be their neighbors — Marlon, Robert, and Ronald, all surnamed Delim. Without any word, the trio
went straight for Modesto. Randy saw Marlon poke a gun at his father while Ronald and Robert held
back his arms and brought him outside the house. Two more armed cohorts, namely, Manuel and
Leon, both also surnamed Delim, stood guard by the door. No words were uttered to interrupt the
heavy silence except when one of the two men told the stunned family members to stay where they
were. All through the night, both Manuel and Leon Delim kept watch outside the door and only left at
around seven o'clock in the morning of the next day.

Soon after Manuel Delim and Leon Delim had left, Randy immediately sought the help of his Uncle
Darwin Niño who forthwith told him to bring the matter to the authorities. But it was only two days
later that, in the company of his Uncle Melchor, Randy finally reported the incident to the police. In
the meantime, the distressed son scoured the vicinity of Paldit, Pangasinan, to look for his father. He
was nowhere to be found. Days passed. Then, one day, he stumbled upon the decomposing body of
his father at a thick grassy portion of a housing project in Paldit, Sison, Pangasinan, some 200
meters from their house. Dr. Ma. Fe Lagmay de Guzman, who conducted the autopsy, found the
corpse riddled with five fatal gunshot wounds, seven stab wounds and several "defensive" wounds.

The victim's surviving spouse Rita Manalo Bantas and son Randy Manalo Bantas could not
understand why anyone would want Modesto killed. The family was completely unaware of any
possible motive for the nabbing and killing of Modesto Delim or of any bad blood between Modesto
and the five indictees.
On 14 January 2000, the Regional Trial Court of Urdaneta City, Branch 46, rejecting the defense
of alibi, convicted Ronald, Marlon, and Leon for murder; it held:

"WHEREFORE, judgment of conviction beyond reasonable doubt is hereby rendered against

Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an
offense defined and penalized under Article 248 of the Revised Penal Code, as amended by
R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer
the penalty of death, to be implemented in the manner as provided for by law; the Court
likewise ordered the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim
the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary
damages."3

In assailing the finding of guilt beyond reasonable doubt by the court a quo, appellants stress on
what they claim to be inconsistencies in the testimony of Randy Manalo Bantas and that of Rita
Manalo Bantas. I agree with my colleagues that the trial court has not erred in regarding the so-
called inconsistencies as being minor and trivial that hardly can affect the credibility of the witnesses.
The narration given by Randy Manalo Bantas and Rita Manalo Bantas at the witness stand,
identifying each of the appellants and detailing their individual participation in the incident, could not
have been more spontaneous and straightforward; thus —

Testimony of Randy Manalo Bantas

"Q         While taking your supper that time, do you recall if there was anything unusual that
happened at that time?

"A         When we were about to start to eat, three armed men entered our house.

"Q         Do you know these three armed men who entered your house?

"A         Yes, sir.

"Q         Who were they, name them one by one.

"A         Marlon Delim, Robert Delim and Ronald Delim.

"Q         Are these three persons inside the courtroom now?

"A         Two of them, sir.

"Q         Who are these two who are inside the courtroom?

"A         Marlon and Ronald, sir.

xxx           xxx           xxx

"Q         You said that these two armed persons entered your house; what kind of arms were
they carrying at that time?

"A         Short handguns, sir.

"Q         When these three armed persons whom you have mentioned, armed with short
firearms, what did they do when they entered your house?

"A         They took my father, sir.

"Q         Who took your father?

"A         Marlon Delim, Robert Delim and Ronald Delim, sir.

"Q         When these three persons took your father, what did you do then?

"A         None, sir.

"COURT:

How did they get your father?

"A         They poked a gun and brought him outside the house, sir.

"FISCAL TOMBOC:

Who poked a gun?

"A         Marlon Delim, sir.

"xxx           xxx           xxx

"Q         After bringing your father out from your house, what transpired next?

"A         Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

"COURT:

You said your father was taken out, who?

"A         Marlon, Robert and Ronald, sir.

"FISCAL TOMBOC:

Where did these three persons bring your father?

"A         I do not know where they brought my father, sir.

"COURT:

Was your father taken inside your house or outside?

"A         Inside our house, sir.

"Q         You said that Marlon poked a gun at your father, is that correct?

"A         Yes, sir.

"Q         What did Ronald and Robert do while Marlon was poking his gun at your father?

"A         Ronald and Robert were the ones who pulled my father out, sir.

"FISCAL TOMBOC:

When your father was pulled out from your house by these three persons, what did
you and your mother do while these three persons were taking your father out of your
house?

"A         We did not do anything because Manuel and Leon Delim guarded us.

"xxx           xxx           xxx

"FISCAL TOMBOC:

What was their appearance that time when these two persons were guarding you,
these Leon and Manuel?

"A         They were armed, sir.

"Q         What do you mean by armed?

"A         They have [a] gun, sir.

"Q         What kind of firearm?

"A         Short firearm, sir.

"xxx           xxx           xxx

"FISCAL TOMBOC:

You said that you were guarded by Leon and Manuel, how long did these two
persons guard you in your house?

"A         Up to the morning, sir.

"Q         You know what time?

"A         Yes, sir, [seven o'clock].

"xxx           xxx           xxx

"Q         When [seven o'clock] arrived, you said that they guarded you up to [seven o'clock],
what did these two, Leon and Manuel, do then?
"A         They left, sir.

"Q         Do you know where they went?

"A         No, sir."4

Testimony of Rita Manalo Bantas

"PROSECUTOR TOMBOC

You said during the last hearing that on January 23, 1999 at around 6:30 in the
evening while preparing for your supper three (3) armed men entered inside your
house, who were these three (3) men who entered your house?

"A         I know, Marlon, Bongbong and Robert, sir.

"xxx           xxx           xxx

"PROSECUTOR TOMBOC

You said that Marlon Delim, Robert Delim and Bongbong entered your house, are
these three (3) persons who entered your house in Court now?

"A         They are here except the other one, sir.

"Q         Will you please step down and point to the persons who entered your house?

"A         Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

"Q         After these three (3) armed men entered your house, what happened then?

"A         My husband was brought out, sir.

"xxx           xxx           xxx

"PROSECUTOR TOMBOC

Who brought your husband out of your house on January 23, 1999 at 6:30 in the
evening?

"A         Marion Delim, Bongbong and Robert Delim, sir.

"Q         Then after Marlon Delim, Bongbong and Robert Delim brought your husband out
what transpired next?

"A         The two (2) stayed at the door of our house to guard us, sir.

"Q         Who were these two (2) persons who guarded you?
"A         Leon and Manuel, sir.

"xxx           xxx           xxx

"COURT

You said the two (2) Leon and Manuel stayed at the door guarding you, is that
correct?`

"A         Yes, sir.

"Q         What made you say that you are guarded by them?

"A         Because they have guns with them, sir.

"PROSECUTOR TOMBOC

Do you know what kind of firearm were they holding?

"A         I don't know, sir.

"Q         But you can describe whether long or short firearm?

"A         Short firearms, sir.

"Q         What did you do then when these two (2) armed persons guarded you in your
house?

"A         We did not do anything because we were afraid, sir.

"COURT

These Leon and Manuel Delim are they known to you prior to that day, January 23,
1999?

"A         Yes, sir, I know them.

"Q         Why do you know Manuel and Leon prior to January 23, 1999?

"A         They are my neighbors, sir.

"Q         How about Marlon, Robert and Bongbong do you know them before January 23,
1999?

"A         I know them, sir.

"Q         Why do you know them?

"A         They used to go to our house, sir.

 "xxx           xxx           xxx

"Q         You said that Leon and Manuel Delim guarded the door of your house, how long did
they stay there?

"A         The whole night up to [seven] o'clock the following morning when they left the house,
sir.

"Q         You said they left, do you know where they proceeded?

"A         I don't know where they [went], sir.

"Q         How about you, what did you do then when the two persons left your house?

"A         I stayed at home because I [was] afraid, sir.

"COURT

When the 3 persons brought your husband out did Modesto Delim go with them
voluntarily?

"A         No, sir.

"Q         Why do you say [that] he did not go voluntarily?

"A         Because they held his hand and brought him outside, sir.

"PROSECUTOR TOMBOC

You said they held the hand of your husband, will you please demonstrate how he
was brought outside?

"A         They held the 2 hands placed at the back and they brought outside my husband, sir.

"Q         Who among the 3 men held the hands of your husband?

"A         Marlon, Bongbong and Robert, Sir.

"COURT

Did your husband resist when they held the hand?

"A         He did not resist, Sir."5

Between the positive identification made by the eyewitnesses and the bare denial of appellants,
there is scarcely any serious doubt but that decisive weight must be given to the positive testimony
of Randy Manalo Bantas and Rita Manalo Bantas.6 The defense of alibi, being one that can easily be
fabricated, is inherently weak and cannot be expected to withstand the positive identification made
by credible witnesses.
Randy Manalo Bantas, who was in the house when the five intruders entered their abode and took
his father away, could not have been mistaken in identifying the malefactors who not only were
neighbors but also had family ties with them as well. According to Randy and Rita Manalo Bantas, it
was appellant Leon Delim, together with Manuel Delim (at large), who stood guard at their house
after the others, appellant Marlon Delim, Robert Delim (at large) and appellant Ronald Delim, took
Modesto away on the early evening of 23 January 1999. Leon and Manuel stayed well into the night
and left only at seven o'clock in the morning of the next day. The certificate of residency issued by
the barangay captain of Salet, Laoag City, only confirmed that Leon Delim was a co-resident of the
barangay but it did not establish with any degree of certainty that Leon Delim had not left Laoag City
on the day of the incident. Appellant Ronald Delim, in his case, said that he was home at Asan Norte
with his family when the abduction and the brutal slaying of Modesto Delim occurred. Ronald himself
confirmed, however, that Asan Norte was a mere ten-minute bicycle ride from the victim's house at
Paldit, Pangasinan. Alibi, to be believed, must invariably place the accused at such location as to
render it physically impossible for him to be at the place of the crime and, let alone, to commit the
same. The claim, upon the other hand, of appellant Marlon Delim that he was at Dumaguete City
during the fateful day of 23 to 24 January 1999 remained to be just a bare assertion; it was not
corroborated even by his sister in Dumaguete whom, he said, he worked for.

The evidence would indeed point out that Marlon, Ronald and Robert seized Modesto Delim from his
house while Leon and Manuel stood guard and stayed at the door of the victim's house. Randy
Manalo Bantas and Rita Manalo Bantas, however, could only testify on the participation of each of
the malefactors in the abduction of Modesto Delim but not on what might have happened to him
thereafter. In arriving at its verdict convicting appellants for "aggravated murder," the trial court
considered the act of the accused of forcibly taking Modesto Delim from his house as being likewise
enough to substantiate the killing by them of the victim. The conclusion could rightly be assailed.
The accounts of Randy and his mother Rita would indicate that the forcible taking of Modesto was
carried out in absolute silence, with not one of the five intruders uttering any word which could give a
clue on the reason for the abduction and, more particularly, whether the same was carried out for
the purpose of killing Modesto. The two witnesses were unaware of any existing grudge between the
malefactors and the victim that could have prompted them to violently snuff out the life of the latter.
While the motive of an accused in a criminal case might generally be immaterial, not being an
element of the crime, motive could be important and consequential when the evidence on the
commission of the crime would be short of moral certainty.7

In sustaining the conclusion of the trial court that the five accused also snuffed out the life of
Modesto Delim, the ponencia relied on circumstantial evidence testified to by Randy Bantas. He
recounted that, on the early evening of 23 January 1999, Marlon and Ronald barged into the house
of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied
Modesto. They then seized Modesto and herded him out of the house. Leon, armed with a handgun,
acted as a lookout by standing guard by the door of the house of Modesto until seven o'clock in the
morning of the next day. Rita and Randy were ordered by Leon not to leave the house as Ronald
and Marlon left the house with Modesto in tow. On the afternoon of 27 January 1999, the cadaver of
Modesto was found under the thick bushes in a grassy area in the housing project located about 200
meters away from the house of Modesto, exuding bad odor and in a state of decomposition.

The above recitals all point to only one established fact, i.e., that the accused forcibly took Modesto
Delim from his residence to an unknown destination on the night of 23 January 1999, would be
scanty to support a conclusion that the five, aside from abducting the victim, likewise killed him.
There was an unexplained gap in what ought to have been a continuous chain of events. The body
bore several defensive wounds, which could give rise to the not too unlikely scenario that Modesto
might have ultimately been released by his abductors sometime before he was killed.
Recognizing that circumstantial evidence is as strong as the weakest link, this Court is bound not to
ignore all other possibilities.8 It would seem to me that what has instead . been shown and
established beyond reasonable doubt is the guilt of appellants for the crime of kidnapping and
serious illegal detention, the whereabouts of the victim — the immediate consequence of the
abduction — for "more than three days" from the time of his abduction not having been accounted
for. The allegation in the Information that the accused "willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter," constitutes the act of deprivation of liberty and the gravamen
in the crime of kidnapping. Article 267 of the Revised Penal Code, as amended by Republic Act No.
7659, provides:

"Article 267 Kidnapping and serious illegal detention. Any private individual who shall kidnap
or detain another, or in any manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death:

"1 If the kidnapping or detention shall have lasted more than three days.

"2 If it shall have been committed simulating public authority.

"3 If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.

"4 If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, a female or a public officer.

"The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances abovementioned were present in the commission of the offense.

"When the victim is killed or dies as a consequence of the detention or is raped, or is

subjected to torture or dehumanizing acts, the maximum penalty shall be imposed."

The fact that the Information went further to charge the accused with the killing of the victim should
be of no moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated —
these being conclusions of law — but by the actual recital of facts in the complaint or information.  9

In meting upon appellants the supreme penalty of death, the trial court has appreciated five
aggravating circumstances of treachery, abuse of superior strength, nighttime, dwelling, and use of
unlicensed firearms. The Information specifies treachery, abuse of superior strength and evident
premeditation as being the aggravating circumstances in the commission of the crime. Treachery
and superior strength, however, only pertain to crimes against persons. The crime of kidnapping,
falling as it does within the classification of crimes against liberty, is aggravated neither by treachery
nor superior strength. The aggravating circumstance of evident premeditation can be appreciated
when it is shown that the culprits have previously reflected on the crime, or that they have prepared
appropriate means to execute it, coolly taking into account its consequences. The evidence is
deficient in this respect. The aggravating circumstances of nighttime, dwelling and use of unlicensed
firearms, not having been alleged in the Information, cannot be considered. The Revised Rules of
Criminal Procedure, rendered effective on 01 December 2000, 10 requires aggravating circumstances,
whether ordinary or qualifying, to be specified in the complaint or information.
The crime of kidnapping is punishable by reclusion perpetua to death. There being neither
aggravating nor mitigating circumstance that can be appreciated, the punishment that should be
imposed is the lesser penalty of reclusion perpetua than the penalty of death.11

Now, on the civil aspect of the case. The law places abundant protective shields in order to ensure
that no man shall be made to account for a crime he might not have committed or be adjudged guilty
and meted a punishment without him having first been afforded a full opportunity to defend his
cause. Thus, a conviction is pronounced only upon proof beyond reasonable doubt, preceded by
an arraignment where he pleads on the basis of a complaint or information that specifies the
gravamen of the offense and the circumstances that are said to aggravate it and then the trial where
evidence is adduced by the parties. For purposes of the civil liability, as well as its extent, civil law
principles, however, are applied, and damages might be accorded to the aggrieved party upon
a mere preponderance of evidence. There is, I believe, enough justification, albeit inadequate for
purposes of a criminal conviction, to hold appellants responsible and civilly liable for the death of
Modesto Delim whose body was found riddled with bullets a few days after being forcibly abducted
by appellants.

Consonantly, appellants should be held liable, jointly and severally, for civil indemnity of P50,000.00
for the death of the victim, moral damages in an equal amount for the mental anguish suffered by his
heirs and P25,000.00 exemplary damages because of the attendance of aggravating circumstances
that were established albeit not allowed to be considered in meting out the sentence for the crime.
Thus, in People vs. Catubig,12 the Court has said:

"The term 'aggravating circumstances' used by the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic sense. The commission of an offense
has a two-pronged effect, one on the public as it breaches the social order and the other
upon the private victim as it causes personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a graver felony
underscores the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability
which is basically a State concern, the award of damages, however, is likewise, if not
primarily, intended for the offended party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to
the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.

"Relevantly, the Revised Rules on Criminal Procedure, made effective on 01 December

2000, requires aggravating circumstances, whether ordinary or qualifying, to be stated in the
complaint or information.

"xxx           xxx           xxx

"A court would thus be precluded from considering in its judgment the attendance of
'qualifying or aggravating circumstances' if the complaint or information is bereft of any
allegation on the presence of such circumstances.
 "The retroactive application of procedural rules, nevertheless, cannot adversely affect the
rights of the private offended party that have become vested prior to the effectivity of said
rules. Thus, in the case at bar, although relationship has not been alleged in the information,
the offense having been committed, however, prior to the effectivity of the new rules, the civil
liability already incurred by appellant remains unaffected thereby."

WHEREFORE, I vote for the modification of the decision of the Regional Trial Court, Branch 46, of
Urdaneta City by instead holding appellants Ronald Delim, Marlon Delim and Leon Delim guilty
beyond reasonable doubt of the crime of Kidnapping and Serious Illegal Detention, defined and
penalized by Article 267 of the Revised Penal Code, and imposing on each of them the penalty
of reclusion perpetua, as well as by ordering said appellants to pay, jointly and severally, the heirs of
Modesto Delim the amounts of P50,000.00 civil indemnity, P50,000.00 moral damages and
P25,000.00 exemplary damages, with costs de officio.

People v. de los Santos, G.R. No. 131588, March 27, 2001

G.R. No. 131588       March 27, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GLENN DE LOS SANTOS, accused-appellant.

DAVIDE, JR., J.:

One may perhaps easily recall the gruesome and tragic event in Cagayan de Oro City, reported over
print and broadcast media, which claimed the lives of several members of the Philippine National
Police (PNP) who were undergoing an "endurance run" as part of the Special Counter Insurgency
Operation Unit Training. Not much effort was spared for the search of the one responsible therefor,
as herein accused-appellant Glenn de los Santos (hereafter GLENN) immediately surrendered to cal
authorities. GLENN was then charged with the crimes of Multiple Murder, Multiple Frustrated
Murder, and Multiple Attempted Murder in an information filed with the Regional Trial Court of
Cagayan de Oro City. The information reads as follows:

That on or about October 05, 1995, in the early morning, at Maitum Highway, within
Barangay Puerto, Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate intent to kill, taking advantage
of his driven motor vehicle, an Isuzu Elf, and with treachery, did then and there willfully,
unlawfully and feloniously kill and inflict mortal wounds from … behind in a sudden and
unexpected manner with the use of said vehicle … members of the Philippine National Police
(PNP), undergoing a Special Training Course (Scout Class 07-95), wearing black T-shirts
and black short pants, performing an "Endurance Run" of 35 kilometers coming from their
camp in Manolo Fortich, Bukidnon, heading to Regional Training Headquarters in Camp
Alagar, Cagayan de Oro City, running in a column of 3, with a distance of two feet, more or
less, from one trainee to another, thus forming a [sic] three lines, with a length of more or
less 50 meters from the 1st man to the last man, unable to defend themselves, because the
accused ran or moved his driven vehicle on the direction of the backs of the PNP joggers in
spite of the continuous warning signals made by six of the joggers, namely: PO1 Allan
Tabacon Espana, Waldon Sinda Sacro, Lemuel Ybanez Pangca, Artemio Jamil Villaflor,
Nardo Omasas Collantes and Joselito Buyser Escartin, who were at the rear echelon of said
run, acting as guards, by continuously waving their hands at the accused for him to take the
left lane of the highway, going to the City proper, from a distance of 100 meters away from
the jogger’s rear portion, but which accused failed and refused to heed; instead, he
 proceeded to operate his driven vehicle (an Isuzu Elf) on high speed directly towards the
joggers, thus forcing the rear hitting, bumping, or ramming the first four (4) victims, causing
the bodies to be thrown towards the windshields of said Isuzu Elf, breaking said windshield,
and upon being aware that bodies of the victims flew on the windshield of his driven vehicle,
instead of applying his brake, continued to travel on a high speed, this time putting off its
headlights, thus hitting the succeeding joggers on said 1st line, as a result thereof the
following were killed on the spot:

1. Vincent Labis Rosal 7. Antonio Flores Lasco

2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito

While another trainee/victim, Antonio Palomino Mino, died few days after the incident, while the
following eleven (11) other trainee/victims were seriously wounded, the accused thus performing all
the acts of execution which would produce the crime of Murder as a consequence but nevertheless
did not produce it by reason of some cause other than said accused’s spontaneous desistance, that
is, by the timely and able medical assistance rendered on the following victims which prevented their
death, to wit:

1. Rey Go Boquis 7. Melchor Hinlo

2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glade Polboroza
6. Arman Neri Hernaiz

While the following Police Officers I (POI) sustained minor injuries, to wit:

1. Romanito Andrada 6. Romualdo Cotor Dacera

2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. Flordicante Martin Piligro
After which said accused thereafter escaped from the scene of the incident, leaving behind the
victims afore-enumerated helpless.

Contrary to Article 248, in relation to Article 6 of the Revised Penal Code.

The evidence for the prosecution disclose that the Special Counter Insurgency Operation Unit
Training held at Camp Damilag, Manolo Fortich, Bukidnon, started on 1 September 1995 and was to
end on 15 October 1995. The last phase of the training was the "endurance run" from said Camp to
Camp Alagar, Cagayan de Oro City. The run on 5 October 1995 started at 2:20 a.m. The PNP
trainees were divided into three columns; the first and second of which had 22 trainees each, and
the third had 21. The trainees were wearing black T-shirts, black short pants, and green and black
combat shoes. At the start of the run, a Hummer vehicle tailed the jogging trainees. When they
reached Alae, the driver of the Hummer vehicle was instructed to dispatch advanced security at
strategic locations in Carmen Hill. Since the jogging trainees were occupying the right lane of the
highway, two rear security guards were assigned to each rear column. Their duty was to jog
backwards facing the oncoming vehicles and give hand signals for other vehicles to take the left
lane.1

Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that they were assigned as
rear guards of the first column. They recalled that from Alae to Maitum Highway, Puerto, Cagayan
de Oro City, about 20 vehicles passed them, all of which slowed down and took the left portion of the
road when signaled to do so.2

While they were negotiating Maitum Highway, they saw an Isuzu Elf truck coming at high speed
towards them. The vehicle lights were in the high beam. At a distance of 100 meters, the rear
security guards started waving their hands for the vehicle to take the other side of the road, but the
vehicle just kept its speed, apparently ignoring their signals and coming closer and closer to them.
Realizing that the vehicle would hit them, the rear guards told their co-trainees to "retract." The
guards forthwith jumped in different directions. Lemuel and Weldon saw their co-trainees being hit by
the said vehicle, falling like dominoes one after the other. Some were thrown, and others were
overrun by the vehicle. The driver did not reduce his speed even after hitting the first and second
columns. The guards then stopped oncoming vehicles to prevent their comrades from being hit
again.3

The trial court judge, together with the City Prosecutor, GLENN and his counsel, conducted an
ocular inspection of the place where the incident happened. They then proceeded to inspect the
Isuzu Elf at the police station. The City Prosecutor manifested, thus:

The vehicle which we are now inspecting at the police station is the same vehicle which
[was] involved in the October 5, 1995 incident, an Isuzu Elf vehicle colored light blue with
strips painting along the side colored orange and yellow as well as in front. We further
manifest that … the windshield was totally damaged and 2/3 portion of the front just below
the windshield was heavily dented as a consequence of the impact. The lower portion was
likewise damaged more particularly in the radiator guard. The bumper of said vehicle was
likewise heavily damaged in fact there is a cut of the plastic used as a bumper; that the right
side of the headlight was likewise totally damaged. The front signal light, right side was
likewise damaged. The side mirror was likewise totally damaged. The height of the truck
from the ground to the lower portion of the windshield is 5 ft. and the height of the truck on
the front level is 5 ft.4
PO3 Jose Cabugwas testified that he was assigned at the Investigation Division at Precinct 6,
Cagayan de Oro City, and that at 4 a.m. of 5 October 1995, several members of the PNP came to
their station and reported that they had been bumped by a certain vehicle. Immediately after
receiving the report, he and two other policemen proceeded to the traffic scene to conduct an ocular
inspection. Only bloodstains and broken particles of the hit-and-run vehicle remained on the
highway. They did not see any brake marks on the highway, which led him to conclude that the
brakes of the vehicle had not been applied. The policemen measured the bloodstains and found
them to be 70 ft. long.5

GLENN’s version of the events that transpired that evening is as follows:

At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting Galindez and the latter’s
fellow band members to provide them with transportation, if possible an Isuzu Forward, that would
bring their band instruments, band utilities and band members from Macasandig and Corrales,
Cagayan de Oro City, to Balingoan. From there, they were supposed to be taken to Mambajao,
Camiguin, to participate in the San Miguel-sponsored "Sabado Nights" of the Lanzones Festival from
5-7 October 1995. It was the thirteenth time that Enting had asked such a favor from him. 6 Since the
arrangement was to fetch Galindez and his group at 4:00 a.m. of 5 October 1995, GLENN
immediately went to Cugman, Cagayan de Oro City, to get his Isuzu Elf truck. After which, he
proceeded back to his house at Bugo, Cagayan de Oro City, and told his wife that he would go to
Bukidnon to get his aunt’s Isuzu Forward truck because the twenty band members and nine utilities
and band instruments could not be accommodated in the Isuzu Elf truck. Three of his friends asked
to go along, namely, Roldan Paltonag, Andot Peña, and a certain Akut. 7

After leaving GLENN’s house, the group decided to stop at Celebrity Plaza Restaurant. GLENN saw
his "kumpare" Danilo Cosin and the latter’s wife, and joined them at the table. GLENN finished three
bottles of pale pilsen beer. When the Cosin spouses left, GLENN joined his travelling companions at
their table. The group left at 12:00 midnight for Bukidnon. The environment was dark and foggy, with
occasional rains. It took them sometime looking for the Isuzu Forward truck. Finally, they saw the
truck in Agusan Canyon. Much to their disappointment, the said truck had mechanical problems.
Hence, GLENN decided to go back to Cagayan de Oro City to tell Enting that they would use the
Isuzu Elf truck instead.8

GLENN drove slowly because the road was slippery. The vicinity was dark: there was no moon or
star; neither were there lampposts. From the Alae junction, he and his companions used the national
highway, traversing the right lane going to Cagayan de Oro City. At the vicinity of Mambatangan
junction, as the Elf was negotiating a left curve going slightly downward, GLENN saw a very bright
and glaring light coming from the opposite direction of the national highway. GLENN blinked his
headlights as a signal for the other driver to switch his headlights from bright to dim. GLENN
switched his own lights from bright to dim and reduced his speed from 80 to 60 kilometers per hour.
It was only when the vehicles were at a distance of 10 to 15 meters from each other that the other
car’s headlights were switched from bright to dim. As a result, GLENN found it extremely hard to
adjust from high brightness to sudden darkness.9

It was while the truck was still cruising at a speed of 60 km./hr., and immediately after passing the
oncoming vehicle, that GLENN suddenly heard and felt bumping thuds. At the sound of the first
bumping thuds, GLENN put his right foot on the brake pedal. But the impact was so sudden that he
was astonished and afraid. He was trembling and could not see what were being bumped. At the
succeeding bumping thuds, he was not able to pump the brake, nor did he notice that his foot was
pushing the pedal. He returned to his senses only when one of his companions woke up and said to
him: "Gard, it seems we bumped on something. Just relax, we might all die." Due to its momentum,
the Elf continued on its track and was able to stop only when it was already very near the next
curve.10

GLENN could not distinguish in the darkness what he had hit, especially since the right headlights of
the truck had been busted upon the first bumping thuds. In his confusion and fear, he immediately
proceeded home. GLENN did not report the incident to the Puerto Police Station because he was
not aware of what exactly he had hit. It was only when he reached his house that he noticed that the
grill of the truck was broken; the side mirror and round mirror, missing; and the windshield,
splintered. Two hours later, he heard on Bombo Radyo that an accident had occurred, and he
realized that it was the PNP group that he had hit. GLENN surrendered that same day to Governor
Emano.11

The defense also presented Crescente Galindez, as well as Shirley Almazan of the PAG-ASA
Office, Cagayan de Oro City. The former testified that when he went to GLENN’s house at about
10:00 p.m. of 4 October 1995, there was heavy rain; and at 12:00 midnight, the rain was moderate.
He corroborated GLENN’s testimony that he (Cerscente) went to GLENN’s house that evening in
order to hire a truck that would bring the band instruments, band utilities and band members from
Cagayan de Oro to Camiguin for the Lanzones Festival. 12 Almazan, on the other hand, testified that
based on an observed weather report within the vicinity of Cagayan de Oro City, there was rain from
8:00 p.m. of October 1995 to 2:00 a.m. the next day; and the sky was overcast from 11:00 p.m. of 4
October 1995 to 5:00 a.m. of 5 October 1995. What she meant by "overcast" is that there was no
break in the sky; and, definitely, the moon and stars could not be seen. 13

The prosecution presented rebuttal witness Danilo Olarita whose house was just 100 meters away
from the place where the incident occurred. He testified that he was awakened on that fateful night
by a series of loud thuds. Thereafter, a man came to his house and asked for a glass of water,
claiming to have been hit by a vehicle. Danilo further stated that the weather at the time was fair, and
that the soil was dry and not muddy. 14

In its decision of 26 August 1997, the trial court convicted GLENN of the complex crime of multiple
murder, multiple frustrated murder and multiple attempted murder, with the use of motor vehicle as
the qualifying circumstance. It sentenced him to suffer the penalty of death and ordered him to
indemnify each group of the heirs of the deceased in the amount of P75,000; each of the victims of
frustrated murder in the amount of P30,000; and each of the victims of attempted murder in the
amount of P10,000.

Hence, this automatic review, wherein GLENN contends that the trial court erred (a) in finding that
he caused the Isuzu Elf truck to hit the trainees even after seeing the rear guards waving and the
PNP trainees jogging; (b) in finding that he caused the truck to run even faster after noticing the first
thuds; and (c) in finding that he could still have avoided the accident from a distance of 150 meters,
despite the bright and glaring light from the oncoming vehicle.

In convicting GLENN, the trial court found that "the accused out of mischief and dare-devilness [sic],
in the exhilaration of the night breeze and having dr[u]nk at least three bottles of beer earlier, merely
wanted to scare the rear guard[s] and see them scamper away as they saw him and his vehicle
coming at them to ram them down."15

Likewise, the OSG posits that "the evil motive of the appellant in injuring the jogging trainees
was probably brought by the fact that he had dr[u]nk a total of three (3) bottles of beer earlier before
the incident."16
Not to be outdone, the defense also advances another speculation, i.e., "the possibility that [GLENN]
could have fallen asleep out of sheer fatigue in that unholy hour of 3:30 in the early morning, and
thus was not able to stop his Isuzu Elf truck when the bumping thuds were occurring in rapid
succession; and after he was able to wake up upon hearing the shout of his companions, it was
already too late, as the bumping thuds had already occurred." 17

Considering that death penalty is involved, the trial court should have been more scrupulous in
weighing the evidence. It we are to subscribe to the trial court’s finding that GLENN must have
merely wanted to scare the rear guards, then intent to kill was wanting. In the absence of a criminal
intent, he cannot be held liable for an intentional felony. All reasonable doubt intended to
demonstrate negligence, and not criminal intent, should be indulged. 18

From the convergence of circumstances, we are inclined to believe that the tragic event was more a
product of reckless imprudence than of a malicious intent on GLENN’s part.

First, as testified to by prosecution rebuttal witness Danilo Olarita, the place of the incident was "very
dark," as there was no moon. And according to PAG-ASA’s observed weather report within the
vicinity of Cagayan de Oro City covering a radius of 50 kilometers, at the time the event took place,
the sky was overcast, i.e., there was absolutely no break in the thick clouds covering the celestial
dome globe; hence, there was no way for the moon and stars to be seen. Neither were there
lampposts that illuminated the highway. 1âwphi1.nêt

Second, the jogging trainees and the rear guards were all wearing black T-shirts, black short pants,
and black and green combat shoes, which made them hard to make out on that dark and cloudy
night. The rear guards had neither reflectorized vests or gloves nor flashlights in giving hand signals.

Third, GLENN was driving on the proper side of the road, the right lane. On the other hand, the
jogging trainees were occupying the wrong lane, the same lane as GLENN’s vehicle was traversing.
Worse, they were facing the same direction as GLENN’s truck such that their backs were turned
towards the oncoming vehicles from behind.

Fourth, no convincing evidence was presented to rebut GLENN’s testimony that he had been
momentarily blinded by the very bright and glaring lights of the oncoming vehicle at the opposite
direction as his truck rounded the curve. He must have been still reeling from the blinding effect of
the lights coming from the other vehicle when he plowed into the group of police trainees.

Indeed, as pointed out by appellant, instinct tells one ‘to stop or swerve to a safe place the moment
he sees a cow, dog, or cat on the road, in order to avoid bumping or killing the same"; and more so if
the one on the road is a person. It would therefore be inconceivable for GLENN, then a young
college graduate with a pregnant wife and three very young children who were dependent on him for
support, to have deliberately hit the group with his truck.

The conclusion of the trial court and the OSG the GLENN intentionally rammed and hit the jogging
trainees was premised on the assumption that despite the first bumping thuds, he continued to
accelerate his vehicle instead of applying his brakes, as shown by the absence of brake marks or
skid marks along the traffic scene.

For its part, the defense attributed the continuous movement of GLENN’s vehicle to the confluence
of the following factors:
 1. The Isuzu Elf truck, a huge vehicle, was moving fast that even if the brakes were applied
the truck would have still proceeded further on account of its momentum, albeit at a reduced
speed, and would have stopped only after a certain distance.

2. The national highway, from Alae to Puerto, Cagayan de Oro City, was made of fine and
smooth asphalt, free from obstructions on the road such as potholes or excavations.
Moreover, the highway was going a little bit downward, more particularly from the first curve
to the place of incident. Hence, it was easier and faster to traverse a distance "20 to 25
meters which was the approximate aggregate distance" from the first elements up to the
22nd or 23rd elements of the columns.

3. The weight of each of the trainees (the average of which could be 50 kilograms only)
could hardly make an impact on the 3,900 kilograms truck, which was moving at a speed
ranging from 60 to 70 kilometers per hour.

4. Considering that the width of the truck from the right to the left tires was wide and the
under chassis was elevated, the truck could just pass over two persons lying flat on the
ground without its rubber tires running over the bodies. Thus, GLENN would not notice any
destabilization of the rubber tires.

5. Since the police trainees were jogging in the same direction as the truck was proceeding,
the forward movements constituted a force parallel to the momentum of the forward-moving
truck such that there was even much lesser force resisting the said ongoing momentum.

It is a well-entrenched rule that if the inculpatory facts are capable of two or more explanations – one
consistent with the innocence or lesser degree of liability of the accused, and the other consistent
with his guilt or graver responsibility – the Court should adopt the explanation which is more
favorable to the accused.19

We are convinced that the incident, tragic though it was in light of the number of persons killed and
seriously injured, was an accident and not an intentional felony. It is significant to note that there is
no shred of evidence that GLENN had an axe to grind against the police trainees that would drive
him into deliberately hitting them with intent to kill.

Although proof of motive is not indispensable to a conviction especially where the assailant is
positively identified, such proof is, nonetheless, important in determining which of two conflicting
theories of the incident is more likely to be true.20 Thus, in People v. Godinez,21 this Court said that
the existence of a motive on the part of the accused becomes decisive in determining the probability
or credibility of his version that the shooting was purely accidental.

Neither is there any showing of "a political angle of a leftist-sponsored massacre of police elements
disguised in a vehicular accident." 22 Even if there be such evidence, i.e., that the motive of the killing
was in furtherance of a rebellion movement, GLENN cannot be convicted because if such were the
case, the proper charge would be rebellion, and not murder. 23

GLENN’s offense is in failing to apply the brakes, or to swerve his vehicle to the left or to a safe
place the movement he heard and felt the first bumping thuds. Had he done so, many trainees would
have been spared.

We have once said:

 A man must use common sense, and exercise due reflection in all his acts; it is his duty to be
cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment.
He is responsible for such results as anyone might foresee and for acts which no one would
have performed except through culpable abandon. Otherwise his own person, rights and
property, and those of his fellow-beings, would ever be exposed to all manner of danger and
injury.24

The test for determining whether a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: Could a prudent man, in the position of the person
to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence
of the course actually pursued? If so, the law imposes a duty on the actor to refrain from that course
or to take precautions to guard against its mischievous results, and the failure to do so constitutes
negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this
prevision, is always necessary before negligence can be held to exist. 25

GLENN showed an inexcusable lack of precaution. Article 365 of the Revised Penal Code states
that reckless imprudence consists in voluntarily, but without malice, 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, taking into consideration (1) his employment or occupation;
(2) his degree of intelligence; (4) his physical condition; and (3) other circumstances regarding
persons, time and place.

GLENN, being then a young college graduate and an experienced driver, should have known to
apply the brakes or swerve to a safe place immediately upon hearing the first bumping thuds to
avoid further hitting the other trainees. By his own testimony, it was established that the road was
slippery and slightly going downward; and, worse, the place of the incident was foggy and dark. He
should have observed due care in accordance with the conduct of a reasonably prudent man, such
as by slackening his speed, applying his brakes, or turning to the left side even if it would mean
entering the opposite lane (there being no evidence that a vehicle was coming from the opposite
direction). It is highly probable that he was driving at high speed at the time. And even if he was
driving within the speed limits, this did not mean that he was exercising due care under the existing
circumstances and conditions at the time.

Considering that the incident was not a product of a malicious intent but rather the result of a single
act of reckless driving, GLENN should be held guilty of the complex crime of reckless imprudence
resulting in multiple homicide with serious physical injuries and less serious physical injuries.

Article 48 of the Revised Penal Code provides that when the single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.
Since Article 48 speaks of felonies, it is applicable to crimes through negligence in view of the
definition of felonies in Article 3 as "acts or omissions punishable by law" committed either by means
of deceit {dolo) or fault (culpa).26 In Reodica v. Court of Appeals,27 we ruled that if a reckless,
imprudent, or negligent act results in two or more grave or less grave felonies, a complex crime is
committed. Thus, in Lapuz v. Court of Appeals,28 the accused was convicted, in conformity with
Article 48 of the Revised Penal Code, of the complex crime of "homicide with serious physical
injuries and damage to property through reckless imprudence," and was sentenced to a single
penalty of imprisonment, instead of the two penalties imposed by the trial court. Also, in Soriao v.
Court of Appeals,29 the accused was convicted of the complex crime of "multiple homicide with
damage to property through reckless imprudence" for causing a motor boat to capsize, thereby
drowning to death its twenty-eight passengers.
The slight physical injuries caused by GLENN to the ten other victims through reckless imprudence,
would, had they been intentional, have constituted light felonies. Being light felonies, which are not
covered by Article 48, they should be treated and punished as separate offenses. Separate
informations should have, therefore, been filed.

It must be noted that only one information (for multiple murder, multiple frustrated murder and
multiple attempted murder) was filed with the trial court. However, nothing appears in the record that
GLENN objected to the multiplicity of the information in a motion to quash before his arraignment.
Hence, he is deemed to have waived such defect. 30 Under Section 3, Rule 120 of the Rules of Court,
when two or more offenses are charged in a single complaint or information and the accused fails to
object to it before trial, the court may convict the accused of as many offenses as are charged and
proved, and impose on him the penalty for each of them.

Now, we come to the penalty. Under Article 365 of the Revised Penal Code, any person who, by
reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave
felony shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its
medium period; and if it would have constituted a light felony, the penalty of arresto menor in its
maximum period shall be imposed. The last paragraph thereof provides that the penalty next higher
in degree shall be imposed upon the offender who fails to lend on the spot to the injured parties such
help as may be in his hand to give. This failure to render assistance to the victim, therefore,
constitutes a qualifying circumstance because the presence thereof raises the penalty by one
degree.31 Moreover, the fifth paragraph thereof provides that in the imposition of the penalty, the
court shall exercise its sound discretion without regard to the rules prescribed in Article 64. Elsewise
stated, in felonies through imprudence or negligence, modifying circumstances need not be
considered in the imposition of the penalty.32

In the case at bar, it has been alleged in the information and proved during the trial that GLENN
"escaped from the scene of the incident, leaving behind the victims." It being crystal clear that
GLENN failed to render aid to the victims, the penalty provided for under Article 365 shall be raised
by one degree. Hence, for reckless imprudence resulting in multiple homicide with serious physical
injuries and less serious physical injuries, the penalty would be prision correccional in its maximum
period to prision mayor in its medium period. Applying Article 48, the maximum of said penalty,
which is prision mayor in its medium period, should be imposed. For the separate offenses of
reckless imprudence resulting in slight physical injuries, GLENN may be sentenced to suffer, for
each count, the penalty of arresto mayor in its minimum period.

Although it was established through the testimonies of prosecution witness Lemuel Pangca 33 and of
GLENN that the latter surrendered to Governor Emano of Misamis Oriental, such mitigating
circumstance need not be considered pursuant to the aforestated fifth paragraph of Article 365.

Under the Indeterminate Sentence Law, GLENN may be sentenced to suffer an indeterminate
penalty whose minimum is within the range of the penalty next lower in degree to that prescribed for
the offense, and whose maximum is that which could properly be imposed taking into account the
modifying circumstances. Hence, for the complex crime of reckless imprudence resulting in multiple
homicide with serious physical injuries and less serious physical injuries, qualified by his failure to
render assistance to the victims, he may be sentenced to suffer an indeterminate penalty ranging
from arresto mayor in its maximum period to prision correccional in its medium period, as minimum,
to prision mayor in its medium period, as maximum. As to the crimes of reckless imprudence
resulting in slight physical injuries, since the maximum term for each count is only two months the
Indeterminate Sentence Law will not apply.
As far as the award of damages is concerned, we find a necessity to modify the same. Conformably
with current jurisprudence,34 we reduce the trial court’s award of death indemnity from P75,000 to
P50,000 for each group of heirs of the trainees killed. Likewise, for lack of factual basis, we delete
the awards of P30,000 to each of those who suffered serious physical injuries and of P10,000 to
each of those who suffered minor physical injuries.

WHEREFORE, the decision of the Regional Trial Court, Branch 38, Cagayan de Oro City, is
hereby SET ASIDE, and another one is rendered holding herein accused-appellant GLENN DE LOS
SANTOS guilty beyond reasonable doubt of (1) the complex crime of reckless imprudence resulting
in multiple homicide with serious physical injuries and less serious physical injuries, and sentencing
him to suffer an indeterminate penalty of four (4) years of prision correccional, as minimum, to ten
(10) years of prision mayor, as maximum; and (2) ten (10) counts of reckless imprudence resulting in
slight physical injuries and sentencing him, for each count, to the penalty of two (2) months
of arresto mayor. Furthermore, the awards of death indemnity for each group of heirs of the trainees
killed are reduced to P50,000; and the awards in favor of the other victims are deleted. Costs against
accused-appellant. 1âwphi1.nêt

SO ORDERED.

People v. Yatar, G.R. No. 150224, May 19, 2004

G.R. No. 150224             May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JOEL YATAR alias "KAWIT", appellant.

DECISION

PER CURIAM:

On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch
25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with
Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the
amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the
amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting
to P511,410.00, and costs of litigation. 1

Appellant was charged with Rape with Homicide under the following Information:

That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within
the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a
certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with
use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death
of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and
feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D.
Uba against her will.

CONTRARY TO LAW.2

The facts are:

 On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old
Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in
Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar,
to her husband, appellant Joel Yatar, through Kathylyn’s friend, Cecil Casingan. Kathylyn
handed the letter to appellant earlier that morning. 3

At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their
farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn
told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave,
she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania.
Kathylyn was left alone in the house.4

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of
Isabel. They saw appellant at the back of the house. They went inside the house through the back
door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he
replied that he was getting lumber to bring to the house of his mother. 5

At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the
ladder from the second floor of the house of Isabel Dawang and run towards the back of the
house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants,
pacing back and forth at the back of the house. She did not find this unusual as appellant and his
wife used to live in the house of Isabel Dawang. 7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was
wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting
the lumber he had stacked, and that Isabel could use it. She noticed that appellant’s eyes were
"reddish and sharp." Appellant asked her where her husband was as he had something important to
tell him. Judilyn’s husband then arrived and appellant immediately left and went towards the back of
the house of Isabel.8

In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house
were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was
open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still
empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She
found that the door was tied with a rope, so she went down to get a knife. While she groped in the
dark, she felt a lifeless body that was cold and rigid. 9

Isabel moved her hand throughout the entire body. She found out that it was the naked body of her
granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a
flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her
intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A
daughter of Isabel, Cion, called the police.10

At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in
Isabel Dawang’s house. Together with fellow police officers, Faniswa went to the house and found
the naked body of Kathylyn Uba with multiple stab wounds.

The people in the vicinity informed the police officers that appellant was seen going down the ladder
of the house of Isabel Dawang at approximately 12:30 p.m.
The police discovered the victim’s panties, brassiere, denim pants, bag and sandals beside her
naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood
within 50 meters from the house of Isabel.

When questioned by the police authorities, appellant denied any knowledge of Kathylyns’s
death,11 however, he was placed under police custody.

On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar
Abagan accompanied him to the toilet around seven to ten meters away from the police station.
They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He’s running away!). Police
Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running
away. Appellant was approximately 70 meters away from the station when Police Officer Abagan
recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21,
1998, appellant pleaded "not guilty."

After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under
Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-
Rape Law of 1997, and was accordingly, sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his
Brief, appellant assigns the following errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE
PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.

II

THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-

APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellant’s contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved against
appellant. This Court will not interfere with the judgment of the trial court in determining the credibility
of witnesses unless there appears in the record some fact or circumstance of weight and influence
which has been overlooked or the significance of which has been misinterpreted. 13 Well-entrenched
is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on
appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of
the same; the reason being that the former is in a better and unique position of hearing first hand the
witnesses and observing their deportment, conduct and attitude. 14 Absent any showing that the trial
judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would
affect the result of the case, the trial judge’s assessment of credibility deserves the appellate court’s
highest respect.15 Where there is nothing to show that the witnesses for the prosecution were
actuated by improper motive, their testimonies are entitled to full faith and credit. 16

The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which
provides that an accused can be convicted even if no eyewitness is available, as long as sufficient
circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused
committed the crime.17
Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5)
incised, were found on the victim’s abdomen and back, causing a portion of her small intestines to
spill out of her body.18 Rigor mortis of the vicitm’s body was complete when Dr. Bartolo examined the
victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from
between nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the
estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was
within the timeframe within which the lone presence of appellant lurking in the house of Isabel
Dawang was testified to by witnesses.

It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej
Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the
victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his
testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done
through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by
the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling
in her right forearm indicating resistance to the appellant’s assault on her virtue. 22

Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm
specimen from the vagina of the victim was identical the semen to be that of appellant’s gene type.

DNA is a molecule that encodes the genetic information in all living organisms. 23 A person’s DNA is
the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s
blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax,
mucus, urine, skin tissue, and vaginal and rectal cells. 24 Most importantly, because of polymorphisms
in human genetic structure, no two individuals have the same DNA, with the notable exception of
identical twins.25

DNA print or identification technology has been advanced as a uniquely effective means to link a
suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been
left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory
and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime
committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent,
and ensuring the proper administration of justice in every case.

DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from
suspicion in the same principle as fingerprints are used. 26 Incidents involving sexual assault would
leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the
victim’s body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could
also be transferred to the victim’s body during the assault. 27 Forensic DNA evidence is helpful in
proving that there was physical contact between an assailant and a victim. If properly collected from
the victim, crime scene or assailant, DNA can be compared with known samples to place the
suspect at the scene of the crime. 28

The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case,
used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR)
analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially
within hours. Thus, getting sufficient DNA for analysis has become much easier since it became
possible to reliably amplify small samples using the PCR method.

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following
factors: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the analyst who conducted
the tests.29

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as
an expert witness on DNA print or identification techniques. 30 Based on Dr. de Ungria’s testimony, it
was determined that the gene type and DNA profile of appellant are identical to that of the extracts
subject of examination.31 The blood sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical
with semen taken from the victim’s vaginal canal. 32 Verily, a DNA match exists between the semen
found in the victim and the blood sample given by the appellant in open court during the course of
the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the
Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted
waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed
in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable. Judges, under Daubert, were
allowed greater discretion over which testimony they would allow at trial, including the introduction of
new kinds of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief
in its existence or non-existence.34 Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a
quo is relevant and reliable since it is reasonably based on scientifically valid principles of human
genetics and molecular biology.

Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal, the
trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction
beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang
together with the victim, Kathylyn Uba; (2) In June 1998, appellant’s wife left the house because of
their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his
estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania
and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang,
acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going
down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30
p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a
was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the
ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the
second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay
naked in a pool of blood with her intestines protruding from her body on the second floor of the
house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the
periphery; (10) Laboratory examination revealed sperm in the victim’s vagina (Exhibit "H" and "J");
(11) The stained or dirty white shirt found in the crime scene was found to be positive with blood;
(12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical;
and (13) Appellant escaped two days after he was detained but was subsequently apprehended,
such flight being indicative of guilt.35

Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which
leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the
perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three
requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences
are derived are proven; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.36

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from
him as well as the DNA tests were conducted in violation of his right to remain silent as well as his
right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.

This contention is untenable. The kernel of the right is not against all compulsion, but against
testimonial compulsion.37 The right against self- incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object evidence.

We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were
forcibly taken from him and submitted to the National Bureau of Investigation for forensic
examination, the hair samples may be admitted in evidence against him, for what is proscribed is the
use of testimonial compulsion or any evidence communicative in nature acquired from the accused
under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and
DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately
after the incident, the police authorities took pictures of the accused without the presence of counsel,
we ruled that there was no violation of the right against self-incrimination. The accused may be
compelled to submit to a physical examination to determine his involvement in an offense of which
he is accused.

It must also be noted that appellant in this case submitted himself for blood sampling which was
conducted in open court on March 30, 2000, in the presence of counsel.

Appellant further argues that the DNA tests conducted by the prosecution against him are
unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post
facto law.

This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA
typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of
Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a
factual determination of the probative weight of the evidence presented.

Appellant’s twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and
bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house
during the time when the crime was committed, undeniably link him to the June 30, 1998 incident.
Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two
places at the same time, especially in this case where the two places are located in the same
barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and
requires a mere five minute walk to reach one house from the other. This fact severely weakens
his alibi.

As to the second assignment of error, appellant asserts that the court a quo committed reversible
error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable
doubt.
Appellant’s assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere
conjectures or suppositions. The legal relevancy of evidence denotes "something more than a
minimum of probative value," suggesting that such evidentiary relevance must contain a "plus
value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight
value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus
value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial
court to balance the probative value of such evidence against the likely harm that would result from
its admission.

The judgment in a criminal case can be upheld only when there is relevant evidence from which the
court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond
reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is
that degree of certainty that convinces and directs the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable
doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and
tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else,
committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that
the present case passes the test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond
reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the
culprit.44

Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw
the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang. 45 She witnessed the
appellant running down the stairs of Isabel’s house and proceeding to the back of the same
house.46 She also testified that a few days before the victim was raped and killed, the latter revealed
to her that "Joel Yatar attempted to rape her after she came from the school." 47 The victim told
Judilyn about the incident or attempt of the appellant to rape her five days before her naked and
violated body was found dead in her grandmother’s house on June 25, 1998. 48 In addition, Judilyn
also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her
husband, "this Joel Yatar threatened to kill our family." 49 According to Judilyn, who was personally
present during an argument between her aunt and the appellant, the exact words uttered by
appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your
relatives x x x."50 These statements were not contradicted by appellant.

Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is a
rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses
on the acts or statements of the accused before or immediately after the commission of the offense,
deeds or words that may express it or from which his motive or reason for committing it may be
inferred.51

Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special
complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or
on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips by
stabbing her repeatedly, thereby causing her untimely demise.

The following are the elements constitutive of rape with homicide: (1) the appellant had carnal
knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or
intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force,
threat or intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as
the victim’s father, step-father, uncle, or the common-law spouse of her mother, it is not necessary
that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of
violence and intimidation.54 The fact that the victim’s hymen is intact does not negate a finding that
rape was committed as mere entry by the penis into the lips of the female genital organ, even
without rupture or laceration of the hymen, suffices for conviction of rape. 55 The strength and
dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during
intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the
victim is of tender age.56

In the case at bar, appellant is the husband of the victim’s aunt. He is seven years older than the
victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-
law, together with the victim and his wife. After the separation, appellant moved to the house of his
parents, approximately one hundred (100) meters from his mother-in-law’s house. Being a relative
by affinity within the third civil degree, he is deemed in legal contemplation to have moral
ascendancy over the victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or
on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court
maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty,
they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the
death penalty can be lawfully imposed in the case at bar.

As to damages, civil indemnity ex delicto of P100,000.00, 57 actual damages incurred by the family of
the victim that have been proved at the trial amounting to P93,190.00, 58 and moral damages of
P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary
damages cannot be awarded as part of the civil liability since the crime was not committed with one
or more aggravating circumstances.60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch
25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special
complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he
be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of
P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of
exemplary damages is DELETED.

Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as
amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the
President of the Philippines for the possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.

Ivler v. San Pedro, G.R. No. 172716, November 17, 2010

G.R. No. 172716               November 17, 2010

JASON IVLER y AGUILAR, Petitioner,

vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court,
Branch 71, Pasig City, and EVANGELINE PONCE, Respondents.

DECISION

CARPIO, J.:

The Case

The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-
silencio a lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second
prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite
the accused’s previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries
arising from the same incident grounding the second prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before
the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1)
Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries
sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence
Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of
respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle.
Petitioner posted bail for his temporary release in both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was
meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the
same offense of reckless imprudence.

The MeTC refused quashal, finding no identity of offenses in the two cases. 3

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial
Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile,
petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366,
including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question.
Without acting on petitioner’s motion, the MeTC proceeded with the arraignment and, because of
petitioner’s absence, cancelled his bail and ordered his arrest. 4 Seven days later, the MeTC issued a
resolution denying petitioner’s motion to suspend proceedings and postponing his arraignment until
after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion
remained unresolved.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of
S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its
ruling on petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order
to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus,
without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner
sought reconsideration but this proved unavailing. 6

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to
forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case
from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because
his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal
of a judgment of conviction.7

Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been
previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence
charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such
crime are material only to determine his penalty.

Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s
standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s
attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be
complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366
for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to
property.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a
comment to the petition as the public respondent judge is merely a nominal party and private
respondent is represented by counsel.

The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief
in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment
in Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s constitutional right under
the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366.

The Ruling of the Court

We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not
divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by
the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment
for the same offense bars further proceedings in Criminal Case No. 82366.

Petitioner’s Non-appearance at the Arraignment in

Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of
his bail bond are governed by the second paragraph of Section 8, Rule 124, 8 in relation to Section 1,
Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals
to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes
from prison or confinement, jumps bail or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of
convictions.

The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-arraignment
ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal
Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTC’s reliance
on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition
contrary to the RTC’s ruling. There, the Court granted review to an appeal by an accused who was
sentenced to death for importing prohibited drugs even though she jumped bail pending trial and
was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of
death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124. 10

The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal
Case No. 82366 as proof of his loss of standing becomes more evident when one considers the
Rules of Court’s treatment of a defendant who absents himself from post-arraignment hearings.
Under Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the defendant’s absence
merely renders his bondsman potentially liable on its bond (subject to cancellation should the
bondsman fail to produce the accused within 30 days); the defendant retains his standing and,
should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the
30-day period granted to the bondsman to produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s status to that of a fugitive without standing.

Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the
scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment,
petitioner sought the suspension of the MeTC’s proceedings in Criminal Case No. 82366 in light of
his petition with the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the
order for which was released days after the MeTC ordered petitioner’s arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of this petition.

Petitioner’s Conviction in Criminal Case No. 82367

Bars his Prosecution in Criminal Case No. 82366

The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the
same offense"13 protects him from, among others, post-conviction prosecution for the same offense,
with the prior verdict rendered by a court of competent jurisdiction upon a valid information. 14 It is not
disputed that petitioner’s conviction in Criminal Case No. 82367 was rendered by a court of
competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal
Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the
affirmative view, submitting that the two cases concern the same offense of reckless imprudence.
The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is
an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to
Property "as the [latter] requires proof of an additional fact which the other does not." 15

We find for petitioner.

Reckless Imprudence is a Single Crime,

its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were prosecuted under the same
provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing
quasi-offenses. The text of the provision reads:

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

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

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in no case be less than twenty-five
pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without regard to
the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in the
first two paragraphs of this article, in which case the court shall impose the penalty next
lower in degree than that which should be imposed in the period which they may deem
proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law, to death of
a person shall be caused, in which case the defendant shall be punished by prision
correccional in its medium and maximum periods.

Reckless imprudence consists in voluntary, but without malice, 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, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and
place.

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

The penalty next higher in degree to those provided for in this article shall be imposed upon the
offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the
penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a
modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic
rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless
imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the
mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These
structural and conceptual features of quasi-offenses set them apart from the mass of intentional
crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our penal laws, is nothing new. As early as
the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v.
Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself
but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in
quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as
distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal
intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a
crime in itself but simply a way of committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately
from willful offenses. It is not a mere question of classification or terminology. In intentional crimes,
the act itself is punished; in negligence or imprudence, what is principally penalized is the mental
attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible. x x x x

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the
penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the
lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory
would require that the corresponding penalty should be fixed in proportion to the penalty prescribed
for each crime when committed willfully. For each penalty for the willful offense, there would then be
a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365)
fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional
[medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the
latter could range all the way from prision mayor to death, according to the case. It can be seen that
the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in
relation to a whole class, or series, of crimes.18 (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their commission
results in damage, either to person or property.19

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for
"Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges
for Malicious Mischief, an intentional crime conceptually incompatible with the element of
imprudence obtaining in quasi-crimes.

Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since
repeatedly reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement
in People v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of
committing it x x x,"23 has long been abandoned when the Court en banc promulgated Quizon in
1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller’s
conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species
of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of
criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article
48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of
quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of
jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions
for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense
alleging another resulting act but arising from the same reckless act or omission upon which the
second prosecution was based.

Prior Conviction or Acquittal of

Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not
merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its various resulting acts,
undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article
365 starting with People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice
Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence"
because a prior case against the same accused for "reckless driving," arising from the same act
upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the
same legal question was brought before the Court, that is, whether prior conviction or acquittal of
reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the
consequences alleged for both charges, the Court unfailingly and consistently answered in the
affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v.
Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas 28 (promulgated in
1960 by the Court en banc, per Bengzon J.), People v. Silva 29 (promulgated in 1962 by the Court en
banc, per Paredes, J.), People v. Macabuhay 30 (promulgated in 1966 by the Court en banc, per
Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals 32 (promulgated in 1982 by the Court en banc, per Relova,
J.), and People v. City Court of Manila 33 (promulgated in 1983 by the First Division, per Relova, J.).
These cases uniformly barred the second prosecutions as constitutionally impermissible under the
Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the Double
Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where,
in barring a subsequent prosecution for "serious physical injuries and damage to property thru
reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru
reckless imprudence," with both charges grounded on the same act, the Court explained: 34

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.35 x x x (Emphasis supplied)

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion
the reasoning of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding
Diaz by more than a decade, El Pueblo de Filipinas v. Estipona, 36 decided by the pre-war colonial
Court in November 1940, allowed the subsequent prosecution of an accused for reckless
imprudence resulting in damage to property despite his previous conviction for multiple physical
injuries arising from the same reckless operation of a motor vehicle upon which the second
prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence
suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in
Buerano.37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to
property for reckless imprudence" despite his prior conviction for "slight and less serious physical
injuries thru reckless imprudence," arising from the same act upon which the second charge was
based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan: 38

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of
People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22
SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that –

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.

xxxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court
of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents
his being prosecuted for serious physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the consequences of one and the
same vehicular accident, because the second accusation places the appellant in second jeopardy
for the same offense.39 (Emphasis supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona.

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva,
joined causes with the accused, a fact which did not escape the Court’s attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12,
1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea
of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal
Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence
should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless
act resulted into homicide and physical injuries. then the same consequence must perforce follow
where the same reckless act caused merely damage to property-not death-and physical injuries.
Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any
amount of damages caused to a motors vehicle arising from the same mishap." 40 (Emphasis
supplied)

Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his
favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence
could not be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in two separate Informations with "Slight
Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the
latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on
reconsideration, found merit in the accused’s claim and dismissed the second case. In affirming the
trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v.
Belga:42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case,
holding: —

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in
People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of
the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence
arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without
the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal
complaints were filed in the same justice of the peace court, in connection with the same collision
one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner
of one of the vehicles involved in the collision, and another for multiple physical injuries through
reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of
these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to
quash the complaint for multiple physical injuries through reckless imprudence filed against him by
the injured passengers, contending that the case was just a duplication of the one filed by the Chief
of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose
Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless imprudence filed by one of the owners
of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay
after Jose Belga had waived the second stage of the preliminary investigation. After such remand,
the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for
physical injuries through reckless imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the
defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov.
Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: .

The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of
police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to
property through reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was
charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised
Motor Vehicle Law, for having driven an automobile in a ῾fast and reckless manner ... thereby
causing an accident.’ After the accused had pleaded not guilty the case was dismissed in that court
῾for failure of the Government to prosecute’. But some time thereafter the city attorney filed an
information in the Court of First Instance of Rizal, charging the same accused with damage to
property thru reckless imprudence. The amount of the damage was alleged to be ₱249.50. Pleading
double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the
ruling. Among other things we there said through Mr. Justice Montemayor —

The next question to determine is the relation between the first offense of violation of the Motor
Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to
property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of
double jeopardy is whether or not the second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another
test is whether the evidence which proves one would prove the other that is to say whether the facts
alleged in the first charge if proven, would have been sufficient to support the second charge and
vice versa; or whether one crime is an ingredient of the other. x x x

xxxx

The foregoing language of the Supreme Court also disposes of the contention of the prosecuting
attorney that the charge for slight physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries through reckless imprudence in this
case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution’s
contention might be true. But neither was the prosecution obliged to first prosecute the accused for
slight physical injuries through reckless imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the
more serious charge of homicide with serious physical injuries through reckless imprudence which
arose out of the same alleged reckless imprudence of which the defendant have been previously
cleared by the inferior court.43

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for
the purpose of delimiting or clarifying its application." 44 We declined the invitation, thus:

The State in its appeal claims that the lower court erred in dismissing the case, on the ground of
double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical
Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits
that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the
order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-
examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga
case, the facts of which are analogous or similar to those in the present case, will yield no practical
advantage to the government. On one hand, there is nothing which would warrant a delimitation or
clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated
the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669,
April 30, 1959.45 (Emphasis supplied)

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems
from persistent but awkward attempts to harmonize conceptually incompatible substantive and
procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and
Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural
device allowing single prosecution of multiple felonies falling under either of two categories: (1) when
a single act constitutes two or more grave or less grave felonies (thus excluding from its operation
light felonies46); and (2) when an offense is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the penalty for the most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental
attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x," 47 a single
mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one
quasi-crime resulting in one or more consequences.

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single
prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code,
when proper; Article 365 governs the prosecution of imprudent acts and their consequences.
However, the complexities of human interaction can produce a hybrid quasi-offense not falling under
either models – that of a single criminal negligence resulting in multiple non-crime damages to
persons and property with varying penalties corresponding to light, less grave or grave offenses. The
ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should
Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal)
consequences (excluding those amounting to light offenses which will be tried separately)? Or
should the prosecution proceed under a single charge, collectively alleging all the consequences of
the single quasi-crime, to be penalized separately following the scheme of penalties under Article
365?

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue
of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple
consequences48 unless one consequence amounts to a light felony, in which case charges were split
by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the
charge with the second level courts and, on the other hand, resulting acts amounting to light felonies
and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly
sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691, 50 the MeTC
has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is
prision correccional in its medium period.

Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized
under Article 365 involves only resulting acts penalized as grave or less grave felonies because
there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one
of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less
grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light
offense is tried separately from the resulting acts penalized as grave or less grave offenses.

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects
of the quasi-crime collectively alleged in one charge, regardless of their number or
severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose, 52 we interpreted
paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in
damage to property and less serious physical injuries," as follows:

[T]he third paragraph of said article, x x x reads as follows:

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damage to three times such value, but which shall in no case be less than 25 pesos.
The above-quoted provision simply means that if there is only damage to property the amount fixed
therein shall be imposed, but if there are also physical injuries there should be an additional penalty
for the latter. The information cannot be split into two; one for the physical injuries, and another for
the damage to property, x x x.53 (Emphasis supplied)

By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands
choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime
by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize
a quasi-crime, abandon its present framing under Article 365, discard its conception under the
Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the
application of Article 48 in the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number and severity, separately penalize
each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted
under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line
of cases.1avvphi1

A becoming regard of this Court’s place in our scheme of government denying it the power to make
laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional
felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article
365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or
more grave or less grave felonies; or (2) an offense which is a necessary means for committing
another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s argument that
double jeopardy does not bar a second prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could not be joined with the other charge
for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal
Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless
imprudence could not be joined with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or
less grave felonies. This same argument was considered and rejected by this Court in the case of
People vs. [Silva] x x x:

[T]he prosecution’s contention might be true. But neither was the prosecution obliged to first
prosecute the accused for slight physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries through reckless imprudence. Having
first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a
position to press in this case the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged reckless imprudence of which the
defendant has been previously cleared by the inferior court.

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x
of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted
for serious physical injuries through reckless imprudence in the Court of First Instance of the
province, where both charges are derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under
Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of
constitutionally impermissible second prosecutions are avoided, not to mention that scarce state
resources are conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless
of the number or severity of the consequences. In imposing penalties, the judge will do no more than
apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall
be no splitting of charges under Article 365, and only one information shall be filed in the same first
level court.55

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler
protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby
denied the beneficent effect of the favorable sentencing formula under Article 48, but any
disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-
crime effects qualifying as "light offenses" (or, as here, for the more serious consequence
prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed
under a single prosecution of all resulting acts, whether penalized as grave, less grave or light
offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should
cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2

May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in
Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial
Court of Pasig City, Branch 71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.

a. Classification of felonies (grave, less grave and light felonies)

b. Aberratio ictus, error in personae, and praeter intentionem

Baxinela v. People, G.R. No. 149652, March 24, 2006

G.R. No. 149652             March 24, 2006

EDUARDO L. BAXINELA, Petitioner-Appellant,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.

DECISION

AZCUNA, J.:
Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by the Regional
Trial Court of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as affirmed with modification by the
Court of Appeals (CA) in CA-G.R. CR No. 23348.

On February 19, 1997, an Information charging Baxinela with the crime of homicide was filed as
follows:2

That on or about the 19th day of October , 1996, early in the morning, at Poblacion, Municipality of
Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, while armed with a handgun, without justifiable cause and with
intent to kill, did then and there wi[l]lfully, unlawfully and feloniously attack, assault and shoot one
RUPERTO F. LAJO, thereby inflicting upon the latter mortal wounds, to wit:

"A. EXTERNAL FINDINGS:

= .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture
of the left humerus.

= 1 cm exit wound proximal third medial aspect left arm.

= 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest.

B. INTERNAL FINDINGS

= One liter of flood left thoracic cavity

= Perforated left diaphragm.

= One – two liters of blood in the abdominal cavity.

= 2 point perforation stomach

= Multiple perforation small, and large intestines and mesenteries.

= (+) Retroperitonial hematoma

DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L)
thoracic cavity perforating the diaphragm, abdomen, stomach and, intestines and
retroperitoneum with slugs lodging the vertebral colum[n].

CAUSE OF DEATH: Cardiopulmonary arrest

Secondary to severe bleeding

Secondary to gunshot wound."

as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S. Tumbokon
Memorial Hospital, Kalibo, Aklan, which wounds directly caused the death of RUPERTO F. LAJO, as
per Certificate of Death, hereto attached as Annexes "A" and "B" and forming part of this
Information.
That as a result of the criminal acts of the accused the heirs of the deceased suffered actual and
compensatory damages in the amount of FIFTY THOUSAND PESOS (P50,000.00).

CONTRARY TO LAW.

On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY. 3 During pre-trial, Baxinela
informed the RTC that he would be claiming the justifying circumstance of self-defense. 4 In
accordance with the Rules of Criminal Procedure, the defense was the first to present evidence. 5

The first witness for the defense was Insp. Joel Regimen.6 He testified that on October 19, 1996, at
about 12:35 a.m., he and Baxinela were walking along Toting Reyes Street in Kalibo, Aklan when
they were approached by a civilian named Romy Manuba who informed them of a drunken person
drawing a gun and creating trouble inside the Playboy Disco Pub located on the second floor of the
Kingsmen building.7 They immediately proceeded to the reported place and, upon arrival, recognized
a former colleague, SPO4 Legarda, who was with a companion. Legarda invited them to his table
and the two obliged. Later, while seated at the table, they saw someone with a handgun visibly
tucked at the back of his waist about 4 meters away. Regimen then instructed Baxinela to take a
closer look at this person while he makes a call to the Kalibo police station but before Regimen could
stand up, the man with a gun started to walk towards the door. As he passed by their table, Baxinela
stood up, introduced himself as a policeman and asked the man why he had a gun with him. The
man did not respond and, instead, suddenly drew out his gun. Baxinela then drew his sidearm and
was able to fire first, hitting the man on his upper left arm. When the man fell down, Baxinela took his
gun and wallet and handed them over to Regimen. Regimen then stated that he enlisted the
services of the pub’s security guard to bring the wounded man to the hospital while he and Baxinela
proceeded to the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They
also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col. Bianson.

The second witness for the defense was Romy Manuba,8 who testified that on October 19, 1996, at
around 12:30 a.m., he was on the second floor of the Kingsmen building drinking liquor. While
inside, he saw a drunken man wearing a white polo shirt accosting several persons with a gun.
Fearing the man with the gun, he left the place to go home. On his way home he saw Regimen and
Baxinela and he reported to them what he had seen earlier.

The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified that on
October 18, 1996, at about 11:00 p.m., he was inside the Superstar Disco Pub drinking beer with a
companion named Toto Dalida. At about 12:40 a.m., Legarda saw Regimen and Baxinela enter the
pub and he invited them over to his table. Later, as they were seating on the table, he noticed
Regimen whisper something to Baxinela and, at the same time, pointing to a man with a handgun
visibly tucked at the back of his waist. He then observed the armed person heading for the door. But
as he passed by their table Baxinela stood up, approached the man from behind and said "Why do
you have a gun. I am a policeman." The man did not reply and, instead, turned around and drew his
gun. As the man was turning, Baxinela also drew his gun and was able to fire first, hitting the man on
his left arm. After the man fell on the floor, Baxinela grabbed the other man’s firearm and handed it
over to Regimen. Regimen then requested one of the security guards to transport the wounded man
to the hospital. Regimen and Baxinela then proceeded to the Kalibo Police Station while Legarda
and Dalida went home.

Baxinela took the witness stand as the last witness for the defense. 10 He testified that he and
Regimen were walking along Toting Reyes Street, looking for a tricycle to take them home, when
they were met by Manuba. Manuba reported to them that there was an armed person, drunk inside
the Superstar Disco Pub and creating trouble. They then proceeded to the pub to verify the report.
Once there, they saw Legarda occupying a table near the entrance with a companion named Toto
Dalida. Legarda invited them to sit at his table. As they were sitting down, Regimen whispered to him
that there was a man with a gun tucked at the back of his waist and told him to watch that person
while he tries to look for a telephone to call the Kalibo Police Station. As Regimen was about to
stand, the armed man started to walk towards the entrance. When he passed their table, Baxinela
stood up, introduced himself as a policeman and asked why he had a gun. The man did not respond
but turned to face Baxinela, drawing his gun. Baxinela immediately drew his firearm and beat him to
the draw, hitting the man on his left arm. When the man fell to the floor, Baxinela picked up the
man’s gun and handed it over to Regimen. Baxinela also took his wallet for identification. Regimen
then told one of the security guards to bring the wounded man to the hospital. Thereafter, Baxinela
and Regimen went to the Kalibo Police Station to report the incident and turned over the wallet.
Next, they proceeded to Camp Pastor Martelino and also reported the incident to Col. Bianson.

To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo
Alvarez.11 Alvarez was a security guard assigned to the Kingsmen building during the incident in
question. He testified that he was already acquainted with Baxinela and that he saw him, together
with Legarda and Regimen, already in the Superstar Disco Pub as early as 11:00 p.m. of October
18, 1996 drinking. At around 12:00 a.m. to 12:30 a.m. there was a minor altercation between the
deceased Sgt. Lajo and another customer at the pub but eventually the two were able to patch
things up. Lajo was then on his way out when Baxinela followed Lajo with a gun already drawn out.
Then, from behind, Baxinela held Lajo’s left arm and said "Ano ka hay? Mam-an may baril ka?" 12 He
then heard Lajo respond "I am a MIG, Pare" after that Alvarez heard an explosion coming from
Baxinela’s gun. Baxinela then got a gun from Lajo’s waist and handed it over to Regimen.
Afterwards Baxinela held both of Lajo’s arms, who was still standing, and pushed him against the
wall and repeated his question. Lajo answered "Why did you shoot me? I am also a military." At this
point Lajo got out his wallet and gave it to Baxinela. Baxinela opened the wallet and looked at an ID.
Afterwards Baxinela and Regimen just left and did nothing to aid Lajo. Alvarez and his fellow security
guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle. Gabriel brought him to
the hospital, while Alvarez remained at his post.

The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially corroborated

the testimony of Alvarez on what occurred on the night in question. He testified that he noticed the
presence of Lajo inside the pub at around 10:30 p.m. of October 18, 1996 while he first saw
Baxinela, Regimen and Legarda there as early as 11:00 p.m. At around 12:45 a.m., he witnessed
Lajo going towards the entrance of the pub where Baxinela was already standing and holding a .45
caliber pistol. Baxinela approached Lajo from behind and held his left shoulder asking "Who are
you?" Lajo responded "I am MIG." Afterwards he was shot by Baxinela. Baxinela then got Lajo’s gun
from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands, pushed Lajo against
the wall and again asked "What are you?" Lajo got his wallet from his back pocket and handed it
over to Baxinela. After opening the wallet Baxinela and Regimen left the disco pub. Lajo, still
standing, took two steps and then fell down. Gabriel and Alvarez then picked Lajo up and carried
him to a tricycle which took him to the hospital. Gabriel also stated that ten minutes before the
shooting incident there was another incident where Lajo accosted some customer but afterwards he
saw that the two shook hands and embraced each other.

The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who entered
in the police blotter the incident that occurred in Superstar Disco Pub. He also testified on the events
that occurred inside the precinct wherein the gun of Lajo accidentally fell on the table and fired.

The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to
damages.14
As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was on the
ground floor of Kingsmen building with Alvarez and Gabriel when they heard a shot ring out from the
second floor.15

After receiving all of the evidence, the RTC found the version of the prosecution, that Baxinela shot
Lajo as the latter was turning around and without having drawn his gun, more convincing, and
rendered a decision convicting Baxinela. The RTC, however, considered in favor of Baxinela the
mitigating circumstances of voluntary surrender and provocation. The dispositive portion of the
decision is as follows:16

WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond reasonable
doubt of the crime of Homicide, and considering the mitigating circumstances of voluntary surrender
and provocation, and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the
penalty of imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1 day
of prision mayor medium as maximum.

The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the death of
Sgt. Ruperto F. Lajo; b) then sum of P81,000.00 as actual and compensatory damages; and c) the
sum of P30,000.00 as moral damages; plus costs of suit.

SO ORDERED.

On appeal, the CA modified Baxinela’s conviction by disallowing the mitigating circumstance of

sufficient provocation. Accordingly, the dispositive portion of the appellate court’s decision reads as
follows:17

IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant guilty
beyond reasonable doubt of the crime charged is AFFIRMED, with the MODIFICATION, that the
Appellant is hereby meted an indeterminate penalty of from EIGHT (8) YEARS and ONE (1) DAY
OF Prision Mayor, as Minimum, to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE
(21) DAYS of Reclusion Temporal, as Maximum.

SO ORDERED.

Baxinela filed the present petition for review on certiorari citing the following grounds:

A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN GIVING
CREDENCE TO THE VERSION OF THE PROSECUTION.

B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING CIRCUMSTANCES

OF SELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL PERFORMANCE OF OFFICIAL
DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND 5, RESPECTIVELY, OF THE REVISED PENAL
CODE.

C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN CONVICTING
THE ACCUSED.

D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT
CONSIDERING THE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF THE ACCUSED.
Resolution of the petition will entail an initial determination of which version of the incident will be
accepted. The defense alleges that Baxinela proceeded to the Superstar Disco Pub in response to
the information given by Manuba that there was an armed drunken man accosting several people
inside the pub. Once they arrived, they saw Lajo with a handgun visibly tucked behind his waist.
When Baxinela introduced himself as a policeman and asked why he had a handgun, Lajo suddenly
drew on him prompting Baxinela to pull out his gun and fire upon Lajo, critically wounding him.
Thereafter, the defense claims that Regimen ordered the security guards to bring Lajo to the hospital
while they proceed to the police station to report the incident.

The prosecution, on the other hand, contends that Baxinela was already in the pub drinking with
Regimen and Legarda for more than a couple of hours prior to the shooting incident. After witnessing
an altercation between Lajo and another customer, Baxinela decided to confront Lajo on why he had
a gun with him. Baxinela approached Lajo from behind and held the latter on the left shoulder with
one hand while holding on to his .45 caliber service firearm with the other. As Lajo was turning
around, to see who was confronting him, Baxinela shot him. Baxinela then got Lajo’s wallet and fled
the scene with Regimen.

As mentioned, the RTC and CA accepted the prosecution’s version. The Court finds no reason to
disturb such findings. Factual findings of the trial court, when adopted and confirmed by the CA, are
final and conclusive unless circumstances are present that would show that the lower courts have
overlooked, misunderstood or misconstrued cogent facts that may alter the outcome of the case. 18 It
does not appear that the conclusions that led to the conviction of Baxinela were arbitrarily reached
by the lower courts and Baxinela has failed to point out any relevant circumstance that would
convince the Court that a re-examination of the facts is warranted. On the contrary, Baxinela’s
version is challenged by his own contradicting testimony and other documentary evidence. Early in
his testimony, Baxinela maintained that Lajo had already pulled his handgun and was aiming at him
when he fired:

Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has a gun?

A. He did not respond.

Q. What else happened if anything happened?

A. He immediately drew his gun turning towards me and aimed it at me. 19

Subsequently, when the trial court propounded clarificatory questions, Baxinela’s new assertion was
that the firearm was still at the back of Lajo:

Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?

A. Yes sir, already pulled out but still at the back.20

Furthermore, the follow-up investigation conducted by the police yielded a different picture of what
happened. This was entered into the police records as Entry No. 3359 and it reads in part: 21

x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm and
when the victim SGT Ruperto Lajo PA was about to get his wallet on his back pocket for his ID,
SPO2 Eduardo Baxinela anticipated that the victim was drawing his firearm on his waist prompting
said policeman to shoot the victim. x x x
The Court now proceeds to determine if, following the prosecution’s version of what happened,
Baxinela can claim the justifying circumstances of self-defense and fulfillment of a duty or lawful
exercise of a right or office.

The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of
sufficient provocation on the part of the accused; and 3) employment of reasonable means to
prevent and repel and aggression.22 By invoking self-defense, Baxinela, in effect, admits killing Lajo,
thus shifting upon him the burden of the evidence on these elements.

The first requisite is an indispensable requirement of self-defense. It is a condition sine qua

non, without which there can be no self-defense, whether complete or incomplete. 23 On this requisite
alone, Baxinela’s defense fails. Unlawful aggression contemplates an actual, sudden and
unexpected attack on the life and limb of a person or an imminent danger thereof, and not merely a
threatening or intimidating attitude. 24 The attack must be real, or at least imminent. Mere belief by a
person of an impending attack would not be sufficient. As the evidence shows, there was no
imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the
former was safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In
fact, it was Baxinela who was the aggressor when he grabbed Lajo’s shoulder and started
questioning him. And when Lajo was shot, it appears that he was just turning around to face
Baxinela and, quite possibly, reaching for his wallet. None of these acts could conceivably be
deemed as unlawful aggression on the part of Lajo.

Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this justifying
circumstance it must be shown that: 1) the accused acted in the performance of a duty or in the
lawful exercise of a right or office; and 2) the injury caused or the offense committed is the
necessary consequence of the due performance of duty or the lawful exercise of a right or
office.25 While the first condition is present, the second is clearly lacking. Baxinela’s duty was to
investigate the reason why Lajo had a gun tucked behind his waist in a public place. This was what
Baxinela was doing when he confronted Lajo at the entrance, but perhaps through anxiety, edginess
or the desire to take no chances, Baxinela exceeded his duty by firing upon Lajo who was not at all
resisting. The shooting of Lajo cannot be considered due performance of a duty if at that time Lajo
posed no serious threat or harm to Baxinela or to the civilians in the pub.

Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by
reason of a mistake of fact, a doctrine first enunciated in United States v. Ah Chong.26 It was held in
that case that a mistake of fact will exempt a person from criminal liability so long as the alleged
ignorance or mistake of fact was not due to negligence or bad faith. In examining the circumstances
attendant in the present case, the Court finds that there was negligence on the part of Baxinela.
Lajo, when he was shot, was simply turning around to see who was accosting him. Moreover, he
identified himself saying "I am MIG." These circumstances alone would not lead a reasonable and
prudent person to believe that Baxinela’s life was in peril. Thus, his act of shooting Lajo, to the mind
of this Court, constitutes clear negligence. But even if the Court assumes that Lajo’s actions were
aggressive enough to appear that he was going for his gun, there were a number of procedures that
could have been followed in order to avoid a confrontation and take control of the situation. Baxinela,
whom the Court assumes not to be a rookie policeman, could have taken precautionary measures
by simply maintaining his hold on to Lajo’s shoulders, keeping Lajo facing away from him, forcing
Lajo to raise his hands and then take Lajo’s weapon. There was also Regimen who should have
assisted Baxinela in disabling and disarming Lajo. The events inside the disco pub that
unnecessarily cost the life of Lajo did not have to happen had Baxinela not been negligent in
performing his duty as a police officer.
The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty as a
privileged mitigating circumstance. In Lacanilao v. Court of Appeals,27 it was held that if the first
condition is fulfilled but the second is wanting, Article 69 of the Revised Penal Code is applicable so
that the penalty lower than one or two degrees than that prescribed by law shall be
imposed.28 Accordingly, the Court grants in favor of Baxinela a privileged mitigating circumstance
and lower his penalty by one degree. His entitlement to the ordinary mitigating circumstance of
voluntary surrender is also recognized, thereby further reducing his penalty to its minimum.

The Court commiserates with our policemen who regularly thrust their lives in zones of danger in
order to maintain peace and order and acknowledges the apprehensions faced by their families
whenever they go on duty. But the use of unnecessary force or wanton violence is not justified when
the fulfillment of their duty as law enforcers can be effected otherwise. A "shoot first, think later"
attitude can never be countenanced in a civilized society.

WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of appellant

Eduardo Baxinela for the crime of homicide is AFFIRMED but his sentence is reduced to an
indeterminate penalty of four (4) years and two (2) months of prision correccional medium, as
minimum, to eight (8) years of prision mayor minimum, as maximum. The awards of damages are
affirmed. No costs.

SO ORDERED.

People v. Adriano, G.R. No. 205228, July 15, 2015

G.R. No. 205228               July 15, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee,

vs.
ROLLY ADRIANO y SAMSON, LEAN ADRIANO @ DENDEN, ABBA SANTIAGO y ADRIANO,
JOHN DOE AND PETER DOE, Accused,
ROLLY ADRIANO y SAMSON, Accused-Appellant.

DECISION

PEREZ, J.:

This is an appeal of the Decision  of the Court of Appeals dated 30 May 2011 in CA-G.R. CR-HC No.
1

04028, which affirmed the Decision  of the Regional Trial Court dated 7 April 2009, convicting
2

accused-appellant Rolly Adriano y Santos (Adriano) for the crime of Homicide (Crim. Case No.
13159-07) for the killing of Ofelia Bulanan (Bulanan) and for the crime of Murder (Crim. Case No.
13160-07) for the killing of Danilo Cabiedes (Cabiedes) in "People of the Philippines v. Rolly Adriano
y Sales."

Adriano was charged with two (2) counts of Murder. The two (2) sets of Information read:

Crim. Case No. 13159-07

On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in Malapit, San Isidro, Nueva
Ecija, within the jurisdiction of this Honorable Court, the above-named accused, conniving together,
with intent to kill, treachery and abuse of superior strength, willfully shot several times with assorted
firearms Ofelia Bulanan, hitting her on the different parts of her body, resulting in her death to the
damage of her heirs. 3

Crim. Case No. 13160-07

On or about March 13, 2007, around 8:00 o'clock (sic) in the morning, in Malapit, San Isidro, Nueva
Ecija, within the jurisdiction of this Honorable Court, the above-named accused, conniving together,
with intent to kill, treachery and abuse of superior strength, willfully shot several times with assorted
firearms Danilo Cabiedes, hitting him on the different parts of his body, resulting in his death to the
damage of his heirs. 4

Version of the Prosecution:

On 13 March 2007, at around 8:00 a.m., Police Officer 1 Matthew Garabiles (POI Garabiles) and
P02 Alejandro Santos (P02 Santos), in civilian clothes, were on their way to Camp Olivas,
Pampanga, riding a motorcycle along Olongapo-Gapan National Road. 5

While they were at Barangay Malapit San Isidro, Nueva Ecija, a speeding blue Toyota Corolla
(Corolla) with plate no. WHK 635, heading towards the same direction, overtook them and the car in
front of them, a maroon Honda CRV (CRY) with plate no. CTL 957. 6

When the Corolla reached alongside the CRV, the passenger on the front seat of the Corolla shot
the CRV and caused the CRV to swerve and fall in the canal in the road embankment. Four (4)
armed men then suddenly alighted the Corolla and started shooting at the driver of the CRV, who
was later identified as Cabiedes. During the shooting, a bystander, Bulanan, who was standing near
the road embankment, was hit by a stray bullet. The four armed men hurried back to the Corolla and
immediately left the crime scene. PO 1 Garabiles and P02 Santos followed the Corolla but lost track
of the latter.
7

Later, both Cabiedes and Bulanan died from fatal gunshot wounds: Cabiedes was pronounced dead
on arrival (DOA) at the Good Samaritan General Hospital due to three (3) gunshot wounds on the
left side of his chest while Bulanan died on the spot after being shot in the head.

During the investigation, the police learned that the Corolla was registered under the name of
Antonio V. Rivera (Rivera). Upon inquiry, Rivera admitted that he is the owner of the Corolla but
clarified that the Corolla is one of the several cars he owns in his car rental business, which he
leased to Adriano. Later that day, Adriano arrived at Rivera's shop with the Corolla, where he was
identified by P02 Santos and PO 1 Garabiles as one of the four assailants who alighted from the
passenger's seat beside the driver of the Corolla and shot Cabiedes. He was immediately arrested
and brought to the Provincial Special Operations Group (PSOG) headquarters in Cabanatuan City. 8

In examining the crime scene, the Nueva Ecija Provincial Crime Laboratory Office recovered one (1)
deformed fired bullet from a .45 caliber firearm and five (5) cartridges from a .45 caliber firearm.9

Version of the Defense

Adriano testified that on 13 March 2007, at about 6:00 a.m., at the time of the incident, he was at his
house in Dolores, Magalang, Pampanga, washing the clothes of his child. After doing the laundry, he
took his motorcycle to a repair shop and left it there.10
At about 8:00 a.m., Adriano went to the house of his friend, Ruben Mallari (Mallari), to ask for a
lighter spring needed to repair his motorcycle. After having coffee in Mallari' s house, Adriano went
home and brought his child to his mother. On his way to his mother's house, he met his brother-in-
law, Felix Aguilar Sunga (Sunga). After leaving his child at his mother's house, Adriano went to the
cockpit arena to watch cockfights, where he saw his friend, Danilo Dizon (Dizon). After the fights, he
left the cockpit at about 2:00 p.m. and went home and took a rest. 11

After resting, Adriano picked-up his motorcycle and proceeded to a store and stayed there. At
around 5 :00 p.m., he went back home. After a while, he received a call from a certain Boyet Garcia
(Garcia), who borrowed the Corolla from him, which he rented from Rivera. 12

At 8:00 p.m., he met with Garcia to get the Corolla back. After dropping Garcia off, Adriano went to
Rivera to return the Corolla, where he was arrested by police officers, thrown inside the Corolla's
trunk, and brought to a place where he was tortured. 13

The other defense's witnesses, Lucita Tapnio (Tapnio), Mallari, Sunga, and Dizon corroborated
Adriano's testimony.14

When arraigned, Adriano pleaded not guilty. The other accused, Lean Adriano alias "Denden," Abba
Santiago y Adriano, John Doe, and Peter Doe remained at large.

During trial, the prosecution presented eight (8) witnesses: (1) PO1 Garabiles, (2) P02 Santos, (3)
Police Senior Inspector Roger V. Sebastian, (4) SP02 Alejandro Eduardo, (5) P02 Jay Cabrera, (6)
P03 Antonio dela Cruz, (7) Adelaida Cabiedes, widow of Cabiedes, and (8) Ricky Flores.

On the other hand, the defense presented Adriano, Tapnio, Sunga, Mallari, and Dizon as witnesses.

Ruling of the Lower Courts

After trial, the RTC convicted Adriano. The RTC rejected Adriano's defense of alibi on the ground
that it was not supported by clear and convincing evidence. According to the RTC, Adriano's alibi
cannot prevail over the testimonies of credible witnesses, who positively identified Adriano as one of
the perpetrators of the crime. Also, contrary to the allegations of the defense, the RTC gave full
credence to the testimony of prosecution witnesses, POI Garabiles and P02 Santos. The RTC
determined that the defense failed to show proof that will show or indicate that PO1 Garabiles and
P02 Santos were impelled by improper motives to testify against Adriano. The RTC found as proven
the assessment of damages against the accused. Thus did the RTC order Adriano to pay the heirs
of Cabiedes the amount of ₱222,482.00 based on the following: (1) One Hundred Thousand Pesos
(Pl00,000.00) as funeral expenses; (2) Sixty Thousand Pesos (₱60,000.00) as expenses for the food
served during the burial; (3) Twelve Thousand Four Hundred Eighty Two Pesos (1!12,482.00) as
groceries used and served during the wake; and Sixty Thousand Pesos (₱60,000.00) for the parts
and service repair of the CRV.15

The dispositive portion of the R TC Decision dated 7 April 2009 reads:

WHEREFORE, finding accused ROLLY ADRIANO guilty beyond reasonable doubt of Murder, as
charged, for the death of Danilo Cabiedes, there being no aggravating or mitigating circumstance
that attended the commission of the crime, he is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused Rolly Adriano is also ordered to indemnify the heirs of Danilo Cabiedes in the
amount of Php 50,000.00 and to pay the sum of Php 222,482.00 as actual damages.
And finding ROLLY ADRIANO also guilty beyond reasonable doubt of Homicide, as charged, for the
death of Ofelia Bulanan, likewise, there being no aggravating or mitigating circumstance that
attended the commission of the offense, he is further sentenced to suffer an indeterminate penalty of
imprisonment from Eight (8) years and One (1) day of prision mayor medium, as minimum, to
Seventeen (17) years and Four (4) months of reclusion temporal medium, as maximum, and to
indemnify the heirs of Ofelia Bulanan in the amount of Php 50,000.00. 16

On appeal to the Court of Appeals, Adriano alleged that the R TC erred when it failed to appreciate
his defense of alibi, as well as the testimonies of the other defense's witnesses. Adriano contended
that the RTC erred when it gave credence to the testimony of the prosecution witnesses which are
inconsistent and contradictory. In detail, Adriano referred to the following particulars: 1) whether the
culprits started shooting when the victim's vehicle was still in motion; 2) which side of the vehicle did
the shooters alight from; 3) the identity of the culprit who triggered the fatal shot; 4) whether the trip
of PO1 Garabiles and P02 Santos going to Camp Olivas, Pampanga was official business; 5) the
precise distance of the assailants' vehicle from that of the two (2) eyewitnesses; and 6) the precise
minutes of the shooting incident.

The Court of Appeals rejected Adriano's attempt to becloud the testimony of the prosecution
witnesses. According to the Court of Appeals, the prosecution witnesses' positive identification of
Adriano as one of the perpetrators of the crime cannot be overcome by minor inconsistencies in their
testimony. The Court of Appeals ruled that these trivial differences in fact constitute signs of veracity.

On the defense of alibi, the Court of Appeals affirmed the ruling of the R TC that Adriano's claim that
he was in Dolores, Magalang, Pampanga at the time of the incident does not convince because it
was not impossible for Adriano to be physically present at the crime scene, in Barangay Malapit, San
Isidro, Nueva Ecija, which can be reached by car in less than an hour.  The dispositive portion of the
17

Court of Appeals Decision reads:

WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court of Gapan City,
Nueva Ecija, Br. 36, in Crim. Case Nos. 13159-07 and 13160-07 is AFFIRMED subject to the
Modification that the award of Fifty Thousand Pesos (Php50,000.00) as civil indemnity to the heirs of
Danilo Cabiedes is INCREASED to Seventy-Five Thousand Pesos (Php75,000.00). In addition, the
Accused-Appellant is ORDERED to pay the heirs of Danilo Cabiedes the amount of Seventy-Five
Thousand Pesos (Php75,000.00) as moral damages; and the heirs of Ofelia Bulanan the amount of
Fifty Thousand Pesos (Php50,000.00) as moral damages.

SO ORDERED. 18

Our Ruling

In cases of murder, the prosecution must establish the presence of the following elements:

1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.

4. The killing is not parricide or infanticide.

In the case at bar, the prosecution has established the concurrence of the elements of murder: (1)
the fact of death of Cabiedes and Bulanan; (2) the positive identification of Adriano as one of
perpetrators of the crime; and (3) the attendance of treachery as a qualifying aggravating
circumstance and use of firearms and abuse of superior strength as generic aggravating
circumstances.

Death of Cabiedes

The present case is a case of murder by ambush. In ambush, the crime is carried out to ensure that
the victim is killed and at the same time, to eliminate any risk from any possible defenses or
retaliation from the victim—  ambush exemplifies the nature of treachery.
19

Paragraph 16 of Article 14 of the Revised Penal Code (RPC) defines treachery as the direct
employment of means, methods, or forms in the execution of the crime against persons which tend
directly and specially to insure its execution, without risk to the offender arising from the defense
which the offended party might make. In order for treachery to be properly appreciated, two
elements must be present: (1) at the time of the attack, the victim was not in a position to defend
himself; and (2) the accused consciously and deliberately adopted the particular means, methods or
forms of attack employed by him.  The "essence of treachery is the sudden and unexpected attack
20

by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and
thereby ensuring its commission without risk of himself."21

Clearly, treachery is present in the case at bar as the victims were indeed defenseless at the time of
the attack. Adriano, together with the other accused, ambushed Cabiedes by following the
unsuspecting victim along the national highway and by surprise, fired multiple shots at Cabiedes and
then immediately fled the crime scene, causing Cabiedes to die of multiple gunshot wounds. When
the Corolla swerved into the CRV's lane, Cabiedes was forced to swiftly turn to the right and on to
the road embankment, finally falling into the canal where his CRY was trapped, precluding all
possible means of defense. There is no other logical conclusion, but that the orchestrated ambush
committed by Adriano, together with his co-accused, who are still on the loose, was in conspiracy
with each other to ensure the death of Cabiedes and their safety. The means of execution employed
was deliberately and consciously adopted by Adriano so as to give Cabiedes no opportunity to
defend himself or to retaliate. 22

All these circumstances indicate that the orchestrated crime was committed with the presence of the
aggravating circumstances of treachery, which absorbs the aggravating circumstance of abuse of
superior strength, and use of firearms. Indeed, Cabiedes had no way of escaping or defending
himself.

Death of Bulanan

We refer back to the settled facts of the case. Bulanan, who was merely a bystander, was killed by a
stray bullet. He was at the wrong place at the wrong time.

Stray bullets, obviously, kill indiscriminately and often without warning, precluding the unknowing
victim from repelling the attack or defending himself. At the outset, Adriano had no intention to kill
Bulanan, much less, employ any particular means of attack. Logically, Bulanan's death was random
and unintentional and the method used to kill her, as she was killed by a stray a bullet, was, by no
means, deliberate. Nonetheless, Adriano is guilty of the death of Bulanan under Article 4 of the
Revised Penal Code,  pursuant to the doctrine of aberratio ictus, which imposes criminal liability for
23

the acts committed in violation of law and for all the natural and logical consequences resulting
therefrom. While it may not have been Adriano's intention to shoot Bulanan, this fact will not
exculpate him. Bulanan' s death caused by the bullet fired by Adriano was the natural and direct
consequence of Adriano's felonious deadly assault against Cabiedes.

As we already held in People v. Herrera  citing People v. Hilario,  "[t]he fact that accused killed a
24 25

person other than their intended victim is of no moment." Evidently, Adriano's original intent was to
kill Cabiedes. However, during the commission of the crime of murder, a stray bullet hit and killed
Bulanan. Adriano is responsible for the consequences of his act of shooting Cabiedes. This is the
import of Article 4 of the Revised Penal Code. As held in People v. Herrera citing People v. Ural:

Criminal liability is incurred by any person committing a felony although the wrongful act be different
from that which is intended. One who commits an intentional felony is responsible for all the
consequences which may naturally or logically result therefrom, whether foreseen or intended or not.
The rationale of the rule is found in the doctrine, 'el que es causa de la causa es causa del mal
causado ', or he who is the cause of the cause is the cause of the evil caused. 26

As regards the crime(s) committed, we reiterate our ruling in People v. Nelmida.  In the aforesaid
27

case, we ruled that accused-appellants should be convicted not of a complex crime but of separate
crimes of two counts of murder and seven counts of attempted murder as the killing and wounding of
the victims were not the result of a single act but of several acts.  The doctrine in Nelmida here is apt
28

and applicable.

In Nelmida, we distinguished the two kinds of complex crime: compound crime, when a single act
constitutes two or more grave or less grave felonies, and complex crime proper, when an offense is
a necessary means for committing the other. Moreover, we also made a distinction that "when
various victims expire from separate shots, such acts constitute separate and distinct crimes,"  not a
29

complex crime.

As borne by the records, the Nueva Ecija Provincial Crime Laboratory Office recovered six (6)
cartridges of bullets from a .45 caliber firearm. This does not indicate discharge by a single burst.
Rather, separate shots are evidenced. One or more of which, though fired to kill Cabiedes, killed
Bulanan instead. There is thus no complex crime. The felonious acts resulted in two separate and
distinct crimes.

Finally, we ask, may treachery be appreciated in aberratio ictus?

Although Bulanan's death was by no means deliberate, we shall adhere to the prevailing
jurisprudence pronounced in People v. Flora,  where the Court ruled that treachery may be
30

appreciated in aberratio ictus. In Flora, the accused was convicted of two separate counts of murder:
for the killing of two victims, Emerita, the intended victim, and Ireneo, the victim killed by a stray
bullet. The Court, due to the presence of the aggravating circumstance of treachery, qualified both
killings to murder. The material facts in Flora are similar in the case at bar. Thus, we follow the Flora
doctrine.

Also, contrary to the defense's allegation that Bulanan' s death was not established, a perusal of the
records would reveal that Bulanan's fact of death was duly established as the prosecution offered in
evidence Bulanan's death certificate. 31

On the alibi as defense, time and again, we have ruled alibis like denials, are inherently weak and
unreliable because they can easily be fabricated.  For alibi to prosper, the accused must
32

convincingly prove that he was somewhere else at the time when the crime was committed and that
it was physically impossible for him to be at the crime scene.  In the case at bar, Adriano claimed he
33

was in Dolores, Magalang, Pampanga at the time of incident. Adriano's claim failed to persuade. As
admitted, Dolores, Magalang, Pampanga was only less than an hour away from the crime scene,
Barangay Malapit, San Isidro, Nueva Ecija. Hence, it was not physically impossible for Adriano to be
at the crime scene at the time of the incident.

It is likewise uniform holding that denial and alibi will not prevail when corroborated not by credible
witnesses but by the accused's relatives and friends.  Therefore, the defense's evidence which is
1âwphi1

composed of Adriano's relatives and friends cannot prevail over the prosecution's positive
identification of Adriano as one of the perpetrators of the crime.

The penalty for murder under Article 248 of the Revised Penal Code is reclusion perpetua to death.
In the case at bar, as the circumstance of abuse of superior strength concurs with treachery, the
former is absorbed in the latter. There being no aggravating or mitigating circumstance present, the
lower penalty should be imposed, which is reclusion perpetua, in accordance with Article 63,
paragraph 2 of the Revised Penal Code.

To recover actual or compensatory damages, basic is the rule that the claimant must establish with a
reasonable degree of certainty, the actual amount of loss by means of competent proof or the best
evidence obtainable.  Documentary evidence support the award of actual damages in this case. The
34

RTC computed the amount of actual damages as ₱222,482.00. However, a perusal of the records
reveals that the amount of award of actual damages should be ₱232,482.00 as duly supported by
official receipts.  Therefore, we hereby increase the award of actual damages from ₱222,482.00 to
35

₱232,482.00.

WHEREFORE, the appeal is DISMISSED. The assailed Decision of the Court of Appeals in CA-G.R.
CR-HC No. 04028 is AFFIRMED with MODIFICATIONS. Appellant-appellant ROLL Y ADRIANO y
SAMSON is found GUILTY beyond reasonable doubt of MURDER (Criminal Case No. 13160-07) for
the killing of DANILO CABIEDES and is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused-appellant ROLLY ADRIANO y SAMSON is ordered to pay the heirs of DANILO
CABIEDES the amount of Seventy Five Thousand Pesos (₱75,000.00) as civil indemnity, Seventy
Five Thousand Pesos (₱75,000.00) as moral damages, Thirty Thousand Pesos (₱30,000.00) as
exemplary damages, and Two Hundred Thirty Two Thousand Four Hundred Eighty Two Pesos
{₱232,482.00) as actual damages.

Accused-appellant ROLLY ADRIANO y SAMSON is also found guilty beyond reasonable doubt of
the crime of MURDER (Criminal Case No. 13159-07) for the killing of OFELIA BULANAN and is
hereby sentenced to suffer the penalty of reclusion perpetua. Accused-appellant ROLLY ADRIANO
y SAMSON is ordered to pay the heirs of OFELIA BULANAN in the amount of the amount of
Seventy Five Thousand Pesos (₱75,000.00) as civil indemnity, Seventy Five Thousand Pesos
(₱75,000.00) as moral damages, Thirty Thousand Pesos (₱30,000.00) as exemplary damages, and
Twenty Five Thousand Pesos (₱25,000.00) as temperate damages in lieu of actual damages.

All monetary awards shall earn interest at the rate of 6o/o per annum from the date of finality until
fully paid.

SO ORDERED.

Wacoy v. People, G.R. No. 213792, June 22, 2015

G.R. No. 213792               June 22, 2015

GUILLERMO WACOY y BITOL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent,

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

G.R. No. 213886

JAMES QUIBAC y RAFAEL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in these consolidated petitions for review on certiorari  are the Decision  dated December 6,
1 2

2013 and the Resolution  dated July 21, 2014 of the Court of Appeals (CA) in CA-G.R. CR No.
3

34078, which, inter alia, found petitioners Guillermo Wacoy y Bitol (Wacoy) and James Quibac
Rafael (Quibac) guilty beyond reasonable doubt of the crime of Homicide.

The Facts

In an Information dated June 10, 2004, Wacoy and Quibac were charged with the crime of Homicide,
defined and penalized under Article 249 of the Revised Penal Code (RPC), before the Regional Trial
Court of Benguet, Branch 10 (RTC), as follows:

That on or about the 11th day of April 2004, at Ambongdolan, Municipality of Tublay, Province of
Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually aiding each other, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault, maul and kick the stomach of one ELNER ARO y
LARUAN, thereby inflicting upon him blunt traumatic injuries which directly caused his death
thereafter.

That the offense committed was attended by the aggravating circumstance of superior strength.
CONTRARY TO LAW. 4

According to prosecution witness Edward Benito (Benito), at around 3 o'clock in the afternoon of
April 11, 2004, he was eating corn at a sari-sari store located at Bungis Ambongdolan, Tublay,
Benguet, when he heard a commotion at a nearby establishment. Upon checking what the ruckus
was all about, he saw his cousin, Elner Aro (Aro), already sprawled on the ground. While in that
position, he saw Wacoy kick Aro's stomach twice, after which, Wacoy picked up a rock to throw at
Aro but was restrained from doing so. As Aro stood up, Quibac punched him on the stomach,
causing him to collapse and cry in pain. Thereafter, Aro was taken to the hospital. 5

At the hospital, Aro was diagnosed to be suffering from "blunt abdominal trauma with injury to the
jejunum" and was set for operation. It was then discovered that he sustained a perforation on his
ileum, i.e., the point where the small and large intestines meet, that caused intestinal bleeding, and
that his entire abdominal peritoneum was filled with air and fluid contents from the bile. However, Aro
suffered cardiac arrest during the operation, and while he was revived through cardiopulmonary
resuscitation, he lapsed into a coma after the operation. 6
Due to financial constraints, Aro was taken out of the hospital against the doctor's orders and
eventually, died the next day. While Aro's death certificate indicated that the cause of his

death was "cardiopulmonary arrest antecedent to a perforated ileum and generalized peritonitis
secondary to mauling," an autopsy performed on his remains revealed that the cause of his death
was "rupture of the aorta secondary to blunt traumatic injuries."
7

In their defense, herein petitioners, Wacoy and Quibac, denied the charge against them. They
averred that while playing pool, they saw Aro drunk and lying down. Suddenly, Aro became unruly
and kicked the leg of the pool table, causing Wacoy to shout and pick up a stone to throw at Aro but
Quibac pacified him. They also claimed that Aro almost hit Wacoy with a 2x3 piece of wood if not for
Quibac' s intervention. Wacoy ran but Aro chased him and then tripped and fell to the ground.
Quiniquin Carias (Kinikin), Aro's companion, followed Wacoy to the waiting shed nearby, cornered
and kicked the latter, and the two engaged in a fist fight. Quibac came over to pacify the two and told
Wacoy to go home. 8

The RTC Ruling In a Judgment  dated February 28, 2011, the RTC found Wacoy and Quibac guilty
9

beyond reasonable doubt of the crime of Death Caused in a Tumultuous Affray under Article 251 of
the RPC and, accordingly, sentenced them to suffer the penalty of imprisonment for an
indeterminate period of six (6) months and one (1) day of prision correccional, as minimum, to eight
(8) years and one (1) day of prision mayor , as maximum, and ordered them to pay Aro's heirs the
amounts of ₱25,000.00 as temperate damages, ₱50,000.00 as civil indemnity ex delicto, and
₱50,000.00 as moral damages. 10

The RTC found that Benito's testimony on the mauling incident does not firmly establish that Wacoy
and Quibac conspired in the killing of Aro, and that the medical reports were neither categorical in
stating that the injuries Aro sustained from the mauling directly contributed to his death.  11

In this relation, it opined that "[a]s conspiracy was not proven and the prosecution has failed to show
the extent and effect of injury [that Wacoy and Quibac] personally inflicted on [Aro] that led to his
death xx x," Wacoy and Quibac should be held criminally liable for the crime of Death Caused in a
Tumultuous Affray and not for Homicide. 12

Aggrieved, Wacoy and Quibac appealed to the CA. 13

The CA Ruling

In a Decision  dated December 6, 2013, the CA modified Wacoy and Quibac's conviction to that of
14

Homicide under A1iicle 249 of the RPC with the mitigating circumstance of lack of intent to commit
so grave a wrong, and accordingly adjusted their prison term to an indeterminate period of six (6)
years and one (1) day of prision mayor, as minimum, to twelve (12) years and one ( 1) day of
reclusion temporal, as maximum. Further, the CA also imposed a legal interest of six percent ( 6%)
per annum on the damages awarded by the RTC pursuant to prevailing jurisprudence. 15

In so ruling, the CA gave credence to Benito's simple, direct, and straightforward testimony. In this
relation, it observed that the mere fact that Benito is Aro's cousin should not militate against his
credibility since there was no proof that his testimony was driven by any ill motive.  However,
16

contrary to the RTC's findings, the CA ruled that Wacoy and Quibac should not be convicted of the
crime of Death Caused in a Tumultuous Affray since there were only (2) persons who inflicted harm
on the victim, and that there was no tumultuous affray involving several persons. Instead, they were
convicted of the crime of Homicide, with the mitigating circumstance of lack of intent to commit so
grave a wrong appreciated as it was shown that the purpose of their assault on Aro was only to
maltreat or inflict physical harm on him.
17

Aggrieved, Wacoy and Quibac separately moved for reconsideration.   In a Resolution  dated July
18 19

21, 2014, the CA denied Quibac's motions for reconsideration;  hence, the instant petitions.
20

The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly found Wacoy and Quibac
guilty beyond reasonable doubt of the crime of Homicide.

The Court's Ruling

The petition is without merit.

At the outset, it must be stressed that in criminal cases, an appeal throws the entire case wide open
for review and the reviewing tribunal can correct errors, though unassigned in the appealed
judgment, or even reverse the trial court's decision based on grounds other than those that the
parties raised as errors. The appeal confers upon the appellate court full jurisdiction over the case
and renders such court competent to examine records, revise the judgment appealed from, increase
the penalty, and cite the proper provision of the penal law. 21

Proceeding from the foregoing, the Court agrees with the CA's ruling modifying Wacoy and Quibac' s
conviction from Death Caused in a Tumultuous Affray to that of Homicide, as will be explained
hereunder.

Article 251 of the RPC defines and penalizes the crime of Death Caused in a Tumultuous Affray as
follows:

Art. 251. Death caused in a tumultuous affray. - When, while several persons, not composing groups
organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and
assault each other in a confused and tumultuous manner, and in the course of the affray someone is
killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who
inflicted serious physical injuries can be identified, such person or persons shall be punished by
prision mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of
prision correccional in its medium and maximum periods shall be imposed upon all those who shall
have used violence upon the person of the victim.

The elements of Death Caused in a Tumultuous Affray are as follows: (a) that there be several
persons; (b) that they did not compose groups organized for the common purpose of assaulting and
attacking each other reciprocally; (c) that these several persons quarrelled and assaulted one
another in a confused and tumultuous manner; (d) that someone was killed in the course of the
affray; (e) that it cannot be ascertained who actually killed the deceased; and (j) that the person or
persons who inflicted serious physical injuries or who used violence can be identified.  Based on
22

case law, a tumultuous affray takes place when a quarrel occurs between several persons and they
engage in a confused and tumultuous affray, in the course of which some person is killed or
wounded and the author thereof cannot be ascertained. 23
On the other hand, the crime of Homicide is defined and penalized under Article 249 of the RPC,
which reads:

Art. 249. Homicide. - Any person who, not falling within the provisions of Article 246, shall kill
another, without the attendance of any of the circumstances enumerated in the next preceding
article, shall be deemed guilty of homicide and be punished by reclusion temporal. The elements of
Homicide are the following: (a) a person was killed; (b) the accused killed him without any justifying
circumstance; (c) the accused had the intention to kill, which is presumed; and (d) the killing was not
attended by any of the qualifying circumstances of Murder, or by that of Parricide or Infanticide. 24

In the instant case, there was no tumultuous affray between groups of persons in the course of
which Aro died.  On the contrary, the evidence clearly established that there were only two (2)
1âwphi1

persons, Wacoy and Quibac, who picked on one defenseless individual, Aro, and attacked him
repeatedly, taking turns in inflicting punches and kicks on the poor victim. There was no confusion
and tumultuous quarrel or affray, nor was there a reciprocal aggression in that fateful
incident.  Since Wacoy and Quibac were even identified as the ones who assaulted Aro, the latter's
25

death cannot be said to have been caused in a tumultuous affray.  Therefore, the CA correctly held
26

that Wacoy and Quibac' s act of mauling Aro was the proximate cause  of the latter's death; and as
27

such, they must be held criminally liable therefore, specifically for the crime of Homicide.

On this note, the Court does not find merit in Wacoy's contention that in view of their intent only to
inflict slight physical injuries on Aro, they should only be meted the corresponding penalty therefore
in its maximum period,  pursuant to Article 49 of the RPC. The said provision reads:
28

Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that
intended. - In cases in which the felony committed is different from that which the offender intended
to commit, the following rules shall be observed.

1. If the penalty prescribed for the felony committed be higher than that corresponding to the
offense which the accused intended to commit, the penalty corresponding to the latter shall
be imposed in its maximum period.

2. If the penalty prescribed for the felony committed be lower than that corresponding to the
one which the accused intended to commit, the penalty for the former shall be imposed in its
maximum period.

3. The rule established by the next preceding paragraph shall not be applicable if the acts
committed by the guilty person shall also constitute an attempt or frustration of another
crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the
penalty provided for the attempt or the frustrated crime shall be imposed in the maximum
period.

Jurisprudence instructs that such provision should only apply where the crime committed is different
from that intended and where the felony committed befalls a different person (error in personae); and
not to cases where more serious consequences not intended by the offender result from his
felonious act (praeter intentionem), 29

as in this case. It is well-settled that if the victim dies because of a deliberate act of the malefactors,
intent to kill is conclusively presumed.  In such case, even if there is no intent to kill, the crime is
30

Homicide because with respect to crimes of personal violence, the penal law looks particularly to the
material results following the unlawful act and holds the aggressor responsible for all the
consequences thereof. 31
Be that as it may, the penalty for the crime of Homicide must be imposed in its minimum period due
to the presence of the mitigating circumstance of lack of intention to commit so grave a wrong under
Article 13 (3) of the RPC in favor of Wacoy and Quibac, as correctly appreciated by the CA. In
determining the presence of this circumstance, it must be considered that since intention is a mental
process and is an internal state of mind, the accused's intention must be judged by his conduct and
external overt acts.  In this case, the aforesaid mitigating circumstance is available to Wacoy and
32

Quibac, given the absence of evidence showing that, apart from kicking and punching Aro on the
stomach, something else had been done; thus, evincing the purpose of merely maltreating or
inflicting physical harm, and not to end the life of Aro.

Anent the proper penalty to be imposed on Wacoy and Quibac, the CA correctly imposed the penalty
of imprisonment for an indeterminate period of six ( 6) years and one ( 1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, taking into
consideration the provisions of the Indeterminate Sentence Law.

Finally, the awards of civil indemnity and moral damages in the original amount of ₱50,000.00 each
are increased to ₱75,000.00 each in order to conform with prevailing jurisprudence.  All other
33

awards, as well as the imposition of interest at the rate of six percent ( 6%) per annum on all the
monetary awards from the date of finality of judgment until the same are fully paid, are retained.

WHEREFORE, the petition is DENIED. The Decision dated December 6, 2013 and the Resolution
dated July 21, 2014 of the Court of Appeals in CA-G.R. CR No. 34078 are hereby AFFIRMED with
MODIFICATION. Accordingly, petitioners Guillermo Wacoy y Bitol and James Quibac y Rafael are
found GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under
Article 249 of the Revised Penal Code with the mitigating circumstance of lack of intent to commit so
grave a wrong under Article 13 (3) of the same Code. They are sentenced to suffer the penalty of
imprisonment for an indeterminate period of six ( 6) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and ordered to
pay the heirs of Elner Aro the amounts of ₱25,000.00 as temperate damages, ₱75,000.00 as civil
indemnity ex delicto, and ₱75,000.00 as moral damages, all with interest at the rate of six percent
(6%) per annum from the finality of this Decision until fully paid.

SO ORDERED.

People v. Matyaong, G.R. No. 140206, June 21, 2001

G.R. No. 140206      June 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO MATYAONG, accused-appellant.

GONZAGA-REYES, J.:

On 28 March 1996, accused appellant Rodolfo Matyaong was charged with the crime
of parricide before the Regional Trial Court of Palawan and Puerto Princesa City, for hitting his wife
Rufina Matyaong with a piece of wood, in an information which states –

That on or about the 27th day of December, 1995, at Brgy. Latud, Municipality of Rizal,
Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with evident premeditation, treachery and with intent to kill, while armed with a
 round wood (Bakawan), did then and there wilfully, unlawfully and feloniously attack, assault,
maul and club one RUFINA MATYAONG Y PAZ, his lawfully wedded wife, hitting her in the
different vital parts of her body and inflicting upon her multiple contusion and hematuas [sic]
in the body which were the direct and immediate cause of her death shortly thereafter.

CONTRARY TO LAW.1

Upon arraignment, accused-appellant denied culpability. 2 Thus, trial ensued, with the prosecution
presenting four witnesses, namely Rodolfo Matyaong, Jr., Wilfredo Tablazon, Roberta Paz, and Sgt.
Almirante Caburnay.

Rodolfo Matyaong, Jr., who was ten years old at the time his testimony was taken, is the eldest child
of accused-appellant and Rufina Matyaong. Rodolfo testified that on the evening of 27 December
1995, he was at home cooking dinner for his family. His mother sat nearby reading a letter from his
Auntie Ventura, while at the same time nursing his youngest brother. The domestic calm was
interrupted, however, by the arrival of accused-appellant who, upon seeing Rufina reading a letter
and being illiterate, immediately suspected that it was about another man. Turning a deaf ear to his
wife’s explanation that the letter was actually about God, accused-appellant grabbed a piece of
mangrove wood, commonly known as bakawan, which was two feet in length and 1 ½ inches wide,
and beat Rufina. As a result, Rufina lost consciousness and fell to the floor. Accused-appellant
revived Rufina by pouring water on her, after which he threw the lighted wick lamp at her and then
grabbed the bakawan. Rufina fled her house and ran towards the forest.

Rodolfo also declared that prior to the attack, his mother was suffering from diarrhea and vomitting
spells, as were many other people in their locality. 3

Wilfredo Tablazon, barangay kagawad of Canipaan, declared that on the same evening, he was
supervising a benefit dance at a local school in a neighboring barangay when he was approached by
Soling Balahing asking for his help. Soling told him that Rufina Matyaong was hurt and hiding from
her husband in the grassy area near her [Soling] house. After some hesitation, Tablazon finally
agreed to go with Soling to the place where Rufina was hiding. Tablazon saw Rufina lying on the
ground with three of her children. She was in a very weak condition. Sobbing, Rufina pleaded with
him to bring her to Canipaan. Tablazon acceded to her request and Rufina was taken by Jun
Makauling to Canipaan by pumpboat. The following morning, she was brought to the barangay
health center. Tablazon testified that, while at the health center, Rufina vomitted once and suffered
diarrhea. Also, he noticed that she had large contusions on both her arms. Due to Rufina’s
worsening condition, and at the instance of Rufina and her mother, Tablazon decided to fetch
accused-appellant to see his wife. When they arrived at the health center, Tablazon heard accused-
appellant say to his wife, "Hindi rin mangyari yan kung hindi mo kasalanan." Accused-appellant
remained at the health center, assisting his wife, until she expired on 29 December 1995. 4

Another witness for the prosecution was Roberta Paz – the mother of the victim. Roberta learned
about the assault on her daughter only the day after it occurred. On 28 December 1995, at 7 a.m.,
Delfin Tabo went to Roberta’s house and informed her that Tablazon was looking for her. Roberta
went with Delfin to the house of Tablazon where she found her daughter, who told her that she was
mauled by accused-appellant. Roberta noticed that her daughter had bruises all over her body. They
made a mock hammock for Rufina to lie in and then, together with Tablazon and the barangay
captain, brought her to the barangay health center. 5

At the Canipaan health center, Rufina was treated by Sgt. Almirante Caburnay. 6 Sgt. Caburnay
belonged to the Philippine Marines’ 6th Marine Batallion Landing Team, Western Command. From
October 1995 to January 1996, he was assigned to Canipaan, Rizal, Palawan as a first aider. On 28
December 1995, Sgt. Caburnay was at the marine detachment in Canipaan when Roberta Paz
asked him for assistance for her daughter. He proceeded to the health center where he saw Rufina.
He noticed that she had bruises and hematoma on her left arm and back. He was also informed that
the patient was suffering from diarrhea. In order to prevent dehydration, Sgt. Caburnay gave Rufina
dextrose and, in addition, he administered antibiotics. After assessing Rufina’s condition, he advised
Roberta to bring her daughter to the health center in the town proper of Rizal so that she could
receive better medical attention. Unfortunately, Rufina did not live long enough to receive further
treatment in Rizal. On 29 December 1995, at five in the morning, Rufina Matyaong breathed her last
at the Canipaan health center.7

In his defense, accused-appellant claimed that his wife died from dehydration caused by diarrhea
and vomitting, which started on 27 December 1995. He said that Rufina told him that she got sick
after she ate sarimburao (fish). Accused-appellant testified that, from December 28, until she died
the following day, he took care of his wife while she was at the health center in Canipaan. With him
at the health center were Roberta Paz, Vilma Apostol and barangay captain Belo Fernando.
According to accused-appellant, he cooked lugaw for his wife, and emptied ten chamber pots which
she used whenever she vomitted or defecated. Furthermore, accused-appellant declared that three
of his children were also retching and suffering from diarrhea, but that they all recovered. Finally, it
was insisted by accused-appellant that his son Rodolfo Matyaong, Jr. was induced by Roberta Paz
to testify falsely against him.8

To buttress accused-appellant’s testimony, the defense presented Vilma Apostol, a resident of

Canipaan and a barangay health worker. Vilma declared that on 27 December 1995, she was
fetched from her house by Roberta Paz to help care for Rufina at the health center. When she
arrived thereat, she observed that Rufina was already in serious condition – she could no longer
speak or ingest any solids, she was being given dextrose, and she was always vomitting and
experiencing severe diarrhea.9

After trial, the court a quo rendered judgment,10 finding accused-appellant guilty of parricide, and
sentencing him to reclusion perpetua, as the mitigating circumstance of lack of intention to commit
so grave a wrong was appreciated in his favor. In addition, the court ordered accused-appellants to
pay the heirs of Rufina Matyaong P50,000.00 as civil indemnity. The trial court held that, although he
may not have intended to kill her, Rufina’s death was the direct and natural consequence of
accused-appellant’s felonious act of clubbing her, and therefore, pursuant to Article 4 of the Revised
Penal Code, he is liable for the same.11

Hence, the present appeal.

Accused-appellant contends that the prosecution failed to establish that he had inflicted any injuries
upon his wife. No medical certificate or autopsy report was introduced in evidence that would prove
that Rufina had sustained any wounds or bruises due to the alleged beating by her husband. Even
assuming that accused-appellant had mauled his wife, the prosecution did not present any evidence
that such beating caused her death. It is the position of the defense that Rufina died due to her
vomitting and diarrhea, and not from the beatings.12

In lieu of an appellee’s brief, the Solicitor General filed a "Manifestation and Motion" asking the Court
to acquit accused-appellant since his guilt was not proven beyond a reasonable doubt. It is the
Solicitor General’s opinion that, although it was established that accused-appellant beat up Rufina,
the prosecution nevertheless failed to establish the nexus between the beatings and her death. 13
The elements of parricide are as follows: (1) a person is killed; (2) the deceased is killed by the
accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a
legitimate other ascendant or other descendant, or the legitimate spouse of the accused. 14

In every criminal case, the evidence presented must be sufficient to prove the corpus delicti - that is,
the actual offense committed. In this case, the prosecution must first establish that the life of a
human being was taken, and second, that the death was occasioned by the accused’s criminal act
or agency.15 If the evidence clearly discloses that a certain person is dead, and that his death
resulted from the use of violent and criminal means by another, then the corpus delicti is sufficiently
proved.16

In the case at bar, it has been established that accused-appellant beat his wife with a piece of wood.
This conclusion is based upon the unrebutted testimony of Rodolfo Matyaong, Jr. – an eyewitness to
the assault. Having failed to prove that the witness was impelled by improper motives, the Court has
no reason to disbelieve the child’s testimony, which the trial court found to be credible. 17 It is also
undisputed that the victim died on 29 December 1995, or almost two days after the assault.
However, we agree with the Solicitor General that the prosecution has not established the crucial
link between the assault and the death. In other words, it has not been proven beyond a reasonable
doubt that the beatings inflicted by accused-appellant upon his wife were the proximate cause of her
death.

It is significant that, in this particular case, no post mortem examination was conducted in order to
determine the precise cause of death. There was neither an ante mortem nor post mortem
examination of the victim’s body for purposes of ascertaining the nature and extent of any wounds
that may have been sustained as a result of the beating. The significance of evidence on the precise
nature of the injuries sustained by the deceased is that it often leads the careful examiner to uncover
the real cause of death. Therefore, the examination of a wound, from the legal point of view, should
lead to the determination as to when the wound was inflicted, what the degree of danger of the
wound is, with its dangers to life or function, whether the wound was given by the injured man
himself, or by some one else, and with what manner of instrument the wound was
produced.18 Wharton and Stille’s provides a valuable discussion on the importance of ascertaining
the degree of injury sustained by the victim –

In considering the extent of injury done, account must be taken of the injury to the function of
the various organs, and also the danger to life. A division into mortal and nonmortal wounds,
if it could be made, would be very desirable; but the unexpected complications and the
various extraneous causes which give gravity to the simplest cases, and, on the other hand,
the favorable termination of some injuries apparently the most dangerous, render any such
classification impracticable. The general classification into slight, severe, dangerous, and
mortal wounds may be used, but the possibility of the slight wound terminating with the loss
of the person’s life, and the apparently mortal ending with only a slight impairment of some
function, must always be kept in mind. x x x

The danger to life of any wound is dependent upon a number of factors: the extent of the
injury, the form of the wound, the region of the body affected, the blood vessels, nerves, or
organs involved, the entrance of disease-producing bacteria or other organisms into the
wound, the age and constitution of the person injured, and the opportunities for administering
proper surgical treatment. No one should be willing, on theoretical grounds alone, to give an
opinion as to the agency of the wound in producing death. A careful post-mortem
examination will usually show the violent cause of death, and it is the duty of the physician
whose opinion is desired, to make that examination most carefully, and to base his opinion
entirely upon the findings of this examination; not upon previous notions of the probable
 nature and effects of the wound. Moreover, it is necessary not merely to make an
examination of the regions apparently involved in the injury, but also a thorough examination
of the entire body; for, notwithstanding the immediate cause of death may be evident, it is
still advisable to be sure that there was no cause of death in any other part. 19x x x

In the case at bar, not an iota of evidence on these points is extant in the records of this case. The
testimonies of the prosecution witnesses, none of whom were competent to conduct a medico-legal
examination of the victim’s body, on the injuries sustained by Rufina are, to say the least,
inconsistent - Rodolfo Matyaong, Jr., the only eyewitness to the attack, was unable to state on what
parts of his mother’s body the blows fell; Wilfredo Tablazon said that Rufina had contusions on both
her arms; Roberta Paz declared that there were bruises all over her daughter’s body; and Sgt.
Caburnay noted bruises and hematoma on the victim’s left arm and back. These haphazard
observations will certainly not suffice for purposes of a criminal proceeding, wherein a man’s liberty,
and maybe, even life, are at stake.

In addition, the fact that the victim was suffering from severe diarrhea and vomitting, a condition
prevalent in the locality at the time, both prior to and after the assault, according to the testimony of
both prosecution and defense witnesses,20 and that she did not die immediately after the beating, but
almost two days later, makes evidence on the exact cause of her death even more imperative. It is
very possible that Rufina died due to food poisoning, of which vomitting and diarrhea are classic
symptoms.21 "Irritant foods and food poisoning, on account of organic and vegetable fermentation,
may cause serious gastric, as well as intestinal, irritation; and there may ensue a still further
conversion of these altered food products into poisonous substances, by a well-known physico-
chemical process, called ptomains, leukomains, etc., and these may be absorbed into the circulation
of the blood, and cause peculiar symptoms of intoxication by the secondary poisonous
products."22 When two possible causes of death are present, a doubt is created as to the actual
cause, which can only be overcome by expert testimony by a qualified physician who conducted a
thorough examination of the victim.23

In the case of U.S. v. Palalon,24 where accused struck the victim with the back of his hand, a few
hours after which the victim contracted a fever and died two and one-half days later, the Court
acquitted the accused of the charge of homicide on the ground that the cause of death had not been
established, despite the fact that a physician had conducted an examination of the deceased’s body
and had linked the blows sustained by the victim to his death. The Court held that –

There is no question as to the fact that the defendant struck the deceased a blow on the
mouth. But it is extremely doubtful that the blow either directly or indirectly caused the death.
It is not denied that fever was prevalent in the locality in July, 1925, and it is quite probable
that the death of the deceased was due entirely to natural causes. The theory of the
prosecution is that the deceased, in falling down, received fatal internal injuries, and bases
its conclusions on the testimony of Dr. Jose V. Valero, who stated in substance that he
examined the body of the deceased on the day following the death and found ecchymosis on
the right shoulder and on the stomach and that, as a result of the former, there was a
congestion of the right lung, which was the principal cause of the death; that the blows
causing the ecchymosis must have been of such force as to have made its effect felt
immediately; and that the victim could not have continued working. 1âwphi1.nêt

No proper autopsy of the body was made, and through the testimony of the boy’s father and
that of the witnesses for the defense, it has been proven conclusively that the deceased,
contrary to the doctor’s theory of the case, continued to work for more than a day after he
received the blow. The ecchymosis testified to by the doctor may have been nothing but
 suggillations or "death spots" formed after the death; the fact that the marks were found both
on the stomach and on the back of the deceased so indicates. x x x

In the present case the examination of the body took place over twenty-four hours after the
death and appears to have been very incomplete; no incisions were made and the
examining physician, a young man of limited experience, admitted that his conclusions were
partly based upon the statements of the members of the family of the deceased. In these
circumstances the conclusions cannot have been much more than mere guesses. In this
connection we may say that in cases of death under suspicious circumstances it is the duty
of the physician performing the post mortem examination to exercise the utmost care and not
draw unwarranted conclusions from external appearances susceptible of different
interpretations.

Meanwhile, in People v. Ilustre,25 the Court affirmed the judgment of conviction of defendant for
homicide based upon the opinion of three doctors who held that the death was caused by blows
inflicted upon the deceased’s right hypochondrium, which bruised the liver and produced an internal
hemorrhage. Further, the Court held that "[t]he fact that the deceased … suffered from incipient
pulmonary tuberculosis does not affect the defendant’s criminal liability, for even if it rendered the
blow more fatal, the efficient cause of the death remains the same."

In People v. Ulep,26 the Court held accused liable for the death of his wife based primarily upon the
autopsy report which described the cause of death as cardiac arrest and primary shock caused by
strong pressure applied on the upper front chest bone, since it was conclusively established that
accused had elbowed his wife on the chest. In light of the autopsy report, the Court was
unconvinced by the defense’s argument that death was caused by a chronic condition of the
deceased, holding that –

Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis,
if the blow delivered by the accused (a) is the efficient cause of death; or (b) accelerated his
death; or (c) is the proximate cause of death; then there is criminal liability. 27

All these cases lead to the inescapable conclusion that in order to hold a person liable for the death
of another, the evidence must establish beyond a reasonable doubt that accused’s criminal act was
the proximate cause of such death. Such proof is especially crucial when there are several possible
causes of death. In the case at bar, even assuming that the victim was afflicted with food poisoning,
accused-appellant may still be held liable for her death if the prosecution had presented proof that
accused-appellant’s act of beating his wife was the efficient or proximate cause of death, or had
accelerated her death, which it did not.

No man is convicted on a probability. The accused is entitled to an acquittal, unless his guilt is
shown beyond a reasonable doubt. This means that the prosecution has the burden of establishing,
beyond reasonable doubt, each and every element constituting the crime charged. This is premised
upon the accused’s constitutionally guaranteed right to be presumed innocent. 28

There being no evidence on the injuries sustained by Rufina Matyaong and the cause of her death,
accused-appellant is entitled to an acquittal for the Court entertains a reasonable doubt that his
actions have in fact caused the death of his wife.

Although it is perhaps possible to convict accused-appellant under paragraph 3 of Article

266,29 which does not require proof of injury, still, the penalty for the same being only arresto menor,
and it appearing that accused-appellant has been detained in prison for a period greatly in excess of
that penalty, we find it unnecessary to provide for further punishment.
WHEREFORE, accused-appellant is hereby ACQUITTED of the crime of parricide.

SO ORDERED.

c. Elements of criminal liability

d. Impossible crime

Jacinto v. People, G.R. No. 162540, July 13, 2009

610 Phil. 100

PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T.
Jacinto seeking the reversal of the Decision[1] of the Court of Appeals (CA)
in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's
conviction of the crime of Qualified Theft, and its Resolution [2] dated March
5, 2004 denying petitioner's motion for reconsideration.

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

That on or about and sometime in the month of July 1997, in Kalookan

City, Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one
another, being then all employees of MEGA FOAM INTERNATIONAL
INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had
free access inside the aforesaid establishment, with grave abuse of trust and
confidence reposed upon them with intent to gain and without the
knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and deposited in their own account,
Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of
P10,000.00, representing payment made by customer Baby Aquino to the
Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the
aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]
The prosecution's evidence, which both the RTC and the CA found to be
more credible, reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649
postdated July 14, 1997 in the amount of P10,000.00. The check was
payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and
petitioner was then the collector of Mega Foam. Somehow, the check was
deposited in the Land Bank account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of petitioner and the former
pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received

a phone call sometime in the middle of July from one of their customers,
Jennifer Sanalila. The customer wanted to know if she could issue checks
payable to the account of Mega Foam, instead of issuing the checks payable
to CASH. Said customer had apparently been instructed by Jacqueline
Capitle to make check payments to Mega Foam payable to CASH. Around
that time, Ricablanca also received a phone call from an employee of Land
Bank, Valenzuela Branch, who was looking for Generoso Capitle. The
reason for the call was to inform Capitle that the subject BDO check
deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former

employee/collector of Mega Foam, asking the latter to inform Jacqueline
Capitle about the phone call from Land Bank regarding the bounced check.
Ricablanca explained that she had to call and relay the message through
Valencia, because the Capitles did not have a phone; but they could be
reached through Valencia, a neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.

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

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to

confirm that the latter indeed handed petitioner a BDO check for
P10,000.00 sometime in June 1997 as payment for her purchases from
Mega Foam.[4] Baby Aquino further testified that, sometime in July 1997,
petitioner also called her on the phone to tell her that the BDO check
bounced.[5] Verification from company records showed that petitioner never
remitted the subject check to Mega Foam. However, Baby Aquino said that
she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]

Generoso Capitle, presented as a hostile witness, admitted depositing the

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

Meanwhile, Dyhengco filed a Complaint with the National Bureau of

Investigation (NBI) and worked out an entrapment operation with its
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked
and dusted with fluorescent powder by the NBI. Thereafter, the bills were
given to Ricablanca, who was tasked to pretend that she was going along
with Valencia's plan.

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

On the agreed date, Ricablanca again went to petitioner's house, where she
met petitioner and Jacqueline Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided
not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded
petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca
alighted from the jeep and entered the premises of Baby Aquino,
pretending that she was getting cash from Baby Aquino. However, the cash
she actually brought out from the premises was the P10,000.00 marked
money previously given to her by Dyhengco. Ricablanca divided the money
and upon returning to the jeep, gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents,
who had been watching the whole time.

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

The defense, on the other hand, denied having taken the subject check and
presented the following scenario.

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

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

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

WHEREFORE, in view of the foregoing, the Court finds accused Gemma

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

SO ORDERED.[7]

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

IN VIEW OF THE FOREGOING, the decision of the trial court

is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed

only for petitioner Gemma Tubale Jacinto, but the same was denied per
Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner

alone, assailing the Decision and Resolution of the CA. The issues raised in
the petition are as follows:
 1. Whether or not petitioner can be convicted of a crime not charged in
the information;

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

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

reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to

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

However, as may be gleaned from the aforementioned Articles of the

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

In this case, petitioner unlawfully took the postdated check belonging to

Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the crime of
qualified theft was actually produced.
The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the

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

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

incurred:

xxxx

2. By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate to
ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. - When
the person intending to commit an offense has already performed the acts
for the execution of the same but nevertheless the crime was not produced
by reason of the fact that the act intended was by its nature one of
impossible accomplishment or because the means employed by such person
are essentially inadequate to produce the result desired by him, the court,
having in mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed
would be an offense against persons or property; (2) that the act was done
with evil intent; and (3) that its accomplishment was inherently impossible,
or the means employed was either inadequate or ineffectual. The aspect of
the inherent impossibility of accomplishing the intended crime under
Article 4(2) of the Revised Penal Code was further explained by the Court
in Intod[10] in this wise:

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

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

Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime.

xxxx

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

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]

In Intod, the Court went on to give an example of an offense that involved

factual impossibility, i.e., a man puts his hand in the coat pocket of another
with the intention to steal the latter's wallet, but gets nothing since the
pocket is empty.

Herein petitioner's case is closely akin to the above example of factual

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

The fact that petitioner was later entrapped receiving the P5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v.
People[12] that under the definition of theft in Article 308 of the Revised
Penal Code, "there is only one operative act of execution by the actor
involved in theft â"€ the taking of personal property of another."
Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308,

there is one apparent answer provided in the language of the law -- that
theft is already "produced" upon the "tak[ing of] personal property of
another without the latter's consent."

xxxx

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

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is

deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of one's personal property, is

the element which produces the felony in its consummated stage. x x x [13]
From the above discussion, there can be no question that as of the time
that petitioner took possession of the check meant for Mega
Foam, she had performed all the acts to consummate the crime
of theft, had it not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the P5,000.00 cash as
supposed replacement for the dishonored check was no longer necessary
for the consummation of the crime of qualified theft. Obviously, the plan to
convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee bank.
Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation
of the theft. At most, the fact that petitioner was caught receiving the
marked money was merely corroborating evidence to strengthen proof of
her intent to gain.

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

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

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

SO ORDERED.

e. Stages of execution

People v. Mingming, G.R. No. 174195, December 10, 2008

G.R. No. 174195             December 10, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CATALINO MINGMING y DISCALSO, accused-appellant.

DECISION

BRION, J.:

The subject of this mandatory appeal is the Decision dated July 28, 2005 of the Court of Appeals
(CA) in CA-G.R. CR.-H.C. No. 001491 which affirmed with modification the decision dated March 22,
2004 of the Regional Trial Court (RTC), Branch 128, Caloocan City, in Criminal Case Nos. C-54195,
C-54196, and C-54197.2 The RTC convicted accused-appellant Catalino Mingming y
Discalso3 (Catalino) of three (3) counts of statutory rape and imposed on him the penalty of reclusion
perpetua for each count. The Informations (all dated July 6, 1998) under which he was prosecuted
read:

Criminal Case No. C-54195

That sometime on (sic) May, 1998 in Caloocan City, Metro Manila, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there willfully (sic),
unlawfully and feloniously succeeded in sexually abusing or having sexual intercourse with
one AAA, a virgin, and 10 years of age.

Contrary to Law.

Criminal Case No. C-54196

That on or about the 29th day of June, 1998 in Caloocan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully
(sic), unlawfully and feloniously succeeded in sexually abusing or having sexual intercourse
with one AAA, a virgin, and 10 years of age.

Contrary to Law.

and,

Criminal Case No. C-54197

That on or about the 29th of June, 1998 in Caloocan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully
(sic), unlawfully and feloniously succeeded in sexually abusing or having sexual intercourse
with one AAA, a virgin and 10 years of age.

Contrary to Law.

Catalino was arraigned on September 1, 1998 with the assistance of counsel and pleaded "not
guilty" to the charges. At the trial on the merits, the prosecution presented testimonial 4 and
documentary5 evidence, while the defense relied on denial and alibi testified to by the accused
himself.

ANTECEDENT FACTS
Ten-year old AAA6 and her younger brother, CCC, were residents of Barangay Deparo, Caloocan
City. They lived in the house of Alfonso Obispo (Alfonso) to whom their father entrusted their care.
Catalino was their neighbor.

Sometime in May 1998 at noontime, AAA answered the call of nature outside Alfonso's house. 7 She
went to a vacant lot behind a Petron gas station located away from Alfonso’s house. While there,
Catalino appeared, grabbed and pulled her right ankle, causing her to fall to the ground. AAA tried to
break away but Catalino clung to her ankle and pulled her to a portion of the lot with tall grasses
where he laid her down on bundles of wood (pahigang kahoy). To subdue her, Catalino covered her
mouth and poked a kitchen knife at her neck, at the same time undressing her by removing her
shorts and panty. Thereafter, he removed his own shorts, placed himself on top of AAA, and
proceeded to have sexual intercourse with her by inserting his penis into her vagina. During the
sexual intercourse, Catalino held AAA's hands to prevent her from pushing him. Done with the act,
he threatened her, "Huwag kang magsusumbong, papatayin ko kayo."8 AAA went home and kept
what transpired to herself.

The incident was repeated in the morning of June 29, 1998 when Catalino tricked AAA into going to
his house, ostensibly to get money for cigarettes he had ordered AAA to buy. Catalino followed her
and there, pulled her and again threatened her with a knife. 9 He then undressed her and himself, and
proceeded to have sexual intercourse with her. The sexual abuse was repeated on the same day
before AAA went home.

This time, AAA reported the incidents to the Obispos. Alfonso, his son (Joel Obispo) 10 and AAA
reported the rapes to then Barangay Executive Officer Humphrey Durana, 11 who endorsed the report
to the police. SPO1 Emilio E. Mabalot12 conducted the police investigation and thereafter referred
AAA to Dr. Anthony Llamas, a Philippine National Police medico-legal officer, for medical
examination. The genital examination disclosed a deep-healed laceration at the 6 o’clock position of
her hymen indicating that she was no longer a virgin. The Initial Laboratory Report 13 dated July 2,
1998 states:

GENITAL:

... On separating the same disclosed a congested posterior fourchette and a

membranous-type hymen with a deep healed laceration at the 6[o]' clock position.
External vaginal orifice admits the tip of the examiner's smallest finger.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of physical trauma. 14

BBB,15 the mother of AAA, learned that her daughter had been sexually molested when she received
a letter from the Department of Social Welfare and Development, Caloocan City. She allegedly
suffered mental anguish for what happened to AAA and also incurred expenses in filing cases
against Catalino.

Catalino denied raping AAA although he admitted knowing her. 16 He claimed that he seldom saw her
since he went to work early and came home late. 17 He further claimed that at the time of the alleged
first incident, AAA had been with her father and only returned to the Obispos on June 20, 1998. 18 He
also claimed that the cases were filed against him because he refused to lend the P3,000.00 that the
Obispos needed for their rental payment. 19 In fact, Joel Obispo even remarked to him that "Madamot
ka, may mangyayari sa inyo." It was after that incident that Alfonso and Joel had him arrested on the
charge of raping AAA. They brought him to the barangay office where a tanod boxed him to force
him to admit the rape.20

The RTC rejected Catalino's defenses of denial and alibi and found him guilty of three counts of
rape. On appeal,21 the CA affirmed Catalino's conviction with a modification on the award of
damages.22 The dispositive portion of the appellate court's decision states:

WHEREFORE, premises considered, the decision of the court a quo finding Catalino

Mingming y Discalso guilty of three (3) counts of Statutory rape is AFFIRMED with
the MODIFICATION that the accused-appellant is sentenced to suffer the penalty of three
(3) reclusion perpetua to be served successively and that the accused-appellant is ordered
to pay the victim, for each count of rape, the amount of P50,000.00 as civil indemnity and
P25,000.00 as exemplary damages, in addition to the P50,000.00 moral damages awarded
by the trial court.

Costs against the accused-appellant.

SO ORDERED.23

The CA affirmed the RTC decision on the basis of AAA's testimony which it found credible. The CA,
in this regard, said:

The testimony of AAA is positive while that of the accused is negative. The positive prevails
over the negative. Being a ten-year old minor, AAA, a victim of sexual assault, is credible.
She has not yet absorbed the wiles of the world. Her testimony, considering her very young
age, was straightforward and candid. It is sufficient to convict the accused.

xxxxxxxxx

.... The spontaneity with which the victim has detailed the incidents of rape, the tears she has
shed at the stand while recounting her experience, and her consistency almost throughout
her account dispel any insinuation of a rehearsed testimony. The eloquent testimony of the
victim coupled with the medical findings attesting to her non-virgin state, should be enough
to confirm the truth of her charges.24

At the same time, the CA disbelieved Catalino’s defense that AAA had ill motives and was
influenced by Joel Obispo who bore a grudge against Catalino. The CA took note that it was AAA
herself who caused the filing of the cases against him. 25 Similarly, the CA discredited the defense's
argument that the absence of injuries negated the commission of rape; to the CA, the physical
evidence, as established from the medical findings of Dr. Llamas, corroborated her testimony that
she had been raped.26 The CA noted that rape can be established even in the absence of external
signs or physical injuries or a medical finding relating to such fact as these are not indispensable
requisites in proving a crime of rape.27

Catalino filed the present petition after the CA denied his motion for reconsideration in its Resolution
dated May 8, 2006.

ASSIGNMENT OF ERRORS
Catalino argues that the CA committed the following errors:

1. giving credence to the speculative, incredible, and inconsistent testimony of the private
complainant; and

2. finding him guilty beyond reasonable doubt of the crime charged.

Jointly discussing these issues in his Brief,28 Catalino highlights the errors committed by both the CA
and the RTC in believing AAA's testimony. He phrased this argument in the following terms: 29

In prosecution for rape, the testimony of the victim is generally scrutinized with great caution
for the crime is usually known to her and the rapist (People vs. Ibay, 312 SCRA 153). In the
case at bar, the private complainant's testimony is not convincing.

He advances the view that AAA's testimony suffered from serious flaws that should generate
disbelief for being contrary to human experience. Catalino further submits that: AAA's failure to
report the rape; her lack of physical injuries; her testimony that he was holding a knife on one hand,
and at the same time covering her mouth with the other while he was undressing her; and that she
even went to his house after the first incident – all demonstrate the incredibility of her testimony.
Catalino posits that the rape charges against him were concocted by AAA because she was mad at
him.30 He particularly emphasizes that the medical findings of Dr. Llamas showed that a mere three
(3) days after the alleged rape, the laceration found in AAA's genital organ was already
healed,31 thus medically giving lie to the rape charge.

Catalino finally avers that his defenses of denial and alibi have been amply established and should
not be disregarded given that the private complainant’s credibility is doubtful.

The Office of the Solicitor General maintains the correctness of Catalino's conviction as the
prosecution’s evidence -- premised on the credible testimony of AAA -- established his guilt beyond
reasonable doubt on all three counts of statutory rape.

OUR RULING

We affirm Catalino’s conviction in Criminal Cases No. C-54195 and No. C-54196 but acquit
him in Criminal Case No. C-54197.

In undertaking this appellate review, we shall be guided by the outlined considerations and by the
principle that an appeal opens the entire case for review.32

First, the accused enjoys the constitutional presumption of innocence until final conviction; conviction
requires no less than evidence sufficient to arrive at a moral certainty of guilt, not only with respect to
the existence of a crime, but, more importantly, of the identity of the accused as the author of the
crime.

Second, the prosecution's case must rise and fall on its own merits and cannot draw its strength
from the weakness of the defense.

Third, in rape cases, since the conviction of the accused is usually based on the accusation and
testimony of the victim-complainant, her testimony should be scrutinized with utmost caution and
must show clearly and definitely the commission of the rape and the identity of its perpetrator.
Fourth, the assessment of the credibility of the prosecution witnesses, in general, and of the rape
complainant, in particular, is a duty firmly lodged on the trial judge owing to his unique position; he
sees, perceives and appreciates details in the case that an appellate reviewing court is realistically
deprived of. Accordingly, utmost credit is given to the trial judge's findings in the absence of any
showing that he misappreciated, misapprehended, or overlooked any evidentiary fact or
circumstance material to the outcome of the case.

Lastly, Catalino was charged with and convicted of three counts of statutory rape that, although tried
jointly, must be treated and viewed as separate and distinct from each other. Thus, the elements of
the offense must be proven for each count of rape, save only for the element of age which runs
commonly for the three counts.

Statutory rape is committed by sexual intercourse with a woman below twelve years of age
regardless of her consent, or the lack of it, to the sexual act.33 Proof of force, intimidation or consent
is unnecessary; they are not elements of statutory rape;the absence of free consent is conclusively
presumed when the victim is below the age of twelve. 34 At that age, the law presumes that the victim
does not possess discernment and is incapable of giving intelligent consent to the sexual act. 35 Thus,
to convict an accused of the crime of statutory rape, the prosecution carries the burden of proving:
(1) the age of the complainant; (2) the identity of the accused; and (3) the sexual intercourse
between the accused and the complainant.

The prosecution presented proof of the presence of the required elements. The age of AAA, who
was only 10 years old at the time of the incidents complained of, is shown by her Birth Certificate;
she was born on May 3, 198836 while the alleged rapes were committed in May and June 1998. On
the other hand, the prosecution established Catalino’s identification as the perpetrator through the
victim’s positive identification in court.37 AAA categorically testified to the act of sexual intercourse,
identifying the perpetrator in the process. By established jurisprudence, sexual intercourse is shown
by proof of entry or the introduction of the male organ into the female organ; rape is consummated
by the mere "touching" or "entry" of the penis into the labia majora or the labia minora of
the pudendum of the victim’s genitalia.38 The required physical act and its surrounding details were
described by AAA when she testified as quoted below.

On the first rape in May 1998, she stated:

Q       When Taling pulled you in the grassy portion at the back of the Petron, what did he do
next?

A       Taling undress[ed] me, sir.

Q       What were you wearing then?

A       I was wearing short[s] and T-shirt.

Q       Did he remove all your clothings?

A       Yes, sir. [TSN, January 26, 1999, p. 7]

xxx

Q       You said that Taling removed his shorts, after Taling removed his shorts, what did he
do next?
 A       He inserted his penis, sir.

Q       Where did he insert his penis?

A       He inserted his penis into my vagina.

Q       And when he inserted his penis into your vagina, what is your position then?

A       I was lying, sir.

Q       And when he inserted his penis into your vagina, how did you feel?

A       It was painful, sir.[Id., p. 8]

On the second rape committed on June 29, 1998, AAA averred:

Q       And when he pulled you inside his house, what happened next?

A       He did something bad to me.

Q       Will you tell us what was bad that he did to you?

A       He again raped me, sir.

Q       When you said he again raped you, what do you mean rape?

A       He undressed me, sir.

Q       And what were you wearing then?

A       I was wearing T-shirt and shorts.

Q       And what clothing did he remove[d] from you?

A       My shorts and panty.

Q       And after he removed your shorts and panty what did he do next?

A       He also undressed himself.

xxx

Q       After removing his shorts, what did he do next?

A       He inserted his penis, sir. [Id., p. 15]

Fiscal Ralar to Witness -

Q       Where did he insert his penis?

 A       [In]to my vagina. [Id., p. 16]

Catalino’s plea for exoneration

Catalino mainly argues that AAA’s testimony is not believable. Arrayed against each other, however,
his version of events do not measure up to the same level of credibility that AAA’s version has
attained for being sincere, consistent, and fully in accord with common human experience.

First, Catalino attacks AAA’s testimony for her delay in reporting the rape. This imputed delay,
however, can only refer to the rape that occurred in May 1998; she reported the rapes of June 29,
1998 on the same day they were committed. In any case, we do not believe that delay in reporting a
rape should directly and immediately translate to the conclusion that the reported rape did not take
place; there can be no hard and fast rule to determine when a delay in reporting a rape can have the
effect of affecting the victim’s credibility. The heavy psychological and social toll alone that a rape
accusation exacts on the rape victim already speaks against the view that a delay puts the veracity
of a charge of rape in doubt. The effects of threats and the fear that they induce must also be
factored in. At least one study shows that the decisive factor for non-reporting and the failure to
prosecute a rape is the lack of support - familial, institutional and societal - for the rape victim, given
the unfavorable socio-cultural and policy environment.39 All these, to our mind, speak for themselves
in negating the conclusion that a delay in reporting a rape is per se sufficient basis to disbelieve an
allegation of rape. The more reasonable approach is to take the delay into account but to disregard it
if there are justifiable explanations for the victim’s prolonged silence.

In the present case, it appears that AAA was ready to suffer the first rape in silence had it not been
from the succeeding sexual attacks that forced her to seek the Obispos’ assistance. This was
apparent from her testimony when she declared: 40

Fiscal Ralar to Witness --

Q       Before Taling left when (sic) he sexually abused you at the back of Petron, did he
threaten you?

A       Yes, sir.

Q       How did he threaten you?

A       He told me that he will kill us.

xxx

Q       Why did you not tell your lolo Alfonso what Taling did to you?

A       I was afraid.

Q       To whom are you afraid?

Taling.

Q       Why were you afraid?

A       Because he threatened us sir. [TSN, January 26, 1999, p. 11]

Thus, due to the threats, she remained silent and only broke it when the accused repeated the
sexual attack. Apparently, the subsequent attacks brought her silence to the breaking point, forcing
her to come out in the open to prevent and avoid further repetitions.

Second, Catalino’s second argument focuses on what he saw as incompability between the physical
(medical) evidence and AAA’s testimony since she had healed lacerations when she was medically
examined on July 2, 1998 or 4 days after the June 29, 1998 incidents.

This argument assumes that the healed laceration pertains to the June 29, 1998 attacks and forgets
that before us are three incidents of rape, the first one occurring at least a month earlier (in May
1998). Additionally, the absence of fresh lacerations in the victim’s hymen does not negate sexual
intercourse, nor does it prove that she was not raped; 41 a hymenal laceration or its absence is merely
corroborative evidence that is not indispensable to a finding of rape. In the words of the Solicitor
General, whether the private complainant sustained injuries other than that noted on her hymen by
reason of the commission of the crimes is a collateral matter.42 It had nothing to do with proving the
elements of the crime.43 What is essential is proof of carnal knowledge between the accused and the
victim, i.e., that there be at least penile contact with the latter’s labia even without the laceration of
her hymen.44 Ultimately, a conviction for rape rests on the complainant’s testimony on the details of
the crime. If her testimony meets the test of credibility, that alone is sufficient to convict the
accused.45

Third, AAA’s presence in Catalino’s house (where the second and third rapes allegedly took place)
on June 29, 1998 despite having suffered an earlier rape, has to be viewed in the larger context of
Catalino’s relationship with AAA in order to be fully understood as a circumstance that should not
adversely affect AAA’s credibility.

AAA’s testimony shows that even before the first rape incident, she was already afraid of Catalino
who was a frequent visitor of the Obispos being a drinking buddy of Joel Obispo. 46 She became
afraid of him when he got mad at her for not obeying his orders to buy liquor. 47 This fear reached the
point when she could no longer obey his orders because she was already "too afraid" of him. 48 This
fear was further heightened when he threatened to kill them after the first rape. 49

It was under these circumstances that the rapes of June 29, 1998 took place. AAA testified that in
the morning of that day, she passed by Catalino’s house and she saw him there doing nothing. 50 At
around 8 a.m. of that same day, she and her little brother were alone in the Obispo house when
Catalino came on the pretext of asking her to buy cigarettes for him. At the same time, he asked her
to get the money (for the cigarettes) at his house. 51 Despite her fears (Kinabahan po ako!), she did
as she was told. It was while at Catalino’s house that she was attacked.

These facts sufficiently explain why AAA was at Catalino’s house in the morning of June 29, 1998.
Plainly and simply, she was a defenseless young girl subdued into obedience and submission by a
very much older man who had lust in his heart and his loins. The age disparity alone – AAA’s 10
years and Catalino’s 50 years – speaks volumes about this power relationship and how it facilitated
the sexual attacks that took place.

Fourth, Catalino tries to impress upon this Court that AAA filed a rape case because she was mad
at him. This argument, however, is not supported by evidence on record and is in fact contradicted
by Catalino’s own testimony that he had little interaction with AAA because he was always at
work.52 In the normal course of things, anger happens or is aroused by a specific reason; such
reason will hardly exist if one has very little interaction with another. Catalino’s failure to effectively
cite an ill motive for AAA’s charges, to our mind, all the more strengthens AAA’s credibility and the
validity of her charges.
Catalino also contradicts himself when he claimed that the grudge Joel Obispo bore against him is
the reason for the rape charges laid; later in his testimony, he admitted that he did not know of any
person who would convince AAA to accuse him of rape. 53 Separately from this contradiction, we
simply cannot believe that a woman in her right mind would lend her name and concoct a story of
repeated rapes to serve the ends of another person’s grudge. Even at her young age, AAA knew
that the rapes she suffered carry a stigma of shame. For her to come out in the open and publicly
describe her experience at a trial can only be taken as a badge of her sincerity and the truth of her
charges. As we held in People v. Dimaano:54

The revelation of an innocent child whose chastity has been abused deserves full credit, as
her willingness to undergo the trouble and the humiliation of a public trial is an eloquent
testament to the truth of her complaint. In so testifying, she could only have been impelled to
tell the truth, especially in the absence of proof of ill motive.

Denial and alibi

Our judicial experience teaches us that denial and alibi are the common defenses used in rape
cases. Sexual abuse is denied on the allegation that the accused was somewhere else and could
not have physically committed the crime. We have always held that these two defenses
are inherently weak and must be supported by clear and convincing evidence in order to be
believed. Moreover, being negative defenses, they cannot prevail over the positive testimony of the
complainant.55

For alibi to prosper it is not enough for the defendant to prove that he was somewhere else when the
crime was committed; he must likewise demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time. 56 Alibi necessarily fails when there is positive evidence of
the physical presence of the accused at the crime scene.

As the evidence stands, AAA has shown that Catalino was a neighbor whom she knew because he
was a regular visitor of the Obispos and a "drinking buddy" of Joel Obispo; 57 that Catalino was the
one who raped her at a vacant lot at noontime in May 1998; 58 and it was Catalino who again sexually
assaulted her at his (Catalino’s) house in the morning of June 29, 1998. 59AAA’s identification of
Catalino as the rapist was positive, clear and categorical.

As against these assertions is Catalino's alibi that he was in Sangandaan, Caloocan City (his place
of work) at the time of the rape. 60 We take judicial notice that Quezon City and Caloocan City are
directly adjoining cities whose distance from one another does not render it impossible for Catalino
to have been at the scene of the rape in the May 1998 rape. We agree, too, with the CA’s finding
that, even granting he was at work on June 29, 1998, his alibi that he was in Sangandaan, Caloocan
City cannot be given merit because Sangandaan is within the vicinity of the crime scene. He could
have easily been at the scene of the crime at the time of its commission.61 We likewise give little
weight to his claim that he was at work during the June 29, 1998 incidents. This is an uncorroborated
claim as he even failed to show by evidence that he was in fact employed. 62

Criminal liability

From the evidence presented, we hold that the prosecution amply established the age of the victim.
She was ten years old on the dates of the rapes charged as evidenced by her Birth Certificate.

The prosecution likewise adduced sufficient evidence showing the sexual intercourse between
Catalino and AAA on the first and second rapes (i.e., one in May 1998 and another on June 29,
1998). We see no reason to doubt the sincerity of AAA’s testimony regarding Catalino’s sexual
attacks. As we have ruled in not a few cases, when a woman, more so if she is a minor, says she
has been raped, she says, in effect, all that is necessary to prove that rape was committed. 63 Courts
usually give greater weight to the testimony of a girl who is a victim of sexual assault, especially a
minor, because no woman would be willing to undergo a public trial and put up with the shame,
humiliation and dishonor of exposing her own degradation; she does so only in her desire to rectify
an injustice and to punish the offender.64

However, we find no evidence of sexual intercourse or penile penetration with respect to the third
rape. We stress in this regard that Catalino stands charged and convicted of rape in three criminal
cases. For each of these cases, the prosecution must present evidence sufficient to overturn the
constitutional presumption of innocence that the accused enjoys as a matter of right. A finding of
rape is a conclusion of law that must be supported by clear and convincing evidence of the facts
constituting the elements of the crime. Thus, the prosecution must adduce evidence of sexual
intercourse in each of the rapes charged.

In the present case, the testimony of AAA on the second and third rape charges immediately
followed each other. When the prosecution asked the complainant, what she meant by the word
rape, she merely replied that she was "undressed" by Catalino. Follow-up questions had to be asked
by the prosecutor to establish that there was penile penetration of Catalino's male organ into AAA’s
vagina during the second rape, while no such questions were asked with respect to the third
rape.65 AAA’s testimony with respect to the third rape charge merely stated:

Q       How many times did accused Taling rape you on June 29, 1998?

A       Two times, sir. [TSN, January 26, 1999, pp. 16-17]

Fiscal Ralar to Witness -

Q       In what place did he rape you for the second time?

A       In his house, sir.

Q       At what time did the accused rape you for the second time?

A       Also at that time sir. [Id., p. 17]

In People v. Contreras,66 the absence of conclusive proof of the carnal knowledge – that there was
introduction of the accused’s male organ to the complainant’s vagina -- led to the acquittal of the
accused in one count of rape. Viewed in this light, we find Catalino's acquittal on the third rape
charge to be in order.

In making this conclusion, we are keenly aware that without proof of penetration, the crime
committed may still constitute attempted rape or acts of lasciviousness. 67 Attempted rape, however,
requires that the offender commence the commission of rape directly by overt acts but does not
perform all the acts of execution by reason of some cause or accident other than his own
spontaneous desistance.68 The prosecution must, therefore, establish the following elements of an
attempted felony:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;
 3. The offender’s act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.69

The evidence on record does not show that the above elements are present, The detailed acts of
execution showing an attempt to rape are simply lacking. Thus, we cannot hold Catalino liable for
attempted rape.

In the same manner, neither can we hold him liable for acts of lasciviousness under Article 336 of
the Revised Penal Code, as amended. This crime requires proof of the existence of the following
elements:

1. That the offender commits any act of lasciviousness or lewdness.

2. That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age.

3. That the offended party is another person of either sex.70

While the second and third elements of the offense are sufficiently established, the element of
lascivious conduct or lewd act on the part of the accused is not supported by the available evidence.
Hence, we cannot conclude that Catalino committed acts of lasciviousness as defined and penalized
under the Revised Penal Code.

The Proper Penalty

Statutory rape is penalized under Article 266-A(1), paragraph (d) of the Revised Penal Code, as
amended by Republic Act No. 8353 or the Anti-Rape Law of 1997. The crime carries the penalty
of reclusion perpetua unless attended by the qualifying circumstances defined under Article 266-B.

In the present case, evidence confirms the use of deadly weapon (a knife) during the commission of
the offense, this should be a qualifying circumstance that would raise the imposable penalty
to reclusion perpetua to death. We cannot, however, recognize this circumstance as qualifying.
When the law or rules specify certain circumstances that can aggravate an offense, or
circumstances that would attach to the offense a greater penalty than that ordinarily prescribed, such
circumstances must be both alleged and proved to justify the imposition of the increased
penalty.71 When a circumstance is not so alleged, it cannot affect the penalty and the corresponding
civil liabilities in line with our ruling in People v. Nuguid72 and People v. Sagarino.73

On the basis of this analysis of the applicable law, we find that the CA and the RTC correctly
imposed the penalty of reclusion perpetua for each of the first and second rapes. We also sustain
the awards of civil indemnity, moral damages and exemplary damages in the two cases in
accordance with prevailing jurisprudence on the matter. 74 Civil indemnity is awarded upon the finding
of rape.75 Similarly, moral damages are awarded to rape complainants without need of pleading or
proof of its basis; the law assumes that a rape complainant actually suffered moral injuries entitling
her to the award.76 Exemplary damages, on the other hand, are awarded in rape cases to serve as
deterrent against the commission of this bestial offense. 77

Catalino’s acquittal of the third rape charged necessarily carries the deletion of the accompanying
awards of civil indemnity and damages made by the lower courts.

WHEREFORE, premises considered, we hereby AFFIRM the decision dated July 28, 2005 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00149 insofar as it finds Catalino Mingming y Discalso
guilty of statutory rapes in Criminal Cases No. C-54195 and No. C-54196. We REVERSE and SET
ASIDE his conviction in Criminal Case No. C-54197.

SO ORDERED.

People v. Pareja, G.R. No. 88043, December 9, 1996

G.R. No. 88043 December 9, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO PAREJA, JOSE TOLEDO and JOHN DOE, accused-appellants.

PANGANIBAN, J.:p

Senseless killing takes on an almost blase signification in the instant case, where the accused tried but failed to asport a TV set and
'betamax' machine, and instead ended up killing a defenseless person. Attempted robbery with homicide, committed in the name of a few
mundane material goods. Unfortunately, this is no longer unusual or shocking nowadays, as it seems that life has become cheap. And that's
precisely what is so painfully tragic for all of us.

Together with Antonio Pareja and one John Doe, herein accused-appellant Jose Toledo was
charged before the Regional Trial Court of Legazpi City, Branch 8, with the crime of attempted
robbery with homicide in an Information  which reads as follows:
1

That on or about the 22nd day of November, 1986, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another, with intent of gain,
being then armed with a knife and by means of violence and intimidation, did then
and there wilfully, unlawfully and feloniously enter the house of HENEROSO (should
be "Generoso") JACOB, by forcibly detaching the bamboo wall of the kitchen and
once inside, threatened the occupants thereof and demanded for the video machine
trade mark "betacord", however Sabina Jacob grabbed the cloth covering the face of
accused Antonio Pareja which caused the latter to scamper away together with the
two other accused and on the occasion of said attempted robbery the accused
Antonio Pareja, with intent to kill, wilfully, unlawfully and feloniously stab (sic) said
HENEROSO JACOB several times consequently inflicting injuries which directly
caused his death; thus said accused commencing the commission of the crime of
Robbery directly by overt acts and was (sic) not able to perform all the acts of
execution which would have produced the felony by reason of some cause or
accident other than their own spontaneous desistance. That there is present in the
commission of the offense the aggravating circumstance of night time.
 CONTRARY TO LAW

At his arraignment on June 23, 1987, appellant Toledo pleaded not guilty to the charge.  His two co-
2

accused have remained at large.

The Facts

According to the Prosecution

The family of 54-year-old Generoso Jacob  resided in a one-bed-room house in Pawa, Legazpi City.
3

At around 2:00 o'clock in the morning of November 22, 1986, Generoso was asleep on a folding bed
in the kitchen, three steps below the living room where his wife Amada, and their children Shirley,
Alberto, Marlene and Sabina were sleeping.

A six-and-a-half feet high partition separated the living room from the
2 x 3 meters bedroom which was lighted by a 50-watt bulb. Asleep in the bedroom, about four
meters away from the kitchen, were Generoso's daughter Emelita, her husband Romeo Ramirez,
and their baby Marlon.

Kept in the said bedroom was a 14" Sanyo color TV which had been brought from Saudi Arabia by
Generoso's son, Rafael. In the living room was a 'betamax' with three components.

The family was roused from sleep by shouts of "Gising kayo, huwag sumigaw!" Three masked
intruders had gained entry into the house. Amada saw one of them asking Sabina for the betamax.
The same fellow tried to lift and carry off the machine but it proved to be too heavy for him. Almost
without thought, Sabina snatched off his mask and recognized him to be Antonio Pareja, who used
to frequent their house and take lunch at Emelita's store, as he was even one of Emelita's
gangmates.  The latter tried to stab Sabina but she evaded the thrust and swiftly jumped out the
4

window. 5

Emelita was awakened by her father's cries of "tabangi ako nindo" ('please help me'). Instinctively,
Emelita also screamed for help from their neighbors, but one of the robbers poked a white-and-gold
colored gun at her "sentido" (temple), and neither she nor her husband could lift a finger. The
gunwielder's face was covered by a t-shirt, except for his nose. Incidentally, Emelita recognized the
T-shirt to be hers, which she had left hanging on the clothesline outside the house. The man uttered,
"Huwag kayong sisigaw kung ayaw ninyong mamatay, nasaan yung TV?" When she answered,
"diyan," the man tried to lift the television set. Failing to do so, he called out, "Ger, tulungan mo ako."
But no one responded to his call. While he was thus distracted, Emelita grabbed at the T-shirt and
unmasked him, thus recognizing him to be herein appellant Toledo. She thus confirmed her earlier
suspicion about his identity based on his body build and voice.  As the neighbors were starting to
6

respond to her cries for help, the trio fled empty-handed.

Hearing her husband's moans, Amada went to the kitchen, where she saw Generoso lying in a pool
of blood on the cemented floor. She embraced him but be merely looked at her, tried to open his
mouth and expired.  He had bled profusely from the wound on his chest.
7

Generoso was autopsied at the Funeraria Oro by Dr. Cesar Chua of the Albay Provincial Hospital,
who found that the victim sustained a 2-cm. penetrating stab wound at the level of the nipple, left
parasternal line; a 2-cm. incised wound at the pulmonary arterial trunk; another 1 cm. incised wound
at the outlet of the right ventricle, and hemoperitoneum.  Dr. Chua opined that Generoso's wounds
8

could have been caused by only one sharp, pointed and long instrument. 9
A police photographer took pictures of the damaged bamboo portion of the kitchen used for drying
dishes,  which the robbers detached in order to gain entry into the house.
10

The Defense's Version

In his own defense, appellant interposed alibi. He swore that in the "evening of November 22, 1986,"
he attended the wake of Nerry Armario in Bogtong, Legazpi City, and he stayed there until "past 3:00
o'clock early morning of the following day."  Santos Armario testified that his wife Nerry died on
11

November 22, 1986 and that at around 9:00 o'clock that evening, appellant arrived at his house
where he stayed until "early morning of November 23, 1986."  Armando Armario and Eduardo
12

Armario both testified that appellant arrived for the wake "more or less nine in the evening of the
same day." 13

The defense also presented the victim's daughter Sabina as their witness. She swore that of the
three robbers, she was able to recognize only Antonio Pareja. She failed to see the other two culprits
because one was in the bedroom and the other was in the kitchen while she was in the sala being
held at knifepoint by Antonio Pareja. She affirmed that Pareja indeed had two companions during
that incident.

The Trial Court's Ruling

On March 6, 1989, the trial court  rendered its Decision  holding that appellant's denial and alibi
14 15

could not prevail over the positive identification by Emelita of appellant himself and Antonio Pareja
as the malefactors, adding that there was no reason at all for Emelita to unjustly and falsely finger
appellant as one of the culprits. The court a quo opined that, although it may have been true that
appellant did attend the wake in Bogtong, it was however not impossible for him to have left the
wake with two companions to commit the crime in nearby Pawa. While pointing out that it was
Antonio Pareja "who was responsible for inflicting the fatal injuries" upon the victim, the trial court
ruled that appellant "should likewise be held equally liable" for the death. It thus disposed of the case
as follows:

WHEREFORE, the prosecution having proved the guilt of accused beyond

reasonable doubt, accused Jose Toledo is hereby convicted of the offense charged,
and is sentenced to reclusion perpetua, with all the accessory penalties provided by
law and to pay the costs. Accused Jose Toledo is moreover ordered to indemnify the
heirs of the late Heneroso Jacob in the amount of P30,000.00.

Accused Jose Toledo, who has been under detention since April 29, 1987, is given
full credit for his preventive imprisonment.

SO ORDERED.

Errors Assigned

In this appeal, appellant assigned the following errors:

The trial court erred in holding that there was a clear and positive identification of
Jose Toledo by the prosecution witnesses as one of the authors of the crime.

The lower court erred in not acquitting the accused-appellant Jose Taledo
reasonable doubt.
Appellant contends that prosecution witness Amada Jacob failed to place him at the scene of the
crime on account of her admission to the police that she could not identify the two companions of
Antonio Pareja. Neither could she have seen appellant inside the bedroom where he was supposed
to have threatened Emelita, because of the partition between the bedroom and the living room.
Moreover, appellant highlights that variance in the testimonies of Emelita and her mother regarding
the weapon used by appellant in threatening the former, with Emelita swearing that it was a knife
and Amada affirming that it was a gun. Appellant also claims that it was highly unlikely that Emelita
would have the courage to suddenly remove the mask from his face, on account of the gun pointed
at her head, and considering that her husband could not even do anything under the circumstances.
Lastly, appellant emphasizes the fact that Sabina, one of the victim's daughters, failed to identify the
other assailants apart from Antonio Pareja.

The Court's Ruling

Positive Identification

Very telling is the fact that appellant does not even discuss Emelita's testimony establishing his
presence at the crime scene, notwithstanding that it was Emelita whom he confronted and
threatened and who pulled off his mask inside the well-lighted bedroom. Appellant was no stranger
to the Jacob family; in fact, they were familiar with his build and his voice, since he frequented their
home when peddling fruit juices and homemade chocolates in Pawa.  Considering these
16

circumstances, in the absence of proof that she had any bias or ill-motive against appellant,
Emelita's sole identification of appellant as one of the three intruders in the Jacob residence stands
completely unscathed. Consequently, such identification suffices to obtain conviction even in the
absence of corroboration. 7 Besides, it would be unnatural for the relatives of the victim who seek
1

justice to commit an injustice by imputing the crime to innocent persons and not those who were
actually responsible therefor. 18

As regards the variance in the testimonies of Emelita and her mother Amada concerning the type of
weapon used by appellant in threatening the former, such alleged inconsistency is insignificant as it
refers only to a minor detail. Rather than eroding the credibility of their testimonies, such difference
in fact constitutes a sign of veracity.   It is a well-recognized fact that witnesses testifying about the
19

same nerve-wracking event can hardly be expected to be correct in every detail nor consistent with
other witnesses in every aspect, considering the inevitability of differences in their perception,
recollection, viewpoint or impressions, as well as in their physical, mental, emotional and
psychological states at the time of reception and recall of such impressions. After all, to begin with,
no two individuals are alike in term of powers of observation and of recall. Total recall or perfect
symmetry is not required as long as witnesses concur on material points. 20

We are also unpersuaded by appellant's contention that it would have been well nigh impossible for
Emelita to have the courage to snatch the mask off his face when she was being held at gunpoint,
and considering that her husband did not even dare lift a finger. While it is true that people faced
with danger usually become passive and submissive, it is equally true that there are some people
who are emboldened in sudden or impulsive reaction to a frightening experience. Different persons
have different reactions to similar situations. Man's behavior and reactions can never be
stereotyped.  In the same vein, it is not improbable or unusual for victims of or witnesses to crimes
21

or startling events to strive to recognize the culprits and observe the manner of commission of the
crime.22

Appellant also relies on the testimony of Sabina Jacob that she could not identify the two associates
of Antonio Pareja. This contention cannot be taken seriously. A careful reading of Sabina's testimony
shows why she was able to identify only Antonio Pareja — she focused her full attention on him as
he was the one with her in the living room.  Moreover, her statement that she was not able to identify
23

the other two intruders — one of whom was in the bedroom and the other in the kitchen — in no way
implied that he (Jose Toledo) was not among the three malefactors.

Alibi

As regards appellant's alibi, the Court has time and again ruled that alibi is the weakest of defenses
because it is easy to fabricate but difficult to prove. It cannot prevail over the positive identification of
the accused by witnesses. For the defense to prosper, the requirements of time and place (or
distance) must be strictly met: It is not enough to prove that the accused was somewhere else when
the crime was committed; he must also demonstrate by clear and convincing evidence that it was
physically impossible for him to have been at the scene of the crime during its commission. 24

In the case before us, such physical impossibility had not been proven, and in fact, quite the
opposite was shown. According to Fiscal Fidel Sarmiento, the distance between Pawa and Botong,
which are adjacent barangays, could be negotiated in ten to twenty minutes by crossing the river;
and appellant admitted that in travelling between Bogtong and Pawa to peddle his wares, he would
usually cross the river instead of passing through San Joaquin.  Even the corroborative testimonies
25

of appellant's drinking partners at the wake  are rendered valueless on account of the ease of going
26

back and forth between the two barangays, as well as in light of appellant's positive identification by
prosecution witnesses as one of the interlopers in the Jacob abode.

Non-Flight?

Moreover, the mere fact that, according to his companions at the wake, appellant did not flee the
crime scene, may not be deemed as indicative of his innocence. 7 There is no law or dictum holding
2

that non-flight of an accused is conclusive proof of innocence. 28

Credibility of Witnesses

On the whole therefore, appellant's guilt hinges on the issue of credibility. This Court has repeatedly
said that the task of assigning values to declarations on the witness stand is best and most
competently performed by the trial judge who, unlike appellate magistrates, can weigh such
testimonies in light of the declarant's demeanor, conduct and attitude at the trial and is thereby
placed in a more competent position to discriminate between the true and the false. The rule holds
firmly especially where, as in this case, the appellant failed to show any fact of substance which the
trial court might have overlooked that, when considered, may affect the result of the case.  No such
29

fact obtains in this case.

It is beyond dispute that the trial court correctly found appellant guilty beyond reasonable doubt of
the crime of attempted robbery with homicide as defined in Art. 297 of the Revised Penal Code.
Robbery was the intended purpose of the intruders' trespass into the residence of the Jacobs.
Generoso Jacob's killing was on the occasion of a robbery which, however, was not consummated.

The failure to cart away the goods due to their weight (something the culprits had not taken into
account) may not be considered as voluntary desistance from the commission of the crime so as to
remove the element of asportation from the complex crime charged. Such failure to consummate the
robbery was not caused solely by their own volition and inabilities. It was likewise brought about by
factors such as their unmasking and the arrival of neighbors who responded to Emelita's shouts for
help. These circumstances forced them to flee, leaving behind the objects.
Appellant is liable for attempted robbery with homicide even if he was not himself the author of the
killing of Generoso Jacob, for lack of evidence showing that he endeavored to prevent such slaying.
Thus, the general rule applies that whenever homicide is committed on the occasion or as a
consequence of robbery, all those who took part as principals in the robbery shall be held guilty of
the special complex crime of robbery with homicide although they did not actually take part in the
homicide.  The same principle applies even if the crime committed is attempted robbery with
30

homicide. 31

Pursuant to Art. 297 of the Revised Penal Code, the crime charged and proven in this case carries
the penalty of reclusion temporal in its maximum period to reclusion perpetua "unless the homicide
committed shall deserve a higher penalty." Said penalty is imposable in this case, there being no
ground to apply the exception mentioned in the article.

The aggravating circumstance of nighttime alleged in the Information was not conclusively proven.
For nocturnity to be considered as such circumstance, it must have been particularly sought by the
accused or taken advantage of by him to facilitate the commission of the crime or to ensure his
immunity from capture,  or otherwise to facilitate his getaway.
32

Nonetheless, we find that the aggravating circumstance of dwelling had been duly proven. Although
dwelling (morada) is considered as inherent in crimes which can only be committed in the abode of
the victim, such as tresspass to dwelling and robbery in an inhabited house, it has been held as
aggravating in robbery with homicide because the author thereof could have accomplished the
heinous deed of snuffing out the victim's life without having to violate his domicile.  Hence, in view of
33

this aggravating circumstance, the penalty imposable upon appellant shall be reclusion perpetua.  In 34

conformity with prevailing jurisprudential law,  indemnity for the death of Generoso Jacob shall be
35

increased to P50,000.00.

WHEREFORE, the challenged Decision finding appellant Jose Toledo guilty beyond reasonable
doubt of the crime of attempted robbery with homicide is hereby AFFIRMED, subject to the
modification that he shall indemnify the heirs of Generoso Jacob in the sum of fifty thousand pesos
(P50,000.00).

Let a copy of this Decision be furnished the Philippine National Police and the National Bureau of
Investigation which are herewith instructed to effect with dispatch the arrest of Antonio Pareja in
order that he too may stand trial for the crime charged and duly proven here.

SO ORDERED.

Valenzuela v. People, G.R. No. 160188, June 21, 2007

G. R. No. 160188              June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

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

DECISION

TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions 1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

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

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

I.

The basic facts are no longer disputed before us. The case stems from an Information 6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space. 7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00. 9

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

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

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

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

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

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

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño 27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.

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

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

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

III.

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

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

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

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

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

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

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

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

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

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

Theft is likewise committed by:

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

2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.

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

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

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

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property; 49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking. 51

So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s consent."

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

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

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

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

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla, 57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman." 58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:

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

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

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

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

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

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

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

Integrating these considerations, the Court of Appeals then concluded:

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

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

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

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

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

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

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

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

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

IV.

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

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:

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

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

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

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

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

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.

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

Son reos de hurto:

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

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

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

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

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

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

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

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados. 86

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

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

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

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

V.

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

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

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

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

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

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

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

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

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

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

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

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

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

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
f. Continuing crimes (Delito Continuado)

g. Complex crimes and composite crimes

People v. Optana, G.R. No. 133922, February 12, 2001

[G.R. No. 133922. February 12, 2001.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DEOLITO

OPTANA, Accused-Appellant.

DECISION

KAPUNAN, J.:

Upon a sworn complaint filed by Maria Rizalina Onciano on November 28, 1995, four (4)
Informations for violation of Section 5 of Republic Act No. 7610, or known as the
Special Protection of Children Against Child Abuse and four (4) Informations for Rape
were filed against herein accused-appellant Deolito Optana committed as follows: chanrob1es virtual 1aw library

1. Criminal Case No. 482-95 for rape: chanrob1es virtual 1aw library

That on or about the 28th day of October, 1995 at Sitio Daan Naugsul, Brgy. Mangan
Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of
force, intimidation and threats, did then and there willfully, unlawfully and feloniously,
have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 13 years
old and ten (10) months, against her will and consent, to the damage and prejudice of
the latter.

2. Criminal Case No. 483-95 for rape: chanrob1es virtual 1aw library

That on or about and during the month of October 1993, at Sitio Daan Naugsol, Brgy.
Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, actuated by lust and by
means of force, intimidation and threats, did then and there willfully, unlawfully and
feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of
11 years old and ten (10) months, against her will and consent, to the damage and
prejudice of the latter. chanrob1es virtua1 1aw 1ibrary

3. Criminal Case No. 484-95 for rape: chanrob1es virtual 1aw library

That on or about the month of September, 1995 at Sitio Daan Naugsul, Brgy. Mangan
Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of
force, intimidation and threats, did then and there willfully, unlawfully and feloniously,
have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 13 years
old and nine (9) months, against her will and consent, to the damage and prejudice of
the latter.
4. Criminal Case No. 485-95 for rape: chanrob1es virtual 1aw library

That on or about and during the month of September 1993, at Sibo Daan Naugsol,
Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, actuated by lust and
by means of force, intimidation and threats, did then and there willfully, unlawfully and
feloniously have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of
11 years old and nine (9) months, against her will and consent, to the damage and
prejudice of the latter.

5. Criminal Case No. 486-95 for Viol. Of Sec. 5(b) ART. III of Republic Act 7610 (Child
Abuse): chanrob1es virtual 1aw library

That on or about and during the month of September, 1993, at Sitio Daan Naugsol,
Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines and
within the jurisdiction of this Honorable Court, the said accused with lewd design, and
by means of intimidation, coercion, influence and other considetation (sic), did then and
there willfully, unlawfully, and feloniously have sexual intercourse with his stepdaughter
one Rizalina Onsiano, a minor of 11 years old and nine (9) months, to the damage and
prejudice of said Rizalina Onsiano.

6. Criminal Case No. 487-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child
Abuse): chanrob1es virtual 1aw library

That on or about the 28th day of October, 1995 at Sitio Daan Naugsol, Brgy. Mangan
Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the
jurisdiction of this Honorable Court, the said accused with lewd design, and by means of
intimidation, coercion, influence and other consideration, did then and there willfully,
unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina
Onsiano, a minor of 13 years old and ten (10) months, to the damage and prejudice of
said Rizalina Onsiano.

7. Criminal Case No. 488-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child
Abuse): chanrob1es virtual 1aw library

That on or about the month of September, 1995 at Sitio Daan Naugsol, Brgy. Mangan
Vaca, in the Municipality of Subic, Province of Zambales, Philippines and within the
jurisdiction of this Honorable Court, the said accused with lewd design, and by means of
intimidation, coercion, influence and other consideration, did then and there willfully,
unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina
Onsiano.

8. Criminal Case No. 489-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child
Abuse): chanrob1es virtual 1aw library

That on or about and during the month of October, 1993 at Sitio Daan Naugsol, Brgy.
Mangan Vaca, in the Municipality of Subic, Pronvice (sic) of Zambales, Philippines and
within the jurisdiction of this Honorable Court, the said accused with lewd design, and
by means of intimidation, coercion, influence and other consideration, did then and
there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter
one Rizalina Onsiano, a minor of 11 years old and ten (10) months, to the damage and
prejudice of said Rizalina Onsiano. 1

Upon arraignment, Accused-appellant pleaded not guilty to each of the above

informations.

The facts are as follows: chanrob1es virtual 1aw library

Maria Rizalina Onciano is the daughter of Nida A. Onciano who was born on December
13, 1981 at Tondo General Hospital. The father, Raul Gomez left Nida Onciano even
before Maria Rizalina was born. 2

Nida Onciano met the accused-appellant, Deolito Optana in 1985 at Doris Restaurant in
Olongapo City where they were both working. 3 They decided to live together in 1986
without the benefit of marriage even if accused-appellant knew that Nida Onciano
already had a daughter. Out of this common-law relationship, the couple had seven
children, the eldest being born in 1988 and the youngest, less than a month when the
accused-appellant testified in court in June, 1997. 4

In 1990, the couple moved to Subic and established residence at Sitio Daan Naugsol,
Manganvaca, Subic, Zambales with Maria Rizalina and three born children in tow. Maria
Rizalina started to go to school at Manggahan Elementary School, Subic, Zambales.

Sometime in September, 1993, Maria Rizalina was playing in the yard with her brothers
and sisters when her stepfather called for her to come up to the room. Her mother was
out of the house at that time. Upon entering the room, Maria Rizalina was ordered to
undress but she refused. The accused-appellant slapped her face twice on her cheeks
and threatened to box her. 5 He finally succeeded in removing her clothes. The
accused-appellant kissed Maria Rizalina on the mouth, on her breast, and on her private
parts. Thereafter, Accused-appellant removed his shorts, held both hands of Maria
Rizalina and went on top of her while she was lying on the wooden bed.

Accused-appellant inserted his penis into the vagina of Maria Rizalina. The latter felt
pain in her private part and shouted "masakit po." Accused-appellant stayed on top of
Maria Rizalina for about ten (10) minutes making "downward and upward movement"
or "pumping." Accused-appellant stood up, took a piece of cloth from the bed
(pamunas) and wiped the blood in his sex organ. Afterwhich, he gave the rag to Maria
Rizalina and told her to wipe her private part because there was blood on it. He told her
to dress up quickly since Maria Rizalina’s mother would arrive shortly. Maria Rizalina did
not tell her mother what happened to her because she was afraid of the Accused-
Appellant. She was threatened to be killed once she reports the incident. Maria Rizalina
was twelve (12) years old at that time of this fateful day.

On several occasions, whenever Nida Onciano was out of the house since she was busy
selling wares in the market, Accused-appellant raped Maria Rizalina. The victim could
no longer remember how many times she was raped but she particularly recalled that
on October 28, 1995, the accused-appellant raped her inside the room where she and
her brothers and sisters were sleeping. This was the last time that accused-appellant
touched her. 6chanrob1es virtua1 1aw 1ibrary
It was on November 24, 1995 when Nida Onciano noticed that Maria Rizalina’s tummy
was quite protruding while the latter was sleeping on the floor. Maria Rizalina at first
refused to answer her mother’s inquisitions but finally revealed that the accused-
appellant raped her. The next day, Nida Onciano asked her sister, Evelyn Nallos to
accompany Maria Rizalina to the doctor to have her examined. At the Olongapo City
General Hospital, Dr. Laila Patricio of the Obstetrics and Gynecology Department found
Maria Rizalina to be 6-7 months pregnant. Maria Rizalina told her that her stepfather
repeatedly raped her. The Medical Report revealed the following: chanrob1es virtual 1aw library

Medical Certification

November 27, 1995

TO WHOM IT MAY CONCERN: chanrob1es virtual 1aw library

This is to certify that RIZALINA ONSIANO 14 y/o, of Daangbakal, Daan Naugsog Subic,
Zambales was examined and treated/confined in this hospital on/from November 25,
1995 . . . with the following findings and/or diagnosis: chanrob1es virtual 1aw library

BREAST — Enlarged, areola 3.5 x 3.5 cm, no fissures nor hematoma.

ABDOMEN — FH 21 cm, FHT - /36/ min. RLQ

• Hymen not intact, vagina admits 2 fingers with ease, Cervix closed, uneffaced,
floating cephalic.

• Pregnancy uterine 6-7 months by size, not in labor.

(SGD.) LAILA S. PATRICIO, M.D.

Attending Physician 7

After Maria Rizalina’s statement was taken at the police station, a formal complaint was
filed against the accused-appellant on November 27, 1995. Considering Maria Rizalina’s
minor age, she was referred to the Municipal Social Welfare and Development Office for
assistance. Initial interviews revealed that Maria Rizalina was so confused considering
that her mother was pressuring her to withdraw the complaint against the stepfather. It
was then recommended that Maria Rizalina be committed to the Department of Social
Welfare and Development for protective custody and placed under the care of the
Substitute Home for Women in Especially Difficult Circumstances — Saup Lugud Center,
San Ignacio Subdivision, Pandan, Angeles City. 8

On February 23, 1996, Maria Rizalina delivered a baby boy at the "Hospital Ning
Angeles" in Angeles City whom she named Richard Onciano. The name of the father
was not indicated.

At the Saup Lugud Center, Maria Rizalina manifested signs of depression and violence
to the extent of killing herself. She was committed to the National Center for Mental
Health for treatment and rehabilitation.
The accused, on the other hand, denied having raped his stepdaughter. He testified
that his stepdaughter was always out of the house with her barkadas. In fact, her
mother, Nida was always complaining that she spent so much time looking for her. He
testified further that Maria Rizalina was always absent from school. He only learned
about the complaint for rape filed against him when he was apprehended by the police.

Deolito Optana testified that he met Nida Onciano in 1985 in a restaurant in Olongapo
City. He knew that Nida had a daughter but he still courted her and promised to take
care of both of them and help support in the education of Maria Rizalina.

Nida Onciano corroborated the accused-appellant’s testimony. She did not believe that
her common-law husband would rape her daughter because she considered her sexual
relationship with him as very satisfactory. She averred that it was her sister, Evelyn
Nallos who insisted on pursuing the case against Optana because of an old grudge
against them. Evelyn Nallos took care of two of the children of Nida Onciano and Deolito
Optana but who died of pneumonia and drowning during a flood. Since the death of the
children, her relationship with her sister had been estranged. Evelyn Nallos still wanted
to take her other children including Maria Rizalina but she refused.

On March 5, 1998, the RTC rendered a decision, the dispositive portion of which reads:
virtual 1aw library
chanrob1es

WHEREFORE, finding the accused Deolito Optana guilty beyond reasonable doubt by
direct participation of the crime of rape as defined and penalized under Article 335 of
the Revised Penal Code and for violation of Section 5(b) of Republic Act 7610, judgment
is rendered in the following manner: chanrob1es virtual 1aw library

1. In Criminal Case No. 485-95 for rape, the accused is sentenced to suffer the penalty
of reclusion perpetua with all the accessory penalties attached thereto and to indemnify
the minor Ma. Rizalina Onciano the amount of P50,000.00, moral damages in the
amount of P100,000.00, and exemplary damages of P100,000.00.

2. In Criminal Case No. 487-95, for violation of Section 5 (b) R.A. 7610, the said
accused is sentenced to suffer an indeterminate prison term of eight (8) years and one
(1) day of prision mayor as minimum to seventeen (17) years and four (4) months of
reclusion temporal as maximum with all the accessory penalties attached thereto and to
indemnify Ma. Rizalina Onciano the amount of P50,000.00, plus moral damages in the
amount of P100,000.00 and exemplary damages in the amount of P100,000.00.

3. The accused shall support Ma. Rizalina Onciano’s child Richard Onciano.

4. The accused is acquitted of the crimes charged in Criminal Case Nos. 482-95, 483-
95, 484-95, 486-95, 488-95, 489-95, for insufficiency of evidence.

5. The accused shall be entitled in full of his preventive imprisonment if he agreed in

writing to abide by all the disciplinary rules imposed on convicted prisoners, otherwise
to only 4/5 thereof.

6. Costs against the accused.

SO ORDERED. 9

Accused-appellant now comes to this Court with the following assignment of errors: chanrob1es virtual 1aw library

THE APPELLANT’S CONVICTION BY THE TRIAL COURT IS GROUNDED ON FACTS AND

ENVIRONMENTAL CIRCUMSTANCES THAT ARE INCONSISTENT AND IMPROBABLE TO
HAPPEN, AND THE ACTS CHARGED ARE NOT CLEAR, POSITIVE AND CONVINCING, AND
NOT CONSISTENT WITH HUMAN BEHAVIOR AND TITE (SIC) NATURAL COURSE OF
THINGS.

II

THE TRIAL COURT FAILED TO CONSIDER AND APPRECIATE THE ILL-MOTIVE AND
CONSUMING HATRED OF APPELLANT’S IN-LAWS WHO ORCHESTRATED THE FILING OF
THIS CASE, AND WHO WITH UNCANNY MEASURES PREVENTED THE DEFENSE THE
MUCH NEEDED CORROBORATIVE EVIDENCE.

III

THE TRIAL COURT FAILED TO CONSIDER AND APPRECIATE THAT THE ACTUATIONS
AND CONDUCT OF THE COMPLAINT AFTER THE INCIDENTS AND DURING THE TRIAL
WHEN INTERTWINED WITH OTHER FACTS DOES NOT CONFORM TO THE NORM OF
CONDUCT OF PEOPLE WHO ARE INJURED AND RAVAGED.

IV

THE COURT A QUO OVERLOOKED, MISUNDERSTOOD, MISAPPRECIATED AND

MISINTERPRETED MATERIAL FACTS OF IMPORTANCE AND SUBSTANCE WHICH IF
CONSIDERED AND GIVEN WEIGHT AND PROBATIVE VALUE WILL TILT THE SCALE OF
"LADY JUSTICE" IN FAVOR OF ACQUITTAL. 10

We agree with the trial court’s decision.

The victim, Maria Rizalina, first took the witness stand on August 7, 1996. She was,
however, observed to be psychologically and emotionally unprepared to testify at that
time so the trial court decided to postpone her testimony to a later date after her
complete rehabilitation at the National Center for Mental Health. 11 On January 22,
1997, Maria Rizalina was called back to the witness stand. Now very much calm and
composed, she gave a recount of her ordeal under her stepfather. She testified as
follows:chanrob1es virtual 1aw library

q Now, Ms. Onsiano, did you go to school sometime in September 1993?

a Yes, sir.
 x          x           x

q What school were you enrolled in 1993?

a Manggahan Elementary School, sir.

q School in 1993?

a Grade IV, sir.

q And who was supporting your education?

a My mother, sir.

q And aside from your mother, who else, if any, was helping your mother in providing
your educational expenses?

a Deolito Optana, sir, my stepfather.

q If Deolito Optana is inside the courtroom, will you be able to point him out to the
court?

a Yes, sir.

COURT

q Point him out.

x          x           x

a That’s him, sir.

x          x           x

q Now, how long have you been living with your mother together with your stepfather
Deolito Optana at Barangay Mangavaca, Subic, Zambales, prior to September 1993?

a Since I was in Grade 1, sir.

q Now, in September 1993, do you recall if Deolito Optana was still living with your
mother in your house at Mangavaca, Subic, Zambales?

a Yes, sir.

q Now, do you recall sometime in the afternoon or noontime of September 1993 while
you were in your house at Manganvaca, Subic, Zambales, if any unusual incident that
happened to you?
 x          x           x

a Yes, sir.

PROS. FLORESTA

q Could you please tell this Honorable Court what is that unusual incident that
happened in your house at Subic sometime in September 1993?

a I was raped, sir.

q By whom?

a By my stepfather, sir.

COURT

q And who is your stepfather?

a Deolito Optana, sir.

q Is Deolito Optana married to your mother?

a No, sir.

q So, he is a live-in partner of your mother?

a Yes, sir.

x          x           x

PROS FLORESTA

q And how did Deolito Optana raped (sic) you?

a He was forcing me, sir.

q Do you still recall what dress were you wearing at that time?

a No, sir.

q But you have clothes on your body?

a Yes, sir.

q And do you know what did the accused Deolito Optana do with your clothes?

a He was forcing me to undress or to remove my clothes, sir.

q And was he able to make you undress?

a No, sir.

q And when Deolito Optana failed to force you to undress, what did he do, if any?

a He was hurting me, sir.

COURT

q How was he hurting you?

a He was slapping me on my face, and sometimes he would threaten me that he would

box me, sir.

x          x           x

PROS FLORESTA

q And what did you do when Deolito Optana was hurting you by slapping you on your
face?

a I was scared, sir.

COURT

q How many times were you slapped on the face?

a Twice, sir.

q And what happened to you when you were slapped on the face?

a My cheeks were painful, sir.

x          x           x

PROS FLORESTA

q And after you were slapped by the accused, what else happened, if any?

a He was forcing me to undress and then, he repeatedly kissed me, sir.

q What part of your body was kissed by the accused?

a My mouth, my breast and my private part, sir.

q And after the accused kissed your private part, what did the accused do, if any?
a And afterwards, he was forcing to insert his penis into my vagina, sir.

q And do you still recall what the accused was wearing at that time?

a Yes, sir.

q Could you please tell us what was he wearing at that time?

a Yes, sir, shorts.

q And what did he do with his shorts?

a He removed his shorts, sir.

q And then after removing his shorts, what did the accused do, if any?

a After removing his shorts and underwear, he held both of my hands and went on top
of me, sir.

q And after he was able to move on top of you, what else did he do?

a He repeatedly kissed me and then, he was forcing to insert his penis into my vagina,
sir.

COURT

q Was he able to insert his penis into your vagina?

a Yes, sir.

q What did you feel?

a It was painful, sir.

COURT

Continue.

PROS. FLORESTA

q And what did you do when (sic) felt pain in your body after the accused had inserted
his penis?

a I shouted, sir.

COURT

q What did you shout?

a I said MASAKIT PO, sir.

q To whom did you address that?

a To the accused, sir.

q You are referring to the accused Deolito Optana?

a Yes, sir.

q Were you alone at that time?

a My brother and sister were there, sir.

q And how many brothers do you have?

a Two, sir.

q Where were they?

a Downstairs, sir.

q How many sisters do you have?

a One, sir.

q Where was she at that time?

a Downstairs, also, sir.

q How about your mother?

a She was not around, sir.

q Where was she? chanrob1es virtua1 1aw 1ibrary

a She left the house at that time, and I do not know where she went, sir.

q How long did the accused stayed on top of you?

a More or less, ten minutes, sir.

q What did you do during that period when he was on top of you?

a He was making a downward and upward movement, sir. He was pumping.

x          x           x

PROS. FLORESTA
q Now, after making those downward and forward movement, what happened?

a At first, he was trembling, sir.

q And then after that, what did the accused do?

a He stood up and he got a PAMUNAS, sir.

COURT

q Why would he have to take a wipe?

a It was because there was blood on his sex, sir.

q How about in your private part?

a Yes, sir, I was having blood in my private part.

q What else did you found (sic) out in your private part?

a It was painful, sir.

q Why was it painful?

a Because of his private part, I sustained a wound in my private part, sir.

x          x           x

PROS. FLORESTA

q Now, after the accused stood up, and got a piece of cloth and . . .

COURT

q Was he able to get this piece of cloth?

a Yes, sir.

q Where?

a On the HIGAAN, sir.

q What did he do with this?

a He used it in wiping his face, sir.

q What else did he do?

a After wiping his face, and gave the piece of cloth to me in order to wipe my vagina,
and he told me to do it faster, sir.

x          x           x

PROS. FLORESTA

q And why did the accused in this case told (sic) you to act faster?

a Because my mother was about to arrive, sir.

q So what did you do when the accused told you to wipe your private part fast?

a I followed him because I was afraid of him, sir.

q And what else did the accused do after you wiped your private part with the cloth he
gave to you?

a He instructed me to dress up quickly because my mother would arrive, sir.

q And did you follow him?

a Yes, sir.

q And did your mother arrive home?

a Yes, sir.

q And when your mother arrived home, what did you do?

a I did not do anything because I was instructed not to tell my mother. So I did not do
anything because I was afraid, sir.

COURT

q Why were you afraid (sic) of your stepfather?

a Because he would kill me if I report the incident, sir.

q How did you know?

a Because he told me, sir.

q When was it when he told you that?

a After he raped me, sir.

x          x           x
PROS. FLORESTA

q Now, after the accused raped you sometime in September 1993, do you know if this
incident was repeated by the accused?

COURT

q Before you go to that. This incident that you have described, where in the house did
this happen?

a Upstairs, sir.

q In what room?

a In their room, sir.

q When you said THEY, to whom do you refer?

a My mother, sir.

q You were lying down?

a Yes, sir.

q On what?

a On the bed, sir.

q What kind of bed?

a Wooden bed, sir.

q How many rooms were there upstairs?

a Two, sir.

q The other room is for whom?

a For us, sir, my brothers and sisters.

x          x           x

PROS. FLORESTA

q After this incident, was there any other incident that happened to you?

a Yes, sir.
q When was that?

a I could no longer recall when but everytime my mother was out, he would do the
same thing to me, sir.

q Could you still recall how many weeks or days have passed from the first incident in
September 1993 when the last incident happened?

a I could no longer count because it happened several times, sir.

q And how many times, more (or) less does this incident happened to your?

a Several times, sir.

q Now, in the month of September 1993, do you recall how many times?

a I cannot, sir.

q Now, you said that everytime that your mother is out, out of the house, your
stepfather used to rape you, could you please tell us what is the reason why your
mother is always out of your house?

a Sometimes she would go to the market and sometimes she would sell some things,
sir.

q Do you know the occupation of your stepfather Deolito Optana in 1993?

a He was a waiter, sir.

x          x           x

q And in what grade were you at the time this first incident happened?

a Grade IV, sir.

q How old were you then?

a 12 years old, sir.

q What is your birth day?

a 13 December 1981, sir.

q How did you know that your birth is 13 December 1981?

a From my mother, sir.

x          x           x
PROS. FLORESTA

q Now, in 1995, do you still recall if the accused is still living in your house in
Manganvaca, Subic, Zambales with you and your mother?

a No more, sir.

q Now, do you know the reason why he was no longer residing in the house of your
mother in 1995?

a He was already detained at that time, sir.

x          x           x

PROS. FLORESTA

q When was the last incident?

WITNESS

a 28 October 1995, sir.

PROS. FLORESTA

q And where did this 28 October 1995 rape happened?

a In our house, sir.

q In the same room upstairs?

a In our room, sir.

COURT

q You mean in the room where your brothers and sisters were sleeping?

a Yes, sir.

x       x       x 12

q During the last hearing, you testified that after you were first raped by the accused in
September, 1993, the accused repeated the act of having raped you. Now could you
please tell this honorable court how did the accused raped (sic) you after September,
1993?

a He was forcing me, sir.

q And how did the accused forced (sic) you . . . to have raped you?

COURT

q He was forcing you to what?

a He was forcing me to undress, sir.

q Where?

a In our house, sir.

q Where in your house?

a In the room, sir.

x          x           x

PROS. FLORESTA

q Is that the room, the same room, where the first incident took place?

a It happens sometime in our room and sometimes in their room, sir.

q Could you still recall the month after the first incident that happened to you when the
accused forced you to undress inside his room?

a The incident started in September 1993, but he would always rape me when my
mother was out, sir. (GINAGALAW NIYA AKO TUWING WALA ANG MAMA KO.)

q So, when you say that since September 1993 up to October 28, 1995, the accused
had been GINAGALAW you, is that correct, Ms. Onsiano?

a Yes, sir.

q What do you mean by GINAGALAW?

a He was using me, sir.

COURT

q How did he use you?

a He was forcing his penis into my vagina, sir. chanrob1es virtua1 1aw 1ibrary

x          x           x

q Why did you not report this or why did you report your stepfather, the accused in this
case, to anyone of what he did to you?

a I was afraid because he threatened me that he would kill me if I report the matter to
anyone, sir.

q But do you remember having reported this incident to your mother?

a Yes, sir, on 24 November 1995. That was the time when I told my mother about the
incident.

q. And what did your mother do when you reported the matter to her?

a She summoned my Aunt in order to accompany me to the municipal hall to report the
matter, sir.

After that, I was investigated by the policeman and then, my stepfather was
apprehended, sir.

x          x           x

q What happened to you when you were raped by your stepfather?

a I was hurt and I got pregnant, sir.

q When did you get pregnant?

a I cannot say what month, sir.

q But what happened to your pregnancy?

a I gave birth to a child, sir.

q When?

a 23 February 1996. Sir.

q Where?

a At a hospital in Angeles, sir.

x          x           x

q And what name did you give your child?

a Richard Onsiano, sir.

COURT
Who is the father as appearing in the document?

PROS. FLORESTA

q Unknown because this is out of wedlock, your Honor.

q You made the registration of the child with the Office of the Local Civil Registrar of
Angeles City?

a The Social Worker, sir.

q Now, you mentioned awhile ago that when you reported this incident to your mother
sometime in November 1995, your mother called for your Aunt Evelyn Nallos?

a Yes, sir.

q For what purpose?

a In order to accompany me to the Municipal Hall, sir.

q And were you and your Aunt Evelyn Nallos able to go to the Municipal Hall?

a Yes, sir.

COURT

q What is the name of the aunt? Evelyn Nallos?

a Yes, your Honor.

q And what did you do at the Municipal Hall?

a A complaint was filed against my stepfather, sir.

q And to whom did you complain?

a Police officer, sir.

q And what did the police officer do when you complained to him?

a Deolito Optana, my stepfather, was apprehended.

x          x           x

PROS. FLORESTA

q Could you still recall what month in 1995, prior to 28 October 1995 when you were
raped by the accused in this case?
a I could no longer recall the exact date because he has been using me several times,
sir.

q Could you still recall how many times in a month the accused has been using you
since September 1993 up to 28 October 1995?

a Several times, sir. I could no longer count because he would always use me each time
my mother was out, sir.

x          x           x

q Did you have any sexual intercourse with any other men before you gave birth to
your child?

a Yes, sir, my stepfather.

q You are referring to the accused?

a Yes, sir.

q Aside from the accused, was there any other men who had sexual intercourse with
you prior to October 1995?

a None, sir, he was the only one.

q. Prior to the birth of your child, it was only your stepfather who had sexual
intercourse with you?

a Yes, sir.

x          x           x

q Do you have any boyfriend?

a None, sir.

x       x       x 13

Mindful of the well-settled rule that findings of facts of the trial court are accorded great
respect considering that the trial judge has observed the demeanor of the witnesses,
the Court does not find any cogent reason to depart from such rule. The trial judge had
these observations about the witness: chanrob1es virtual 1aw library

Rizalina was already 14 years old when she testified in Court. At the time she testified
she was succinct in her declaration and appeared to the Court to be truthful. She had
no reason to fabricate a story against the accused who supported her in her daily needs
and spent for her education until she finished Grade 6. Ingratitude is not a trait
common to a provincial child still innocent of the vicissitudes of life. 14
chanrob1es virtua1 1aw 1ibrary
A witness who testifies in a categorical, straightforward, spontaneous and frank manner
and remains consistent is a credible witness. 15 Since the trial court found Maria
Rizalina’s testimony to be credible and trustworthy, it was more than sufficient to
sustain the accused-appellant’s conviction. 16 The fact that the accused-appellant had
carnal knowledge with the young victim is corroborated by the findings of Dr. Laila
Patricio, who upon examination on November, 1995 found Maria Rizalina to be 6-7
months pregnant already. Maria Rizalina confided to her that her stepfather raped her.
17 This accusation was repeated when she was investigated by SPO3 Cesar Antolin at
the Subic Police Station, Subic, Zambales, 18 and when she was interviewed by Social
Welfare Officer II, Ana Ecle of the DSWD, Iba, Zambales. 19

When the accused-appellant was courting Nida Onciano, he was very aware that she
had a daughter. Before they agreed to live together, he was made to understand that
he had to accept and treat Maria Rizalina as his own daughter, too caring for her and
providing for her education. 20 Since Maria Rizalina did not have a father, she regarded
the accused-appellant as such. Even at her young age, she recognized the parental
authority the accused-appellant had over her and in return, she gave the reverence and
respect due him as a father. Undeniably, there was moral ascendancy on the part of the
accused-appellant over the victim. 21

In a rape committed by a father against the daughter, the former’s moral ascendancy
and influence over the latter substitutes for violence and intimidation. The experience
has certainly caused great trauma on Maria Rizalina that she had to be committed to
the National Center for Mental Health, Mandaluyong City to undergo psychological and
medical treatment for severe depression. 22 The testimony of Dr. Dijamco, a
psychiatrist at the National Center for Mental Health is quite revealing: chanrob1es virtual 1aw library

A After having gathered all the informations we have conceded and collated the data
and we have agreed to come up with an impression as stated in the protocol or major
depression, sir, and that it was advised that the patient be given medication and to
undergo regular psycho therapy, sir.

x       x       x 23

Q Now, in your honest opinion, what could have been the cause of your findings that
the patient Rizalina Onsiano suffered from major deppressive (sic) disorder?

A After having a thorough study of the patient’s case. We could only conclude that it
was the abuser and the trauma that she underwent which led to her deppression (sic),
her major and severe deppression (sic), sir.

Q By the way, was she able to disclose to you on your initial interview with the patient
Rizalina Onciano regarding the sexual abuse committed in her person?

A Initially, sir, she had difficulty, she would cry, she would request that we change the
topic, however, she was consistent in identifying the perpetrator of the crime, sir, or
the accused.

Q Now, in your honest opinion as a psychiatrist, is it normal for a child not to tell or
recall the sexual abuse committed on her person?

A An abuse is a trauma in itself. So, for a child not to remember is quite impossible. So,
abuse especially if these abuses have taken quite a number of times or it happened
several times, sir.

Q But is it normal for a child not to tell the details of the abuse committed in her
person?

A There is a possibility, sir, especially when a threat comes along or for several
reasons, sir, but it is possible does not disclose immediately that she has been sexually
abused by some other people, sir.

Q Would you be able to give an example of what other factors that would prevent the
child from disclosing or tell the abuse committed on her person?

A Sir, based on my observations and the cases I have handled for one it would be
shame and the guilt since the patient underwent such trauma they feel that they are to
be blamed that’s why they don’t tell, they feel that they have a part in the crime that’s
why they don’t tell. For another reason, an important reason for not disclosing is the
threat the perpetrator imposes on the victim. The threat to life, the threat to property,
the threat to steal. Basically, those are the major reasons why a child or adolescent
would not disclose immediately that she has been sexually molested.

Q Would you say the influence of the mother for being uncooperative with her in her
fighting for her right, is one of the factor that would prevent the child from disclosing?

A There is a possibility, sir, since whenever a child is abused, it is not the child or the
victim which is just affected. It is the entire family, the brothers, the sisters, the
mother, the father, the entire family. Since their child is affected, so, the mother and
the other relatives may have stayed in the child not disclosing about the attempts or
the abuse, sir.

Q Now, in the case of Rizalina Onsiano, while she was presented by this representation,
when this representation was about to ask her of the actual abuse committed on her
person, she broke down and refused to talk. Is it normal, is that a normal behavior of
Rizalina Onsiano?

A Basically, prior to the commission of the crime, Rizalina was an up-grown child.
Having undergone abuse for quite sometime, it is not easy for one to fully disclose what
she underwent. There are times when the patient will be able to identify him just about
that. Now, in Rizalina’s case, I don’t think it was normal. Basically, it is a normal part
wherein she would not automatically disclosed what happened. It would take time prior
to full disclosure of such trauma, sir.

Q Now, later on, after she was discharged from the National Center for Mental Health
specifally (sic) on January 23, 1997, when Rizalina Onsiano was presented again to
testify on the abuse committed against her by the accused, her own stepfather, she
was able to narrate the details of what happened to her, is that also normal?
A That proved, sir, that the therapy, the medication she took or that she underwent at
the Center helped her in gradually dealing with the situation as such, sir, whenever she
has to testify against her stepfather. The course she is undergoing right now is the
effect of the treatment she has undergone at our Center.

x       x       x 24

Accused-appellant denies having raped his stepdaughter alleging that it was quite
impossible for him to have committed the crime "in broad daylight, in a small house,
abundant with open windows and doors, peopled by six or seven mischievous and
open-eyed curious souls keen with every unusual scenarios of members involving kins
and idols like their fathers."25 cralaw:red

The Court sees no impossibility for the commission of this abominable act on the victim
under the alleged circumstances. Many cases attest to the unfortunate fact that rape
can be committed even in places where people congregate: in parks, along the
roadside, within school premises and even inside a house where there are occupants.
Lust is no respecter of time or place. 26

Furthermore, Accused-appellant points to his sister-in-law, Evelyn Nallos as the person

who allegedly pressured his stepdaughter to file the charges of rape against him
considering an old grudge existing between the two of them. It can be recalled that
Evelyn Nallos took care of two of their children who, unfortunately, died under her care,
one died of meningitis and pneumonia and the other by drowning in a flood. To the
defense, the deaths were plainly due to Evelyn’s negligence. 27 Since then, their
relationship was estranged.

This contention deserves scant consideration. Ill motive is never an essential element of
a crime. It becomes inconsequential in a case where there are affirmative, nay,
categorical declarations towards the accused-appellant’s accountability for the felony.
28 Maria Rizalina’s straightforward and consistent testimony belies any claim of being
pressured by her aunt to concoct a story of defloration against the stepfather. Upon
cross examination, she was quick to deny that her Tita Evelyn prompted her to report
to the authorities about her physical condition and the person responsible thereof. 29

To the accused-appellant, it strains credulity why the victim never said anything about
the incidents until the discovery by the mother on November 24, 1994 when she
revealed that it was her stepfather who was responsible for her pregnancy. chanrob1es virtua1 1aw 1ibrary

Delay in reporting the crime is understandable. It is not uncommon for young girls to
conceal for some time the assaults on their virtue because of the rapist’s threat on their
lives. 30 The case at bar is no exception to these well-founded rule. Maria Rizalina
never said anything to her mother of the many times the accused-appellant had
sexually abused her for fear of her life. She was definitely afraid of her stepfather who
threatened to kill her once she reports the matter to her mother. 31

Neither was there any medical impossibility to the commission of the crime as accused-
appellant argues: chanrob1es virtual 1aw library

Granting "en gratia arguendo" that accused-appellant did the act complained of in
September 1993, or the last act on October 28, 1995, it is medically impossible and
contrary to the natural laws and religious belief. And, the medical books and hospital
records is in dearth or paucity of four (4) months premature births.

x          x           x

. . . the turning point when the pregnancy became apparent and noticeable was a clear
span or intereggnum (sic) of one (1) year and five (5) months from the month and year
subject matter of this review (November 24, 1995) which logically coincides with the
months that complainant gallivanted with the "barkada", but is off-tangent and is
irreconcilable and medically and naturally impossible with the alleged commission of
rape of September 1993. 32

This defense is unavailing.

Maria Rizalina gave birth on February 23, 1996. She testified that she was raped
several times by her stepfather. While she could hardly remember the exact dates of
these instances, she only remembered the first time she was raped which was in
September, 1993 when she was only 12 years old and was in Grade IV 33 and the last
time was on October 28, 1995. Obviously, she could not have conceived in September,
1993 because as she testified, she was not yet menstruating at that time. She started
to have her menstruation when she was in Grade V 34 or in 1994. She denies going
home late after school and is not fond of being out with friends. 35 Since she
maintained that her stepfather raped her several times, the child was definitely
conceived as a result of the rape between September, 1993 and October 28, 1995.

Given all these facts and circumstances, we rule with moral certainty that the accused-
appellant is indeed guilty of the crimes.

Accused-appellant was charged for violation of Section 5(b) of R.A. 7610 and Article
335 of the Revised Penal Code for rape which read as follows: chanrob1es virtual 1aw library

SECTION 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following: jgc:chanrobles.com.ph

"x       x       x

"(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse: Provided, that when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period;" 36
 x          x           x

ARTICLE 335 When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances: jgc:chanrobles.com.ph

"1. By using force or intimidation;

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

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

"The crime of rape shall be punished by reclusion perpetua." cralaw virtua1aw library

x          x           x

Anent the numerous informations filed, the trial court corrected the erroneous filing of
these informations as it explained: chanrob1es virtual 1aw library

It will be noted, however, that for the same act committed on the same date by the
accused on the same offended part, the accused stands charged with two offenses: for
violation of Section 5, paragraph (b) of Republic Act 7610 and for rape committed
through force and intimidation. Thus: (1) in Criminal Case Nos. 482-95 and 487-95, the
accused was charged with rape and violation of Section 5 paragraph (b) of Republic Act
7610, respectively, committed on the same date, October 1995, when the victim was
13 years old and 9 months; (2) in Criminal Case Nos. 484-95 and 488-95, the
Informations charged rape and violation of the same special law, respectively,
committed on the same date, "September 1995, when the victim was 13 years and 9
months old; (3) in Criminal Case Nos. 483-95 and 489-95, the accused was charged
with rape and violation of the same special law, respectively, committed in October
1995 when the child was 11 years and 10 months old; and (4) in Criminal Case Nos.
485-95 and 486-95, the accused was charged with rape and violation of the same
special law, respectively, committed in September 1993 when the victim was 11 years
and 9 months old.

Charging the accused with two different offenses for the same act committed on the
same date against the said victim is erroneous as it is illegal, except where the law
itself so allows. Section 5 (b) Republic Act 7610, however. does not so allow. The said
law in fact provides that if the child is below 12 years old, the accused must be
prosecuted under Article 335 of the Revised Penal Code. Conversely, if the child is
above 12 years old but below 18 years old, then the accused must be prosecuted under
Republic Act 7610 for the so called "child abuse. 37

The trial court correctly convicted the accused for Rape under Article 335 of the RPC in
Criminal Case No. 485-95 for it was clearly proven that the accused had carnal
knowledge with the victim through force and intimidation on that fateful day in
September, 1993. This was the first time the accused raped Maria Rizalina who was
able to give a detailed account of this traumatic experience. She was below 12 years
old at that time. While Maria Rizalina also testified that she was raped several times
after September, 1993, the prosecution, however, failed to establish the material
details as to the time, place, and manner by which these offenses were committed.
There is still a need for proof beyond reasonable doubt that the offenses alleged in the
informations were indeed committed. 38 Thus, the trial court acquitted the accused
under Criminal Case Nos. 482-95, 483-95, 484-95, 486-95, 488-95, 489-95 for want of
sufficient evidence.

Aside from the first incident of rape, all what Maria Rizalina could say was that she was
molested by the accused for the last time on October 28, 1995. Whether there was
force and intimidation to qualify this incident as rape was, unfortunately, not proven.
Nonetheless, there is no dispute that Maria Rizalina was sexually abused by the accused
on this occasion. Hence, the trial court convicted the accused under Criminal Case No.
487-95 for violation of Sec. 5(b) of R.A. 7610 or the Child Abuse Law.

In the case of People v. Larin, 39 the Court has explained that the elements of the
offense penalized under the provision are as follows;

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the
child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of any adult, syndicate or
group. Under RA 7610, children are "persons below eighteen years of age or those
unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of their age or mental disability or
condition."cralaw virtua1aw library

It must be noted that the law covers not only a situation in which a child is abused for
profit, but also one in which a child, through coercion or intimidation, engages in any
lascivious conduct. Hence, the foregoing provision penalizes not only child prostitution,
the essence of which is profit, but also other forms of sexual abuse of children. This is
clear from the deliberations of the Senate.

From the above disquisition, the accused is certainly guilty for sexual abuse committed
on his stepdaughter, using his moral ascendancy in intimidating the victim to engage in
sexual intercourse with him.

The amount of damages must, however, be modified. In each of the cases, the trial
court awarded the amount of P50,000 as civil indemnity, P100,000 for moral damages
and another P100,000 as exemplary damages. In line with recent jurisprudence, the
award of P50,000 as civil indemnity is in order regardless of proof. In addition to civil
indemnity, moral damages may, likewise, be awarded without the need for proving the
same in the amount not exceeding P50,000. 40 The award of exemplary damages must
be deleted for lack of legal basis. 41chanrob1es virtua1 1aw 1ibrary
WHEREFORE, the Decision dated March 5, 1998 of the Regional Trial Court, Branch 75,
Olongapo City is AFFIRMED with the MODIFICATION that the accused-appellant is
ordered to pay the victim the amount of FIFTY THOUSAND PESOS (P50,000.000) as
civil indemnity, FIFTY THOUSAND PESOS (P50,000.00) as moral damages in Crim. Case
No. 485-95 and Crim. Case No. 487-95, the award of exemplary damages is deleted in
the above criminal cases.

SO ORDERED.
People v. Abay, G.R. No. 177752, February 24, 2009

G.R. No. 177752               February 24, 2009

PEOPLE OF THE PHILIPPINES, Appellant,

vs.
ROBERTO ABAY y TRINIDAD, Appellee.

DECISION

CORONA, J.:

On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section
5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 4 1 under the following
Information:

That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force
and intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and
lascivious conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and
whole body, lying on top of her and inserting his penis into her vagina, thus succeeded in having
carnal knowledge of her, against her will and consent thereafter threatening to kill her should she
report the incident, thereby gravely endangering her survival and normal growth and development, to
the damage and prejudice of [AAA].

CONTRARY TO LAW.

Appellant pleaded not guilty during arraignment.

During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-
Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses.

AAA testified that appellant, her mother’s live-in partner, had been sexually abusing her since she
was seven years old. Whenever her mother was working or was asleep in the evening, appellant
would threaten her with a bladed instrument 2 and force her to undress and engage in sexual
intercourse with him.

BBB corroborated AAA’s testimony. She testified that she knew about appellant’s dastardly acts.
However, because he would beat her up and accuse AAA of lying whenever she confronted him,
she kept her silence. Thus, when she caught appellant in the act of molesting her daughter on
December 25, 1999, she immediately proceeded to the police station and reported the incident.
According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing
her for six years. This was confirmed by AAA’s physical examination indicating prior and recent
penetration injuries.

The defense, on the other hand, asserted the incredibility of the charge against appellant.
Appellant’s sister, Nenita Abay, and appellant’s daughter, Rizza, testified that if appellant had really
been sexually abusing AAA, the family would have noticed. The rooms of their house were divided
only by ¼-inch thick plywood "walls" that did not even reach the ceiling. Thus, they should have
heard AAA’s cries. Moreover, Nenita and Rizza claimed that they "often caught" AAA and her
boyfriend in intimate situations.

According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here,
appellant kept his silence which was contrary to human nature. On the other hand, AAA
straightforwardly narrated her horrifying experience at the hands of appellant. The RTC concluded
that appellant had indeed sexually abused AAA. A young girl would not have exposed herself to
humiliation and public scandal unless she was impelled by a strong desire to seek justice. 3

In a decision dated November 25, 2003, 4 the RTC found appellant guilty beyond reasonable doubt of
the crime of rape:

WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of
committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5,
Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty, 5 and to pay
private complainant moral damages in the amount of Fifty Thousand (₱50,000) Pesos.

SO ORDERED.

The Court of Appeals (CA), on intermediate appellate review,6 affirmed the findings of the RTC but
modified the penalty and award of damages.

In view of the enactment of RA 83537 and RA 9346,8 the CA found appellant guilty only of simple
rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil
indemnity ex delicto (which is mandatory once the fact of rape is proved) 9 granted by the RTC, it
awarded ₱50,000 as moral damages and ₱25,000 as exemplary damages. Moral damages are
automatically granted in rape cases without need of proof other than the commission of the
crime10 while exemplary damages are awarded by way of example and in order to protect young girls
from sexual abuse and exploitation. 11

We affirm the decision of the CA with modifications.

Under Section 5(b), Article III of RA 761012 in relation to RA 8353,13 if the victim of sexual abuse14 is
below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape
under Article 266-A(1)(d) of the Revised Penal Code15 and penalized with reclusion perpetua.16 On
the other hand, if the victim is 12 years or older, the offender should be charged with either sexual
abuse17 under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the
Revised Penal Code. However, the offender cannot be accused of both crimes 18 for the same act
because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act.19 Likewise, rape cannot be complexed with a violation of
Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), 20 a
felony under the Revised Penal Code (such as rape) cannot be complexed with an offense
penalized by a special law.21
In this case, the victim was more than 12 years old when the crime was committed against her. The
Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore,
appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article
266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged
the elements of both crimes, the prosecution’s evidence only established that appellant sexually
violated the person of AAA through force and intimidation 22 by threatening her with a bladed
instrument and forcing her to submit to his bestial designs. Thus, rape was established. 23

Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in
sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape under
Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua. Furthermore, to
conform with existing jurisprudence, he is ordered to pay AAA ₱75,000 as civil indemnity ex-
delicto24 and ₱75,000 as moral damages.25

WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01365 is hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby
found GUIILTY of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is
further ordered to pay AAA ₱75,000 as civil indemnity ex-delicto, ₱75,000 as moral damages and
₱25,000 as exemplary damages.

Costs against appellant.

SO ORDERED.

People v. Ejercito, G.R. No. 229861, July 2, 2018;

G.R. No. 229861, July 02, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FRANCISCO

EJERCITO, Accused-Appellant.

DECISION

PERLAS-BERNABE, J.:

Assailed in this ordinary appeal1 is the Decision2 dated October 28, 2016 of the Court of
Appeals (CA) in CA-G.R. CEB CR. HC. No. 01656, which affirmed the Decision3 dated
April 8, 2013 of the Regional Trial Court of xxxxxxxxxxx,4 Branch 60 (RTC) in Crim.
Case No. CEB-BRL-1300 finding accused-appellant Francisco Ejercito (Ejercito) guilty
beyond reasonable doubt of the crime of Rape defined and penalized under Article 266-
A, in relation to Article 266-B, of the Revised Penal Code (RPC), as amended by
Republic Act No. (RA) 8353,5 otherwise known as "The Anti-Rape Law of 1997."

The Facts

This case stemmed from an Information6 filed before the RTC charging Ejercito of the
aforesaid crime, the accusatory portion of which reads:
That on or about the 10th day of October, 2001 at past 7:00 o'clock in the evening,
at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd design and by means of force and intimidation, did then and there
willfully, unlawfully and feloniously lie and succeed in having carnal knowledge with
[AAA], a minor, who is only fifteen (15) years old at the time of the commission of the
offense against her will and consent and which act demeans the intrinsic worth and
dignity of said minor as a human being.

CONTRARY TO LAW.7
The prosecution alleged that at around six (6) o'clock in the evening of October 10,
2001, AAA, then a fifteen (15) year old high school student, was cleaning the chicken
cage at the back of their house located in xxxxxxxxxxxxxxxxx when suddenly, she saw
Ejercito pointing a gun at her saying, "Ato ato lang ni. Sabta lang ko. Ayaw gyud saba
para dili madamay imo pamilya." AAA pleaded, "Tang, don't do this to me" but the
latter replied, "Do you want me to kill you? I will even include your mother and father."
Thereafter, Ejercito dragged AAA to a nearby barn, removed her shorts and underwear,
while he undressed and placed himself on top of her. He covered her mouth with his
right hand and used his left hand to point the gun at her, as he inserted his penis into
her vagina and made back and forth movements. When he finished the sexual act,
Ejercito casually walked away and warned AAA not to tell anybody or else, her parents
will get killed. Upon returning to her house, AAA hurriedly went to the bathroom where
she saw a bloody discharge from her vagina. The following day, AAA absented herself
from school and headed to the house of her aunt, CCC, who asked if she was okay. At
that point, AAA tearfully narrated the incident and requested CCC to remain silent, to
which the latter reluctantly obliged.8

Haunted by her harrowing experience, AAA was unable to focus on her studies. Wanting
to start her life anew, AAA moved to the city to continue her schooling there. However,
Ejercito was able to track AAA down, and made the latter his sex slave. From 2002 to
2005, Ejercito persistently contacted AAA, threatened and compelled her to meet him,
and thereafter, forced her to take shabu and then sexually abused her. Eventually, AAA
got hooked on drugs, portrayed herself as Ejercito's paramour, and decided to live
together. When Ejercito's wife discovered her husband's relationship with AAA, the
former filed a complaint against AAA before the barangay. By this time, even AAA's
mother, BBB, found out the illicit relationship and exerted efforts to separate them from
each other. Finally, after undergoing rehabilitation, AAA finally disclosed to her parents
that she was raped by Ejercito back in 2001 and reported the same to the authorities
on September 3, 2005.9

In his defense, Ejercito pleaded not guilty to the charge against him, and maintained
that he had an illicit relationship with AAA. He averred that during the existence of their
affair from 2002 to 2004, he and AAA frequently had consensual sex and the latter
even abandoned her family in order to live with him in various places in xxxxxxxxxxx.
He even insisted that he and AAA were vocal about their choice to live together despite
vehement objections from his own wife and AAA's mother. Finally, he pointed out that
when AAA was forcibly taken from him by her mother, as well as police authorities, no
charges were filed against him. Thus, he was shocked and dismayed when he was
charged with the crime of Rape which purportedly happened when they were lovers.10

The RTC Ruling

In a Decision11 dated April 8, 2013, the RTC found Ejercito guilty beyond reasonable.
doubt of the crime charged and, accordingly, sentenced him to suffer the penalty
of reclusion perpetua, and ordered him to separately pay AAA and her parents
P50,000.00 each as moral damages.12

Aggrieved, Ejercito appealed13 to the CA.

The CA Ruling

In a Decision14 dated October 28, 2016, the CA affirmed the RTC ruling with
modification, convicting Ejercito of Rape defined and penalized under Article 335 of the
RPC, and accordingly, sentenced him to suffer the penalty of reclusion perpetua, and
ordered him to pay the offended party, AAA, the amounts of P75,000.00 as civil
indemnity ex delicto, P75,000.00 as moral damages, and P75,000.00 as exemplary
damages, with legal interest of six percent (6%) per annum to be imposed on all
monetary awards from finality of the ruling until fully paid.15

Agreeing with the RTC's findings, the CA held that through AAA's clear and
straightforward testimony, the prosecution had established that Ejercito raped her in
2001. On the other hand, it did not give credence to Ejercito's sweetheart defense,
pointing out that assuming arguendo that he indeed eventually had a relationship with
AAA, their first sexual encounter in 2001 was without the latter's consent and was
attended with force and intimidation as he pointed a gun at her while satisfying his
lustful desires.16

Hence, this appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not Ejercito's conviction for the crime
of Rape must be upheld.

The Court's Ruling

The appeal is without merit.

Time and again, it has been held that in criminal cases, "an appeal throws the entire
case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial court's decision based
on grounds other than those that the parties raised as errors. The appeal confers the
appellate court full jurisdiction over the case and renders such court competent to
examine records, revise the judgment appealed from, increase the penalty, and cite the
proper provision of the penal law."17

Based on this doctrine, the Court, upon careful review of this case, deems it proper to
correct the attribution of the crime for which Ejercito should be convicted and,
consequently, the corresponding penalty to be imposed against him, as will be
explained hereunder.

At the onset, the Court observes that the CA, in modifying the RTC ruling, erroneously
applied the old Rape Law, or Article 335 of the RPC, since the same was already
repealed upon the enactment of RA 8353 in 1997. To recount, the Information alleges
"[t]hat on or about the 10th day of October 2001 x x x [Ejercito], with lewd design
and by means of force and intimidation, did then and there willfully, unlawfully and
feloniously lie and succeed in having carnal knowledge with [AAA], a minor who is only
fifteen (15) years old at the time of the commission of the offense against her will and
consent x x x"; hence, in convicting Ejercito of Rape, the CA should have applied the
provisions of RA 8353, which enactment has resulted in the new rape provisions of the
RPC under Articles 266-A in relation to 266-B, viz.:
Article 266-A. Rape, When and How Committed. - Rape is committed -

1. By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

a. Through force, threat or intimidation;

xxxx

Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be
punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

xxxx
For a charge of Rape by sexual intercourse under Article 266-A (1) of the RPC, as
amended by RA 8353, to prosper, the prosecution must prove that: (a) the offender
had carnal knowledge of a woman; and (b) he accomplished this act under the
circumstances mentioned in the provision, e.g., through force, threat or intimidation.
The gravamen of Rape is sexual intercourse with a woman against her will.18

In this case, the prosecution was able to prove beyond reasonable doubt the presence
of all the elements of Rape by sexual intercourse under Article 266-A (1) of the RPC, as
amended by RA 8353. Through AAA's positive testimony, it was indeed established that
in the evening of October 10, 2001, AAA, then just a fifteen (15)-year old minor, was
cleaning chicken cages at the back of her house when suddenly, Ejercito threatened
her, removed her lower garments, covered her mouth, and proceeded to have carnal
knowledge of her without her consent. The RTC, as affirmed by the CA, found AAA's
testimony to be credible, noting further that Ejercito failed to establish any ill motive on
her part which could have compelled her to falsely accuse him of the aforesaid act. In
this relation, case law states that the trial court is in the best position to assess and
determine the credibility of the witnesses presented by both parties, and hence, due
deference should be accorded to the same.19 As there is no indication that the RTC, as
affirmed by the CA, overlooked, misunderstood or misapplied the surrounding facts and
circumstances of the case, the Court therefore finds no reason to deviate from its
factual findings.

The Court remains mindful that Section 5 (b) of RA 7610,20 which, to note, was passed
prior to RA 8353 on June 17, 1992, equally penalizes those who commit sexual abuse,
by means of either (a) sexual intercourse or (b) lascivious conduct, against "a child
exploited in prostitution or subjected to other sexual abuse,"  viz.:
Section 5. Child Prostitution and Other Sexual Abuse . - Children, whether male
or female, who for money, profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with
a child exploited in prostitution or subjected to other sexual abuse; Provided,
That when the victim is under twelve (12) years of age, the perpetrators shall
be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act
No. 3815, as amended, the Revised Penal Code for rape or lascivious conduct,
as the case may be: Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be  reclusion temporal in its
medium period; x x x

xxxx
In Quimvel v. People (Quimvel),21 the Court set important parameters in the
application of Section 5 (b) of RA 7610, to wit:

(1) A child is considered as one "exploited in prostitution or subjected to other

sexual abuse" when the child indulges in sexual intercourse or lascivious
conduct "under the coercion or influence of any adult":
To the mind of the Court, the allegations are sufficient to classify the victim as
one "exploited in prostitution or subject to other sexual abuse ." This is
anchored on the very definition of the phrase in Sec. 5 of RA 7610,  which
encompasses children who indulge in sexual intercourse or lascivious
conduct (a) for money, profit, or any other consideration; or  (b) under the
coercion or influence of any adult, syndicate or group.

Correlatively, Sec. 5 (a) of RA 7610 punishes acts pertaining to or connected

with child prostitution wherein the child is abused primarily for profit. On the
other hand, paragraph (b) punishes sexual intercourse or lascivious conduct
committed on a child subjected to other sexual abuse.  It covers not only a
situation where a child is abused for profit but also one in which a child,
through coercion, intimidation or influence, engages in sexual intercourse or
lascivious conduct. Hence, the law punishes not only child prostitution but also
other forms of sexual abuse against children. x x x.22 (Emphases and
underscoring supplied)
(2) A violation of Section 5 (b) of RA 7610 occurs even though the accused
committed sexual abuse against the child victim only once, even without a
prior sexual affront:
[T]he very definition of "child abuse" under Sec. 3 (b) of RA 7610 does not
require that the victim suffer a separate and distinct act of sexual abuse aside
from the act complained of. For it refers to the maltreatment, whether habitual
or not, of the child. Thus, a violation of Sec. 5 (b) of RA 7610. occurs even
though the accused committed sexual abuse against the child victim only
once, even without a prior sexual affront. 23 (Emphasis and underscoring
supplied)
(3) For purposes of determining the proper charge, the term "coercion and
influence" as appearing in the law is broad enough to cover "force and
intimidation" as used in the Information; in fact, as these terms are almost
used synonymously, it is then "of no moment that the terminologies employed
by RA 7610 and by the Information are different":
The term "coercion and influence" as appearing in the law is broad enough to
cover "force and intimidation" as used in the Information. To be sure, Black's
Law Dictionary defines "coercion" as "compulsion; force; duress" while
"[undue] influence" is defined as "persuasion carried to the point of
overpowering the will." On the other hand, "force" refers to "constraining
power, compulsion; strength directed to an end" while jurisprudence
defines "intimidation" as "unlawful coercion; extortion; duress; putting in
fear." As can be gleaned, the terms are used almost synonymously. It is then
of no moment that the terminologies employed by RA 7610 and by the
Information are different. And to dispel any remaining lingering doubt as to
their interchangeability, the Court enunciated in  Caballo v. People [(710 Phil.
792, 805-806[2013])] that:
x x x sexual intercourse or lascivious conduct under the  coercion or
influence of any adult exists when there is some form of compulsion
equivalent to intimidation which subdues the free exercise of the offended
party's free will. Corollary thereto, Section 2 (g) of the Rules on Child Abuse
Cases conveys that sexual abuse involves the element of influence which
manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a
child to engage in or assist another person to engage in, sexual intercourse or
lascivious conduct or the molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in
any way that deprives a person of free will and substitutes another's
objective." Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields it." 24 (emphases
and underscoring supplied)
Thus, the Court, in Quimvel, observed that although the Information therein
did not contain the words "coercion or influence" (as it instead, used the
phrase "through force and intimidation"), the accused may still be convicted
under Section 5 (b) of RA 7610. Further, following the rules on the sufficiency
of an Information, the Court held that the Information need not even mention
the exact phrase "exploited in prostitution or subjected to other abuse" for the
accused to be convicted under Section 5 (b) of RA 7610; it was enough for the
Information to have alleged that the offense was committed by means of
"force and intimidation" for the prosecution of an accused for violation of
Section 5 (b) of RA 7610 to prosper. 25

In this case, it has been established that Ejercito committed the act of sexual
intercourse against and without the consent of AAA, who was only fifteen (15)
years old at that time. As such, she is considered under the law as a child who
is "exploited in prostitution or subjected to other sexual abuse;" hence,
Ejercito's act may as well be classified as a violation of Section 5 (b) of R.A.
7610.

Between Article 266-A of the RPC, as amended by RA 8353, as afore-discussed

and Section 5 (b) of RA 7610, the Court deems it apt to clarify that Ejercito
should be convicted under the former. Verily, penal laws are crafted by
legislature to punish certain acts, and when two (2) penal laws may both
theoretically apply to the same case, then the law which is more special in
nature, regardless of the time of enactment, should prevail. In  Teves v.
Sandiganbayan:26
It is a rule of statutory construction that where one statute deals with a
subject in general terms, and another deals with a part of the same subject in
a more detailed way, the two should be harmonized if possible; but  if there is
any conflict, the latter shall prevail regardless of whether it was passed prior
to the general statute. Or where two statutes are of contrary tenor or of
different dates but are of equal theoretical application to a particular case,  the
one designed therefor specially should prevail over the other. 27 (Emphases
supplied)
After much deliberation, the Court herein observes that RA 8353 amending the
RPC should now be uniformly applied in cases involving sexual intercourse
committed against minors, and not Section 5 (b) of RA 7610. Indeed, w}file
RA 7610 has been considered as a special law that covers the sexual abuse of
minors, RA 8353 has expanded the reach of our already existing rape laws.
These existing rape laws should not only pertain to the old Article 335 28 of the
RPC but also to the provision on sexual intercourse under Section 5 (b) 29 of RA
7610 which, applying Quimvel's characterization of a child "exploited in
prostitution or subjected to other abuse," virtually punishes the rape of a
minor.

It bears to emphasize that not only did RA 8353 re-classify the crime of Rape
from being a crime against chastity to a crime against persons, 30 it also
provided for more particularized instances of rape and conjunctively, a new
set of penalties therefor. Under RA 8353, Rape is considered committed not
only through the traditional means of having carnal knowledge of a woman (or
penile penetration) but also through certain lascivious acts now classified as
rape by sexual assault:
Article 266-A. Rape: When and How Committed. - Rape is committed -

1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.
2) By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person's mouth or anal orifice, or any instrument or object,
into the genital or anal orifice of another person. (Emphasis supplied)
Moreover, RA 8353 provides for new penalties for Rape that may be qualified
under the following circumstances:
Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article
shall be punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane,
the penalty shall become reclusion perpetua to death.

When the rape is attempted and a homicide is committed by reason or on the

occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, homicide is committed, the

penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with
any of the following aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or afinnity
within the third civil degree, or the common-law spouse of the parent of the
victim;

2) When the victim is under the custody of the police or military authorities or
any law enforcement or penal institution;

3) When the rape is committed in full view of the spouse, parent, any of the
children or other relatives within the third civil degree of consanguinity;

4) When the victim is a religious engaged in legitimate religious vocation or

calling and is personally known to be such by the offender before or at the
time of the commission of the crime;

5) When the victim is a child below seven (7) years old;

6) When the offender knows that he is afflicted with the Human Immuno-
Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any
other sexually transmissible disease and the virus or disease is transmitted to
the victim;

7) When committed by any member of the Armed Forces of the Philippines or

para-military units thereof or the Philippine National Police or any law
enforcement agency or penal institution, when the offender took advantage of
his position to facilitate the commission of the crime;
8) When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation or disability;

9) When the offender knew of the pregnancy of the offended party at the time
of the commission of the crime; and

10) When the offender knew of the mental disability, emotional disorder
and/or physical handicap of the offended party at the time of the commission
of the crime.

 x x x x (Emphases supplied)
Significant to this case, the above-highlighted provisions of RA 8353 already
accounted for the circumstance of minority under certain peculiar instances.
The consequence therefore is a clear overlap' with minority as an element of
the crime of sexual intercourse against a minor under Section 5 (b) of RA
7610. However, as it was earlier intimated, RA 8353 is not only the more
recent statutory enactment but more importantly, the more comprehensive
law on rape; therefore, the Court herein clarifies that in cases where a minor is
raped through sexual intercourse, the provisions of RA 8353 amending the
RPC ought to prevail over Section 5 (b) of RA 7610 although the latter also
penalizes the act of sexual intercourse against a minor.

The Court is not unaware of its previous pronouncements in  People v.

Tubillo,31 citing the cases of People v. Abay32 and People v.
Pangilinan33 (Tubillo, et al.), wherein the potential conflict in the application of
Section 5 (b) of RA 7610, on the one hand, vis-a-vis RA 8353 amending the
RPC, on the other, was resolved by examining whether or not
the prosecution's evidence focused on the element of "coercion and influence"
or "force and intimidation." In Tubillo:
To reiterate, the elements of rape under Section 266-A of the RPC are: (1) the
offender had carnal knowledge of the victim; and (2) such act was
accomplished through force or intimidation; or when the victim is deprived of
reason or otherwise unconscious; or when the victim is under twelve years of
age.

On the other hand, the elements of Section 5 (b) of R.A. No. 7610, are: (1) the
accused commits the act of sexual intercourse or lascivious conduct; (2) the
act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and (3) the child, whether male or female, is below 18 years of
age. It is also stated there that children exploited in prostitution and other
sexual abuse are those children, whether male or female, who, for money,
profit, or any other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or lascivious conduct.

In the recent case of Quimvel v. People, the Court ruled that the term
"coercion and influence" as appearing in the law is broad enough to cover
"force and intimidation." Black's Law Dictionary defines coercion as
compulsion; force; duress, while undue influence is defined as persuasion
carried to the point of overpowering the will. On the other hand, force refers
to constraining power, compulsion; strength directed to an end; while
jurisprudence defines intimidation as unlawful coercion; extortion; duress;
putting in fear. As can be gleaned, the terms are used almost
synonymously. Thus, it is not improbable that an act of committing carnal
knowledge against a child, twelve (12) years old or older, constitutes both
rape under Section 266-A of the RPC and child abuse under Section 5 (b) of
R.A. No. 7610.

In People v. Abay, the Court was faced with the same predicament. In that
case, both the elements of Section 266-A of the RPC and Section 5 (b) of R.A.
No. 7610 were alleged in the information. Nevertheless, these provisions were
harmonized, to wit:
Under Section 5 (b), Article III of RA 7610 in relation to RA 8353, if the victim
of sexual abuse is below 12 years of age, the offender should not be
prosecuted for sexual abuse but for statutory rape under Article 266-A (1) (d)
of the Revised Penal Code and penalized with reclusion perpetua. On the other
hand, if the victim is 12 years or older, the offender should be charged with
either sexual abuse under Section 5 (b) of RA 7610 or rape under At1icle 266-
A (except paragraph 1 [d]) of the Revised Penal Code. However, the offender
cannot be accused of both crimes for the same act because his right against
double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act. Likewise, rape cannot be complexed
with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised
Penal Code (on complex crimes), a felony under the Revised Penal Code (such
as rape) cannot be complexed with an offense penalized by a special law.
(Emphasis supplied)
In Abay, the offended party was thirteen (13) years old at the time of the rape
incident. Again, the information therein contained all the elements of Article
266-A (1) of the RPC and Section 5 (b) of R.A. No. 7610.  Nevertheless, the
Court observed that the prosecution's evidence only focused on the specific
fact that accused therein sexually violated the offended party through force
and intimidation by threatening her with a bladed instrument and forcing her
to submit to his bestial designs. Thus, accused therein was convicted of the
crime of rape under Article 266-A (1) of the RPC. Notably, the prosecution did
not tackle the broader scope of "influence or coercion" under Section 5 (b) of
R.A. No. 7610.

Similarly, in People v. Pangilinan, the Court was faced with the same dilemma
because all the elements of Article 266-A (1) of the RPC and Section 5 (b) of
R.A. No. 7610 were present. It was ruled therein that the accused can be
charged with either rape or child abuse and be convicted therefor.  The Court
observed, however, that the prosecution's evidence proved that accused had
carnal knowledge with the victim through force and intimidation by
threatening her with a samurai sword. Thus, rape was established. Again, the
evidence in that case did not refer to the broader scope of "influence or
coercion" under Section 5 (b) of R.A. No. 7610.

In the present case, the RTC convicted Tubillo for the crime of rape because
the prosecution proved that there was carnal knowledge against by means of
force or intimidation, particularly, with a bladed weapon. On the other hand,
the CA convicted Tubillo with violation of Section 5 (b) of R.A. No. 7610
because the charge of rape under the information was in relation to R.A. No.
7610.

After a judicious study of the records, the Court rules that Tubillo should be
convicted of rape under Article 266-A (1) (a) of the RPC.

A reading of the information would show that the case at bench involves both
the elements of Article 266-A (1) of the RPC and Section 5 (b) of R.A. No.
7610. As elucidated in People v. Abay and People v. Pangilinan, in such
instance, the court must examine the evidence of the prosecution, whether it
focused on the specific force or intimidation employed by the offender or on
the broader concept of coercion or influence to have carnal knowledge with
the victim.

Here, the evidence of the prosecution unequivocally focused on the force or

intimidation employed by Tubillo against HGE under Article 266-A (1) (a) of
the RPC. The prosecution presented the testimony HGE who narrated that
Tubillo unlawfully entered the house where she was sleeping by breaking the
padlock. Once inside, he forced himself upon her, pointed a knife at her neck,
and inserted his penis in her vagina. She could not resist the sexual. attack
against her because. Tubillo poked a bladed weapon at her neck. Verily, Tubillo
employed brash force or intimidation to carry out his dastardly deeds.

In fine, Tubillo should be found guilty of rape under Article 266-A (1) (a) of
the RPC with a prescribed penalty of reclusion perpetua, instead of Section 5
(b) of R.A. No. 7610.34 (Emphases and underscoring supplied)
As may be gleaned therefrom, the Court examined the evidence of the
prosecution to determine "whether it focused on the specific force or
intimidation employed by the offender or on the broader concept of coercion
or influence to have carnal knowledge with the victim." 35 The premise
in Tubillo that "coercion or influence" is the broader concept in contrast to
"force or intimidation" appears to have been rooted from that statement
in Quimvel wherein it was mentioned that "[t]he term 'coercion and influence'
as appearing in the law is broad enough to cover 'force and intimidation'  as
used in the Information."36 However, Quimvel did not intend to provide any
distinction on the meanings of these terms so as to determine whether an
accused's case should fall under Section 5 (b) of RA 7610 or RA 8353
amending the RPC, much more foist any distinction depending on what the
prosecution's e vidence "focused" on. In fact, the Court in  Quimvel stated "the
terms ['coercion and influence' and 'force and intimidation'] are used almost
synonymously";37 as such, the Court in Quimvel held that "[i]t is then of no
moment that the terminologies employed by RA 7610 and by the Information
are different";38 and that "the words 'coercion or influence' need not
specifically appear"39 in order for the accused to be prosecuted under Section
5 (b) of RA 7610. As such, the Court misconstrued the aforesaid statement
in Quimvel and misapplied the same to somehow come up with Tubillo, et al.'s
"focus of evidence" approach.

However, the mistaken interpretation of Quimvel in Tubillo, et al. only

compounds the fundamental error of the "focus of evidence" approach, which
is 'to rely on evidence appreciation, instead of legal interpretation. Ultimately,
there is no cogent legal basis to resolve the possible conflict between two (2)
laws by ascertaining what was the focus of the evidence presented by the
prosecution. Presentation of evidence leads to determining what act was
committed. Resolving the application of either RA 8353 amending the RPC or
Section 5 (b) of RA 7610 already presupposes that evidentiary concerns
regarding what act has been committed (i.e., the act of sexual intercourse
against a minor) have already been settled. Hence, the Court is only tasked to
determine what law should apply based on legal interpretation using the
principles of statutory construction. In other words, the Court need not
unearth evidentiary concerns as what remains is a pure question of law - that
is: in cases when the act of sexual intercourse against a minor has been
committed, do we apply RA 8353 amending the RPC or Section 5 (b) of RA
7610? Herein lies the critical flaw of the "focus of evidence" approach, which
was only compounded by the mistaken reading of Quimvel in the cases
of Tubillo, et al. as above-explained.

Neither should the conflict between the application of Section 5 (b) of RA 7610
and RA 8353 be resolved based on which law provides a higher penalty
against the accused. The superseding scope of RA 8353 should be the sole
reason of its prevalence over Section 5 (b) of RA 7610. The higher penalty
provided under RA 8353 should not be the moving consideration, given that
penalties are merely accessory to the act being punished by a particular law.
The term "'[p]enalty' is defined as '[p]unishment imposed on a wrongdoer
usually in the form of imprisonment or fine'; '[p]unishment imposed by lawful
authority upon a person who commits a deliberate or negligent act.'" 40 Given
its accessory nature, once the proper application of a penal law is determined
over another, then the imposition of the penalty attached to that act punished
in the prevailing penal law only follows as a matter of course.  In the final
analysis,  it is the determination of the act being punished together with its
attending circumstances  - and not the gravity of the penalty ancillary to that
punished act - which is the key consideration in resolving the conflicting
applications of two penal laws.

Notably, in the more recent case of People v. Caoili (Caoili),41 the Court

encountered a situation wherein the punishable act committed by therein
accused, i.e., lascivious conduct, may be prosecuted either under "Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5 (b) of RA
7610" or "Lascivious Conduct under Section 5 (b) of RA 7610." In resolving
the matter, the Court did not consider the "focus" of the evidence for the
prosecution nor the gravity of the penalty imposed. Rather, it is evident that
the determining factor in designating or charging the proper offense, and
consequently, the imposable penalty therefor, is the nature of the act
committed, i.e., lascivious conduct, taken together with the attending
circumstance of the age of the victim:
Accordingly, for the guidance of public prosecutors and the courts, the Court
takes this opportunity to prescribe the following guidelines in designating or
charging the proper offense in case lascivious conduct is committed under
Section 5 (b) of R.A. No. 7610, and in determining the imposable penalty:
1. The age of the victim is taken into consideration in designating or charging
the offense, and in determining the imposable penalty.

2. If the victim is under twelve (12) years of age, the nomenclature of the
crime should be "Acts of Lasciviousness under Article 336 of the Revised Penal
Code in relation to Section 5 (b) of R.A. No. 7610." Pursuant to the
second proviso in Section 5 (b) of R.A. No. 7610, the imposable penalty
is reclusion temporal in its medium period.

3. If the victim is exactly twelve (12) years of age, or more than twelve (12)
but below eighteen (18) years of age, or is eighteen (18) years old or older
but is unable to fully take care of herself/himself or protect herself/himself
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition, the crime should be designated as
"Lascivious Conduct under Section 5 (b) of R.A. No. 7610," and the imposable
penalty is reclusion temporal in its medium period to reclusion perpetua.42
Thus, being the more recent case, it may be concluded
that Caoili implicitly abandoned the "focus of evidence" approach used in
the Tubillo, et al. rulings. Likewise, it is apt to clarify that if there appears to
be any rational dissonance or perceived unfairness in the imposable penalties
between two applicable laws (say for instance, that a person who commits
rape by sexual assault under Article 266-A in relation to Article 266-B of the
RPC,43 as amended by RA 8353 is punished less than a person who commits
lascivious conduct against a minor under Section 5 (b) of RA 7610 44), then the
solution is through remedial legislation and not through judicial interpretation.
It is well-settled that the determination of penalties is a policy matter that
belongs to the legislative branch of government.45 Thus, however compelling
the dictates of reason might be, our constitutional order proscribes the
Judiciary from adjusting the gradations of the penalties which are fixed by
Congress through its legislative function. As Associate Justice Diosdado M.
Peralta had instructively observed in his opinion in  Caoli:
Curiously, despite the clear intent of R.A. 7610 to provide for stronger
deterrence and special protection against child abuse, the penalty  [reclusion
temporal medium] when the victim is under 12 years old is lower compared to
the penalty [reclusion temporal medium to reclusion perpetua] when the
victim is 12 years old and below 18. The same holds true if the crime of acts of
lasciviousness is attended by an aggravating circumstance or committed by
persons under Section 31, Article XII of R.A. 7610, in which case, the
imposable penalty is reclusion perpetua. In contrast, when no mitigating or
aggravating circumstance attended the crime of acts of lasciviousness, the
penalty therefor when committed against a child under 12 years old is aptly
higher than the penalty when the child is 12 years old and below 18. This is
because, applying the Indeterminate Sentence Law, the minimum term in the
case of the younger victims shall be taken from  reclusion temporal minimum,
whereas as [sic] the minimum term in the case of the older victims shall be
taken from prision mayor medium to reclusion temporal minimum. It is a basic
rule in statutory construction that what courts may correct to reflect the real
and apparent intention of the legislature are only those which are clearly
clerical errors or obvious mistakes, omissions, and misprints, but not those
due to oversight, as shown by a review of extraneous circumstances, where
the law is clear, and to correct it would be to change the meaning of the law.
To my mind, a corrective legislation is the proper remedy to address the noted
incongruent penalties for acts of lasciviousness committed against a
child.46 (Emphasis supplied)
Based on the foregoing considerations, the Court therefore holds that in
instances where an accused is charged and eventually convicted of having
sexual intercourse with a minor, the provisions on rape under RA 8353
amending the RPC should prevail over Section 5 (b) of RA 7610. Further, to
reiterate, the "focus of evidence" approach used in the  Tubillo, et al. rulings
had already been abandoned.

In this case, it has been established that Ejercito had carnal knowledge of AAA
through force, threat, or intimidation. Hence, he should be convicted of rape
under paragraph 1 (a), Article 266-A of the RPC, as amended by RA 8353. To
note, although AAA was only fifteen (15) years old and hence, a minor at that
time, it was neither alleged nor proven that Ejercito was her "parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the parent of the victim"
so as to qualify the crime and impose a higher penalty. As such, pursuant to
the first paragraph of Article 266-B of the same law, Ejercito should be meted
with the penalty of reclusion perpetua, as ruled by both the RTC and the CA.
Further, the Court affirms the monetary awards in AAA's favor in the amounts
of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P75,000.00 as exemplary damages, all with legal interest at the rate of six
percent (6%) per annum from finality of this ruling until fully paid, since the
same are in accord. with prevailing jurisprudence. 47

WHEREFORE, the appeal is DENIED. The Decision dated October 28, 2016 of
the Court of Appeals in CA-G.R. CEB CR. HC. No. 01656 is
hereby AFFIRMED with MODIFICATION. Accused-appellant Francisco Ejercito
is hereby found GUILTY beyond reasonable doubt of the crime of Rape under
Article 266-A of the Revised Penal Code, as amended by Republic Act No.
8353. Accordingly, he is sentenced to suffer the penalty of  reclusion perpetua.
Further, he is ordered to pay AAA the amounts of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary
damages, all with legal interest at the rate of six percent (6%) per annum
from finality of this ruling until fully paid.

SO ORDERED.
People v. Caoili (Caoili), G.R. No. 196342, August 8, 2017]

G.R. No. 196342, August 08, 2017

PEOPLE OF THE PHILIPPINES, Petitioner, v. NOEL GO CAOILI ALIAS "BOY

TAGALOG", Respondent.

G.R. No. 196848, August 8, 2017

NOEL GO CAOILI, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

 DECISION

TIJAM, J.:

Assailed in these consolidated petitions for review1 under Rule 45 of the Rules of Court
are the July 22, 2010 Decision2 and March 29, 2011 Resolution3 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00576- MIN, which set aside the June 17, 2008 Decision4 of
the Regional Trial Court (RTC) of Surigao City, Branch 30, in Criminal Case No. 7363,
finding Noel Go Caoili (Caoili) alias "Boy Tagalog" guilty of the crime of Rape by Sexual
Assault under paragraph 2 of Article 266-A of the Revised Penal Code (RPC), as
amended by Republic Act (R.A.) No. 8353,5 and remanded the case to the RTC for
further proceedings consistent with the CA's opinion.

The Facts

On June 22, 2006, First Assistant Provincial Prosecutor Raul O. Nasayao filed an
Information against Caoili, charging him with the crime of rape through sexual
intercourse in violation of Article 266-A, in relation to Article 266-B, of the RPC as
amended by R.A. No. 8353, and R.A. No. 7610.6 The accusatory portion of the
Information reads:

That on or about the 23rd day of October 2005, at 7:00 o'clock in the evening, more or
less, in Purok [III], Barangay [JJJ], [KKK], [LLL], Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, with full freedom and intelligence,
with lewd design, did, then and there, willfully, unlawfully and feloniously had sexual
intercourse with one [AAA],7 a minor, fifteen (15) years of age and the daughter of the
herein accused, through force, threat and intimidation and against her will, to her
damage and prejudice in the amount as may be allowed by law.

CONTRARY TO Article 266-A, in relation to Article 266-B of R.A. 8353, with the
aggravating circumstance that the accused is the father of the victim and R.A. 7610[.]8

On July 31, 2006, the RTC issued an Order9 confirming Caoili 's detention at the
Municipal Station of the Bureau of Jail Management and Penology after his arrest10 on
October 25, 2005.

Upon arraignment on September 15, 2006,11 Caoili pleaded not guilty to the crime
charged. After the pre-trial, trial on the merits ensued.

The victim, AAA, testified that on October 23, 2005, at 7:00p.m., her father, Caoili,
sexually molested her at their house located in Barangay JJJ, Municipality of KKK, in the
Province of LLL. Caoili kissed her lips, touched and mashed her breast, inserted the
fourth finger of his left hand into her vagina, and made a push and pull movement into
her vagina with such finger for 30 minutes. AAA felt excruciating pain during and after
the ordeal. Against her father's harsh warning not to go out of the house, AAA
proceeded to the house of her uncle, BBB, located 20 meters away from their house.
When he learned of this, Caoili fetched AAA and dragged her home. He beat and hit her
with a piece of wood, and boxed her on the stomach.12
On October 26, 2005, AAA disclosed to Emelia Loayon (Loayon), the guidance counselor
at AAA's school, the sexual molestation and physical violence committed against her by
her own father. Loayon accompanied AAA to the police station to report the sexual and
physical abuse. AAA also executed a sworn statement13 regarding the incident before
the Municipal Mayor.14

AAA underwent a medical examination conducted by Dr. Ramie Hipe (Dr. Hipe) at the
[KKK] Medicare Community Hospital. Dr. Hipe issued a medical certificate dated
October 26, 2005 showing that AAA had suffered:15

xxxx

1. Contusion, 5 inches in width, distal 3rd, lateral aspect, left Thigh.

2. Contusion, 2 cms in width, distal 3rd, lateral aspect, left Forearm
3. (+) tenderness, left parietal area, head
4. (+)tenderness, over the upper periumbilical area of abdomen
5. tenderness, over the hypogastric area

xxxx

Genital Examination

xxxx
Hymen

- fimbriated in shape
- with laceration on the following:
-complete laceration - 12 o'clock position
- partial laceration - 3 o'clock position
-complete laceration - 6 o'clock position
-partial laceration - 8 o'clock position
-complete laceration - 9 o'clock position
-partial laceration - 11 o'clock position16

Dr. Hipe referred AAA to a Medical Specialist, Dr. Lucila Clerino (Dr. Clerino), for further
Medico-Legal examination and vaginal smear. Dr. Clerino issued a Supplementary
Medical Certificate dated October 28, 2005, indicating that AAA's hymenal area had
lacerations complete at 6 o'clock and 9 o'clock superficial laceration at 12 o'clock.17

AAA sought the assistance of the Department of Social Welfare and Development which
facilitated her admission to a rehabilitation center run by the Missionary Sisters of
Mary.18

For his defense, Caoili denied molesting AAA. He alleged that on October 23, 2005, at
about 7:00p.m., he saw AAA with her boyfriend at the cassava plantation. He
recognized AAA by the fragrance of her perfume and by the outline of her ponytail. He
even greeted them "good evening" but they did not respond. He then went home.
When AAA arrived at their house, he confronted her and the latter admitted that she
was with her boyfriend "Dodong" earlier that evening. He was so angry so he struck
AAA's right thigh with a piece of wood and pushed the same piece of wood on her
forehead. When AAA cried out in pain, he became remorseful and asked for forgiveness,
but AAA kept mum. After they had supper, Caoili and his son slept in one room; while
AAA and her siblings slept in another room.19

The RTC's Ruling

On June 17, 2008, the RTC rendered its Decision20 declaring Caoili guilty of rape by
sexual assault. The dispositive portion of the Decision reads:

WHEREFORE, finding the accused NOEL GO CAOILI alias "Boy Tagalog" guilty beyond
reasonable doubt, as principal, of the crime of rape, defined and penalized in paragraph
2 of Article 266-A in relation to Article 266-B of the Revised Penal Code, as amended by
R.A. No. 8353, and after considering the aggravating circumstance of being the parent
of the complainant, who was fourteen (14) years, one (1) month and ten (10) days old
at the time of the incident in question, there being no mitigating circumstance to off-set
the same, this Court hereby sentences the said accused to suffer imprisonment for an
indefinite period of TEN (10) YEARS and ONE (1) DAY of Prision Mayor in its maximum
period, as minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY
of Reclusion Temporal  in its maximum period, as maximum, and to pay the costs. Four-
fifths (4/5) of the preventive detention of said accused shall be credited to his favor.

The same accused is hereby ordered to pay complainant [AAA] an indemnity ex

delicto of P50,000.00; moral damages of P50,000.00; and exemplary damages of
another P50,000.00.

SO ORDERED.21

On September 29, 2008, pursuant to a Commitment Order22 issued by the RTC on

August 27, 2008, provincial jail guards escorted Caoili for his confinement at the Davao
Prisons and Penal Farm, Panabo, Davao del Norte (Davao Penal Colony).23

Thereafter, Caoili filed his appeal before the CA.

The CA's Ruling

On July 22, 2010, the CA rendered the assailed Decision,24 the dispositive portion of
which reads, thus:

FOR THESE REASONS, the appealed Decision of Branch 30 of the Regional Trial Court
of Surigao City, in Criminal Case Nos. 7363, is SET ASIDE. Let this case be as it
is IMMEDIATELY REMANDED to the trial court for further proceedings consistent with
this opinion. Costs de oficio.

SO ORDERED.25

The CA held that although Caoili is clearly guilty of rape by sexual assault, what the
trial court should have done was to direct the State Prosecutor to file a new Information
charging the proper offense, and after compliance therewith, to dismiss the original
Information. The appellate court found it "imperative and morally upright" to set the
judgment aside and to remand the case for further proceedings pursuant to Section 14,
Rule 110,26 in relation to Section 19, Rule 11927 of the Rules of Court.

Thereafter, Caoili and the Office of the Solicitor General (OSG) filed their respective
petitions for review before this Court: G.R. No. 196342 was instituted by the OSG and
G.R. No. 196848 was filed by Caoili. These petitions were ordered consolidated by the
Court in its Resolution28 dated on August 1, 2011.

In G.R. No. 196342, the OSG assails the CA's Decision for not being in accord with the
law and established jurisprudence. Their petition was anchored on the following
grounds:29

I.

[CAOILI] WAS CONVICTED OF A CRIME NECESSARILY INCLUDED IN THE OFFENSE

CHARGED IN THE INFORMATION AND EMBRACED WITHIN THE SAME ARTICLE OF [R.A.
NO.] 8353.

II.

[CAOILI'S] CONSTITUTIONAL RIGHT TO BE INFORMED OF THE CHARGE AGAINST HIM

WAS NOT VIOLATED SINCE HE ACTIVELY PARTICIPATED DURING THE TRIAL
PROCEEDINGS AND NEVER QUESTIONED THE PRESENTATION OF EVIDENCE SHOWING
THAT THE CRIME COMMITTED WAS SEXUAL ASSAULT AND NOT SIMPLE RAPE.

III.

THE HONORABLE [CA] HAS ALREADY AFFIRMED THE CONVICTION OF [CAOILI] FOR
THE CRIME OF RAPE BY SEXUAL ASSAULT.

IV.

THE LAST PARAGRAPH OF SECTION 14, RULE 110 OF THE RULES OF COURT, IN
RELATION TO SECTION 19, RULE 119, OF THE SAME RULES, IS NOT APPLICABLE IN
THE INSTANT CASE.

In G.R. No. 196848, Caoili raises the following issues30 for our consideration:

I.

WHETHER RAPE BY SEXUAL ASSAULT IS NECESSARILY INCLUDED IN RAPE BY SEXUAL

INTERCOURSE;

II.

WHETHER THE CASE MAY BE REMANDED TO THE COURT A QUO FOR FURTHER

PROCEEDINGS PURSUANT TO SECTION 14, RULE 110 AND SEC. 19, RULE 119 OF THE
RULES OF COURT;
 III.

WHETHER THE PROSECUTION HAS SUFFICIENTLY ESTABLISHED BEYOND REASONABLE

DOUBT THE GUILT OF [CAOILI] ON [sic] THE CRIME CHARGED IN THE INFORMATION;

IV.

WHETHER THE DECISION OF THE HONORABLE [CA] ACQUITTED [CAOILI.]

The Court's Ruling

The petitions lack merit.

The prosecution has established rape by sexual assault.

R.A. No. 8353 or the "Anti-Rape Law of 1997" amended Article 335, the provision on
rape in the RPC, reclassifying rape as a crime against persons and introducing rape by
"sexual assault," as differentiated from rape through "carnal knowledge" or rape
through "sexual intercourse."31 Incorporated into the RPC by R.A. No. 8353, Article 266-
A reads:

Article 266-A. Rape, When and How Committed. Rape is committed -

1) By a man who shall havecarnal knowledge of a woman under any of the following
circumstances:

(a) Through force, threat or intimidation;

(b) When the offended party is deprived of reason or is otherwise unconscious;

(c) By means of fraudulent machination or grave abuse of authority; [and]

(d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present[.]

2) By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act ofsexual assault by inserting his penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.32 (Emphasis ours)

Thus, rape under the RPC, as amended, can be committed in two ways:

(1) Article 266-A paragraph 1 refers to rape through sexual intercourse, also known
as "organ rape" or "penile rape." The central element in rape through sexual
intercourse is carnal knowledge, which must be proven beyond reasonable doubt.

(2) Article 266-A paragraph 2 refers to rape by sexual assault, also called
"instrument or object rape," or "gender-free rape." It must be attended by any of the
circumstances enumerated in sub-paragraphs (a) to (d) of paragraph 1.33 (Emphasis
ours)

Through AAA's testimony, the prosecution was able to prove that Caoili molested his
own daughter when he inserted his finger into her vagina and thereafter made a push
and pull movement with such finger for 30 minutes,34 thus, clearly establishing rape by
sexual assault35 under paragraph 2, Article 266-A of the RPC.

Caoili, however, questions AAA's credibility, arguing that her testimony lacked veracity
since she harbored hatred towards him due to the latter's strict upbringing.36

The Court however, oppugns the veracity of Caoili's claim.

It is settled that ill motives become inconsequential if there is an affirmative and

credible declaration from the rape victim, which clearly establishes the liability of the
accused.37

AAA was a little over 15 years old when she testified,38 and she categorically identified
Caoili as the one who defiled her. She positively and consistently declared that Caoili
inserted his finger into her vagina and that she suffered tremendous pain during the
insertion. Her account of the incident, as found by the RTC39 and the CA,40 was clear,
convincing and straightforward, devoid of any material or significant inconsistencies.

In People v. Pareja,41 the Court held that:

[T]he "assessment of the credibility of witnesses is a domain best left to the trial court
judge because of his unique opportunity to observe their deportment and demeanor on
the witness stand; a vantage point denied the appellate courts, and when his findings
have been affirmed by the CA, these are generally binding and conclusive upon this
Court."42

While there are recognized exceptions to the rule, this Court has found no substantial
reason to overturn the identical conclusions of the trial and appellate courts on the
matter of AAA's credibility.43

When a rape victim's testimony on the manner she was molested is straightforward and
candid, and is corroborated by the medical findings of the examining physician, as in
this case, the same is sufficient to support a conviction for rape.44 In a long line of
cases,45 this Court has given full weight and credit to the testimonies of child victims,
considering that their youth and immaturity are generally badges of truth and sincerity.
Indeed, leeway should be given to witnesses who are minors, especially when they are
relating past incidents of abuse.46

It is likewise settled that in cases where the rape is committed by a close kin, such as
the victim's father, stepfather, uncle, or the common-law spouse of her mother, it is not
necessary that actual force or intimidation be employed; moral influence or ascendancy
takes the place of violence or intimidation.47
Verily, the prosecution has sufficiently proved the crime of rape by sexual assault as
defined in paragraph 2 of Article 266-A of the RPC. Caoili, however, cannot be convicted
of said crime.

Rape by sexual assault is not subsumed in rape through sexual intercourse.

We cannot accept the OSG's argument that based on the variance doctrine,48 Caoili can
be convicted of rape by sexual assault because this offense is necessarily included in
the crime of rape through sexual intercourse.

The variance doctrine, which allows the conviction of an accused for a crime proved
which is different from but necessarily included in the crime charged, is embodied in
Section 4, in relation to Section 5 of Rule 120 of the Rules of Court, which reads:

Sec. 4. Judgment in case of variance between allegation and proof. — When there is
variance between the offense charged in the complaint or information and that proved,
and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included
in the offense charged, or of the offense charged which is included in the offense
proved. (Emphasis ours)

Sec. 5. When an offense includes or is included in another. - An offense charged

necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those constituting the
latter.

By jurisprudence,49 however, an accused charged in the Information with rape by

sexual intercourse cannot be found guilty of rape by sexual assault, even though the
latter crime was proven during trial. This is due to the substantial distinctions between
these two modes of rape.50

The elements of rape through sexual intercourse are: (1) that the offender is a man;
(2) that the offender had carnal knowledge of a woman; and (3) that such act is
accomplished by using force or intimidation.51 Rape by sexual intercourse is a crime
committed by a man against a woman, and the central element is carnal knowledge.52

On the other hand, the elements of rape by sexual assault are: (1) that the offender
commits an act of sexual assault; (2) that the act of sexual assault is committed by
inserting his penis into another person's mouth or anal orifice or by inserting any
instrument or object into the genital or anal orifice of another person; and that the act
of sexual assault is accomplished by using force or intimidation, among others.53

In the first mode (rape by sexual intercourse): (1) the offender is always a man; (2)
the offended party is always a woman; (3) rape is committed through penile
penetration of the vagina; and (4) the penalty is reclusion perpertua.54
In the second mode (rape by sexual assault): (1) the offender may be a man or a
woman; (2) the offended party may be a man or a woman; (3) rape is committed by
inserting the penis into another person's mouth or anal orifice, or any instrument or
object into the genital or anal orifice of another person; and (4) the penalty is prision
mayor.55

The Court en banc's categorical pronouncement in People v. Abulon,56 thus, finds

application:

In view of the material differences between the two modes of rape, the first mode is
not necessarily included in the second, and vice-versa. Thus, since the charge in the
Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant
cannot be found guilty of rape by sexual assault although it was proven, without
violating his constitutional right to be informed of the nature and cause of the
accusation against him.57

Our esteemed colleague, Justice Marvic M.V.F. Leonen (Justice Leonen), is of the view
that Caoili should be convicted of rape by sexual intercourse.58 According to him, sexual
intercourse encompasses a wide range of sexual activities, and is not limited to those
involving penetration, genitals, and opposite sexes;59 it may be penetrative or simply
stimulative.60 Thus, he maintains that Caoili's act of inserting his finger into his
daughter's genitalia qualifies as carnal knowledge or sexual intercourse.61

The Court, however, cannot adopt Justice Leonen's theory.

The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended by R.A.
No. 8353, provides the elements that substantially differentiate the two forms of
rape,  i.e., rape by sexual intercourse and rape by sexual assault. It is through
legislative process that the dichotomy between these two modes of rape was created.
To broaden the scope of rape by sexual assault, by eliminating its legal distinction from
rape through sexual intercourse, calls for judicial legislation which We cannot traverse
without violating the principle of separation of powers. The Court remains steadfast in
confining its powers within the constitutional sphere of applying the law as enacted by
the Legislature.

In fine, given the material distinctions between the two modes of rape introduced in
R.A. No. 8353, the variance doctrine cannot be applied to convict an accused of rape by
sexual assault if the crime charged is rape through sexual intercourse, since the former
offense cannot be considered subsumed in the latter.

The Court, thus, takes this occasion to once again remind public prosecutors of their
crucial role in drafting criminal complaints or Information. They have to be more
judicious and circumspect in preparing the Information since a mistake or defect therein
may not render full justice to the State, the offended party and even the offender.

Thus, in Pareja,62 the Court held that:

The primary duty of a lawyer in public prosecution is to see that justice is done - to the
State, that its penal laws are not broken and order maintained; to the victim, that his
or her rights are vindicated; and to the offender, that he is justly punished for his
crime.63

Caoili can be convicted of the crime of lascivious conduct under Section 5(b) of R.A. No.
7610.

R.A. No. 761064 finds application when the victims of abuse, exploitation or

discrimination are children or those "persons below 18 years of age or those over but
are unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition."65

It is undisputed that at the time of the commission of the lascivious act, AAA was
fourteen (14) years, one (1) month and ten (10) days old. This calls for the application
of Section 5(b) of R.A. No. 761066 which provides:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence
of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct,
are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be

imposed upon the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That when
the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period. (Emphasis ours.)

The elements of sexual abuse under Section 5(b) of R.A. No. 7610 are as follows:

(1) The accused commits the act of sexual intercourse or lascivious conduct;

(2) The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and

(3) The child, whether male or female, is below 18 years of age.67 (Emphasis ours)

The prosecution's evidence has sufficiently established the elements of lascivious

conduct under Section 5(b) of R.A. No. 7610.

Caoili's lascivious conduct

The evidence confirms that Caoili committed lascivious acts against AAA when he kissed
her lips, touched and mashed her breast, and inserted his finger into her vagina and
made a push and pull movement with such finger for 30 minutes.

AAA's testimony during direct examination showed how her father, Caoili, committed
lascivious acts against her:

(On Direct Examination)

Pros. Silvosa
Q Now, was there any unusual incident that happened at around 7:00 o'clock in the evening of
October 23, 2005?
A Yes, sir.
   
Q What happened on October 23, 2005 at around 7:00 o'clock in the evening?
A First, he kissed my lips, 2nd, he touched and mashed my breast and his 4th finger
touched my private part.
 
Court
   
Q 4th finger of what hand?
A Left, your Honor.
 
xxxx
   
Q Who has done this to you?
A Noel Go Caoili.
 
Pros. Silvosa
   
Q If that Noel Go Caoili is present in the courtroom, can you identify him?
A Yes, sir.
 
Court
   
Q What is your relationship with Noel Caoili?
A My father.
   
xxxx
 
Pros. Silvosa
   
Q [AAA], you said that your father touched your vagina and inserted his, the 4th finger of his
left hand, for how many minutes, if you could still recall, when he inserted... I withdraw the
question, your Honor... What specifically did he do with his 4th finger in your vagina?
A He inserted it in my vagina, sir.
   
Q While the finger was already inside your vagina, what did he do with his finger?
A He inserted it and pulled it, he inserted and pulled it inside my vagina.
   
Q Can you still recall or how many or for how long did he made [sic] the push and pull
movement of his fingers inside you vagina?
A Thirty 30 minutes, sir.
   
Q Now, what did you feel while the finger of your father was inserted in your vagina?
A Pain, sir.68 (Emphasis ours)

AAA likewise confirmed on cross examination69 that Caoili molested her. She even
recounted that her father threatened her not to tell anybody about the incident.

Caoili's acts are clearly covered by the definitions of "sexual abuse" and "lascivious
conduct" under Section 2 of the rules and regulations70 of R.A. No. 7610:

(g) "Sexual abuse" includes the employment, use, persuasion, inducement, enticement
orcoercion of a child to engage in, or assist another person to engage in, sexual
intercourse orlascivious conduct or the molestation, prostitution, or incest with
children;

(h) "Lascivious conduct" means the intentional touching, either directly or through

clothing, of the genitalia, anus, groin,breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent toabuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person. (Emphasis ours)
It has been settled that Section 5(b) of R.A. No. 7610 does not require a prior or
contemporaneous abuse that is different from what is complained of, or that a third
person should act in concert with the accused.71

The victim's minority

AAA was a child below 18 years old at the time the lascivious conduct was committed
against her. Her minority was both sufficiently alleged in the Information and proved.

Influence and coercion

"Influence" is the improper use of power or trust in any way that deprives a person of
free will and substitutes another's objective. On the other hand, "coercion" is the
improper use of power to compel another to submit to the wishes of one who wields it.72

In People v. Leonardo,73 the Court ruled that:

Section 5 of R.A. No. 7610 does not merely cover a situation of a child being abused for
profit, but also one in which a child is coerced to engage in lascivious conduct. To
repeat, intimidation need not necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues the free exercise of the will of
the offended party. This is especially true in the case of young, innocent and immature
girls who could not be expected to act with equanimity of disposition and with nerves of
steel. Young girls cannot be expected to act like adults under the same circumstances
or to have the courage and intelligence to disregard the threat.74

It cannot be denied that AAA, who is only a little over 14 years old at the time the
offense was committed, was vulnerable and would have been easily intimidated by an
attacker who is not only a grown man but is also someone exercising parental authority
over her. Even absent such coercion or intimidation, Caoili can still be convicted of
lascivious conduct under Section 5(b) of R.A. No. 7610 as he evidently used his moral
influence and ascendancy as a father in perpetrating his lascivious acts against AAA. It
is doctrinal that moral influence or ascendancy takes the place of violence and
intimidation.75

It bears emphasis, too, that consent is immaterial in cases involving violation of Section
5 of R.A. No. 7610.76 The mere act of having sexual intercourse or committing
lascivious conduct with a child who is exploited in prostitution or subjected to sexual
abuse constitutes the offense because it is a malum prohibitum, an evil that is
proscribed.77

Clearly, therefore, all the essential elements of lascivious conduct under Section 5(b) of
R.A. No. 7610 have been proved, making Caoili liable for said offense.

Variance doctrine applied

Caoili had been charged with rape through sexual intercourse in violation of Article 266-
A of the RPC and R.A. No. 7610. Applying the variance doctrine under Section 4, in
relation to Section 5 of Rule 120 of the Revised Rules of Criminal Procedure, Caoili can
be held guilty of the lesser crime of acts of lasciviousness performed on a child,  i.e.,
lascivious conduct under Section 5(b) of R.A. No. 7610, which was the offense proved,
because it is included in rape, the offense charged.78 This echoes the Court's
pronouncement in Leonardo, viz.:

This Court holds that the lower courts properly convicted the appellant in Criminal Case
Nos. 546-V-02, 547-V-02, 548-V-02, 554-V- 02 and 555-V-02 for five counts of sexual
abuse under Section 5(b), Article III of Republic Act No. 7610 even though the charges
against him in the aforesaid criminal cases were for rape in relation to Republic Act No.
7610. The lower court['s] ruling is in conformity with the variance doctrine embodied
in Section 4, in relation to Section 5, Rule 120 of the Revised Rules of Criminal
Procedure, x x x:

xxxx

With the aforesaid provisions, the appellant can be held guilty of a lesser crime of
acts of lasciviousness performed on a child,  i.e., sexual abuse under Section
5(b), Article III of Republic Act No. 7610, which was the offense proved
because it is included in rape, the offense charged. 79 (Emphasis ours)

The due recognition of the constitutional right of an accused to be informed of the

nature and cause of the accusation through the criminal complaint or information is
decisive of whether his prosecution for a crime stands or not.80 Nonetheless, the right is
not transgressed if the information sufficiently alleges facts and omissions constituting
an offense that includes the offense established to have been committed by the
accused,81 which, in this case, is lascivious conduct under Section 5(b) of R.A. No.
7610.

Guidelines: Nomenclature of crime and penalties for lascivious conduct under Section
5(b) of R.A. No. 7610

The Court is aware of its previous pronouncements where, applying the variance
doctrine, it convicted the accused, charged with the rape of a minor, for the offense
designated not as "Lascivious Conduct under Section 5(b) of R.A. No. 7610" but as
"Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A.
No. 7610."

Thus, in People v. Bon,82 the accused was charged with having carnal knowledge of a
six-year-old child against her will and with the use of force and intimidation. The trial
court convicted the accused of rape. The evidence, however, merely showed that
accused inserted his finger into the victim's vaginal orifice. Applying the variance
doctrine, the Court  en banc held that the accused could still be made liable for acts of
lasciviousness under the RPC because said crime is included in rape. The accused was
convicted of Acts of Lasciviousness under Article 336 of the RPC in relation to Section
5(b) of R.A. No. 7610, since all the elements of the said offense were established.

Likewise, in Navarrete v. People,83 the accused was charged with statutory rape for
having sexual intercourse with a five-year-old girl. Absent clear and positive proof of
the entry of accused's penis into the labia of the victim's vagina, the trial court
convicted the accused of the crime of Acts of Lasciviousness under Article 336 of the
RPC in relation to Section 5(b) of R.A. No. 7610. The CA and this Court affirmed the
conviction. In the case of Bon,84 the Court held that the crime of acts of lasciviousness
is included in rape. The Court likewise found that the victim's testimony established
that accused committed acts of lewdness which amounted to lascivious conduct under
R.A. No. 7610.

So also, in People v. Rellota,85 the Court modified the accused's conviction for

attempted rape86 of a 12-year-old minor to a conviction for Acts of Lasciviousness as
defined in the RPC in relation to Section 5 of R.A. No. 7610, holding that the accused's
acts, while lascivious, did not exactly demonstrate an intent to have carnal knowledge
with the victim. The Court applied the variance doctrine and reiterated that the crime of
acts of lasciviousness is included in rape. The conviction was based on the Court's
finding that the elements of acts of lasciviousness under Article 336 of the RPC and of
lascivious conduct as defined in the rules and regulations of R.A. No. 7610 have been
established.

Based on the language of Section 5(b) of R.A. No. 7610, however, the offense
designated as Acts of Lasciviousness under Article 336 of the RPC in relation to Section
5 of R.A. No. 7610 should be used when the victim is under 12 years of age at the time
the offense was committed. This finds support in the first proviso in Section 5(b) of R.A.
No. 7610 which requires that "when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be." Thus, pursuant to this proviso, it has been held that
before an accused can be convicted of child abuse through lascivious conduct on a
minor below 12 years of age, the requisites for act of lasciviousness under Article 336
of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of
R.A. No. 7610.87

Conversely, when the victim, at the time the offense was committed, is aged twelve
(12) years or over but under eighteen (18), or is eighteen (18) or older but unable to
fully take care of herself/himself or protect himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition,88 the nomenclature of the offense should be Lascivious Conduct under
Section 5(b) of R.A. No. 7610, since the law no longer refers to Article 336 of the RPC,
and the perpetrator is prosecuted solely under R.A. No. 7610.

In the case at bar, AAA was a little over 14 years old when the lascivious conduct was
committed against her. Thus, We used the nomenclature "Lascivious Conduct" under
Section 5(b) of R.A. No. 7610.

Accordingly, for the guidance of public prosecutors and the courts, the Court takes this
opportunity to prescribe the following guidelines in designating or charging the proper
offense in case lascivious conduct is committed under Section 5(b) of R.A. No. 7610,
and in determining the imposable penalty:

1. The age of the victim is taken into consideration in designating or charging the
offense, and in determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the nomenclature of the crime should
be "Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to
Section 5(b) of R.A. No. 7610." Pursuant to the second proviso in Section 5(b) of R.A.
No. 7610, the imposable penalty is reclusion temporal in its medium period.

3. If the victim is exactly twelve (12) years of age, or more than twelve (12) but below
eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully
take care of herself/himself or protect herself/himself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition, the
crime should be designated as "Lascivious Conduct under Section 5(b) of R.A. No.
7610," and the imposable penalty is reclusion temporal in its medium period
to  reclusion perpetua.89

The CA's order to remand the case to the trial court is procedurally infirm.

The CA erred in remanding the case to the trial court for the purpose of filing the proper
Information on the basis of the last paragraph of Section 14, Rule 110 and Section 19,
Rule 119 of the Rules of Court, which read:

Sec. 14. Amendment or substitution. — x x x

xxxx

If it appears at any time before judgment that a mistake has been made in charging

the proper offense, the court shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in accordance with section 19, Rule
119, provided the accused shall not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at the trial.

Sec. 19. When mistake has been made in charging the proper offense. — When it
becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not be
discharged if there appears good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and dismiss the original case upon
the filing of the proper information. (Emphasis ours)

It is clear that the rules are applicable only before judgment has been rendered. In this
case, the trial has been concluded. The RTC already returned a guilty verdict, which has
been reviewed by the CA whose decision, in turn, has been elevated to this Court.

The CA's judgment did not amount to an acquittal.

Contrary to Caoili's stance, the CA's decision did not amount to a judgment of acquittal.
It is true the CA declared that given the substantial distinctions between rape through
sexual intercourse, as charged, and rape by sexual assault, which was proved, "no valid
conviction can be had without running afoul of the accused's Constitutional right to be
informed of the charge." This statement, however, must be read alongside the
immediately succeeding directive of the appellate court, remanding the case to the
RTC for further proceedings pursuant to Section 14, Rule 110 and Section 19, Rule
119 of the Rules of Court. Said directive clearly shows that the CA still had cause to
detain Caoili and did not discharge him; in fact, the CA would have Caoili answer for the
proper Information which it directed the prosecution to file. These are not consistent
with the concept of acquittal which denotes a discharge, a formal certification of
innocence, a release or an absolution.90 While the procedure adopted by the CA is
certainly incorrect, its decision cannot be deemed to have the effect of an acquittal.

Penalty and Damages

Considering that AAA was over 12 but under 18 years of age at the time of the
commission of the lascivious act, the imposable penalty is  reclusion temporal in its
medium period to reclusion perpetua.

Since the crime was committed by the father of the offended party, the alternative
circumstance of relationship should be appreciated.91 In crimes against chastity, such as
acts of lasciviousness, relationship is always aggravating.92 With the presence of this
aggravating circumstance and no mitigating circumstance, the penalty shall be applied
in its maximum period,  i.e., reclusion perpetua,93 without eligibility of parole.94 This is
in consonance with Section 31(c)95 of R.A. No. 7610 which expressly provides that the
penalty shall be imposed in its maximum period when the perpetrator is, inter alia, the
parent of the victim.

Likewise, Section 31(f)96 of R.A. No. 7610 imposes a fine upon the perpetrator, which
jurisprudence pegs in the amount of Php 15,000.97

Parenthetically, considering the gravity and seriousness of the offense, taken together
with the evidence presented against Caoili, this Court finds it proper to award damages.

In light of recent jurisprudential rules, when the circumstances surrounding the crime
call for the imposition of reclusion perpetua, the victim is entitled to civil indemnity,
moral damages and exemplary damages each in the amount of Php 75,000.00,
regardless of the number of qualifying aggravating circumstances present.98

The fine, civil indemnity and all damages thus imposed shall be subject to interest at
the rate of six percent (6%) per annum from the date of finality of this judgment until
fully paid.99

WHEREFORE, both petitions are DENIED. The Court of Appeals' July 22, 2010
Decision and March 29, 2011 Resolution are SET ASIDE. Accused Noel Go Caoili
alias Boy Tagalog is guilty of Lascivious Conduct under Section 5(b) of Republic Act No.
7610. He is sentenced to suffer the penalty of reclusion perpetua, without eligibility of
parole, and to pay a fine of Php 15,000.00. He is further ordered to pay the victim,
AAA, civil indemnity, moral damages and exemplary damages each in the amount of
Php 75,000.00. The fine, civil indemnity and damages so imposed are subject to
interest at the rate of six percent (6%)  per annum  from the date of finality of this
Decision until fully paid.
SO ORDERED.

People v. Macaranas, G.R. No. 226846, June 21, 2017

G.R. No. 226846, June 21, 2017

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JEFFREY MACARANAS Y

FERNANDEZ, Accused-Appellants.

DECISION

PERALTA,**J.:

For consideration of this Court is the appeal of the Decision1 dated October 29, 2015 of
the Court of Appeals (CA) dismissing appellant Jeffrey Macaranas y Fernandez's appeal
and affirming with modification the Judgment2 dated August 22, 2012 of the Regional
Trial Court (RTC), Branch 79, Malolos, Bulacan in Criminal Case No. 38-M-2008, finding
appellant guilty beyond reasonable doubt of violation of Republic Act (R.A.) No. 6539,
otherwise known as the Anti-Carnapping Act of 1972.

The facts follow.

Frank Karim Langaman and his girlfriend Kathlyn Irish Mae Cervantes were at Meyland
Village, Meycauayan, Bulacan, in the evening of February 18, 2007, aboard Frank's
motorcycle, a green Honda Wave 125 with Plate No. NQ 8724, registered under the
name of Jacqueline Corpuz Langaman. When they were about to leave the place, two
(2) men, both wearing jackets and bonnets suddenly approached them, followed by a
third man who was earlier standing at a post. One of the three men held Frank by the
neck and shot Frank causing the latter to fall down. The same man pointed his gun at
Kathlyn and demanded that she give him her cellphone. After Kathlyn gave her
cellphone, the same man hit her on the back. Thereafter, Kathlyn pretended to be
unconscious and saw that the men searched the body of Frank for any valuables. While
the incident was taking place, the second man took Frank's motorcycle, while the third
man, herein appellant, just stood to guard them and acted as the look-out. Afterwards,
the three men left together riding Frank's motorcycle. It was then that Kathlyn was able
to seek help and Frank was taken to the hospital.

According to Dr. Gene Patrick De Leon, Frank sustained a gunshot injury traversing the
neck area which necessitated surgery. Eventually, Frank died on the 27th post-operative
day or on March 30, 2007. The cause of Frank's death was "cardio pulmonary arrest
secondary to the spinal cord injury with retained metallic foreign body secondary
conjunction injury status post the surgery done which is laminectomy infusion with rods
and screws," as shown in the Post-Mortem Certificate.

Thus, an Information was filed against appellant, Richard Lalata and a certain John Doe
charging them of violation of R.A. No. 6539, which reads as follows:

That on or about the 18th day of February, 2007, in the City of Meycauayan, Province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with gun, by means of violence and intimidation, with intent of
gain and without the consent of the owner, conspiring, confederating and mutually
helping one another, did then and there wilfully, unlawfully and feloniously take, steal
and carry away with them one Honda Wave 125 motorcycle with Plate No. NQ 8724
valued at P59,000.00 belonging to Jacqueline Corpuz [Langaman], to her damage and
prejudice in the aforesaid amount of P59,000.00, and by reason or on the occasion of
the commission of the said carnapping act, the said accused in furtherance of their
conspiracy and with intent to kill did then and there wilfully, unlawfully and feloniously
attack, assault and shoot Frank Karim Langaman with the gun they were then provided,
hitting the latter on his neck which caused his death.
Appellant pleaded "not guilty" during his arraignment and after the pre-trial ended, the
trial ensued.

The prosecution presented the testimonies of Jacqueline Langaman, Kathlyn Irish Mae
Cervantes, Dr. Gene Patrick De Leon and SPO1 Hernan Roble Berciles, Jr.

Appellant, on the other hand, testified in his defense and denied the charges against
him claiming that on February 18, 2007, he fetched his cousin Richard Lalata before
proceeding to his father Erning Macaranas' house at Brgy. Lawa, where they usually eat
and sleep. According to him, they left early in the morning of the following day and just
slept the whole day at their house in Brgy. Daungan. Thereafter, sometime in June,
2007, barangay officials arrested him and claimed that they beat and mauled him in
order to admit that he killed Frank, and under coercion, he pointed to his cousin
Richard Lalata as the perpetrator.

The RTC, in its decision, found appellant guilty beyond reasonable doubt of the offense
charged and disposed the case, as follows: chanRoblesvirtualLawlibrary

WHEREFORE, in view of all the foregoing, this Court finds accused Jeffrey
Macaranas, GUILTY beyond reasonable doubt [of] the crime of Carnapping.

Accordingly, accused Jeffrey Macaranas is hereby SENTENCED:

(a) To suffer the penalty of Reclusion Perpetua;

(b) To indemnify the private complainant Jacqueline Langaman Corpuz the amount of
Php50,000.00 as civil indemnity for the death of Frank Karim Corpuz Langaman;

(c) To pay the private complainant Jacqueline Langaman the amount of Php50,000.00
as temperate damages;

(d) To restore to the offended party, Jacqueline Langaman, the subject motorcycle or in
default thereof, to indemnify said offended party in the sum of Php25,000.00; and

(e) To pay the costs of the suit.

The case against accused Richard Lalata who remained at large since the filing of the
Information is ordered ARCHIVED to be revived upon his apprehension. Issue an alias
warrant of arrest for the arrest of accused Lalata.

SO ORDERED.3
On appeal, the CA affirmed the decision of the RTC with modification, thus: chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant Appeal is DENIED. Accordingly, the
Judgment of the Regional Trial Court, Branch 79, Malolos, Bulacan, dated 22 August
2012 is hereby AFFIRMED but MODIFIED to read as follows: chanRoblesvirtualLawlibrary

xxxx

Accordingly, accused Jeffrey Macaranas is hereby SENTENCED:

(a) To suffer the penalty of Reclusion Perpetua;

(b) To indemnify the private complainant Jacqueline Langaman [y] Corpuz the amount
of seventy-five thousand (Php75,000.00) pesos as civil indemnity for the death of
Frank Karim Corpuz Langaman;

(c) To pay the private complainant Jacqueline Langaman the amount of fifty thousand
(Php50,000.00) pesos as moral damages;

(d) To pay the private complainant Jacqueline Langaman the amount of thirty
thousand (Php30,000.00) pesos as exemplary damages;

(e) To pay the private complainant Jacqueline Langaman the amount of twenty-five
thousand (Php25,000.00) pesos as temperate damages in lieu of actual
damages;

(f) To restore to the offended party, Jacqueline Langaman, the subject motorcycle or in
default thereof, to indemnify said offended party in the sum of Php25,000.00; and

(g) To pay the costs of the suit.

The damages awarded shall earn interest at six percent (6%) per annum from
finality of judgment until fully satisfied.

The case against accused Richard Lalata who remained at large since the filing of the
Information is ordered ARCHIVED to be revived upon his apprehension. Issue an alias
warrant of arrest for the arrest of accused Lalata.

SO ORDERED.
SO ORDERED.4
Hence, the present appeal.

Appellant insists that the trial court and the CA committed an error in giving full
credence to the testimony of the lone witness and in rejecting his defense of denial and
alibi.

R.A. No. 6539, or the Anti-Carnapping Act of 1972, as amended, defines carnapping as
the taking, with intent to gain, of a motor vehicle belonging to another without the
latter's consent, or by means of violence against or intimidation against persons, or by
using force upon things.5 By the amendment in Section 20 of R.A. No. 7659, Section 14
of the Anti-Carnapping Act now reads: chanRoblesvirtualLawlibrary

SEC. 14. Penally for Carnapping. Any person who is found guilty of carnapping, as this
term is defined in Section two of this Act, shall, irrespective of the value of the motor
vehicle taken, be punished by imprisonment for not less than fourteen years and eight
months and not more than seventeen years and four months, when the carnapping is
committed without violence or intimidation of persons, or force upon things, and by
imprisonment for not less than seventeen years and four months and not more than
thirty years, when the carnapping is committed by means of violence or intimidation of
any person, or force upon things; and the penally of  reclusion perpetua  to death shall
be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed
or raped in the course of the commission of the carnapping or on the occasion thereof.
(Emphasis supplied)
Three amendments have been made to the original Section 14 of the Anti-Carnapping
Act: (1) the penalty of life imprisonment was changed to reclusion perpetua, (2) the
inclusion of rape, and (3) the change of the phrase "in the commission of the
carnapping" to "in the course of the commission of the carnapping or on the occasion
thereof." This third amendment clarifies the law's intent to make the offense a special
complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of the Revised Penal
Code on robbery with violence against or intimidation of persons. Thus, under the last
clause of Section 14 of the Anti-Carnapping Act, the prosecution has to prove the
essential requisites of carnapping and of the homicide or murder of the victim, and
more importantly, it must show that the original criminal design of the culprit was
carnapping and that the killing was perpetrated "in the course of the commission of the
carnapping or on the occasion thereof." Consequently, where the elements of
carnapping are not proved, the provisions of the Anti-Carnapping Act would cease to be
applicable and the homicide or murder (if proven) would be punishable under the
Revised Penal Code.6

"There is no arguing that the anti-carnapping law is a special law, different from the
crime of robbery and theft included in the Revised Penal Code. It particularly addresses
the taking, with intent to gain, of a motor vehicle belonging to another without the
latter's consent, or by means of violence against or intimidation of persons, or by using
force upon things. But a careful comparison of this special law with the crimes of
robbery and theft readily reveals their common features and characteristics, to wit:
unlawful taking, intent to gain, and that personal property belonging to another is taken
without the latter's consent. However, the anti-carnapping law particularly deals with
the theft and robbery of motor vehicles. Hence a motor vehicle is said to have been
carnapped when it has been taken, with intent to gain, without the owner's consent,
whether the taking was done with or without the use of force upon things. Without the
anti-carnapping law, such unlawful taking of a motor vehicle would fall within the
purview of either theft or robbery which was certainly the case before the enactment of
said statute."7

So, essentially, carnapping is the robbery or theft of a motorized vehicle and it becomes
qualified or aggravated when, in the course of the commission or on the occasion of the
carnapping, the owner, driver or occupant is killed or raped.8 As we have ruled
in People v. Mejia:9
The killing or the rape merely qualifies the crime of carnapping x x x and no distinction
must be made between homicide and murder. Whether it is one or the other which is
committed "in the course of carnapping or on the occasion thereof makes no difference
insofar as the penalty is concerned.
It is similar to the special complex crime of robbery with homicide and in People v.
Bariquit,10 it was ruled that:
chanRoblesvirtualLawlibrary
In the present case, the accused-appellants were charged with, tried, and convicted for
the crime of robbery with homicide. In our jurisdiction, this special complex crime is
primarily classified as a crime against property and not against persons, homicide being
a mere incident of the robbery with the latter being the main purpose and object of the
criminal.

Under Article 14 of the Revised Penal Code, treachery is applicable only to crimes
against persons. Accordingly, inasmuch as robbery with homicide is a crime against
property and not against persons, treachery cannot be validly considered in the present
case.
Thus, the elements of carnapping as defined and penalized under R.A. No. 6539, as
amended are the following: chanRoblesvirtualLawlibrary

1) That there is an actual taking of the vehicle;

2) That the vehicle belongs to a person other than the offender himself;
3) That the taking is without the consent of the owner thereof; or that the taking was
committed by means of violence against or intimidation of persons, or by using force upon
things; and
4) That the offender intends to gain from the taking of the vehicle.11
Under the last clause of Section 14 of the R.A. No. 6539, as amended, the prosecution
has to prove the essential requisites of carnapping and of the homicide or murder of the
victim, and more importantly, it must show that the original criminal design of the
culprit was carnapping and that the killing was perpetrated "in the course of the
commission of the carnapping or on the occasion thereof."12 In other words, to prove
the special complex crime of carnapping with homicide, there must be proof not only of
the essential elements of carnapping, but also that it was the original criminal design of
the culprit and the killing was perpetrated in the course of the commission of the
carnapping or on the occasion thereof.13

In this particular case, all the elements are present as the pieces of evidence presented
by the prosecution show that there were two (2) men both wearing jackets and
bonnets, together with the appellant who approached the victim and the witness
Kathlyn and employed force and intimidation upon them and thereafter forcibly took the
victim's motorcycle and then shot the victim on the neck causing his death.

Appellant argues that the RTC, as well as the CA, erred in appreciating the testimony of
the lone witness of the prosecution because of its inconsistencies and the improbability
of her imputations.

This Court gives the highest respect to the RTC's evaluation of the testimony of the
witness[es], considering its unique position in directly observing the demeanor of a
witness on the stand.14 From its vantage point, the trial court is in the best position to
determine the truthfulness of witness[es].15 The factual findings of the appellate court
generally are conclusive, and carry even more weight when said court affirms the
findings of the trial court, absent any showing that the findings are totally devoid of
support in the records, or that they are so glaringly erroneous as to constitute grave
abuse of discretion.16

The CA, therefore, did not err when it concurred with the RTC on the following: chanRoblesvirtualLawlibrary
The testimony of Kathlyn satisfies the aforementioned test of credibility. More
importantly, during her time at the witness stand, Kathlyn positively and categorically
identified accused-appellant as one of the three (3) men who committed the crime. We
agree with the court a quo's observation on this, thus -
xxx

The testimony of the Prosecution witness Kathlyn Irish Mae Cervantes reveals that she
came face to face with accused Jeffrey Macaranas. Though the other two (2) accused
wore bonnet at the time of the shooting incident, she was able to identify accused
Jeffrey Macaranas and narrate to the court his specific participation in the carnapping
incident. She testified that before the two (2) male persons approached her and Frank
Karim, she saw accused Jeffrey Macaranas who was then standing beside a post,
staring at them while they were moving slowly on board the motorcycle. Again, she saw
Jeffrey following the two male persons who approached her and Frank Karim. Jeffrey
Macaranas was just a meter away from her because he was near the person holding the
motorcycle. Jeffrey Macaranas boarded the motorcycle together with his two (2) male
companions immediately after the incident.

xxx
There was indeed a positive and unequivocal identification of the accused. It has long
been settled that where the witnesses of the prosecution were not actuated by ill
motive, it is presumed that they were not so actuated and their testimony is entitled to
full faith and credit. Herein, no imputation of improper motive on the part of Kathlyn
was ever made by the accused-appellant, as the latter even testified he was without
knowledge of any grudge Kathlyn might have against him. Further, relationship per se
of Kathlyn with the victim does not necessarily mean that her testimony is biased
and/or fabricated.

xxxx

Moreover, as correctly held by the People, through the OSG, any inconsistency, if at all,
was already superseded by Kathlyn's positive identification of the accused-appellant in
court. x x x

x x x17
Conspiracy was also proven in this case. Conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it.
Conspiracy need not be proved by direct evidence and may be inferred from the
conduct of the accused before, during and after the commission of the crime,18 which
are indicative of a joint purpose, concerted action and concurrence of sentiments.19 In
conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with
the criminal design of another, indicated by the performance of an overt act leading to
the crime committed. It may be deduced from the mode and manner in which the
offense was perpetrated.20 As the CA correctly ruled:chanRoblesvirtualLawlibrary

In the present case, conspiracy was evident from the coordinated movements of the
three accused. Accused-appellant was seen standing by the post looking at Kathlyn and
the victim aboard the motorcycle. When his co-accused approached the former,
accused-appellant followed suit and was standing guard nearby, while his companions
committed their criminal acts. After the victim fell down, and apparently thinking
Kathlyn to be unconscious, the trio left together taking with them the victim's
motorcycle. Clearly, the accused-appellant and company all acted in confabulation in
furtherance of their common design and purpose, i.e., to carnal the motorcycle. As
aptly held by the court a quo thus -
xxx

From the acts of accused Jeffrey Macaranas, there was unity in his action with his co-
accused and a concerted effort to commit the crime charged. The simultaneous acts of
Macaranas and his two (2) companions indicate a joint purpose and concurrence of
intentions on their part. x x x

x x x21
Anent appellant's defense of denial and alibi, this Court has consistently ruled that
denial, if unsubstantiated by clear and convincing evidence, is a negative and self-
serving evidence, which deserves no weight in law and cannot be given greater
evidentiary value over the testimonies of credible witnesses who testify on affirmative
matters22 and that for the defense of alibi to prosper, the accused must prove (a) that
he was present at another place at the time of the perpetration of the crime, and (b)
that it was physically impossible for him to be at the scene of the crime23 during its
commission.24 In correctly ruling that the defense of denial and alibi of appellant is
inconsequential, the CA stated the following: chanRoblesvirtualLawlibrary

In the face of the serious accusation, accused-appellant merely interposed the defense
of denial and alibi to prove his innocence. Time and again, this Court held that denial is
an inherently weak defense and has always been viewed upon with disfavor by the
courts due to the ease with which it can be concocted. Inherently weak, denial as a
defense crumbles in the in the light of positive identification of the accused-appellant,
as in this case. The defense of denial assumes significance only when the prosecution's
evidence is such that it does not prove guilt beyond reasonable doubt, which is not the
case here. Verily, mere denial, unsubstantiated by clear and convincing evidence, is
negative self-serving evidence which cannot be given greater evidentiary weight than
the testimony of the prosecution witness who testified on affirmative matters. The
Court finds inadequate the accused-appellant's defense of alibi absent any credible
corroboration from disinterested witnesses, to exculpate him of the crime charged.25
As to the imposable penalty under Section 14 of RA No. 6539, as amended, it is
provided that:chanRoblesvirtualLawlibrary

Sec. 14. Penally for Carnapping. — Any person who is found guilty of carnapping, as
this term is defined in Section Two of this Act, shall, irrespective of the value of motor
vehicle taken, be punished by imprisonment for not less than fourteen years and eight
months and not more than seventeen years and four months, when the camapping is
committed without violence or intimidation of persons, or force upon things; and by
imprisonment for not less than seventeen years and four months and not more than
thirty years, when the carnapping is committed by means of violence against or
intimidation of any person, or force upon things; and the penalty of reclusion
perpetua to death shall be imposed when the owner, driver or occupant of the
carnapped motor vehicle is killed or raped in the course of the commission of the
carnapping or on the occasion thereof.
Thus, the RTC did not commit an error in imposing the penalty of reclusion
perpetua considering that there was no alleged and proven aggravating circumstance.
In line, however, with the recent jurisprudence,26 in cases of special complex crimes like
carnapping with homicide, among others, where the imposable penalty is reclusion
perpetua, the amounts of civil indemnity, moral damages, and exemplary damages are
pegged at P75,000.00 each. The appellant is also ordered to pay P50,000.00 as
temperate damages in lieu of the award of P25,000.00 as actual damages to the private
complainant.27 All the other dispositions of the CA stays.

WHEREFORE, the appeal of Jeffrey Macaranas y Fernandez is DISMISSED.

Consequently, the Decision dated October 29, 2015 of the Court of Appeals
is AFFIRMED with the MODIFICATION that the appellant is ordered to indemnify the
private complainant Jacqueline Langaman the amount of P75,000.00 instead of
P50,000.00 as moral damages, P75,000.00 instead of P30,000.00 as exemplary
damages and the amount of P50,000.00 instead of P25,000.00 as temperate damages
in lieu of actual damages.

SO ORDERED.

2. Circumstances affecting criminal liability

a. Justifying circumstances

People v. Lopez, G.R. No. 177302, April 16, 2009

G.R. No. 177302               April 16, 2009

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JAIME LOPEZ, ROGELIO REGALADO, AND ROMEO ARAGON, Appellants.

DECISION

CARPIO-MORALES, J.:

Jaime Lopez, Rogelio Regalado and Romeo Aragon (appellants) were charged of Murder by an
Information filed before the Regional Trial Court (RTC) of Surigao del Sur, the accusatory portion of
which reads:

That on or about 3:30 o’clock in the afternoon of April 25, 1996 at Bandola Street, Pob. Municipality
of Hinatuan, Province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually helping one another for a
common purpose, with treachery and evident premeditation and with deliberate intent to kill, and
armed with sharp bladed instruments (knives and "Tare"), did then and there willfully, unlawfully and
feloniously attack, assault, box and stab to death EDENCITO CHU Y VILLAHERMOSA, thereby
inflicting upon the latter fatal multiple stab wounds as certified to by a doctor, which caused his
instantaneous death, to the damage and prejudice of the heirs of the said CHU.

CONTRARY TO LAW: (In violation of Article 248 of the Revised Penal Code of the Philippines, with
the aggravating circumstances of superior strength). 1

From the evidence for the prosecution, the following version of events is culled: 2
At around 3:30 P.M. of April 25, 1996, appellant Rogelio Regalado (Regalado), who was outside
Bantogan3 Tailoring, a tailoring shop at Bandola street corner Villaluz, Hinaruan, Surigao del Sur,
called out: "You let Bonjong come out so we could measure his courage!," referring to Edencito Chu
(Chu) whose nickname is "Bonjong." Chu thereupon emerged from his mother’s bakery, Purity
Bakery, fronting the tailor shop, put his arms around Regalado’s shoulders and asked for
forgiveness. Regalado, however, pushed Chu’s arms aside, drew a curved four to five inches long
knife as he uttered "Putang Ina, ka Jong!" and stabbed Chu below the left nipple.

As Chu ran towards Villaluz street, Regalado chased him and picked up two pieces of firewood
along the way with which he hit Chu.

Appellant Jaime Lopez (Lopez) in the meantime surfaced from a house beside the tailoring shop
and, armed with a hunting knife, joined the chase.

Soon appellant Romeo Aragon (Aragon) also surfaced from the back of the tailoring shop and also
joined the chase.

The three appellants caught up with Chu at the corner of Lindo and Bandola streets at which Aragon
boxed Chu, causing the latter to fall. Aragon kicked Chu. Lopez then stabbed Chu several times as
Regalado looked on. When Chu was no longer moving, the three appellants left. Chu expired before
reaching the hospital.

Post-mortem examination of Chu’s body yielded the following findings:

STAB WOUND LEFT DELTOID 4CM MUSCLE DEEP

PENETRATING STAB WOUND LEFT POSTERIOR AXILLARY LINE AT THE LEVEL OF

T10, 3CM

PENETRATING STAB WOUND RIGHT POSTERIOR AXILLARY LINE AT THE LEVEL OF

T8, 1.5 CM

PENETRATING STAB WOUND RIGHT ANTERIOR TRUNK AT THE LEVEL OF T10, 1 CM

PENETRATING STAB WOUND LEFT ANTERIOR AXILLARY LINE 1 CM

STAB WOUND LEFT NIPPLE 1 CM SUBCUTANEOUS DEEP

2 LACERATED WOUNDS LEFT ELBOWS SKIN DEEP 0.5 CM EACH4

Autopsy of Chu’s body yielded results which coincided with those of the post-mortem examination,
thus:

Body, embalmed, well-preserved.

Embalming incisions, sutured: neck, antero-lateral aspect, right, 3.5 cm.; supra-umbilibical region,
right, 1.0 cm.

Contused-abrasions, patellar region, bilateral right, 5.0 x 11. 5cm; left, 11.0 x 12.0cm.
Incised wounds, modified by suturing and embalming: chest, infra-mammary region, right, 1.5 cm.;
inguinal region, right, 1.5 cm.; forearm, proximal third, postero-lateral aspect, left, 1.6 cm.

Stab wounds, modified by suturing and embalming:

1. Roughly curved-shaped, 4.5cm., edges are clean-cut, oriented vertically, superior

extremity is blunt, inferior extremity is sharp. Located at the left arm, proximal third, antero-
lateral aspect, 23.0cm. above the left elbow, directed backward, downward, and laterally,
involving the soft tissue, cutting the major blood vessels with an approximate depth of 7.5cm.

2. Roughly spindle-shaped, 2.3cm., edges are clean-cut, oriented vertically, superior

extremity is sharp, inferior extremity is blunt. Located at infra-mammary region, between
sixth (6th) and seventh (7th) intercostal space, lateral aspect, left, 16.0cm. from anterior
median line, directed, backward, downward, and medially, involving the soft tissues, into the
thoracic cavity, into the pericardial sac, penetrating the left ventricle of the heart with an
approximate depth of 10.0cm.

3. Roughly spindle-shaped, 1.8cm., edges are clean-cut oriented vertically, superior

extremity is sharp, inferior extremity is blunt. Located at supra-mammary region; left, 1.0cm.
from anterior median line, directed backward, sideward, and medially involving the soft
tissues, cutting the sternum superficially, with an approximate depth of 5.0cm.

4. Roughly spindle-shaped, 2.0cm., edges are clean-cut, oriented vertically, superior

extremity is blunt, inferior extremity is sharp. Located at the infra-scapular region, right,
20.0cm. from posterior median line, directed forward, downward, and laterally, involving the
soft tissues only, with an approximate depth of 5.0cm.

5. Roughly curved-shaped, 3.5 edges are clean-cut, oriented horizontally, lateral extremity is
blunt, medial extremity is sharp. Located at the infra-scapular region, 11.0cm. from posterior
medial line, directed forward, downward and medially, involving the soft tissues only with an
approximate depth of 5.2cm.

Hemopericardium, residual clotted blood – 250cc.

Brain & other visceral organs, pale, embalmed.

Stomach – small amount of grayish food particles. 5

Dr. Ricardo M. Rodaje, who conducted the autopsy, explained that wounds 1 and 5 were caused by
a curve-shaped weapon.6

At the witness stand,7 Regalado claimed as follows:

At 3:00 P.M. on April 25, 1996, after he bought a hotcake from the hotcake stand of Angelina Aragon
(Angelina), wife of appellant Aragon and daughter of appellant Regalado, at the corner of Bandola
and Villaluz streets, Chu approached and choked him.

He elbowed Chu and extricated himself. He then left but Chu pursued him as he (Regalado)
proceeded to Angelina’s house at the corner of España and Villaluz streets where he hid for around
two minutes.
When he returned to the hotcake stand, his son-in-law appellant Lopez summoned him, telling him "I
have done something, you accompany me in going to the police station because I am going to
surrender."

He and Lopez thereupon boarded a tricycad and repaired to the police station where Lopez
surrendered, handed a knife to the police, and was detained. As he (Regalado) was about to go
home, he was restrained as he might be waylaid by Chu. The following morning, he was detained
because the police found him to have participated in the killing of Chu.

As for appellant Lopez, he interposed "defense of relative" and "self-defense." 8

His version goes as follows:

At 3:00 P.M. of April 25, 1996, while he was at one Lily Balbuena’s mahjong house along Villaluz
street, he heard a woman’s voice shouting. "Police, police, police!" He thus stepped out and saw
Chu chasing Regalado, his father-in-law, prompting him to go to Regalado’s nearby house to get a
knife, and to thereafter follow Chu as he was chasing Regalado. Lopez soon

intercepted Chu who boxed him as he (Chu) posed "Are you going to defend your father-in-law?" He
thereupon stabbed Chu several times and surrendered to the police station in the company of
Regalado.

Appellant Aragon invoked alibi,9 claiming that at 3:00 P.M. of April 25, 1996, he went to the wharf
which is 40 meters away from Angelina’s hotcake stand to buy fish. He waited for 30 minutes for
fishermen but no one came, so he went home. Before reaching his house he was surprised to see
many people at the corners of Villaluz and Bandola streets. Angelina soon met him and told him that
Lopez had stabbed Chu because he choked Regalado.

He later learned that police investigator Pedic Mangin was looking for him, hence, he visited the
latter who told him that they would talk things over at the municipal hall. When he reached the
municipal hall, he was immediately detained.

The defense presented evidence of Chu’s supposed reputation as a bully who picked fights for no
reason and who had an existing criminal record.10

Branch 29 of the Bislig City RTC found the three appellants to have killed Chu, qualified by treachery
which absorbed "abuse of superior strength". The trial court thus disposed:

WHEREFORE, finding the accused JAIME LOPEZ alias "DODONG", ROGELIO REGALADO alias
"ROGER", and ROMEO ARAGON, all co-principals by direct participation, guilty beyond
reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, this Court hereby sentences them to suffer the
penalty of Reclusion Perpetua with all the accessory penalties provided by law.

To pay the heirs of the victim the sum of one hundred nine thousand six hundred seventy five pesos
and forty (P109,675.40) centavos as interment and burial expenses, fifty thousand (P50,000.00)
pesos as life indemnity twenty-three thousand (P23,000.00) pesos as attorney’s fees, and ten
thousand (P10,000) pesos as exemplary damages.

To pay the cost.

SO ORDERED.11

On appeal, appellants faulted the trial court for

x x x FINDING THAT CONSPIRACY ATTENDED THE KILLING OF THE VICTIM.

II

x x x NOT CONSIDERING THE DEFENSES INTERPOSED BY THE ACCUSED-APPELLANTS. 12

III

x x x CONVICTING THE ACCUSED APPELLANTS OF MURDER.13

The Court of Appeals affirmed the trial court’s decision, 14 hence, the present appeal.15

The appeal is bereft of merit.

This Court finds no reason to overturn the factual findings of the trial court, especially since the
prosecution’s version is culled from the testimony of eyewitnesses.

Appellants’ disclaimer of the presence of conspiracy fails. The evidence shows that they cooperated
in a common design to kill Chu. Regalado initiated the killing when he stabbed Chu on the chest,
and the two other appellants joined Regalado in chasing Chu, with Regalado hitting Chu with
firewood along the way. Then, when the three of them had cornered Chu, Aragon boxed and kicked
Chu, enabling Lopez to stab him several times. These indicate a conspiracy.

Aragon’s alibi does not persuade. As the trial court held:

x x x From the ocular inspection of the wharf conducted in Hinatuan, Surigao del Sur on February
26, 2000,16 it was established that the wharf was located at the dead-end portion of Villaluz Street.
Aragon was at the wharf at about the same date and time of the stabbing incident, allegedly to buy
fish. He was seated at the last step of the wharf. He stayed there for thirty (30) minutes to wait for a
pump boat bringing in fish but there was none. At about the time of the incident, the water level was
supposed to be low tide17 so that no pump boat, if there was any, can dock on the wharf. Applying
common sense, nobody in his right mind would wait for about thirty (30) minutes just to buy fish
where no pump boat is in sight. x x x Aragon was positively identified by prosecution witnesses,
hence his defense of being at the wharf does not hold water. For alibi to prosper, accused must
prove not only (1) that he was somewhere else when the crime was committed; but (2) it must
likewise be demonstrated that he was so far away that he could not have been physically present at
the place of the crime or its immediate vicinity at the time of its commission. In this case, the wharf
was only a few meters from the scene of the incident. Ergo, Aragon could have been physically
present at the place or its immediate vicinity at the time of the commission of the crime. (Citations
omitted)18

Neither does Lopez’s "defense of relative." As the Court of Appeals held:

Under [Paragaraph 2 of Article 11 of the Revised Penal Code], the elements of the justifying
circumstance of defense of relatives are as follows:
 1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel it;

3. In case provocation was given by the person attacked, that the one making the defense
had no part therein.

Even if We adopt accused-appellants’ version of the incident, We still find the foregoing elements
absent in the case at bar.

As alleged by Lopez, he merely heard someone shouting "police, police, police!" and when he
looked out he allegedly saw his father-in-law being chased by Chu. He then went to Regalado’s
house to get a knife and when he caught up with Chu, he no longer saw accused-appellant
Regalado and it was only Chu who was there. He allegedly stabbed Chu because of the latter’s
threatening words, "Are you going to defend your father-in-law?"

We cannot, by any stretch of imagination, consider said remarks threatening as to consider it

unlawful aggression. It bears stressing that unlawful aggression, as defined under the Revised Penal
Code, contemplates assault or at least threatened assault of an immediate and imminent kind. There
is unlawful aggression when the peril to one’s life, limb or right is either actual or imminent. To
constitute unlawful aggression, it is necessary that an attack or material aggression, an offensive act
positively determining the intent of the aggressor to cause injury shall have been made. A mere
threatening or intimidating attitude is not sufficient…there must be a real danger to life and personal
safety.

Even assuming ex gratia argumenti, that there was unlawful aggression on Chu’s part when he
chased Regalado, Lopez was not justified in stabbing Chu since as admitted by him, he did not see
accused-appellant Regalado anymore when he was able to catch up with Chu. The unlawful
aggression of Chu, had it indeed been present, had already ceased when upon reaching Chu, as
Regalado, whom Lopez allegedly wanted to protect, was no longer there. When an unlawful
aggression that has begun no longer exists, the one who resorts to self-defense has no right to kill or
even to wound the former aggressor.

We further do not find any reasonable necessity in the means employed by Lopez to repel Chu’s
alleged aggression.

Nowhere in the records is it shown that when Chu allegedly chased Regalado, the former was
wielding a weapon. Thus, the intention of Lopez to get a knife for his protection and that of his father-
in-law was unwarranted.

The fact that Chu allegedly boxed and taunted him prompting him to stab the victim several times in
retaliation negates the reasonableness of the means employed to repel Chu’s aggression assuming
that indeed, Chu started the aggression. x x x

xxxx

The wounds sustained by Chu xxx indicate that the assailant who inflicted the same was more in a
killing rage than one who was merely acting in defense of a relative.19 (Underscoring supplied)

Finally, appellants’ denial of the existence of treachery in this wise does not convince:
x x x Based on the prosecution witnesses’ testimony, the victim was allegedly asking forgiveness
from accused-appellant Rogelio Regalado and placed his hands on his shoulder when the latter
stabbed the former. Based from the foregoing, it is apparent that the victim committed a wrongful act
against herein accused-appellant, which was so grave that there was a need for him to ask for
forgiveness. Thus, x x x the victim was expecting a retaliation from herein accused-
appellant.20 (Underscoring supplied)

The essence of treachery is a deliberate and sudden attack that renders the victim unable and
unprepared to defend himself by reason of the suddenness and severity of the attack. 21

In the case at bar, Chu was caught off-guard when, after he was asking forgiveness from Regalado,
the latter suddenly drew a curved knife and stabbed and pursued the following victim. And once
Regalado and his co-appellants cornered Chu, Aragon kicked and punched him while Lopez
stabbed him several times to thus preclude Chua from defending himself.

WHEREFORE, the appeal is DENIED. The September 22, 2008 Decision of the Court of Appeals is
AFFIRMED.

Costs against appellant.

SO ORDERED.

Roca v. CA, G.R. No. 114917, January 29, 2001

[G.R. No. 114917. January 29, 2001.]

LUCIBAR ROCA y BONDARIO, Petitioner, v. THE COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

QUISUMBING, J.:

On appeal by certiorari are the Decision 1 dated November 15, 1993, of the Court of
Appeals in CA-G.R. No. 12317 and its Resolution 2 dated March 21, 1994, denying
petitioner’s motion for reconsideration. The assailed decision affirmed the judgment of
the Regional Trial Court of Dumaguete City, Branch 44, in Criminal Case No. 8982, 3
convicting petitioner of the crime of homicide. Petitioner does not seek acquittal but
prays for the modification of the penalty imposed so that he will be entitled to
probation. chanrob1es virtua1 1aw 1ibrary

Petitioner was charged with murder, in the Information against petitioner, dated
October 15, 1989, as follows: jgc:chanrobles.com.ph

"That on or about the 1st day of August 1989, in the City of Dumaguete, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, with intent to kill
and armed with a deadly weapon, to wit: a knife, did then and there wilfully (sic),
unlawfully, and feloniously attack, stab and wound one OLIVER DIAZ with treachery in
that said OLIVER DIAZ, was stabbed and wounded suddenly and unexpectedly with said
weapon without giving him a chance to defend himself to insure its execution of the act
without risk to said accused out of any defense which said OLIVER DIAZ might make,
thereby inflicting upon him a stab wound (L) which injury caused the death of said
OLIVER DIAZ.

"That the crime was committed with the qualifying circumstance of alevosia.

"Contrary to Art. 248, par. 1 of the Revised Penal Code." 4

Petitioner was arraigned on December 4, 1989, and with the assistance of counsel,
entered a plea of not guilty. At the pre-trial conference of August 9, 1990, however,
petitioner changed his mind and manifested his willingness to enter a plea of guilty to
the lesser offense of homicide with mitigating circumstances. Private complainant
Paciana Diaz, the victim’s mother, interposed objections. Thus, trial on the merits
ensued.

The prosecution relied heavily on the testimony of eyewitness Miraflor Salvero, common
law wife of William Diaz, a brother of the victim. Her testimony, as summarized by the
trial court and adopted by the appellate court reads: jgc:chanrobles.com.ph

". . . At about 4:00 o’clock in the afternoon of August 1, 1989, she was going to the
boulevard and upon passing the residence of Paciana Diaz, noticing that there were
plenty of people and observing that there was a commotion, she went near. She saw
deceased Oliver Diaz coming from the south along Rizal Avenue, and as he turned to
the right on a blind corner along a store, he was suddenly stabbed by the accused with
a Batangas knife. The deceased was hit on the left side of his body. Accused was about
to thrust the knife again, but the victim ran (away). Eventually, they saw the victim fall
to the ground at a distance towards the south, and with the help of one Danny Gomez,
they loaded the victim on a pedicab and brought him to the Holy Child Hospital, and
although he was immediately given emergency treatment, the victim died . . ." 5

Petitioner interposed incomplete self-defense and defense of a relative. His version of

the incident, as capsulized by the trial court and adopted by the appellate court, is as
follows:
jgc:chanrobles.com.ph

". . . In the afternoon of August 1, 1989, while he was playing majong (sic) in the
house of Norma Jumawan, he heard a commotion and quarrel, which prompted him to
stand up and went (sic) out into the road. People were shouting the nickname of his
brother ‘Toto’ and he went near the place of the incident, and saw his brother Sergio
Roca, Jr., nicknamed ‘Toto’ being ganged up by Eliseo Diaz, Paciana Diaz, Sandra Diaz,
and Estella Diaz and Roy Diaz. Both Roy Diaz and Paciana Diaz were armed with bolos
and Eliseo Diaz was armed with a wooden club. Estella Diaz and Sandra Diaz were
holding each separately to both legs and shoulders of his brother. He pushed and
kicked Roy Diaz which caused the latter to fall. But, Eliseo Diaz came around and hit
him on the head resulting in his falling on the ground. Upon falling to the ground, he
saw a stainless (steel) knife lying on the sand where he fell. He picked up the knife and
saw victim Oliver Diaz coming to his direction. Victim Oliver Diaz went near him and
struck him three times with a wooden club, and he was hit on the arms and forearms.
When the victim tried to deliver the fourth blow, he stabbed Oliver with the knife he
earlier picked up. Afterwards, he ran outside, and went back to the house of Norma
Jumawan, the majong place, and hid himself there. At about 7:00 o’clock in the evening
of the same day, he went to the house of his sister-in-law in Miciano Road, and later,
he went to a house of a friend in Lo-oc, both in the same city, and past twelve
midnight, he went back to the house of his sister-in-law. The following day he went to
the Negros Oriental Provincial Hospital, but, being told that they cannot give him a
medico-legal report, he proceeded to the City Health Office where he was examined by
Dr. Edilburgo Ruperto, who gave him a medico-legal report (Exh.’2’). After having been
examined by Dr. Ruperto he boarded a pedicab from the City Health Office, and
proceeded to the bus terminal at Lo-oc and boarded a passenger bus for Bais City. On
August 5, 1989, his wife arrived in Bais City, and he requested her to (ask) the
Dumaguete City Police to fetch him for fear of his life. Upon arrival of the Dumaguete
policemen in Bais City, he surrendered, and afterwards, he was brought to Dumaguete
City." 6

The trial court found petitioner’s testimony to be improbable and full of inconsistencies,
noting that he was evasive and hesitant on the witness stand. Finding that there was no
question as to the identity of the killer of the deceased Oliver Diaz, the trial court then
convicted petitioner of homicide.

The dispositive portion of the judgment states: jgc:chanrobles.com.ph

"WHEREFORE, premises considered, this Court finds accused GUILTY beyond reasonable
doubt of the crime of Homicide as defined under Article 249 of the Revised Penal Code,
and after applying the Indeterminate Sentence Law, and appreciating in his favor the
mitigating circumstance of voluntary plea of guilt hereby sentence accused Lucibar Roca
y Bondario to the indeterminate penalty of imprisonment from six (6) years and one (1)
day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion
temporal, as maximum, and to pay the heirs of Oliver Diaz civil indemnity in the sum of
Fifty Thousand (P50,000.00) Pesos.

"SO ORDERED." 7

On appeal, the Court of Appeals affirmed his conviction, and subsequently denied his
motion for reconsideration.

Petitioner now assigns the following issues for our resolution: chanrob1es virtual 1aw library

1. Is Miraflor Salv[e]ro, sister-in-law of the deceased, Oliver Diaz, worthy of credence

and belief?

2. Did petitioner (accused) act in incomplete self-defense and defense of a relative in

killing the deceased Oliver Diaz?

3. Did petitioner voluntarily surrender to the authorities so as to be entitled to this

mitigating circumstance?

4. Should the penalty to be imposed on petitioner in RTC Crim. Case No. 8982 (CA-G.R.
No. 12317) be probationable? 8

The first issue involves the credibility of the prosecution’s main witness, Miraflor
Salvero. Petitioner contends that inasmuch as the records show her to be the common-
law-wife of the victim’s brother, her testimony is tainted with bias.

The Office of the Solicitor General counters that it is jurisprudentially settled that mere
relationship of the prosecution witness to the victim does not necessarily make her
testimony unworthy of belief.

Where the bone of contention is the credibility of a witness, settled is the rule that the
trial court’s assessment of a witness’ credibility is accorded great weight by appellate
courts absent any showing that the trial court overlooked certain matters which, if
taken into consideration, would have materially affected the outcome of the case. 9 And
where the trial court’s findings have been affirmed by the Court of Appeals, these are
generally binding and conclusive upon this Court. 10 The determination of the
credibility of witnesses is best left to the trial court judge because of his unique
opportunity to observe their deportment and demeanor on the witness stand, a vantage
point denied appellate tribunals. 11

In the instant case, we note that petitioner fails to point out any matter which may
have been overlooked or misconstrued by the trial court and the appellate court in their
respective assessments of Miraflor Salvero’s testimony. Petitioner’s main contention
that she was biased against him is merely grounded on her common law relationship to
the brother of the deceased. Petitioner presented no concrete proof to show her
testimony was biased. We have held that the witness’ relationship to the victim does
not automatically affect the veracity of his or her testimony. 12 No legal provision
disqualifies relatives of the victim of a crime from testifying if they are competent.
Relationship alone is not reason enough to discredit and label Miraflor Salvero’s
testimony as biased and unworthy of credence. This Court has taken cognizance of the
fact that in many instances, crimes are committed with just the victim’s kinfolk as
witnesses. 13 Note further that the records are bare of any showing that Miraflor
Salvero was motivated by any ill motive to testify falsely against petitioner. Where
there is no evidence to show any dubious reason or improper motive for a prosecution
witness to bear false testimony against the accused or falsely implicate him in a crime,
his or her testimony should be given full faith and credit. 14 We find no reason
therefore, to disturb the findings of the trial court in which respondent court concurred,
respecting the credibility of prosecution eyewitness Miraflor Salvero.

On the second issue, petitioner faults respondent court for not appreciating his claim of
incomplete self-defense and defense of a relative, it having been established during the
trial that his brother was the subject of an attack by Eliseo, Sandra, Paciana, Estela and
Roy, all surnamed Diaz, who were armed with bolos and a wooden club. Furthermore,
petitioner alleges that the court a quo erred when it did not give credence to his claim
of incomplete self-defense, since he was clubbed by the deceased, whom he had to
stab with a knife he picked up from the ground, so as to protect himself. Petitioner
points out that the victim was a drug addict and an ex-convict, notorious in the
neighborhood for violent behavior.

The Solicitor General notes that petitioner’s stance is not supported by the records. The
prosecution clearly proved that petitioner stabbed the victim while the latter was
running towards his house. Thus, unlawful aggression was absent on the part of the
victim, and this negated petitioner’s theory of incomplete self-defense and/or defense
of a relative.

In invoking the justifying circumstance of self-defense, complete or incomplete, the

onus probandi is shifted to accused to prove by clear and convincing evidence all the
elements of self-defense, namely: (a) unlawful aggression on the part of the victim; (b)
the reasonable necessity of the means employed to prevent or repel it; and (c) lack of
sufficient provocation on the part of the person defending himself. 15 The accused must
rely on the strength of his own evidence and not on the weakness of the prosecution’s
evidence since he admits the commission of the alleged criminal act. 16 chanrob1es virtua1 1aw 1ibrary

For defense of a relative to be appreciated, the following requisites must concur: (1)
unlawful aggression by the victim; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) in case the provocation was given by the person attacked,
that the person making the defense took no part therein. 17

Note that for self-defense or defense of a relative, whether complete or incomplete, to

be appreciated, the requisite of unlawful aggression on the victim’s part is
indispensable. 18 If there is no unlawful aggression, there is nothing to prevent or
repel. 19

The records show that petitioner sought to prove the element of unlawful aggression on
the victim’s part by pointing to the injuries which said victim had allegedly inflicted
upon him. To support this claim, petitioner presented a medico-legal report prepared by
the Assistant City Health Officer of Dumaguete City, who examined him on August 2,
1989, as well as the testimony of said examining physician to the effect that: jgc:chanrobles.com.ph

"(Petitioner was) found to be suffering from (1) superficial laceration located just above
the left elbow at the back side with a U-shape(d) opening facing upward (2) contusion
at the same area (3) superficial laceration on the left forearm (4) contusion located at
the right side above the head — a little above the earline. All the injuries were classified
as slight physical injuries, and it (sic) may have been caused by the skin (being) hit
with a hard object on (sic) several blows . . ." 20

The fact that petitioner sustained these injuries does not signify that he was a victim of
unlawful aggression. Unlawful aggression is "an assault or attack, or a threat thereof in
an imminent and immediate manner, which places the defendant’s life in actual peril."
21 In this case, the superficiality of the injuries allegedly sustained by petitioner at the
hands of the victim is no indication that his life and limb were in actual peril at the time
of the killing. Note that the examining physician characterized the injuries suffered by
petitioner as "slight physical injuries." This clearly shows that petitioner’s life could not
have been in danger at the time of the killing. Moreover, petitioner failed to present any
other witness to corroborate his claim that Oliver Diaz was the unlawful aggressor. On
the contrary, the positive testimony of eyewitness Miraflor Salvero points to petitioner
as the one who stabbed the deceased unexpectedly and without provocation.

With respect to petitioner’s claim of defense of a relative, we quote with approval, the
following findings of the trial court:
jgc:chanrobles.com.ph

" [B]oth prosecution and defense are jointly in accord that both the victim Oliver and
accused Lucibar Roca were not part of the initial neighborhood quarrel, but came from
separate directions after the start of the said quarrel.

"From these (sic) joint accord of both parties on some facts and conflicting points of
testimonies of the incident, this Court arrived at these findings: Accused Lucibar Roca
upon arriving [at] the place where the quarrel took place, participated in the same, but
having been hurt in the melee (not caused by the victim) retreated upon [noticing] his
disadvantageous position, and upon retreating met the unsuspecting victim Oliver, and
stabbed the latter." 22

The foregoing findings show that the victim was not one of the assailants of petitioner’s
brother during the affray, which immediately preceded the stabbing incident. The mere
fact that the deceased was a drug addict and ex-convict given to violent behavior does
not justify killing him. The victim may have been a character in their community, but he
was not one of those responsible for attacking petitioner’s brother with a deadly
weapon. In view of the absence of unlawful aggression on the part of Oliver Diaz
against petitioner’s brother, petitioner could not claim defense of a relative when he
mortally wounded Oliver. Petitioner’s attempt to exonerate himself from the
consequences of his act must fail in the absence of the first element of defense of a
relative, namely unlawful aggression on Oliver’s part.

On the third issue, petitioner charges the appellate court with reversible error for failing
to consider the mitigating circumstance of voluntary surrender in his favor. He contends
that he gave himself up to the police before a warrant for his arrest could be issued and
his act should therefore be considered as a voluntary surrender.

The Solicitor General argues that respondent court was correct in refusing to credit
petitioner with voluntary surrender since he did not in fact do so, but instead he fled to
Bais City, where he waited for the police to fetch him.

For the mitigating circumstance of voluntary surrender to be appreciated, the accused

must satisfactorily comply with three requisites: (1) he has not been actually arrested;
(2) he surrendered himself to a person in authority or the latter’s agent; and (3) the
surrender is voluntary. 23 There must be a showing of spontaneity and an intent to
surrender unconditionally to the authorities, either because the accused acknowledges
his guilt or he wishes to spare them the trouble and expense concomitant to his
capture. 24

In this case, the Court of Appeals affirmed the trial court’s findings that petitioner fled
to Bais City and only decided to have the police fetch him, four days after the incident,
for fear that the victim’s relatives might avenge his death. Hence, we agree that there
was no voluntary surrender on his part. We find no reversible error committed by the
appellate court in refusing to credit petitioner’s claim of voluntary surrender. The
records show that he had several opportunities to surrender to the authorities or to
their agents. He could have given himself up right after the incident by not fleeing the
scene of the crime. He could have surrendered to P/Cpl. Ralph Rabina, a member of the
Intelligence Unit of the Dumaguete City police force, who was a relative of his wife and
who made the request for his medico-legal examination by the City Health Officer.
Petitioner could have given himself up to the authorities right after his medico-legal
examination considering that the office of the City Health Officer was close to the City
Hall where authorities or their agents were likely to be present. We find that
spontaneity and an intent to surrender are absent where, as in this case, petitioner only
decided to give up for fear of a possible vendetta.

The fourth issue involves the correctness of the penalty imposed upon petitioner.
Petitioner insists that the penalty should be lowered so as to entitle him to probation.
The issue is premised on the consideration that the mitigating circumstances of
incomplete self-defense, voluntary surrender, and plea of guilt would entitle him to a
reduction of the penalty imposed. As earlier discussed, however, the respondent court
did not err in refusing to give credence to petitioner’s claims of incomplete self-defense
and/or defense of a relative, as well as his allegation of voluntary surrender. We agree
with the observation of the Solicitor General that the only mitigating circumstance in
petitioner’s favor is his offer to plead guilty to homicide at the pre-trial. This offer was
duly considered by the trial court in determining the imposable penalty and by the
appellate court in affirming his sentence. Petitioner’s prayer to this Court that he be
sentenced to an indeterminate term of "four (4) months of arresto mayor as minimum,
to two (2) years, four (4) months and one (1) day of prision correcional as maximum"
25 lacks basis and must be denied. chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the instant petition is DENIED and the assailed decision of the Court of
Appeals dated November 15, 1993 and its resolution of March 21, 1994, in CA-G.R. No.
12317, are AFFIRMED. Costs against petitioner.

SO ORDERED.
People v. Arizala, G.R. No. 130708, October 22, 1999

[G.R. No. 130708. October 22, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CARLITO ARIZALA y

VALDEZ, Accused-Appellant.

DECISION

GONZAGA_REYES, J.:

Before us by way of automatic review is the judgment of conviction imposing the death
penalty upon CARLITO ARIZALA y VALDEZ for the killing of SGT. ROLANDO CARA.

The Information dated February 17, 1997 states:

That on or about 5:00 oclock in the evening of February 14, 1997, along Cabarroguiz
Street, District IV, municipality of Bayombong, province of Nueva Vizcaya, Philippines
and within the jurisdiction of the Honorable Court, the above-named accused with
intent to kill and treachery, did then and there willfully, unlawfully and feloniously
attack, assault and stabbed from behind SPO4 Rolando Cara y Roduta for several times,
thereby inflicting mortal wounds on the different parts of the body which directly caused
his death to the damage and prejudice of the heirs.

CONTRARY TO LAW.1
Upon arraignment on February 28, 1997, herein accused-appellant, duly assisted by
counsel, entered a plea of not guilty. Thereafter trial on the merits ensued.

The Office of the Solicitor General summarized the facts as viewed by the prosecution
witnesses, to wit:

At around 5:00 oclock in the afternoon of February 14, 1997, when Sgt. Rolando Cara
saw Manolito de Guzman on a street in Barangay Salvacion, Bayombong, Nueva
Vizcaya, the former asked if they could both go to the latters house to talk about
something. Manolito acceded and they went to his house. They had just entered the
place when Sgt. Cara saw some women on the road and decided to talk to them first.
Their conversation lasted for quite sometime, and when Manolito could no longer wait
he went out to the street to call back Sgt. Cara. At this point, Manolito saw Reynaldo
Barut, Marco Barut and Carlito Arizala approaching (TSN, 4/15/97, pp. 2-3; 4/23/97,
pp.l 6-7). The men had just come from the cemetery where they were contracted to
demolish a tomb and were on their way home (TSN, 7/23/97, pp. 2-3). Sgt. Cara called
Reynaldo Barut, a former chief of the Bantay Bayan, to join him and Manolito in the
latters house as he wanted to talk to both of them (TSN, 4/15/97, p. 4; 7/23/97, p. 6).
Meanwhile, Carlito, who appeared drunk, directly proceeded to his house which he
rented from Manolito (TSN, 7/23/97, pp. 7, 10). It was actually a room in the latters
house with its own entrance which was at the edge of the road facing east, while the
gate leading to the entrance of the main house occupied by Manolito was situated on
the northern side (TSN, 7/24/97, pp. 6-8).

Manolito walked ahead of Sgt. Cara and Reynaldo, and when he was about to enter the
gate of his house he turned to Sgt. Cara who was about three (3) meters behind and
told him to come inside (id., pp. 4-7). Just then Manolito saw Carlito suddenly rush out
of the door of his house which was about 2.5 meters away from where Sgt. Cara was,
saying, Vulva of your mother you policemen, I hate all of you and at the same time
pushed and stabbed the latter at the back with a knife (hinalong) about 10 inches long
(TSN, 4/5/97, p. 4; 4/29/97, p. 4; 5/6/97, p. 2). Sgt. Cara fell prone on the ground.
Manolito was taken aback and when Carlito made a motion to thrust at him he ran
away. He saw Carlito stab Sgt. Cara three (3) times before running away for safety
(TSN, 4/15/97, p. 5 4/29/97, pp. 4-5). Manolito then reported the incident to Sgt.
Mario Lopez who immediately proceeded to the crime scene. Later when he returned to
the place of the incident, Manolito saw that Sgt. Cara was already loaded in the police
vehicle, while Carlito was lying on the ground in a prone position about 18 meters away
from where he attacked Sgt. Cara (TSN, 4/30/97, pp. 2-4).

Dr. Nestor Domingo, Municipal Health Officer of Bayombong, Nueva Vizcaya who
conducted the autopsy on the cadaver of Sgt. Cara, found that he sustained fourteen
(14) stab wounds, nine (9) of which were fatal. Of the nine fatal wounds, seven (7)
were at the back and two (2) were on the left lateral side of his body. Dr. Domingo
testified that only one type of weapon was used to inflict them, which was a single
bladed weapon (TSN, 6/3/97, pp. 7-11).2

On the other hand, accused-appellant presented his own account of the incident in his
brief, to wit:
Accused-appellant CARLITO ARIZALA admitted having inflicted the injuries sustained by
Sgt. Rolando Cara in self-defense. He said that on February 14, 1997, from morning til
afternoon, they (he, Reynaldo and Marco Barut) were in the cemetery of Bayombong to
gather the bones belonging to a certain Mr. La Corda so that a new body could be
interred in the tomb. Before they started working, they consumed a bottle of San
Miguel Gin. At around 5:00 p.m., they left the cemetery and went to La Cordas house
to return the tools used in the cemetery. Then, they proceeded home after receiving
their compensation for the job. On their way home, they passed at a store to have
their P1,000.00 bill changed into smaller denominations. When he was already near his
house, he noticed Sgt. Cara at the place of Manolito de Guzman. He entered his house,
gave his earning to his wife and rested for a while. Afterwards, he assisted his wife to
cook by slicing meat. He was not able to finish slicing meat as Sgt. Cara was shouting
at him and ordering him to get out of his house. At first, he was reluctant to go out as
Sgt. Cara appeared to be mad but later on he did come out. Sgt. Cara scolded and
uttered invectives at him blaming him for the illegal logging activities in Salvacion,
Bayombong. His repeated denial of the said accusation made Sgt. Cara uttered the
words "I will shoot you"and acted as if he would make true of his words by trying to
draw something from his left waist. Alarmed, he embraced Sgt. Cara and struggled with
him as he (Cara) was trying to draw his gun from his waist. The knife he was using in
slicing meat was unconsciously carried by him when he went out. While struggling with
Sgt. Cara, somebody hit his head. He unconsciously thrusted the knife at Sgt. Cara in
reaction to the blow he received. Afterwards, Sgt. Cara fell on the ground. He went
near the house of his parents-in-law and waited for policemen who later handcuffed
him. He was brought to the hospital for the treatment of his injured head.3

On September 3, 1997 the trial court promulgated its judgment of conviction and
disposed as follows:

WHEREFORE, finding the accused, Carlito Arizala y Valdez, GUILTY beyond reasonable

doubt of the offense of Murder, he is hereby sentenced to suffer the capital punishment
of DEATH by lethal injection, to pay the heirs of Sgt. Rolando Cara the sums of
P51,000.00 as actual damages, of P50,000.00 as civil indemnity and the costs of the
suit.

SO ORDERED.4

In this automatic review, herein accused-appellant raised the following assignment of

errors, to wit:

THE LOWER COURT ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCE

OF SELF-DEFENSE IN FAVOR OF ACCUSED-APPELLANT.

II

GRANTING THAT ACCUSED-APPELLANT DID NOT ACT IN SELF-DEFENSE, THE LOWER

COURT ERRED IN CONCLUDING THAT THE ATTACK UPON THE VICTIM WAS
PERPETRATED WITH TREACHERY, THUS, QUALIFYING THE KILLING TO MURDER.
We find no merit in this appeal.

We have carefully reviewed the testimonies of both witnesses for the prosecution and
the defense and we are convinced that the guilt of herein accused-appellant has been
proved beyond reasonable doubt.

It is axiomatic that where an accused pleads self-defense, he thereby admits authorship

of the crime, as in this case. Consequently, the burden of proving the guilt of the
accused which lies upon the prosecution is shifted to the accused who must prove the
elements of his defense.5 He has to justify the taking of the victims life by the
standards of the law for such absolution.6 Otherwise, having admitted the killing,
conviction is inescapable.7 It is necessary that self-defense must be alleged with
certainty coupled with a strong, clear, sufficient and convincing proof that the killing is
justified. Accordingly, the accused-appellant must convincingly prove the essential
elements of self-defense: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity to prevent or repel the attack; and (3) lack of sufficient
provocation on the part of the person defending himself.8 Although all three elements
must concur, self-defense must rest on proof of unlawful aggression on the part of the
victim.9 If no unlawful aggression attributed to the victim is established, there can be
no self-defense, complete or incomplete.10 Unlawful aggression is a condition sine qua
non for the justifying circumstance of self-defense to apply.

In pleading self-defense, accused-appellant argues that since the victim is a Senior

Police Officer 4 of the P.N.P. of Bayombong, Nueva Vizcaya, the latters act of
attempting to draw his gun from his waist was not just a mere threatening stance or
posture or intimidating attitude. It already posed an imminent danger to his life and
limb that caused him to react immediately, otherwise he would have been the victim.
There was also a reasonable necessity to defend himself because when he stabbed the
late Sgt. Cara, he only acted according to what an ordinary prudent and reasonable
man would do. It was the deceased who provoked accused-appellant to defend himself
when the former uttered invectives implicating him in the illegal logging activities in
Salvacion, Bayombong, Nueva Vizcaya.

The claim has no merit. As correctly pointed out by the Solicitor General in the Peoples
Brief:

Two witnesses to the incident, namely, Manolito de Guzman and Reynaldo Barut whose
testimonies have not been validly assailed on the ground of improper motive,
controverted appellants version of the incident as they both testified that the stabbing
of Sgt. Cara by appellant was not preceded by any argument or even conversation
between them (TSN, 4/23/97, p. 8; 7/23/97, p. 9). According to the witnesses, they
and Sgt. Cara were closely following each other on the way to Manolitos house when
appellant suddenly appeared from behind and stabbed Sgt. Cara at the back as he said,
I hate all policemen in Ilocano (Kagura kayo amin nga polis) (TSN, 4/15/97, p. 4;
7/30/97, p. 6). The force of the attack caused Sgt. Cara to fall on the ground but
appellant continued to stab him at the back (TSN, 7/23/97, p. 8), inflicting upon him no
less that fourteen (14) stab wounds. Nine (9) of these were fatal, of which seven (7)
were inflicted at the back.11
Even if we give credence to accused-appellants version of the events, specifically that
the deceased Sgt. Cara hurled invectives at him and moved as if to draw something
from his waist, we are unable to establish a finding of unlawful aggression on the
victims part. Unlawful aggression presupposes an actual, sudden, unexpected attack or
imminent danger thereof, not merely a threatening or intimidating attitude and the
accused must present proof of positively strong act of real aggression.12 Here, aside
from the accused-appellants uncorroborated and self-serving claims, the unlawful
aggression on the part of the victim was not proven. For one, the locus criminis was a
public street where people came and went about freely. Thus, it would seem unusual
that the victim, who was then the deputy chief of police in their place, would openly
accuse the appellant without resorting to normal police procedure in apprehending
purported violators of the law. More importantly, other than accused-appellants self-
serving allegation, the latter failed to prove that the victim was armed with his service
firearm. The prosecution witness Manolito de Guzman positively testified that though
the deceased Sgt. Cara was in police uniform the latter did not have a firearm or a
holster for the same13 and, indeed, none was retrieved from the scene of the crime.
Finally, as pointed out in the Peoples Brief, the nature and the location of the wounds
sustained by the deceased, numbering 14 stab wounds, nine (9) of which were fatal
and of the nine (9) fatal wounds, seven (7) were found at the back, constitute physical
evidence that strongly militates against accused-appellants pretensions of the
incident.14 The presence of the large number of wounds inflicted on the victim clearly
indicates a determined effort on the part of the accused-appellant to kill his prey15 and
belies the reasonableness of the means adopted to prevent or repel an unlawful act of
an aggressor which is an element of self-defense.

Accused-appellant could not even explain why he had to inflict 14 stab wounds on the
body of the deceased. His vain effort to exculpate himself from the consequences of his
act can be gleaned from his own evasive testimony on the witness stand, viz:

CONTINUATION OF THE CROSS-EXAMINATION BY ATTY. ORDOEZ:

Q. Were you drunk after the 5 bottles were consumed together with the others
mentioned by you?

A. Just moderate, sir.

Q. Are you saying that after consuming 5 bottles of gin you were still in your right
senses?

A. I could still think normally.

Q. Considering that you have drunk moderately and that you were still feeling normal
as you have stated, you knew what you were doing, is it not?

A. Yes, sir.

Q. How many times did you stab the late Mr. Cara?

ATTY. CORNEJO:
The best evidence is the medical certificate.

COURT:

He is on cross-examination, let him answer.

A. I do not know how many times, sir because I was mixed with nervousness.

Q. You do not know that you stabbed Mr. Rolando Cara once?

A. I do not know, sir.

Q. You also did not know if you have stabbed him several times?

A. Yes, sir.

Q. You do not know that you stabbed him at his back?

A. How could I stab him at the back when we were facing with each other as we were
confronting?

Q. With that statement you want to impress the court that you only stabbed him
frontally?

ATTY. CORNEJO:

Objection.

COURT:

Let it be translated first.

A. When I embraced him in order to prevent him to draw his gun I did not know if I was
able to stab him at the back or in front, sir.

PROSECUTOR:

Q. Are you claiming that you still entertain doubts up to now as to whether you stabbed
him frontally or at his back?

A. I was not sure whether I stabbed him at the back or in front, sir.

Q. But you are sure that you were able to stab him, is it not?

A. In order to save my life because he might kill me what I did was to stab him, sir.16
Notwithstanding the fact that herein accused-appellant exhibited a small scar (1 1/2
inches long) caused by an instrument on his head shortly after the stabbing incident,
the trial court did not believe that it was inflicted by the deceased Cara. It held that:

True, the accused claimed to have been hit on his head while he was allegedly
struggling with the victim. How the victim was able to do so with the number of fatal
wounds sustained by him had not been explained. The Court cannot believe that Sgt.
Cara had any opportunity to retaliate due to the sudden, unexpected and overpowering
attack launched by the accused against him. Had the victim been able to use a hand to
hit the accuseds head, he would have been able to draw the alleged gun and use it to
fire at the accused, if, indeed, he had a gun. There is thus the possibility that (1) the
accused inflicted self-injury or (2) his wound was inflicted by policemen who responded
to the reports of De Guzman and Reynaldo Barut. The latter is more probable because
when De Guzman returned to the locus criminis after running away, he saw the accused
already lying on the ground in a prone position. Watching him were Maj. Sta. Ines of
the P.N.P. and SPO1 Mario Lopez. (TSN, April 30, 1997, p. 2-3) As the accused was said
to have uttered his hatred at policemen before stabbing Sgt. Cara, it is not improbable
that he resisted arrest and incurred the wound while resisting. He is now taking
advantage of the wound not inflicted by Cara to sell the theory of self-defense.17

From the foregoing considerations, we do not doubt that herein accused-appellants

narration of the incident deserves scant consideration from this Court. Like alibi, self-
defense is inherently a weak defense which, as experience has demonstrated, can
easily be concocted.18cräläwvirtualibräry

In support of his second assigned error, accused-appellant claims that even assuming
that he did not act in self-defense, his act of stabbing the victim without giving the
latter the opportunity to undertake any form of defense or evasion did not justify the
finding of alevosia.  It contended that there was no evidence that he consciously and
deliberately adopted such mode of assault to insure its execution without risk to
himself; and the fact that the fatal wounds were found at the back of the deceased
does not by itself compel a finding of treachery; for the circumstances that would
qualify a killing to murder must be proven as indubitably as the crime itself.

Accused-appellant also imputes doubt as to whether Manolito De Guzman, one of the

prosecutions eyewitnesses, really witnessed the commencement of the attack against
the victim since it was not farfetched to conclude that before the actual attack De
Guzmans attention was somewhere else. He asserts that if an eyewitness did not see
how the attack commenced treachery cannot be considered against him; for where an
eyewitness saw the incident already in progress, said eyewitness cannot be considered
as having testified as to how it begun.

Anent this issue, we uphold the trial courts finding that Sgt. Cara was killed with
treachery, thus qualifying the crime to murder. Settled is the rule that an unexpected
and sudden attack under circumstances which render the victim unable and unprepared
to defend himself by reason of the suddenness and severity of the attack,
constitutes alevosia.19 So that even if a victim was face to face with his assailant, if the
attack was so sudden and unexpected and the victim was not in a position to offer an
effective defense, alevosia  can still be taken against the accused.20 The essence of
treachery is the swift and unexpected attack on an unarmed victim without the slightest
provocation on the part of the latter.21
cräläwvirtualibräry

Here, not only was it not proven that there was provocation on the part of the hapless
victim but the attack at the back of the victim was made in such a manner that would
make it difficult for the deceased to offer an effective defense against his aggressor. As
aptly observed by the trial court Sgt. Cara had (no) opportunity to retaliate due to the
sudden, unexpected and overpowering attack launched by the accused.22 The manner
of attack afforded the hapless, unarmed and unsuspecting victim no chance to resist or
to escape. The fact that the attack was preceded by the statement vulva of your mother
you policemen, I hate all of you, cannot be considered a sufficient warning for the
deceased to offer adequate defense for the treacherous attack. For even when the
victim is warned of the danger to his person if the execution of the attack made it
impossible for the victim to defend himself or to retaliate, treachery can still be
appreciated,23 as in this case. The prosecution clearly established the manner by which
accused-appellant commenced his murderous attack on the unsuspecting victim, as
testified to by Manolito De Guzman thus:

Q Did I get you right last hearing when you said that you saw the accused thrushed(sic)
a bladed weapon on the deceased you just looked back at the deceased Cara?

A Yes, sir.

Q That moment or immediately when you looked back at the deceased Cara you called
him inside your house, is that right?

A Yes, sir.

Q Before looking back at the deceased, what were you looking at?

A In front of me, sir.

Q You were then looking at the door, is that right?

A No, sir.

Q What were you looking at that time?

A The path going to the door, sir.

Q And according to you while in that position and before looking back at the deceased
Cara and before the incident you did not notice accused Arizala came out of his house,
is that right?

A Yes, sir because it was so sudden that he came out from his house.

Q What you noticed of the accused was when he entered his house and arrived in his
house?
A Yes, sir. When he arrived he went directly inside his house.

Q You did not notice him anymore when he entered his house, is that right?

A When we were about to enter the house it was so sudden as if he jumped.

Q That was the last moment you saw him after he entered his house, is that right?

A Yes, sir.

Q When he entered his house, he was so fast in entering his house, is that correct?

A No, sir.

Q You want us to understand that he was just walking in entering his house?

A Yes, sir.

Q Did I get you right when you said that prior to the arrival of the deceased Cara and
the accused you never saw them looking at each other face to face?

A Yes, sir.

Q And the deceased Cara was in uniform, is that right?

A Yes, sir, he was in uniform with a cap.

Q And he was with him his firearm, is that right?

A No, sir.

Q Are you sure of that that he was not armed at that time?

A Yes, sir.

Q You are certain that the deceased and the accused never looked at each other eye to
eye?

A I did not see them see eye to eye, sir.

Q Neither did you notice that the deceased looked at the accused when the latter
arrived and went inside his house?

A Yes, sir.

Q Neither did you see the accused looked at the deceased when he arrived and before
entering his house?
A Yes, sir.

Q Do you know whether the accused and the deceased know each other?

A I do not know, sir.

Q Do you know the purpose of the deceased in going to the house to your house at that
time?

A No, sir because we did not talk with each other.

xxx

COURT:

xxx

Q Before the incident took place did you have a talk with the deceased Cara?

A None, sir.

ATTY. CORNEJO:

Q You want us to understand that it was only at that time that he called upon you that
you talked on something?

A Yes, sir.

Q The deceased ordered you to look on some activities of the accused at that time?

A No, sir because we did not yet talk.

Q According to you it was at that moment when you looked back at the deceased to call
him to go with you that you saw Arizala thrushed(sic) a weapon on the deceased, is
that right?

A Yes, sir.

Q You mentioned the accused even pushed the deceased, did you see that?

A Yes, he pushed him, sir.

Q Which came ahead the pushing or the thrushing of the bladed weapon on the
deceased?

A The pushing, sir, (witness demonstrating the act of pushing).

Q The deceased being pushed by the accused fell down on the ground, is that right?
A Yes, sir. He fell. (witness demonstrating a stooping position).

Q That was the first thrushed(sic) done by the accused?

A Yes, sir.

Q What happened when the deceased fell on his back?

A He fell like this (witness turned his body towards the left as if making a thrust with
his right hand), sir.

Q Did the deceased never try to defend himself while the accused was thrushing the
weapon at him while the deceased fell on his back?

A He could not defend himself because the thrush was at his back, sir. (witness is
pointing at his back right side just below the right shoulder).

Q Did you not help the deceased while he was on that position?

A I did not help him because I was taken a back, sir.

Q That made you run away, is that right?

A When I said, Why did you do that to my visitor? he made a motion of thrushing and I
ran away, sir.

Q But the accused never ran after you?

A No, sir.24

In convicting herein accused-appellant, the trial court imposed the maximum penalty of
death by lethal injection. It opined that the generic aggravating circumstance of with
insult or in disregard of the respect due the offended party on account of his rank as a
police sergeant or Senior Police Officer 4 attended the commission of the crime of
murder. It held that the presence of the aggravating circumstance was proven by the
fact that accused-appellant Arizala knew that the deceased was a police sergeant; that
such knowledge of the rank of the victim is further shown by his utterance that he
hated policemen before he stabbed the deceased Cara; and that since both of them
were residents of the same barangay, accused-appellant could be presumed to have
known the presence and the rank of the victim as police sergeant for said victim would
often wear his uniform and carry a gun.

We are not persuaded. For the generic aggravating circumstance of with insult or in
disregard of the respect due the offended party on account of his rank to aggravate a
penalty in the commission of a crime there must be proof which would clearly
demonstrate that the accused deliberately intended to act with insult or in disregard of
the respect due the victim on account of his rank, which is the essence of said
aggravating circumstance.25 There must be proof of the specific fact or circumstance
that the accused deliberately intended to insult the rank of the victim.26 Otherwise this
generic aggravating circumstance may not be taken into consideration to aggravate the
penalty. Courts must proceed with more care where the possible punishment is in its
severest form death - for the reason that the execution of such sentence is
irrevocable.27 cräläwvirtualibräry

The fact that herein accused-appellant could not credibly feign ignorance of the rank of
the deceased or that he articulated his hatred against all policemen in general does not
by itself suffice to prove that indeed accused-appellant deliberately intended to act with
insult or in disregard of the respect due the offended party by reason of his rank as a
police officer. It cannot just be demonstrated on circumstances that accused-appellant
knew the rank or office of the victim especially so when no prior facts were established
to show why accused-appellant would harbor so grave a grudge against the victim
simply because he was a man in police uniform. A spontaneous utterance of anger or
hate, which is naturally harbored by any assailant, is not necessarily an expression of
insult or disregard owing to a victims rank. The circumstances aggravating the penalty
of a crime must be proved as conclusively as the act itself, mere suppositions or
presumptions being insufficient to establish their presence.28 Any doubt must be
resolved in favor of the accused-appellant.

There being neither aggravating nor mitigating circumstance that attended the
commission of the crime of murder, a modification of the penalty of death to reclusion
perpetua is in order.

Relative to the monetary liability of accused-appellant, the Court in line with prevailing
jurisprudence,29 finds the award of P50,000.00 as death indemnity in order. The award
of P51,000.00 for the burial and other expenses relative to the death of the victim in
this case which were not objected to by the opposing counsel for the accused-
appellant,30 may be deemed reasonable.

WHEREFORE, the appealed decision of September 3, 1997 of the Regional Trial Court
of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3161 finding accused-
appellant CARLITO ARIZALA guilty beyond reasonable doubt of the crime of murder
under Article 248 of the Revised Penal Code, as amended is AFFIRMED with the
MODIFICATION that he is hereby sentenced to suffer the penalty of reclusion perpetua,
and is further ordered to indemnify the heirs of the victim in the amount of P50,000.00
as death indemnity and P51,000.00 for actual damages.

SO ORDERED.

Talampas v. People, G.R. No. 180219, November 23, 2011

G.R. No. 180219               November 23, 2011

VIRGILIO TALAMPAS y MATIC, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:
By petition for review on certiorari, Virgilio Talampas y Matic (Talampas) seeks the review of the
affirmance of his conviction for homicide (for the killing of the late Ernesto Matic y Masinloc) by the
Court of Appeals (CA) through its decision promulgated on August 16, 2007. 1

The Regional Trial Court, Branch 25, in Biñan, Laguna (RTC) had rejected his pleas of self-defense
and accident and had declared him guilty of the felony under the judgment rendered on June 22,
2004.2

Antecedents

The information filed on November 17, 1995, to which Talampas pleaded not guilty, averred as
follows:3

That on or about July 5, 1995, in the Municipality of Biñan, Province of Laguna, Philippines and
within the jurisdiction of this Honorable Court, accused VIRGILIO TALAMPAS, with intent to kill,
while conveniently armed with a short firearm and without any justifiable cause, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one Ernesto Matic y Masinloc with the
said firearm, thereby inflicting upon him gunshot wound at the back of his body which directly caused
his instantaneous death, to the damage and prejudice of his surviving heirs.

CONTRARY TO LAW.

The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic, Dr. Valentin Bernales,
and Josephine Matic. The CA summarized their testimonies thuswise: 4

Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the incident in question, testified
that on July 5, 1995 at about 7:00 o’clock in the evening, he together with Eduardo Matic (Eduardo)
and Ernesto Matic (Ernesto) were infront of his house, along the road in Zona Siete (7), Wawa,
Malaban, Biñan, Laguna, repairing his tricycle when he noticed the appellant who was riding on a
bicycle passed by and stopped. The latter alighted at about three (3) meters away from him, walked
a few steps and brought out a short gun, a revolver, and poked the same to Eduardo and fired it
hitting Eduardo who took refuge behind Ernesto. The appellant again fired his gun three (3) times,
one shot hitting Ernesto at the right portion of his back causing him (Ernesto) to fall on the ground
with his face down. Another shot hit Eduardo on his nape and fell down on his back (patihaya).
Thereafter, the appellant ran away, while he (Jose) and his neighbors brought the victims to the
hospital. On June 6, 1995, Jose executed a Sworn Statement at the Biñan Police Station.

Another witness, Francisco Matic, testified that prior to the death of his brother Ernesto who was
then 44 years old, he (Ernesto) was driving a tricycle on a boundary system and earned ₱100.00
daily, although not on a regular basis because sometimes Ernesto played in a band for ₱100.00 per
night.

Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his death was so painful to
him that he could not quantify his feelings in terms of money. The death of his father was a great
loss to them as they would not be able to pursue their studies and that nobody would support them
financially considering that the money being sent by their mother in the amount of ₱2,000.00 to
₱2,500.00 every three (3) months, would not be enough.

Dr. Valentin Bernales likewise, testified that he was the one who conducted the autopsy on the body
of Ernesto and found one gunshot in the body located at the back of the costal area, right side,
sixteen (16) centimeters from the spinal column. This shot was fatal as it involved the major organs
such as the lungs, liver and the spinal column which caused Ernesto’s death.

The last witness, Josephine Matic, wife of Ernesto, testified that her husband was laid to rest on July
18, 1995 and that his untimely death was so painful and that she could not provide her children with
sustenance. She asked for the amount of ₱200,000.00 for her to be able to send her children to
school.

On his part, Talampas interposed self-defense and accident. He insisted that his enemy had been
Eduardo Matic (Eduardo), not victim Ernesto Matic (Ernesto); that Eduardo, who was then with
Ernesto at the time of the incident, had had hit him with a monkey wrench, but he had parried the
blow; that he and Eduardo had then grappled for the monkey wrench; that while they had grappled,
he had notice that Eduardo had held a revolver; that he had thus struggled with Eduardo for control
of the revolver, which had accidentally fired and hit Ernesto during their struggling with each other;
that the revolver had again fired, hitting Eduardo in the thigh; that he had then seized the revolver
and shot Eduardo in the head; and that he had then fled the scene when people had started
swarming around.

Ruling of the RTC

On June 22, 2004, the RTC, giving credence to the testimony of eyewitness Jose Sevilla, found
Talampas guilty beyond reasonable doubt of homicide, 5 and disposed:

WHEREFORE, premises considered, the court finds the accused guilty beyond reasonable doubt of
the crime of Homicide, with one mitigating circumstance of voluntary surrender, and hereby
sentences him to suffer an indeterminate penalty of IMPRISONMENT ranging from TEN (10) years
and One (1) day of prision mayor, as minimum, to FOURTEEN (14) years and EIGHT (8) months of
reclusion temporal, as maximum. He is likewise ordered to pay the heirs of Ernesto Matic y Masinloc
the following sums, to wit:

1. ₱50,000.00 – as and for death indemnity;

2. ₱50,000.00 – as and for moral damages;

3. ₱25,000.00 – as and for actual damages; and

4. ₱30,000.00 – as and for temperate damages.

Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private complainant and accused with a
copy of this decision.

SO ORDERED.6

Ruling of the CA

Talampas appealed to the CA, contending that:

I
 THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH OF
ERNESTO MATIC WAS MERELY ACCIDENTAL.

III

THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-
APPELLANT ACTED IN DEFENSE OF HIMSELF WHEN HE GRAPPLED WITH EDUARDO
MATIC.

Still, the CA affirmed the conviction based on the RTC’s factual and legal conclusions, and ruled that
Talampas, having invoked self-defense, had in effect admitted killing Ernesto and had thereby
assumed the burden of proving the elements of self-defense by credible, clear and convincing
evidence, but had miserably failed to discharge his burden. 7

The CA deleted the award of temperate damages in view of the awarding of actual damages,
pointing out that the two kinds of damages were mutually exclusive. 8

Issue

Hence, Talampas is now before the Court, continuing to insist that his guilt was not proven beyond
reasonable doubt, and that the lower courts both erred in rejecting his claim of self-defense and
accidental death.

Ruling

The petition for review is denied for lack of merit.

Firstly, the elements of the plea of self-defense are: (a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (c)
lack of sufficient provocation on the part of the accused in defending himself. 9

In the nature of self-defense, the protagonists should be the accused and the victim. The established
circumstances indicated that such did not happen here, for it was Talampas who had initiated the
attack only against Eduardo; and that Ernesto had not been at any time a target of Talampas’ attack,
he having only happened to be present at the scene of the attack. In reality, neither Eduardo nor
Ernesto had committed any unlawful aggression against Talampas. Thus, Talampas was not
repelling any unlawful aggression from the victim (Ernesto), thereby rendering his plea of self-
defense unwarranted.

Secondly, Talampas could not relieve himself of criminal liability by invoking accident as a defense.
Article 12(4) of the Revised Penal Code,10 the legal provision pertinent to accident, contemplates a
situation where a person is in fact in the act of doing something legal, exercising due care, diligence
and prudence, but in the process produces harm or injury to someone or to something not in the
least in the mind of the actor – an accidental result flowing out of a legal act. 11 Indeed, accident is an
event that happens outside the sway of our will, and although it comes about through some act of
our will, it lies beyond the bounds of humanly foreseeable consequences. 12 In short, accident
presupposes the lack of intention to commit the wrong done.

The records eliminate the intervention of accident. Talampas brandished and poked his revolver at
Eduardo and fired it, hitting Eduardo, who quickly rushed to seek refuge behind Ernesto. At that
point, Talampas fired his revolver thrice. One shot hit Ernesto at the right portion of his back and
caused Ernesto to fall face down to the ground. Another shot hit Eduardo on the nape, causing
Eduardo to fall on his back. Certainly, Talampas’ acts were by no means lawful, being a criminal
assault with his revolver against both Eduardo and Ernesto.

And, thirdly, the fact that the target of Talampas’ assault was Eduardo, not Ernesto, did not excuse
his hitting and killing of Ernesto. The fatal hitting of Ernesto was the natural and direct consequence
of Talampas’ felonious deadly assault against Eduardo. Talampas’ poor aim amounted to aberratio
ictus, or mistake in the blow, a circumstance that neither exempted him from criminal responsibility
nor mitigated his criminal liability. Lo que es causa de la causa, es causa del mal causado (what is
the cause of the cause is the cause of the evil caused). 13 Under Article 4 of the Revised Penal
Code,14 criminal liability is incurred by any person committing a felony although the wrongful act done
be different from that which he intended.

Nonetheless, the Court finds the indeterminate sentence of 10 years and one day of prision mayor,
as minimum, to 14 years and eight months, as maximum, legally erroneous.

The penalty for homicide under Article 246 of the Revised Penal Code is reclusion temporal.  Under
1avvphi1

Section 1 of the Indeterminate Sentence Law,15 the court, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its amendments, is mandated to prescribe an
indeterminate sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the Revised Penal Code, and the
minimum term shall be within the range of the penalty next lower to that prescribed by the Revised
Penal Code for the offense. With the absence of aggravating or mitigating circumstances, the
imposable penalty is reclusion temporal in its medium period, or 14 years, eight months, and one
day to 17 years and four months. This is pursuant to Article 64 of the Revised Penal Code. 16 It is
such period that the maximum term of the indeterminate sentence should be reckoned from. Hence,
limiting the maximum term of the indeterminate sentence at only 14 years and eight months
contravened the express provision of the Indeterminate Sentence Law, for such penalty was within
the minimum period of reclusion temporal. Accordingly, the Court must add one day to the maximum
term fixed by the lower courts.

The Court finds to be unnecessary the increment of one day as part of the minimum term of the
indeterminate sentence. It may be true that the increment did not constitute an error, because the
minimum term thus fixed was entirely within the parameters of the Indeterminate Sentence Law. Yet,
the addition of one day to the 10 years as the minimum term of the indeterminate sentence of
Talampas may occasion a degree of inconvenience when it will be time for the penal administrators
concerned to consider and determine whether Talampas is already qualified to enjoy the benefits of
the Indeterminate Sentence Law. Hence, in order to simplify the computation of the minimum penalty
of the indeterminate sentence, the Court deletes the one-day increment from the minimum term of
the indeterminate sentence.

WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2007 finding VIRGILIO
TALAMPAS y MATIC guilty beyond reasonable doubt of the crime of homicide, and IMPOSES the
indeterminate sentence of 10 years of prision mayor, as minimum, to 14 years, eight months, and
one day of reclusion temporal, as maximum.
The petitioner shall pay the costs of suit.

SO ORDERED.

Velasquez v. People, G.R. No. 195021, March 15, 2017

G.R. No. 195021

NICOLAS VELASQUEZ and VICTOR VELASQUEZ, Petitioners

vs
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

LEONEN, J.:

An accused who pleads a justifying circumstance under Article 11 of the Revised Penal
Code  admits to the commission of acts, which would otherwise engender criminal liability. However,
1

he asserts that he is justified in committing the acts. In the process of proving a justifying
circumstance, the accused risks admitting the imputed acts, which may justify the existence of an
offense were it not for the exculpating facts. Conviction follows if the evidence for the accused fails
to prove the existence of justifying circumstances.

Through this Petition for Review on Certiorari  under Rule 45 of the Rules of Court, the accused
2

petitioners pray that the assailed March 17, 2010 Decision  and December 10, 2010 Resolution  of
3 4

the Court of Appeals in CA-G.R. CR. No. 31333 be reversed and set aside, and that they be
absolved of any criminal liability.

The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision  of the Regional Trial
5

Court, Branch 41, Dagupan City, which found petitioners guilty beyond reasonable doubt of
attempted murder.

In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez (Victor), along with
four (4) others -Felix Caballeda (Felix), Jojo Del Mundo (Jojo), Sonny Boy Velasquez (Sonny), and
Ampong Ocumen (Ampong) - were charged with attempted murder under Article 248,  in relation to
6

Article 6,  of the Revised Penal Code, as follows:

7

That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan and within the
jurisdiction of this Honorable Court, the above named accused while armed with stones and wooden
poles, conspiring, confederating and mutually helping one another, with intent to kill, with treachery
and abuse of superior strength, did, then and there willfully, unlawfully and feloniously attack, maul
and hit JESUS DEL MUNDO inflicting upon him injuries in the vital parts of his body, the said
accused having thus commenced a felony directly by overt acts, but did not perform all the acts of
execution which could have produced the crime of Murder but nevertheless did not produce it by
reason of some causes or accident other than their own spontaneous desistance to his damage and
prejudice.

Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code. 8

All accused, except Ampong, who remained at large, pleaded not guilty upon arraignment.  Trial then
9

ensued. 10
According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses Jesus and Ana Del
Mundo (Del Mundo Spouses) left their home to sleep in their nipa hut, which was about 100 meters
away.  Arriving at the nipa hut, the Del Mundo Spouses saw Ampong and Nora Castillo (Nora) in the
11

midst of having sex.  Aghast at what he perceived to be a defilement of his property, Jesus Del
12

Mundo (Jesus) shouted invectives at Ampong and Nora, who both scampered away.  Jesus decided
13

to pursue Ampong and Nora, while Ana Del Mundo (Ana) left to fetch their son, who was then
elsewhere.  Jesus went to the house of Ampong's aunt, but neither Ampong nor Nora was
14

there.  He began making his way back home when he was blocked by Ampong and his fellow
15

accused. 16

Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a stone. Petitioner
Victor also hit Jesus' left eyebrow with a stone.  Accused Felix did the same, hitting Jesus above his
17

left ear.  Accused Sonny struck Jesus with a bamboo, hitting him at the back, below his right
18

shoulder.  Ampong punched Jesus on his left cheek. The accused then left Jesus on the ground,
19

bloodied. Jesus crawled and hid behind blades of grass, fearing that the accused might return. He
then got up and staggered his way back to their house. 20

Jesus testified on his own ordeal. In support of his version of the events, the prosecution also
presented the testimony of Maria Teresita Viado (Maria Teresita). Maria Teresita was initially
approached by Jesus' wife, Ana, when Jesus failed to immediately return home.  She and Ana
21

embarked on a search for Jesus but were separated.  At the sound of a man being beaten, she hid
22

behind some bamboos.  From that vantage point, she saw the accused mauling Jesus.  The
23 24

prosecution noted that about four (4) or five (5) meters away was a lamp post, which illuminated the
scene. 25

At the Del Mundo Spouses' residence, Maria Teresita recounted to them what she had witnessed
(Jesus had managed to return home by then).  Ana and Maria Teresita then brought Jesus to
26

Barangay Captain Pili ta Villanueva, who assisted them in bringing Jesus to the hospital. 27

After undergoing an x-ray examination, Jesus was found to have sustained a crack in his skull.  Dr. 28

Jose D. De Guzman (Dr. De Guzman) issued a medico-legal certificate indicating the following
findings:

x.x. Positive Alcoholic Breath

3 ems lacerated wound fronto-parietal area left

1 cm lacerated wound frontal area left

Abrasion back left multi linear approximately 20 cm

Abrasion shoulder left, confluent 4x10 cm

Depressed skull fracture parietal area left.

x.x. 29

Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to six (6)
weeks.  Jesus was also advised to undergo surgery.  He was, however, unable to avail of the
30 31

required medical procedure due to shortage of funds. 32

The defense offered a different version of events.

According to the accused, in the evening of May 24, 2003, petitioner Nicolas was roused in his sleep
by his wife, Mercedes Velasquez (Mercedes), as the nearby house of petitioner Victor was being
stoned.33

Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's door. Several
neighbors - the other accused - allegedly tried to pacify Jesus.  Jesus, who was supposedly
34

inebriated, vented his ire upon Nicolas and the other accused, as well as on Mercedes.  The 35

accused thus responded and countered Jesus' attacks, leading to his injuries. 36

In its July 25, 2007 Decision,  the Regional Tnal Court, Branch 41, Dagupan City found petitioners
37

and Felix Caballeda guilty beyond reasonable doubt of attempted murder.  The court also found
38

Sonny Boy Velasquez guilty beyond reasorable doubt of less serious physical injuries.  He was 39

found to have hit Jesus on the back with a bamboo rod. Jojo Del Mundo was acquitted.  The case 40

was archived with respect to Ampong, as he remained at large. 41

The dispositive portion of its Decision read:

WHEREFORE, premises considered, judgment is hereby rendered finding accused NICOLAS

VELASQUEZ, VICTOR VELASQUEZ and FELIX CABALLEDA guilty beyond reasonable doubt of
the crime of Attempted Murder defined and penalized under Article 248 in relation to Art.ides 6,
paragraph 3 and 51 of the Revised Penal Code, and pursuant to the law, sentences each of them to
suffer on (sic) indeterminate penalty of four (4) years and one (1) day of Arrested (sic) Mayor in its
maximum period as minimum to eight (8) years of Prison (sic) Correctional (sic) in its maximum
period to Prison (sic) Mayor in its medium period as maximum and to pay proportionately to private
complainant Jesus del Mundo the amount of Php55,000.00 as exemplary damages, and to pay the
cost of suit.

The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond reasonable doubt
of the [crime] of Less Serious Physical Injuries defined and penalized under Article 265 of the
Revised Penal Code and pursuant thereto, he is hereby sentenced to suffer the penalty of Arresto
Mayor on one (1) month and one (1) day to six (6) months.

Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of evidence.

With respect to accused AMPONG OCUMEN, the case against him is archived without prejudice to
its revival as soon as he is arrested and brought to the jurisdiction of this Court. 42

Petitioners and Felix Caballeda filed a motion for reconsideration, which the Regional Trial Court
denied.43

On petitioners' and Caballeda's appeal, the Court of Appeals found that petitioners and Caballeda
were only liable for serious physical injuries because "first, intent to kill was not attendant inasmuch
as the accused-appellants, despite their superiority in numbers and strength, left the victim alive and,
second, none of [the] injuries or wounds inflicted upon the victim was fatal."  The Court of Appeals
44

thus modified the sentence imposed on petitioners and Caballeda.

The dispositive portion of its assailed March 1 7, 2010 Decision  read:

45
WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41, Regional Trial Court
of Dagupan City is hereby MODIFIED. Instead, accused-appellants are found guilty of Serious
Physical Injuries and each of them is sentenced to suffer the penalty of imprisonment of six (6)
months of arresto mayor as minimum to four (4) years and two (2) months of prisi6n correccional as
maximum.

SO ORDERED.  (Emphasis in the original)

46

Following the denial of their Motion for Reconsideration, petitioners filed the present Petition.  They
47

insist on their version of events, particularly on how they and their co-accused allegedly merely
acted in response to Jesus Del Mundo's aggressive behavior.

For resolution is the issue of whether petitioners may be held criminally liable for the physical harm
inflicted on Jesus Del Mundo. More specifically, this Court is asked to determine whether there was
sufficient evidence: first, to prove that justifying circumstances existed, and second, to convict the
petitioners.

Petitioners' defense centers on their claim that they acted in defense of themselves, and also in
defense of Mercedes, Nicolas' wife and Victor's mother. Thus, they invoke the first and second
justifying circumstances under Article 11 of the Revised Penal Code:

ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees,
and those by consanguinity within the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance are present, and the further requisite, in
case the provocation was given by the person attacked, that the one making defense had no part
therein.

A person invoking self-defense (or defense of a relative) admits to having inflicted harm upon
another person - a potential criminal act under Title Eight (Crimes Against Persons) of the Revised
Penal Code. However, he or she makes the additional, defensive contention that even as he or she
may have inflicted harm, he or she nevertheless incurred no criminal liability as the looming danger
upon his or her own person (or that of his or her relative) justified the infliction of protective harm to
an erstwhile aggressor.

The accused's admission enables the prosecution to dispense with discharging its burden of proving
that the accused performed acts, which would otherwise be the basis of criminal liability. All that
remains to be established is whether the accused were justified in acting as he or she did. To this
end, the accused's case must rise on its own merits:

It is settled that when an accused admits [harming] the victim but invokes self-defense to escape
criminal liability, the accused assumes the burden to establish his plea by credible, clear and
convincing evidence; otherwise, conviction would follow from his admission that he [harmed] the
victim. Self-defense cannot be justifiably appreciated when uncorroborated by independent and
competent evidence or when it is extremely doubtful by itself. Indeed, in invoking self-defense, the
burden of evidence is shifted and the accused claiming self-defense must rely on the strength of his
own evidence and not on the weakness of the prosecution. 48

To successfully invoke self-defense, an accused must establish: "(1) unlawful aggression on the part
of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression;
and (3) lack of sufficient provocation on the part of the person resorting to self-defense."  Defense of
49

a relative under Article 11 (2) of the Revised Penal Code requires the same first two (2) requisites as
self-defense and, in lieu of the third "in case the provocation was given by the person attacked, that
the one making the defense had no part therein." 50

The first requisite - unlawful aggression - is the condition sine qua non of self-defense and defense
of a relative:

At the heart of the claim of self-defense is the presence of an unlawful aggression committed against
appellant. Without unlawful aggression, self-defense will not have a leg to stand on and this justifying
circumstance cannot and will not be appreciated, even if the other elements are present. Unlawful
aggression refers to an attack amounting to actual or imminent threat to the life and limb of the
person claiming self-defense. 51

The second requisite - reasonable necessity of the means employed to prevent or repel the
aggression - requires a reasonable proportionality between the unlawful aggression and the
defensive response: "[t]he means employed by the person invoking self-defense contemplates a
rational equivalence between the means of attack and the defense."  This is a matter that depends
52

on the circumstances:

Reasonable necessity of the means employed does not imply material commensurability between
the means of attack and defense. What the law requires is rational equivalence, in the consideration
of which will enter as principal factors the emergency, the imminent danger to which the person
attacked is exposed, and the instinct, more than the reason, that moves or impels the defense, and
the proportionateness thereof does not depend upon the harm done, but rests upon the imminent
danger of such injury ... As WE stated in the case of People vs. Lara, in emergencies of this kind,
human nature does not act upon processes of formal reason but in obedience to the instinct of self-
preservation; and when it is apparent that a person has reasonably acted upon this instinct, it is the
duty of the courts to sanction the act and hold the act irresponsible in law for the
consequences.  (Citations omitted)
53

The third requisite - lack of sufficient provocation - requires the person mounting a defense to be
reasonably blameless. He or she must not have antagonized or incited the attacker into launching an
assault. This also requires a consideration of proportionality. As explained in People v. Boholst-
Caballero,  "[p]rovocation is sufficient when it is proportionate to the aggression, that is, adequate
54

enough to impel one to attack the person claiming self-defense." 55

II
We find petitioners' claims of self-defense and defense of their relative, Mercedes, to be sorely
wanting.

Petitioners' entire defense rests on proof that it was Jesus who initiated an assault by barging into
the premises of petitioners' residences, hacking Victor's door, and threatening physical harm upon
petitioners and their companions. That is, that unlawful aggression originated from Jesus.

Contrary to what a successful averment of self-defense or defense of a relative requires, petitioners

offered nothing more than a self-serving, uncorroborated claim that Jesus appeared out of nowhere
to go berserk in the vicinity of their homes. They failed to present independent and credible proof to
back up their assertions. The Regional Trial Court noted that it was highly dubious that Jesus would
go all the way to petitioners' residences to initiate an attack for no apparent reason. 56

The remainder of petitioners' recollection of events strains credulity. They claim that Jesus launched
an assault despite the presence of at least seven (7) antagonists: petitioners, Mercedes, and the
four (4) other accused. They further assert that Jesus persisted on his assault despite being
outnumbered, and also despite their and their co-accused's bodily efforts to restrain Jesus. His
persistence was supposedly so likely to harm them that, to neutralize him, they had no other
recourse but to hit him on the head with stones for at least three (3) times, and to hit him on the back
with a bamboo rod, aside from dealing him with less severe blows. 57

As the Regional Trial Court noted, however:

The Court takes judicial notice of (the) big difference in the physical built of the private complainant
and accused Victor Velasquez, Sonny Boy Velasquez, Felix Caballeda and Jojo del Mundo, private
complainant is shorter in height and of smaller built than all the accused.

The said accused could have had easily held the private complainant, who was heavily drunk as
they claim, and disarmed him without the need of hitting him. 58

The injuries which Jesus were reported to have sustained speak volumes:

3 ems lacerated wound fronto-parietal area left

1 cm lacerated wound frontal area left

Abrasion back left multi linear approximately 20 cm

Abrasion shoulder left, confluent 4x 10 cm

Depressed skull fracture parietal area left. 59

Even if it were to be granted that Jesus was the initial aggressor, the beating dealt to him by
petitioners and their co-accused was still glaringly in excess of what would have sufficed to
neutralize him. It was far from a reasonably necessary means to repel his supposed aggression.
Petitioners thereby fail in satisfying the second requisite of self-defense and of defense of a relative.

III

In addition to their tale of self-defense, petitioners insist that the testimony of Maria Teresita is not
worthy of trust because she parted ways with Ana while searching for Jesus.  They characterize
60
Maria Teresita as the prosecution's "lone eyewitness."  They make it appear that its entire case
61

hinges on her. Thus, they theorize that with the shattering of her credibility comes the complete and
utter ruin of the prosecution's case.  Petitioners claim that Maria Teresita is the prosecution's lone
62

eyewitness at the same time that they acknowledge Jesus' testimony, which they dismissed as laden
with inconsistencies. 63

These contentions no longer merit consideration.

Petitioners' averment of justifying circumstances was dispensed with the need for even passing upon
their assertions against Maria Teresita's and Jesus' testimonies.  Upon their mere invocation of self-
1âwphi1

defense and defense of a relative, they relieved the prosecution of its burden of proving the acts
constitutive of the offense. They took upon themselves the burden of establishing their innocence,
and cast their lot on their capacity to prove their own affirmative allegations.  Unfortunately for them,
1âwphi1

they failed.

Even if we were to extend them a measure of consideration, their contentions fail to impress.

Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness," upon whose
testimony the prosecution's case was to rise or fall, is plainly erroneous. Apart from her, Jesus
testified about his own experience of being mauled by petitioners and their co-accused. Maria
Teresita's testimony was only in support of what Jesus recounted.

Moreover, we fail to see how the mere fact of Maria Teresita's having parted ways with Ana while
searching for Jesus diminishes her credibility. No extraordinary explanation is necessary for this.
Their having proceeded separately may be accounted for simply by the wisdom of how independent
searches enabled them to cover more ground in less time.

Regarding Jesus' recollection of events, petitioners' contention centers on Jesus' supposedly flawed
recollection of who among the six (6) accused dealt him, which specific blow, and using which
specific weapon.  These contentions are too trivial to even warrant an independent, point by point
64

audit by this Court.

Jurisprudence is replete with clarifications that a witness' recollection of crime need not be foolproof:
"Witnesses cannot be expected to recollect with exactitude every minute detail of an event. This is
especially true when the witnesses testify as to facts which transpired in rapid succession, attended
by flurry and excitement."  This is especially true of a victim's recollection of his or her own
65

harrowing ordeal. One who has undergone a horrifying and traumatic experience "cannot be
expected to mechanically keep and then give an accurate account"  of every minutiae.
66

Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him which specific blow
can be forgiven. The merit of Jesus' testimony does not depend on whether he has an extraordinary
memory despite being hit on the head multiple times. Rather, it is in his credible narration of his
entire ordeal, and how petitioners and their co-accused were its authors. On this, his testimony was
unequivocal.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR. No.
31333 is AFFIRMED.

SO ORDERED.

Cano v. People, G.R. No. 155258, October 7, 2003

G.R. No. 155258             October 7, 2003

CONRADO CANO y SAMPANG, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

YNARES-SANTIAGO, J.:

The primordial issue to be resolved in this petition for certiorari is whether or not petitioner killed his
brother in self-defense.

Petitioner Conrado Cano y Sampang and his deceased brother Orlando Cano were rivals in the
Rush ID Photo business and had booths along the sidewalk of Rizal Avenue, Sta. Cruz, Manila
fronting the Philippine Trust Bank and Uniwide Sales Department Store. The fateful altercation which
culminated in the fatal stabbing of Orlando Cano stemmed out of this rivalry, particularly the incident
where Conrado took the business permit from the booth of Orlando without his permission thus
incurring the latter’s ire.

The prosecution’s version of what transpired as summarized in the People’s brief shows that in the
1 

morning of May 31, 1993, at about 7:00 o’clock, the victim Orlando Cano arrived at the Rush ID
Booth of petitioner located below the LRT line in Rizal Avenue, Sta. Cruz, Manila. The victim asked
David Olivario, an employee of petitioner, where the latter was. The victim angrily said that petitioner
was pakialamero. He also said, "Putang ina niya! Why did he Xerox our permit." Since petitioner had
not yet arrived, the victim returned to his own Rush ID booth located several meters away. 2

Later, at about 9:30 a.m., petitioner arrived at his Rush ID booth. After giving supplies to Olivario,
petitioner said he was going to the City Hall. He faced the mirror and started to comb his hair. The
victim suddenly arrived and held petitioner on the shoulders and turned him around. The victim
asked him, "Anong gusto mong mangyari?" Accused did not answer. 3

The victim tried to stab petitioner with a balisong but the latter was able to run and lock himself
inside the dark room inside his booth. The victim followed him and tried to open the door of the dark
room and shouted, "Lumabas ka diyan! Putang ina mo, papatayin kita!" Petitioner did not come out.
The victim tried to force the door open by kicking it and stabbed the door with his balisong. The door
of the dark room suddenly opened and petitioner emerged carrying a pair of scissors. The victim and
petitioner struck at each other. During the scuffle, the scissors fell from petitioner’s hand. He then
grabbed the knife of the victim who, in turn, picked up the scissors. They again attacked each other. 4

The victim fell and his wife rushed to his side. Petitioner fled from the scene. The victim’s wife asked
for assistance from the people in the vicinity. The victim was then loaded on a jeep and was rushed
to a hospital, but he was dead on arrival. 5

The autopsy report submitted by the medico-legal officer of the Western Police District, Dr. Manuel
Lagonera, shows that the victim sustained at least thirty (30) stab wounds, six (6) of which were
fatal. On the other hand, petitioner suffered only an incised wound on the right hand measuring six
6 

(6) cm., which required less than nine (9) days of treatment.

Petitioner had a different account of what transpired. He testified that on May 31, 1993 at around
9:30 a.m. he went to his Rush ID booth in front of the Philtrust Bank to deliver supplies to his
photographer, David Olivario. After handing over said supplies to Olivario, petitioner intended to go
7 

to the Manila City Hall to apply for a business permit. 8

Petitioner’s earlier application for a permit was denied. He sought a reconsideration from the city
9 

officials and argued that his brother was issued a similar permit. In order to prove his point, he
borrowed the permit of his brother from his nephew, Wilson Reyes, to have it machine copied. After 10 

doing so, petitioner returned it. The victim apparently resented this because petitioner was informed
11 

by David Olivario that Gloria Cano later went to petitioner’s stall angrily inquiring why they got the
permit. 12

As petitioner was combing his hair and preparing to leave for the Manila City Hall, the victim,
Orlando, suddenly appeared from behind, grabbed him by the left shoulder and jerked him around
so that they were face to face. As they stood face to face, Orlando menacingly said, "Anong gusto
13 

mong mangyari?" Petitioner noticed Orlando holding a balisong, and he ran to the dark room of his
14 

stall.
15

The victim pursued him and tried to force open the locked dark room door by kicking it and stabbing
it with the fan knife. He kept shouting, "Get out of there! Pakialamero ka! Get out of there and I will
16 

kill you!" The door suddenly gave way and, as it opened, the victim charged at petitioner, but he was
17 

able to evade the attack. Snatching a pair of scissors nearby, petitioner retaliated but the scissors
fell from his grasp because it was parried by the victim. Petitioner then grabbed the hand of the
18 

victim holding the balisong and they grappled to gain possession thereof. He eventually wrested
control of the knife and as he stood momentarily, the victim picked up the scissors and again lunged
at him. 19

With nowhere to go, petitioner was forced to defend himself from the onslaught of the victim who
was armed with the nine-inch long pair of pointed scissors. No bystanders tried to pacify them as
20 

they engaged in their deadly struggle for almost two (2) minutes. Suddenly, the victim collapsed and
fell bloodied to the floor. 21

Petitioner stooped to lift his brother up, intending to bring him to the hospital.  However, he was hit
1a\^/phi1.net

by the victim’s wife with a chair. Then, she started shouting, "Holdupper!" Petitioner was forced to
22 

flee from the scene for fear of being lynched by the people who had gathered around armed with
clubs. The people pursued him but when he saw a policeman coming in his direction, he threw the
balisong away and raised his hands in surrender. He was then brought to the police precinct and
23 

later to the hospital for treatment of his injuries.

24

Petitioner was charged with Homicide in an Information which alleges –

25 

That on or about May 31, 1993, in the City of Manila, Philippines, the said accused, with intent to kill,
did then and there willfully, unlawfully and feloniously attack, assault and use personal violence upon
one ORLANDO CANO y SAMPANG, by then and there stabbing the latter on the different parts of
his body, thereby inflicting upon the said ORLANDO CANO Y SAMPANG mortal and fatal wounds
which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.

The case was docketed as Criminal Case No. 93-121668 and filed with the Regional Trial Court of
Manila, Branch 31.
Upon arraignment, petitioner pleaded not guilty to the offense charged. The case thereupon
proceeded to trial. After trial, the court a quo rendered judgment finding petitioner guilty beyond
26 

reasonable doubt of the crime and sentencing him to serve an imprisonment of seventeen (17)
years, four (4) months and one (1) day of reclusion temporal and to indemnify the heirs of the
deceased P50,000.00 plus costs.

Petitioner interposed an appeal to the Court of Appeals, where it was docketed as CA-G.R. CR No.
19254.

During the pendency of the appeal, Gloria Cano, the widow of the victim, executed a Sinumpaang
27 

Salaysay stating, among others, that petitioner merely acted in self-defense and that she was
28 

withdrawing the charge against him. This sworn statement became the basis of an Urgent Motion for
New Trial on the ground of newly discovered evidence filed by counsel for petitioner.
29 

This motion for new trial was, however, denied by the Court of Appeals in a Resolution dated March
19, 1998. 30

The appellate court subsequently rendered judgment affirming petitioner’s conviction but modifying
the penalty to an indeterminate sentence of imprisonment ranging from nine (9) years and one (1)
day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal,
as maximum. Petitioner was likewise ordered to pay the heirs of the victim actual damages of
P24,605.75; P50,000.00 as moral damages and another P50,000.00 as civil indemnity ex delicto
plus costs. 31

Preliminarily, the Solicitor General argues that the petition raises merely factual issues, such as
whether or not petitioner is entitled to the justifying circumstance of self-defense and the mitigating
circumstance of provocation or threat and voluntary surrender. These issues, says the Solicitor, are
not proper for a petition for review under Rule 45 of the Rules of Civil Procedure.

Concededly, those who seek to avail of the remedies provided by the rules must adhere to the
requirements thereof, failure of which the right to do so is lost. It is, however, equally settled that
rules of procedure are not to be applied in a very rigid, technical sense and are used only to help
secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim would
be defeated. They should be liberally construed so that litigants can have ample opportunity to
32 

prove their claims and thus prevent a denial of justice due to technicalities. 33

Therefore, we shall proceed to resolve the issue of whether or not petitioner is entitled to invoke the
justifying circumstance of self-defense, considering that what is at stake is not merely his liberty, but
also the distinct possibility that he will bear the stigma of a convicted felon and be consigned to the
fate of being a social pariah for the rest of his life.

As can be seen from the foregoing, the prosecution and the defense have diametrically opposed
factual versions of what transpired immediately preceding the killing. Our task is to determine which
of them is the truth. In resolving such conflict, dealing as it does with the credibility of witnesses, the
usual rule is for us to respect the findings of the trial court considering that it was in a better position
to decide the question, having heard the witnesses themselves and having observed their
deportment and manner of testifying during trial. Nonetheless, this rule is circumscribed by well-
34 

established exceptions. 35

In the case at bar, the record shows circumstances of weight and influence which have been
overlooked, or the significance of which has been misinterpreted, that if considered would affect the
result of the case. 36 
1a\^/phi1.net
For self-defense to prosper, petitioner must prove by clear and convincing evidence the following
elements: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person
defending himself. Although all the three elements must concur, self-defense must rest firstly on
37 

proof of unlawful aggression on the part of the victim. If no unlawful aggression has been proved, no
self-defense may be successfully pleaded, whether complete or incomplete. In other words in self-
38 

defense, unlawful aggression is a primordial element. It presupposes an actual, sudden and

unexpected attack or imminent danger on the life and limb of a person – not a mere threatening or
intimidating attitude – but most importantly, at the time the defensive action was taken against the
aggressor. 39

In the case at bar, there are several material circumstances which were ignored by both the court a
quo and the appellate tribunal.

First, contrary to the findings of both the appellate and trial courts, there are facts extant on record
which clearly shows that it was an armed victim who initially attacked the petitioner with a balisong.
Petitioner testified on the assault thus:

Atty. Ferrer:

What happened after that when Orlando Cano grabbed you and came face to face with him?

A. I answered him none but he was in a menacing position with his hands around something
and I suddenly ran away.

Q. What was that something in the hands of Orlando Cano that made you run away?

A. Balisong "29," Sir.

Atty. Ferrer:

And where did you run to?

A. I went inside my booth because that is the only place I can run to.

Q. And what happened inside your booth, if any?

A. He also ran after me and then when I was inside we were having a tug of war of the
doorknob which I tried to close and which he tried to open.

Q. What happened after that?

A. But I was able to close the door but he kept on kicking the door that I turned deaf.

Q. What else happened, if any?

A. While he was kicking, he was also stabbing the door with the "29" (balisong) he was
holding.

Q. And you said you heard the thudding of the door making noise, what happened if any?
A. He kept on shouting, "Get out of there! Pakialamero ka!" "Get out of there and I will kill
you."

Q. What did you do did you go out?

A. While he was shouting I did not notice that the door was not completely closed because
the lock went on and the door suddenly opened.

Q. What happened after the door got open?

A. When the door opened he again rushed me, stabbed and I was able to evade it.

Atty. Ferrer:

What else happened?

Witness:

A. I was able to grab a scissors and that was the time I retaliated.

Q. Who owned this scissors?

A. That scissors was mine because it is used in cutting paper.

Q. Now, you said you retaliated after grabbing a pair of scissors where did you retaliate?

A. I was about to retaliate in the door of the room because the room was very small.

Q. Where you able to retaliate?

A. No, sir, I was not able to retaliate because the scissors fell when he was able to parry it.

Q. What happened after that, after that piece of scissors fell from your hold?

A. I took hold of his hand holding the "balisong" and we had a scuffle to get hold or
possession of the "balisong."

Q. What happened after the scuffling for the "balisong"?

A. After one (1) minute I was able to grab possession of the "balisong."

Q. What happened after that?

A. When I was able to get hold of the "balisong" I just remained standing and I just . . .

Q. What else happened?

A. He was able to pick up the scissors that I dropped and he again launched [himself] at me
[with] the scissors.
 Q. What did you do, if any?

A. That was the time when my mind was confused and I don’t have any place to go and I
tried to defend myself and we fought each other.

Atty. Ferrer :

And at the time when you said you fought each other, Orlando Cano was holding the
scissors and you were holding the "balisong," correct?

A. Yes, sir. 40

David Olivario, who was five meters away and saw what transpired, corroborated petitioner’s
account. He remained steadfast and unwavering on cross-examination despite intense grilling by
41 

the prosecution and further clarificatory questioning from the trial court itself.
42  43

Second, the physical evidence is more in accord with petitioner’s version of what transpired,
specifically his assertion that it was the victim who was armed and persisted in his attack on the
petitioner even though the latter locked himself inside the dark room of his stall to protect himself.
The findings of Police Investigator SPO3 Julian Z. Bustamante contained in his Advance Information
Report discloses that "[H]oles were observed at the door near the door lock of suspect’s rush ID
44 

photo booth apparently made by a hard pointed instrument…" Aside from stating that a fan knife
45 

and a pair of scissors which both yielded positive results for traces of human blood were recovered,
the report went further to note that the "bloodied scissor were (sic) recovered in front of suspect’s
rush ID photo booth door." 46

The foregoing entries of the Advance Information Report, particularly that referring to the location of
the bloodied scissors, supports petitioner’s claim that when he could no longer avoid the unlawful
aggression of the victim, he was compelled to grab at the instrument inside the booth to defend
himself. However, the scissors fell from his grasp, thus forcing him to desperately grapple for
possession of the fan knife.

Third, circumstances prior to the fatal incident shows that it was the victim who purposely sought to
confront the petitioner because the latter had his business permit machine copied without his
permission. Maria Cano, an aunt of the victim and petitioner, testified thus:

Q: And Orlando Cano, did he tell you any reason why he was waiting for Conrado Cano [at]
that particular morning?

A: Because he was very angry and said that there will be an encounter between them.

Atty. Ferrer:

What did you do, if any?

Witness:

A: You brothers you should calm down because you are brothers.

Q: By the way what was the reason why, if you know why, Orlando told you that "sila’y
magtutuos," quoting your own words?
 A: Orlando Cano is mad because Conrado Cano got Orlando’s business permit and had it
xeroxed and after xeroxing it and he returned the permit of Orlando Cano.

Q: Could you tell us how Orlando Cano uttered those words "magtutuos…"?

A: Orlando Cano told me this is the day when we will have a confrontation and at this
juncture, I even tapped [his] right pocket, I did not see what was there but I saw the handle.

xxxxxxxxx

Q: As the aunt of the two (2) what was your reaction when Orlando told you that?

A: I told, Orlando, calm down because you are brothers and if something bad that will
happen (sic) your mother will suffer because of the incident.

Atty. Ferrrer:

And what was the reaction of Orlando, if any, after you said those words of advice?

A: Orlando Cano answered me, well, shall I remain silent and will not utter any word at all?

Q: And was that that (sic) word confined to Orlando?

A: No, Sir, because I also advised Gloria.

Q And what was the advise you gave Gloria?

A: I told Gloria because the only one who can prevent this incident is you because Orlando is
your husband.

Q: And what was the reaction, if any of Gloria Cano?

A: Gloria told me, there is nothing I can do because they are brothers and they are
responsible for their own lives.

Q: What else happened, if any?

A: That was the time I bid goodbye. 47

(emphasis and italics supplied)

Fourth, the record reveals that while indeed numerous wounds were sustained by the victim, the
Medico-Legal Officer who conducted the autopsy admitted that of the thirty-five (35) wounds
supposedly inflicted, thirty-three (33) were scratches and contusions while only six (6) were
penetrating or stab wounds. As regards the finding that petitioner suffered only one hand wound, it
48 

should be stressed that the superficiality of the nature of the wounds inflicted on the accused does
not, per se, negate self-defense. Indeed, to prove self-defense, the actual wounding of the person
defending himself is not necessary. It is sufficient that the aggression be attempted so as to give rise
to the right to prevent it. The act of a person armed with a bladed weapon pursuing another
49 
constitutes unlawful aggression because it signifies the pursuer’s intent to commit an assault with
this weapon. 50

The particular circumstances which confronted the petitioner at the time of the incident condoned the
means he employed to protect his life. It must be remembered that the measure of rational necessity
is to be found in the situation as it appeared to petitioner at the time when the blow was struck. The
law does not require that he should mete out his blows in such manner that upon a calm and
deliberate review of the incident it will not appear that he exceeded the precise limits of what was
absolutely necessary to put his antagonist hors de combat, or that he struck one blow more than
was absolutely necessary to save his own life; or that he failed to hold his hand so as to avoid
inflicting a fatal wound where a less severe stroke might have served the purpose. Under such
conditions, an accused cannot be expected to reflect coolly nor wait after each blow to determine the
effects thereof. 51

. . . the reasonableness of the means employed to repel an actual and positive aggression should
not be gauged by the standards that the mind of a judge, seated in a swivel chair in a comfortable
office, free from care and unperturbed in his security, may coolly and dispassionately set down. The
judge must place himself in the position of the object of the aggression or his defender and consider
his feelings, his reactions to the events or circumstances. It is easy for one to state that the object of
the aggression or his defender could have taken such action, adopted such remedy, or resorted to
other means. But the defendant has no time for cool deliberation, no equanimity of mind to find the
most reasonable action, remedy or means to. He must act from impulse, without time for
deliberation. The reasonableness of the means employed must be gauged by the defender’s hopes
and sincere beliefs, not by the judge’s.52

Fifth, there was lack of sufficient provocation on the part of petitioner. When the law speaks of
provocation either as a mitigating circumstance or as an essential element of self-defense, it
requires that the same be sufficient or proportionate to the act committed and that it be adequate to
arouse one to its commission. It is not enough that the provocative act be unreasonable or
annoying. This third requisite of self-defense is present: (1) when no provocation at all was given to
53 

the aggressor; (2) when, even if provocation was given, it was not sufficient; (3) when even if the
provocation was sufficient, it was not given by the person defending himself; or (4) when even if a
provocation was given by the person defending himself, it was not proximate and immediate to the
act of aggression. 54

Petitioner borrowed the permit of the victim and had it photocopied without the latter’s permission
two (2) days before the incident. The victim and his wife resented this. However, this can hardly be
55 

considered a provocation sufficient to merit so deadly an assault with a bladed weapon. Moreover,
the act was neither immediate nor proximate. What, in fact, appears on record is the bellicose
56 

temperament of the victim and his spouse who, despite the advice of their Aunt Maria Cano to calm
down, still persisted in confronting petitioner. When the question is raised who between the accused
and the offended party gave provocation, the circumstances of subjective, objective and social
character may be considered in reaching a definite conclusion. Thus an accused, to prove
57 

provocation in connection with his plea of self-defense, may show that the victim, as in this case,
had a quarrelsome and irascible disposition. 58

Sixth, two other notable circumstances on record tend to show that petitioner was impelled by the
instinct of self-preservation rather than the murderous urge of one bent on killing. The first is when
petitioner was able to wrest the balisong from the victim, he never took advantage of the opportunity
to attack his already weaponless brother. Rather, he stood still and was forced to act only when the
victim picked up the scissors and lunged at him again. The second instance is when the victim fell.
59 

Had petitioner been actuated by homicidal intentions, he would have persisted in his attack on his
prostrate brother. He did nothing of the sort. He, in fact, intended to lift the victim up and bring him to
the hospital but the sudden appearance of the victim’s wife who hit him with a chair forced him to
flee. Moreover, armed people were attracted by the shouts of the victim’s wife and had gathered and
started pursuing him. 60

Seventh, while the general policy is for the courts not to attach any persuasive evidentiary value to
the affidavit of retraction of the victim’s widow, such sworn statement acquires a weightier and more
decisive evidentiary consideration when taken in conjunction with the other prevailing facts in this
case. Thus, it has oft been said that where inculpatory facts and circumstances are susceptible of
two or more interpretations, one of which is consistent with the innocence of the accused while the
others may be compatible with a finding of guilt, the Court must acquit the accused because the
evidence does not fulfill the test of moral certainty required for conviction. 61

All told, evidence shows that petitioner acted in lawful self-defense. Hence, his act of killing the
victim was attended by a justifying circumstance, for which no criminal and civil liability can
attach. Article 11 (1) of the Revised Penal Code expressly provides that anyone who acts in lawful
62 

self-defense does not incur any criminal liability. Likewise, petitioner is not civilly liable for his lawful
act. The only instance when a person who commits a crime with the attendance of a justifying
circumstance incurs civil liability is when he, in order to avoid an evil or injury, does an act which
causes damage to another, pursuant to subdivision 4 of Article 11 of the Revised Penal
Code. Otherwise stated, if a person charged with homicide successfully pleads self-defense, his
63 

acquittal by reason thereof will extinguish his civil liability.

64

WHEREFORE, in view of all the foregoing, the judgment appealed from is REVERSED and SET
ASIDE. Petitioner Conrado Cano y Sampang is ACQUITTED of the crime charged against him and
his immediate release from custody is ordered unless there is another cause for his continued
detention.

Costs de oficio.

SO ORDERED.

People v. Peralta, G.R. No. 128116, January 24, 2001

G.R. No. 128116       January 24, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CIC GILBERT PERALTA Y RINGOR, accused-appellant.

DE LEON, JR., J.:

Before us on appeal is the Decision1 of the Regional Trial Court of Quezon City, Branch 106, in
Criminal Case No. Q-91-23687 is convicting the appellant, Gilbert Peralta y Ringor, of the crime of
murder.

Gilbert Peralta was charged with the crime of murder as defined and penalized under Article 248 of
the Revised. Penal Code, in an Information that reads:

That on or about the 3rd day of July, 1991, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, qualified by
 evident premeditation and treachery, taking advantage of superior strength, did then and
there wilfully, unlawfully and feloniously, attack, assault and employ personal violence upon
the person of LOUISE RIMANDO Y MEDINA, by then and there, shooting him with a gun,
hitting him twice in the body, thereby inflicting upon him serious and mortal wounds which
was the direct and immediate cause of his untimely death, to the damage and prejudice of
the heirs of the said offended part (sic) in such amount as may be awarded under the
provisions of the Civil Code.

Upon being arraigned, appellant Gilbert R. Peralta pleaded "Not Guilty", and the trial ensued.

The evidence of the prosecution shows that prosecution witnesses Crizaldo Esguerra, Delfin
Doriano, and Danilo Gaa were schoolmates of the victim, Louise Rimando, at The Technological
Institute of the Philippines and fraternity brothers in Tau Gamma Fraternity. After watching a
basketball game in Pasig City in the evening of July 2, 1991, Louise Rimando together with Crizaldo
Esguerra, Delfin Soriano and Danillo Gaa, proceeded to Quezon City "to pick up" prostitutes. When
they reached the Aberdeen Court Hotel along Quezon Avenue in Quezon City, Rimando alighted
from their owner type jeep that was being driven by Esguerra and talked to a gay pimp named
Roberto Reyes. Rimando introduced himself as an agent of the National Bureau of Investigation
apparently to avail of a discount for the services of the prostitutes. Reyes agreed to introduce certain
young girls to Rimando and proposed to pick them up in front of the Aberdeen Court Hotel. When
the jeep reached the hotel. Reyes together with two (2) of the girls and another gay named Sandro
Lim suddenly boarded the jeep. Reyes told Rimando, "Mamang NBI, tulungan ninyo kami. Andiyan
iyong CAPCOM na nanghihingi sa amin ng pera." Upon Rimando's instructions, the jeep sped away
with eight (8) persons on board.2

While driving along Quezon Avenue in Quezon City, one of the pimps noticed that they were being
followed by appellant in a taxi cab. Rimando instructed Esguerra to park the jeep in front of Dunkin
Donuts at the corner of Quezon and West Avenues in Quezon City. Rimando ordered the two gays
to alight from the jeep. Meanwhile, the taxi parked behind the jeep. One of the ladies also got off the
jeep for fear of being arrested. The appellant who was holding a .38 caliber firearm alighted and
approached Rimando who was then seated beside the driver's seat. Appellant inquired if they were
policemen, but Rimando replied in the negative. Rimando stated that he was an agent of the
National Bureau of Investigation and showed the appellant his NBI Identification Card. The appellant
said, "NBI ka pala" and suddenly grabbed Rimando's identification card before he shot Rimando
twice in the body. Appellant went back to his taxi and left. The three (3) eyewitnesses had a clear
view of appellant's face inasmuch as there was a lamppost that illuminated the area. 3

On cross and re-direct examination, prosecution witness Crizaldo Esguerra testified that Rimando
and the appellant had an argument that lasted for two (2) to three (3) minutes before the appellant
shot Rimando.4

Rimando was brought to the United Doctors Medical Center but was later transferred to Santo
Tomas University Hospital in Manila. On July 7, 1991, he was pronounced dead. 5 Dr. Sergio Alteza,
Jr., the medico legal officer of the Santo Tomas University Hospital, conducted the autopsy on the
body of the deceased, Rimando. His findings showed that:

GENERAL PHYSICAL EXAMINATION:

Conscious (sic), Stretcher- Borne

INJURIES:
 1. GSW of entry, 2 x 2 cm., abdomen, Rt. anterior lumbar area.

2. GSW of entry , 1 x 1.5 cm., Rt. Postrio lumbar area.

3. GSW of exit, left Antero-lateral iliac area.

4. Multiple Perforating GSW (6) involving the jejunum and 2 perforations of sigmoid
colon.

5. Hemoperitoneum

CONCLUSION:

Patient pronounced dead July 7, 1991. 6

According to Dr. Alteza, the first gunshot wound was fatal inasmuch as it hit the intestines and other
vital organs of the victim. On the basis of the location of the gunshot wounds, he declared that the
assailant must have been at the right lateral side of the victim at the time of the shooting incident. He
did not find any injuries on the hands of the victim. 1âwphi1.nêt

For the defense, appellant testified that he was a member of the Central District Field Force,
Intelligence Investigation Unit of the Central Police District. On July 2, 1991; pursuant to a mission
order7, the appellant was dispatched to Quezon Avenue near Aberdeen Court Hotel in Quezon City
concerning rampant prostitution in the area. He was in a civilian attire and was carrying an
authorized .38 caliber gun.8

While conducting police surveillance on board a taxi, at about 1:00 o'clock in the morning of July 3,
1991, he spotted three (3) young girls sitting in front of the Aberdeen Court Hotel along Quezon
Avenue in Quezon City. Suspecting them to be prostitutes, he instructed the taxi driver to stop in
front of the hotel. When a pimp named Roberto Reyes approached him and said, "Mama, gusto
mong chicks?" he identified himself as a police officer. Reyes then shouted to warn the girls that the
appellant was a police officer. Reyes together with two (2) of the girls and another gay boarded an
owner-type jeep. Appellant went back to the taxi and followed the jeep to effect an arrest. When the
jeep stopped, he alighted from the taxi and approached its passengers. After identifying himself as a
police officer, Rimando arrogantly introduced himself by saying "E, ano kung pulis ka, NBI naman
ako."9 Appellant showed his identification card to Rimando but the latter asked him what he wanted
from them. Appellant replied, "Pare, wala naman iyon," and informed Rimando that the girls inside
the jeep were subject to arrest. The hot-tempered Rimando insisted that the ladies were the
girlfriends of his companions.10 Their heated discussion lasted for about two (2) to three (3)
minutes.11 The girls jumped off the jeep after hearing that the, appellant was going to arrest them.
Appellant tried to pursue them but Rimando grabbed appellant's right forearm and held
appellant's .38 caliber gun. However, the appellant maintained his hold of the gun with both of his
hands. As the companions, of Rimando were already approaching, appellant accidentally pressed
the trigger twice.12 After the gun went off, appellant took cover behind a concrete post. After the jeep
had left toward the south, appellant proceeded to his headquarters and reported the incident to the
Officer-in-Charge of the Intelligence Investigation Unit, Dante Yan. 13

The next day, Police Officer Dante Yan formed a team to conduct follow-up operations regarding the
incident; however, the team was not able to find out the identity of the victim. Police Officer Yan
prepared a spot report to inform their commanding officer, Police Chief Senior Inspector Absalon
Salboro, of the accidental firing of the appellant's firearm. 14 It was only on August 23, 1991, or about
one and a half months after the shooting incident, that the appellant was identified as the assailant of
the deceased, victim, Rimando.15

In his eleven (11) years in the police service, this was the first time that appellant was charged with a
criminal offense.16

To corroborate the appellant's testimony, Roberto Reyes testified that in the early morning of July 3,
1991, Rimando approached him looking for "pick-up" girls. To avail of a discount, he introduced
himself as an agent of the National Bureau of Investigation. They agreed that the girls would be
picked up in front of the Aberdeen Court Hotel located along Quezon Avenue in Quezon City. Before
the jeep arrived at their rendezvous, the appellant's taxi arrived. Reyes approached the taxi and
offered the services of a pick-up girl to the appellant. But the appellant threatened to arrest Reyes.
This prompted Reyes to warn his companions of the presence of a police officer. Reyes, together
with two (2) girls and a certain Sandro Lim boarded the victim's jeep which immediately sped away.
The taxi followed the jeep up to an outlet of the Dunkin Donuts located along West Avenue in
Quezon City where they parked. Reyes claimed that the appellant drove the taxi by himself. Reyes
and Lim hid near a parked car after alighting from the jeep. Appellant approached Rimando who
stood up and confronted the appellant face to face. Rimando and the appellant had a heated
argument. Rimando even pushed the appellant. As Rimando tried to get something from his back
pocket, the appellant pulled out his hand gun and poked it at the former. When Rimando was not
able to get his weapon from his waist, he grabbed the appellant's firearm. While the appellant and
Rimando struggled for the possession of the gun, Reyes heard two (2) gunshots. Thereafter, Reyes
and Lim left the premises by boarding a taxi.17

After weighing the evidence, the trial court on November 21, 1996 rendered a Decision finding the
appellant guilty beyond reasonable doubt of the crime of murder. The dispositive portion of the
decision reads:

WHEREFORE, in view of all the foregoing considerations, judgment is hereby rendered

finding accused GILBERT PERALTA y RINGOR GUILTY beyond reasonable doubt of the
crime of MURDER, defined and penalized under the provisions of Article 248 of the Revised
Penal Code and conformably thereto, and as its commission was prior to the effectivity of the
Death Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment
of RECLUSION PERPETUA; and to indemnify the heirs of the deceased victim the sum of
P50,000.00, plus P57,000.00, actual damages and P35,000.00, as moral damages and
P35,000.00 as exemplary damages and to pay the costs.

It appearing that the accused is a detention prisoner, he may be entitled to be credited of his
preventive imprisonment in the service of his sentence provided therein, pursuant to existing
laws.

SO ORDERED. 18

In his appeal, the appellant raised the following assignment of errors:

The Court a quo erred in finding that accused-appellant CIC Gilbert Peralta who was
engaged in the performance of his official duty, did not act in self defense in shooting and
killing victim Louise Rimando.
 II

The Court a quo erred in finding that treachery attended the shooting of victim.

III

The Court a quo erred in disregarding the testimony of Roberto Reyes who was with the
group of victim at the time of the shooting.

IV

The Court a quo erred in ordering accused-appellant to pay the heirs of victim the amount of
P50,000.00 death indemnity; P57,000.00 actual damages; P35,000.00 moral damages; and
P35,000.00 exemplary damages. 19

That appellant killed the victim is not disputed. However, the appellant invokes the justifying
circumstance of self-defense. Consequently, the burden of proof is shifted from the prosecution to
the defense and it is the duty of the latter to establish self-defense by clear and convincing evidence.
The defense must rely on the strength of its own evidence and not on the weakness of the
prosecution, for even if that were weak it cannot be disbelieved after the appellant himself has
admitted killing the victim.20

The three (3) elements of self-defense are provided under Article 11 of the Revised Penal Code
which states that:

Art. 11. Justifying Circumstances. -The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

xxx

There is unlawful aggression when the peril to one's life, limb or right is either actual or imminent.
There must be actual physical force or actual use of a weapon. 21 It is a statutory and doctrinal
requirement that for the justifying circumstance of self-defense, the presence of unlawful aggression
is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim
has committed an unlawful aggression against the person defending himself. 22

In the case at bar, the appellant's claim that his forearm was held by the victim and even attempted
to grab his gun cannot be believed. There were no signs of injuries on the hands of the victim. It was
sufficiently proven by the prosecution that appellant shot the victim while the latter was still seated
beside the driver's seat inside the jeep. The medical findings of Dr. Sergio Alteza, Jr., medico legal
officer of the UST Hospital, showed that the point of entry of one of the bullets was at the right upper
quadrant of the abdomen while the point of exit was at the lower left portion of the abdomen. This
indicates that the trajectory of the bullet was downwards which reinforces the prosecution's version
that the victim was shot while he was seated inside the jeep. Moreover, the finding of the said
medico legal officer that the two (2) gunshot wounds were located at the right portion of the victim's
body bolsters the claim that the right portion of the victim's body was the part vulnerable to attack
inasmuch as he was seated at the right front seat of the jeep. The testimony of Roberto Reyes that
the victim alighted from their jeep and stood up prior to the shooting incident cannot be given
credence for the reason that it runs counter to the medical findings of Dr. Alteza who is a
disinterested and credible witness. There being no unlawful aggression on the part of the victim, the
claim of self-defense by the appellant is not credible.

The plea of self-defense is also belied by the failure of the appellant to immediately report to his
superior officer on the night of the incident that he shot somebody with his service firearm in self-
defense. In fact, the appellant testified in court that he did not know he hit anyone after he allegedly
fired his gun accidentally. Aside from being inconsistent with his plea of self-defense, this feigned
ignorance of the appellant is not persuasive. Firstly it was impossible for the appellant to have
overlooked the reaction of the victim who was just beside him during the shooting incident inasmuch
as the area was illuminated by a lamppost. Secondly, there was no scuffle. Thirdly, the act of twice
firing his service firearm suggests that appellant was acting deliberately when he pulled the trigger
for the second time as he had full control of the handle and the trigger of the gun.

On the other hand, this Court finds the testimonies of prosecution witnesses Crizaldo Esguerra,
Delfin Soriano, and Danilo Gaa to be credible. From their eyewitness accounts, it appears that
appellant who was holding a handgun, approached them after they parked their jeep near Dunkin
Donuts at the corner of Quezon and West Avenues in Quezon City. A heated argument ensued
between the appellant and the victim. Thereafter, the appellant shot the victim twice while the latter
remained seated beside the driver's seat of the jeep.

Nevertheless, we cannot agree with the trial court's finding that the act of shooting happened
suddenly and immediately after the victim introduced himself as a National Bureau of Investigation
agent to the appellant. The trial court's reliance on the affidavits of the prosecution's three (3)
eyewitnesses overlooked the testimony of prosecution witness Crizaldo Esguerra that there was an
interval of two (2) to three (3) minutes before the two (2) shots were fired by the appellant. During
that period of time, the appellant tried to arrest the two (2) women on board the jeep whom he
suspected to be prostitutes but the victim intervened by maintaining that the women were girlfriends
of his companions. The victim's adamant refusal to surrender the suspected prostitutes who later
jumped off the jeep must have earned the ire of the appellant thereby causing him to shoot the
victim.

The shooting incident was a result of the heated argument between the victim and the appellant.
Hence, the qualifying circumstance of treachery may not be appreciated. The essence of treachery
is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter
of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor
and without the slightest provocation on the part of the victim. 23 The elements of treachery are: (1)
the means of execution employed gives the person no opportunity to defend himself or retaliate; and
(2) the means of execution were deliberately or consciously adopted. 24 It does not follow that a
sudden and unexpected attack is tainted with treachery for it could have been that the same was
done on impulse, as a reaction to an actual or imagined provocation offered by the
victim.25 Provocation of the appellant by the victim negates the presence of treachery even if the
attack may have been sudden and unexpected.26 The suddenness of the attack does not, of itself,
suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was
made all of a sudden and the victim's helpless position was accidental. The qualifying circumstance
of treachery may not be simply deduced from presumption as it is necessary that the existence of
this qualifying or aggravating circumstance should be proven as fully as the crime itself in order to
aggravate the liability or penalty of the culprit. 27

In the case at bar, the victim provoked the appellant when the former engaged the latter in a heated
argument. It was not shown that appellant deliberately or consciously thought of shooting the victim
prior to their confrontation. The protagonists did not meet previously until they confronted each other
at the corner of West Avenue and Quezon Avenue in Quezon City. According to the three (3)
prosecution witnesses, they saw appellant holding his firearm as he approached the jeep. The victim
was not therefore unaware of the danger of being shot for the reason that appellant was already
brandishing his weapon while he was approaching the jeep.

This Court also rules out the presence of evident premeditation. For the qualifying circumstance of
evident premeditation to be appreciated, the following requisites should be proved: (1) the time when
the offender determined to commit the crime, (2) an overt act manifestly indicating that the culprit
has clung to his determination, and (3) a sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences of his act. 28 In the case at bar, there was no
proof of the time when appellant allegedly determined to commit the crime against the victim. The
appellant did not even know the victim and vice versa prior to their confrontation at the place of the
shooting incident. The Solicitor General correctly pointed out that appellant's act of tailing the victim's
group is not an overt act that reflects appellant's determination to kill Rimando. Appellant followed
the jeep in order to effect an arrest of women whom he suspected to be prostitutes.

Appellant attempts to impeach the credibility of prosecution witnesses Crizaldo Esguerra, Delfin
Soriano and Danilo Gaa for the reason that they were biased witnesses. Appellant pointed out that
Esguerra testified that as a fraternity brother he would do anything and everything for the victim. 29 A
witness may be said to be biased when his relation to the cause or to the parties is such that he has
an incentive to exaggerate or give false color or pervert the truth, or to state what is false. 30 To
impeach a biased witness, the counsel must lay the proper foundation of the bias by asking the
witness the fact constituting the bias. In the case at bar, there was no proper impeachment by bias
of the three (3) prosecution witnesses. Esguerra's testimony that he would do anything for his fellow
brothers was too broad and general so as to constitute a motive to lie before the trial court. Counsel
for the defense failed to propound questions regarding the tenets of the fraternity that espouse
absolute fealty of the members to each other. The question was phrased so as to ask only for
Esguerra's personal conviction. And even if Esguerra's credibility were impeached, it does not follow
that the testimonies of Soriano and Gaa should also be undermined as they were not asked the
same question on cross examination.

Appellant claims that he shot the victim while he was in the performance of his police duties. Article
11 of the Revised Penal Code provides that a person who acts in the fulfillment of a duty does not
incur any criminal liability. Two (2) requisites must concur before this defense can prosper: (1) the
accused must have acted in the performance of a duty or in the lawful exercise of a right or office,
(2) the injury caused or the offense committed should be the necessary consequence of the due
performance of duty.31 We find the requisites absent in the case at bar. Appellant was not in the
performance of his duties at the time of the shooting for the reason that the girls he was attempting
to arrest were not committing any act of prostitution in his presence. If at all, the only person he was
authorized to arrest during that time was Roberto Reyes, who offered him the services of a
prostitute, for acts of vagrancy. Even then, the fatal injuries that the appellant caused the victim were
not a necessary consequence of appellant's performance of his duty as a police officer. The record
shows that appellant shot the victim not once but twice after a heated confrontation ensued between
them. His duty to arrest the female suspects did not include any right to shoot the victim to death.
Appellant faults the trial court for disregarding the testimony of Roberto Reyes. The matter of
appreciating the credibility of this witness was best left to trial Judge Tabiolo who was the presiding
judge of the Regional Trial Court of Quezon City, Branch 106, when Roberto Reyes took the witness
stand, and, hence, the said trial judge was able to observe his demeanor. 32 As pointed out by the
Solicitor General, the issues as to who of the witnesses and whose testimonies are to be believed
are best addressed by the trial judge who had the unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct and attitude on the witness stand. 33 In fact, .the
testimony of Reyes is full of material inconsistencies that militate against his credibility. First, he
testified that prior to the shooting incident he was already arrested by the appellant. However,
despite knowing the appellant was a police officer, Reyes still offered to him the services of a
prostitute.34 Second, he told the trial court that appellant drove the taxi that followed the jeep, but
appellant testified that he had a driver with him while tailing the jeep. 35 Third, he claimed that the taxi
was parked in front of the jeep but appellant testified that the taxi was parked behind the
jeep.36 Lastly, Reyes testified that he heard gunshots and yet he did not see anyone get hit as a
result thereof. It was unbelievable for Reyes not to have seen the victim hit by the gunshots
inasmuch as he testified having seen the appellant while in the act of shooting the victim in that
illuminated place.37

As there is reasonable doubt on the alleged attendance of treachery and evident premeditation in
the case at bar, the crime committed by the appellant was only homicide. Article 249 of the Revised
Penal Code provides that:

Art. 249. Homicide. Any person who, not falling within the provisions of Article 246, shall kill
another without the attendance of any other circumstances enumerated in the next
preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

With respect to appellant's civil liabilities, Zenaida Obias Rimando, mother of the victim, testified that
his son was a 3rd year mechanical engineering student at the Technological Institute of the
Philippines and a civilian agent of the National Bureau of Investigation; that at the time of his death,
he had an approved application for work in Kuwait, through a recruitment agency called EEl, where
he was about to earn One Thousand Two Hundred Dollars ($1,200.00) per month were it not for his
untimely death. She incurred hospitalization expenses in the amount of (P16,000.00) and engaged
the services of a funeral parlor which cost her Eighteen Thousand Five Hundred Pesos
(P18,500.00).38 She also had to buy a funeral lot worth Eight Thousand Pesos (P8,000.00) and spent
Four Hundred Pesos (P400.00) 39 for the funeral mass. She felt terrible when she lost her only son
who was the eldest among the siblings. 40

The Court notes that the funeral expenses in the total amount of Twenty Six Thousand Nine
Hundred Pesos (P26,900.00) are properly supported by official receipts. However, we cannot
consider the alleged hospitalization expenses inasmuch as the same were not evidenced by any
receipt. Likewise, we cannot award alleged loss of earning capacity of the victim inasmuch as the
documents showing that he was allegedly bound to work in Kuwait were not presented in evidence.
We affirm the trial court's award of Fifty Thousand Pesos (P50,000.00) as civil indemnity ex
delicto, and Fifty Thousand Pesos (P50,000.00) as moral damages. However, the award of
exemplary damages is deleted for the reason that the crime was not committed with one or more
aggravating circumstances. 1âwphi1.nêt

In the case at bar, there was neither mitigating nor aggravating circumstance.

WHEREFORE, the appealed decision of the Regional Trial Court of Quezon City, Branch 106 is
hereby MODIFIED in that the appellant is GUILTY only, beyond reasonable doubt, of the crime
of HOMICIDE as defined under Article 249 of the Revised Penal Code; and the sentence imposed
on the appellant is hereby reduced to an indeterminate sentence of imprisonment for a period of six
(6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as maximum, with accessory penalties provided by law; and the
appellant is also ordered to pay the heirs of the deceased victim., Louise Rimando, the sum of
P26,900.00 as actual damages, P50,000.00 as civil indemnity ex delicto, and P50,000.00 as moral
damages.

Inasmuch as the appellant is a detention prisoner, the period of his preventive imprisonment shall be
credited to the service of his sentence.

SO ORDERED.

Tabuena v. SB, G.R. Nos. 103501-03, February 17, 1997

G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:

Through their separate petitions for review,  Luis A. Tabuena and Adolfo M. Peralta (Tabuena and
1

Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,  as well as the
2

Resolution dated December 20. 1991  denying reconsideration, convicting them of malversation
3

under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond
reasonable doubt Of having malversed the total amount of P55 Million of the Manila International
Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance
Services Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public
office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
 temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and
to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public

office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE
MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse
jointly and severally the Manila International Airport Authority the sum of FIVE
MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from
public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of
P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the
principal accused — he being charged in all three (3) cases. The amended informations in criminal
case nos. 11758, 11759 and 11760 respectively read:

That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
from MIAA funds by applying for the issuance of a manager's check for said amount
in the name of accused Luis A. Tabuena chargeable against MIAA's Savings
Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena
would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

 That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay. Philippines and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
from MIAA funds by applying for the issuance of a manager.s check for said amount
in the name of accused Luis A. Tabuena chargeable against MIAA's Savings
Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena
would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial Services Department,
respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a manager's check for said amount in the name
of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-
500- 354-3 in the PNB Extension Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there was no outstanding
obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned
manager's check, accused Luis A. Tabuena encashed the same and thereafter both
accused misappropriated and converted the proceeds thereof to their personal use
and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the president's office
and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which
Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986
(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:

Office of the President

of the Philippines
Malacanang

January 8, 1986

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company mentioned
in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985
and duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND
MARCOS. 4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin
referred to in the MARCOS Memorandum, reads in full:

MEMORANDUM

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of
PNCC's Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S.

Hipolito for eight (8) supplemental contracts pertaining to the MIA Development
Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95
 2. Supplemental Contract No. 13
5,758,961.52

3. Supplemental Contract No. 14

Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16

Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18

Package Contract No. 2 6,110,115.75

8. Supplemental Contract No. 3

Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)

In this connection, please be informed that Philippine National Construction

Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for the
aforecited contracts. In accordance with contract provisions, outstanding advances
totalling P93.9 million are to be deducted from said billings which will leave a net
amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in
the following stages of approval/evaluation:

— Approved by Price Escalation Committee

(PEC) but pended for lack of funds P1.9 million

— Endorsed by project consultants and

currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
——————
Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to
PNCC due to additional cost of money to service its obligations for this contract.
 To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment of
the repayment of PNCC's advances to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has
been officially recognized by MIADP consultants but could not be paid due to lack of
funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.

(Sgd.)
ROBE
RTO V.
ONGPI
N
Ministe
r 5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of
Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date
signed by Tabuena and Dabao requesting the PNB extension office at the MIAA — the depository
branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check
was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor
branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were
then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the
same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs.
Gimenez did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's
co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied
Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million.
After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk
of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at
Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

Malacanang
Manila

January 30, 198

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE

MILLION PESOS (P55,000,000.00) as of the following dates:
 Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00

(Sgd.)
Fe Roa-
Gimene
z

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of
the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55
Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC
by MIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at
the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and
Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he
(Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the
same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the
release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors  committed by the
6

Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that
we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully,

unlawfully, feloniously, and with intent to defraud the government, take and
misappropriated the amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this
connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution
(denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan
said:

xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the
P55 Million to people who were not entitled thereto, either as representatives of
MIAA or of the PNCC.
 It proves that Tabuena had deliberately consented or permitted
through negligence or abandonment, some other person to take such public funds.
Having done so, Tabuena, by his own narration, has categorically demonstrated that
he is guilty of the misappropriation or malversation of P55 Million of public funds.
(Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue
that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be

committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where
the amended informations charged them with intentional malversation. 7

3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation. 8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v.
Sandiganbayan"   where the Court passed upon similar protestations raised by therein accused-
9

petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

. . . even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first
mode of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful
or intentional falsification can validly be convicted of falsification through negligence,
thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an
information exclusively charging the commission of a willful offense, upon the theory
that the greater includes the lesser offense. This is the situation that obtains in the
present case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did not act with
criminal intent but merely failed to take proper and adequate means to assure
himself of the identity of the real claimants as an ordinary prudent man would do. In
other words, the information alleges acts which charge willful falsification but which
turned out to be not willful but negligent. This is a case covered by the rule when
there is a variance between the allegation and proof, and is similar to some of the
cases decided by this Tribunal.

xxx xxx xxx

 Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established
to constitute the crime proved. . . .

The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the result has proven beneficial to him.
Certainly, having alleged that the falsification has been willful, it would be
incongruous to allege at the same time that it was committed with imprudence for a
charge of criminal intent is incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale

and arguments also apply to the felony of malversation, that is, that an accused
charged with willful malversation, in an information containing allegations similar to
those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2)
vintage, but significantmalversation cases of "US v. Catolico"   and "US v. Elvina,"   the Court
10 11

stressed that:

To constitute a crime, the act must, except in certain crimes made such by statute,
be accompanied by a criminal intent, or by such negligence or indifference to duty or
to consequences as, in law, is equivalent to criminal intent. The maxim is actus non
facit reum, nisi mens sit rea — a crime is not committed if the mind of the person
performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana,"   although this case involved falsification of
12

public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent
in embezzlement is not based on technical mistakes as to the legal effect of a transaction
honestly entered into, and there can be no embezzlement if the mind of the person doing the
act is innocent or if there is no wrongful purpose.  The accused may thus always introduce
13

evidence to show he acted in good faith and that he had no intention to convert.  And this, to
14

our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of the
P55 Million solely by reason of such memorandum. From this premise flows the following reasons
and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with
the presidential directive, and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuena's superior — the former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC.  In other15

words, Marcos had a say in matters involving inter-government agency affairs and transactions,
such as for instance, directing payment of liability of one entity to another and the manner in which it
should be carried out. And as a recipient of such kind of a directive coming from the highest official
of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any
question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful
purpose."  The subordinate-superior relationship between Tabuena and Marcos is clear. And so too,
16

is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose
partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance,
that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5
Million. The Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCC's
escalation billings which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of

ifs pending escalation billings, may we request for His Excellency's
approval for a deferment of repayment of PNCC's advances to the
extent of P30 million corresponding to about 30% of P99.1 million in
escalation claims of PNCC, of which P32.6 million has been officially
recognized by MIADP consultants but could not be paid due to lack of
funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million
out of existing MIA Project funds. This amount represents the excess
of the gross billings of PNCC of P98.4 million over the undeferred
portion of the repayment of advances of P63.9 million."

While Min. Ongpin may have, therefore recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion
thereof was still in the stages of evaluation and approval, with only P32.6 million
having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos' Memo was based) they would only be for a sum of up to P34.5
million. 
17
 xxx xxx xxx

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay
P55 million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit

"2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to
the PNCC while Exhibit "2" authorized only P34.5 million. The order
to withdraw the amount of P55 million exceeded the approved
payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of
January 7, 1985 could not therefore serve as a basis for the
President's order to withdraw P55 million.  18

Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make
him criminally liable. What is more significant to consider is that the MARCOS Memorandum
is patently legal (for on its face it directs payment of an outstanding liability) and that
Tabuena acted under the honest belief that the P55 million was a due and demandable debt
and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense
witness Francis Monera who, on direct examination, testified that:

ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on

page 2, marked as Exhibit "7-a", sir, P102,475.392.35

xxx xxx xxx 

19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings

to MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for
escalation mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-

owner that are supposed to take care of price increases, sir.

xxx xxx xxx 

20
 ATTY ANDRES

Q When you said these are accounts receivable, do I understand

from you that these are due and demandable?

A Yes, sir.  21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith.  Such is the ruling in "Nassif v. People"  the facts of which, in brief,
22 23

are as follows:

Accused was charged with falsification of commercial document. A mere employee

of R.J. Campos, he inserted in the commercial document alleged to have been
falsified the word "sold" by order of his principal. Had he known or suspected that his
principal was committing an improper act of falsification, he would be liable either as
a co-principal or as an accomplice. However, there being no malice on his part, he
was exempted from criminal liability as he was a mere employee following the orders
of his principal. 
24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the
ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the
Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00
should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by
COA)

b) payment of all claims against the government had to be supported with complete documentation
(Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan
observed that:

There were no vouchers to authorize the disbursements in question. There were no

bills to support the disbursement. There were no certifications as to the availability of
funds for an unquestionably staggering sum of P55 Million.  25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have
the luxury of time to observe all auditing procedures of disbursement considering the fact
that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that
he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena
surely cannot escape responsibility for such omission. But since he was acting in good faith,
his liability should only be administrative or civil in nature, and not criminal. This follows the
decision in "Villacorta v. People"  where the Court, in acquitting therein accused municipal
26

treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage

in his cash accountability by reason of his payment in good faith to certain government
personnel of their legitimate wages leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he

made wrong payments, they were in Good faith mainly to government personnel,
 some of them working at the provincial auditor's and the provincial treasurer's offices
And if those payments ran counter to auditing rules and regulations, they did not
amount to a criminal offense and he should only be held administratively or civilly
liable.

Likewise controlling is "US v. Elvina"   where it was held that payments in good faith do not
27

amount to criminal appropriation, although they were made with insufficient vouchers or
improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the
revised Manual on Certificate of Settlement and Balances — apparently made to underscore
Tabuena's personal accountability, as agency head, for MIAA funds — would all the more
support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295
expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a
superior officer who performs his duties with "bad faith, malice or gross negligence"' and on
a subordinate officer or employee who commits "willful or negligent acts . . . which are
contrary to law, morals, public policy and good customs even if he acted under order or
instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC,
proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the

fraudulent "appropriation to one's own use' of another's property which does not
necessarily mean to one's personal advantage but every attempt by one person to
dispose of the goods of another without right as if they were his own is conversion to
his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904,
906, 179 Okl. 106)

— At p. 207, Words
and Phrases,
Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal

property to enjoy and control it. The gist of conversion is the usurpation of the owner
's right of property, and not the actual damages inflicted. Honesty of purpose is not a
defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

— At
page
168, id.

xxx xxx xxx

The words "convert" and "misappropriate" connote an act of using or disposing of

another's property as if it were one's own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to one's
own use includes not only conversion to one's personal advantage but every attempt
to dispose of the property of another without right.

— People vs. Webber,

57 O.G.
p. 2933, 2937
 By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them
and converted them to his own use.

— People vs. Luntao,

50 O.G.
p. 1182, 1183  28

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to
pay immediately the Philippine National Construction Corporation, thru this office the sum of
FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the
money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena
had reasonable ground to believe that the President was entitled to receive the P55 Million
since he was certainly aware that Marcos, as Chief Executive, exercised supervision and
control over government agencies. And the good faith of Tabuena in having delivered the
money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never received the
money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of
malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is

malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public funds.
Where the payment of public funds has been made in good faith, and there is
reasonable ground to believe that the public officer to whom the fund had been paid
was entitled thereto, he is deemed to have acted in good faith, there is no criminal
intent, and the payment, if it turns out that it is unauthorized, renders him only civilly
but not criminally liable.
29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of those then in power, still, no criminal liability can
be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious
scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the
P5 Million. In the cases of "US v. Acebedo"  and "Ang v. Sandiganbayan",  both also involving the
30 31

crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding
of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte,
was prosecuted for and found guilty by the lower court of malversation after being unable to turn
over certain amounts to the then justice of the peace. It appeared, however, that said amounts were
actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after
finding that the sums were converted by his secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of
the theft committed by the secretary was shown on the part of the appellant in this
 case, nor does it appear that he in any way participated in the fruits of the crime. If
the secretary stole the money in question without the knowledge or consent of the
appellant and without negligence on his part, then certainly the latter can not be
convicted of embezzling the same money or any part thereof. 32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be

converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but
the checks were subsequently dishonored. Ang was acquitted by this Court after giving
credence to his assertion that the conversion of his collections into checks were thru the
machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we
also adopt the Court's observation therein, that:

The petitioner's alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar
as a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall
Lu. The prosecution failed to show that the petitioner was privy to the conspirational
scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS,
must be converted into evidence before conviction beyond reasonable doubt may be
imposed.  33

The principles underlying all that has been said above in exculpation of Tabuena equally
apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he
acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal
of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It carries
with it the presumption that it was regularly issued. And on its face, the memorandum is patently
lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor
for its execution constrains one to act swiftly without question. Obedientia est legis essentia.
Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr
Justice Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and
that the Judiciary was independent and fearless. We know it was not: even the
Supreme Court at that time was not free. This is an undeniable fact that we can not
just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity.  34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's
basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr.
Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights
of the accused."  While going over the records, we were struck by the way the Sandiganbayan
35

actively took part in the questioning of a defense witness and of the accused themselves. Tabuena
and Peralta may not have raised this as an error, there is nevertheless no impediment for us to
consider such matter as additional basis for a reversal since the settled doctrine is that an appeal
throws the whole case open to review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment appealed from whether they are made the subject of
assignments of error or not. 
36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the
testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of
PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only
asked six (6) questions on cross-examination in the course of which the court interjected a total
of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more
than the combined total of direct and cross-examination questions asked by the counsels) After the
defense opted not to conduct any re-direct examination, the court further asked a total of ten (10)
questions.  The trend intensified during Tabuena's turn on the witness stand. Questions from the
37

court after Tabuena's cross-examination totalled sixty-seven (67).   This is more than five times
38

Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct
examination and cross-examination questions which is thirty-one (31) [17 direct examination
questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's
case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.  39

But more importantly, we note that the questions of the court were in the nature of cross
examinations characteristic of confrontation, probing and insinuation.   (The insinuating type was
40

best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to
quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions
from the Court are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables
from MIAA totalling P102,475,392.35, and although such receivables were largely billings for
escalation, they were nonetheless all due and demandable. What follows are the cross-examination
of Prosecutor Viernes and the court questions).

CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits "7" and "7- a", the items
here represent mostly escalation billings. Were those escalation
billings properly transmitted to MIA authorities?

A I don't have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer, dated
July 6, 1988, following up for payment of the balance of our
receivables from MIA, sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference

between the MIA and the PNCC for the determination as to the
correct amount?

A I agree, your Honor. As far as we are concerned, our billings are

what we deemed are valid receivables And, in fact, we have been
following up for payment.
*Q This determination of the escalation costs was it accepted as the
correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your

Honor, but our company was able to get a document or a letter by
Minister Ongpin to President Marcos, dated January 7, 1985, with a
marginal note or approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and

request for partial deferment of payment for MIA Development
Project, your Honor.

*Q It has nothing to do with the implementation of the escalation

costs?

A The details show that most of the accounts refer to our escalations,
your Honor.

*Q Does that indicate the computation for escalations were already

billed or you do not have any proof of that

A Our subsidiary ledger was based on billings to MIA and this letter of
Minister Ongpin appears to have confirmed our billings to MIA, your
Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation

billings?

A Based on records available as of today, the P102 million was

reduced to about P56.7 million, if my recollection is correct, your
Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company?

WITNESS

A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State
Investment of about P23 million; and then there was P17.8 million
application against advances made or formerly given; and there were
payments to PNCC of about P2.6 million and there was a payment for
application on withholding and contractual stock of about P1 million;
that summed up to P44.4 million all in all. And you deduct that from
the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this
P102 million, only P2 million had been payments in cash ?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of

accounts, or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but
the balances is as of August 1987.

*Q We are talking now about the P44 million, more or less, by which
the basic account has been reduced. These reductions, whether by
adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments

were made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation

billings. Do we get it from you that there was an admission of these
escalation costs as computed by you by MIA, since there was already
partial payments?

A Yes, your Honor.

*Q How were these payments made before February 1986, in case or

check, if there were payments made?

A The P44 million payments was in the form of assignments, your

Honor.
*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were
there any liquidations made by MIA against these escalation billings?

A I have not reviewed the details of the record, your Honor. But the
ledger card indicates that there were collections on page 2 of the
Exhibit earlier presented. It will indicate that there were collections
shown by credits indicated on the credit side of the ledger.

*AJ AMORES

*Q Your ledger does not indicate the manner of giving credit to the
MIA with respect to the escalation billings. Was the payment in cash
or just credit of some sort before December 31, 1985?

A Before December 31, 1985, the reference of the ledger are official
receipts and I suppose these were payments in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made
by MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior

to December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?

A Yes, your Honor.

 *Q And they have liquidated that, as you described it, by way of
assignments, adjustments, by offsets and by P2 million of cash
payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in

connection with or in case of cash payment, was the payment in cash
or check?

A I would venture to say it was by check, your Honor.

*Q Which is the safest way to do it?

A Yes, your Honor.

"PJ GARCHITORENA

*Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to

the former President Marcos, did you say that letter concurs with the
escalation billings reflected in Exhibits "7" and "7-a"?

WITNESS

A The Company or the management is of the opinion that this letter, a

copy of which we were able to get, is a confirmation of the
acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas

the entries of escalation billings as appearing in Exhibit "7" are dated
June 30, 1985, would you still insist that the letter of January 1985
confirms the escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December

31, 1985, it stood at P102 million after payments were made as
shown on the credit side of the ledger. I suppose hat the earlier
amount, before the payment was made, was bigger and therefore I
would venture to say that the letter of January 7, 1985 contains an
amount that is part of the original contract account. What are
indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?

A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there
were credits made in favor of MIA in July and November until
December 1985. These were properly credited to the account of
MIA?

WITNESS

A Yes, sir.

Q In 1986. from your records as appearing in Exhibit "7-a", there

were no payments made to PNCC by MIA for the months of January
to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by

MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q From your records, for the month of January 1986, there was no
payment of this escalation account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit "7" there appears an

assignment of P23 million, that was on September 25, 1986.

*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment

whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of

adjustment of account, or by assignment, or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December

31, 1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of

settlement, your Honor.

*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements P23 million is

just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to
State Investment. In other words, State Investment bought the credit
of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State

Investment is P23 million?
 A Yes, your Honor.

*Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not

yet reviewed the same, your Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a

collection letter by our President dated July 6, 1988, your Honor. The
amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . . 41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash
on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her
office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the
money for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from
Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was
issued by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor What

happened is that, I did not notice the date placed by Mrs. Gimenez.

Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the
receipt was dated January 30?

A Yes, your Honor.

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You did not go to Malacañang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last
delivery?

A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs.
Gimenez?

A Yes, sir.

Q This receipt was typewritten in Malacañang stationery. Did you see

who typed this receipt?

A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.

*PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?

WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated

January 30?

A Yes, sir, because I was there on January 31st.

Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?

A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room.

Q So, she was in her room and when she came out of the room, she
handed this receipt to you already typed and signed?

A Yes, sir.
*AJ HERMOSISIMA

*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving

letters from her also and when she requests for something from me.
Her writing is familiar to me.

So, when the Presiding Justice asked you as to how you knew that
this was the signature of Mrs. Gimenez and you answered that you
saw Mrs. Gimenez signed it, you were not exactly truthful?

A What I mean is, I did not see her sign because she went to her
room and when she came out, she gave me that receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen
to it carefully. Because when I asked you, you said you saw her
signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Was there another person inside the office of Mrs. Gimenez when
she gave you this receipt Exhibit "3"?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55
million was made on January 30. Do we understand from you that
this date January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards.

This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA
Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q Why did you not ask for a receipt on the first and second
deliveries?

A Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55

million')

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also

present the accused, your Honor.

*AJ DEL ROSARIO

"Q From whom did you receive the President's memorandum marked
Exhibit "1"? Or more precisely, who handed you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

Q Did you ask Mrs, Fe Gimenez for what purpose the money was
being asked?

A The money was in payment for the debt of the MIA Authority to
PNCC, your Honor.

*Q If it was for the payment of such obligation why was there no

voucher prepared to cover such payment? In other words, why was
the delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the President,
your Honor.

*PJ GARCHITORENA

*Q Be that as it may, why was there no voucher to cover this

particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of
the President for obligations of the MIAA in payment of its obligation
to another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the

President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such
payment was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed,

your Honor.

*Q Before receiving this memorandum Exhibit "1", did the former

President Marcos discuss this maitter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me

pay what I owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

*Q And what did you say in this discussion you had with him?

A I just said, "Yes, sir, I will do it/"

*Q Were you the one who asked for a memorandum to be signed by

him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's

obligation with PNCC, did you not on your own accord already
prepare the necessary papers and documents for the payment of that
obligation?

A He told me verbally in the telephone that the Order for the payment
of that obligation is forthcoming, your Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the
President?

A Yes, your Honor.

*Q And was that the last time also that you received such a
memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the regular
procedure?

A No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

A I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q You said there was an "I OWE YOU"?

A Yes, your Honor.

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your
Honor. MIAA owes PNCC that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record,

cancelled by virtue of that payment?

A Based on the order to me by the former President Marcos ordering

me to pay that amount to his office and then the mechanics will come
after, your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly, to the PNCC considering
that you are the Manager of MIA at that time and the PNCC is a
separate corporation, not an adjunct of Malacañang?

WITNESS

A I was just basing it from the Order of Malacanang to pay PNCC

through the Office of the President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

"Q How was the obligation of MIAA to PNCC incurred. Was it through
the President or Chairman of the Board?

A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of
the Board or President of the PNCC? In other words, who signed the
contract between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who

signed for this was the former Director of BAT which is General
Singzon. Then when the MIA Authority was formed, all the obligations
of BAT were transferred to MIAA. So the accountabilities of BAT were
transferred to MIAA and we are the ones that are going to pay, your
Honor.

*Q Why did you agree to pay to Malacañang when your obligation

was with the PNCC?

A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact

that this was not the regular course or Malacañang was not the
creditor?

A I saw nothing wrong with that because that is coming, from the
President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you
agreed to deliver money in this amount through a mere receipt from
the private secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge

that you have been with the MIA for sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent

authority?

A Yes, your Honor.

*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?

WITNESS

A Yes, your Honor.

*Q And prior to your Joining the MIA, did you ever work for the
government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as
its Manager was your first employment ,with the government?

A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent
concurrent positions in the government also?

A I was also the Chairman of the Games and Amusement Board,

your Honor.

*Q But you were not the executive or operating officer of the Games
and Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement

Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that
time?

A I was also Commissioner of the Game Fowl Commission, your

Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS

A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA
and later the MIAA for approximately 18 years, you also ran the
Games and Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Came Fowl

Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our
Resident COA representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA

Representative comes to us and says: "Chairman or Manager, this
cannot be". And we learn later on that COA has reasons for its
procedure and we learn to adopt to them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient,

sometimes we consider it foolish, but we know there is reason in this
apparent madness of the COA and so we comply?

A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in
cash, not to the creditor of the particular credit, and to be delivered in
armored cars to be acknowledged only by a receipt of a personal
secretary. After almost 18 years in the government service and
having had that much time in dealing with COA people, did it not
occur to you to call a COA representative and say, "What will I do
here?"

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have
asked the COA for some guidance on this matter so that you will do it
properly?

WITNESS

A What I was going to do is, after those things I was going to tell that
delivery ordered by the President to the COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or
you and Mr. Peralta signed requests for issuance of Manager's
checks and you were accommodated by the PNB Office at Nichols
without any internal documentation to justify your request for
Manager's checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will

win the elections but even then, the Daily Express, which was
considered to be a newspaper friendly to the Marcoses at that time,
would occasionally come with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would
always come out with the real or imagined scandal in the government
and place it in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

Under these circumstances, did you not entertain some apprehension

that some disloyal employees might leak you out and banner
headline it in some mosquito publications like the Malaya at that
time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear.
We are in the government and we in the government fear the COA
and we also fear the press. We might get dragged into press releases
on the most innocent thing. You believe that?

A Yes, your Honor.

*Q And usually our best defense is that these activities are properly
documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three

(3) different trips from Nichols to Aguado usually late in the day
almost in movie style fashion. I mean, the money being loaded in the
trunk of your official car and then you had a back-up truck following
your car?

A Yes, your Honor.

*Q Is that not quite a fearful experience to you ?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

"Q You did not think it fearful to be driving along Roxas Boulevard
with P25 million in the trunk of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million
was in the trunk of his car.

*PJ GARCHITORENA
 Thank you for the correction. Even P1 million only. How much more
with P5 million inside the trunk of your car, was that not a nervous
experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena. You are excused. . . .  42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was
aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He
affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but
denied having misappropriated for his own benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for
you to co-sign with Mr. Tabuena the request for issuance of
Manager's check in the amount of P5 million?

A At that time I was the Acting Financial Services Manager of MIAA,

sir, and all withdrawals of funds should have my signature because I
was one of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign

with Mr. Tabuena in similar requests for the issuance of Manager's
checks by the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits and based on
that order, I co-signed in the request for the issuance of Manager's
check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr.
Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA
Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was
marked as exhibit "N".

PROS VIERNES

It was marked as Exhibit "M", your Honor.

Q How did you know there was an existing liability of MIAA in favor of
PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared

the financial statement of MIAA as of December 31, 1985 and it came
to my attention that there was an existing liability of around
P27,999,000.00, your Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986,

sir.

Q Is it your usual practice to prepare the Financial Statement after the

end of the year within three (3) weeks after the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the
Financial Statement on or before the 4th Friday of the month because
there will be a Board of Directors Meeting and the Financial
Statement of the prior month will be presented and discussed during
the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual

activity but a monthly activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986

recapitulated the financial condition as of the end of the year?
A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former

Minister Ongpin. Did you personally see that request?

A When this order coming from Mr. Tabuena was shown to me, I was
shown a copy, sir. I have no file because I just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you
withdrew the amount of P5 million from the PNB Extension Office at
Villamor?

A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So

what I did was to bundle count the P5 million and it was placed in two
(2) peerless boxes.

Q Did you actually participate in the counting of the money by

bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk
of the car of Mr. Tabuena, I was left behind and I went back to my
office at MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00
o'clock in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office

hours. But then I was there at around 4:00 o'clock and we started
counting at around 4:30 p.m. because they have to place it in a room,
which is the office of the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the
afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the
peerless boxes and Mr. Tabuena left for Malacanang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the
paper works in the office, sir.

Q So, even if it was already after 5:00 o'clock in the afternoon, you
still went back to your office at MIA?
A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC
had to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in

cash, it was not based on the normal procedure, your Honor.

*Q And, as Acting Financial Services Manager, you were aware that

all disbursements should be covered by vouchers?

A Yes, your Honor, the payments should be covered by vouchers.

But then, inasmuch as what we did was to prepare a request to the
PNB, then this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher

presented in Court to show that payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or

other accounting books of MIAA ?
A The payment of P5 million was recorded in a Journal Voucher, your
Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application

for Manager's Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt
from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe

Roa Gimenez, your Honor. Inasmuch as the payment should be
made through the Office of the president, I accepted the receipt given
by Mrs. Fe Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary

supporting documents, vouchers, and use that receipt as a
supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no

disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, and that was
very close to the election held in that year, did you not entertain any
doubt that the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the

question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't

think there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection

on record.

*AJ HERMOSISIMA

*Q As a Certified Public Accountant and Financial Manager of the

MIAA, did you not consider it proper that a check be issued only after
it is covered by a disbursement voucher duly approved by the proper
authorities ?

A Your Honor, what we did was to send a request for a Manager's

check to the PNB based on the request of Mr. Tabuena and the order
of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did

you not think it proper to have this transaction covered by a
disbursement voucher?

WITNESS

A Based on my experience, payments out of cash can be made

through cash vouchers, or even though Journal Vouchers, or even
through credit memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you
allow a disbursement by means of check in favor of Mr. Luis
Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because that

was the order of President Marcos to pay PNCC through the Office of
the President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider
that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.

*PJ GARCHITORENA

Considering that tire witness is an expert, witness may answer.

WITNESS

A The order of president Marcos was legal at that time because the
order was to pay PNCC the amount of P5 million through the Office of
the President and it should be paid in cash, your Honor. And at that
time, I know for a fact also that there was an existing P.D. wherein
the President of the Republic of the Philippines can transfer funds
from one office to another and the PNCC is a quasi government entity
at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that
P.D. which you referred to?

A I am not aware of the motive of the President, but then since he is

the President of the Philippines, his order was to pay the PNCC
through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when

ordinarily payment of an obligation of MIAA is supposed to be paid in
check?

A I caused the payment through the name of Mr. Tabuena because

that was the order of Mr. Tabuena and also he received an order
coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the

Journals to correct certain statements of accounts earlier made in the
same journal?

In other words, really what you are telling us is that, a Journal

Voucher is to explain a transaction was otherwise not recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper,
you are saying it is proper only because of the exceptional nature of
the transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally

authorize such a movement of money unless it is properly
documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the

question is misleading because what the witness stated is. . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the

language you are speaking, and therefore, you might be coaching
him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that. .
.

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness

stated earlier is that the Journal Voucher in this particular case was
supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of

the General Manager at that time and the order of President Marcos,
your Honor.

*Q Are you saying the Order of the General Manager is an adequate

basis for the movement of money?
A Yes, your Honor, because at that time we have also a recorded
liability of P27 million.

*Q we are not talking of whether or not there was a liability. What we

are saying is, is the order of the General Manager by itself adequate
with no other supporting papers, to justify the movement of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our
existing liability of P27,931,000.00, inasmuch as we have that liability
and I was shown the order of President Marcos to pay P5 million
through the Office of the President, I considered the order of Mr. Luis
Tabuena, the order of President Marcos and also the existing liability
of P27 million sufficient to pay the amount of P5 million. Inasmuch as
there is also an escalation clause of P99.1 million, the payment of P5
million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you whether
or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary

documents and at that time I know for a fact that there was this
existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to

the question being asked and not to whatever you wanted to say. I
know you are trying to protect yourself. We are aware of your
statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the

order of Mr. Tabuena by itself is adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a

liability and I was shown the Order of President Marcos to pay PNCC
through his office, I feel that the order of the General Manager, the
order of President Marcos, and also the memorandum of Minister
Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one that
refers to the realignment of funds insofar as the Appropriation Act is
concerned?

WITNESS

A Because at that time, your Honor, I have knowledge that the

President is authorized through a Presidential Decree to transfer
government funds from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA

covered by the Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the
amount is. . . . (interrupted)

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are

you just throwing words at us in the hope that we will forget what the
question is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA ate covered by
the Appropriations Act so that the payment of this debt would be in
the same level as the realignment of funds authorized the President?
Or are you telling as you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not
an officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers
and different officials in any company either government or private,
which are supposed to check and balance each other, is it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain
him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one

person can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to

documents and negotiable documents is for the same purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as

Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it"., if in your
opinion the disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your

judgment as to the propriety of a particular transactions?

A Yes, your Honor.

*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?
 A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?

A Yes, your Honor.

*Q Did you submit a written protest to the manner in which such

amount was being disposed of?

A A written protest was not made, your Honor, but I called the
attention of Mr. Tabuena that since this payment was upon the order
of President Marcos, then I think as President he can do things which
are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary
transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary

transaction and no written note, your Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. . . .  43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a case over which he
presides.   But not only should his examination be limited to asking "clarificatory" questions,   the
44 45

right should be sparingly and judiciously used; for the rule is that the court should stay out of it as
much as possible, neither interfering nor intervening in the conduct of the trial.  Here, these
46

limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan
had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-
examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's
questions in length. The "cold neutrality of an impartial judge" requirement of due process was
certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual
role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion
to the effect that the majority of this Court was "unduly disturbed" with the number of court questions
alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion
not to focus on "numbers" alone, but more importantly to show that the court questions were in the
interest of the prosecution and which thus depart from that common standard of fairness and
impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers"
without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d
833), for example, a new trial was required because the trial judge, as in this case, indulged in
extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on
"numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115
questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's,
201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of

itself determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendant's efforts to establish the time that Fine left the pier, we fear that in
its zeal for arriving at the facts the court here conveyed to the jury too strong an
impression of the court's belief in the defendant's probable guilt to permit the jury
freely to perform its own function of independent determination of the facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even under the
standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk
of being repetitious, we will amplify on this via some specific examples. Based on the
evidence on record, and on the admission of Tabuena himself, the P55 million was delivered
to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One
Sandiganbayan Justice, however, hurled the following questions to Peralta:

AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was
very close to the election held in that year, did you not entertain any
doubt that the amounts were being used for some other purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the

question on the ground that it is improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't

think there was any basis, Your Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection

on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for
this question. How then, can this be considered even relevant? What is the connection
between the payment made to the President's office and the then forthcoming presidential
"snap election"? In another instance, consider the following questions of Presiding Justice
Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the

Journals to correct certain statements of accounts earlier made in the
same journal?

x x x           x x x          x x x

*Q In other words, really what you are telling us is that, a Journal

Voucher is to explain a transaction was otherwise not recorded.

x x x           x x x          x x x

*Q Therefore, when you said that a Journal Voucher here is proper,

you are saying it is proper only because of the exceptional nature of
the transactions?

x x x           x x x          x x x

*Q In other words, as an Accountant, you would not normally

authorize such a movement of money unless it is properly
documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the

question is misleading because what the witness stated is . . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the

language you are speaking, and therefore, you might be coaching
him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say

that . . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL
The question is misleading on the ground that what the witness
stated earlier is that the Journal Voucher in this particular case was
supported, your Honor.

*PJ GARCHITORENA

Overruled may answer.

WITNESS

A The transaction was fully documented since we have the order of

the General Manager at that time and the order of President Marcos,
your Honor.

*Q Are you saying the Order of the General Manager is an adequate

basis for the movement of money?

*Q We are not talking of whether or not there was a liability. What we

are saying is, is the order of the General Manager by itself adequate
with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you whether
or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to

the question being asked and not to whatever you wanted to say. I
know you are trying to protect yourself. We are aware of your
statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the

order of Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to

transfer funds from one department to another, is this not the one that
refers to the realignment of funds insofar as the Appropriation Act is
concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA

covered by the Appropriation Act?
*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are

you just throwing words at us in the hope that we will forget what the
question is?

xxx xxx xxx

*Q Are you telling us that the debts incurred by MIAA are covered by
the Appropriations Act so that the payment of this debt would be in
the same level as the realignment of funds authorized the President?
Or are you telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not
an officer of the MIAA, was he?

*Q In fact, for purposes of internal control, you have different in

officers and different officials in any company either government or
private, which are supposed to check and balance each other, is it
not?

*Q So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain
him?

*Q These checks and balances exist in an entity so that no one

person can dispose of funds in any way he likes?

*Q And in fact, the purpose for having two (2) signatories to

documents and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as

Financial Services Manager and as counter signatory are in a
 position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it.", if in your
opinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your

judgment as to the propriety of a particular transaction ?

*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?  47

How can these questions be considered clarificatory when they clearly border more on
cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction
between the two kinds of trial to justify the Sandiganbayan's active participation in the
examination of petitioners Tabuena and Peralta and witness Monera, with due respect,
appears insignificant to this case. Let it, therefore, be emphasized anew that:

A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution. 48

We doubt not that the sole motive of the learned judge was to ascertain the truth of
the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of the
law, he should always remember that he is as much judge in behalf of the defendant
accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the
state, for the purpose of safeguarding the interests of society.  49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses
at length. The circumstances may be such in a given case as to justify the court in so
doing. . . . This court, however, has more than once said that the examination of
witnesses is the more appropriate function of counsel, and the instances are rare and
the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he
may deem improper questions by the court. Then, in conducting a lengthy
examination, it would be almost impossible for the judge to preserve a judicial
attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to
see that justice is done, he will usually not find it necessary to conduct such
examinations. The extent to which this shall be done must largely be a matter of
discretion, to be determined by the circumstances of each particular case, but in so
doing he must not forget the function of the judge and assume that of an
advocate. . . 50

While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense
of occasional delays. . . . The judge is an important figure in the trial of a cause, and
while he has the right, and it is often his duty, to question witnesses to the end that
justice shall prevail, we can conceive of no other reason, for him to take the trial of
the cause out of the hands of counsel.  51

The examination of witnesses is the more appropriate function of counsel, and it is

believed the instances are rare and the conditions exceptional in a high degree which
 will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom
deem such action necessary or advisable.  52

He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear
in mind that his undue interference, impatience, or participation in, the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who
are excited or terrified by the unusual circumstances of a trial, may tend to prevent
the proper presentation of the cause, or the ascertainment of the truth in respect
thereto. 53

The impartiality of the judge — his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
and essential rule of special importance in criminal cases. . .  54

Our courts, while never unmindful of their primary duty to administer justice, without
fear or favor, and to dispose of these cases speedily and in as inexpensive a manner
as is possible for the court and the parties, should refrain from showing any
semblance of one-sided or more or less partial attitude in order not to create any
false impression in the minds of the litigants. For obvious reasons, it is the bounden
duty of all to strive for the preservation of the people's faith in our courts.
55

Time and again this Court has declared that due process requires no less than the
cold neutrality of an impartial judge. Bolstering this requirement, we have added that
the judge must not only be impartial but must also appear to be impartial, to give
added assurance to the parties that his decision will be just. The parties are entitled
to no less than this, as a minimum guaranty of due process.  56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent
in that those guilty of enriching themselves at the expense of the public would be able to escape
criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however,
that we render justice on a case to case basis, always in consideration of the evidence that is
presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not
only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does
not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as
a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the
evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation

of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For
the most dangerous precedent arises when we allow ourselves to be carried away by such fears so
that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to
bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to
commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta
are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of
the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution
dated December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.
b. Exempting circumstances

Ortega v. People, G.R. No. 151085, August 20, 2008

G.R. No. 151085             August 20, 2008

JOEMAR ORTEGA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

NACHURA, J.:

Before this Court is a Petition1 for Review on Certiorari under Rule 45 of the Rules of Civil Procedure
seeking the reversal of the Court of Appeals (CA) Decision 2 dated October 26, 2000 which affirmed in
toto the Decision3 of the Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999,
convicting petitioner Joemar Ortega4 (petitioner) of the crime of Rape.

The Facts

Petitioner, then about 14 years old,5 was charged with the crime of Rape in two separate informations
both dated April 20, 1998, for allegedly raping AAA, 6 then about eight (8) years of age. The accusatory
portions thereof respectively state:

Criminal Case No. 98-19083

That sometime in August, 1996, in the Municipality of XXX, Province of YYY, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, by means of force,
violence and intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic) had
carnal knowledge of and/or sexual intercourse with the said AAA, a minor, then about 6 years old,
against her will.

CONTRARY TO LAW.7

Criminal Case No. 98-19084

That on or about the 1st day of December, 1996, in the Municipality of XXX, Province of YYY,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by
means of force, violence and intimidation, did then and there, (sic) willfully, unlawfully and
feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said AAA, a minor,
then about 6 years old, against her will.

CONTRARY TO LAW.8

Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the offense charged. 9 Thus,
trial on the merits ensued. In the course of the trial, two varying versions arose.

Version of the Prosecution

On February 27, 1990, AAA was born to spouses FFF and MMM. 10 Among her siblings CCC, BBB, DDD,
EEE and GGG, AAA is the only girl in the family. Before these disturbing events, AAA's family members
were close friends of petitioner's family, aside from the fact that they were good neighbors. However, BBB
caught petitioner raping his younger sister AAA inside their own home. BBB then informed their mother
MMM who in turn asked AAA.11 There, AAA confessed that petitioner raped her three (3) times on three
(3) different occasions.

The first occasion happened sometime in August 1996. MMM left her daughter AAA, then 6 years old and
son BBB, then 10 years old, in the care of Luzviminda Ortega 12 (Luzviminda), mother of petitioner, for two
(2) nights because MMM had to stay in a hospital to attend to her other son who was sick. 13 During the
first night at petitioner's residence, petitioner entered the room where AAA slept together with Luzviminda
and her daughter. Petitioner woke AAA up and led her to the sala. There petitioner raped AAA. The
second occasion occurred the following day, again at the petitioner's residence. Observing that nobody
was around, petitioner brought AAA to their comfort room and raped her there. AAA testified that
petitioner inserted his penis into her vagina and she felt pain. In all of these instances, petitioner warned
AAA not to tell her parents, otherwise, he would spank her. 14 AAA did not tell her parents about her
ordeal.

The third and last occasion happened in the evening of December 1, 1996. Petitioner went to the house
of AAA and joined her and her siblings in watching a battery-powered television. At that time, Luzviminda
was conversing with MMM. While AAA's siblings were busy watching, petitioner called AAA to come to
the room of CCC and BBB. AAA obeyed. While inside the said room which was lighted by a kerosene
lamp, petitioner pulled AAA behind the door, removed his pants and brief, removed AAA's shorts and
panty, and in a standing position inserted his penis into the vagina of AAA. 15 AAA described petitioner's
penis as about five (5) inches long and the size of two (2) ballpens. She, likewise, narrated that she saw
pubic hair on the base of his penis.16

This last incident was corroborated by BBB in his testimony. When BBB was about to drink water in their
kitchen, as he was passing by his room, BBB was shocked to see petitioner and AAA both naked from
their waist down in the act of sexual intercourse. BBB saw petitioner holding AAA and making a pumping
motion. Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB reported
the incident to his mother, MMM.17

MMM testified that when she asked AAA about what BBB saw, AAA told her that petitioner inserted his
fingers and his penis into her vagina. MMM learned that this was not the only incident that petitioner
molested AAA as there were two previous occasions. MMM also learned that AAA did not report her
ordeal to them out of fear that petitioner would spank her. MMM testified that when BBB reported the
matter to her, petitioner and Luzviminda already left her house. After waiting for AAA's brothers to go to
sleep, MMM, with a heavy heart, examined AAA's vagina and she noticed that the same was reddish and
a whitish fluid was coming out from it. Spouses FFF and MMM were not able to sleep that night. The
following morning, at about four o'clock, MMM called Luzviminda and petitioner to come to their house.
MMM confronted Luzviminda about what petitioner did to her daughter, and consequently, she demanded
that AAA should be brought to a doctor for examination. 18

MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas 19 (Dr. Katalbas), the Rural Health
Officer of the locality who examined AAA and found no indication that she was molested. 20 Refusing to
accept such findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical
Officer IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written report 21 showing that
there were "abrasions on both right and left of the labia minora and a small laceration at the posterior
fourchette." She also found that the minor injuries she saw on AAA's genitals were relatively fresh; and
that such abrasions were superficial and could disappear after a period of 3 to 4 days. Dr. Jocson,
however, indicated in her certification that her findings required the confirmation of the Municipal Health
Officer of the locality.

Subsequently, an amicable settlement22 was reached between the two families through the DAWN
Foundation, an organization that helps abused women and children. Part of the settlement required
petitioner to depart from their house to avoid contact with AAA. 23 As such, petitioner stayed with a certain
priest in the locality. However, a few months later, petitioner went home for brief visits and in order to
bring his dirty clothes for laundry. At the sight of petitioner, AAA's father FFF was infuriated and
confrontations occurred. At this instance, AAA's parents went to the National Bureau of Investigation
(NBI) which assisted them in filing the three (3) counts of rape. However, the prosecutor's office only filed
the two (2) instant cases.

Version of the Defense

Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and Luzviminda Ortega. 24 He is the
second child of three siblings ― an elder brother and a younger sister. Petitioner denied the accusations
made against him. He testified that: his parents and AAA's parents were good friends; when MMM left
AAA and her brothers to the care of his mother, petitioner slept in a separate room together with BBB and
CCC while AAA slept together with Luzviminda and his younger sister; he never touched or raped AAA or
showed his private parts to her; petitioner did not threaten AAA in any instance; he did not rape AAA in
the former's comfort room, but he merely accompanied and helped AAA clean up as she defecated and
feared the toilet bowl; in the process of washing, he may have accidentally touched AAA's anus; on
December 1, 1996, petitioner together with his parents, went to AAA's house; 25 they were dancing and
playing together with all the other children at the time; while they were dancing, petitioner hugged and
lifted AAA up in a playful act, at the instance of which BBB ran and reported the matter to MMM, who at
the time was with Luzviminda, saying that petitioner and AAA were having sexual intercourse; 26 petitioner
explained to MMM that they were only playing, and that he could not have done to AAA what he was
accused of doing, as they were together with her brothers, and he treated AAA like a younger
sister;27 BBB was lying; AAA's parents and his parents did not get angry at him nor did they quarrel with
each other; petitioner and his parents peacefully left AAA's house at about nine o'clock in the evening;
however, at about four o'clock in the morning, petitioner and his parents were summoned by MMM to go
to the latter's house; upon arriving there they saw BBB being maltreated by his father as AAA pointed to
BBB as the one who molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for
examination.28

Luzviminda corroborated the testimony of her son. She testified that: her son was a minor at the time of
the incident; CCC and BBB were the children of MMM in her first marriage, while AAA and the rest of her
siblings were of the second marriage; CCC and BBB are half-brothers of AAA; when MMM entrusted AAA
and her brothers to her sometime in August of 1996, she slept with AAA and her youngest daughter in a
separate room from petitioner; on December 1, 1996, she was at AAA's house watching television and
conversing with MMM, while FFF and Loreto were having a drinking spree in the kitchen; from where they
were seated, she could clearly see all the children, including petitioner and AAA, playing and dancing in
the dining area; she did not hear any unusual cry or noise at the time; while they were conversing, BBB
came to MMM saying that petitioner and AAA were having sexual intercourse; upon hearing such
statement, Luzviminda and MMM immediately stood up and looked for them, but both mothers did not find
anything unusual as all the children were playing and dancing in the dining area; Luzviminda and MMM
just laughed at BBB's statement; the parents of AAA, at that time, did not examine her in order to verify
BBB's statement nor did they get angry at petitioner or at them; and they peacefully left AAA's house.
However, the following day, MMM woke Luzviminda up, saying that FFF was spanking BBB with a belt as
AAA was pointing to BBB nor to petitioner as the one who molested her. At this instance, Luzviminda
intervened, telling FFF not to spank BBB but instead, to bring AAA to a doctor for examination.
Luzviminda accompanied MMM to Dr. Katalbas who found no indication that AAA was molested. She also
accompanied her to Dr. Jocson. After getting the results of the examination conducted by Dr. Jocson,
they went to the police and at this instance only did Luzviminda learn that MMM accused petitioner of
raping AAA. Petitioner vehemently denied to Luzviminda that he raped AAA. Thereafter, MMM and
Luzviminda went to their employer who recommended that they should seek advice from the Women's
Center. At the said Center, both agreed on an amicable settlement wherein petitioner would stay away
from AAA. Thus, petitioner stayed with a certain priest in the locality for almost two (2) years. But almost
every Saturday, petitioner would come home to visit his parents and to bring his dirty clothes for laundry.
Every time petitioner came home, FFF bad-mouthed petitioner, calling him a rapist. Confrontations
occurred until an altercation erupted wherein FFF allegedly slapped Luzviminda. Subsequently, AAA's
parents filed the instant cases.29

The RTC's Ruling

On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail over the positive
identification of petitioner as the perpetrator of the crime by AAA and BBB, who testified with honesty and
credibility. Moreover, the RTC opined that it could not perceive any motive for AAA's family to impute a
serious crime of Rape to petitioner, considering the close relations of both families. Thus, the RTC
disposed of this case in this wise:

FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y Felisario GUILTY
beyond reasonable doubt as Principal by Direct Participation of the crime of RAPE as charged in
Criminal Cases Nos. 98-19083 and 98-19084 and there being no aggravating or mitigating
circumstance, he is sentenced to suffer the penalty of Two (2) Reclusion Temporal in its medium
period. Applying the Indeterminate Sentence Law, the accused shall be imprisoned for each case
for a period of Six (6) years and One (1) day of Prision Mayor, as minimum, to Fifteen (15) years
of Reclusion Temporal, as maximum. The accused is condemned to pay the offended party AAA,
the sum of P100,000.00 as indemnification for the two (2) rapes (sic).

Aggrieved, petitioner appealed the RTC Decision to the CA. 30

Taking into consideration the age of petitioner and upon posting of the corresponding bail bond for his
provisional liberty in the amount of P40,000.00, the RTC ordered the petitioner's release pending
appeal.31

The CA's Ruling

On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the petitioner's defense of
denial could not prevail over the positive identification of the petitioner by the victim AAA and her brother
BBB, which were categorical, consistent and without any showing of ill motive. The CA also held that the
respective medical examinations conducted by the two doctors were irrelevant, as it is established that
the slightest penetration of the lips of the female organ consummates rape; thus, hymenal laceration is
not an element of rape. Moreover, the CA opined that petitioner acted with discernment as shown by his
covert acts. Finally, the CA accorded great weight and respect to the factual findings of the RTC,
particularly in the evaluation of the testimonies of witnesses.

Petitioner filed his Motion for Reconsideration32 of the assailed Decision which the CA denied in its
Resolution33 dated November 7, 2001.

Hence, this Petition based on the following grounds:

I.

THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN FACTS OF

SUBSTANCE AND VALUE WHICH IF CONSIDERED MIGHT AFFECT THE RESULT OF THE
CASE.

II.

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED TO

APPRECIATE THE MEDICAL FINDINGS OF DR. LUCIFREE KATALBAS.
 III.

THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE COURT, THAT
PETITIONER-APPELLANT IN FACT COMMITTED AND IS CAPABLE OF COMMITTING THE
ALLEGED RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE
ALLEGED VICTIM'S FAMILY MEMBERS AND THEIR RESPECTIVE MOTHERS WERE
PRESENT IS IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE.

IV.

THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS SET FORTH BY
THE ALLEGED VICTIM REGARDING THE CIRCUMSTANCES ATTENDING THE
COMMISSION OF RAPE SOMETIME IN AUGUST 1996.34

Petitioner argues that, while it is true that the factual findings of the CA are conclusive on this Court, we
are not prevented from overturning such findings if the CA had manifestly overlooked certain facts of
substance and value which if considered might affect the result of the case. Petitioner stresses that from
the testimonies of AAA and BBB, it can be deduced that penetration was achieved; thus, AAA felt pain.
Petitioner contends that assuming the allegations of AAA are true that petitioner inserted his fingers and
his penis into her vagina, certainly such acts would leave certain abrasions, wounds and/or lacerations on
the genitalia of AAA, taking into consideration her age at the time and the alleged size of petitioner's
penis. However, such allegation is completely belied by the medical report of Dr. Katalbas who, one day
after the alleged rape, conducted a medical examination on AAA and found that there were no signs or
indications that AAA was raped or molested. Petitioner submits that the CA committed a grave error when
it disregarded such medical report since it disproves the allegation of the existence of rape and,
consequently, the prosecution failed to prove its case; thus, the presumption of innocence in favor of the
petitioner subsists. Moreover, petitioner opines that like AAA, petitioner is also a child of the barrio who is
innocent, unsophisticated and lacks sexual experience. As such, it is incredible and contrary to human
reason that a 13- year-old boy would commit such act in the very dwelling of AAA, whose reaction to pain,
at the age of six, could not be controlled or subdued. Petitioner claims that poverty was MMM's motive in
filing the instant case, as she wanted to extort money from the parents of the petitioner. Petitioner points
out that the medical report of Dr. Jocson indicated that the abrasions that were inflicted on the genitalia of
AAA were relatively fresh and the same could disappear within a period of 3 to 4 days. Considering that
Dr. Jocson conducted the medical examination on December 12, 1996, or after the lapse of eleven (11)
days after the alleged incident of rape, and that AAA's parents only filed the instant case after almost a
year, in order to deter Luzviminda from filing a case of slander by deed against FFF, it is not
inconceivable that MMM inflicted said abrasions on AAA to prove their case and to depart from the initial
confession of AAA that it was actually BBB who raped her. Finally, petitioner submits that AAA and BBB
were merely coached by MMM to fabricate these stories. 35

On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG)
contends that: the arguments raised by the petitioner are mere reiterations of his disquisitions before the
CA; the RTC, as affirmed by the CA, did not rely on the testimonies of both doctors since despite the
absence of abrasions, rape is consummated even with the slightest penetration of the lips of the female
organ; what is relevant in this case is the reliable testimony of AAA that petitioner raped her in August and
December of 1996; even in the absence of force, rape was committed considering AAA's age at that time;
as such, AAA did not have any ill motive in accusing petitioner; and it is established that the crime of rape
could be committed even in the presence of other people nearby. Moreover, the OSG relies on the
doctrine that the evaluation made by a trial court is accorded the highest respect as it had the opportunity
to observe directly the demeanor of a witness and to determine whether said witness was telling the truth
or not. Lastly, the OSG claims that petitioner acted with discernment when he committed the said crime,
as manifested in his covert acts.36

However, Republic Act (R.A.) No. 9344,37 or the Juvenile Justice and Welfare Act of 2006, was enacted
into law on April 28, 2006 and it took effect on May 20, 2006. 38 The law establishes a comprehensive
system to manage children in conflict with the law 39 (CICL) and children at risk40 with child-appropriate
procedures and comprehensive programs and services such as prevention, intervention, diversion,
rehabilitation, re-integration and after-care programs geared towards their development. In order to
ensure its implementation, the law, particularly Section 841 thereof, has created the Juvenile Justice and
Welfare Council (JJWC) and vested it with certain duties and functions 42 such as the formulation of
policies and strategies to prevent juvenile delinquency and to enhance the administration of juvenile
justice as well as the treatment and rehabilitation of the CICL. The law also

provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65, 66, 67 and 68 of R.A.
No. 9344's Transitory Provisions.43

The said Transitory Provisions expressly provide:

Title VIII
Transitory Provisions

SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. — Upon
effectivity of this Act, cases of children fifteen (15) years old and below at the time of the
commission of the crime shall immediately be dismissed and the child shall be referred to the
appropriate local social welfare and development officer. Such officer, upon thorough assessment
of the child, shall determine whether to release the child to the custody of his/her parents, or refer
the child to prevention programs, as provided under this Act. Those with suspended sentences
and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless
it is contrary to the best interest of the child.

SECTION 65. Children Detained Pending Trial. — If the child is detained pending trial, the Family
Court shall also determine whether or not continued detention is necessary and, if not, determine
appropriate alternatives for detention. If detention is necessary and he/she is detained with
adults, the court shall immediately order the transfer of the child to a youth detention home.

SECTION 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. — The
PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90)
days from the effectivity of this Act, an inventory of all children in conflict with the law under their
custody.

SECTION 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court
Proceedings. — If a child reaches the age of eighteen (18) years pending diversion and court
proceedings, the appropriate diversion authority in consultation with the local social welfare and
development officer or the Family Court in consultation with the Social Services and Counseling
Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate
disposition. In case the appropriate court executes the judgment of conviction, and unless the
child in conflict with the law has already availed of probation under Presidential Decree No. 603
or other similar laws, the child may apply for probation if qualified under the provisions of the
Probation Law.

SECTION 68. Children Who Have Been Convicted and are Serving Sentences. — Persons who
have been convicted and are serving sentence at the time of the effectivity of this Act, and who
were below the age of eighteen (18) years at the time of the commission of the offense for which
they were convicted and are serving sentence, shall likewise benefit from the retroactive
application of this Act. They shall be entitled to appropriate dispositions provided under this Act
and their sentences shall be adjusted accordingly. They shall be immediately released if they are
so qualified under this Act or other applicable laws.
Ostensibly, the only issue that requires resolution in this case is whether or not petitioner is guilty beyond
reasonable doubt of the crime of rape as found by both the RTC and the CA. However, with the advent of
R.A. No. 9344 while petitioner's case is pending before this Court, a new issue arises, namely, whether
the pertinent provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time he
committed the alleged rape, he was merely 13 years old.

In sum, we are convinced that petitioner committed the crime of rape against AAA. In a prosecution for
rape, the complainant's candor is the single most important factor. If the complainant's testimony meets
the test of credibility, the accused can be convicted solely on that basis. 44 The RTC, as affirmed by the
CA, did not doubt AAA's credibility, and found no ill motive for her to charge petitioner of the heinous
crime of rape and to positively identify him as the malefactor. Both courts also accorded respect to BBB's
testimony that he saw petitioner having sexual intercourse with his younger sister. While petitioner asserts
that AAA's poverty is enough motive for the imputation of the crime, we discard such assertion for no
mother or father like MMM and FFF would stoop so low as to subject their daughter to the tribulations and
the embarrassment of a public trial knowing that such a traumatic experience would damage their
daughter's psyche and mar her life if the charge is not true. 45 We find petitioner's claim that MMM inflicted
the abrasions found by Dr. Jocson in the genitalia of AAA, in order to extort money from petitioner’s
parents, highly incredible. Lastly, it must be noted that in most cases of rape committed against young
girls like AAA who was only 6 years old then, total penetration of the victim's organ is improbable due to
the small vaginal opening. Thus, it has been held that actual penetration of the victim's organ or rupture of
the hymen is not required.46 Therefore, it is not necessary for conviction that the petitioner succeeded in
having full penetration, because the slightest touching of the lips of the female organ or of the labia of the
pudendum constitutes rape.47

However, for one who acts by virtue of any of the exempting circumstances, although he commits a
crime, by the complete absence of any of the conditions which constitute free will or voluntariness of the
act, no criminal liability arises.48 Therefore, while there is a crime committed, no criminal liability attaches.
Thus, in Guevarra v. Almodovar,49 we held:

[I]t is worthy to note the basic reason behind the enactment of the exempting circumstances
embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of action,
or intent, or on the absence of negligence on the part of the accused. In expounding on
intelligence as the second element of dolus, Albert has stated:

"The second element of dolus is intelligence; without this power, necessary to determine
the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and
because . . . the infant (has) no intelligence, the law exempts (him) from criminal liability."

It is for this reason, therefore, why minors nine years of age and below are not capable of
performing a criminal act.

In its Comment50 dated April 24, 2008, the OSG posited that petitioner is no longer covered by the
provisions of Section 64 of R.A. No. 9344 since as early as 1999, petitioner was convicted by the RTC
and the conviction was affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and with
the petitioner now approximately 25 years old, he no longer qualifies as a child as defined by R.A. No.
9344. Moreover, the OSG claimed that the retroactive effect of Section 64 of R.A. No. 9344 is applicable
only if the child-accused is still below 18 years old as explained under Sections 67 and 68 thereof. The
OSG also asserted that petitioner may avail himself of the provisions of Section 38 51 of R.A. No. 9344
providing for automatic suspension of sentence if finally found guilty. Lastly, the OSG argued that while it
is a recognized principle that laws favorable to the accused may be given retroactive application, such
principle does not apply if the law itself provides for conditions for its application.

We are not persuaded.

Section 6 of R.A. No. 9344 clearly and explicitly provides:

SECTION 6. Minimum Age of Criminal Responsibility. — A child fifteen (15) years of age or under
at the time of the commission of the offense shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt
from criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil
liability, which shall be enforced in accordance with existing laws.

Likewise, Section 64 of the law categorically provides that cases of children 15 years old and below, at
the time of the commission of the crime, shall immediately be dismissed and the child shall be referred to
the appropriate local social welfare and development officer (LSWDO). What is controlling, therefore, with
respect to the exemption from criminal liability of the CICL, is not the CICL's age at the time of the
promulgation of judgment but the CICL's age at the time of the commission of the offense. In short, by
virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from 9 to 15 years old. 52

Given this precise statutory declaration, it is imperative that this Court accord retroactive application to the
aforequoted provisions of R.A. No. 9344 pursuant to the well-entrenched principle in criminal law
- favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to the accused are given
retroactive effect.53 This principle is embodied in Article 22 of the Revised Penal Code, which provides:

Art. 22. Retroactive effect of penal laws. — Penal laws shall have a retroactive effect insofar as
they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time of the publication of such laws, a final
sentence has been pronounced and the convict is serving the same.

We also have extant jurisprudence that the principle has been given expanded application in certain
instances involving special laws.54 R.A. No. 9344 should be no exception.

In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the deliberations on the
bill in the Senate, quoted as follows:

Sections 67-69 On Transitory Provisions

Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages 34 to 35, may I humbly

propose that we should insert, after Sections 67 to 69, the following provision:

ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS LAW PENDING THE
CREATION OF THE OFFICE OF JUVENILE WELFARE AND RESTORATION (OJWR) AND
THE LOCAL COUNCIL FOR THE PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR,
SHALL BE IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD SHALL
UNDERTAKE DIVERSION PROGRAMS FOR THEM, PRIORITIZING THE YOUNGER
CHILDREN BELOW 15 YEARS OF AGE AND THE LIGHTER OFFENSES.

The only question will be: Will the DSWD have enough facilities for these adult offenders?

Senator Pangilinan, Mr. President, according to the CWC, the DSWD does not have the
capability at the moment. It will take time to develop the capacity.
Senator Santiago. Well, we can say that they shall be transferred whenever the facilities are
ready.

Senator Pangilinan. Yes. Mr. President, just a clarification. When we speak here of children who
do not have criminal liability under this law, we are referring here to those who currently have
criminal liability, but because of the retroactive effect of this measure, will now be exempt. It
is quite confusing.

Senator Santiago. That is correct.

Senator Pangilinan. In other words, they should be released either to their parents or through a
diversion program, Mr. President. That is my understanding.

Senator Santiago. Yes, that is correct. But there will have to be a process of sifting before that.
That is why I was proposing that they should be given to the DSWD, which will conduct the sifting
process, except that apparently, the DSWD does not have the physical facilities.

Senator Pangilinan. Mr. President, conceptually, we have no argument. We will now have to just
craft it to ensure that the input raised earlier by the good Senator is included and the capacity of
the DSWD to be able to absorb these individuals. Likewise, the issue should also be incorporated
in the amendment.

The President. Just a question from the Chair. The moment this law becomes effective, all
those children in conflict with the law, who were convicted in the present Penal Code, for
example, who will now not be subject to incarceration under this law, will be immediately
released. Is that the understanding?

Senator Pangilinan. Yes, Mr. President.

Senator Santiago. They would immediately fall under . . . .

Senator Pangilinan. The diversion requirements, Mr. President.

Senator Santiago. Yes.

The President. But since the facilities are not yet available, what will happen to them?

Senator Santiago. Well, depending on their age, which has not yet been settled . . . . . provides,
for example, for conferencing family mediation, negotiation, apologies, censure, et cetera. These
methodologies will apply. They do not necessarily have to remain in detention.

Senator Pangilinan. Yes, that is correct, Mr. President. But it will still require some sort of
infrastructure, meaning, manpower. The personnel from the DSWD will have to address the
counseling. So, there must be a transition in terms of building the capacity and absorbing those
who will benefit from this measure.

The President. Therefore, that should be specifically provided for as an amendment.

Senator Pangilinan. That is correct, Mr. President.

The President. All right. Is there any objection? [Silence] There being none, the Santiago
amendment is accepted.55
 xxxx

PIMENTEL AMENDMENTS

xxxx

Senator Pimentel.

xxxx

Now, considering that laws are normally prospective, Mr. President, in their application, I would
like to suggest to the Sponsor if he could incorporate some kind of a transitory provision
that would make this law apply also to those who might already have been convicted but
are awaiting, let us say, execution of their penalties as adults when, in fact, they are
juveniles.

Senator Pangilinan. Yes, Mr. President. We do have a provision under the Transitory
Provisions wherein we address the issue raised by the good Senator, specifically, Section
67. For example, "Upon effectivity of this Act, cases of children fifteen (15) years old and
below at the time of the commission of the crime shall immediately be dismissed and the
child shall be referred to the appropriate local social welfare and development officer." So
that would be giving retroactive effect.

Senator Pimentel. Of cases that are still to be prosecuted.

Senator Pangilinan. Yes.

Senator Pimentel. What about those that have already been prosecuted? I was trying to cite the
instance of juvenile offenders erroneously convicted as adults awaiting execution.

Senator Pangilinan. Mr. President, we are willing to include that as an additional amendment,
subject to style.

Senator Pimentel. I would certainly appreciate that because that is a reality that we have to
address, otherwise injustice will really be . . .

Senator Pangilinan. Yes, Mr. President, we would also include that as a separate provision.

The President. In other words, even after final conviction if, in fact, the offender is able to prove
that at the time of the commission of the offense he is a minor under this law, he should be given
the benefit of the law.

Senator Pimentel. Yes, Mr. President. That is correct.

Senator Pangilinan. Yes, Mr. President. We accept that proposed amendment. 56

The Court is bound to enforce this legislative intent, which is the dominant factor in interpreting a statute.
Significantly, this Court has declared in a number of cases, that intent is the soul of the law, viz.:

The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose
and intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary
rule of construction is to ascertain and give effect to the intent. The intention of the legislature in
 enacting a law is the law itself, and must be enforced when ascertained, although it may not be
consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it
leads away from the true intent and purpose of the legislature and to conclusions inconsistent
with the general purpose of the act. Intent is the spirit which gives life to

a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of
the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest
manner the apparent policy and objects of the legislature. 57

Moreover, penal laws are construed liberally in favor of the accused. 58 In this case, the plain meaning of
R.A. No. 9344's unambiguous language, coupled with clear lawmakers' intent, is most favorable to herein
petitioner. No other interpretation is justified, for the simple language of the new law itself demonstrates
the legislative intent to favor the CICL.

It bears stressing that the petitioner was only 13 years old at the time of the commission of the alleged
rape. This was duly proven by the certificate of live birth, by petitioner's own testimony, and by the
testimony of his mother. Furthermore, petitioner’s age was never assailed in any of the proceedings
before the RTC and the CA. Indubitably, petitioner, at the time of the commission of the crime, was below
15 years of age. Under R.A. No. 9344, he is exempted from criminal liability.

However, while the law exempts petitioner from criminal liability for the two (2) counts of rape committed
against AAA, Section 6 thereof expressly provides that there is no concomitant exemption from civil
liability. Accordingly, this Court sustains the ruling of the RTC, duly affirmed by the CA, that petitioner
and/or his parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the nature of
actual or compensatory damages, and is mandatory upon a conviction for rape.

The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity
awarded to the rape victim. AAA is entitled to moral damages in the amount of P50,000.00 for each count
of rape, pursuant to Article 2219 of the Civil Code, without the necessity of additional pleading or proof
other than the fact of rape. Moral damages are granted in recognition of the victim's injury necessarily
resulting from the odious crime of rape.59

A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our
children from the harshness of life and to alleviate, if not cure, the ills of the growing number of CICL and
children at risk in our country, has been enacted by Congress. However, it has not escaped us that major
concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale for the
Proposed Rule on Children Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act
of 2002, it was found that:

The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 raising the
age of criminal irresponsibility from 9 years old to 15 years old has compounded the problem of
employment of children in the drug trade several times over. Law enforcement
authorities, Barangay Kagawads and the police, most particularly, complain that drug syndicates
have become more aggressive in using children 15 years old or below as couriers or foot soldiers
in the drug trade. They claim that Republic Act No. 9344 has rendered them ineffective in the
faithful discharge of their duties in that they are proscribed from taking into custody children 15
years old or below who openly flaunt possession, use and delivery or distribution of illicit drugs,
simply because their age exempts them from criminal liability under the new law. 60

The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape,
a heinous crime committed against AAA who was only a child at the tender age of six (6) when she was
raped by the petitioner, and one who deserves the law’s greater protection. However, this consequence is
inevitable because of the language of R.A. No. 9344, the wisdom of which is not subject to review by this
Court.61 Any perception that the result reached herein appears unjust or unwise should be addressed to
Congress. Indeed, the Court has no discretion to give statutes a meaning detached from the manifest
intendment and language of the law. Our task is constitutionally confined only to applying the law and
jurisprudence to the proven facts, and we have done so in this case. 62

WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-19084 filed against
petitioner Joemar F. Ortega are hereby DISMISSED. Petitioner is hereby referred to the local social
welfare and development officer of the locality for the appropriate intervention program. Nevertheless, the
petitioner is hereby ordered to pay private complainant AAA, civil indemnity in the amount of One
Hundred Thousand Pesos (P100,000.00) and moral damages in the amount of One Hundred Thousand
Pesos (P100,000.00). No costs.

Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile Justice and
Welfare Council (JJWC).

SO ORDERED.

People v. Dungo, G.R. No. 89420, July 31, 1991

[G.R. No. 89420. July 31, 1991.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROSALINO

DUNGO, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Public Attorney’s Office for Accused-Appellant.

SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; COMPLETE DEPRIVATION OF

INTELLIGENCE; NECESSARY. — One who suffers from insanity at the time of the
commission of the offense charged cannot in a legal sense entertain a criminal intent
and cannot be held criminally responsible for his acts. His unlawful act is the product of
a mental disease or a mental defect. In order that insanity may relieve a person from
criminal responsibility, it is necessary that there be a complete deprivation of
intelligence in committing the act, that is, that the accused be deprived of cognition;
that he acts without the least discernment; that there be complete absence or
deprivation of the freedom of the will. (People v. Puno, 105 SCRA 151)

2. ID.; ID.; ID.; CRITERIA IN DETERMINING THE EXISTENCE OF INSANITY. — It is

difficult to distinguish sanity from insanity. There is no definite defined border between
sanity and insanity. Under foreign jurisdiction, there are three major criteria in
determining the existence of insanity, namely: delusion test, irresistible impulse test,
and the right and wrong test. Insane delusion is manifested by a false belief for which
there is no reasonable basis and which would be incredible under the given
circumstances to the same person if he is of compos mentis. Under the delusion test,
an insane person believes in a state of things, the existence of which no rational person
would believe. A person acts under an irresistible impulse when, by reason of duress or
mental disease, he has lost the power to choose between right and wrong, to avoid the
act in question, his free agency being at the time destroyed. Under the right and wrong
test, a person is insane when he suffers from such perverted condition of the mental
and moral faculties as to render him incapable of distinguishing between right and
wrong. (See 44 C.J.S. 2)

3. ID.; ID.;ID.; SECTION 1039 OF THE REVISED ADMINISTRATIVE CODE AS A TEST OR

CRITERION FOR INSANITY. — So far, under our jurisdiction, there has been no case
that lays down a definite test or criterion for insanity. However, We can apply as test or
criterion the definition of insanity under Section 1039 of the Revised Administrative
Code, which states that insanity is "a manifestation in language or conduct, of disease
or defect of the brain, or a more or less permanently diseased or disordered condition
of the mentality, functional or organic, and characterized by perversion, inhibition, or
by disordered function of the sensory or of the intellective faculties, or by impaired or
disordered volition." Insanity as defined above is evinced by a deranged and perverted
condition of the mental faculties which is manifested in language or conduct. An insane
person has no full and clear understanding of the nature and consequence of his act.

4. REMEDIAL LAW; EVIDENCE; INSANITY AS A DEFENSE; MAY BE SHOWN BY

SURROUNDING CIRCUMSTANCES THROWING LIGHT THEREOF. — Insanity may be
shown by surrounding circumstances fairly throwing light on the subject, such as
evidence of the alleged deranged person’s general conduct and appearance, his acts
and conduct inconsistent with his previous character and habits, his irrational acts and
beliefs, and his improvident bargains.

5. ID.; ID.; ID.; MUST HAVE REFERENCE TO THE MENTAL CONDITION OF THE PERSON
WHOSE SANITY IS IN ISSUE AT THE VERY TIME OF DOING THE ACT WHICH IS THE
SUBJECT OF INQUIRY. — Evidence of insanity must have reference to the mental
condition of the person whose sanity is in issue, at the very time of doing the act which
is the subject of inquiry. However, it is permissible to receive evidence of his mental
condition for a reasonable period both before and after the time of the act in question.
Direct testimony is not required nor the specific acts of derangement essential to
establish insanity as a defense. The vagaries of the mind can only be known by outward
acts: thereby we read the thoughts, motives and emotions of a person; and through
which we determine whether his acts conform to the practice of people of sound mind.
(People v. Bonoan, 64 Phil. 87)

6. ID.; ID.; ID.; COMPLETE DEPRIVATION OF INTELLIGENCE AT THE TIME OF THE

COMMISSION OF THE CRIME; NOT PRESENT IN CASE AT BAR. — Insanity in law exists
when there is a complete deprivation of intelligence. The statement of one of the expert
witnesses presented by the defense, Dr. Echavez, that the accused knew the nature of
what he had done makes it highly doubtful that accused was insane when he committed
the act charged. As stated by the trial court: "The Court is convinced that the accused
at the time that he perpetrated the act was sane. The evidence shows that the accused,
at the time he perpetrated the act was carrying an envelope where the fatal weapon
was hidden. This is an evidence that the accused consciously adopted a pattern to kill
the victim. The suddenness of the attack classified the killing as treacherous and
therefore murder. After the accused ran away from the scene of the incident after he
stabbed the victim several times, he was apprehended and arrested in Metro Manila, an
indication that he took flight in order to evade arrest. This to the mind of the Court is
another indicia that he was conscious and knew the consequences of his acts in
stabbing the victim." (Rollo, p. 63)

7. ID.; ID.; ID.; ID.; MUST PROVED BEYOND REASONABLE DOUBT. — The quantum of
evidence required to overthrow the presumption of sanity is proof beyond reasonable
doubt. Insanity is a defense in a confession and avoidance, and as such must be proved
beyond reasonable doubt. Insanity must be clearly and satisfactorily proved in order to
acquit an accused on the ground of insanity. Appellant has not successfully discharged
the burden of overcoming the presumption that he committed the crime as charged
freely, knowingly, and intelligently.

8. ID.; ID.; PRESUMPTION OF SANITY; BURDEN OF PROVING INSANITY RESTS ON THE

DEFENSE. — Generally, in criminal cases, every doubt is resolved in favor of the
accused. However, in the defense of insanity, doubt as to the fact of insanity should be
resolved in favor of sanity. The burden of proving the affirmative allegation of insanity
rests on the defense. Thus: "In considering the plea of insanity as a defense in a
prosecution for crime, the starting premise is that the law presumes all persons to be of
sound mind. (Art. 800, Civil Code; U.S. v. Martinez, 34 Phil. 305) Otherwise stated, the
law presumes all acts to be voluntary, and that it is improper to presume that acts were
done unconciously. (People v. Cruz, 109 Phil. 288). . . . Whoever, therefore, invokes
insanity as a defense has the burden of proving its existence. (U.S. v. Zamora, 52 Phil.
218)" (People v. Aldemita, 145 SCRA 451)

DECISION

PARAS, J.:

This is an automatic review of the Decision * of the Regional Trial Court of the Third
Judicial Region, Branch 54, Macabebe, Pampanga, convicting the accused of the crime
of murder.

The pertinent facts of the case are: chanrob1es virtual 1aw library

On March 24, 1987, the prosecuting attorney of the Province of Pampanga filed an
information charging Rosalino Dungo, the defendant-appellant herein, with the felony of
murder, committed as follows: jgc:chanrobles.com.ph

"That on or about the 16th day of March, 1987 in the Municipality of Apalit, Province of
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused ROSALINO DUNGO, armed with a knife, with deliberate intent to kill, by
means of treachery and with evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and stab Mrs. Belen Macalino Sigua with a
knife hitting her in the chest, stomach, throat and other parts of the body thereby
inflicting upon her fatal wounds which directly caused the death of said Belen Macalino
Sigua.

"All contrary to law, and with the qualifying circumstance of alevosia, evident
premeditation and the generic aggravating circumstance of disrespect towards her sex,
the crime was committed inside the field office of the Department of Agrarian Reform
where public authorities are engaged in the discharge of their duties, taking advantage
of superior strength and cruelty." (Record, p. 2)

On arraignment, Accused-appellant Rosalino Dungo pleaded not guilty to the crime

charged. Trial on the merits thereafter ensued.

The prosecution, through several witnesses, has established that on March 16, 1987
between the hours of 2:00 and 3:00 o’clock in the afternoon, a male person, identified
as the accused, went to the place where Mrs. Sigua was holding office at the
Department of Agrarian Reform, Apalit, Pampanga. After a brief talk, the accused drew
a knife from the envelope he was carrying and stabbed Mrs. Sigua several times.
Accomplishing the morbid act, he went down the staircase and out of the DAR’s office
with blood stained clothes, carrying along a bloodied bladed weapon. (TSN, pp. 4-19,
33-46, April 13, 1987; TSN, pp. 5-21, 28-38, April 20, 1987).

The autopsy report (Exh. "A") submitted by Dra. Melinda dela Cruz Cabugawan, reveals
that the victim sustained fourteen (14) wounds, five (5) of which were fatal.

Rodolfo Sigua, the husband of the deceased, testified that, sometime in the latter part
of February, 1987, the accused Rosalino Dungo inquired from him concerning the
actuations of his wife (the victim) in requiring so many documents from the accused.
Rodolfo Sigua explained to the accused the procedure in the Department of Agrarian
Reform but the latter just said "never mind, I could do it my own way." Rodolfo Sigua
further testified that his wife’s annual salary is P17,000.00, and he spent the amount of
P75,000.00 for the funeral and related expenses due to the untimely death of his wife.
(TSN, pp. 4-21, April 22, 1987).

The accused, in defense of himself, tried to show that he was insane at the time of the
commission of the offense.

The defense first presented the testimony of Andrea Dungo, the wife of the accused.
According to her, her husband had been engaged in farming up to 1982 when he went
to Lebanon for six (6) months. Later, in December 1983, her husband again left for
Saudi Arabia and worked as welder. Her husband did not finish his two-year contract
because he got sick. Upon his arrival, he underwent medical treatment. He was
confined for one week at the Macabali Clinic. Thereafter he had his monthly check-up.
Because of his sickness, he was not able to resume his farming. The couple, instead,
operated a small store which her husband used to tend. Two weeks prior to March 16,
1987, she noticed her husband to be in deep thought always; maltreating their children
when he was not used to it before; demanding another payment from his customers
even if the latter had paid; chasing any child when their children quarreled with other
children. There were also times when her husband would inform her that his feet and
head were on fire when in truth they were not. On the fateful day of March 16, 1987, at
around noon time, her husband complained to her of stomach ache; however, they did
not bother to buy medicine as he was immediately relieved of the pain therein.
Thereafter, he went back to the store. When Andrea followed him to the store, he was
no longer there. She got worried as he was not in his proper mind. She looked for him.
She returned home only when she was informed that her husband had arrived. While
on her way home, she heard from people the words "mesaksak" and "menaksak"
(translated as "stabbing’ and "has stabbed"). She saw her husband in her parents-in-
law’s house with people milling around, including the barangay officials. She
instinctively asked her husband why he did such act, but he replied, "that is the only
cure for my ailment. I have a cancer in my heart." Her husband further said that if he
would not be able to kill the victim in a number of days, he would die, and that he
chose to live longer even in jail. The testimony on the statements of her husband was
corroborated by their neighbor Thelma Santos who heard their conversation. (See TSN,
pp. 12-16, July 10, 1987). Turning to the barangay official, her husband exclaimed,
"here is my wallet, you surrender me." However, the barangay official did not bother to
get the wallet from him. That same day the accused went to Manila. (TSN, pp. 6-39,
June 10, 1981) chanroblesvirtualawlibrary

Dra. Sylvia Santiago and Dr. Nicanor Echavez of the National Center for Mental Health
testified that the accused was confined in the mental hospital, as per order of the trial
court dated August 17, 1987, on August 25, 1987. Based on the reports of their staff,
they concluded that Rosalino Dungo was psychotic or insane long before, during and
after the commission of the alleged crime and that his insanity was classified under
organic mental disorder secondary to cerebro-vascular accident or stroke. (TSN, pp. 4-
33, June 17, 1988; TSN, pp. 5-27, August 2, 1988).

Rosalino Dungo testified that he once worked in Saudi Arabia as welder. However, he
was not able to finish his two-year contract when he got sick. He had undergone
medical treatment at Macabali Clinic. However, he claimed that he was not aware of the
stabbing incident nor of the death of Mrs. Belen Sigua. He only came to know that he
was accused of the death of Mrs. Sigua when he was already in jail. (TSN, pp. 5-14,
July 15, 1988)

Rebuttal witnesses were presented by the prosecution. Dr. Vicente Balatbat testified
that the accused was his patient. He treated the accused for ailments secondary to a
stroke. While Dr. Ricardo Lim testified that the accused suffered from oclusive disease
of the brain resulting in the left side weakness. Both attending physicians concluded
that Rosalino Dungo was somehow rehabilitated after a series of medical treatment in
their clinic. Dr. Leonardo Bascara further testified that the accused is functioning at a
low level of intelligence. (TSN, pp. 620, September 1, 1988; TSN, pp. 4-29, November
7, 1988)

On January 20, 1989, the trial court rendered judgment the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, finding the accused guilty beyond reasonable doubt as principal for the
crime of murder, the Court hereby renders judgment sentencing the accused as
follows: jgc:chanrobles.com.ph

"1. To suffer the penalty of reclusion perpetua and the accessories of the law;

"2. To indemnify the family of the victim in the amount of P75,000.00 as actual
damage, P20,000.00 as exemplary damages and P30,000.00 as moral damages.

"SO ORDERED." (p. 30, Rollo).

The trial court was convinced that the accused was sane during the perpetration of the
criminal act. The act of concealing a fatal weapon indicates a conscious adoption of a
pattern to kill the victim. He was apprehended and arrested in Metro Manila which
indicates that he embarked on a flight in order to evade arrest. This to the mind of the
trial court is another indication that the accused was sane when he committed the
crime.

It is an exercise in futility to inquire into the killing itself as this is already admitted by
the defendant-appellant. The only pivotal issue before us is whether or not the accused
was insane during the commission of the crime charged.

One who suffers from insanity at the time of the commission of the offense charged
cannot in a legal sense entertain a criminal intent and cannot be held criminally
responsible for his acts. His unlawful act is the product of a mental disease or a mental
defect. In order that insanity may relieve a person from criminal responsibility, it is
necessary that there be a complete deprivation of intelligence in committing the act,
that is, that the accused be deprived of cognition; that he acts without the least
discernment; that there be complete absence or deprivation of the freedom of the will.
(People v. Puno, 105 SCRA 151)

It is difficult to distinguish sanity from insanity. There is no definite defined border

between sanity and insanity. Under foreign jurisdiction, there are three major criteria in
determining the existence of insanity, namely: delusion test, irresistible impulse test,
and the right and wrong test. Insane delusion is manifested by a false belief for which
there is no reasonable basis and which would be incredible under the given
circumstances to the same person if he is of compos mentis. Under the delusion test,
an insane person believes in a state of things, the existence of which no rational person
would believe. A person acts under an irresistible impulse when, by reason of duress or
mental disease, he has lost the power to choose between right and wrong, to avoid the
act in question, his free agency being at the time destroyed. Under the right and wrong
test, a person is insane when he suffers from such perverted condition of the mental
and moral faculties as to render him incapable of distinguishing between right and
wrong. (See 44 C.J.S. 2) cralawnad

So far, under our jurisdiction, there has been no case that lays down a definite test or
criterion for insanity. However, We can apply as test or criterion the definition of
insanity under Section 1039 of the Revised Administrative Code, which states that
insanity is "a manifestation in language or conduct, of disease or defect of the brain, or
a more or less permanently diseased or disordered condition of the mentality,
functional or organic, and characterized by perversion, inhibition, or by disordered
function of the sensory or of the intellective faculties, or by impaired or disordered
volition." Insanity as defined above is evinced by a deranged and perverted condition of
the mental faculties which is manifested in language or conduct. An insane person has
no full and clear understanding of the nature and consequence of his act.

Thus, insanity may be shown by surrounding circumstances fairly throwing light on the
subject, such as evidence of the alleged deranged person’s general conduct and
appearance, his acts and conduct inconsistent with his previous character and habits,
his irrational acts and beliefs, and his improvident bargains.
Evidence of insanity must have reference to the mental condition of the person whose
sanity is in issue, at the very time of doing the act which is the subject of inquiry.
However, it is permissible to receive evidence of his mental condition for a reasonable
period both before and after the time of the act in question. Direct testimony is not
required nor the specific acts of derangement essential to establish insanity as a
defense. The vagaries of the mind can only be known by outward acts: thereby we read
the thoughts, motives and emotions of a person; and through which we determine
whether his acts conform to the practice of people of sound mind. (People v. Bonoan,
64 Phil. 87)

In the case at bar, defense’s expert witnesses, who are doctors of the National Center
for Mental Health, concluded that the accused was suffering from psychosis or insanity
classified under organic mental disorder secondary to cerebro-vascular accident or
stroke before, during and after the commission of the crime charged. (Exhibit L, p. 4).
Accordingly, the mental illness of the accused was characterized by perceptual
disturbances manifested through impairment of judgment and impulse control,
impairment of memory and disorientation, and hearing of strange voices. The accused
allegedly suffered from psychosis which was organic. The defect of the brain, therefore,
is permanent.

Dr. Echavez, defense’s expert witness, admitted that the insanity of the accused was
permanent and did not have a period for normal thinking. To quote.

"Q Is there such a lucid intervals?

A In this case, considering the nature of the organic mental disorder, the lucid intervals
unfortunately are not present, sir.’

(TSN, p. 36, August 2, 1988)

However, Dr. Echavez disclosed that the manifestation or the symptoms of psychosis
may be treated with medication. (TSN, p. 26, August 2, 1988). Thus, although the
defect of the brain is permanent, the manifestation of insanity is curable.

Dr. Echavez further testified that the accused was suffering from psychosis since
January of 1987, thus: jgc:chanrobles.com.ph

"Q In your assessment of the patient, did you determine the length of time the patient
has been mentally ill?

A From his history, the patient started (sic) or had a stroke abroad. If I may be allowed
to scan my record, the record reveals that the patient had a stroke in Riyadh about
seven (7) months before his contract expired and he was brought home. Sometime in
January of 1987, the first manifestation is noted on the behavioral changes. He was
noted to be in deep thought, pre-occupied self, complaining of severe headache,
deferment of sleep and loss of appetite; and that was about January of 1987, Sir."
(TSN, pp. 21-22, August 2, 1988)

The defense reposed their arguments on the findings of the doctors of the National
Center for Mental Health, specifically on Dr. Echavez’s assessment that the accused has
been insane since January of 1987 or three (3) months before the commission of the
crime charged. The doctors arrived at this conclusion based on the testimonies of the
accused’s wife and relatives, and after a series of medical and psychological
examinations on the accused when he was confined therein. However, We are still in
quandary as to whether the accused was really insane or not during the commission of
the offense.

The prosecution aptly rebutted the defense proposition, that the accused, though he
may be insane, has no lucid intervals. It is an undisputed fact that a month or few
weeks prior to the commission of the crime charged the accused confronted the
husband of the victim concerning the actuations of the latter. He complained against
the various requirements being asked by the DAR office, particularly against the victim.
We quote hereunder the testimony of Atty. Rodolfo C. Sigua: jgc:chanrobles.com.ph

"Q In the latter part of February 1987 do you remember having met the accused
Rosalino Dungo?

A yes, sir.

Q Where?

A At our residence, sir, at San Vicente, Apalit, Pampanga.

Q Could you tell us what transpired in the latter part of February 1987, when you met
the accused at your residence?

A Accused went to our residence. When I asked him what he wanted, Accused told me

that he wanted to know from my wife why she was asking so many documents: why
she was requiring him to be interviewed and file the necessary documents at the Office
of the DAR. Furthermore he wanted to know why my wife did not want to transfer the
Certificate of Land Transfer of the landholding of his deceased father in his name.

x          x           x

Q When the accused informed you in the latter part of February 1987 that your wife the
late Belen Macalino Sigua was making hard for him the transfer of the right of his
father, what did you tell him?

A I asked the accused, "Have you talked or met my wife? Why are you asking this
question of me?"

Q What was his answer?

A Accused told me that he never talked nor met my wife but sent somebody to her
office to make a request for the transfer of the landholding in the name of his deceased
father in his name.

Q When you informed him about the procedure of the DAR, what was the comment of
the accused?
A The accused then said, "I now ascertained that she is making things difficult for the
transfer of the landholding in the name of my father and my name." cralaw virtua1aw library

(TSN, pp. 5-7, April 22, 1987).

If We are to believe the contention of the defense, the accused was supposed to be
mentally ill during this confrontation. However, it is not usual for an insane person to
confront a specified person who may have wronged him. Be it noted that the accused
was supposed to be suffering from impairment of the memory, We infer from this
confrontation that the accused was aware of his acts. This event proves that the
accused was not insane or if insane, his insanity admitted of lucid intervals.

The testimony of defense witness Dr. Nicanor Echavez is to the effect that the appellant
could have been aware of the nature of his act at the time he committed it. To quote: jgc:chanrobles.com.ph

"Q Could you consider a person who is undergoing trial, not necessarily the accused,
when asked by the Court the whereabouts of his lawyer he answered that his lawyer is
not yet in Court and that he is waiting for his counsel to appear and because his
counsel did not appear, he asked for the postponement of the hearing of the case and
to reset the same to another date. With those facts, do you consider him insane?

A I cannot always say that he is sane or insane, sir.

Q In other words, he may be sane and he may be insane?

A Yes, sir.

COURT

Q How about if you applied this to the accused, what will be your conclusion?

A Having examined a particular patient, in this particular case, I made a laboratory

examination, in short all the assessment necessary to test the behavior of the patient,
like for example praying for postponement and fleeing from the scene of the crime is
one situation to consider if the patient is really insane or not. If I may elaborate to
explain the situation of the accused, the nature of the illness, the violent behavior, then
he appears normal he can reason out and at the next moment he burst out into
violence regardless motivated or unmotivated. This is one of the difficulties we have
encountered in this case. When we deliberated because when we prepared this case we
have really deliberation with all the members of the medical staff so those are the
things we considered. Like for example he shouted out ‘Napatay ko si Mrs. Sigual’ at
that particular moment he was aware of what he did, he knows the criminal case.

COURT

Q With that statement of yours that he was aware when he shouted that he killed the
victim in this case, Mrs. Sigua, do we get it that he shouted those words because he
was aware when he did the act?
A The fact that he shouted, Your Honor, awareness is there." (TSN, pp. 37-41, August
2, 1983; Emphasis supplied).

Insanity in law exists when there is a complete deprivation of intelligence. The

statement of one of the expert witnesses presented by the defense, Dr. Echavez, that
the accused knew the nature of what he had done makes it highly doubtful that accused
was insane when he committed the act charged. As stated by the trial court: jgc:chanrobles.com.ph

"The Court is convinced that the accused at the time that he perpetrated the act was
same. The evidence shows that the accused, at the time he perpetrated the act was
carrying an envelope where the fatal weapon was hidden. This is an evidence that the
accused consciously adopted a pattern to kill the victim. The suddenness of the attack
classified the killing as treacherous and therefore murder. After the accused ran away
from the scene of the incident after he stabbed the victim several times, he was
apprehended and arrested in Metro Manila, an indication that he took flight in order to
evade arrest. This to the mind of the Court is another indicia that he was conscious and
knew the consequences of his acts in stabbing the victim" (Rollo, p. 63)

There is no ground to alter the trial court’s findings and appreciation of the evidence
presented. (People v. Claudio, 160 SCRA 646). The trial court had the privilege of
examining the deportment and demeanor of the witnesses and therefore, it can discern
if such witnesses were telling the truth or not.

Generally, in criminal cases, every doubt is resolved in favor of the accused. However,
in the defense of insanity, doubt as to the fact of insanity should be resolved in favor of
sanity. The burden of proving the affirmative allegation of insanity rests on the defense.
Thus:jgc:chanrobles.com.ph

"In considering the plea of insanity as a defense in a prosecution for crime, the starting
premise is that the law presumes all persons to be of sound mind. (Art. 800, Civil Code;
U.S. v. Martinez, 34 Phil. 305) Otherwise stated, the law presumes all acts to be
voluntary, and that it is improper to presume that acts were done unconsciously
(People v. Cruz, 109 Phil. 288) . . . Whoever, therefore, invokes insanity as a defense
has the burden of proving its existence. (U.S. v. Zamora, 52 Phil. 218)" (People v.
Aldemita, 145 SCRA 451)

The quantum of evidence required to overthrow the presumption of sanity is proof

beyond reasonable doubt. Insanity is a defense in a confession and avoidance, and as
such must be proved beyond reasonable doubt. Insanity must be clearly and
satisfactorily proved in order to acquit an accused on the ground of insanity. Appellant
has not successfully discharged the burden of overcoming the presumption that he
committed the crime as charged freely, knowingly, and intelligently. chanrobles virtual lawlibrary

Lastly, the State should guard against sane murderer escaping punishment through a
general plea of insanity. (People v. Bonoan, supra).

PREMISES CONSIDERED, the questioned decision is hereby AFFIRMED without costs.

SO ORDERED.
People v. Danao, G.R. No. 96832, November 19, 1992
 [G.R. No. 96832. November 19, 1992.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. TEOTIMO DANAO @

"TIMO", Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Ruben G. Silvestre for Accused-Appellant.

SYLLABUS

1. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; INSANITY; DEFINED. — The nature

of insanity may be gleaned from the definition of insane persons in Section 1039 of the
Revised Administrative Code which provides: "Insanity is a manifestation in language or
conduct of disease or defect of the brain, or a more or less permanently diseased or
disordered condition of the mentality, functional or organic, and characterized by
perversion, inhibition, or disordered function of the sensory or of the intellective
faculties, or by impaired or disordered volition." Article 800 of the Civil Code provides:
"The law presumes that every person is of sound mind, in the absence of proof to the
contrary." The allegation of insanity must be clearly proved. The law presumes all acts
to be voluntary. Not every aberration of the mind or exhibition of mental deficiency is
insanity. As held in People v. Puno (105 Phil. 15): "Insanity under Article 12 of the
Revised Penal Code means that the accused must be deprived completely of reason or
discernment and freedom of the will at the time of committing the crime (People v.
Formigones, 87 Phil. 658, 660). "Insanity exists when there is a complete deprivation of
intelligence in committing the act, that is, the accused is deprived of reason, he acts
without the least discernment because there is complete absence of the power to
discern, or there is a total deprivation of freedom of the will. Mere abnormality of the
mental faculties will not exclude imputability. (People v. Ambal, G.R. No. 52688,
October 17, 1980; People v. Renegado, L-27031, May 31, 1974, 57 SCRA 275, 286;
People v. Cruz, 109 Phil. 288, 292)."cralaw virtua1aw library

2. ID.; ID.; ID.; RULE IN THE APPRECIATION THEREOF. — When insanity is alleged as
a ground for exemption from criminal responsibility, the evidence on this point must
refer to the time preceding the act under prosecution or to the very moment of its
execution. If the evidence pointed to insanity subsequent to the commission of the
crime, the accused cannot be acquitted. He is presumed to be sane when he committed
it. The quantum of evidence required to overthrow the presumption of sanity is proof
beyond reasonable doubt. Insanity is a defense in the nature of a confession and
avoidance, and as such must be proved beyond reasonable doubt. Insanity must be
clearly and satisfactorily proved in order to acquit an accused on the ground of insanity.
In the absence of such proof, it will be presumed that the offender committed the crime
when he was sane. The presumption is in favor of sanity.

3. ID.; ID.; CREDIBILITY OF WITNESSES; CONCLUSIONS AND FINDINGS OF FACT BY

THE TRIAL COURT; RULE. — It has been repeatedly held that conclusions and findings
of fact by the trial court are entitled to great weight on appeal and should not be
disturbed unless for strong and cogent reasons because the trial court is in a better
position to examine real evidence, as well as to observe the demeanor of witnesses
while testifying in the case. The trial court had the privilege of examining the
deportment and demeanor of the witnesses and therefore, it can discern if such
witnesses were telling the truth or not.

4. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER; APPRECIATED IN CASE

AT BAR. — The mitigating circumstance of voluntary surrender however, should be
considered in favor of the appellant. His surrender to the barangay officials was
spontaneous in such manner that it shows the intent of the accused to surrender
unconditionally to the authorities, either because he acknowledges his guilt or he
wishes to save them the trouble and expense necessarily incurred in his search and
capture.

5. ID.; PENALTIES; RULE IN CASE A LAW PRESCRIBES A PENALTY COMPOSED OF TWO

INDIVISIBLE PENALTIES. — Under Article 63, par. 2 (3) of the Revised Penal Code, it
provides that in all cases in which the law prescribes a penalty composed of two
indivisible penalties, like reclusion perpetua to death, the penalty of parricide (Article
246), and there is present one (1) mitigating circumstance with no aggravating
circumstance to affect the same, the lesser penalty shall be applied, which in this case
is reclusion perpetua.

DECISION

NOCON, J.:

Forever to be etched in Teotimo Danao’s mind and soul is the gruesome killing of his
wife, upon whom he himself inflicted no less than thirty two (32) stab wounds on her
lifeless body.
cralawnad

It was about 9 to 10 o’clock in the morning of October 26, 1988, when Victorio Sunga,
brother-in-law of Ruby Guintu Danao (now deceased) arrived in his house and received
the unexpected news about the death of his sister-in-law, Ruby. He proceeded to the
house of accused-appellant which was located about fifty (50) meters away from his
residence and saw appellant by the window holding a bolo. Victorio Sunga asked herein
appellant what happened and the latter replied that he killed his wife, Ruby and by
reason of which he considers himself a criminal. 1

At about the same time, Vicente Guintu, Sr., father of the deceased was informed by
one of his grandsons, that their mother was killed by their father. He immediately
proceeded to the house of herein appellant and the latter said to him, "Come here, I
will not call you father anymore only Enteng." 2

Victorio Sunga pleaded to the appellant to surrender himself, which the latter did,
throwing two kitchen knives made of stainless steel. Subsequently, appellant came
down from the house and surrendered himself to the barangay officials. 3

The National Center for Mental Health gave a brief background history 4 on the mental
health of the accused in its report dated March 30, 1989, after the latter has killed his
wife, to wit: jgc:chanrobles.com.ph

"x       x       x.

"Sometime in 1981 he went to Saudi Arabia to work in a construction firm for two
years. When he came home in 1983 he became disappointed when he found out that
much of the money he was sending to his family have gone up in smoke due to wife
and brother-in-law’s spending spree. He confronted his wife but she told him that the
money was used for the payment of hospital bills when their youngest child got sick. He
felt bad about this but kept it to himself.

"Behavioral changes were noted sometime in 1985 after he had a misunderstanding

with his cousin when the latter threatened to harm him with a gun. He became
frightened and went into hiding for two days. Upon returning home, he was observed to
be sleepless, anxious, in deep thought and claimed of seeing a devil. He was brought to
UST hospital on March, 1986 for psychiatric treatment. Impression then was Paranoid
Disorder with Reactive Psychosis. He was given Tranquilizers and was managed as an
out patient. However, he did not come back for check-up as he was noted at home to
be asymptomatic.

"On October 26, 1988, he allegedly stabbed his wife to death with a knife due to his
jealousy. He was apprehended by police authorities and was put to jail charge with
Parricide. While in jail, oddities in behavior recurred. Because of these, he was brought
here per commitment order coming from the court for physical and mental
examination." cralaw virtua1aw library

The recommendation of the National Center for Mental Health was to treat and confine
appellant, as they found him to be "still psychotic or insane" and as such incompetent
to stand the rigors of a court trial. 5

However, five months later, specifically on August 24, 1989, a petition for release was
filed by the National Center for Mental Health as the accused had shown considerable
improvement and is now competent to stand trial. Its findings are as follows: chanrobles virtual lawlibrary

"In view of the foregoing mental and physical examinations and observations, patient
Teotimo Danao y Manansala, he was found suffering from a mental disorder called
Schizophrenia or insanity, manifestation of which have been mentioned in the previous
report rendered to the Honorable Court.

"At present, he showed considerable improvement and the Forensic Medical Staff
believes the patient is now competent to stand trial.

"It is respectfully prayed for the Honorable Court to grant us the authority to transfer
patient to his court of origin for proper disposition of his case.

"Likewise, it is recommended that patient should undergo regular monthly follow-up at

the Out Patient Service of this hospital to prevent recurrence of his mental illness." 6

The third of the ten (10) children of appellant, by the name of Maritess Danao testified
that on the morning of October 26, 1988, she got up at 5 o’clock in the morning and
was asked by her mother to buy a box of matches. When Maritess returned with the
box of matches, she noticed her father holding her second youngest sister. A few hours
later, she went to her grandparents house which is five (5) houses away from their
residence to fetch water. 7 It was at this moment when one of her brothers, Ricky
Danao, who was on the first floor of their house, noticed that his father got hold of a
bolo and went straight upstairs. Though Ricky was downstairs, he witnessed his father
stab his mother because the flooring of their house is made of bamboo slats of one (1)
inch apart. 8

When Maritess Danao was about to return to their house, she was met by Ricky Danao
who told her that their father killed their mother. On their way out of their
grandparents’ house, they were met by their other brother and sister who were all
bloodied.

As a result of this incident, appellant Teotimo Danao was charged with the crime of
Parricide before the Regional Trial Court of Macabebe, Pampanga under an Information
9 which reads: jgc:chanrobles.com.ph

"That on or about the 26th day of October, 1988 in Barangay Esteban, Municipality of
Macabebe, Province of Pampanga, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused Teotimo Danao y Manansala @ "Timo",
with intent to kill and armed with two (2) kitchen knives, did then and there willfully,
unlawfully and feloniously assault, attack and stab Ruby Guintu-Danao, his legitimate
wife, thereby inflicting upon her mortal and fatal injuries which directly caused her
death shortly thereafter.

All contrary to law." cralaw virtua1aw library

After a trial on the merits, the lower court rendered a decision 10 finding appellant
guilty beyond reasonable doubt of the crime charged, the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, finding the accused guilty as above stated, the Court hereby renders
judgment sentencing the accused as follows: chanrob1es virtual 1aw library

1. To suffer the penalty of reclusion perpetua and the accessories of the law;

2. To indemnify the heirs of the victim in the amount of P17,000.00 as compensatory

and actual damages;

3. To pay likewise the heirs of the victim the amount of P30,000.00 as moral damages;
and

4. To pay the amount of P10,000.00 as exemplary damages.

SO ORDERED." cralaw virtua1aw library

Accused-appellant interposes as his defense the exempting circumstance of insanity.

We are not convinced.

The nature of insanity may be gleaned from the definition of insane persons in Section
1039 of the Revised Administrative Code which provides: jgc:chanrobles.com.ph

"Insanity is a manifestation in language or conduct of disease or defect of the brain, or

a more or less permanently diseased or disordered condition of the mentality,
functional or organic, and characterized by perversion, inhibition, or disordered function
of the sensory or of the intellective faculties, or by impaired or disordered volition." cralaw virtua1aw library

Article 800 of the Civil Code provides: chanrobles law library : red

"The law presumes that every person is of sound mind, in the absence of proof to the
contrary." cralaw virtua1aw library

The allegation of insanity must be clearly proved. The law presumes all acts to be
voluntary. Not every aberration of the mind or exhibition of mental deficiency is
insanity.

As held in People v. Puno; 11

"Insanity under Article 12 of the Revised Penal Code means that the accused must be
deprived completely of reason or discernment and freedom of the will at the time of
committing the crime (People v. Formigones, 87 Phil. 658, 660).

"Insanity exists when there is a complete deprivation of intelligence in committing the

act, that is, the accused is deprived of reason, he acts without the least discernment
because there is complete absence of the power to discern, or there is a total
deprivation of freedom of the will. Mere abnormality of the mental faculties will not
exclude imputability. (People v. Ambal, G.R. No. 52688, October 17, 1980; People v.
Renegado, L-27031, May 31, 1974, 57 SCRA 275, 286; People v. Cruz, 109 Phil. 288,
292)."cralaw virtua1aw library

When insanity is alleged as a ground for exemption from criminal responsibility, the
evidence on this point must refer to the time preceding the act under prosecution or to
the very moment of its execution. 12 If the evidence pointed to insanity subsequent to
the commission of the crime, the accused cannot be acquitted. He is presumed to be
sane when he committed it.

The quantum of evidence required to overthrow the presumption of sanity is proof

beyond reasonable doubt. 13 Insanity is a defense in the nature of a confession and
avoidance. and as such must be proved beyond reasonable doubt.

Appellant contends that Dra. Santiago’s declaration as to his insanity was also
corroborated by the testimony of Dr. Johnevert R. Jimenez, resident physician of the
Center. As further contended, the testimonies of Dra. Santiago and Dr. Jimenez were
supported by the antecedent fact that appellant was examined for mental disorder at
the University of Sto. Tomas, Manila, prior to the commission of the crime charged as
testified to by his children, Maritess and Ricky Danao. In short, appellant submits that
he was insane, with complete absence of power to discern, and totally deprived of the
freedom of will when he committed the crime.

The foregoing contentions do not deserve merit.

As the records will show, Dr. Jimenez just made an initial examination on the mental
condition of the appellant after he was admitted at the Center. He testified: jgc:chanrobles.com.ph

"Atty. Silvestre: chanrob1es virtual 1aw library

Q. Now, Mr. Witness, in your residency at the National Center for Mental Health, do you
recall whether you treated a person by the name of Teotimo Danao?

Dr. Johnevert Jimenez: chanrob1es virtual 1aw library

A. Yes, sir, I was the initial attending physician of that patient.

Q When did you first attend to this patient by the name of Teotimo Danao?

A From the time he was admitted sometime in November 1988 until March when I
submitted my initial court report.

x          x           x

Q Mr. witness, you said that you examined the patient while he was confined at the
National Center for Mental Health, after this first endorsement which is dated March 30,
1989 recommending for further treatment, did you further examine the patient?

A No, sir, Dr. Avelina (sic) Medrano-Medina was the next attending physician of
Teotimo Danao." 14

The participation of Dra. Sylvia B. Santiago, Chief, Forensic Psychiatry Service of the
Center, was merely to indorse the "Report on the mental and physical condition of
patient Teotimo Danao y Manansala" dated March 30, 1989 (Exhibit "1-A", "1-B" and
"1-C") jointly signed by Dr. Johnevert R. Jimenez and Dr. Nicanor L. Echavez as shown
in her 1st Indorsement (Exhibit "1") which contained the following: chanrobles virtual lawlibrary

"Respectfully forwarded to the Honorable Judge, Municipal Trial Court, Masantol-

Macabebe, Masantol, Pampanga the enclosed clinical case report on the mental and
physical condition of patient TEOTIMO DANAO Y MANANSALA accused in Criminal Case
No. 88133, in compliance with the order of this Court." 15

Dra. Santiago merely indorsed the "Follow-up report on the present mental and
physical condition of patient TEOTIMO DANAO Y MANANSALA, etc." dated August 24,
1989 (Exhibit "2", "3-A", "3-B", "3-C" and "3-D") jointly signed by Dra. Adelita
Medrano-Medina and Dr. Isagani S. Gonzales as can be shown in her 1st Indorsement
of even date which also contained the following: jgc:chanrobles.com.ph

"Respectfully forwarded to the Honorable Judge, Municipal Trial Court Masantol-

Macabebe, Masantol, Pampanga the enlisted clinical case report on the mental and
physical condition of patient TEOTIMO DANAO Y MANANSALA accused in Criminal Case
No. 88133, in compliance with order of this court." 16

Clearly, Dra. Santiago did not actually examine the mental condition of the appellant
during his confinement for alleged insanity at the Center.

The testimonies of the two doctors, Dra. Sylvia Santiago and Dr. Johnevert Jimenez
seemingly were influenced by the disclosure of the appellant of his previous
consultation at the UST Hospital sometime in 1986. They did not examine the accused
before October 26, 1988, the date when he killed his wife, but after the killing. At the
UST Hospital on March, 1986, appellant was merely given tranquilizers and was treated
as an out patient. Thus. Dr. Jimenez testified as follows: jgc:chanrobles.com.ph

"Atty. Silvestre: chanrob1es virtual 1aw library

Q Now, Mr. Witness, the alleged crime took place sometime on October 26, 1988 and
based on your examination of the patient, did you find out from the patient whether
prior to that he was already sick of that ailment which is mental disorder?

Dr. Jimenez: chanrob1es virtual 1aw library

A Yes, sir. Upon interviews, the patient relates that was sometime in 1986 wherein
admissive behavior were observed that he was brought to the UST Hospital for
psychotic examination or consultation and he was given psychosis medication but he
did not come back for follow-up treatment. Then sometime in October 1988, he
allegedly stabbed his wife. So based on our findings we believed that the patient was
suffering from psychosis before, during and after the commission of the crime." 17

During cross-examination, Dr. Jimenez testified that appellant was found to have no
record of any previous admission at the National Center for Mental Health. He further
testified: jgc:chanrobles.com.ph

"Court: chanrob1es virtual 1aw library

Q Doctor, you will agree with the Court that Teotimo Danao was first admitted at the
hospital, you had no record that he was previously confined there for examination.

Dr. Jimenez: chanrob1es virtual 1aw library

A Yes, your honor.

Q You will also agree with the Court that in accordance with your examination his
control of his impulse is weak?

A Yes, your honor.

Q And he could easily overwhelm by emotions?

A Based on the mental status, yes, your honor.

Q With the agreement with the Court you will also agree that a person overwhelm by
emotions maybe sane but is only overwhelm by emotions?

A It could be a part of the symptoms, your honor. 18

It is the impression of this Court that the appellant is purporting insanity to exculpate
himself from his criminal liability.

"Fiscal Agpawa.

Q Mr. Witness, it was only after the death of your wife that you were treated at the
National Mental Hospital. Is that it?

Teotimo Danao: chanrob1es virtual 1aw library

A What I remember I was already being checked up at the UST Hospital before the
death of my wife, sir.

Q But you were only committed at the national Mental Hospital after the death of your
wife?

A I do not know, sir.

Fiscal Agpawa: chanrob1es virtual 1aw library

That is all, your Honor.

Court: chanrob1es virtual 1aw library

Q You know that you were admitted to the National mental Hospital?

A I do not know why I was brought there, sir.

Q You will admit that you were brought there?

A When I woke up I just discovered that I was at the national mental Hospital.

Q Were you interviewed there?

A Yes, sir.

Q And you answered questions?

A Yes, sir.

Q You answered the question with respect to matters you know?

A Yes, sir." 19

In the case at bar, there is no clear and convincing evidence that appellant was insane
during the commission of the crime. The fact is, prior to the commission of the crime,
appellant was engaged in fishing and was a "jueteng" collector for the last two years.
Victorio Sunga testified: jgc:chanrobles.com.ph

"Fiscal Pangilinan: chanrob1es virtual 1aw library

Q What is the name of the husband of Ruby Danao?

Victorio Sunga: chanrob1es virtual 1aw library

A Teotimo Danao, sir.

x          x           x

Q Do you know the occupation or vocation of the accused Teotimo Danao?

A Yes, sir.

Q What was his work?

A He is a fisherman ‘mamalakaya’.

Q Where does he exercise is (sic) profession or vocation?

A In the sea, sir.

Q For how long have you known the accused engaged in fishing at the sea?

A Since he got married.

Q Aside from fishing do you know if over the accused is engaged in any occupation?

A Yes, sir.

Q What kind of work was he engaged aside from fishing?

x          x           x

A He is a collector in "weteng" sir.

Q Where does he exercise that "weteng" collector?

A In San Esteban, Macabebe, Pampanga, sir.

x          x           x

Q For how long have you known him engaged in weteng collector?
A Maybe, sir, for two years already, sir. 20

Maritess Danao likewise testified: jgc:chanrobles.com.ph

"Fiscal Pangilinan: chanrob1es virtual 1aw library

Q What was the occupation or vocation of your father before October 26, 1988?

Maritess Danao: chanrob1es virtual 1aw library

A He was a jueteng bet collector, sir.

Q Of your own personal knowledge when was the last date that your father engaged in
jueteng be collecting?

A A few days before the incident my father has stopped collecting jueteng bet and
mother was the one who collected jueteng bet then.

Q How long was your father was collecting jueteng before he stopped?

A For quite a time already, sir. 21

The evidence before Us says that appellant was not insane during the commission of
the crime. Insanity must be clearly and satisfactorily proved in order to acquit an
accused on the ground of insanity. 22 In the absence of such proof, it will be presumed
that the offender committed the crime when he was sane. The presumption is in favor
of sanity. The defense must prove insanity beyond reasonable doubt. 23

It has been repeatedly held that conclusions and findings of fact by the trial court are
entitled to great weight on appeal and should not be disturbed unless for strong and
cogent reasons because the trial court is in a better position to examine real evidence,
as well as to observe the demeanor of witnesses while testifying in the case. The trial
court had the privilege of examining the deportment and demeanor of the witnesses
and therefore, it can discern if such witnesses were telling the truth or not. 24

Moreover, the state should guard against sane murderers escaping punishment through
a general plea of insanity.25 cralaw:red

The mitigating circumstance of voluntary surrender however, should be considered in

favor of the appellant. His surrender to the barangay officials 26 was spontaneous in
such manner that it shows the intent of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt or he wishes to save them the
trouble and expense necessarily incurred in his search and capture.

Under Article 63, par. 2 (3) of the Revised Penal Code, it provides that in all cases in
which the law prescribes a penalty composed of two indivisible penalties, like reclusion
perpetua to death, the penalty of parricide (Article 246), and there is present one (1)
mitigating circumstance with no aggravating circumstance to affect the same, the lesser
penalty shall be applied, which in this case is reclusion perpetua. The penalty imposed
by the trial court is correct except that the indemnity be P50,000.00. 27
WHEREFORE, the guilt of the accused-appellant Teotimo Danao having been proved
beyond reasonable doubt and there being no reversible error in the decision appealed
herefrom, the same is hereby AFFIRMED with the modification that the indemnity to be
paid by the appellant is hereby increased to P50,000.

SO ORDERED.
People v. Miraña, G.R. No. 219113, April 23, 2018

G.R. No. 219113, April 25, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROLAND MIRAÑA Y

ALCARAZ, Accused-Appellant.

DECISION

MARTIRES, J.:

On automatic review before this Court is the 7 August 2014 Decision1 rendered by the
Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 06183, which affirmed the 11 April 2013
Decision2 of the Regional Trial Court, Branch 30 (RTC), of San Jose, Camarines Sur, in
Criminal Case No. T-3231 finding accused-appellant Roland Miraña y Alcaraz (accused-
appellant) guilty beyond reasonable doubt of the crime of Murder and thereby
sentencing him to reclusion perpetua.

Accused-appellant was charged in an Information3 which reads as follows:

That on or about the 17th day of June 2008 at around 6:30 o'clock in the morning in
Barangay San Ramon, Municipality of Lagonoy, Province of Camarines Sur, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, while
armed with a bolo, with intent to kill and with abuse of superior strength, did then and
there, wilfully, unlawfully and feloniously attack, assault, stab and hack one Dominga
Agnas Vda. De Globo, a seventy-three year old woman, on the different parts of her
body, resulting [in] her death to the prejudice of her heirs.

The crime is committed with the attendant qualifying circumstance of abuse of superior
strength.

When arraigned on 21 January 2009, accused-appellant entered a plea of not guilty. In

view of accused-appellant's admission that he caused the victim's death, a reverse trial
ensued.4

Version of the Prosecution

Dominga Agnas Vda. de Globo (the victim) was a 73-year-old widow and resident of
Barangay San Ramon, Lagonoy, Camarines Sur. She was also known as "May Inggay"
by her relatives and neighbors. She lived on her own but prior to her death, she
frequently slept at the house of Alberto Miraña (Alberto), her first cousin, because
accused-appellant had been harassing her, such as by throwing stones at her. The
victim believed that accused-appellant was threatening her because she once
reprimanded him after she caught him stealing fruits from her property.5

On 16 June 2008, when Alberto returned home from attending a fiesta, he found the
victim in his house, trembling while praying. She told Alberto that she was scared
because accused-appellant had chased her with a bolo. Alberto invited her to sleep in
his house and advised her to report the incident to the barangay. The victim, however,
rejected the idea because accused-appellant was her relative. Thereafter, the victim left
Alberto's house and proceeded to her brother's house. After relating the incident to her
brother, she was once again advised not to go back to her house and to report the
incident to the barangay. Unfortunately, the victim did not heed the advice. She then
returned to her house to await the call of her son, who was working abroad.6

Between 6 o'clock to 6:30 in the morning of 17 June 2008, Armando Orce (Armando),
the victim's neighbor, was at the coconut plantation near his house when he heard a
woman cry out followed by a loud cry of a man. Believing that the sounds emanated
from his house, Armando immediately ran in that direction. As he came near his house,
he saw a woman lying on her side on the ground in front of the door to his house.
Armando recognized the woman as the victim. He also saw accused-appellant's father
crying at the back of their house facing the accused-appellant.7

PO3 Bobby Corono (PO3 Corono), together with two (2) other police officers, responded
to a call about the incident. Upon arrival at the place of the incident, PO3 Corono saw
the body of the victim lying on the ground. Accused-appellant approached PO3 Corono
and admitted he was responsible for the victim's death. He then pointed to a bolo and
said that he used it to hack the victim and washed it afterward. PO3 Corono thereafter
arrested accused-appellant and brought him to the police station along with the bolo as
evidence.8

Ramiro9 Globo10 (Ramiro), the victim's son, flew back to the Philippines when he found
out about his mother's death. He visited the mental hospital where accused-appellant
was committed. When asked what he did to Ramiro's mother, accused-appellant replied
that he killed her.

Accused-appellant was initially charged with homicide but, upon a Motion to Remand
Case to Prosecution Office for Reinvestigation, the information for homicide was
withdrawn. The Office of the Provincial Prosecutor of Camarines Sur issued a resolution
which ordered that a new information for murder be filed against accused-appellant.

On 20 June 2008, an order for the immediate transfer of the accused to the Bicol
Medical Center Mental Hospital was issued based on the report that he was being
violent to himself and to others at the jail.

Version of the Defense

In the morning of 17 June 2008, Imelda Miraña (Imelda) found out that her son,
accused-appellant, had killed the victim.
Imelda did not know of any personal enmity between accused-appellant and the victim
prior to the incident. She noticed, however, that her son started exhibiting odd behavior
after the latter's nose was bitten by a cousin. Accused-appellant would smile without
anyone in front of him; he would call a chicken late at night; and would keep on saying
to himself that the victim was a witch. After the incident, she observed that accused-
appellant just sat inside their house, staring blankly.11

A few nights before the incident, Mercy Delfino (Mercy), accused-appellant's sister,
noticed that her brother kept smiling and could not sleep, and kept on saying that the
victim was a witch. He even claimed that he saw the witch in their own backyard.12

During trial, accused-appellant claimed not to know or recal1 the events surrounding
the incident, the identity of the victim, and his confinement and treatment at the
mental hospital.13

The RTC Ruling

The RTC ruled that accused-appellant was not able to prove his defense of insanity,
holding that "while the purported behavior of accused-appellant would suggest an
abnormal mental condition, it cannot however be equated with a total deprivation of will
or an absence of the power to discern, to accept insanity." It thereafter appreciated the
aggravating circumstance of abuse of superior strength to qualify the crime to murder,
in consideration of the fact that the victim was a 73-year-old unarmed woman as
against a male assailant in his early twenties. The dispositive portion of its decision
reads as follows:

WHEREFORE, in view of all the foregoing, this Court finds accused Roland Miraña y
Alcaraz GUILTY beyond reasonable doubt of the crime of Murder under Article 248 of
the Revised Penal Code, and he is hereby sentenced to suffer the penalty of
imprisonment [sic] of Reclusion Perpetua. Likewise, accused is hereby ordered to pay
the surviving heir of the victim the amount of P75,000.00 for the civil indemnity,
P75,000.00 for moral damages, P73,397.95 as actual damages as evidenced by the
receipts, and P30,000.00 as exemplary damages.

In addition, pursuant to prevailing circumstances, interest at the rate of six percent

(6%) per annum shall be imposed on all damages awarded from the date of the finality
of the judgment until fully paid (People vs. Cabungan, G.R. No. 189355, January 23,
2013).

The accused having been under preventive imprisonment he is entitled to the full credit
of his confinement if he abide of [sic] the rules and regulations imposed therein
otherwise he shall only be entitled to four-fifth [sic] while serving under preventive
detention pending trial of this case.

Accused-appellant appealed before the CA.

The CA Ruling
The CA affirmed the conviction of the accused-appellant, with modification as to the
award of damages. The dispositive portion of its decision reads as follows:

WHEREFORE, premises considered, the instant Appeal is hereby DENIED. Accordingly,

the 11 April 2013 Judgment of the Regional Trial Court of San Jose, Camarines Sur,
Branch 30 in Criminal Case No. T-3231 is AFFIRMED with MODIFICATION. Accused-
appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for
parole. In addition to other damages awarded by the trial court. Accused-Appellant is
ordered to pay moral damages in the reduced amount of P50,000.00.

The CA agreed with the RTC that accused-appellant failed to overcome the presumption
of sanity; and his bizarre acts prior to the incident cannot be considered insanity for the
purpose of exonerating him because not every aberration of the mind constitutes
insanity.

Hence, this appeal.

ISSUE

WHETHER OR NOT INSANITY COULD BE APPRECIATED IN ACCUSED-APPELLANT'S

FAVOR IN ORDER TO EXCULPATE HIM FROM CRIMINAL LIABILITY.

THE COURT'S RULING

The Court finds no reason to disturb the judgment of the Court of Appeals in the matter
of accused-appellant's insanity, but finds that he should only be liable for homicide.

The defense failed to prove accused-appellant's insanity at the time of the commission of the
crime.

The defense of insanity is in the nature of a confession or avoidance because an

accused invoking it admits to have committed the crime but claims that he should not
be criminally liable therefor because of insanity, which is an exempting
circumstance.14 Consequently, the accused is tried on the issue of sanity alone, and if
found to be sane, a judgment of conviction is rendered without any trial on the issue of
guilt.15

However, an accused invoking the exempting circumstance of insanity bears the burden
of proving it with clear and convincing evidence16 because every person is presumed
sane.17

For the defense of insanity to prosper, it must be proven that the accused was
completely deprived of intelligence,18 which must relate to the time immediately
preceding or simultaneous to the commission of the offense with which he is charged.19

Since the state of a person's mind can only be judged by his behaviour, establishing the
insanity of an accused requires opinion testimony which may be given by a witness who
is intimately acquainted with the accused, or who has rational basis to conclude that
the accused was insane based on the witness' own perception of the accused, or who is
qualified as an expert, such as a psychiatrist.20

Taken against the standard of clear and convincing evidence, the proof proffered by the
defense fails to pass muster.

The defense argues that the exempting circumstance of insanity has been sufficiently
proven through the testimonies of Imelda and Mercy, accused-appellant's mother and
sister, respectively, as well as the testimony of Dr. Imelda C. Escuadera (Dr.
Escuadera), a psychiatrist.

Imelda and Mercy testified that accused-appellant believed that the victim was a witch
and that in the days prior to the incident, accused-appellant was behaving oddly, such
as smiling to himself and calling a chicken late at night. Their testimonies, however, fail
to shed light on accused-appellant's mental condition immediately before, during, and
immediately after he committed the crime.

Moreover, unusual behaviors such as smiling to oneself and calling a chicken late at
night are not proof of a complete absence of intelligence, because not every aberration
of the mind or mental deficiency constitutes insanity.21 The Court has held that "the
prevalent meaning of the word 'crazy' is not synonymous with the legal terms 'insane,'
'non compos mentis,' 'unsound mind,' 'idiot,' or 'lunatic.' The popular conception of the
word 'crazy' is being used to describe a person or an act unnatural or out of the
ordinary. A man may behave in a crazy manner but it does not necessarily and
conclusively prove that he is legally so."22 In order to be exempt from criminal liability,
the accused must be so insane as to be incapable of criminal intent.23

The defense also argues that Dr. Escuadera's testimony during the hearing to
determine accused-appellant's fitness to stand trial sufficiently points to his insanity at
the time he committed the crime. Dr. Escuadera testified she conducted a psychiatric
interview with accused-appellant on 21 July 2009, and that her findings, embodied in a
Mental Status Examination Report, showed she deemed accused-appellant fit for trial;
and that accused appellant had a history of mental illness, which she identified as
schizophrenia.24

At the outset, it must be pointed out that Dr. Escuadera's testimony was presented
primarily to prove that accused-appellant was already fit to stand trial. In fact, she was
not the one who conducted the initial examination on accused-appellant upon the
latter's commitment to a mental hospital. The one who did so, a Dr. Chona Belmonte
(Dr. Belmonte), was not presented as witness. More importantly, Dr. Escuadera's
testimony on accused-appellant's previous mental illness does not specifically pertain to
the time of the commission of the crime. Even her medical report on accused-
appellant's mental status, for the purpose of determining his fitness to stand trial, is
bereft of any indication that he was completely deprived of intelligence or discernment
at the time he mortally hacked the victim.

Vague references to his history of mental illness and subsequent diagnosis of

schizophrenia do not satisfy the quantum of proof required to exempt accused-
appellant from criminal liability, especially since the defense failed to establish that
accused-appellant's mental ailments, if such was the case, related to the time of the
commission of the crime.

Accused-appellant's actuations immediately after the incident also negate a complete

absence of intelligence or discernment when he killed the victim. As testified to by PO3
Corono, accused-appellant approached the police officers when they arrived at the
crime scene, told them that he was responsible for hacking the victim, pointed to the
bolo he used, and indicated that he had already washed the weapon.25 That accused-
appellant had the foresight to wash the bolo after killing the victim and, thereafter, the
consciousness to decide to confess to the authorities what he had done upon their
arrival, suggest that accused-appellant was capable of discernment during the time of
the incident.

It is clear from the foregoing circumstances that the defense failed to prove accused-
appellant's insanity at the time of the commission of the crime with the requisite
quantum of proof. Consequently, accused-appellant's conviction must be upheld.

Abuse of superior strength cannot be appreciated, such that accused-appellant can only be
held liable for homicide, not murder.

This Court finds that the conviction of the accused-appellant for murder is flawed
because of the erroneous appreciation of abuse of superior strength as a qualifying
circumstance. The Court finds that the presence of this circumstance in the commission
of the crime was not sufficiently proven.

In concluding that such circumstance existed, both the RTC and the CA primarily took
into account the gender and age of the victim, a 73-year old female, and the accused-
appellant, a male in his early twenties. The Court finds that this is insufficient to
conclude the presence of abuse of superior strength.

It has been stressed that for abuse of superior strength to be properly appreciated as a
qualifying circumstance, it must be shown that the advantage of superior strength was
purposely and consciously sought by the assailant, viz:

Abuse of superior strength is present whenever there is a notorious inequality of forces

between the victim and the aggressor, assuming a situation of superiority of strength
notoriously advantageous for the aggressor selected or taken advantage of by him in
the commission of the crime. The fact that there were two persons who attacked the
victim does not per se establish that the crime was committed with abuse of superior
strength, there being no proof of the relative strength of the aggressors and the
victims. The evidence must establish that the assailants purposely sought the
advantage, or that thev had the deliberate intent to use this advantage. To
take advantage of superior strength means to purposely use excessive force
out of proportion to the means of defense available to the person attacked.
The appreciation of the aggravating circumstance depends on the age, size,
and strength of the parties.26 (emphasis supplied)

In the present case, the prosecution failed to proffer evidence that accused-appellant
purposely sought such advantage. The testimonies of the witnesses, on the whole, do
not establish that accused-appellant made any conscious effort to use his age, size, or
strength to facilitate the commission of the crime, as in fact the notorious disparity of
these factors between the victim and the accused-appellant was not even clearly
shown.

What is only certain herein is that the accused-appellant killed the victim, and the
exempting circumstance of insanity cannot be appreciated in his favor.

In the light of the foregoing, this Court is obliged to rule out abuse of superior strength
as a qualifying circumstance. There being no other circumstance alleged and proven to
qualify the crime to murder, accused-appellant can only be liable for homicide.

As to the award of damages, there is also a need to modify the same, in conformity
with People v. Jugueta,27 where the Court laid down the rule that in crimes where the
death of the victim resulted and the penalty is divisible, such as in homicide, the
damages awarded should be P50,000.00 as civil indemnity and P50,000.00 as moral
damages. This is apart from the proven actual damages, which the trial court found to
amount to P73,397.95 undisputed by accused-appellant.

WHEREFORE, the 7 August 2014 Decision of the Court of Appeals in CA-G.R. CR.-H.C.
No. 06183 is AFFIRMED with MODIFICATION in that accused-appellant Roland
Miraña y Alcaraz is found GUILTY beyond reasonable doubt of the crime of Homicide
under Article 249 of the Revised Penal Code, as amended; and is hereby sentenced to
serve the indeterminate penalty of eight (8) years of prision mayor, as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as
maximum.

Further, accused-appellant is ordered to pay the heirs of the victim the following
amounts: P50,000.00 as moral damages, and P73,397.95 as actual damages. The
award of damages shall earn interest at the rate of six percent (6%) per annum from
the date of finality of the judgment until fully paid.

SO ORDERED.

People v. Chua, G.R. No. 149538, July 26, 2004 - Minority privileged mitigating circumstance – effects.

G.R. No. 149538             July 26, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
VINCENT HENRY CHUA, appellant.

DECISION
CALLEJO, SR., J.:

Alegria Marie Antonette L. Luciano filed a petition with the Regional Trial Court in Angeles City,
Pampanga for the confinement of her son, appellant Vincent Henry Chua, in a drug rehabilitation
center for drug dependents. On May 20, 1994, the trial court issued an Order granting the petition
and ordering the confinement of the dependent at the Gabay Diwa Drug Rehabilitation Center in
Angeles City. However, on June 18, 1994, the appellant escaped from the center. The trial court,
1 

thereafter, issued an Order recommitting him to the center on June 24, 1994, but he again escaped.
2 

On August 24, 1994, Magalang, Pampanga celebrated its town fiesta and there was a carnival in
Barangay San Nicolas II, Magalang. A closed structure called "Wall of Danger" was constructed
3 

inside the carnival grounds where stunts were performed. The operator of the carnival, Alfonso
4 

Verances, had a tent inside the grounds where he and the following helpers slept: Francis Ryan
Manabat, who was about twelve years old, Rodelio Santos, Michael (Vandolph) Santiago, Romeo
Ignacio (Verances) and Jun Estanislao. Danilo Bondoc, who was then about eleven years old, would
go to the carnival grounds and would even run errands for the helpers.

At about 1:00 a.m. on August 28, 1994, Manabat was awakened when he heard a woman shouting,
"Magnanakaw! Magnanakaw!" Santiago, Ignacio and Estanislao were also roused from their sleep.
They asked who the robber was and the woman replied that the culprit was a boy. Santiago,
Estanislao and Ignacio found Bondoc hiding in the ticket booth. They tied his feet and hands with a
rope and forced him to confess, but Bondoc did not relent.

Momentarily, the appellant arrived and brought Bondoc to a covered structure where he was kept
hanging from the top of the ladder. He placed a live electric wire on Bondoc’s palms and forced the
latter to confess to stealing from the woman. The boy still refused to confess. The appellant untied
Bondoc and brought him to a booth where darts are thrown at balloons. He then ordered Ignacio,
Santiago and Estanislao to guard Bondoc. The appellant then got a shovel and dug a knee-deep pit
near the wall of their house which abutted the carnival grounds. Bondoc was able to flee, but
stepped on a G.I. sheet which created noise. The appellant ran after him and brought the boy back
to the covered structure. The appellant then repeatedly boxed the boy and hit the latter with a piece
of wood (dos por dos) on the neck and jaw. Bondoc fell, barely conscious.

Santos, who by then, had also been awakened by the commotion, saw the appellant hitting Bondoc
with the piece of wood. The appellant then brought the boy to the pit and buried him alive. The
appellant then ordered Manabat, Ignacio, Santiago, Estanislao and Santos to disperse, and warned
them not to divulge the incident to anyone; otherwise, they would be his next victim. The five helpers
went back to sleep.

In the meantime, on August 29, 1994, the RTC issued an Order for the recommitment of the
appellant to the rehabilitation center. A warrant for his arrest for robbery was also issued by the RTC
5 

in "People vs. Henry Chua," Criminal Case No. 94-08-58. 6

On September 1, 1994, Ignacio reported the death of Bondoc, at the hands of the appellant, to Jun
Sia, a radio commentator and a reporter of the Central Luzon Times, and the latter’s co-worker,
Bernie Chavit. He also reported the killing to the policemen of Police Station No. 1 in Angeles City.
Sia, Chavit and SPO2 Celso de Castro and some policemen of the Magalang police station rushed
to the carnival grounds and had the cadaver of Bondoc exhumed. Photographs of the exhumation
and the cadaver were taken. The policemen then arrested the appellant and brought him to the
7 

police station where Ignacio gave a sworn statement to SPO4 Leonardo C. de Leon identifying and
pointing to the appellant as the assailant.
8
Dr. Suzette Yalung, the Municipal Health Officer, performed an autopsy of the cadaver of Bondoc
and signed her Report containing her findings, viz:

GENERAL APPEARANCE: Body in a state of decomposition.

HEENT: Caved-in fracture of (L) fronto-parietal area of the skull, caved-in fracture of left
lower jaw (+) 6-inch curvilinear abrasion, (longitudinal) on (L) anterior neck, (+) fracture of
cervical vertebrae.

CHEST/ABDOMEN: (+) discoloration & bloaching (sic) all over, body in a state of
decomposition.

EXTREMITIES: No fracture, all extremities in flexed position.

CAUSE OF DEATH: Cardio-respiratory arrest due to asphyxiation and severe hemorrhage

[Fracture of cervical vertebrae, (L) lower jaw & (L) fronto-parietal area of the skull.]
9

On September 8, 1994, an Information was filed with the Regional Trial Court of Pampanga, Branch
57, charging Chua with murder. The accusatory portion of the Information reads:

That on or about the 28th day of August 1994, in Brgy. San Nicolas II, Municipality of
Magalang, Province of Pampanga, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, qualified by treachery, abuse of superior
strength and cruelty, did then and there, willfully, unlawfully and feloniously assault, attack,
box and hit with a piece of wood, a 12-year-old minor Danilo Bondoc y Ponay, without
justifiable reason therefor and as a result of the continuous assault on the person of Danilo
Bondoc y Ponay by the accused, said Danilo Bondoc y Ponay sustained fatal and serious
physical injuries all over his body and accused, thereafter, threw the body of said Danilo
Bondoc y Ponay into a hole dug by the accused and covered the same, resulting to the
death of said Danilo Bondoc y Ponay shortly thereafter, to the damage and prejudice of the
heirs of Danilo Bondoc y Ponay.

Contrary to law. 10

The appellant, assisted by counsel, was duly arraigned and entered a plea of not guilty.

The Case for the Appellant

The appellant admitted to being at the scene of the crime, but claimed that Bondoc’s assailants were
Ignacio, Santiago and Estanislao. He testified that at about past midnight of August 28, 1994, he
was in the office of the manager at the carnival grounds at Marves Subdivision, where he and his
parents and the Chief of Police of Magalang, resided. He was playing tongking with the helpers of
the carnival. He left for a while and when he returned, saw his cousin, Jomar Basa, and Romeo
Ignacio, inside the covered structure talking about Bondoc who was hanging at the top of the ladder.
He wanted the boy released, but Ignacio refused and assured him that nothing would happen to the
boy. Ignacio tied up Bondoc and brought him to the "dart balloon" booth. Ignacio also kicked Bondoc
and ordered Santiago and Estanislao to tie up Bondoc. Santiago and Estanislao did as they were
told, and forced him to lie down on his stomach. When he remonstrated to Ignacio, the latter went
out to the covered structure and took a .45 caliber gun. Ignacio warned him not to interfere with the
carnival helpers. He told Santiago to give biscuits to the boy, but Estanislao objected and even
warned him that he was a police officer.
The appellant then left, hearing Bondoc’s cries as he walked away. When he returned to the place,
he saw the boy being kicked on his feet and palms by Estanislao and Santiago. He asked that
Bondoc be released, but his request went unheeded. On orders of Ignacio, Estanislao got a shovel,
and dug a hole with Santiago’s help, while Ignacio watched over Bondoc. Bondoc was able to run
away, but stepped on a G.I. sheet which created noise and alerted the three. Ignacio, Santiago and
Estanislao ran after the boy, collared him and brought him to the covered structure where he was
electrocuted by Ignacio with a wire that Santiago produced. The appellant protested to this, but
Ignacio told him that even if he protested, he would still be implicated anyway.

By this time, the commotion had attracted several bystanders, male and female. Ignacio covered
Bondoc’s mouth with a handkerchief which was supplied by Santiago. The boy was then brought to
a hole where Ignacio hit him with a piece of wood. Bondoc fell into the hole, whereupon Ignacio
buried him. On orders of Ignacio, Santiago and Estanislao placed garbage on top of the boy’s grave.
Ignacio warned the appellant that if he revealed the incident to others, he would be implicated. The
appellant then went home and slept. He was awakened by his uncle, Jerry Luciano, who told him
that policemen were looking for him. He was brought to the police station where he was detained
and charged for the death of Bondoc.

Jomar Basa corroborated, in part, the appellant’s testimony, but testified that the helpers in the
carnival grounds, aside from Ignacio, Santiago and Estanislao, as well as Darwin David and Oliver
Santos, witnessed the crime. He also saw Bondoc being tied and kicked. He asked Ignacio to turn
over custody of Bondoc to him, but Ignacio refused. He left the carnival grounds along with Santos
and David. When they returned, they saw Lovely Ignacio, Romeo Ignacio’s wife, and asked where
the boy’s body was, and the latter replied that Bondoc had gone home already.

The appellant presented Rodolfo La Madrid, Geoffrey Alegre, Oliver Santos, Macario Paulino,
Jocelyn Roberto and Rufino Ang, to corroborate his testimony and fortify his defense.

After trial, the court rendered judgment convicting the appellant of the crime charged. The court
declared that the appellant was a minor when the crime was committed; hence, was entitled to the
privileged mitigating circumstance of minority under Article 68 of the Revised Penal Code. The
decretal portion of the decision reads:

WHEREFORE, finding the accused Vincent Henry Chua guilty beyond reasonable doubt of
the crime of Murder, the Court hereby sentences him to suffer the penalty of 17 YEARS, 4
MONTHS and 1 DAY OF RECLUSION TEMPORAL, as minimum, to RECLUSION
PERPETUA, as maximum, with full credit of his preventive imprisonment.

As to the civil liability, the accused will indemnify the family of the victim as follows:

a. Actual damages in the amount of FIFTY THOUSAND PESOS (P50,000.00);

b. Moral damages in the amount of FIFTY THOUSAND PESOS (P50,000.00);

c. Exemplary damages under Art. 2230 of the Civil Code of an appropriate amount of
TWENTY THOUSAND PESOS (P20,000.00); and

d. Attorney’s fees in the amount of FIFTEEN THOUSAND PESOS (P15,000.00). 11

On appeal, the Court of Appeals rendered judgment affirming the judgment of the trial court, but
applied Article 63 of the Revised Penal Code and increased the penalty to reclusion perpetua. The
appellate court considered the minority of the appellant merely as a generic mitigating circumstance,
and concluded that such minority could not be considered a generic and a privileged mitigating
circumstance at the same time. The appellate court certified the case to this Court for review,
conformably to Rule 124, Section 13 of the Revised Rules of Criminal Procedure.

The Present Appeal

The appellant did not file any supplemental brief with this Court; neither did the appellee.

In his brief with the Court of Appeals, the appellant averred as follows:

THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THERE WAS A
COVER-UP DONE BY THE POLICE AUTHORITIES OF MAGALANG, PAMPANGA, AS TO
THE REAL IDENTITIES OF THE CULPRITS.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE VERSION OF THE
PROSECUTION AS TO THE ALLEGED INCIDENT IS REPLETE WITH IMPROBABILITIES
AND CONTRARY TO HUMAN EXPERIENCE.

III

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION

EYEWITNESSES ARE ACTUATED WITH BAD MOTIVE IN IMPLICATING THE ACCUSED-
APPELLANT AS THE PERPETRATOR OF THE CRIME AND IN NOT DISCREDITING THE
EYEWITNESSES OF THE COMMISSION OF THE CRIME.

IV

THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF DEFENSE

WITNESS RODOLFO LA MADRID.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE

CRIME OF MURDER.

VI

THE TRIAL COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE

OF VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED-APPELLANT.

VII

THE COURT A QUO ERRED IN ORDERING THE ACCUSED-APPELLANT TO

PAY P50,000.00 AS ACTUAL DAMAGES, P50,000.00 AS MORAL DAMAGES, P20,000.00
AS EXEMPLARY DAMAGES AND P15,000.00 AS ATTORNEY’S FEES. 12
The appellant asserts that the testimonies of Manabat and Sia are incredible. He contends that he
was only seventeen years old when the crime was committed and, as such, he could not have
committed the crime alone. He insists that there must have been others who assisted him in
electrocuting the victim and in digging a knee-deep hole in which the victim was buried. He laments
that the trial court even ignored the fact that Ignacio was convicted of carnapping.
13

The appellant also avers that he could not have committed the crime in the presence of onlookers,
and in a place which was only a few meters away from the police station. The appellant claims that
police officers Remigio Layug and Leonardo C. de Leon "covered-up" the investigation because
despite reports that Ignacio, Santiago and Estanislao were involved in the crime, they were not
investigated nor included in the charge of murder against the appellant. The police officers were
even administratively sanctioned for their misconduct.

The appellant contends that the claims of Manabat and Santos, that they refrained from reporting the
crime because they were afraid of the appellant, are incredible. He avers that the prosecution
presented Manabat and Sia as surrebuttal witnesses when Ignacio and Estanislao failed to appear
during the preliminary investigation in the Municipal Trial Court and during the trial in the RTC.
Manabat’s testimony that he was from Barangay Camias, San Miguel, Bulacan, was belied by
Barangay Captain Macario Paulino and his certification that Manabat and his family were not
residents of the said barangay.

The Ruling of the Court

The contention of the appellant has no merit.

First. The trial court gave credence and full probative weight to the testimony of the prosecution
witnesses, Manabat and Santos, viz:

The revelation of Manabat and Santos were confirmed by Dr. Suzette Yalung, the one who
made the autopsy on the cadaver of victim Danilo Bondoc, who testified that the cause of
death of the victim was cardio-respiratory arrest and asphyxiation, severe hemorrhage,
fracture of cervical vertebrae and left lower jaw and fracture on the left parietal area of the
skull, the very injuries testified to by Manabat and Santos were the ones found by Dr. Yalung
on the body of the victim confirming the authenticity of the former’s testimony.

The evidence also disclosed that victim Danilo Bondoc was tortured by the accused when he
ran a 110-voltage electric wire in the palm and feet of the victim and that the victim was also
mauled causing severe hemorrhage in his body.

Viewing the entire testimony of the witnesses for the prosecution, the Court finds the same to
be consistent and corroborated one another, leading this Court to believe the same.

The Court also noted that Francis Ryan Manabat and Rodelito Santos did not waver but
stood pat during their cross-examinations.

The Court did not find any motive for Manabat and Santos to pinpoint the accused as the
culprit. There is no animosity nor bad blood between Manabat and Santos, on one hand, and
the accused, on the other hand. In fact, Manabat and Santos are afraid of the accused
because Vincent Henry Chua is a "siga" and "matapang" as per testimony of Rodelito Santos
considering the fact that the family of the accused is the owner of the lot where
the peryahan is located. 14
The Court of Appeals affirmed the findings of the trial court. The well-settled rule is that the findings
of facts of the trial court, especially when affirmed by the Court of Appeals, are conclusive on this
Court unless the trial court ignored, overlooked or misconstrued facts and circumstances which if
considered warrants a revision or reversal of the outcome of the case. We have reviewed the
15 

records and find no justification to deviate from the trial court’s findings.

Second. The appellant failed to prove with clear and convincing evidence the physical impossibility
of digging a knee-deep hole in the ground alone, with the use of a shovel. There is no evidence that
the soil where the appellant dug was hard or even strong. At such a youthful age of seventeen
years, the appellant had the physical strength and stamina to dig a knee-deep hole all by himself.

Third. It is futile for the appellant to argue that it was unnatural of him to have committed the crime in
full view of onlookers. Crimes are known to have been brazenly committed by perpetrators
undeterred by the presence of onlookers or even of peace officers, completely impervious of the
inevitability of criminal prosecution and conviction. In this case, the appellant was a drug dependent,
an escapee from the rehabilitation center and had an outstanding warrant for his arrest for robbery,
and an Order for his recommitment to a rehabilitation center.

The appellant’s bare denials cannot prevail over the positive, straightforward and unwavering
identification made by Santos and Manabat, that the appellant was the sole perpetrator of the crime.
Thus, we agree with the findings and disquisitions of the Court of Appeals, viz:

Accused-appellant further denies having inflicted any injuries on the victim. He claims it was
impossible for him to beat the boy to death and at the same time dig the small grave where
the victim’s body was buried.

The evidence on record does not refute in any manner the capability of the accused to
commit such acts of violence. On the contrary, appellant’s destructive behavior does not run
counter to his psychological profile brought about by his drug dependency at the time of the
incident. The record shows that accused-appellant’s own mother Ma. Antoinette L. Luciano
had filed with the Regional Trial Court in Angeles City, a petition for the voluntary
commitment of the accused-appellant in a drug rehabilitation center. …

However, accused-appellant escaped from the Gabay Diwa Rehabilitation Center, thereby
causing Ronald P. Balatbat, a psychologist of the said center, to recommend to the Angeles
City Regional Trial Court the recommitment of accused-appellant. Acting on said
recommendation, said court in its Order dated June 24, 1994, ordered the recommitment of
accused-appellant for continuous treatment. But, again, accused escaped for the second
time, thereby giving rise to another Recommitment Order dated August 29, 1994. …

Clearly, on the day of the fatal incident, accused-appellant was a second-time escapee from
the drug dependency rehabilitation program he was sentenced to undergo. This is indicative
of accused-appellant’s unwillingness to be rehabilitated from his dependency to drugs.
Undoubtedly, accused-appellant’s drug dependency was responsible for his violent behavior
towards the victim.
 Accused-appellant’s drug dependency and troublesome behavior was no surprise to the
"peryahan" workers. They were aware that the carnival grounds belonged to the family of
accused-appellant who resides some fifty (50) meters away from the "peryahan." The
proximity of the carnival grounds to the house of accused-appellant made it easy for him to
frequent the place during daytime and nighttime as well. The "peryahan" workers observed
accused-appellant as one that displayed a behavior characterized by them as a "bully" or
"siga." Accused-appellant’s drug dependency, reputation and influence deterred the
"peryahan" workers, who were mere transients in Magalang, from intervening while accused-
appellant was committing the crime. This was further bolstered when accused-appellant,
who, after burying the victim, threatened the "peryahan" workers with harm if they would
report what had just transpired to the police authorities. This explains why prosecution
witnesses Romeo Ignacio and Jaime Estanislao were reluctant in divulging any information
relative to the fatal incident while they were still in Magalang, and why they waited until they
were relocated to Angeles before going to the police authorities to report the incident.

Prosecution witnesses Francisco Manabat and Rodelito Santos have positively identified
accused-appellant as the one who inflicted upon the young victim such bodily harm.
Manabat vividly recounted the entire incident from the time the victim was apprehended by
the "peryahan" boys at the instance of a woman vendor to the time the accused-appellant
took custody of the victim and started beating him which led to his untimely death. Santos
who witnessed the accused-appellant struck and hit the victim with a piece of wood on the
neck and jaw, causing the victim to fall down, materially corroborated this. The rule is the
detailed testimony of a witness in a murder or homicide case acquires greater weight and
credibility if it corresponds with the autopsy report.
16

Fourth. The appellant is not entitled to an acquittal simply because the police investigators did not
include Ignacio, Santiago and Estanislao in their investigation, nor charge them, in tandem with the
petitioner, for the death of Bondoc. The evidence on record shows that the involvement of Ignacio,
Santiago and Estanislao was confined only to the tying of Bondoc’s hands and feet, on suspicion for
robbery. When the appellant arrived at the scene, he took sole charge, tortured the victim and buried
him alive. The policemen found no basis for charging the other helpers for the death of the victim. In
fine, the appellant cannot invoke as basis for his acquittal the minor and inconsequential involvement
of the helpers. We affirm the findings and disquisitions of the Court of Appeals on this matter, viz:

Anent the first assignment of error, appellant contends that the trial court erred when it totally
disregarded and ignored the March 15, 1995 Decision of the Regional Director of the
Philippine National Police Command III (PNP RECOM 3) in the administrative case filed by
the appellant’s mother, Ma. Antoinette Luciano, against P/Insp. Romeo Layug and SPO4
Leonardo de Leon of the Magalang Police Station, wherein it found as haphazard and
irregular the investigation conducted by the aforementioned officers involving the death of
Danilo Bondoc.

We do not subscribe to accused-appellant’s urgings. Precisely, in due course of this case,

accused-appellant had moved for a reinvestigation in order "to determine who are the real
culprits who killed the 12-yr.-old boy," which the trial court granted without objection from the
prosecution. During the reinvestigation, the statements of the accused-appellant, together
with those of his witnesses, namely, Joemar (sic) Basa and Oliver Santos, were all re-
evaluated. Thereafter, 1st Assistant Provincial Prosecutor Jesus Y. Manarang stood pat on
his finding that a prima facie case for murder exists only with respect to accused-appellant,
and recommended that the Information dated September 2, 1994 filed against the accused
ought to be maintained. 17
Fifth. The credibility of the testimonies of Manabat and Santos and the probative weight thereof were
not affected by their failure to report the terrifying crime they witnessed, nor by the prosecution’s
failure to present Ignacio as witness. As the Court of Appeals declared:

The facts reveal that the "peryahan" workers were the only witnesses who positively
identified the accused-appellant as the one responsible for inflicting the fatal wounds on the
victim. The notorious behavior and influential family background of the accused-appellant
were among the reasons, which prevented these witnesses from reporting the incident to the
police authorities in Magalang. Since they were all transients, they opted to keep their
silence until they were able to transfer to Angeles City where the authorities there were
informed of the incident. SPO2 Celso de Castro of the Angeles Police even testified that
when the case was to be turned over to the Magalang Police, Romeo Ignacio was afraid of
accompanying them to the Magalang police station. On the other hand, reporter Jun Sia of
the Central Luzon Times testified that when he asked Romeo Ignacio why he reported the
incident to the Angeles Police instead of the Magalang Police, the latter replied that accused-
appellant was influential in Magalang, Pampanga.

What is more apparent is the fact that Romeo Ignacio and Jaime Estanislao were so afraid to
appear at the preliminary investigation after having identified accused-appellant and given
their respective statements on September 1, 1994. Nevertheless, the prosecution was able
to present other witnesses in the persons of Francis Manabat and Rodelito Santos who
initially refused to testify against the accused-appellant because they too were afraid of him.
Then again, the two finally changed their minds and thereafter testified as a consequence of
their desire to give justice to the victim.

A witness’ unwillingness to volunteer information regarding a particular crime due to fear of

reprisal is common enough that it has been judicially declared as not affecting a witness’
credibility. Neither substantive nor procedural law requires any person witnessing a crime to
immediately report the matter to the proper authorities or to give his statement thereon.
Furthermore, the delay in reporting what a witness knows about a crime does not by itself
render his testimony unworthy of belief if such delay has been adequately explained. It has,
likewise, been held that a witness’ failure to volunteer information to law enforcement officers
does not necessarily impair a witness’ credibility, and part of the reason for this is the
reticence and fear of some people of getting involved in a criminal case.

Accused-appellant asserts that the trial court’s acquiescence of both the testimonies of
Francis Manabat and Rodelito Santos which it later found credible as against that of defense
witness Rodolfo La Madrid’s rejected testimony was unfair since both testimonies were
belatedly given.

The threats to the lives of Francis Manabat and Rodelito Santos were apparent because
their "kubols" were constructed on the land owned by the family of the accused-appellant
whose place of residence was just a few meters away from the fence of the carnival grounds.
On the other hand, Rodolfo La Madrid was not actually threatened by anyone from testifying,
not even Romeo Ignacio, who, less than a week after the incident, left for Angeles City with
his other fellow "peryahan" workers. By reason thereof, this Court agrees with the lower court
when it found no cogent reason to give credibility to the belated testimony of Rodolfo La
Madrid.

This Court finds no credence in accused-appellant’s argument that witnesses Francis

Manabat and Rodelito Santos, who are related in some manner with Jaime Estanislao and
Romeo Ignacio, were actuated by improper motive in testifying against appellant.
 It would be very difficult to accept the averment of the defense that prosecution witnesses
Francisco Manabat and Rodelito Santos, who were only 14 and 19 years old, respectively,
when they testified, maliciously pointed to accused-appellant as the perpetrator of such a
serious crime. Being of tender age, these two could not have survived a gruelling direct and
cross-examination without being detected or exposed, had they decided to use their
imagination in trying to render a detailed account of a murder. Not only did their testimonies
stand the ultimate test of cross-examination but were also in consonance with the other
evidence of the prosecution. It has been repeatedly held that when the issue is one of
credibility of witnesses, appellate courts will generally not disturb the findings of the trial
court. It is clear that the two had no other motive but to render justice to the victim and that of
his family.
18

In sum, we find the decision of the Court of Appeals finding the appellant guilty beyond reasonable
doubt for the death of Danilo Bondoc to be in accord with the evidence on record and current
jurisprudence.

The trial court convicted the appellant of murder without stating the qualifying circumstance
attendant to the crime. The trial court also appreciated in favor of the appellant the mitigating
circumstance of voluntary surrender and considered such minority as a mere mitigating
circumstance. We shall then modify the decision of the trial court and the appellate court.

The crime was qualified by treachery. The victim, who was barely thirteen years old, was helpless
and unable to defend himself. His feet and hands were tied while the appellant mauled and kicked
him, and hit him with a piece of wood. The appellant was so depraved that he even electrocuted the
19 

victim by placing a live wire on the latter’s palms and burying him alive. This is borne by the autopsy
report of Dr. Suzette Yalung, which indicates that the victim died because of cardiac arrest due to
asphyxiation. By his detestable acts, the appellant intended to exacerbate the suffering of the victim.
Hence, cruelty was attendant to the commission of the crime. However, cruelty is absorbed by
20 

treachery.

The trial court and appellate court also erred in appreciating the mitigating circumstance of voluntary
surrender in favor of the appellant. He was arrested by the policemen not only for his involvement in
the killing of the victim but also because of the warrant for his arrest for robbery, and the
recommitment order issued by the RTC for escaping from the rehabilitation center.

The appellate court erred, likewise, in appreciating the minority of the appellant merely as a generic
mitigating circumstance. While under Article 13, paragraph 2 of the Revised Penal Code, minority is
a mitigating circumstance, this provision must be construed in relation to Article 68 thereof, which
21 

provides that minority is a privileged mitigating circumstance warranting the reduction of the
imposable penalty by one or two degrees, depending upon the age of the accused. The minority of
the accused is not merely a generic mitigating circumstance but is a privileged mitigating
circumstance. Furthermore, in determining the penalty to be meted on the accused, the trial court
must first consider any modifying circumstance attendant to the crime.

In this case, the appellant was seventeen years old when he committed the crime. Hence, the
imposable penalty must be reduced by one degree, conformably to Article 68 of the Revised Penal
Code. The imposable penalty for murder is reclusion perpetua to death under Article 248 of the
Revised Penal Code, as amended by Republic Act No. 7659. One degree lower than reclusion
perpetua to death is reclusion temporal, conformably to paragraph 2, Article 61, in relation to Article
22 

25 of the Revised Penal Code.

To determine the minimum of the indeterminate penalty, reclusion temporal should be reduced by
one degree, prision mayor, which has a range of from six (6) years and one (1) day to twelve (12)
years. There being no modifying circumstances attendant to the crime, the maximum of the
indeterminate penalty should be imposed in its medium period. The minimum of the indeterminate
penalty should be taken from the full range of prision mayor.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision of the
Court of Appeals affirming the Decision of the Regional Trial Court of Angeles City, Pampanga,
Branch 57, convicting the appellant Vincent Henry Chua of murder under Article 248 of the Revised
Penal Code, as amended by Rep. Act No. 7659, is AFFIRMED with MODIFICATIONS. Taking into
account the minority of the appellant and the absence of any other modifying circumstance attendant
to the crime, he is sentenced to suffer an indeterminate penalty of from ten (10) years and one (1)
day of prision mayor in its maximum period, as minimum, to fifteen (15) years of reclusion
temporal in its medium period, as maximum. The appellant is ORDERED to pay the heirs of the
victim, Danilo Bondoc, Fifty Thousand Pesos (P50,000) as civil indemnity; Fifty Thousand Pesos
(P50,000) as moral damages; and Twenty Five Thousand Pesos (P25,000) as exemplary
damages, conformably to current jurisprudence. No costs.
23 

SO ORDERED.

People v. Arpon, G.R. No. 183563, December 14, 2011

G.R. No. 183563               December 14, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HENRY ARPON y JUNTILLA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

Assailed before Us is the Decision1 of the Court of Appeals dated February 8, 2008 in CA-G.R. CR.-
H.C. No. 00560, which affirmed with modification the Decision 2 dated September 9, 2002 of the
Regional Trial Court (RTC) of Tacloban City, Branch 7, in Criminal Case Nos. 2001-01-46 to 2001-
01-53, finding the accused-appellant Henry Arpon y Juntilla guilty beyond reasonable doubt of one
(1) count of statutory rape and seven (7) counts of rape against the private complainant AAA. 3

On December 29, 1999, the accused-appellant was charged 4 with eight (8) counts of rape in
separate informations, the accusatory portions of which state:

Criminal Case No. 2000-01-46

That sometime in the year 1995 in the municipality of [XXX], Province of Leyte, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, who is the uncle of [AAA], the
offended party, actuated by lust, did, then and there, willfully, unlawfully and feloniously, succeed in
having carnal knowledge of the said [AAA], who was then only eight (8) years old, without her
consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 5
 Criminal Case No. 2000-01-47

That sometime in the month of July, 1999 in the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of
[AAA], the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully
and feloniously, and with the use of force and violence succeed in having carnal knowledge of the
said [AAA], without her consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 6

Criminal Case No. 2000-01-48

That sometime in the month July 1999 in the municipality of [XXX], Province of Leyte, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of [AAA],
the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in having carnal knowledge of the said
[AAA], without her consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 7

Criminal Case No. 2000-01-49

That sometime in the month of July, 1999 in the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of
[AAA], the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully
and feloniously, and with the use of force and violence succeed in having carnal knowledge of the
said [AAA], without her consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 8

Criminal Case No. 2000-01-50

That sometime in the month of July, 1999 in the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of
[AAA], the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully
and feloniously, and with the use of force and violence succeed in having carnal knowledge of the
said [AAA], without her consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 9

Criminal Case No. 2000-01-51

That sometime in the month of July, 1999 in the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of
[AAA], the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully
and feloniously, and with the use of force and violence succeed in having carnal knowledge of the
said [AAA], without her consent and against her will.
Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 10

Criminal Case No. 2000-01-52

That sometime in the month of August, 1999 in the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of
[AAA], the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully
and feloniously, and with the use of force and violence succeed in having carnal knowledge of the
said [AAA], without her consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 11

Criminal Case No. 2000-01-47

That sometime in the month of August, 1999 in the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is the uncle of
[AAA], the twelve-year-old offended party, actuated by lust, did, then and there, willfully, unlawfully
and feloniously, and with the use of force and violence succeed in having carnal knowledge of the
said [AAA], without her consent and against her will.

Contrary to law with the aggravating circumstance that the victim is under eighteen (18) years of age
and the offender is a relative by consanguinity within the third civil degree. 12 (Emphases ours.)

During the arraignment of the accused-appellant on November 28, 2000, he entered a plea of not
guilty.13 On March 13, 2001, the pre-trial conference of the cases was conducted and the parties
stipulated on the identity of the accused-appellant in all the cases, the minority of the victim and the
fact that the accused appellant is the uncle of the victim. 14

The pre-trial order containing the foregoing stipulations was signed by the accused and his counsel.
The cases were then heard on consolidated trial.

The prosecution presented the lone testimony of AAA to prove the charges against the accused-
appellant. AAA testified that she was born on November 1, 1987. 15 In one afternoon when she was
only eight years old, she stated that the accused-appellant raped her inside their house. She could
not remember, though, the exact month and date of the incident. The accused-appellant stripped off
her shorts, panties and shirt and went on top of her. He had his clothes on and only pulled down his
zipper. He then pulled out his organ, put it in her vagina and did the pumping motion. AAA felt pain
but she did not know if his organ penetrated her vagina. When he pulled out his organ, she did not
see any blood. She did so only when she urinated. 16

AAA also testified that the accused-appellant raped her again in July 1999 for five times on different
nights. The accused-appellant was then drinking alcohol with BBB, the stepfather of AAA, in the
house of AAA’s neighbor. He came to AAA’s house, took off her panty and went on top of her. She
could not see what he was wearing as it was nighttime. He made her hold his penis then he left.
When asked again how the accused-appellant raped her for five nights in July of the said year, AAA
narrated that he pulled down her panty, went on top of her and pumped. She felt pain as he put his
penis into her vagina. Every time she urinated, thereafter, she felt pain. AAA said that she
recognized the accused-appellant as her assailant since it was a moonlit night and their window was
only covered by cloth. He entered through the kitchen as the door therein was detached. 17
AAA further related that the accused-appellant raped her again twice in August 1999 at nighttime.
He kissed her and then he took off his shirt, went on top of her and pumped. She felt pain in her
vagina and in her chest because he was heavy. She did not know if his penis penetrated her vagina.
She related that the accused-appellant was her uncle as he was the brother of her mother. AAA said
that she did not tell anybody about the rapes because the accused-appellant threatened to kill her
mother if she did. She only filed a complaint when he proceeded to also rape her younger sister,
DDD.18

After the testimony of AAA, the prosecution formally offered its documentary evidence, consisting of:
(1) Exhibit A - the Medico-Legal Report, 19 which contained the results of the medical examination
conducted on AAA by Dr. Rommel Capungcol and Dr. Melissa Adel Gagala on October 26, 1999;
and (2) Exhibit B - the Social Case Study Report 20 pertaining to AAA’s case, which was issued by the
Municipal Social Welfare and Development Office of the Province of Leyte.

The Medico-Legal Report stated the following findings:

P. E. Findings: Surg. Findings:

- (-) Physical injuries.

OB- NOTES:

- Patient came in with history of rape since 8 year old for so many times. last act was March
1999.

O: Pelvic Exam:

Ext. Genetalia – grossly normal.

Introitus: Old, healed incomplete laceration at 3 & 9 o’clock position

Speculum Exam: not done due to resistance.

Internal Exam:

Vaginal smear for presence of spermatozoa: = NEGATIVE21

Upon the other hand, the defense called the accused-appellant to the witness stand to deny the
informations filed against him and to refute the testimony of AAA. He testified that when the first
incident of rape allegedly happened in 1995, he was only 13 years old as he was born on February
23, 1982. In 1995, he worked in Sagkahan, Tacloban City as a houseboy for a certain Gloria Salazar
and he stayed there up to 1996. He stated that he was working in Tacloban City when the alleged
rapes happened in the municipality of XXX. When he would go home from Tacloban, he would stay
at the house of a certain Fred Antoni. He did not go to the house of AAA as the latter’s parents were
his enemies. He said that he had a quarrel with AAA’s parents because he did not work with them in
the ricefields. He further recounted that in July 1999, he was also living in Tacloban City and worked
there as a dishwasher at a restaurant. He worked there from 1998 up to September 1999. The
accused-appellant likewise stated that in August 1999, he was still working at the same restaurant in
Tacloban City. While working there, he did not go home to XXX as he was busy with work. He
denied that he would have drinking sprees with AAA’s stepfather, BBB, because they were
enemies.22
On cross-examination, the accused-appellant admitted that the mother of AAA was his sister and
they were close to each other. He said that his parents were still alive in 1995 up to October 1999
and the latter then resided at Calaasan, Alangalang, Leyte. He indicated that his parents’ house was
about two kilometers away from the house of AAA. While he was working at the restaurant in
Tacloban City, he would visit his parents once every month, mainly on Sundays. 23

The Judgment of the RTC

On September 9, 2002, the RTC of Tacloban City, Branch 7, rendered a Decision convicting the
accused-appellant as follows:

WHEREFORE, premises considered, pursuant to Art. 266-A and 266-B of the Revised Penal Code
as amended, and further amended by R.A. 8353 (Rape Law of 1997) and R.A. 7659 (Death Penalty
Law) the Court found accused HENRY ARPON, GUILTY beyond reasonable doubt of ONE COUNT
OF STATUTORY RAPE and SEVEN COUNTS OF RAPE charged under the informations and
sentenced to suffer the maximum penalty of DEATH, and to indemnify the victim, [AAA] the amount
of Fifty Thousand (₱50,000.00) Pesos for each count of Rape and pay moral damages in the
amount of Fifty Thousand (₱50,000.00) Pesos and pay the cost.24 (Emphases in the original.)

The court a quo found more credible the testimony of AAA. The fact that AAA was in tears when she
testified convinced the trial court of the truthfulness of her rape charges against the accused-
appellant. If there were inconsistencies in AAA’s testimony, the trial court deemed the same
understandable considering that AAA was pitted against a learned opposing counsel. The delay in
the reporting of the rape incidents was not also an indication that the charges were fabricated.
Moreover, the trial court ruled that the findings of the medico-legal officer confirmed that she was
indeed raped. The accused-appellant’s defense of alibi was likewise disregarded by the trial court,
declaring that it was not physically impossible for him to be present in XXX at any time of the day
after working hours while he was working in Tacloban City. The trial court stated that the accused-
appellant was positively identified by AAA as the person who sexually abused her and she held no
grudge against him. The trial court imposed the penalty of death as it found that AAA was less than
18 years old at the time of the commission of the rape incidents and the accused-appellant was her
uncle, a relative by consanguinity within the third civil degree. The trial court also appreciated
against the accused-appellant the aggravating circumstances of abuse of confidence and nighttime.

The accused-appellant filed a Motion for Reconsideration 25 of the RTC Decision, asserting that the
trial court failed to consider his minority as a privileged mitigating circumstance. As stated in his
direct examination, the accused-appellant claimed that he was born on February 23, 1982, such that
he was only 13 and 17 years old when the incidents of rape allegedly occurred in 1995 and 1999,
respectively. In a Resolution26 dated November 6, 2002, the trial court denied the accused-
appellant’s motion, holding that the latter failed to substantiate with clear and convincing evidence
his allegation of minority.

The cases were elevated to the Court on automatic review and were docketed as G.R. Nos. 165201-
08.27 The parties then filed their respective briefs.28 On February 7, 2006, we resolved29 to transfer
the cases to the Court of Appeals pursuant to our ruling in People v. Mateo.30 The cases were
docketed in the appellate court as CA-G.R. CR.-H.C. No. 00560.

The Decision of the Court of Appeals

On February 8, 2008, the Court of Appeals promulgated its assailed decision, decreeing thus:
WHEREFORE, the Decision dated September 9, 2002 of the Regional Trial Court, Branch 7,
Tacloban City in Criminal Case Nos. 2001-01-46 to 2001-01-53 is AFFIRMED with modification
awarding exemplary damages to [AAA] in the amount of Twenty[-]Five Thousand (₱25,000.00)
Pesos for each count of rape and clarification that the separate award of Fifty Thousand
(₱50,000.00) Pesos as moral damages likewise pertains to each count of rape. The death penalty
imposed is reduced to reclusion perpetua in accord with Rep. Act No. 9346.31

The Court of Appeals adjudged that the inconsistencies pointed out by the accused-appellant in the
testimony of AAA were not sufficient to discredit her. The appellate court held that the exact age of
AAA when the incidents of rape occurred no longer mattered, as she was still a minor at the time.
More significant was her "straightforward, categorical and candid testimony" that she was raped
eight times by the accused-appellant. The Court of Appeals also agreed with the ruling of the RTC
that AAA’s charges of rape conformed with the physical evidence and the accused-appellant’s
uncorroborated defense of alibi could not stand against the positive identification made by AAA.

As regards the attendant circumstances, the Court of Appeals ruled that the relationship of the
accused-appellant to AAA was both alleged in the informations and admitted by the accused-
appellant. The appellate court, however, differed in appreciating against the accused-appellant the
qualifying circumstance of AAA’s minority. The lone testimony of AAA on the said circumstance was
held to be an insufficient proof therefor. The aggravating circumstance of nighttime was also ruled to
be inapplicable as it was not shown that the same was purposely sought by the accused-appellant or
that it facilitated the commission of the crimes of rape. In view of the presence of the qualifying
circumstance of relationship, the Court of Appeals awarded exemplary damages in favor of AAA.

The accused-appellant filed a Notice of Appeal32 of the above decision and the same was given due
course by the Court of Appeals in a Resolution33 dated May 27, 2008.

On November 17, 2008, the Court resolved to accept the appeal and required the parties to file their
respective supplemental briefs, if they so desire, within 30 days from notice. 34 Thereafter, in a
Manifestation and Motion35 filed on December 24, 2008, the plaintiff-appellee, through the Office of
the Solicitor General, prayed that it be excused from filing a supplemental brief. On February 3,
2009, the accused-appellant submitted a Supplemental Brief. 36

The Issues

In the accused-appellant’s brief, the following issues were invoked:

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE

CRIMES CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE
INCREDIBLE AND INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT.

III

THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH. 37
The accused-appellant insists that it was error on the part of the RTC to give weight to the incredible
testimony of AAA. He alleges that AAA could not state with consistency the exact date when she
was first supposedly raped, as well as her age at that time. The accused-appellant also avers that
AAA could not remember the dates of the other incidents of rape charged, all of which were
allegedly described in a uniform manner. Contrary to the judgment of the Court of Appeals, the
accused-appellant posits that the above inconsistencies cannot merely be discounted as
insignificant. He further insists that the qualifying circumstances of AAA’s minority and her
relationship to the accused-appellant were not duly proven by the prosecution. The accused-
appellant, thus, prays for a judgment of acquittal.

The Ruling of the Court

After a careful examination of the records of this case, the Court resolves to deny the appeal, but
with a modification of the penalties and the amount of indemnities awarded.

To recall, the RTC and the Court of Appeals found the accused-appellant guilty of one (1) count of
statutory rape and seven (7) counts of qualified rape.

Under the information in Criminal Case No. 2000-01-46, the first incident of rape was alleged to have
occurred in 1995 when AAA was only eight years old. However, the accused-appellant points out
that the prosecution failed to substantiate the said fact as AAA’s testimony thereon was too
inconsistent and incredible to be worthy of any belief. He explains that AAA initially claimed that she
was raped for the first time when she was eight years old. Nonetheless, during her testimony
regarding the incidents of rape that occurred in July 1999, she said that the accused did the same
thing that he did to her when she was only seven years old. On her redirect examination, AAA then
stated that she was first raped in 1998 when she was eleven (11) years old.

Presently, Article 266-A of the Revised Penal Code defines the crime of rape by sexual intercourse
as follows:

ART. 266-A. Rape, When and How Committed. – Rape is committed –

1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a. Through force, threat or intimidation;

b. When the offended party is deprived of reason or is otherwise unconscious;

c. By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.

In particular, "Article 266-A(1)(d) spells out the definition of the crime of statutory rape, the elements
of which are: (1) that the offender had carnal knowledge of a woman; and (2) that such a woman is
under twelve (12) years of age or is demented."38

The above provision came into existence by virtue of Republic Act No. 8353, 39 or the Anti-Rape Law
of 1997, which took effect on October 22, 1997. 40 Prior to this date, the crime of rape was penalized
under Article 335 of the Revised Penal Code,41 which provides:
ART. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

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

3. When the woman is under twelve years of age or is demented.

In People v. Macafe,42 we explained the concept of statutory rape under Article 335 of the Revised
Penal Code in this wise:

Rape under paragraph 3 of [Article 335] is termed statutory rape as it departs from the usual modes
of committing rape. What the law punishes in statutory rape is carnal knowledge of a woman
below twelve years old. Hence, force and intimidation are immaterial; the only subject of
inquiry is the age of the woman and whether carnal knowledge took place. The law presumes
that the victim does not and cannot have a will of her own on account of her tender years; the child's
consent is immaterial because of her presumed incapacity to discern evil from good. 43 (Emphasis
ours.)

Manifestly, the elements of statutory rape in the above-mentioned provisions of law are essentially
the same. Thus, whether the first incident of rape charged in this case did occur in 1995, i.e., before
the amendment of Article 335 of the Revised Penal Code, or in 1998, after the effectivity of the Anti-
Rape Law of 1997, the prosecution has the burden to establish the fact of carnal knowledge and the
age of AAA at the time of the commission of the rape.

Contrary to the posturing of the accused-appellant, "the date of the commission of the rape is not an
essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a
woman."44 "Inconsistencies and discrepancies in details which are irrelevant to the elements of the
crime are not grounds for acquittal."45

As regards the first incident of rape, the RTC credited with veracity the substance of AAA’s
testimony. On this matter, we reiterate our ruling in People v. Condes46 that:

Time and again, the Court has held that when the decision hinges on the credibility of witnesses and
their respective testimonies, the trial court's observations and conclusions deserve great respect and
are often accorded finality. The trial judge has the advantage of observing the witness' deportment
and manner of testifying. Her "furtive glance, blush of conscious shame, hesitation, flippant or
sneering tone, calmness, sigh, or the scant or full realization of an oath" are all useful aids for an
accurate determination of a witness' honesty and sincerity. The trial judge, therefore, can better
determine if witnesses are telling the truth, being in the ideal position to weigh conflicting
testimonies. Unless certain facts of substance and value were overlooked which, if considered,
might affect the result of the case, its assessment must be respected for it had the opportunity to
observe the conduct and demeanor of the witnesses while testifying and detect if they were lying.
The rule finds an even more stringent application where said findings are sustained by the [Court of
Appeals].47

In the instant case, we have thoroughly scrutinized the testimony of AAA and we found no cogent
reason to disturb the finding of the RTC that the accused-appellant indeed committed the first
incident of rape charged. AAA positively identified the accused-appellant as the perpetrator of the
dastardly crimes. With tears in her eyes, she clearly and straightforwardly narrated the said incident
of rape as follows:

[PROSECUTOR EDGAR SABARRE]

Q: Do you recall of any unusual incident that happened when you were still 8 years old?

[AAA]

A: There was but I cannot anymore remember the exact month and date.

Q: Just tell what happened to you when you were still 8 years old?

A: I was raped by Tiyo Henry.

Q: How did he rape you?

A: He stripped me of my panty, shorts and shirts.

Q: Do you remember what place did he rape you?

A: Yes, sir in our house.

Q: Who were the persons present then at that time?

A: My younger brother and I.

Q: About your mother and step father where were they?

A: In the ricefield.

PROS. SABARRE:

May we make it of record that the witness is crying.

COURT:

Have it on record.

PROS. SABARRE:

Q: Do you still recall was it in the morning, in the afternoon or evening?

A: In the afternoon.

xxxx

Q: After your clothes and [panty] were taken off by accused what did he do to you next if any?
A: He went on top of me.

Q: Was he still with his clothes on or already naked?

A: He has still clothes on, he did not take off his pants, he only pulled down the zipper.

Q: And when he pulled down the zipper and went on top of you what did he do next if any?

A: He was pumping on me.

Q: Did he pull out his organ?

A: Yes, sir.

Q: And where did he place his organ?

A: In my vagina.

Q: When he kept on pumping what did you feel?

A: Pain.48

The above testimony of AAA was also corroborated by the Medico-Legal Report of Dr. Capungcol
and Dr. Gagala, who found "old, healed, incomplete" hymenal lacerations on the private part of AAA.
"[W]hen the testimony of a rape victim is consistent with the medical findings, there is sufficient basis
to conclude that there has been carnal knowledge." 49

Anent the five incidents of rape that were alleged to have been committed in July 1999, the Court
disagrees with the ruling of the trial court that all five counts were proven with moral certainty. The
testimony of AAA on the said incidents is as follows:

Q: How many times did [the accused-appellant] rape you in July 1999?

A: Five times.

Q: Was it in the daytime or night time?

A: Night time.

Q: Was it in different nights or on the same night?

A: Different nights.

Q: Who were present then at that time when he raped you five times?

A: My Kuya and other siblings.

Q: You have companions why were you raped?

A: Because they were sleeping.

Q: How did he rape you on that July night for five times, will you please narrate to the court?

A: Because they have been drinking, he came to our house, pulled out my panty and went on top of
me.

Q: With whom was he drinking?

A: With my step father.

Q: Where did they drink?

A: In our neighbor.

Q: When he took off your shorts and panty what was the accused wearing at that time?

A: I do not know because I could not see since it was night time.

Q: When he was on top of [you] was he still wearing something?

A: No, sir.

Q: What did he do with his penis?

A: He made me hold it.

Q: Then after he made you hold it what did he do with it?

A: He left.

xxxx

ATTY. SABARRE:

Q: You said you were raped on that July evening for five nights how did he rape you?

A: (witness did not answer)

PROS. SABARRE:

Make it of record that the witness is crying again.

Q: Why are you crying?

A: I am angry and hurt.

PROS. SABARRE:

Your honor please may I be allowed to suspend the proceeding considering that the witness is
psychologically incapable of further proceeding.
xxxx

Q: I have asked you how did the accused rape you will you please narrate the whole incident to this
honorable court?

A: The same that he did when I was 8 years old, he went on top of me.

Q: What was the same thing you are talking about?

A: He pulled down my panty and went on top of me and pump.

Q: When he pump what did you feel?

A: Pain.

COURT:

Why did you feel pain?

A: He placed his penis inside my vagina, everytime I urinate I feel pain.

ATTY. SABARRE;

How did you recognize that it was Henry Arpon when it was night time?

A: It was a moonlight night and our window was only covered by cloth as cover. 50

From the above testimony, AAA merely described a single incident of rape. She made no reference
whatsoever to the other four instances of rape that were likewise supposedly committed in the month
of July 1999.

The same is also true for the two (2) counts of rape allegedly committed in August 1999. AAA
narrated only one incident of rape in this manner:

Q: How many times did [the accused-appellant] rape you in the month of August 1999?

A: Two times.

Q: Was it during day time or night time?

A: Nighttime.

Q: How did he rape you again that August 1999?

A: He kissed me.

Q: After kissing you what did he do next?

A: He took off his shirts.

Q: After he took off his shirts what happened?

A: He went on top of me and pump.

Q: When he made a pumping motion on top of you what did you feel?

A: My vagina was painful and also my chest because he was heavy.

Q: Why did you feel pain in your vagina?

A: Because he was raping me.

Q: Did his penis penetrate your vagina?

A: I do not know.

Q: If this Henry Arpon is present now in court could you recognize him?

A: Yes, sir.

Q: Where is he?

A: That man (witness pointing a detention prisoner when asked his name answered Henry Arpon). 51

"It is settled that each and every charge of rape is a separate and distinct crime that the law requires
to be proven beyond reasonable doubt. The prosecution's evidence must pass the exacting test of
moral certainty that the law demands to satisfy the burden of overcoming the appellant's
presumption of innocence."52 Thus, including the first incident of rape, the testimony of AAA was only
able to establish three instances when the accused-appellant had carnal knowledge of her.

The allegation of the accused-appellant that the testimony of AAA described the incidents of rape in
a uniform manner does not convince this Court. To our mind, AAA’s narration of the sexual abuses
committed by the accused-appellant contained an adequate recital of the evidentiary facts
constituting the crime of rape, i.e., that he placed his organ in her private part.53 "Etched in our
jurisprudence is the doctrine that a victim of a savage crime cannot be expected to mechanically
retain and then give an accurate account of every lurid detail of a frightening experience — a verity
born[e] out of human nature and experience."54

We uphold the ruling of the RTC that the accused-appellant’s defense of alibi deserves scant
consideration. "Alibi is an inherently weak defense because it is easy to fabricate and highly
unreliable. To merit approbation, the accused must adduce clear and convincing evidence that he
was in a place other than the situs criminis at the time the crime was committed, such that it was
physically impossible for him to have been at the scene of the crime when it was
committed."55 "[S]ince alibi is a weak defense for being easily fabricated, it cannot prevail over and is
worthless in the face of the positive identification by a credible witness that an accused perpetrated
the crime."56

In the instant case, we quote with approval the findings of fact of the trial court that:

The distance of [XXX] to Tacloban City is just a few kilometers and can be negotiated by passenger
bus in less than one (1) hour, hence, it is not impossible for the accused to be present in [XXX] at
any time of the day after working hours while working in Tacloban. Besides, the accused has his day
off every Sunday, which according to him he spent in [XXX], Leyte.

The accused was positively identified by the victim as the person who sexually molested her
beginning that afternoon of 1995, and subsequently thereafter in the coming years up to August
1999. She can not be mistaken on the identity of the accused, because the first sexual molestation
happened during the daytime, besides, she is familiar with him being her uncle, the brother of her
mother.57

Furthermore, the Court rejects the contention of the accused-appellant that AAA may have been
prompted to falsely testify against him (accused-appellant) in view of the latter’s quarrel with AAA’s
parents when he refused to work with them in the rice fields. 58 Aside from being uncorroborated, we
find the same specious and implausible. "Where the charges against the appellant involve a heinous
offense, a minor disagreement, even if true, does not amount to a sufficient justification for dragging
a young girl's honor to a merciless public scrutiny that a rape trial brings in its wake." 59
1avvphi1

As to the accused-appellant’s objection that there was no proof of the age of the victim, we affirm the
trial court’s finding that the prosecution sufficiently established the age of AAA when the incidents of
rape were committed. The testimony of AAA that she was born on November 1, 1987, 60 the voluntary
stipulation of the accused, with assistance of counsel, regarding the minority of the victim during pre-
trial and his testimony regarding his recollection of the age of the victim, 61 his own niece, all militate
against accused-appellant’s theory. In People v. Pruna, 62 the Court established the guidelines in
appreciating age, either as an element of the crime or as a qualifying circumstance, as follows:

1. The best evidence to prove the age of the offended party is an original or certified true
copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to
prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a
member of the family either by affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved
is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved
is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved
is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim's mother or relatives concerning the victim's age, the complainant's testimony will
suffice provided that it is expressly and clearly admitted by the accused.
 5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be taken
against him. (Emphases ours.)

Notably, in its Decision, the trial court observed that at the time she took the witness stand (when
she was 14 years old), the victim, as to her body and facial features, was indeed a minor. 63

That the carnal knowledge in this case was committed through force, threat or intimidation need no
longer be belabored upon. "[I]n rape committed by close kin, such as the victim’s father, step-father,
uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation
be employed. Moral influence or ascendancy takes the place of violence and intimidation." 64

Penalties

On the penalties imposable in the instant case, the former Article 335 of the Revised Penal Code, as
amended, punishes the crime of rape with reclusion perpetua. The sixth paragraph thereof also
provides that:

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common law-spouse of the parent of the victim. (Emphases ours.)

Similarly, the present Article 266-B of the Revised Penal Code relevantly recites:

ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common law spouse of the parent of the victim. (Emphases ours.)

The Court finds that the circumstances of minority and relationship qualify the three (3) counts of
rape committed by the accused-appellant. "As a special qualifying circumstance of the crime of rape,
the concurrence of the victim’s minority and her relationship to the accused must be both alleged
and proven beyond reasonable doubt." 65 In the instant case, the informations alleged that AAA was
less than eighteen (18) years of age when the incidents of rape occurred and the accused-appellant
is her uncle, a relative by consanguinity within the third civil degree. The said circumstances were
also admitted by the accused-appellant during the pre-trial conference of the case and again
admitted by him during his testimony.66

In People v. Pepito,67 the Court explained that "[t]he purpose of entering into a stipulation or
admission of facts is to expedite trial and to relieve the parties and the court, as well, of the costs of
proving facts which will not be disputed on trial and the truth of which can be ascertained by
reasonable inquiry. These admissions during the pre-trial conference are worthy of credit. Being
mandatory in nature, the admissions made by appellant therein must be given weight."
Consequently, for the first incident of rape, regardless of whether the same occurred in 1995 or in
1998, the imposition of the death penalty is warranted. For the second and third counts of rape, the
imposable penalty is also death.

Nonetheless, a reduction of the above penalty is in order.

The RTC and the Court of Appeals failed to consider in favor of the accused-appellant the privileged
mitigating circumstance of minority. Although this matter was not among the issues raised before the
Court, we still take cognizance of the same in accordance with the settled rule that "[i]n a criminal
case, an appeal throws open the entire case wide open for review, and the appellate court can
correct errors, though unassigned, that may be found in the appealed judgment." 68

Pertinently, the first paragraph of Section 7 of Republic Act No. 9344, otherwise known as the
"Juvenile Justice and Welfare Act of 2006," provides for the rule on how to determine the age of a
child in conflict with the law,69 viz:

SEC. 7. Determination of Age. — The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be
eighteen (18) years of age or older. The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor.

Furthermore, in Sierra v. People, 70 we clarified that, in the past, the Court deemed sufficient the
testimonial evidence regarding the minority and age of the accused provided the following conditions
concur, namely: "(1) the absence of any other satisfactory evidence such as the birth certificate,
baptismal certificate, or similar documents that would prove the date of birth of the accused; (2) the
presence of testimony from accused and/or a relative on the age and minority of the accused at the
time of the complained incident without any objection on the part of the prosecution; and (3) lack of
any contrary evidence showing that the accused's and/or his relatives' testimonies are untrue." 71

In the instant case, the accused-appellant testified that he was born on February 23, 1982 and that
he was only 13 years old when the first incident of rape allegedly happened in 1995. 72 Other than his
testimony, no other evidence was presented to prove the date of his birth. However, the records of
this case show neither any objection to the said testimony on the part of the prosecution, nor any
contrary evidence to dispute the same. Thus, the RTC and the Court of Appeals should have
appreciated the accused-appellant’s minority in ascertaining the appropriate penalty.

Although the acts of rape in this case were committed before Republic Act No. 9344 took effect on
May 20, 2006, the said law is still applicable given that Section 68 thereof expressly states:

SEC. 68. Children Who Have Been Convicted and are Serving Sentences. — Persons who have
been convicted and are serving sentence at the time of the effectivity of this Act, and who were
below the age of eighteen (18) years at the time of the commission of the offense for which they
were convicted and are serving sentence, shall likewise benefit from the retroactive application of
this Act. They shall be entitled to appropriate dispositions provided under this Act and their
sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified
under this Act or other applicable law.
People v. Sarcia73 further stressed that "[w]ith more reason, the Act should apply to [a] case wherein
the conviction by the lower court is still under review."

Thus, in the matter of assigning criminal responsibility, Section 6 of Republic Act No. 9344 is explicit
in providing that:

SEC. 6. Minimum Age of Criminal Responsibility. — A child fifteen (15) years of age or under at the
time of the commission of the offense shall be exempt from criminal liability. However, the child shall
be subjected to an intervention program pursuant to Section 20 of the Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability,
which shall be enforced in accordance with existing laws. (Emphases ours.)

As held in Sierra, the above provision effectively modified the minimum age limit of criminal
irresponsibility in paragraphs 2 and 3 of the Revised Penal Code, as amended, 74 "i.e., from ‘under
nine years of age’ and ‘above nine years of age and under fifteen’ (who acted without discernment) -
to ‘fifteen years old or under’ and ‘above fifteen but below 18’ (who acted without discernment) in
determining exemption from criminal liability." 75

Accordingly, for the first count of rape, which in the information in Criminal Case No. 2000-01-46 was
allegedly committed in 1995, the testimony of the accused-appellant sufficiently established that he
was only 13 years old at that time. In view of the failure of the prosecution to prove the exact date
and year of the first incident of rape, i.e., whether the same occurred in 1995 or in 1998 as
previously discussed, any doubt therein "should be resolved in favor of the accused, it being more
beneficial to the latter."76 The Court, thus, exempts the accused-appellant from criminal liability for
the first count of rape pursuant to the first paragraph of Section 6 of Republic Act No. 9344. The
accused-appellant, nevertheless, remains civilly liable therefor.

For the second and third counts of rape that were committed in the year 1999, the accused-appellant
was already 17 years old. We likewise find that in the said instances, the accused-appellant acted
with discernment. In Madali v. People, 77 the Court had the occasion to reiterate that "[d]iscernment is
that mental capacity of a minor to fully appreciate the consequences of his unlawful act. 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." In this case, the fact that the accused-
appellant acted with discernment was satisfactorily established by the testimony of AAA, which we
had already found to be credible. Verily, AAA testified that she at first did not tell anybody about the
sexual assault she suffered at the hands of the accused-appellant because the latter told her that he
would kill her mother if she did so. That the accused-appellant had to threaten AAA in an effort to
conceal his dastardly acts only proved that he knew full well that what he did was wrong and that he
was aware of the consequences thereof.

Accordant with the second paragraph of Article 68 of the Revised Penal Code, as amended, and in
conformity with our ruling in Sarcia, when the offender is a minor under eighteen (18) years of age,
"the penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be reckoned with." Thus, for the
second and third counts of rape, the proper penalty imposable upon the accused-appellant is
reclusion perpetua for each count.

Had the trial court correctly appreciated in favor of the accused-appellant the circumstance of his
minority, the latter would have been entitled to a suspension of sentence for the second and third
counts of rape under Section 38 of Republic Act No. 9344, which reads:

SEC. 38. Automatic Suspension of Sentence. — 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, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application. Provided, however, That
suspension of sentence shall still be supplied even if the juvenile is already eighteen years (18) of
age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court Rule on
Juvenile in Conflict with the Law. 1awphi1

Be that as it may, the suspension of sentence may no longer be applied in the instant case given
that the accused-appellant is now about 29 years of age and Section 40 of Republic Act No. 9344
puts a limit to the application of a suspended sentence, namely, when the child reaches a maximum
age of 21. The said provision states:

SEC. 40. Return of the Child in Conflict with the Law to Court. — If the court finds that the objective
of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or
if the child in conflict with the law has willfully failed to comply with the conditions of his/her
disposition or rehabilitation program, the child in conflict with the law shall be brought before the
court for execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years. (Emphasis ours.)

Nonetheless, the disposition set forth under Section 51 of Republic Act No. 9344 is warranted in the
instant case, to wit:

SEC. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. —
A child in conflict with the law may after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
[Bureau of Corrections], in coordination with the [Department of Social Welfare and Development].

Additionally, the civil liability of the accused-appellant for the second and third incidents of rape shall
not be affected by the above disposition and the same shall be enforced in accordance with law and
the pronouncements in the prevailing jurisprudence.

Civil Liability
The Court recently ruled in People v. Masagca, Jr.78 that "[c]ivil indemnity is mandatory when rape is
found to have been committed. Based on prevailing jurisprudence, we affirm the award of
₱75,000.00 to the rape victim as civil indemnity for each count." We also explained in Sarcia that
"[t]he litmus test x x x in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether
the penalty actually imposed is reduced to reclusion perpetua."79 The trial court’s award of civil
indemnity of ₱50,000.00 for each count of rape is therefore increased to ₱75,000.00 for each of the
three (3) counts of rape committed in the instant case.

Anent the award of moral damages, the same is justified "without need of proof other than the fact of
rape because it is assumed that the victim has suffered moral injuries [from the experience she
underwent]."80 We also increase the trial court’s award of ₱50,000.00 to ₱75,000.00 for each of the
three (3) counts of rape herein established in keeping with the recent case law. 81

Lastly, we affirm the Court of Appeals’ award of exemplary damages. As held in People v. Llanas,
Jr.,82 "[t]he award of exemplary damages is also proper not only to deter outrageous conduct, but
also in view of the aggravating circumstances of minority and relationship surrounding the
commission of the offense, both of which were alleged in the information and proved during the trial."
The appellate court’s award of ₱25,000.00 as exemplary damages is raised to ₱30,000.00 for each
of the three (3) counts of rape in keeping with the current jurisprudence on the matter. 83

WHEREFORE, in light of the foregoing, the appeal is DENIED. The Decision dated February 8, 2008
of the Court of Appeals in CA-G.R. CR.-H.C. No. 00560 is hereby AFFIRMED with the following
MODIFICATIONS:

(1) For the first count of rape herein established, the accused-appellant Henry Arpon y
Juntilla is hereby EXEMPTED from criminal liability.

(2) For the second and third counts of rape, the accused-appellant is found GUILTY beyond
reasonable doubt of two (2) counts of QUALIFIED RAPE and is hereby sentenced to suffer
the penalty of reclusion perpetua for each count.

(3) As to the civil liability, the accused-appellant is ORDERED to pay AAA for each of the
three (3) counts of rape ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages and
₱30,000.00 as exemplary damages, plus legal interest on all damages awarded at the legal
rate of 6% from the date of finality of this Decision.

(4) The case is hereby REMANDED to the court of origin for its appropriate action in
accordance with Section 51 of Republic Act No. 9344.

No costs.

SO ORDERED.

People v. Sarcia, G.R. No. 169641, September 10, 2009

G.R. No. 169641               September 10, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RICHARD O. SARCIA, Accused-Appellant.
 DECISION

LEONARDO-DE CASTRO, J.:

On automatic review is the decision1 dated July 14, 2005 of the Court of Appeals (CA) in CA-G.R.
CR-HC No. 00717 which affirmed, with modifications, an earlier decision 2 of the Regional Trial Court
(RTC) of Ligao City, Branch 13, in Criminal Case No. 4134, finding herein accused-appellant
Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt of the crime of rape 3 committed
against AAA,4 and sentenced him to suffer the penalty of Reclusion Perpetua and to pay the amount
of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and the cost of the suit. However,
the CA modified the penalties imposed by the RTC by imposing the death penalty, increasing the
award of civil indemnity to ₱75,000.00, and awarding ₱25,000.00 as exemplary damages, aside
from the ₱50,000.00 for moral damages.

The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl.
After almost four (4) years, AAA’s father filed a complaint 5 for acts of lasciviousness against herein
accused-appellant on July 7, 2000. Upon review of the evidence, the Office of the Provincial
Prosecutor at Ligao, Albay upgraded the charge to rape. 6 The Information7 dated September 5, 2000
reads:

That sometime in 1996 at Barangay Doña Tomasa, Municipality of Guinobatan, Province of Albay,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd
and unchaste design, and by means of force, threats and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse with [AAA], who was then 6 years of age, against
her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel,
entered a plea of not guilty.8 Thereafter, trial on the merits ensued.

The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and
Dr. Joana Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the
accused-appellant himself, who vehemently denied committing the crimes imputed to him and
Manuel Casimiro, Clerk of Court II of the Municipal Trial Court at Guinobatan, Albay.

On January 17, 2003, the trial court rendered its Decision 9 finding the accused-appellant guilty of the
crime of rape and imposed the penalty mentioned above.

The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the
accused- appellant.10

Accused-appellant filed his Appellant’s Brief11 on July 15, 2004, while the People, through the Office
of the Solicitor General, filed its Appellee’s Brief 12 on December 15, 2004.

Pursuant to our pronouncement in People v. Mateo, 13 modifying the pertinent provisions of the
Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the RTC to this
Court in cases in which the penalty imposed by the trial court is death, reclusion perpetua or life
imprisonment, and the Resolution dated September 19, 1995 in "Internal Rules of the Supreme
Court," the case was transferred, for appropriate action and disposition, to the CA where it was
docketed as CA-G.R. CR-H.C. No. 00717.
As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No.
000717, affirmed with modification the judgment of conviction pronounced by the trial court. We
quote the fallo of the CA decision:

WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is
ordered to suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) ₱75,000.00
as civil indemnity; (2) ₱50,000.00 as moral damages, and (3) ₱25,000.00 as exemplary damages.

Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No.
00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty
Cases), which took effect on October 15, 2004.

SO ORDERED.

On September 30, 2005, the case was elevated to this Court for further review. 14

In our Resolution15 of November 15, 2005, we required the parties to simultaneously submit their
respective supplemental briefs. Accused-appellant filed his Supplemental Brief 16 on April 7, 2006.
Having failed to submit one, the Office of the Solicitor General (OSG) was deemed to have waived
the filing of its supplemental brief.

In his Brief filed before the CA, accused-appellant raised the following assignment of errors:

THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA],
[her cousin] and [her father].

II

THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI

INTERPOSED BY THE ACCUSED WHICH IS MORE CREDIBLE.

III

THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD
SARCIA.

The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows:

On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was
playing in the yard of Saling Crisologo near a mango tree.

Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologo’s
house. She agreed. Unknown to appellant, [AAA’s cousin] followed them.

Upon reaching the place, appellant removed [AAA’s] shorts and underwear. He also removed his
trousers and brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her
and inserted his penis into [AAA’s] private organ. Appellant made an up-and-down movement
("Nagdapadapa tabi"). [AAA] felt severe pain inside her private part and said "aray." She also felt an
intense pain inside her stomach.
[AAA’s cousin], who positioned herself around five (5) meters away from them, witnessed appellant’s
dastardly act. Horrified, [AAA’s cousin] instinctively rushed to the house of [AAA’s] mother, her aunt
Emily, and told the latter what she had seen. [AAA’s] mother answered that they (referring to {AAA
and her cousin} were still very young to be talking about such matters.

Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes.
Appellant then left.

Perplexed, [AAA’s cousin] immediately returned to the backyard of Saling Crisologo where she
found [AAA] crying. Appellant, however, was gone. [AAA’s cousin] approached [AAA] and asked her
what appellant had done to her. When [AAA] did not answer, [her cousin] did not ask her any further
question and just accompanied her home.

At home, [AAA] did not tell her mother what appellant had done to her because she feared that her
mother might slap her. Later, when her mother washed her body, she felt a grating sensation in her
private part. Thereafter, [AAA] called for [her cousin]. [AAA’s cousin] came to their house and told
[AAA’s] mother again that appellant had earlier made an up-and-down movement on top of [AAA].
[AAA’s mother], however did not say anything. At that time, [AAA’s] father was working in Manila.

Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was
the rural health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr.
Reantaso prepared and signed a medico-legal certificate containing the result of [AAA]’s
examination; (3) Dr. Reantaso, however, had already resigned as rural health officer of Guinobatan,
Albay; (4) as a medical doctor, she can interpret, the findings in said medico-legal certificate issued
to [AAA]; (5) [AAA]’s medical findings are as follows: "negative for introital vulvar laceration nor
scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal admits little finger with
resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in layman’s
language, that there was no showing of any scar or wound, and (7) there is a complete perforation of
the hymen which means that it could have been subjected to a certain trauma or pressure such as
strenuous exercise or the entry of an object like a medical instrument or penis. 17

On the other hand, the trial court summarized the version of the defense as follows:

Richard Sarcia, 24 years old, single, student and a resident of Doña Tomasa, Guinobatan, Albay
denied he raped [AAA]. While he knows [AAA’s] parents, because sometimes they go to their house
looking for his father to borrow money, he does not know [AAA] herself. His father retired as a
fireman from Crispa in 1991 while his mother worked as an agriculturist in the Municipality of Teresa,
Antipolo, Rizal. As an agriculturist of the Department of Agriculture, his mother would bring seedlings
and attend seminars in Batangas and Baguio. They were residing in Cainta, Rizal when sometime in
1992 they transferred residence to Guinobatan, Albay. His father is from barangay Masarawag while
his mother is from barangay Doña Tomasa both of Guinobatan, Albay. After their transfer in
Guinobatan, his mother continued to be an agriculturist while his father tended to his 1-hectare
coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992 when
they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to
1998 he took his high school at Masarawag High School. His daily routine was at about 4:00 o’clock
in the afternoon after school before proceeding home he would usually play basketball at the
basketball court near the church in Doña Tomasa about 1 kilometer away from their house. When
her mother suffered a stroke in 1999 he and his father took turns taking care of his mother. Richard
denied molesting other girls ... and was most surprised when he was accused of raping [AAA]. He
knows Saling Crisologo and the latter’s place which is more than half kilometer to their house.
Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose death on May 7,
2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was filed
against him with the docile cooperation of [AAA’s] parents who are related to Salvacion, concocted
and instigated [AAA’s] rape charge against him to make the case for Murder against him stronger
and life for him miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2)
months later while he already in detention, the rape case supposedly committed in 1996 was filed
against him in the Municipal Trial Court (MTC) of Guinobatan, Albay. He was to learn about it from
his sister, Marivic, on a Sunday afternoon sometime on July 20, 2000 when his sister visited him in
jail. He naturally got angry when he heard of this rape charge because he did not do such thing and
recalled telling his sister they can go to a doctor and have the child examine to prove he did not rape
her. Subsequently, from his sister again he was to learn that the rape case was ordered dismissed.

On cross-examination, Richard admitted [AAA’s] mother, is also related to his father, [AAA mother’s]
father, being a second cousin of his father. Richard is convinced it is not the lending of money by his
father to the AAA’s family as the motive for the latter to file the rape case against him but the
instigation of Salvacion Bobier.

Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified
on the records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for
Rape in relation to RA 7610 relative to the alleged withdrawal of said rape case but the accused
through counsel failed to formally offer the marked exhibits relative to said case. 18

Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not
able to prove his guilt beyond reasonable doubt. He assailed the credibility of the prosecution
witnesses, AAA, her cousin and her father on the following grounds: (1) the testimonies of AAA and
her cousin were inconsistent with each other; (2) the victim was confused as to the date and time of
the commission of the offense; (3) there was a four-year delay in filing the criminal case, and the
only reason why they filed the said case was "to help Salvacion Bobier get a conviction of this same
accused in a murder case filed by said Salvacion Bobier for the death of her granddaughter Mae
Christine Camu on May 7, 2000." Accused-appellant stressed that the same Salvacion Bobier
helped AAA’s father in filing the said case for rape. Accused-appellant also claimed that the
prosecution failed to prove that he employed force, threats or intimidation to achieve his end. Finally,
accused-appellant harped on the finding in the medical certificate issued by Dr. Reantaso and
interpreted by Dr. Joana Manatlao, stating "negative for introital bulvar laceration nor scar which
means that there was no showing of any scar or wound."

In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAA’s and her
cousin’s testimonies as follows: (1) the cousin testified that she played with AAA at the time of the
incident, while AAA testified that she was doing nothing before accused-appellant invited her to the
back of the house of a certain Saling; (2) the cousin testified that when she saw accused-appellant
doing the push-and-pull motion while on top of AAA, the latter shouted in a loud voice contrary to
AAA’s testimony that when accused-appellant was inside her and started the up-and-down motion,
she said "aray"; (3) when the cousin returned to AAA after telling the latter’s mother what accused-
appellant had done to AAA, she found AAA crying. AAA however testified that, after putting on her
clothes, she invited the cousin to their house; and (4) the cousin testified that other children were
playing at the time of the incident, but AAA testified that there were only four of them who were
playing at that time.

As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details
and collateral matters, do not affect the veracity and weight of their testimonies where there is
consistency in relating the principal occurrence and the positive identification of the accused. Slight
contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their
testimonies are not rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for
there is no person with perfect faculties or senses.19 The alleged inconsistencies in this case are too
inconsequential to overturn the findings of the court a quo. It is important that the two prosecution
witnesses were one in saying that it was accused-appellant who sexually abused AAA. Their
positive, candid and straightforward narrations of how AAA was sexually abused by accused-
appellant evidently deserve full faith and credence. When the rape incident happened, AAA was only
five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old,
respectively. This Court has had occasion to rule that the alleged inconsistencies in the testimonies
of the witnesses can be explained by their age and their inexperience with court proceedings, and
that even the most candid of witnesses commit mistakes and make confused and inconsistent
statements. This is especially true of young witnesses, who could be overwhelmed by the
atmosphere of the courtroom. Hence, there is more reason to accord them ample space for
inaccuracy.20

Accused-appellant capitalizes on AAA’s inability to recall the exact date when the incident in 1996
was committed. Failure to recall the exact date of the crime, however, is not an indication of false
testimony, for even discrepancies regarding exact dates of rapes are inconsequential and immaterial
and cannot discredit the credibility of the victim as a witness.21 In People v. Purazo,22 We ruled:

We have ruled, time and again that the date is not an essential element of the crime of rape, for the
gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission
in rape cases need not be accurately stated. As early as 1908, we already held that where the time
or place or any other fact alleged is not an essential element of the crime charged, conviction may
be had on proof of the commission of the crime, even if it appears that the crime was not committed
at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial
fact set out in the complaint, provided it appears that the specific crime charged was in fact
committed prior to the date of the filing of the complaint or information within the period of the statute
of limitations and at a place within the jurisdiction of the court.

Also in People v. Salalima,23 the Court held:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the
information defective on its face. The reason is obvious. The precise date or time when the victim
was raped is not an element of the offense. The gravamen of the crime is the fact of carnal
knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal
Code. As long as it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we ruled that
allegations that rapes were committed "before and until October 15, 1994," "sometime in the year
1991 and the days thereafter," "sometime in November 1995 and some occasions prior and/or
subsequent thereto" and "on or about and sometime in the year 1988" constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.

In this case, AAA’s declaration that the rape incident took place on December 15, 1996 was
explained by the trial court, and we quote:

The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned
by [AAA] may have been arbitrarily chosen by the latter due to the intense cross-examination she
was subjected but the Court believes it could have been in any month and date in the year 1996 as
in fact neither the information nor [AAA’s] sworn statement mention the month and date but only the
year.24

Likewise, witnesses’ credibility is not affected by the delay in the filing of the case against accused-
appellant. Neither does the delay bolster accused-appellant’s claim that the only reason why this
case was filed against him was "to help Salvacion Bobier get a conviction of this same accused-
appellant in the case of murder filed by Salvacion Bobier for the death of her granddaughter Mae
Christine Camu on May 7, 2000."

The rape victim’s delay or hesitation in reporting the crime does not destroy the truth of the charge
nor is it an indication of deceit. It is common for a rape victim to prefer silence for fear of her
aggressor and the lack of courage to face the public stigma of having been sexually abused. In
People v. Coloma25 we even considered an 8-year delay in reporting the long history of rape by the
victim’s father as understandable and not enough to render incredible the complaint of a 13-year-old
daughter. Thus, in the absence of other circumstances that show that the charge was a mere
concoction and impelled by some ill motive, delay in the filing of the complainant is not sufficient to
defeat the charge. Here, the failure of AAA’s parents to immediately file this case was sufficiently
justified by the complainant’s father in the latter’s testimony, thus:

Q But, did you not say, please correct me if I am wrong, you got angry when your wife told
you that something happened to Hazel way back in 1996?

A Yes, sir.

Q Yet, despite your anger you were telling us that you waited until June to file this case?

A After I heard about the incident, I and my wife had a talk for which reason that during that
time we had no money yet to use in filing the case, so we waited. When we were able to
save enough amounts, we filed the case.26

Accused-appellant also contends that he could not be liable for rape because there is no proof that
he employed force, threats or intimidation in having carnal knowledge of AAA. Where the girl is
below 12 years old, as in this case, the only subject of inquiry is whether "carnal knowledge" took
place. Proof of force, intimidation or consent is unnecessary, since none of these is an element of
statutory rape. There is a conclusive presumption of absence of free consent when the rape victim is
below the age of twelve.27

Accused-appellant harps on the medical report, particularly the conclusion quoted as follows:
"negative for introital bulvar laceration nor scars, which means, in layman language, that there was
no showing of any scar or wound." The Court has consistently ruled that the presence of lacerations
in the victim’s sexual organ is not necessary to prove the crime of rape and its absence does not
negate the fact of rape. A medical report is not indispensable in a prosecution for rape. 28 What is
important is that AAA’s testimony meets the test of credibility, and that is sufficient to convict the
accused.

Accused-appellant’s defense of denial was properly rejected. Time and time again, we have ruled
that denial like alibi is the weakest of all defenses, because it is easy to concoct and difficult to
disprove. Furthermore, it cannot prevail over the positive and unequivocal identification of appellant
by the offended party and other witnesses. Categorical and consistent positive identification, absent
any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the
appellants’ defense of denial and alibi.29 The shallow hypothesis put forward by accused-appellant
that he was accused of raping AAA due to the instigation of Salvacion Bobier hardly convinces this
Court. On this score, the trial court aptly reached the following conclusion:

…True, Salvacion Bobier actively assisted AAA’s family file the instant case against the accused, but
the Court believes [AAA’s] parents finally decided to file the rape case because after they have come
to realize after what happened to Mae Christine Camu that what previously [AAA and her cousin]
told her mother and which the latter had continually ignored is after all true.
AAA was barely 9 years of age when she testified. It has been stressed often enough that the
testimony of rape victims who are young and immature deserve full credence. It is improbable for a
girl of complainant’s age to fabricate a charge so humiliating to herself and her family had she not
been truly subjected to the painful experience of sexual abuse. At any rate, a girl of tender years,
innocent and guileless, cannot be expected to brazenly impute a crime so serious as rape to any
man if it were not true.30 Parents would not sacrifice their own daughter, a child of tender years at
that, and subject her to the rigors and humiliation of public trial for rape, if they were not motivated by
an honest desire to have their daughter’s transgressor punished accordingly. 31 Hence, the logical
conclusion is that no such improper motive exists and that her testimony is worthy of full faith and
credence.

The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now
the proper penalty to be imposed on him.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, 32 was the governing
law at the time the accused-appellant committed the rape in question. Under the said law, the
penalty of death shall be imposed when the victim of rape is a child below seven years of age. In this
case, as the age of AAA, who was five (5) years old at the time the rape was committed, was alleged
in the information and proven during trial by the presentation of her birth certificate, which showed
her date of birth as January 16, 1991, the death penalty should be imposed.

However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree
with the CA’s conclusion that the accused-appellant cannot be deemed a minor at the time of the
commission of the offense to entitle him to the privileged mitigating circumstance of minority
pursuant to Article 68(2)33 of the Revised Penal Code. When accused appellant testified on March
14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age.
As found by the trial court, the rape incident could have taken place "in any month and date in the
year 1996." Since the prosecution was not able to prove the exact date and time when the rape was
committed, it is not certain that the crime of rape was committed on or after he reached 18 years of
age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts
should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several
cases, this Court has appreciated this circumstance on the basis of a lone declaration of the
accused regarding his age.34

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper period.
However, for purposes of determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be reckoned with. 35 Thus, the
proper imposable penalty for the accused-appellant is reclusion perpetua.

It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in
case a crime is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the
damages to be adjudicated may be respectively increased or lessened according to the aggravating
or mitigating circumstances." The issue now is whether the award of damages should be reduced in
view of the presence here of the privileged mitigating circumstance of minority of the accused at the
time of the commission of the offense.

A review of the nature and purpose of the damages imposed on the convicted offender is in order.
Article 107 of the Revised Penal Code defines the term "indemnification," which is included in the
civil liability prescribed by Article 104 of the same Code, as follows:
Art. 107. Indemnification-What is included. – Indemnification for consequential damages shall
include not only those caused the injured party, but also those suffered by his family or by a third
person by reason of the crime.

Relative to civil indemnity, People v. Victor36 ratiocinated as follows:

The lower court, however, erred in categorizing the award of ₱50,000.00 to the offended party as
being in the nature of moral damages. We have heretofore explained in People v. Gementiza
that the indemnity authorized by our criminal law as civil liability ex delicto for the offended party, in
the amount authorized by the prevailing judicial policy and aside from other proven actual
damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be
considered as moral damages thereunder, the latter being based on different jural foundations and
assessed by the court in the exercise of sound discretion.

One other point of concern has to be addressed. Indictments for rape continue unabated and the
legislative response has been in the form of higher penalties. The Court believes that, on like
considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence,
starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present amended law, the
indemnity for the victim shall be in the increased amount of not less than ₱75,000.00. This is not
only a reaction to the apathetic societal perception of the penal law, and the financial fluctuations
over time, but also an expression of the displeasure of the Court over the incidence of heinous
crimes against chastity. (Emphasis Supplied)

The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In
San Andres v. Court of Appeals,37 we held:

x x x Moral damages, though incapable of pecuniary estimation, are in the category of an award
designed to compensate the claimant for actual injury suffered and not to impose a penalty on the
wrongdoer. (Emphasis Supplied)

In another case, this Court also explained:

What we call moral damages are treated in American jurisprudence as compensatory

damages awarded for mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S.
815).38 (Emphasis Supplied)

Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory
damages for the injury caused to the offended party and that suffered by her family, and moral
damages are likewise compensatory in nature. The fact of minority of the offender at the time of the
commission of the offense has no bearing on the gravity and extent of injury caused to the victim
and her family, particularly considering the circumstances attending this case. Here, the accused-
appelant could have been eighteen at the time of the commission of the rape. He was accorded the
benefit of the privileged mitigating circumstance of minority because of a lack of proof regarding his
actual age and the date of the rape rather than a moral or evidentiary certainty of his minority.

In any event, notwithstanding the presence of the privileged mitigating circumstance of minority,
which warrants the lowering of the public penalty by one degree, there is no justifiable ground to
depart from the jurisprudential trend in the award of damages in the case of qualified rape,
considering the compensatory nature of the award of civil indemnity and moral damages. This was
the same stance this Court took in People v. Candelario, 39 a case decided on July 28, 1999, which
did not reduce the award of damages. At that time, the damages amounted to ₱75,000.00 for civil
indemnity and ₱50,000.00 for moral damages, even if the public penalty imposed on the accused
was lowered by one degree, because of the presence of the privileged mitigating circumstance of
minority.

The principal consideration for the award of damages, under the ruling in People v. Salome 40 and
People v. Quiachon41 is the penalty provided by law or imposable for the offense because of its
heinousness, not the public penalty actually imposed on the offender.

Regarding the civil indemnity and moral damages, People v. Salome explained the basis for
increasing the amount of said civil damages as follows:

The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in
accordance with the ruling in People v. Sambrano which states:

"As to damages, we have held that if the rape is perpetrated with any of the attending qualifying
circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall
₱75,000.00 … Also, in rape cases, moral damages are awarded without the need proof other than
the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such
an award. However, the trial court’s award of ₱50,000.00 as moral damages should also be
increased to ₱75,000 pursuant to current jurisprudence on qualified rape."

It should be noted that while the new law prohibits the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still death and the offense is still heinous. Consequently,
the civil indemnity for the victim is still ₱75,000.00.

People v. Quiachon also ratiocinates as follows:

With respect to the award of damages, the appellate court, following prevailing jurisprudence,
correctly awarded the following amounts; ₱75,000.00 as civil indemnity which is awarded if the crime
is qualified by circumstances warranting the imposition of the death penalty; ₱75,000.00.00 as moral
damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an
award of moral damages even without proof thereof, x x x

Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A.
No. 9346, the civil indemnity of ₱75,000.00 is still proper because, following the ratiocination in
People v. Victor, the said award is not dependent on the actual imposition of the death penalty but
on the fact that qualifying circumstances warranting the imposition of the death penalty attended the
commission of the offense. The Court declared that the award of ₱75,000.00 shows "not only a
reaction to the apathetic societal perception of the penal law and the financial fluctuations over time
but also the expression of the displeasure of the court of the incidence of heinous crimes against
chastity."

The litmus test therefore, in the determination of the civil indemnity is the heinous character of the
crime committed, which would have warranted the imposition of the death penalty, regardless of
whether the penalty actually imposed is reduced to reclusion perpetua.

As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or
corrective damages are imposed in addition to the moral, temperate, liquidated or compensatory
damages. Exemplary damages are not recoverable as a matter of right. The requirements of an
award of exemplary damagees are: (1) they may be imposed by way of example in addition to
compensatory damages, and only after the claimant’s right to them has been established; (2) they
cannot be recovered as a matter of right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by
bad faith or done in a wanton, fraudulent, oppressive or malevolent manner. 42 Since the
compensatory damages, such as the civil indemnity and moral damages, are increased when
qualified rape is committed, the exemplary damages should likewise be increased in accordance
with prevailing jurisprudence. 43

In sum, the increased amount of ₱75,000.00 each as civil indemnity and moral damages should be
maintained. It is also proper and appropriate that the award of exemplary damages be likewise
increased to the amount of ₱30,000.00 based on the latest jurisprudence on the award of damages
on qualified rape. Thus, the CA correctly awarded ₱75,000.00 as civil indemnity. However the award
of ₱50,000.00 as moral damages is increased to ₱75,000.00 44 and that of ₱25,000.00 as exemplary
damages is likewise increased to ₱30,000.00.45

Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of
his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of
2006 took effect on May 20, 2006. The RTC decision and CA decision were promulgated on January
17, 2003 and July 14, 2005, respectively. The promulgation of the sentence of conviction of
accused-appellant handed down by the RTC was not suspended as he was about 25 years of age at
that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The Child and Youth
Welfare Code46 and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the
Law.47 Accused-appellant is now approximately 31 years of age. He was previously detained at the
Albay Provincial Jail at Legaspi City and transferred to the New Bilibid Prison, Muntinlupa City on
October 13, 2003.

R.A. No. 9344 provides for its retroactive application as follows:

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. – Persons who have been
convicted and are serving sentence at the time of the effectivity of this Act, and who were below the
age of eighteen (18) years at the time of the commission of the offense for which they were
convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act.
xxx

The aforequoted provision 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, and who were below
the age of 18 years at the time of the commission of the offense. With more reason, the Act should
apply to this case wherein the conviction by the lower court is still under review. Hence, it is
necessary to examine which provisions of R.A. No. 9344 shall apply to accused-appellant, who was
below 18 years old at the time of the commission of the offense.

Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with
the law, even if he/she is already 18 years of age or more at the time he/she is found guilty of the
offense charged. It reads:

Sec. 38. Automatic Suspension of Sentence. – 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, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or
more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in
Conflict with the Law.

The above-quoted provision makes no distinction as to the nature of the offense committed by the
child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. 48 The said P.D. and
Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child
in conflict with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish.49 Since R.A. No. 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, 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.

Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of
a child in conflict with the law can be gleaned from the Senate deliberations 50 on Senate Bill No.
1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the pertinent portion of which is
quoted below:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration
to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should
still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the
child’s restoration, rehabilitation and reintegration. xxx (Italics supplied)
1avvphi1

Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be
applied even if the child in conflict with the law is already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the said suspension of
sentence until the said child reaches the maximum age of 21, thus:

Sec. 40. Return of the Child in Conflict with the Law to Court. – If the court finds that the objective of
the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed to comply with the condition of his/her disposition
or rehabilitation program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years. (emphasis ours)

To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been
promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40
to the suspension of sentence is now moot and academic. 51 However, accused-appellant shall be
entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which provides for the
confinement of convicted children as follows:

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

The civil liability resulting from the commission of the offense is not affected by the appropriate
disposition measures and shall be enforced in accordance with law.52

WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is hereby
AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accused-
appellant is reduced to reclusion perpetua; 53 and (2) accused-appellant is ordered to pay the victim
the amount of ₱75,000.00 and ₱30,000.00 as moral damages and exemplary damages,
respectively. The award of civil indemnity in the amount of ₱75,000.00 is maintained. However, the
case shall be REMANDED to the court a quo for appropriate disposition in accordance with Sec. 51
of R.A. 9344.

SO ORDERED.

People v. Monticalvo, G.R. No. 193507, January 30, 2013

G.R. No. 193507               January 30, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
REY MONTICALVO y MAGNO, Accused-Appellant.

DECISION

PEREZ, J.:

This is an appeal from the Decision1 of the Court of Appeals in CA-G.R. CR-HC No. 00457 dated 3
December 2009 affirming in toto the Decision2 of Branch 19 of the Regional Trial Court (RTC) of
Catarman, Northern Samar, in Criminal Case No. C-3460 dated 18 October 2005 finding herein
appellant Rey Monticalvo y Magno guilty beyond reasonable doubt of the crime of rape of a
demented person committed against AAA,3 thereby imposing upon him the penalty of reclusion
perpetua and ordering him to pay P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P25,000.00 as exemplary damages.

Appellant Rey Monticalvo y Magno was charged with raping AAA in an Information 4 dated 30 April
2003, the accusatory portion of which reads:

That on or about the 9th day of December 2002 at about 7:00 o’clock in the evening in Bgy. XXX,
Municipality of XXX, Province of XXX, Philippines and within the jurisdiction of this Honorable Court,
the above-named appellant, actuated by lust and with lewd design, with force and intimidation, did,
then and there, willfully, unlawfully and feloniously have carnal knowledge with AAA, 12 years old
and is suffering from mental disorder or is demented or has mental disability, without the consent
and against the will of said victim.5 [Emphasis supplied].

On arraignment, appellant, with the assistance of counsel de oficio, pleaded NOT GUILTY 6 to the
crime charged.
At the pre-trial conference, the prosecution and the defense failed to make any stipulation of
facts.7 The pre-trial conference was then terminated and trial on the merits thereafter ensued.

The prosecution presented the following witnesses: (1) AAA, the private offended party; (2) BBB,
mother of AAA; (3) Analiza Pait (Analiza), neighbor and friend of AAA; (4) Dr. Jesus Emmanuel
Nochete (Dr. Nochete), Medical Officer IV, Northern Samar Provincial Hospital; and (5) Dr. Vincent
Anthony M. Belicena (Dr. Belicena), Medical Specialist II, Northern SamarProvincial Hospital. Their
testimonies established the following facts:

AAA is a mental retardate and was 12 years and 11 months old at the time of the rape incident. 8 She
and appellant, who was then 17 years old,9 are neighbors − their respective houses are adjoining
each other.10

In the afternoon of 9 December 2002, AAA and her friend, Analiza, were in front of the sari-sari store
of AAA’s mother, BBB, while appellant was inside the fence of their house adjacent to the said sari-
sari store. Shortly, thereafter, appellant invited AAA to go with him to the kiln at the back of their
house. AAA acceded and went ahead. 11

Upon seeing appellant and AAA going to the kiln, Analiza, pretending to look for her one peso coin,
followed them until she reached a papaya tree located three and a half meters away from the place.
Analiza hid under the papaya tree and from there she saw appellant undress AAA by removing the
latter’s shorts and panty. Appellant, however, glanced and saw Analiza. Frightened, Analiza ran
away and went back to the sari-sari store of BBB without telling BBB what she saw. 12

Appellant proceeded to satisfy his bestial desire. After undressing AAA, appellant made her lie
down. He then placed himself on top of AAA and made push and pull movements. Afterwards,
appellant stopped, allowed AAA to sit down for a while and then sent her home. 13

When AAA arrived at their house around 7:30 p.m., she was asked by her mother, BBB, where she
came from and why she came home late. AAA replied that she was at the back of their house as
appellant brought her there and had sexual intercourse with her. 14

The following day, BBB brought AAA to the police station and then to the Northern Samar Provincial
Hospital where AAA was examined by Dr. Nochete. 15 The medical examination yielded the following:

The findings are:

= Confluent abrasion 1 x 1 inches, 2 inches below the umbilicus.

Genitalia Exam:

= Admits 1 finger with ease.

= (-) vulvar swelling, (-) erythema.

= (+) complete healed hymenal laceration at 5 o’clock, 7 o’clock & 10 o’clock

position.

Gram Stain Result: Negative for spermatozoa.16

Dr. Nochete explained that AAA could have possibly sustained those complete healed hymenal
lacerations more than a month prior to the date of the examination. He also clarified that even
though AAA has no fresh hymenal laceration it does not necessarily mean that no sexual intercourse
was committed on her on 9 December 2002. It is possible that AAA did not sustain any fresh
hymenal laceration because the vaginal canal has become loose. He did not also find any trace of
spermatozoa on AAA’s vagina, its presence being dependent on whether the appellant did ejaculate
or not.17

AAA was also examined by Dr. Belicena, a Psychiatrist at the Northern Samar Provincial Hospital,
who found that AAA is suffering from moderate to severe mental retardation, meaning, AAA is
suffering from the specific form of below average intelligence that has a low reproduction functioning
resulting in impaired functioning. This finding was obtained through mental examination and actual
interview of AAA. Dr. Belicena, however, recommended a full battery of psychological testing to
determine AAA’s exact mental age. 18 Dr. Belicena’s finding was reduced into writing as evidenced by
a Medical Certificate19 dated 18 May 2004.

For its part, the defense offered the testimonies of (1) Pio Campos (Pio), neighbor and friend of
appellant; (2) Cesar Monticalvo (Cesar), appellant’s father; (3) Alexander Sanico (Alexander), Local
Civil Registrar of Bobon, Northern Samar; and (4) appellant, who invoked the defense of denial and
alibi to exonerate himself from the crime charged.

Appellant denied having raped AAA. He claimed that on 9 December 2002, at around 1:00 p.m., he,
together with Pio and a certain Dinnes Samson, was having a drinking spree in the house of one
Adolfo Congayao (Adolfo). They finished drinking at around 6:00 p.m. As he was too drunk, Pio
assisted him in going home. He went to sleep and woke up only at 12:00 midnight as he needed to
urinate. He went back to sleep and woke up at 6:00 a.m. of the following day, i.e., 10 December
2002. He was surprised that AAA charged him with rape. He was then arrested at around 3:00 p.m.
of 10 December 2002.20

Appellant disclosed, however, that the house of Adolfo, where they had their drinking spree, is more
or less six (6) meters away from the house of AAA. In fact, he could still see the house of AAA even
when he was in the house of Adolfo. He similarly admitted that he knew very well that AAA is
suffering from mental abnormalities. He also divulged that he asked Pio to testify on his behalf. 21

Appellant’s testimony was corroborated on all material points by Pio and his father, Cesar, who also
admitted that he personally knew AAA as she is their neighbor. Cesar also knew that AAA is
suffering from mental disorder. 22 Both Pio and Cesar confirmed that on 9 December 2002, they
brought appellant to his bedroom and let him sleep there because he was too drunk. Thereafter, Pio
and Cesar engaged in a drinking spree inside the latter’s house, particularly at the kitchen that is
more than two (2) meters away from appellant’s bedroom, which lasted until 11:00 p.m. Pio and
Cesar likewise stated that there was no moment that appellant went out of his bedroom since the
time they brought him there.23

Alexander, another defense witness, presented appellant’s Certificate of Live Birth 24 to prove that the
latter was only 17 years old during the commission of the crime, i.e., 9 December 2002. 25

The trial court, convinced about the merits of the prosecution’s case rendered a Decision on 18
October 2005, finding the appellant guilty beyond reasonable doubt of the crime of rape of a
demented person and sentenced him to an imprisonment term of reclusion perpetua and ordered
him to indemnify AAA in the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages.
On appeal, the following errors were assigned:

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE APPELLANT FOR THE CRIME OF
RAPE OF A DEMENTED PERSON DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.

II.

THE TRIAL COURT FAILED TO APPRECIATE APPELLANT’S AGE, BEING A MINOR, ATTHE
TIME OF THE COMMISSION OF THE CRIME.

III.

THE TRIAL COURT FAILED TO IMPOSE THE PROPER PENALTY. 26

The Court of Appeals rendered the assailed Decision on 3 December 2009 affirming in toto the trial
court’s Decision dated 18 October 2005.

Hence, this appeal.

Appellant contends that the prosecution failed to prove his guilt beyond reasonable doubt as the
testimonies of AAA, BBB, Analiza and Dr. Nochete were replete with inconsistencies and
improbabilities. Firstly, while the Information stated that appellant raped AAA on or about the 9th day
of December 2002 at around 7:00 p.m., Analiza testified that it was in the afternoon of the same day
when she saw and heard appellant calling AAA to go to the kiln at the back of their house, and while
she saw appellant undress AAA, she did not actually see the sexual intercourse because the
appellant saw her watching them, so she ran away. Secondly, BBB’s testimony that on 9 December
2002, AAA confided to her that she was raped by appellant early that night was inconsistent with the
testimony of Analiza that it was in the afternoon of the same day when she saw appellant and AAA
going to the kiln, where the former undressed the latter. Thirdly, Dr. Nochete’s testimony clearly
stated that the hymenal lacerations on AAA’s vagina could have possibly been sustained by her a
month ago, which does not support AAA’s claim of rape on 9 December 2002. Even granting that
appellant, indeed, raped AAA on 9 December 2002, it is highly implausible that the hymenal
lacerations on her vagina were already completely healed when she was examined by Dr. Nochete
on 10 December 2002, which was only after less than 24-hours from the date the alleged rape was
committed.

Appellant also questions the credibility of AAA as a witness given her condition as a mental
retardate. Appellant opines that AAA, could not perceive and is not capable of making known her
perception to others. As such, she can be easily coached on what to say or do.

Appellant finally avers that granting arguendo that he is guilty of the crime charged, he was only 17
years old at the time of its commission as evidenced by his Certificate of Live Birth. This fact was
even attested to by the Local Civil Registrar of Bobon, Northern Samar. Given his minority at the
time of the commission of the crime charged, the court should have considered the same as
privileged mitigating circumstance in imposing the penalty against him.

This Court affirms appellant’s conviction.

At the outset, paragraph 1, Article 266-A of the Revised Penal Code, as amended by Republic Act
No. 8353,27 provides for two (2) circumstances when carnal knowledge of a woman with mental
disability is considered rape. Subparagraph (b) thereof refers to rape of a person "deprived of
reason" while subparagraph (d) refers to rape of a "demented person." 28 The term "deprived of
reason" has been construed to encompass those suffering from mental abnormality, deficiency or
retardation.29 The term "demented," on the other hand, means having dementia, which Webster
defines as mental deterioration; also madness, insanity. 30 Dementia has also been defined in Black’s
Law Dictionary as a "form of mental disorder in which cognitive and intellectual functions of the mind
are prominently affected; x x x total recovery not possible since cerebral disease is involved." 31 Thus,
a mental retardate can be classified as a person "deprived of reason," not one who is "demented"
and carnal knowledge of a mental retardate is considered rape under subparagraph (b), not
subparagraph (d) of Article 266-A(1) of the Revised Penal Code, as amended. 32

In this case, both the trial court and the appellate court incorrectly used the word demented to
characterize AAA’s mental condition and mistakenly categorized the rape committed by appellant
under subparagraph (d), Article 266-A(1) of the Revised Penal Code, as amended, instead of under
subparagraph (b) thereof. Nonetheless, the mistake would not exonerate appellant. Otherwise
stated, his conviction or criminal liability for rape stands though not under subparagraph (d) of Article
266-A(1) of the Revised Penal Code, as amended, but under subparagraph (b) thereof.

Neither can it be said that appellant’s right to be properly informed of the nature and cause of the
accusation against him was violated. This Court is not unaware that the Information was worded, as
follows: "AAA is suffering from mental disorder or is demented or has mental disability." This fact,
however, will not render the Information defective and will not bar this Court from convicting
appellant under subparagraph (b) of Article 266-A(1) of the Revised Penal Code, as amended.

In Olivarez v. Court of Appeals, 33 this Court pronounced that:

x x x In People v. Rosare,34 the information did not allege that the victim was a mental retardate
which is an essential element of the crime of statutory rape. This Court however sustained the trial
court’s judgment of conviction holding that the resolution of the investigating prosecutor which
formed the basis of the information, a copy of which is attached thereto, stated that the offended
party is suffering from mental retardation. It ruled that there was substantial compliance with the
mandate that an accused be informed of the nature of the charge against him. Thus:

Appellant contends that he cannot be convicted of statutory rape because the fact that the victim
was a mental retardate was never alleged in the information and, absent this element, the acts
charged negate the commission of the offense for which he was convicted by the lower court.

Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu proprio take
cognizance of the resolution issued by the investigating prosecutor in I.S. No. 92-0197 dated June 2,
1992, which formed the basis of and a copy of which was attached to the information for rape filed
against herein appellant. Therein, it is clearly stated that the offended party is suffering from mental
retardation. We hold, therefore, that this should be deemed a substantial compliance with the
constitutional mandate that an accused be informed of the nature of the charge against him x x x
(citation omitted).35 [Emphasis supplied].

In this case, both the Complaint36 and the Resolution37 of the Municipal Trial Court of Northern
Samar, which formed the basis of the Information and copies of which were attached in the records,
stated that AAA is suffering from mental abnormalities – she looked like a retardate and her focus is
not normal. Even, the Resolution38 of the Acting Provincial Prosecutor concurred with the aforesaid
findings. From the aforesaid, it can be gleaned that AAA’s mental disorder or mental disability is that
of being a mentally retarded and not demented. Thus, there was substantial compliance with the
mandate to inform the accused of the nature of the accusation. 39 More so, as discussed hereunder,
the prosecution was able to prove that AAA is, indeed, a mental retardate. Even the appellant
affirmed the said mental condition of the victim.

To repeat, the term "deprived of reason" has been construed to encompass those suffering from
mental abnormality, deficiency or retardation.40 Hence, carnal knowledge of a mental retardate is
rape under subparagraph (b) not subparagraph (d) of Article 266-A(1) of the Revised Penal Code, as
amended.41

The gravamen of the crime of rape under Art. 266-A(1) is sexual intercourse with a woman against
her will or without her consent.42 Article 266-A(1) of the Revised Penal Code, as amended,
specifically states that:

ART. 266-A. Rape; When and How Committed. — Rape is committed.

1) By a man who have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.[Emphasis supplied].

From the foregoing, for the charge of rape to prosper, the prosecution must prove that the offender
had carnal knowledge of a woman through any of the four enumerated circumstances. Without
doubt, carnal knowledge of a woman who is a mental retardate is rape under the aforesaid
provisions of law. Proof of force or intimidation is not necessary, as a mental retardate is not capable
of giving consent to a sexual act. What needs to be proven are the facts of sexual congress between
the accused and the victim, and the mental retardation of the latter. 43

In People v. Dalandas,44 citing People v. Dumanon,45 this Court held that mental retardation can be
proven by evidence other than medical/clinical evidence, such as the testimony of witnesses and
even the observation by the trial court.46

In the present case, the prosecution was able to establish that AAA is, indeed, a mental retardate
through, (1) the testimony of her mother; (2) the trial court’s observation; and (3) the mental
examination and actual interview of AAA conducted by Dr. Belicena, a Psychiatrist at the Northern
Samar Provincial Hospital, who found AAA to be suffering from moderate to severe mental
retardation, meaning, AAA is suffering from the "specific form of below average intelligence which
has a low reproduction functioning which result to impairment functioning." 47 It is also worthy to note
that the defense did not dispute, even admitted the fact that AAA is suffering from mental
retardation. The findings of the lower courts about AAA’s mental condition must be upheld.

The prosecution was also able to establish the fact of sexual congress between appellant and AAA.
Despite the latter’s mental condition, she narrated before the court in the best way she could her
ordeal in the hands of appellant. As stated by the appellate court, AAA conveyed her ideas by words
and demonstrations.48 AAA recounted how the appellant sexually abused her on 9 December 2002
by inviting her to go to the kiln at the back of their house. Thereupon, appellant suddenly undressed
her by removing her shorts and panty. This fact was attested to by Analiza, one of the prosecution
witnesses, who actually witnessed appellant undressing AAA by removing the latter’s shorts and
panty. AAA further testified that after undressing her, appellant made her lie down, placed himself on
top of her and made push and pull movements. Thereafter, appellant stopped, made her sit down
and sent her home.49 This testimony of AAA was correctly found by the trial court and the appellate
court as coherent and given in a detailed manner. 50

Emphasis must be given to the fact that the competence and credibility of mentally deficient rape
victims as witnesses have been upheld by this Court where it is shown that they can communicate
their ordeal capably and consistently. Rather than undermine the gravity of the complainant’s
accusations, it even lends greater credence to her testimony, that, someone as feeble-minded and
guileless could speak so tenaciously and explicitly on the details of the rape if she has not in fact
suffered such crime at the hands of the accused. Moreover, it has been jurisprudentially settled that
when a woman says she has been raped, she says in effect all that is necessary to show that she
has been raped and her testimony alone is sufficient if it satisfies the exacting standard of credibility
needed to convict the accused.51

Worth stressing also is the fact that during AAA’s testimony, she positively identified the appellant as
the person who raped her.52 Thus, the straightforward narration of AAA of what transpired,
accompanied by her categorical identification of appellant as the malefactor, sealed the case for the
prosecution.53

The allegation of inconsistencies in the testimonies of AAA, BBB, Analiza and Dr. Nochete as
regards the exact date and time the alleged rape incident happened, as well as the absence of fresh
hymenal lacerations on AAA’s vagina, pointed to by appellant cannot work in his favor.

Evidently, these inconsistencies refer only to trivial and inconsequential matters that do not alter the
essential fact of the commission of rape.54 A witness is not expected to remember with perfect
recollection every minute detail of her harrowing experience. A minor mistake as to the exact time of
the commission of the rape is immaterial and cannot discredit the testimony of a witness. This Court
has repeatedly held that the exact date of the commission of the rape is not an essential element of
the crime.55 Indeed, the precise time of the crime has no substantial bearing on its
commission.56 What is decisive in a rape charge is that the commission of the rape by the accused
against the complainant has been sufficiently proven. Inconsistencies and discrepancies as to minor
matters which are irrelevant to the elements of the crime cannot be considered grounds for
acquittal.57

In the same way, the absence of fresh hymenal lacerations and spermatozoa on AAA’s vagina do
not negate the fact of rape. A freshly broken hymen, as well as the presence or absence of
spermatozoa, is not also an essential element of rape. 58 As clarified by Dr. Nochete, the absence of
fresh hymenal laceration on AAA’s vagina does not necessarily mean that she did not engage in
sexual intercourse on 9 December 2002. Possibly, AAA did not sustain any fresh hymenal laceration
as her vaginal canal had become loose. And, he did not find any trace of spermatozoa because its
presence depends on whether or not the appellant ejaculated.

Indeed, a mental retardate is not, by reason of such handicap alone, be disqualified from testifying in
court.59 Mental retardation per se does not affect credibility. A mentally retarded may be a credible
witness. The acceptance of her testimony depends on the quality of her perceptions and the manner
she can make them known to the court.60 If the testimony of a mental retardate is coherent, the same
is admissible in court.61
Neither can it be said that AAA was merely coached as a witness by her mother. It is highly
unthinkable that a mother would draw her daughter, a mental retardate at that, into a rape story with
all its attendant scandal and humiliation if the rape did not really happen. No mother in her right mind
would possibly wish to stamp her child with the stigma that follows the despicable crime of
rape.62 Moreover, appellant failed to show any ill-motive on the part of AAA and her mother to falsely
testify against him.

In light of the straightforward and credible testimony of AAA, her positive identification of appellant
as her assailant and the lack of ill-motive on her part to falsely testify against appellant, the latter’s
defense of denial and alibi must necessarily fail.

Denial is an inherently weak defense and has always been viewed upon with disfavor by the courts
due to the ease with which it can be concocted. Denial as a defense crumbles in the light of positive
identification of the accused, as in this case. The defense of denial assumes significance only when
the prosecution’s evidence is such that it does not prove guilt beyond reasonable doubt. Verily, mere
denial, unsubstantiated by clear and convincing evidence, is negative self-serving evidence which
cannot be given greater evidentiary weight than the testimony of the complaining witness who
testified on affirmative matters.63

Like denial, alibi is not looked upon with favor by the trial court. It also cannot prevail over witnesses’
positive identification of appellant as the perpetrator of the crime. In any event, for the defense of
alibi to prosper, it is not enough that the accused can prove his presence at another place at the time
of its commission, it is likewise essential that he show physical impossibility for him to be at the locus
delicti,64 which the appellant in this case failed to do.

As aptly observed by the trial court:

The houses of the offended party and the appellant are only divided by a fence and the place of the
incident is only at the back of the house of the appellant. The defense of alibi must fail. In addition to
the positive identification made by AAA and the place of the incident is adjacent to the houses of the
victim and the appellant, being neighbors, the fact that the appellant alleged that he was having
drinking spree at that time and that he was dead drunk at around 6:00 p.m. of that date, there is no
impossibility for the appellant to be physically present at the scene of the incident, because of its
proximity.

Corroborative testimony is not credible if tainted with bias particularly in cases where the witnesses
are closely associated to the appellant as to be interested in the appellant’s acquittal. In this case,
the appellant’s witnesses are his alleged drinking buddy and his father. Considering that they are
bound by friendship and affiliation, it is conceivable that they would be inclined to make excuses for
him appellant from culpability.65

All told, appellant’s guilt has been proven by the prosecution beyond reasonable doubt, thus, his
conviction stands.

As to penalty. Under Article 266-B66 in relation to Article 266-A(1) of the Revised Penal Code, as
amended, simple rape is punishable by reclusion perpetua. However, when rape is committed by an
assailant who has knowledge of the victim’s mental retardation, the penalty is increased to death.
But this circumstance must be alleged in the information being a qualifying circumstance which
increases the penalty to death and changes the nature of the offense from simple to qualified
rape.67 In the case at bench, while appellant categorically admitted that he knew AAA to be suffering
from mental abnormalities, the prosecution failed to allege this fact in the information. As such, even
if it was proved, it cannot be appreciated as a qualifying circumstance. Thus, appellant’s conviction
is only for simple rape for which he should be meted the penalty of reclusion perpetua.

Nonetheless, a reasonable ground exists in this case that calls for the modification of the penaltyof
reclusion perpetua imposed by both lower courts upon the appellant.

This Court finds merit in appellant’s assertion that he was a minor during the commission of the
crime charged. During trial, upon order of the trial court, the Local Civil Registrar of Bobon, Northern
Samar, brought before it their office records, particularly appellant’s Certificate of Live

Birth containing the fact of birth of the latter. Appellant’s Certificate of Live Birth shows that he was
born on 23 February 1985. Indeed, at the time of the commission of the crime charged on 9
December 2002, appellant was only 17 years old, a minor. Thus, he is entitled to the privileged
mitigating circumstance of minority pursuant to Article 68(2) of the Revised Penal Code, as
amended,68 which specifically states that:

ART. 68. – Penalty to be imposed upon a person under eighteen years of age. – When the offender
is a minor under eighteen years and his case is one coming under the provisions of the paragraph
next to the last of article 80 of this Code, the following rules shall be observed:

xxxx

2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that
prescribed by the law shall be imposed, but always in the proper period. 69 [Emphasis supplied].

Applying the privileged mitigating circumstance, the proper imposable penalty upon appellant is
reclusion temporal, being the penalty next lower to reclusion perpetua - the penalty prescribed by
law for simple rape. Being a divisible penalty, the Indeterminate Sentence Law is applicable. 70

Applying the Indeterminate Sentence Law, appellant can be sentenced to an indeterminate penalty
the minimum of which shall be within the range of prision mayor (the penalty next lower in degree to
reclusion temporal), that is 6 years and 1 day to 12 years, and maximum of which shall be within the
range of reclusion temporal in its medium period (there being no other modifying circumstances
attendant to the crime), that is 14 years, 8 months and 1 day to 17 years and 4 months. 71 With that,
the indeterminate penalty of 10 years of prision mayor, as minimum, to 17 years and 4 months of
reclusion temporal, as maximum, should be imposed upon the appellant. However, the case of
appellant does not, as it normally should, end at this point. On 20 May 2006, Republic Act No. 9344,
otherwise known as the "Juvenile Justice and Welfare Act of 2006," took effect. Section 68 thereof
specifically provides for its retroactive application, thus: 72

SEC. 68. Children Who Have Been Convicted and are Serving Sentence. – Persons who have been
convicted and are serving sentence at the time of the effectivity of this Act, and who were below the
age of eighteen (18) years at the time of the commission of the offense for which they were
convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act.
They shall be entitled to appropriate dispositions provided under this Act and their sentences shall
be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or
other applicable law. [Emphasis supplied].

Clearly, Republic Act No. 9344 is applicable in this case even though the crime was committed four
(4) years prior to its enactment and effectivity. Parenthetically, with more reason should Republic Act
No. 9344 apply to this case as the 2005 conviction by the lower courts was still under review when
the law took effect in 2006.73

Section 38 of Republic Act No. 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.74 It reads, thus:

SEC. 38. Automatic Suspension of Sentence. – 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, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or
more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the Law. [Emphasis supplied].

However, while Section 38 of Republic Act No. 9344 provides that suspension of sentence can still
be applied even if the child in conflict with the law is already eighteen (18) years of age or more at
the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension
of sentence until the said child reaches the maximum age of 21, thus: 75

SEC. 40. Return of the Child in Conflict with the Law to Court. – If the court finds that the objective of
the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition
or rehabilitation program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years. [Emphasis supplied].

At present, appellant is already 27 years of age, and the judgment of the trial court was promulgated
prior to the effectivity of Republic Act No. 9344. Therefore, the application of Sections 38 and 40 of
the said law is already moot and academic.

Be that as it may, to give meaning to the legislative intent of Republic Act No. 9344, 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 21 years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with
Republic Act No. 9344 in order that he/she is given the chance to live a normal life and become a
productive member of the community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is that the offender
committed the offense when he/she was still of tender age. 76 The appellant, therefore, shall be
entitled to appropriate disposition under Section 51 of Republic Act No. 9344, which provides for the
confinement of convicted children as follows:77

SEC. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

To conform to this Court’s ruling in People v.Sarcia,78 the case shall be remanded to the court of
origin to effect appellant’s confinement in an agricultrual camp or other training facility. 79

As to damages. The civil liability resulting from the commission of the offense is not affected by the
appropriate disposition measures and shall be enforced in accordance with law. 80 This Court affirms
both the civil indemnity of P50,000.00 and moral damages of P50,000.00 awarded by the lower
courts in favor of AAA. Civil indemnity, which is actually in the nature of actual or compensatory
damages, is mandatory upon the finding of the fact of rape. Case law also requires automatic award
of moral damages to a rape victim without need of proof because from the nature of the crime, it can
be assumed that she has suffered moral injuries entitling her to such award. Such award is separate
and distinct from civil indemnity.81

In consonance with prevailing jurisprudence on simple rape wherein exemplary damages are
awarded to set a public example and to protect hapless individuals from sexual molestation, this
Court likewise affirms the lower courts award of exemplary damages but increased the same from
P25,000.00 to P30,000.00 to conform to recent jurisprudence. 82

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-HC No.
00457 dated 3 December 2009 is hereby MODIFIED as follows: (I) appellant is found guilty of rape
under subparagraph (b) of Article 266-A( I) of the Revised Penal Code, as amended, and not under
subparagraph (d) thereof; (2) in view of the privileged mitigating circumstance appreciated in favor of
appellant the penalty of reclusion perpetua is reduced to reclusion temporal and being a divisible
penalty, the Indeterminate Sentence Law applies and the indeterminate penalty of I 0 years of
prision mayor, as minimum, to 17 years and 4 months of reclusion temporal, as maximum, is
imposed upon the appellant; and (3) the amount of exemplary damages awarded by the lower courts
is increased from P25,000.00 to P30,000.00. The award of civil indemnity and moral damages both
in the amount of P50,000.00 are maintained. This case, however, shall be REMANDED to the court
a quo for appropriate disposition in accordance with Section 51 of Republic Act No. 9344.

SO ORDERED.

People v. Agliday, G.R. No. 140794, October 16, 2001

[G.R. No. 140794. October 16, 2001.]

PEOPLE OF THE PHILIPPINES, Appellee, v. RICARDO AGLIDAY y

TOLENTINO, Appellant.

DECISION

PANGANIBAN, J.:

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precaution on
the part of the person performing or failing to perform such act. Malice is the antithesis
of reckless imprudence. Once malice is proven, recklessness disappears. chanrob1es virtua1 1aw 1ibrary

The Case

Before us is an appeal from the September 14, 1997 Decision 1 of the Regional Trial
Court of San Carlos City (Branch 57) in Criminal Case No. SCC 3054. The assailed
Decision disposed as follows: jgc:chanrobles.com.ph

"WHEREFORE, in the light of the foregoing consideration, the court finds the accused
Ricardo T. Agliday guilty beyond reasonable doubt of parricide and hereby sentences
him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim
in the amount of fifty thousand pesos (50,000.00).

"The PNP Bayambang[,] Pangasinan is directed to turn over the shotgun to the Firearm
and Explosive Division, Camp Crame, Quezon City." 2

This case originated from the April 22, 1999 Information, 3 in which Ricardo Aglida y
Tolentino was accused of parricide, allegedly committed as follows: jgc:chanrobles.com.ph

"That on or about February 25, 1999, in the evening, at [B]arangay Nalsian Sur,
[M]unicipality of Bayambang, [P]rovince of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did
then and there, wil[l]fully, unlawfully and feloniously shoot his son Richard V. Agliday
with a shotgun, unlicensed causing his death shortly thereafter due to ‘[c]ardio
respiratory arrest, hypovolemic shock, gunshot wound, pt. of entry at the (L) upper
inner quadrant of gluteus, 3 x 3 cm. (+) contusion collar’, as per Certificate of Death
issued by Dr. Rod Alden Tamondong, M.D., medical officer III, Region I Medical Center,
Arellano St., Dagupan City, to the damage and prejudice of his legal heirs." 4

On arraignment, appellant, assisted by Atty. Bernardo S. Valdez, pleaded not guilty. 5

After trial in due course, the lower court rendered the assailed Decision. Atty. Carlito M.
Soriano, counsel for appellant, filed the Notice of Appeal on September 22, 1999. 6

The Facts

Version of the Prosecution

In its Brief, 7 the Office of the Solicitor General summarized the prosecution’s version of
the facts as follows:
jgc:chanrobles.com.ph

"Prosecution witness Conchita Agliday, wife of appellant Reynaldo Agliday, testified that
about 8:00 o’clock on the evening of February 25, 1999 while washing dishes in the
kitchen of their house, her son Richard Agliday was shot with a shotgun by her
husband-appellant Ricardo Agliday (pp. 4-5, tsn, July 5, 1999). As a result, her son
Richard fell on his belly; her husband-appellant ran away. Although shocked, Conchita
was able to rush out of her house to call for help. Richard was first brought to the Sto.
Niño Hospital, then to the San Carlos General Hospital, and finally to the Region I
Hospital in Dagupan City (pp. 5-6, id.). chanrob1es virtua1 1aw 1ibrary

"Before the shooting, Conchita and her husband quarreled over her working as a
laundry woman (p. 7, id.). Her son, Richard, at the time of his death, was only nineteen
(19) years old and in 4th year college (p. 9, id.).

"Prosecution witness Rey Agliday, another son of appellant, testified that he was in their
house resting on a wooden bed at the time of the incident in question (p. 3, tsn, June
18, 1999). Rey saw his father-appellant shoot his brother Richard with a shotgun, as he
was about four (4) meters from them (p. 4, id.).

"Before the shooting incident, Rey recounted [that] his mother and his father-appellant
had a quarrel, but he did not interfere. His brother Richard, on the other hand,
intervened and for that reason appellant got his shotgun and shot Richard. Appellant
surrendered to the barangay captain who accompanied him to the police authorities.
Rey executed a sworn statement (Exhibit ‘A’) on the shooting incident (p. 5, id.).

"Dr. Rod Alden Tamondong, medical health officer, Region I Medical Center, Dagupan
City declared that he attended to the medical needs of Richard Agliday. Richard came in
looking very pale, weak, and semi-conscious (p. 3, tsn, July 13, 1999). He died at the
emergency room.

"Dr. Tamondong found a gunshot wound at the left buttock of the victim which had no
point of exit; he also found multiple metallic objects therein based on the contusion
color of the wound and the x-ray result (pp. 4-5, id.). He stated that the cause of the
victim’s death was cardio-respiratory arrest secondary to the decrease of the circulating
blood of the victim (pp. 4-5, id.). But he did not issue a medical certificate as he was
then on official leave; he only issued a death certificate (Exhibit ‘D’) (p. 5, id.)." 8

Version of the Defense

Appellant, in his Brief, 9 submits his own narration of the events: jgc:chanrobles.com.ph

"Appellant Ricardo T. Agliday is a barangay tanod of Nalsian Sur, Bayambang,

Pangasinan.

"Sometime on February 25, 1999, at or about 8:00 o’clock in the evening, appellant
was at the first floor of his house. He was cleaning a homemade shotgun which he
intended to bring to [his] night patrol in their barangay, with fellow barangay tanods.
virtuallawlibrary:red
chanrobles

"While his wife Conchita and his son Richard were about to go upstairs, and while
appellant was cleaning the homemade shotgun, the gun accidentally went off and
Richard’s buttock was hit.

"Appellant went near his son and embraced him. Appellant and some relatives brought
Richard to the Sto. Niño Hospital at Bayambang, Pangasinan. They later transferred him
to the San Carlos General Hospital. Finally, they brought him to the Region I Medical
Center at Dagupan City, where he expired.

"Thereafter, appellant returned to Bayambang, Pangasinan. He directly went to the

house of Barangay Captain Jose Matabang, Jr. to whom he voluntarily surrendered. The
barangay captain brought the appellant to [the] policy station of Bayambang,
Pangasinan, with the homemade shotgun which [had] accidentally hit Richard." 10

Ruling of the Trial Court

Faced with two conflicting versions of the facts, the trial court gave credence to the
prosecution witnesses who gave straightforward, spontaneous, sincere and frank
accounts of the events that had unfolded before their very eyes. Because of their
relationship with appellant, there was no reason for them to testify falsely against him.
The first witness (Rey) was appellant’s son who was the victim’s brother, while the
other witness (Conchita) was appellant’s wife who was the victim’s mother.

The defense of appellant that what happened was an accidental shooting was
disbelieved by the trial court. It viewed such stance as his desperate attempt to
exculpate himself from the consequences of his acts. chanrob1es virtua1 1aw 1ibrary

Hence, this appeal. 11

The Issues

Appellant submits the following issues: jgc:chanrobles.com.ph

"First Assignment of Error

"The Honorable Court a quo erred in its findings of facts which[,] had they been in
accordance with the evidence adduced, will suffice to support a judgment of acquittal
for Accused-Appellant." 12

"Second Assignment of Error

"The Honorable Court a quo erred in convicting accused-appellant [of] parricide." 13

This Court’s Ruling

The appeal is devoid of merit.

First Issue: chanrob1es virtual 1aw library

Credibility of Witnesses

Appellant contends that the trial court erred in giving credence to the prosecution
witnesses despite his avowals to the contrary. He claims that it should have believed
him because he had absolutely no reason or motive to kill, much less shoot, his own
son whom he considered to have had a very bright future. He further alleges that the
corroborating testimonies of Jose Matabang and SPO1 Emilio Opina, who were not
related to the parties and had absolutely no motive to testify falsely against him, were
more credible than those of his wife and other son. chanrob1es virtua1 1aw 1ibrary
We disagree. Long settled is the rule in criminal jurisprudence that when the issue is
one of credibility of witnesses, an appellate court will normally not disturb the factual
findings of the trial court. 14 That is, unless the lower court has reached conclusions
that are dearly unsupported by evidence, or unless it has overlooked some facts or
circumstances of weight and influence which, if considered, would affect the results. 15

Matabang’s testimony was basically what appellant had told him and, hence, biased and
limited. The testimony of Opina — that he had been told by Conchita that the shooting
was accidental — was contradicted by her own statements in open court that she was
still in shock when the police officer conducted the preliminary investigation. Such
statements taken ex parte, like affidavits, are held as inferior to testimonies given in
open court. 16 Thus, we find no ground in the case at bar to overturn the factual
findings of the trial court.

Second Issue: chanrob1es virtual 1aw library

Accident as an Exempting Circumstance

Appellant protests the trial court’s ruling that his defense of accidental shooting was
fabricated. According to him, he was cleaning the shotgun that he would have used for
the evening patrol with other barangay tanods when he accidentally touched the trigger
and hit Richard, who was going up the stairs into the house with Conchita. 17 He
therefore contends that he should be acquitted on the basis of the exempting
circumstance of accident under Article 12 (paragraph 4) of the Revised Penal Code.

We are not persuaded. Both the trial court and the solicitor general rejected this
defense on the basis of the eyewitness testimonies of Conchita and Rey. Under Article
12 (paragraph 4) of the Code, criminal liability does not arise in case a crime is
committed by [a]ny person who, while performing a lawful act due care, causes an
injury by mere accident without fault or intention of causing it." The exemption from
criminal liability under the circumstance showing accident is based on the lack of
criminal intent. chanrob1es virtua1 1aw 1ibrary

The declarations of innocence by appellant are contradicted by the testimonies of his

wife and son. On the witness stand, Conchita recounts the incident as follows: jgc:chanrobles.com.ph

"Q: You said that you were at home on February 25, 1999 at about 8:00 o’clock in the
evening; what were you doing if you can still remember?

A: I was washing dishes, sir.

Q: While doing so, do you recall if there was any unusual incident that happened?

A: Yes, sir.

Q: What was that unusual incident?

A: My son was shot by my husband, sir.

Q: Where did your husband [shoot] your son?

A: In the kitchen, sir.

Q: What weapon did your husband use in shooting your son?

A: Shotgun, sir." 18

In her Sworn Statement given to SPO1 Emilio Opina of the Bayambang Police Station,
she declared: jgc:chanrobles.com.ph

"04. Q: Will you please narrate to me briefly all you know about the incident you are
referring to? chanrob1es virtua1 1aw 1ibrary

A: That on or about 8:00 o’clock in the evening o[n] February 25, 1999 while I and my
husband Ricardo Agliday y Tolentino were quarreling in connection [with] his drinking
(liquor) habit[,] my son Richard V. Agliday tried to [pacify] us but my husband, instead
of listening, . . . got his gun [from] the bed where we are sleeping and shot our son
Richard V. Agliday." 19

Rey corroborated his mother’s testimony that his brother was shot by their father. His
testimony proceeded as follows: jgc:chanrobles.com.ph

"Q: On February 25, 1999 at about 8:00 o’clock in the evening, do you remember
where you were?

A: Yes, sir.

Q: Where were you on that day and [at that] time?

A: I was under the house resting on a wooden bed, sir.

x          x           x

Q: While you were under your house resting do you remember if there was any unusual
incident that happened?

A: Yes, sir.

Q: What was that unusual incident?

A: My brother was shot by my father, sir.

Q: How far where you when your father shot your brother?

A: About four (4) meters, sir.

Q: What weapon did your father use in shooting your brother?

A: Shotgun, sir.

x          x           x

Q: Where was your mother, Conchita at the time your father shot your brother Richard?

A: She was there and they were both quarreling, sir.

Q: They were both quarreling before the incident happened?

A: Yes, sir. chanrob1es virtua1 1aw 1ibrary

Q: And while your father and mother were quarreling what did you do?

A: I did not interfere[;] it was my brother who intervene[d] between them that is why
my father got his gun and shot my brother, sir." 20

Before the accused may be exempted from criminal liability by reason of Article 12
(paragraph 4), the following elements must concur: (1) a person is performing a lawful
act (2) with due care, and (3) he causes an injury to another by mere accident and (4)
without any fault or intention of causing it. 21 For an accident to become an exempting
circumstance, the act has to be lawful. 22 The act of firing a shotgun at another is not a
lawful act.chanrob1es virtua1 1aw 1ibrary

An accident is an occurrence that "happens outside the sway of our will, and although it
comes about through some act of our will, lies beyond the bounds of humanly
foreseeable consequences." 23 It connotes the absence of criminal intent. Intent is a
mental state, the existence of which is shown by a person’s overt acts. 24 In the case
at bar, appellant got his shotgun and returned to the kitchen to shoot his son, who had
intervened in the quarrel between the former and Conchita. It must also be pointed out
that the firearm was a shotgun that would not have fired off without first being cocked.
Undoubtedly, appellant cocked the shotgun before discharging it, showing a clear intent
to fire it at someone.

The Resolution 25 dated April 22, 1999, filed by 4th Asst. Provincial Prosecutor Emilio
R. Soriano, reads thus: jgc:chanrobles.com.ph

" [O]n the evening of February 25, 1999 at about 8:00 o’clock, complainant and her
husband were then quarreling in connection with his liquor drinking habit. While they
were quarreling, their son Richard intervened and tried to pacify his father who [was]
under the influence of liquor. Apparently angered and not listening to his son, he
proceeded inside their bedroom and took his gun and thereafter shot his son Richard
who was trying to pacify them. After seeing her son being shot by her husband,
complainant ran outside and called for help. . . .

"After carefully considering the uncontroverted evidence adduced by complainant,

undersigned sufficiently finds a probable cause for [p]arricide with the use of an
unlicensed firearm . . .." 26
Appellant contends that since he was only negligent, he should have been convicted,
not of parricide, but only of reckless imprudence resulting in homicide. 27

We disagree. Reckless imprudence consists of voluntarily doing or failing to do, without

malice, an act from which material damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to perform such act. Past
jurisprudential cases of reckless imprudence resulting in homicide were as follows: (1)
exhibiting a loaded revolver to a friend, who got killed by the accidental discharge
arising from negligent handling; (2) discharging a firearm from the window of one’s
house and killing a neighbor who, at just that moment, leaned over a balcony front;
and (3) firing a .45 caliber pistol twice in the air to stop a fist fight; and, as the fight
continued, firing another shot at the ground but, after the bullet ricocheted, hitting a
bystander who died thereafter. 28

Intent is not lacking in the instant case. Appellant’s external acts prove malice or
criminal intent. A deliberate intent to do an unlawful act is inconsistent with reckless
imprudence. 29

In People v. Belbes, 30 the Court found no reckless imprudence in the shooting of a

student who, in the act of destroying the school’s bamboo wall, had been caught by a
policeman who was responding to a report that somebody was causing trouble in a
school affair. The policeman’s action cannot be characterized as reckless imprudence,
because the shooting was intentional. The accused had intended to fire at the victim
and in fact hit only the latter. In this case, resenting his son’s meddling in his argument
with his wife, appellant purposely took his gun and shot his son. chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the appeal is hereby DENIED and the assailed Decision AFFIRMED. Costs
against Appellant.

SO ORDERED.

c. Mitigating circumstances

People v. Padilla, G.R. No. 75508, June 10, 1994

[G.R. No. 75508. June 10, 1994.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SGT. FELIX

PADILLA, Accused-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; CASE AT BAR. — The

account of the defense that the victim was shot at the head by unidentified men is
inconsistent with human experience, observation and reason, and is further belied by
the positive testimony of a principal witness. The improbability of appellant’s narration
lies principally on the admitted medical findings on the point of entry of the bullet, the
size of the gunshot wound and its characteristics, as well as the location of the slug
taken from the head of the victim, all of which point to the culpability of the accused.
We find it difficult to believe that the alleged gunman fired the shot that hit the victim
at the top of his head from his right side, while the latter was at a distance struggling
with a woman at the time he was hit. Indeed, it is highly incredible for a person with
ordinary shooting skills to hit an extraordinary mark at a range of thirty (30) meters
using only a handgun, especially when the target is mobile and the sight is blocked by
some persons, and the area is not comfortably lighted. Even if the shooting was
accidental, or if purposely done was consigned to chance, the probability that the bullet
would fatally hit the victim was remarkably remote.

2. ID.; ID.; PRESENTATION OF EVIDENCE; OFFER; FAILURE TO FORMALLY OFFER ONE

EVIDENCE, NOT CRUCIAL. — Accused-appellant takes issue on whether the slug
marked Exh. "I" could be considered by the court notwithstanding the failure of the
prosecution to formally offer it in evidence. Although Exh. "I" was not formally offered,
it was nevertheless duly identified by Ireneo Ordeano, Senior Ballistician of the NBI. It
was accordingly noted and subsequently incorporated in the records. Such oversight
could not be fatal to the cause of the prosecution as its entire evidence had been
recorded and the witness who was competent to testify on the matter had properly
identified the challenged exhibit. But even without the exhibits incorporated into the
records, the prosecution can still establish its case as its principal witness properly
identified Exh. "I" and his testimony was recorded. The most vital pieces of physical
evidence of the prosecution — the copper jacketed slug taken from the head of the
victim and the empty shell recovered from the scene of the crime — indubitably point to
the accused as the author of the crime.

3. ID.; ID.; WITNESS; TESTIMONY; CREDIBILITY SUSTAINED. — accused-appellant

asserts that the testimony of Pat. Omega should not have been accepted with
precipitate credulity since the witness was too partial for the victim who was his
superior in the police force. This argument is patently flawed. The credibility of a
principal witness is a perennial object of attack by an accused in distress who endlessly
fabricates convenient tales and incredible notions to impugn a particularly damaging
testimony. We quote with approval the observation of the Solicitor General — "There is
not a whit of truth to this claim considering that Ontuca was already dead at the time
Pat. Omega gave testimony of the criminal incident. Moreover, the defense has shown
no motive for personal or financial gain on the part of Pat. Omega when he testified and
provided the trial court with the facts on the commission of the crime." And as the trial
judge observed of the deportment of principal witness Pat. Omega: "Omega is a peace
officer. He testified in a straightforward manner. His testimony has the ring of truth. No
credible reason has been given why said witness would testify except to tell the truth."
virtua1aw library
cralaw

4. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; NOT

PRESENT IN CASE AT BAR. — We do not agree that there was treachery in the killing of
the victim to qualify it to murder. There was no treachery or alevosia because the
accused did not deliberately employ means, methods or forms in the mode of his attack
which tended directly and specially to insure his safety from any offensive or retaliatory
act the victim might make. Appellant did not consciously adopt a particular method or
manner of killing the victim that would eliminate any risk to himself, for it was not until
Pfc. Ontuca and the woman he was holding hostage accidentally fell to the ground that
appellant was accorded the instant opportunity to kill his victim with facility. Moreover,
the assault on the victim was not made in a sudden and unexpected manner. Pfc.
Ontuca apparently sensed the sinister plan of his malefactors when he fled and forcibly
took a woman hostage to use as a human shield. Clearly, the victim was forewarned of
a graver evil when accused and his companions mauled him, and when Maj. de la Cruz
had to summon an armed military man purportedly to bring him and Pat. Omega to the
hospital for a "liquor test."
cralaw virtua1aw library

5. ID.; ID.; ID.; ABUSE OF SUPERIOR STRENGTH; PRESENT HEREIN. — The absence of
treachery or alevosia notwithstanding, the crime committed by accused-appellant is still
murder. The killing was qualified by the aggravating circumstance of abuse of superior
strength which was alleged in the information and proved during the trial. Abuse of
superior strength is present not only when the offenders enjoy numerical superiority, or
there is a notorious inequality of forces between the victim and the aggressor, but also
when the offender uses a powerful weapon which is out of proportion to the defense
available to the offended party. The accused was armed with a powerful pistol which he
purposely used, gaining him an advantage over his victim who only had a piece of
plywood to cover himself after he was disarmed.

6. ID.; AGGRAVATING CIRCUMSTANCES; ABUSE OF PUBLIC OFFICE; NOT

APPRECIATED IN CASE AT BAR. — The accused did not abuse his public position in
committing the crime. For this circumstance to be appreciated as aggravating, the
public official must use his influence, prestige and ascendancy which his office gives
him in realizing his purpose. It could not be said that the accused purposely used or
took advantage of his position or rank in killing the victim because he could have
committed the crime just the same by using another weapon not necessarily his service
firearm. Besides, Pfc. Ontuca, himself a military man, resisted the assault on his person
and did not adhere to the accused, nor to C1C Belino, neither to Maj. de la Cruz, who
was a ranking officer of the Philippine Air Force.

7. ID.; MITIGATING CIRCUMSTANCES; SUFFICIENT PROVOCATION; NOT APPRECIATED

HEREIN. — Sufficient provocation could neither mitigate the criminal liability of the
accused. He cannot claim that he was provoked by Pfc. Ontuca when the latter ran
away from him because, understandably so, the hapless victim feared for his life having
been beaten up twice by his assailants that same evening. To flee when danger lurks is
human and can never be regarded as a source of provocation sufficient to come within
the ambit of The Revised Penal Code. In fact, when an offended party flees from his
aggressor, the latter has no reason to pursue and attack him.

8. ID.; MURDER; PENALTY IN CASE AT BAR. — The crime committed by accused-

appellant is murder qualified by abuse of superior strength. The penalty for murder is
reclusion temporal maximum to death. In the absence of any mitigating or aggravating
circumstance, the penalty should be, as correctly imposed by the court a quo, reclusion
perpetua, which is the penalty for murder.

DECISION

BELLOSILLO, J.:
MURDER is abhorrent; it becomes even more when the perpetrators are men in
uniform, in active service, sworn to maintain the peace, protect the body politic and
uphold the rule of law. This case may yet serve as a grim reminder, a foreboding, of the
current state of affairs in the country — policemen, military officers, agents of the law,
garbed in filthy outfit, drinking inordinately in public places, flaunting their arms as
symbols of their authority, rebuking, beating, maiming, killing one another without
rhyme or reason, hitting innocent bystanders in the crossfires, a sheer antithesis of
their role in civilized society.
chanrobles law library

SGT. FELIX PADILLA was a member of the Philippine Air Force (PAF) assigned to U-2,
the intelligence unit of General Headquarters, Armed Forces of the Philippines (GHQ-
AFP), then under the Eastern Command, now Regional Unified Command (RUC-8)
stationed at Camp Lukban, Catbalogan, Samar. He was charged together with his
Senior Officer, Maj. Ildefonso de la Cruz, before the then Court of First Instance of
Catbalogan, Samar, with the crime of murder qualified by treachery, evident
premeditation and taking advantage of his public position, for the fatal shooting on 5
May 1981 of his comrade-in-arms, Pfc. Edino Ontuca, Officer-in-Charge of the Talalora
Police Sub-Station. 1 Two aggravating circumstances were alleged to have attended the
commission of the offense, namely, the aid of armed men, 2 and abuse of superior
strength. 3

On 28 March 1983, upon motion of the prosecution, a re-investigation was granted by

the trial court. As a result, the charge against Maj. de la Cruz was provisionally
dismissed but trial proceeded as to accused Padilla.

After trial, the court a quo convicted Sgt. Padilla of murder qualified by treachery with
the generic aggravating circumstance of taking advantage of his public position, 4 but
appreciating at the same time the mitigating circumstance of sufficient provocation in
favor of the accused. 5 After offsetting the two attendant circumstances, the court
imposed the medium of the penalty prescribed for murder, which is reclusion perpetua,
and ordered the accused to indemnify the heirs of the deceased in the sum of
P30,000.00, and to pay the costs. 6

Accused-appellant now comes to us claiming that the prosecution failed to prove his
guilt beyond reasonable doubt. Specifically, he imputes the following errors to the court
a quo: (1) in finding that he shot and killed the victim when no clear evidence supports
it; (2) in finding that the deformed slug, Exh. "I," was the same slug extracted from the
cadaver of the victim and basing its conviction thereon; and, (3) in giving high
probative value to the testimony of Pat. Daniel Q. Omega notwithstanding his apparent
bias for the victim who was his superior in the police force.
chanrobles.com:cralaw:red

Clearly, the evidence for the prosecution is woven around the testimony of Pat. Daniel
Q. Omega who gave a detailed account of the incident. On 4 May 1981, Pat. Omega
was on duty at Pier 1 in Catbalogan, Samar, from eleven o’clock in the evening to
seven o’clock the following morning. At past midnight, 5 May 1981, Pfc. Edino Ontuca,
Officer-in-Charge of the Talalora Police Sub-Station, approached him for assistance
claiming he was maltreated by strangers. Pat. Omega responded and both proceeded to
where complainant was reportedly assaulted, passing by Malayan Hotel at the pier area
to get Ontuca’s service revolver.

When they reached the corner of Rizal Avenue and Del Rosario Street, the two (2)
policemen saw three (3) men in the company of a woman. Pat. Omega approached
them, identified himself as a police officer, and then began to investigate the reported
"castigo" or manhandling of complainant. A certain C1C Belino spoke for the group. He
introduced himself first and then his companions, Maj. de la Cruz and Sgt. Padilla. At
that juncture, Pfc. Ontuca gave his name, rank and position, and then remarked, "Why
have you done this to me? Brod, we are not adversaries; we are of the same feather."
After saying this, Pat. Omega tapped Pfc. Ontuca’s shoulder and admonished the latter
saying, "Brod, let us stop; just keep silent; just go home and sleep." 7 Pfc. Ontuca took
the advice and returned to the pier with Pat. Omega. chanrobles law library

When they reached Malayan Hotel, Pfc. Ontuca stayed behind at the entrance while Pat.
Omega proceeded to the Lion’s Waiting Shed some fifty (50) meters away. Suddenly,
there was a commotion in front of the hotel. Pfc. Ontuca was being ganged up by three
(3) men. Pat. Omega then rushed towards the hotel where he saw his companion
already down on his right knee with both arms stretched behind him, his left arm held
by Maj. de la Cruz and his right by Sgt. Padilla, which C1C Belino held him by the waist
and took his service revolver away. 8 Pat. Omega tried to intervene but C1C Belino and
Maj. de la Cruz poked their pistols at him. C1C Belino disarmed Pat. Omega and handed
over his service pistol to Maj. de la Cruz who then grabbed Omega by the collar saying ,
"Let us go to the hospital because you are drunk." cralaw virtua1aw library

Pat. Omega denied that he was drunk and reasoned out that he was on duty at the pier
and would be responsible if something went wrong at his post. But Maj. de la Cruz did
not listen to him; instead, he ordered Pat. Omega and Pfc. Ontuca to go to the hospital.
The accused held the victim at the back of his waist and at the collar of his shirt as they
walked along Del Rosario Street on their way to the hospital. When they reached Lorenz
Barber Shop, Maj. de la Cruz summoned a certain Sgt. Bongosia to accompany them to
the hospital purportedly in order to have the two policemen undergo "liquor test." Sgt.
Bongosia obliged and then cocked his armalite. He even boasted that he came from
Mindanao and was not afraid of anyone. 9

All six (6), namely, Maj. de la Cruz, Pat. Omega, Pfc. Ontuca, C1C Belino, Sgt. Bongosia
and the accused then proceeded east along Curry Avenue with the accused holding Pfc.
Ontuca, followed by Sgt. Bongosia and C1C Belino to their right, then Pat. Omega and
Maj. de la Cruz. At the intersection of Curry Avenue and San Bartolome Street, Pfc.
Ontuca managed to free himself from the grasp of the accused and ran north along San
Bartolome Street. Upon reaching the intersection of Rizal Avenue and San Bartolome
Street, Pfc. Ontuca turned right, eastward. The accused, followed by Maj. de la Cruz
and Pat. Omega, pursued Pfc. Ontuca, while Sgt. Bongosia did not take the same route;
he ran straight along Curry Avenue and then turned left, north, along San Francisco
Street. C1C Belino dashed to the opposite direction, turning left towards Del Rosario
Street. When Pfc. Ontuca reached a fruit stand beside Cinex Theather, he grabbed a girl
named Lilia, an employee at the nearby Bahay Kawayan Disco situated along Callejon,
a narrow street connecting Rizal Avenue. Lilia struggled and screamed for help as Pfc.
Ontuca held her tightly by the waist, using her as a human shield against the accused
who was pointing his pistol at him. Finally, Pfc. Ontuca and Lilia fell to the ground giving
the latter a chance to escape. Left without any protection, Pfc. Ontuca squatted on the
ground and reached for a piece of plywood which he held upward to cover his head. chanroblesvirtualawlibrary

Maj. de la Cruz and Pat. Omega were just across the street standing in front of the
Bonifacio Nardo Store some fifteen (15) meters away. From where they stood, they
could clearly see the side view of the accused and the victim facing each other. The
area was fairly illuminated from the mercury lamp at the corner of Callejon and Rizal
Avenue, from the light in the gasoline station at the corner of San Francisco Street and
Rizal Avenue, and from the incandescent bulb at the Bonifacio Nardo Store. 10

Pfc. Ontuca begged for his life. "I am not going to fight with you," he said. But the
accused, showing no mercy, squeezed the trigger of his .45 cal. automatic pistol
pumping a single bullet into the head of his victim who was just some three to four
meters from him. The time was exactly two o’clock in the morning. 11 After shooting
Pfc. Ontuca, the accused backtracked and then returned to the fallen policeman, and
tauntingly kicked him saying, "Are you still alive?" The accused then went to Maj. de la
Cruz and talked to him.

Some fifteen (15) minutes later, members of the military police (MP) arrived aboard
their jeep. The MPs requested Sgt. Padilla and Maj. de la Cruz to surrender their
firearms but they refused, so the two (2) were told to go with them to the barracks and
surrender their firearms to their Commanding Officer. Maj. de la Cruz, Sgt. Padilla and
Pat. Omega obliged and walked with the MPs to the barracks. The MPs then loaded the
victim, Pfc. Ontuca, in their jeep and brought him to the Samar Provincial Hospital
where he died the following day. 12 cralawnad

Appellant Sgt. Felix Padilla has a different version. He says that at about one o’clock in
the morning of 5 May 1981, he was with the late Capt. Mario Ty and his men of the 9th
Infantry Brigade. They had just arrived from a covert operation in Bgy. Rama,
Catbalogan, Samar. Upon their arrival at Pier 1 they parted ways, he going to the house
of his first cousin Monica Racuyal at the southwest corner of Mabini Avenue and 7th
Street, Patag District, while the rest of the group proceeded to Calbayog City, home of
his brigade. He took San Bartolome Street then turned right on Rizal Avenue walking
along the right or southern side. On the left or northern side of the street near the
Cinex Theater, he noticed a man forcing himself on a woman who was struggling and
screaming for help. Being an officer of the law, he responded. He identified himself and
ordered the man to release the woman. The man ignored him and so he fired a single
warning shot into the air using his .45 cal. pistol. Before he could even lower his arm,
he heard a gun report emanating some thirty (30) meters away near the intersection of
San Bartolome Street and Rizal Avenue where the Catbalogan Hardware was located.

At that very moment, the man holding the woman slumped to the ground. He then saw
two (2) men from the street corner beside the hardware store dart towards Rizal
Avenue. Immediately, he took cover behind a parked jeep and called upon a bystander
to summon the police. From where he was, he heard someone near the Catbalogan
Hardware saying , "Patay na yan," referring to the person who had just been gunned
down. Members of the military police soon arrived and took the victim to the hospital.
13

A painstaking review of the records fails to convince us that somebody else shot the
victim to death. This Court gives credence to the contrary testimony of Pat. Daniel
Omega who narrated the events with elaborate details before, during and after the
shooting. We are satisfied, as was the trial court, with his story which rings true
throughout. chanrobles lawlibrary : rednad

The account of the defense that the victim was shot at the head by unidentified men is
inconsistent with human experience, observation and reason, and is further belied by
the positive testimony of a principal witness. The improbability of appellant’s narration
lies principally on the admitted medical findings on the point of entry of the bullet, the
size of the gunshot wound and its characteristics, as well as the location of the slug
taken from the head of the victim, all of which point to the culpability of the accused.
14

The autopsy report shows that the bullet entered the mid-parietal region of the victims’
head where the left and the right parietal bones forming part of the upper portions of
the skull unite or are joined by a bony seam called the sagittal suture that runs along a
point anterior or above the forehead and a point posterior or about the level of the ear.
15 The testimony of Dr. Caridad Quimbo, the resident physician who conducted the
post-mortem examination, as well as the diagram in the anatomical chart (Exh. "H")
marking the entrance wound, reveals that the bullet entered the roof of the skull and
embedded itself beneath the left parietal bone. From the location of the slug in relation
to the entry wound, it could be safely concluded, according to the doctor, that the
trajectory of the bullet took on a downward curve, inferring that the assailant was on a
higher plane than the victim. 16 She also observed the bursting of the edges of the
stellar shaped entrance wound indicating that the bullet was fired at close range. 17
Furthermore, the size of the gunshot wound — about 3-1/2 inches in diameter — which
caused the cerebral tissues to spill out from the cranium, was too large for the bullet to
have been fired from a distance of thirty (30) meters. chanroblesvirtualawlibrary

We find it difficult to believe that the alleged gunman fired the shot that hit the victim
at the top of his head from his right side, while the latter was at a distance struggling
with a woman at the time he was hit. Indeed, it is highly incredible 18 for a person with
ordinary shooting skills to hit an extraordinary mark at a range of thirty (30) meters
using only a handgun, especially when the target is mobile and the sight is blocked by
some persons, and the area is not comfortably lighted. Even if the shooting was
accidental, or if purposely done was consigned to chance, the probability that the bullet
would fatally hit the victim was remarkably remote.

Accused-appellant takes issue on whether the slug marked Exh. "I" could be considered
by the court notwithstanding the failure of the prosecution to formally offer it in
evidence. 19 The records show that when Fiscal Cobriros offered his evidence in court
he inadvertedly skipped Exh. "I." After he offered Exh. "H" and its sub-markings, he
proceeded to offer Exh. "J" and its sub-markings, thereby omitting to offer Exh. "I." The
accused maintains that under Sec. 35, Rule 132, of the Rules of Court, evidence not
formally offered, such as Exh. "I," cannot be considered by the court.

This is untenable. Although Exh. "I" was not formally offered, it was nevertheless duly
identified by Ireneo Ordeano, Senior Ballistician of the NBI. It was accordingly noted
and subsequently incorporated in the records. Such oversight could not be fatal to the
cause of the prosecution as its entire evidence had been recorded and the witness who
was competent to testify on the matter had properly identified the challenged exhibit.
But even without the exhibits incorporated into the records, the prosecution can still
establish its case as its principal witness properly identified Exh. "I" and his testimony
was recorded. 20 The most vital pieces of physical evidence of the prosecution — the
copper jacketed slug taken from the head of the victim and the empty shell recovered
from the scene of the crime — indubitably point to the accused as the author of the
crime.chanrobles law library : red

To strengthen the theory of the prosecution that the slug taken from the head of the
victim was fired from the pistol of the accused, the prosecution detailed the procedure
followed by the ballistics expert of the PC Crime Laboratory. The evidence specimen
shell was marked "OCA" and the four (4) test specimen shells taken from four (4) live
ammunition which were test-fired into a bullet recovery box using the pistol of the
accused were marked "T-82-1" to "T-82-4." The specimens were then mounted on a
special ballistics microscope. On the left stage was placed the evidence specimen shell,
while on the right, the standard (test) specimen shell. The microscope was so designed
for comparing ballistics empty shells with a single eyepiece where the examiner could
view both specimens side by side and thoroughly compare the impressions appearing
thereon. A photomicrograph was then taken of the objects appearing on the lens of the
microscope. 21 The results showed that the impressions on the evidence specimen shell
were identical with the impressions on the standard specimen. On the basis of the
result of the examination, the ballistics expert of the PC Crime Laboratory concluded
that the evidence specimen shell and the standard specimen shells were fired from one
and the same firearm of the accused. 22

A ballistics examination on the deformed copper jacketed slug marked Exh. "I" was also
conducted by the NBI. Following the same procedure adopted by the PC Crime
Laboratory by comparing the evidence copper jacketed slug marked Exh. "I" with the
three standard slugs marked Exhs. "L," "L-1" and "L-2," the NBI observed that the
evidence copper jacketed slug possesses identical characteristic markings with those of
the standard slugs. The conclusion reached by the NBI was that the bullets were fired
from one and the same firearm. 23 A photomicrograph was also taken of the specimens
and they vividly showed parallelism in the impressions. 24 chanrobles.com : virtual law library

Accused-appellant postulates that the evidence copper jacketed slug marked Exh. "I"
was not the same slug taken by the medico-legal officer from the head of the victim
during the post-mortem examination. According to appellant, it was physically
impossible to conduct a ballistics examination on the evidence slug because it was in a
"disintegrated form" and was "fragmented in smaller bits" when taken out of the head
of the victim. The accused also banks on the inconsistency between the finding of Dr.
Quimbo that the evidence slug was covered with a "bronze jacket" and the NBI ballistics
expert who said that the slug was coated with a "copper jacket."25 cralaw:red

There is nothing in the records to show that the evidence copper jacket was splintered
into several pieces when it was taken out of the head of the deceased. Neither is there
evidence on record to show that the evidence slug examined by the NBI ballistics
expert is different from that extracted by Dr. Quimbo from the victim. The ballistics
report of the NBI Criminalistics Division showed that the evidence slug submitted for
examination on 24 February 1984 in People v. Sgt. Felix Padilla was one-piece
deformed copper jacketed slug fired from a .45 cal. pistol, and not a fragmented slug.
Accused-appellant should not rely on the recollection of Dr. Quimbo as to the form or
shape of the evidence slug. The post-mortem examination on the body of the victim
was made more than a year before Dr. Quimbo testified and she herself admitted that
she was no longer certain on the shape or form of the evidence slug 26 as she was
more concerned with the post-mortem examination of the cadaver and not with forensic
ballistics examination.chanrobles.com.ph : virtual law library

Finally, Accused-appellant asserts that the testimony of Pat. Omega should not have
been accepted with precipitate credulity since the witness was too partial for the victim
who was his superior in the police force. This argument is patently flawed. The
credibility of a principal witness is a perennial object of attack by an accused in distress
who endlessly fabricates convenient tales and incredible notions to impugn a
particularly damaging testimony. We quote with approval the observation of the
Solicitor General 27 —

There is not a whit of truth to this claim considering that Ontuca was already dead at
the time Pat. Omega gave testimony of the criminal incident. Moreover, the defense
has shown no motive for personal or financial gain on the part of Pat. Omega when he
testified and provided the trial court with the facts on the commission of the crime.

Moreover, as the trial judge observed of the deportment of principal witness Pat.
Omega: "Omega is a peace officer. He testified in a straightforward manner. His
testimony has the ring of truth. No credible reason has been given why said witness
would testify except to tell the truth." cralaw virtua1aw library

While we affirm the conviction of accused-appellant, we take exception to the findings

of the court a quo on the attendant circumstances. We do not agree that there was
treachery in the killing of the victim to qualify it to murder. There was no treachery or
alevosia because the accused did not deliberately employ means, methods or forms in
the mode of his attack which tended directly and specially to insure his safety from any
offensive or retaliatory act the victim might make. Appellant did not consciously adopt a
particular method or manner of killing the victim that would eliminate any risk to
himself, for it was not until Pfc. Ontuca and the woman he was holding hostage
accidentally fell to the ground that appellant was accorded the instant opportunity to kill
his victim with facility. 28 chanrobles virtual lawlibrary

In the early case of People v. Cañete, 29 we held that" [t]he circumstance that the
deceased had fallen to the ground gave to the accused, it is true, the opportunity, of
which he promptly availed himself, to come up with the deceased and to dispatch him
at once. But that act of so doing cannot be interpreted as evincing a design to employ a
method indicative of alevosia. The contrary is true in the case where the victim is bound
before being slain or is driven to take refuge behind the closed door of a closet." cralaw virtua1aw library

Moreover, the assault on the victim was not made in a sudden and unexpected manner.
Pfc. Ontuca apparently sensed the sinister plan of his malefactors when he fled and
forcibly took a woman hostage to use as a human shield. Clearly, the victim was
forewarned of a graver evil when accused and his companions mauled him, and when
Maj. de la Cruz had to summon an armed military man purportedly to bring him and
Pat. Omega to the hospital for a "liquor test." cralaw virtua1aw library
The absence of treachery or alevosia notwithstanding, the crime committed by accused-
appellant is still murder. The killing was qualified by the aggravating circumstance of
abuse of superior strength which was alleged in the information and proved during the
trial. 30 Abuse of superior strength is present not only when the offenders enjoy
numerical superiority, or there is a notorious inequality of forces between the victim
and the aggressor, but also when the offender uses a powerful weapon which is out of
proportion to the defense available to the offended party. The accused was armed with
a powerful pistol which he purposely used, gaining him an advantage over his victim
who only had a piece of plywood to cover himself after he was disarmed. 31 chanrobles virtual lawlibrary

The accused did not abuse his public position in committing the crime. For this
circumstance to be appreciated as aggravating, the public official must use his
influence, prestige and ascendancy which his office gives him in realizing his purpose. It
could not be said that the accused purposely used or took advantage of his position or
rank in killing the victim because he could have committed the crime just the same by
using another weapon not necessarily his service firearm. Besides, Pfc. Ontuca, himself
a military man, resisted the assault on his person and did not adhere to the accused,
nor to C1C Belino, neither to Maj. de la Cruz, who was a ranking officer of the Philippine
Air Force. 32

Sufficient provocation could neither mitigate the criminal liability of the accused. He
cannot claim that he was provoked by Pfc. Ontuca when the latter ran away from him
because, understandably so, the hapless victim feared for his life having been beaten
up twice by his assailants that same evening. To flee when danger lurks is human and
can never be regarded as a source of provocation sufficient to come within the ambit of
The Revised Penal Code. In fact, when an offended party flees from his aggressor, the
latter has no reason to pursue and attack him. chanrobles.com:cralaw:red

All told, the crime committed by accused-appellant is murder qualified by abuse of

superior strength. The penalty for murder is reclusion temporal maximum to death. In
the absence of any mitigating or aggravating circumstance, the penalty should be, as
correctly imposed by the court a quo, reclusion perpetua, which is the penalty for
murder.

WHEREFORE, the judgment of the court a quo finding accused-appellant SGT. FELIX
PADILLA guilty of murder and imposing upon him the penalty of reclusion perpetua is
AFFIRMED, with the modification that the civil indemnity of P30,000.00 awarded to the
heirs of the deceased Pfc. Edino Ontuca is increased to P50,000.00. Costs
against Accused-Appellant. chanrobles virtual lawlibrary

SO ORDERED.
People v. CA, G.R. No. 103613, February 23, 2001

G.R. No. 103613       February 23, 2001

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS and ELADIO C. TANGAN, respondents.

x------------------x
G.R. No. 105830       February 23, 2001

ELADIO C. TANGAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

YNARES-SANTIAGO, J.:

At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on
Roxas Boulevard heading south. He had just come from Buendia Avenue on an intelligence
operation. At the same time, Generoso Miranda, a 29-year old optometrist, was driving his car in the
same direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from the
Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in
Generoso's way, causing him to swerve to the right and cut Tangan's path. Tangan blew his horn
several times. Generoso, slowed down to let Tangan pass. Tangan accelerated and overtook
Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to
overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road,
Tangan slowed down to make a U-tum. Generoso passed him, pulled over and got out of the car
with his uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangan's car,
Generoso loudly retorted, " Putang ina mo, bakit mo ginigitgit ang sasakyan ko?" Generoso and
Tangan then exchanged expletives. Tangari pointed his hand to Generoso and the latter slapped it,
saying, "Huwag mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo?" Tangan
countered, "Ikaw, ano ang gusto mo?" With this, Tangan went to his car and got his .38 caliber
handgun on the front seat. The subsequent events per account of the parties' respective witnesses
were conflicting:

According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and
Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel
Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the
accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at
a distance of about a meter but because the arm of the accused was extended, the muzzle
of the gun reached to about more or less one foot away from the body of Generoso Miranda.
The shot hit the stomach of Generoso Miranda causing the latter to fall and while still
conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel
Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz
intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man
wearing a red T-shirt took the gun from her. The man in T-shirt was chased by Manuel
Miranda who was able to get the gun where the man in red T-shirt placed it.

On the other hand, the defense, particularly the accused and his witness by the name of
Nelson Pante claimed that after the gun was taken by the accused from inside his car, the
Mirandas started to grapple for possession of the gun and during the grappling, and while
the two Mirandas were trying to wrest away the gun from the accused, they fell down at the
back of the car of the accused. According to the accused, he lost the possession of the gun
after falling at the back of his car and as soon as they hit the ground, the gun fell, and it
exploded hitting Generoso Miranda.1

After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His
uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued
him. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told the
policeman that Tangan had just shot his nephew. Then he went back to where Generoso lay and
there found two ladies, later identified as Mary Ann Borromeo and Rosalina Cruz, helping his
nephew board a taxi. Manuel suggested that Generoso be brought to the hospital in his car. He was
rushed to the Philippine General Hospital but he expired on the way. 1âwphi1.nêt

Tangan was charged with the crime of murder with the use of an unlicensed firearm. 2 After a
reinvestigation, however, the information was amended to homicide with the use of a licensed
firearm,3 and he was separately charged with illegal possession of unlicensed firearm. 4 On
arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the
information for illegal possession of unlicensed firearm on various grounds. The motion to quash
was denied, whereupon he filed a petition for certiorari with this Court. 5 On November 5, 1987, said
petition was dismissed and the joint trial of the two cases was ordered. 6

During the trial, the prosecution and the defense stipulated on the following: that the amount of
P126,000.00 was incurred for the funeral and burial expenses of the victim; 7 that P74,625.00 was
incurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of
which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal
possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of
incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on the
part of the offended party and of passion and obfuscation were appreciated in his favor;
consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months
of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as
maximum, and to indemnify the heirs of the victim.8 Tangan was released from detention after the
promulgation of judgment and was allowed bail in the homicide case.

Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court,
docketed as G.R. No. 102677, challenging the civil aspect of the court a quo's decision, but the
same was dismissed for being premature. On the other hand, Tangan appealed to the Court of
Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to
P50,000.00.10 His subsequent motion for reconsideration and a motion to cite the Solicitor General in
contempt were denied by the Court of Appeals. 11

The office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion,
filed a petition for certiorari under Rule 65, docketed as G.R. No.103613, naming as respondents the
Court of Appeals and Tangan, where it prayed that the appellate court's judgment be modified by
convicting accused-appellant of homicide without appreciating in his favor any mitigating
circumstance.12 Subsequently, the Office of the Solicitor General, this time acting for public
respondent Court of Appeals, filed a motion for extension to file comment to its own petition for
certiorari.13 Discovering its glaring error, the Office of the Solicitor General later withdrew its motion
for extension of time.14 Tangan filed a Reply asking that the case be submitted for decision. 15

Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No.
105830.16 Since the petition for certiorari filed by the Solicitor General remained unresolved, the two
cases were consolidated.17 The Office of the Solicitor General filed a manifestation in G.R. No.
105830, asking that it be ex6used from filing a comment to Tangan's petition for review, in order to
avoid taking contradictory positions.18

In the recent case of People v. Velasco and Galvez,19 we held that the prosecution cannot avail of
the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal
cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State
in a criminal case to correct a lower court's factual findings or evaluation of the evidence. 20

Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:

 Former conviction or acquittal; double jeopardy. - When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express
consent by a court of competent jurisdiction, upon a valid complaint or information or other
fom1al charge sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the
case shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an
offense which, necessarily includes the offense charged in the former complaint or
information under any of the following instances:

(a) the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after a
pleas was entered in the former complaint or information; or

(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of
the offended party, except as provided in section 1(f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the event of conviction for the graver
offense.

Based on the foregoing, the Solicitor General's petition for certiorari under Rule 65, praying that no
mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed
on him be correspondingly increased, constitutes a violation of Tangan's right against double
jeopardy and should be dismissed.

We now come to the petition for review filed by Tangan. It is noteworthy that during the trial,
petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally shot. As
such, the burden of proving self-defense, 21 which normally would have belonged to Tangan, did not
come into play. Although Tangan must prove his defense of accidental firing by clear and convincing
evidence,22 the burden of proving the commission of the crime remained in the prosecution.

Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating
circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the
Revised Penal Code, to wit:

ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

Third. Lack of sufficient provocation on the part of the person defending himself.

 xxx      xxx      xxx

ARTICLE 13. Mitigating Circumstances. - The following are mitigating circumstances:

1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the
act or to exempt from criminal liability in the respective cases are not attendant.

Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance;
hence, the burden of proving the crime charged in the information is not shifted to the accused. 23 In
order that it may be successfully appreciated, however, it is necessary that a majority of the
requirements of self-defense be present, particularly the requisite of unlawful aggression on the part
of the victim.24 Unlawful aggression by itself or in combination with either of the other two requisite
suffices to establish incomplete self-defense. Absent the unlawful aggression, there can never be
self-defense, complete or incomplete, 25 because if there is nothing to prevent or repel, the other two
requisites of defense will have no basis.26

There is no question that the bullet which hit the victim was fired from the caliber. 38, which was
issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to
gunshot wound of the abdomen, caused by the bullet fired from a gun of the said caliber. The
prosecution claimed that Tangan shot the victim point-blank in the stomach at a distance of about
one foot. On the other hand, Tangan alleged that when he grappled with Generoso and Manuel
Miranda for possession of the gun, it fell to the ground and accidentally fired, hitting the victim.

When the testimonies of witnesses in open court are conflicting in substantial points, the calibration
of the records on appeal becomes difficult. It is the word of one party against the word of the other.
The reviewing tribunal relies on the cold and mute pages of the records, unlike the trial court which
had the unique opportunity of observing first-hand that elusive and incommunicable evidence of the
witness' deportment on the stand while testifying. 27 The trial court's assessments of the credibility of
witnesses is accorded great weight and respect on appeal and is binding on this Court, 28 particularly
when it has not been adequately demonstrated that significant facts and circumstances were shown
to have been overlooked or disregarded by the court below which, if considered, might affect the
outcome hereof.29 The rationale for this has been adequately explained in that,

The trial court has the advantage of observing the witnesses through the different indicators
of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden
pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone
of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the
sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the
candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage and
mien.30

Equally, when a person fabricates a story, he usually adopts a simple account because a complex
one might lead to entanglement from which he may find it hard to extricate himself. Along the same
line, the experience of the courts and the general observations of humanity teach us that the natural
limitations of our inventive faculties are such that if a witness delivers in court a false narrative
containing numerous details, he is almost certain to fall into fatal inconsistencies to make statements
which can be readily refuted, or to expose in his demeanor the falsity of his message. 31 Aside from
this, it is not also unusual that the witness may have been coached before he is called to the stand
to testify.

Somewhere along the painstaking review of the evidence on record, one version rings the
semblance of truth, not necessarily because it is the absolute truth, but simply because it is the best
approximation of the truth based on the declarations of witnesses as corroborated by material
evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said,
are not always opposed to each other like black and white, but oftentimes, and by design, are made
to resemble each other so as to be hardly distinguishable. 32 Thus, after analyzing the conflicting
testimonies of the witnesses, the trial court found that:

When the accused took the gun from his car and when he tried to get out of the car and the
two Mirandas saw the accused already holding the gun, they started to grapple for the
possession of the gun that it went off hitting Generoso Miranda at the stomach. The court
believes that contrary to the testimony of the accused, he never lost possession of the gun
for if he did and when the gun fell to the ground, it will not first explode or if it did, somebody
is not holding the same, the trajectory of the bullet would not be perpendicular or horizontal. 33

The Court of Appeals agreed -

The finding of the lower court that Generoso Miranda III was shot while the accused and the
Mirandas were grappling for the possession of the gun immediately after the accused had
taken his gun from inside his car and before the three allegedly fell to the ground behind the
car of the accused is borne out by the record. The court also agrees with the court below that
it was the accused-appellant who shot and killed Generoso Miranda III. If the accused-
appellant did not shoot Generoso III during the scuffle, he would have claimed accidental
killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he
and the Mirandas fell to the ground behind his car and the gun exploded in the possession of
Manuel Miranda. The theory of the prosecution that the shooting took place while the three
were grappling for the possession of the gun beside the car of appellant is completely in
harmony with the findings and testimony of Dr. Ibarrola regarding the relative position of the
three and the precarious nearness of the victim when accused-appellant pulled the trigger of
his gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance
wound and that its position was almost perpendicular when it was fired. It was in fact the
closeness of the Mirandas vis-à-vis appellant during the scuffle for the gun that the accused-
appellant was compelled to pull the trigger in answer to the instinct of self-preservation. 34

No convincing reason appears for the Court to depart from these factual findings, the same being
ably supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical
report or the autopsy on the cadaver of the victim must as much as possible narrate the
observations on the wounds examined. It is material in determining the truthfulness of the events
narrated by the witnesses presented. It is not enough that the witness looks credible and assumes
that he indeed witnessed the criminal act. His narration must be substantiated by the physical
evidence available to the court.

The medical examiner testified that the distance between the muzzle of the gun and the target was
about 2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory
transit of the wound, the victim and the alleged assailant were facing each other when the shot was
made and the position of the gun was almost perpendicular when fired. 35 These findings disprove
Tangan's claim of accidental shooting. A revolver is not prone to accidental firing because of the
nature of its mechanism, unless it was already first cocked and pressure was exerted on the trigger.
If it were uncocked, then considerable pressure had to be applied on the trigger to fire the revolver. 36

Having established that the shooting was not accidental, the next issue to be resolved is whether
Tangan acted in incomplete self-defense. The element of unlawful aggression in self-defense must
not come from the person defending himself but from the victim.
A mere threatening or intimidating attitude is not sufficient. 37 Likewise, the exchange of insulting
words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could
not be considered as unlawful aggression, except when coupled with physical assault. 38 There being
no lawful aggression on the part of either antagonists, the claim of incomplete self-defense falls.
Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him.
It may be said that the former had no intention of killing the victim but simply to retain possession of
his gun. However, the fact that the victim subsequently died as a result of the gunshot wound,
though the shooter may not have the intention to kill, does not absolve him from culpability. Having
caused the fatal wound, Tangan is responsible for all the consequences of his felonious act. He
brought out the gun, wrestled with the Mirandas but anticipating that the gun may be taken from him,
he fired and fled.

The third requisite of lack of sufficient provocation on the part of the person defending himself is not
supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times,
Tangan was in effect the one who provoked the former. The repeated blowing of horns, assuming it
was done by Generoso, may be irritating to an impatient driver but it certainly could not be
considered as creating so powerful an inducement as to incite provocation for the other party to act
violently.

The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and
obfuscation under Article 13, paragraphs 4 and 6, 39 have no factual basis. Sufficient provocation as a
requisite of incomplete self-defense is different from sufficient provocation as a mitigating
circumstance. As an element of self-defense, it pertains to its absence on the part of the person
defending himself; while as a mitigating circumstance, it pertains to its presence on the part of the
offended party. Besides, only one mitigating circumstance can arise out of one and the same
act.40 Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking can
be considered as acts of provocation, the same were not sufficient. The word "sufficient" means
adequate to excite a person to commit a wrong and must accordingly be proportionate to its
gravity.41 Moreover, Generoso's act of asking for an explanation from Tangan was not sufficient
provocation for him to claim that he was provoked to kill or injure Generoso. 42

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1)
there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act
which produced the obfuscation was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator might recover his normal equanimity. 43

In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden
and unexpected occurrence which wuld have created such condition in his mind to shoot the victim.
Assuming that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can
no longer be treated as a startling occurrence, precisely because he had already passed them and
was already the one blocking their path. Tangan's acts were done in the spirit of revenge and
lawlessness, for which no mitigating circumstance of passion or obfuscation can arise.

With respect to the penalty, under the laws then existing, homicide was penalized with reclusion
temporal,44 but if the homicide was committed with the use of an unlicensed firearm, the penalty shall
be death.45 The death penalty, however, cannot be imposed on Tangan because in the meantime,
the 1987 Constitution proscribed the imposition of death penalty; and although it was later restored
in 1994, the retroactive application of the death penalty is unfavorable to him. Previously the
accused may be prosecuted for two crimes: (1) homicide or murder under the Revised Penal Code
and (2) illegal possession of firearm in its aggravated form under P.D. 1866. 46
P.D. 1866 was amended by R.A. No. 8294,47 which provides that if an unlicensed firearm is used in
murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating
circumstance and no longer considered as a separate offense, 48 which means that only one offense
shall be punished - murder or homicide. However, this law cannot apply retroactively because it will
result in the imposition on Tangan of the maximum period of the penalty. Moreover, under Rule 110,
Section 8 of the Revised Rules of Criminal Procedure, 49 the aggravating circumstance must be
alleged in the information. Being favorable, this new rule can be given retroactive effect as they are
applicable to pending cases.50 In any case, Tangan was acquitted of the illegal possession case.

Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to

Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and
there is neither mitigating nor aggravating circumstance, the medium period shall be applied.
Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty shall be that
which, in view of the attendant circumstances, may be properly imposed, which in this case
is reclusion temporal medium with an imprisonment range of from fourteen (14) years, eight (8)
months and one (1) day to seventeen (17) years and four (4) months. The minimum of the
indeterminate sentence shall be the next lower degree which is prision mayor with a range of from
six (6) years and one (1) day to twelve (12) years.51 Hence, petitioner Tangan is sentenced to an
indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum; to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal, as maximum.

The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in
line with jurisprudence.52 Moral damages are awarded in criminal cases involving injuries if supported
by evidence on record,53 but the stipulation of the parties in this case substitutes for the necessity of
evidence in support thereof. Though not awarded below, the victim's heirs are entitled to moral
damages in the amount of P50,000.00 which is considered reasonable considering the pain and
anguish brought by his death.54

WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of
G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS:

(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1)
day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal, as maximum, with all the accessory penalties.

(2) Tangan is ordered to pay the victim's heirs P50,000.00 as civil indemnity, P42,000.00 as
funeral and burial expenses, P5,000.00 as attorney's fees, and P50,000.00 as moral
damages.

SO ORDERED.

People v. Ignas, G.R. Nos. 140514-15, September 30, 2003

[G.R. Nos. 140514-15. September 30, 2003.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JUNE IGNAS y

SANGGINO, Accused-Appellant.

DECISION

QUISUMBING, J.:
In the amended decision 1 dated June 2, 1999, in Criminal Case No. 96-CR-2522, the
Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8, found appellant June
Ignas y Sanggino guilty of murder aggravated especially by the use of an unlicensed
firearm. Appellant was initially sentenced to suffer the penalty of reclusion perpetua, 2
but on motion for reconsideration by the prosecution, the penalty was upgraded to
death by lethal injection. 3 Hence, the case is now before us for automatic review. chanrob1es virtua1 1aw 1ibrary

Appellant is an elementary school graduate. He resided at Cruz, La Trinidad, Benguet,

where he operated a bakery. 4 He is married to Wilma Grace Ignas, by whom he has a
son of minor age. 5 Wilma Grace used to be the cashier of Windfield Enterprise, which
is owned by Pauline Gumpic. 6 Pauline had a brother, Nemesio Lopate. It was he whom
appellant fatally shot.

In the amended Information, 7 pursuant to Section 14, Rule 110 8 of the 1985 Rules of
Criminal Procedure, the Provincial Prosecutor of Benguet charged appellant as follows:
1aw library
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That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality of La
Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, without any authority of law or without any lawful permit did then and there
willfully, unlawfully and knowingly have in his possession, control and custody a
Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and ammunitions were
used by the accused in unlawfully killing NEMESIO LOPATE at the above-mentioned
place and date in violation of the said law.

CONTRARY TO LAW. 9

Appellant was arraigned and pleaded not guilty to the foregoing amended information.
The case then proceeded to be heard on the merits.

Gleaned from the records, the facts of this case are as follows: chanrob1es virtual 1aw library

Sometime in September 1995, appellant’s wife, Wilma Grace Ignas, confided to her
close friend, Romenda 10 Foyagao, that she was having an affair with Nemesio Lopate.
11

On the evening of October 16, 1995, Wilma Grace, Romenda, and Nemesio went to
Manila. Romenda and Nemesio were sending off Wilma Grace at the Ninoy Aquino
International Airport as she was leaving for Taiwan to work as a domestic helper. Upon
arrival in Manila, the trio checked at Dangwa Inn, with Nemesio and Wilma Grace
sharing a room. 12 All three of them stayed at the inn until October 18, 1995, when
Wilma Grace left for Taiwan. 13

Thereafter, Romenda received from Taiwan four letters written by Wilma Grace on
various dates. Although all the letters were addressed to Romenda, two of them were
meant by Wilma Grace to be read by her paramour, Nemesio. 14 In the other two
letters, Wilma Grace instructed Romenda to reveal to appellant her affair with Nemesio.

It was only sometime late in February 1996 that Romenda, following her bosom friend’s
written instructions, informed appellant about the extramarital affair between Wilma
Grace and Nemesio. Romenda informed him that the two had spent a day and a night
together in a room at Dangwa Inn in Manila. 15 Appellant became furious. He declared
"Addan to aldaw na dayta nga Nemesio, patayek dayta nga Nemesio" (There will be a
day for that Nemesio. I will kill that Nemesio). 16 Appellant then got all the letters of
Wilma Grace from Romenda. 17

That same week Alfred Mayamnes, appellant’s neighbor who was presented at the trial
as a prosecution witness, had a talk with appellant. Mayamnes was an elder of the
Kankanaey tribe to which appellant belonged. He wanted to confirm whether Nemesio
Lopate, who was likewise from the same tribe, 18 was having an affair with appellant’s
spouse. Talk apparently had reached the tribal elders and they wanted the problem
resolved as soon as possible. 19 A visibly angry appellant confirmed the gossip. 20
Mayamnes also testified that he advised Nemesio to stay at the Mountain Trail
Kankanaey community until things had cooled down. 21

Shortly after their talk, appellant closed down his bakeshop and offered his equipment
for sale. Among the potential buyers he approached was Mayamnes, but the latter
declined the offer. 22

Sometime during the first week of March, Mayamnes saw appellant load his bakery
equipment on board a hired truck and depart for Nueva Vizcaya. 23

At around 10:00 p.m. of March 10, 1996, according to another prosecution witness,
Annie Bayanes, a trader in vegetables, she was at the Trading Post, La Trinidad,
Benguet. 24 The Trading Post is a popular depot where vegetable growers in the
Cordilleras bring their produce late in the evenings for sale to wholesalers and retailers.
Witness Bayanes said she was at the unloading area (bagsakan), conversing with
another dealer at the latter’s booth, when suddenly two gunshots shattered the quiet
evening.25 cralaw:red

Bayanes turned towards the place where the sound of the gunshots came from. She
testified that she saw a person falling to the ground. 26 Standing behind the fallen
individual, some 16 inches away, 27 was another person who tucked a handgun into his
waistband and casually walked away. 28

Initially, she only saw the gunman’s profile, but when he turned, she caught a glimpse
of his face. 29 She immediately recognized him as the appellant June Ignas. She said
she was familiar with him as he was her townmate and had known him for several
years. Witness Bayanes was five or six meters away from the scene, and the taillight of
a parked jeepney, which was being loaded with vegetables, plus the lights from the roof
of the bagsakan, aided her recognition of appellant. 30

Also at the bagsakan area that night was prosecution witness Marlon Manis. He testified
that on hearing gunshots from the Trading Post entrance, he immediately looked at the
place where the gunfire came from. He saw people converging on a spot where a
bloodied figure was lying on the ground. 31 Witness Manis saw that the fallen victim
was Nemesio Lopate, whom he said he had known since Grade 2 in elementary school.
32 Manis then saw another person, some 25 meters away, hastily walking away from
the scene. He could not see the person’s face very well, but from his gait and build, he
identified the latter as his close friend and neighbor, June Ignas. 33 Manis said that the
scene was very dimly lit and the only illumination was from the lights of passing
vehicles, but he was familiar with appellant’s build, hairstyle, and manner of walking.
34

Prosecution witness Mona Barredo, a bakery worker, testified that she knew appellant.
She said they were co-workers formerly at the Annaliza Bakery at Km. 10, Shilan, La
Trinidad, Benguet. 35 Barredo declared that at around 10:30 p.m. of March 10, 1996,
appellant came to her residence at Pico, La Trinidad. After being served refreshments,
appellant took out a handgun from his jacket and removed the empty shells from the
chamber. 36 Appellant then told her to throw the empty cartridges out of the window.
Because of nervousness she complied. 37 Barredo also said that appellant disclosed to
her that he had just shot his wife’s paramour. 38 Appellant then stayed at her house for
8 or 9 hours; he left only in the morning of March 11, 1996, 39 according to her. Police
investigators later recovered the spent gun shells from witness Barredo’s sweet potato
garden. 40

According to witness on the scene, responding policemen immediately brought the

victim, Nemesio Lopate, to the Benguet General Hospital where he was pronounced
dead on arrival. 41

Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet, testified during
that trial that she conducted the post-mortem examination of the victim’s cadaver.
Among her findings were: chanrob1es virtual 1aw library

1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on
the right side of the mouth, above the edge of the upper lip

x          x           x

3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the
upper lip on the left side

x          x           x

9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with
blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal space,
subscapular area, 13 cm. from the midline, directed to the left side of the chest, 38.0
cm. from the embedded bullet slug of the left shoulder. 42

Dr. Jovellanos determined the cause of death to be "Hypovolemia due to gunshot

wound, back, right, (Point of Entry — fifth intercostal space subscapular area)." 43 She
further stated on the witness stand that she recovered a bullet from the victim’s left
shoulder, which she turned over to the police investigators. 44 According to her, given
the blackened edges of the gunshot wound at the victim’s back, Nemesio was shot from
a distance of less than three (3) feet. 45

On March 14, 1996, police investigators accompanied by one of appellant’s brother as

well as prosecution witness Julio Bayacsan, a friend of appellant, went to Kayapa,
Nueva Vizcaya, to invite appellant to shed light on the slaying of Nemesio. The law
enforcers found appellant selling bread at Kayapa and brought him back to La Trinidad,
Benguet. 46

Witness Bayacsan testified that shortly after they arrived from Kayapa, he had an
opportunity to talk with appellant at the La Trinidad Police Station. There, appellant
disclosed to this witness that he shot and killed Nemesio. 47 Bayacsan, however, did
not inform the police about appellant’s revelation as he considered appellant his good
friend. 48

Prosecution witness Pauline Gumpic, the victim’s sister, testified that she and appellant
had a private talk, while the latter was in police custody, and appellant admitted to her
that he killed her brother. 49 Gumpic declared that appellant revealed to her that he
shot Nemesio for having illicit relations with appellant’s wife and failing to ask for his
forgiveness. 50

SPO4 Arthur Bomagao 51 of the La Trinidad police, who headed the team that
investigated the fatal shooting of Nemesio, declared on the stand that appellant
voluntarily admitted to him that he shot the victim with a .38 caliber handgun. 52
Bomagao further testified that appellant surrendered to him the letters of Wilma Grace,
wherein the latter admitted her affair with Nemesio. 53

Appellant interposed the defense of alibi. Sometime during the last week of February
1996, he said, he entered into a partnership with a friend and fellow baker, Ben Anoma,
to operate a bakery in Kayapa, Nueva Vizcaya. 54 Appellant claimed that he was having
a hard time operating his bakeshop in La Trinidad as he had no helpers. When Anoma
proposed a business arrangement, he added, he immediately seized the opportunity. 55
On March 8, 1996, he and Anoma then transferred his equipment to Anoma’s bakery in
Kayapa, 56 which is some four (4) to five (5) hours away from La Trinidad, according to
appellant. He averred that he was baking bread with Anoma in Kayapa on the night
Nemesio was killed. 57 Under oath, appellant said that he never left Kayapa since his
arrival on March 8, 1996. He and Anoma were engrossed in baking and marketing their
produce, he testified, until the policemen from La Trinidad brought him back to Benguet
for questioning on March 14, 1996. 58

Defense witness Ben Anoma corroborated appellant’s alibi. Anoma declared that during
the last week of February 1996, he met with appellant in La Trinidad. There, the
witness said, he proposed a partnership with appellant in the baking business to be
based in Kayapa. 59 Appellant agreed and on March 8, 1996, they transferred
appellant’s equipment to Kayapa. 60 They immediately commenced their operations
and on the evening of March 10, 1996, he and appellant baked bread at his bakery in
Kayapa until 11:00 p.m., when they rested for the night. 61

The trial court disbelieved appellant’s defense and sustained the prosecution’s version.
Its initial judgment reads:
chanrob1es virtua1 1aw 1ibrary

WHEREFORE, premises considered, the accused June Ignas is hereby found GUILTY
beyond reasonable doubt of the crime of MURDER as defined and penalized under
Article 248 of the Revised Penal Code, and considering the aggravating circumstances
of treachery, nighttime and the special aggravating circumstance of the use of an
unlicensed firearm, without any mitigating circumstance, he is hereby sentenced to
suffer the penalty of Reclusion Perpetua. He is further sentenced to pay the heirs of the
VICTIM the following sums: chanrob1es virtual 1aw library

1. P150,000.00 for funeral expenses and those incurred for and during the wake;

2. P1,800,000.00 for unearned income;

3. P50,000.00 as death compensation established by jurisprudence; and

4. P50,000.00 as and for moral damages; and

5. P20,000.00 as attorney’s fees.

Costs against the accused.

SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad, Benguet,

Philippines. 62

Both the prosecution and the defense filed their respective motions for reconsideration.
The prosecution sought the imposition of the death penalty. 63 The defense prayed for
acquittal on the ground of reasonable doubt.

On June 2, 1999, the trial court granted the prosecution’s motion. It amended its
judgment to read as follows: chanrob1es virtual 1aw library

WHEREFORE, premises considered, the accused June Ignas is hereby found GUILTY
beyond reasonable doubt of the crime of MURDER as defined and penalized under
Article 248 of the Revised Penal Code, and considering the aggravating circumstances
of treachery, nighttime and the special aggravating circumstance of the use of an
unlicensed firearm, without any mitigating circumstance, he is hereby sentenced to
suffer the penalty of death by lethal injection. He is further sentenced to pay the heirs
of the victim the following sums: chanrob1es virtual 1aw library

1. P150,000.00 for funeral expenses and those incurred for and during the wake;

2. P2,040,000.00 for unearned income;

3. P50,000.00 as death compensation established by jurisprudence; and

4. P50,000.00 as and for moral damages; and

5. P20,000.00 as attorney’s fees.

Costs against the accused.

SO ORDERED in Chambers. 64
Hence, this automatic review, with appellant imputing the following errors to the court
a quo:chanrob1es virtual 1aw library

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE WEAKNESS OF
THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

II

THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED
EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSED-APPELLANT DESPITE ITS BEING
HEARSAY IN NATURE AND IN VIOLATION OF HIS RIGHTS UNDER CUSTODIAL
INVESTIGATION.

III

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE TO THE
DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT.

IV

ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT

GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF THE DECEASED WAS
ATTENDED BY EVIDENT PREMEDITATION, TREACHERY AND NIGHTTIME.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT APPRECIATED THE

ALLEGED USE OF AN UNLICENSED .38 CALIBER FIREARM AS AN AGGRAVATING
CIRCUMSTANCE IN THE COMMISSION OF THE CRIME OF MURDER WITHOUT ANY
FACTUAL AND LEGAL BASIS.

VI

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT APPRECIATE IN
FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING CIRCUMSTANCES OF
IMMEDIATE VINDICATION OF A GRAVE OFFENSE, PASSION AND OBFUSCATION AND
VOLUNTARY SURRENDER.

VII

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED EXCESSIVE

DAMAGES IN THE FORM OF FUNERAL EXPENSES AND UNEARNED INCOME OF THE
DECEASED WHICH WERE NOT SUFFICIENTLY PROVEN. 65

Appellant’s assigned errors may be reduced to the following pertinent issues: (1) the
nature of the crime committed, if any; (2) the sufficiency of the prosecution’s evidence
to prove appellant’s guilt; (3) the correctness of the penalty; and (4) the propriety of
the damages awarded.

1. Murder or Homicide

Assuming arguendo that the evidence on record suffices to sustain the appellant’s
conviction for the unlawful killing of Nemesio Lopate, the question arises: Was the
killing murder as found by the trial court or mere homicide? Note that the amended
information under which the appellant stands charged does not, unlike the original
information, charge appellant with murder but with mere "unlawful killing" albeit
through the use of an unlicensed firearm. Note further that the amended information
does not definitely and categorically state that the "unlawful killing" was attended by
the aggravating or qualifying circumstances of treachery, evident premeditation, and
nocturnity.

The 2000 Revised Rules of Criminal Procedure requires that the qualifying and
aggravating circumstances must be specifically alleged in the information. 66 Although
the Revised Rules of Criminal Procedure took effect only on December 1, 2000 or long
after the fatal shooting of Nemesio Lopate, as a procedural rule favorable to the
accused, it should be given retrospective application. Hence, absent specific allegations
of the attendant circumstances of treachery, evident premeditation, and nocturnity in
the amended information, it was error for the trial court to consider the same in
adjudging appellant guilty of murder. As worded, we find that the amended information
under which appellant was charged and arraigned, at best indicts him only for the crime
of homicide. Any conviction should, thus, fall under the scope and coverage of Article
249 67 of the Revised Penal Code. chanrob1es virtua1 1aw 1ibrary

As for the separate case for illegal possession of firearm, we agree with the trial court’s
order to dismiss miss the information for illegal possession of firearm and ammunition
in Criminal Case No. 97-CR-2753. 68 Under R.A. No. 8294, 69 which took effect on July
8, 1997, where murder or homicide is committed with the use of an unlicensed firearm,
the separate penalty for illegal possession of firearm shall no longer be imposed since it
becomes merely a special aggravating circumstance. 70 This Court has held in a
number of cases 71 that there can be no separate conviction of the crime of illegal
possession of firearm where another crime, as indicated by R.A. No. 8294, is
committed. Although R.A. No. 8294 took effect over a year after the alleged offense
was committed, it is advantageous to the appellant insofar as it spares him from a
separate conviction for illegal possession of firearms and thus should be given
retroactive application. 72

2. Sufficiency of the Prosecution’s Evidence

But is the prosecution’s evidence sufficient to sustain a conviction for homicide?

Appellant primarily contest the accuracy of the identification made by the prosecution
witnesses who testified that they saw him at the locus criminis, tucking a gun in his
pants and casually walking away. For one, he contends that the prosecution witnesses
who were present at the scene did not in fact see appellant as the person who allegedly
shot the victim. Witness Marlon Manis was not certain that the person he saw walking
away from the fallen victim was appellant. As per Manis’ own admission, he merely
presumed that it was appellant. As to witness Annie Bayanes, her identification of
appellant as the assailant was equally doubtful. The fact is she did not see the alleged
gunman’s face, considering that the only illumination on the scene was a vehicle’s
taillight. Appellant stresses that both Bayanes and Manis were in a state of excitement
and nervousness as a result of the incident, hence the resultant commotion and fear
distracted their powers of observation. Appellant insists that given these considerations,
the testimonies of Bayanes and Manis failed to show that he was at the scene of the
crime, much less prove that he was the gunman.

For the appellee, the Office of the Solicitor General (OSG) contends that the failure of
Manis to see the actual shooting is irrelevant, as such was not the purpose for which his
testimony was offered in evidence. Rather, Manis’ testimony was meant to provide
circumstantial evidence tending to show the physical description of Nemesio’s attacker,
and not as an eyewitness’ testimony to positively identify said assailant. Neither was
Bayanes presented to testify as an eyewitness to the shooting, but to declare that she
got a clear look at the face of the suspected gunman.

We note that at the heart of the prosecution’s case is the familiarity of Annie Bayanes’
and Marlon Manis with appellant. Absent this familiarity, the prosecution’s theory that
circumstantial evidence shows that appellant killed Nemesio would collapse like a house
of cards. It was precisely this familiarity with appellant, which enabled said witnesses to
recognize him as the person tucking a gun in his waistband and walking away from the
fallen victim. Bayanes had known appellant for some ten (10) years before the incident
and even described him as a "good man." 73 She was only five or six meters away from
the scene of the crime and was able to fully look at the face of the person tucking a gun
in his pants and walking away. Familiarity with the physical features, particularly those
of the face, is actually the best way to identify the person. 74 That the only illumination
in the area came from the taillight of a parked vehicle and the lights on the roof of the
bagsakan does not discredit her account. We have held that moonlight, 75 starlight, 76
kerosene lamps, 77 a flashlight, 78 and lights of passing vehicles 79 may be adequate
to provide illumination sufficient for purposes of recognition and identification. Under
the circumstances of these cases, this Court believes that Bayanes was in the position
and had a fair opportunity to identify appellant as the person leaving the crime scene
with a gun tucked in his waist.

Her testimony was buttressed by that of witness Marlon Manis. A former neighbor of
appellant, he had known appellant since 1993. He was a frequent customer at
appellant’s bakery. In the rural areas, people tend to be more familiar with their
neighbors. This familiarity may extend to body movements, which cannot easily be
effaced from memory. Hence, Manis’ testimony that he could recognize appellant even
just from his build and manner of walking is not improbable. His declaration that he
was some twenty-five (25) meters away from the person walking away from the victim
does not make recognition far-fetched. Once a person has gained familiarity with
another, identification is an easy task, even from that distance. 80
Evidence should only be considered for the purpose it was formally offered. 81 As the
Solicitor General points out, the statements of Bayanes and Manis were not offered to
positively identify appellant as the assailant, but to provide circumstantial evidence
concerning Nemesio’s assailant, tending to prove that appellant did shoot the victim.
Thus, the court a quo committed no reversible error in giving weight and credence to
the testimonies of Bayanes and Manis for the stated purposes therefor.

Appellant next assails the testimonies of the following prosecution witnesses: (1)
Pauline Gumpic for being inconsistent and flawed with contradictions; (2) Annie
Bayanes and Julio Bayacsan for their unexplained delay in giving their respective sworn
statements to the police; and (3) Mona Barredo for "flip-flopping" with respect to the
alleged admission to her by appellant and how the police investigators knew about said
admission, after she claimed that she did not tell anyone about his revelation. Appellant
submits that the trial court erred in giving weight to the aforementioned testimonies.

For appellee, the OSG argues that with respect to Gumpic’s alleged contradictions, they
refer only to unimportant and collateral matters; they do not affect her credibility. With
respect to the delay or vacillation by Bayacsan and Bayanes in giving their statements
to the authorities, the OSG points out that a reading of their declarations in court will
show that the alleged delay was adequately explained. As to Barredo’s testimony, a
closer reading of her supposed "flip-flopping" shows that the alleged contradictions
were due to an honest misapprehension of fact on her part. chanrob1es virtua1 1aw library

When the issue boils down to the credibility of witnesses, the appellate court will not
generally disturb the findings of the trial court because the latter is in the vantage
position of observing witnesses through the various indicia of truthfulness or falsehood.
82 However, this rule is not absolute. One exception is where the judge who wrote the
decision did not personally hear the prosecution’s evidence. 83 In this case, the records
show that Judge Angel V. Colet, who authored the assailed decision, took over from
Judge Benigno M. Galacgac only on April 29, 1997 or after the witnesses for the
prosecution had testified. It does not follow, however, that a judge who was not
present at the trial cannot render a just and valid judgment. The records and the
transcripts of stenographic notes are available to him as basis for his decision.

After going over the transcripts of the witnesses’ testimonies, we find no reason to
disturb the findings of the trial court. With respect to the statements of Gumpic, we
agree with the Solicitor General that alleged inconsistencies refer only to irrelevant and
collateral matters, which have nothing to do with the elements of the crime. It is
axiomatic that slight variations in the testimony of a witness as to minor details or
collateral matters do not affect his or her credibility as these variations are in fact
indicative of truth and show that the witness was not coached to fabricate or dissemble.
84 An inconsistency, which has nothing to do with the elements of a crime, is not a
ground to reverse a conviction. 85

We likewise find no basis for appellant’s contention that Bayanes and Bayacsan failed to
give a satisfactory explanation for the delay or vacillation in disclosing to the authorities
what they knew. Bayanes gave a satisfactory reason for her delay in reporting to the
authorities what she knew. She had simply gone about her normal business activities
for some months, unaware that a case had been filed concerning the killing of Nemesio.
It was only nine (9) months after the incident that she read a notice for help posted by
the victim’s relatives at the Trading Post, appealing to possible witnesses to the killing
to come forth and assist them in their quest for justice. It was only then that she
decided to reveal to the authorities what she knew.

As to Bayacsan, he candidly admitted in court that he considered appellant his friend

and he wanted to protect him and hence, he only disclosed appellant’s admission to him
when the police started questioning him. There is no rule that the suspect in a crime
should immediately be named by a witness. 86 Different people react differently to a
given situation and there is no standard form of human behavior when one is
confronted with a strange, startling, or frightful experience. 87 The Court understands
the natural reluctance or aversion of some people to get involved in a criminal case. 88
More so where, as in these cases, a townmate of Bayanes and Bayacsan is involved. We
have taken notice that when their townmates are involved in a criminal case, most
people turn reticent. 89 Hence, the failure of Bayanes and Bayacsan to immediately
volunteer information to the police investigators will not lessen the probative value of
their respective testimonies. The delay, having been satisfactorily explained, has no
effect on their credibility. 90

We have likewise closely scrutinized the testimony of Mona Barredo regarding the
alleged admission by appellant to her that he killed the victim. We find nothing "flip-
flopping" about her testimony. Instead, we find a witness who admitted she was
"nervous" that she might not be able to answer all the questions. 91 Said nervousness
was engendered by her erroneous belief that to be a credible witness, she must have
personal knowledge of the crime. 92 Even the most candid witnesses make mistakes
and may give some contradictory or inconsistent statements, but such honest lapses
need not necessarily affect their credibility. Ample margin should be accorded a witness
who is tension-filled with the novelty of testifying before a court. 93

Appellant further contends that the trial court erred in giving credence to the verbal
admissions of guilt he made to Gumpic and SPO4 Bomagao inside the police station
since said admissions are inadmissible in evidence as uncounseled confessions.

The OSG submits that said verbal admissions of complicity, as well as those made to
appellant to Bayacsan and Barredo, are admissible as statements forming part of the
res gestae. We agree on this point with the OSG.

The requisites of res gestae are: (1) the principal act or res gestae must be a startling
occurrence; (2) the statement is spontaneous or was made before the declarant had
time to contrive or devise a false statement, and the statement was made during the
occurrence or immediately prior or subsequent to thereto; and (3) the statement made
must concern the occurrence in question and its immediately attending circumstances.
94 All these elements are present in appellant’s verbal admission to Barredo that he
killed the victim when he went to the latter’s house half an hour after the fatal shooting
of Nemesio.

The verbal admission by appellant to Barredo was made before appellant had the time
and opportunity to contrive a falsehood. Similar statements have been held to be part
of the res gestae: (1) a child’s declaration made an hour after an alleged assault; 95
(2) the testimony of a police officer as to what the victim revealed to him some 30
minutes after the commission of an alleged crime; 96 and (3) a victim’s declaration
made some 5 to 10 minutes after an alleged felony took place. 97 Note that since
appellant’s admission was not solicited by police officers in the course of a custodial
investigation, but was made to a private person, the provisions of the Bill of Rights on
custodial investigation do not apply. The Rules of Court 98 provides that an admission
made to a private person is admissible in evidence against the declarant. 99

Prosecution’s evidence here is admittedly circumstantial. But in the absence of an

eyewitness, reliance on circumstantial evidence is inevitable. 100 Resort thereto is
essential when the lack of direct evidence would result in setting a felon free. 101

Circumstantial evidence suffices to convict if the following requisites are met: (1) there
is more than one circumstance; (2) the facts from which the inferences are derived are
proven; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. 102 In our mind, the following pieces of
circumstantial evidence show with moral certainty that appellant was responsible for
the death of Nemesio: chanrob1es virtual 1aw library

1. Appellant had the motive to kill Nemesio Lopate for having an affair with his wife,
and appellant had openly expressed his desire and intention to do so;

2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis heard
two gun shots at the Trading Post, La Trinidad, Benguet and saw Nemesio Lopate fall to
the ground;

3. Bayanes saw appellant behind the victim, tucking a gun into his waistband, and
walking away;

4. From another angle, Manis also saw a person whose gait and built resembled that of
appellant walking away from the crime scene;

5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona
Barredo, brought out a handgun, emptied it of two spent .38 caliber shells and
instructed Barredo to throw the shells out of the window, which she did;

6. Appellant then told Barredo that he had shot and killed his wife’s paramour, after
which he stayed at Barredo’s house for the night;

7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad,
Benguet recovered a .38 caliber slug from Nemesio’s corpse and found two (2) bullet
entry wounds on the said cadaver;

8. On March 18, 1996, police investigators, assisted by Barredo, recovered two (2)
spent .38 caliber shells from Barredo’s sweet potato patch, immediately outside her
residence wherein appellant had slept a week before.

The foregoing circumstances clearly show that appellant had the motive, the
opportunity, and the means to commit the crime at the place and time in question.
Simply put, the circumstantial evidence adduced by the prosecution has successfully
overcome the claim of innocence by appellant. Under the proved circumstances,
appellant’s defense of alibi is untenable. More so, in this situation where prosecution
witness Bayanes unflinchingly declared that she saw appellant standing behind the
victim, tucking a gun in his pants, moments after the latter was shot. As we held in
People v. Salveron, 103 and reiterated in People v. Sesbreño, 104 where an eyewitness
saw the accused with a gun, seconds after the gunshot and after the victim fell to the
ground, the reasonable conclusion is that said accused killed the victim.

Appellant’s alibi cannot prevail over the positive testimony of Bayanes concerning
appellant’s identification and presence at the crime scene. Basic is the rule that for alibi
to prosper, the accused must prove that he was somewhere else when the crime was
committed and that it was physically impossible for him to have been at the scene of
the crime. 105 Physical impossibility refers to the distance between the place where the
appellant was when the crime transpired and the place where it was committed, as well
as the facility of access between the two places. 106 In these cases, the defense
admitted that the distance between La Trinidad, Benguet and Kayapa, Nueva Vizcaya is
79 kilometers, which can be negotiated in 4 or 5 hours. 107 Clearly, it was not
physically impossible for appellant to be at the locus criminis at the time of the killing.
Hence, the defense of alibi must fail.

In sum, we find that the prosecution’s evidence suffices to sustain the appellant’s
conviction for homicide.

3. Crime and its Punishment

As appellant can only be convicted of homicide, it follows that he cannot, under the
provisions of RA No. 7659, be sentenced to suffer the death penalty. The penalty for
homicide under Article 249 of the Revised Penal Code is reclusion temporal. Our task
now is to determine whether there are aggravating or mitigating circumstances which
could modify the penalty.

More specifically, may the special aggravating circumstance of use of an unlicensed

firearm be taken against the appellant?

Appellant argues that the trial court erred in appreciating the special aggravating
circumstance of use of unlicensed firearm in the present case. Like the killing, said
aggravating circumstance must likewise be proved beyond reasonable doubt, says the
appellant. On this point, he adds, the prosecution failed to adduce the necessary
quantum of proof. chanrob1es virtua1 1aw 1ibrary

We find merit in the appellant’s contentions. It is not enough that the special
aggravating circumstance of use of unlicensed firearm be alleged in the information, the
matter must be proven with the same quantum of proof as the killing itself. Thus, the
prosecution must prove: (1) the existence of the subject firearm; and (2) the fact that
the accused who owned or possessed it does not have the corresponding license or
permit to own or possess the same. 108 The records do not show that the prosecution
presented any evidence to prove that appellant is not a duly licensed holder of a caliber
.38 firearm. The prosecution failed to offer in evidence a certification from the Philippine
National Police Firearms and Explosives Division to show that appellant had no permit
or license to own or possess a .38 caliber handgun. Nor did it present the responsible
police officer on the matter of licensing as a prosecution witness. Absent the proper
evidentiary proof, this Court cannot validly declare that the special aggravating
circumstance of use of unlicensed firearm was satisfactorily established by the
prosecution. Hence such special circumstance cannot be considered for purposes of
imposing the penalty in its maximum period.

Coming now to the obverse side of the case, is the appellant entitled to benefit from
any mitigating circumstance?

Appellant, firstly contends that assuming without admitting that he is guilty, the lower
court should have considered at least the mitigating circumstance of immediate
vindication of a grave offense as well as that of passion and obfuscation. Appellant
points out that the victim’s act of maintaining an adulterous relationship with
appellant’s wife constituted a grave offense to his honor, not to mention the shame,
anguish, and anxiety he was subjected to. Even the mere sight of the victim must have
triggered an uncontrollable emotional outburst on appellant’s part, so that even a
chance meeting caused in him an irresistible impulse powerful enough to overcome all
reason and restraint. Secondly, appellant points out that the trial court failed to
consider his voluntary surrender as a mitigating circumstance.

The Solicitor General counters that there was literally no "immediate vindication" to
speak of in this case. Appellant had sufficient time to recover his serenity following the
discovery of his wife’s infidelity. Nor could passion and obfuscation be appreciated in
appellant’s favor because the killing was not proximate to the time of the offense.
Appellant became aware of the treatment offensive to his dignity as a husband and to
the peace and tranquillity of his home two weeks earlier. This interval between the
revelation of his wife’s adultery and the fatal shooting was ample and sufficient for
reason and self-control to reassert themselves in appellant’s mind. As to the mitigating
circumstance of voluntary surrender, the OSG stresses that his supposed surrender at
Kayapa, Nueva Vizcaya was actually due to the efforts of law enforcers who came
looking for him. There he did not resist, but lack of resistance alone is not tantamount
to voluntary surrender, which denotes a positive act and not merely passive conduct.

According to the OSG, for the mitigating circumstance of vindication of a grave offense
to apply, the vindication must be "immediate." This view is not entirely accurate. The
word "immediate" in the English text is not the correct translation of the controlling
Spanish text of the Revised Penal Code, which uses the word "proxima." 109 The
Spanish text, on this point, allows a lapse of time between the grave offense and the
actual vindication. 110 Thus, in an earlier case involving the infidelity of a wife, the
killing of her paramour prompted proximately — though not immediately — by the
desire to avenge the wrong done, was considered an extenuating circumstance in favor
of the accused. 111 The time elapsed between the offense and the suspected cause for
vindication, however, involved only hours and minutes, not days. Hence, we agree with
the Solicitor General that the lapse of two (2) weeks between his discovery of his wife’s
infidelity and the killing of her supposed paramour could no longer be considered
proximate. The passage of a fortnight is more than sufficient time for appellant to have
recovered his composure and assuaged the unease in his mind. The established rule is
that there can be no immediate vindication of a grave offense when the accused had
sufficient time to recover his serenity. 112 Thus, in this case, we hold that the
mitigating circumstance of immediate vindication of a grave offense cannot be
considered in appellant’s favor.
We likewise find the alleged mitigating circumstance of passion and obfuscation
inexistent. The rule is that the mitigating circumstances of vindication of a grave
offense and passion and obfuscation cannot be claimed at the same time, if they arise
from the same facts or motive. 113 In other words, if appellant attacked his victim in
proximate vindication of a grave offense, he could no longer claim in the same breath
that passion and obfuscation also blinded him. Moreover, for passion and obfuscation to
be well founded, the following requisites must concur: (1) there should be an act both
unlawful and sufficient to produce such condition of mind; and (2) the act which
produced the obfuscation was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator might recover his moral
equanimity. 114 To repeat, the period of two (2) weeks which spanned the discovery of
his wife’s extramarital dalliance and the killing of her lover was sufficient time for
appellant to reflect and cool off.

Appellant further argues that the lower court erred in failing to consider voluntary
surrender as a mitigating circumstance. On this point, the following requirements must
be satisfied: (1) the offender has not actually been arrested; (2) the offender
surrendered himself to a person in authority; and (3) the surrender was voluntary. 115
Records show, however, that leaflets and posters were circulated for information to
bring the killer of Nemesio to justice. A team of police investigators from La Trinidad,
Benguet then went to Kayapa, Nueva Vizcaya to invite appellant for questioning. Only
then did he return to Benguet. But he denied the charge of killing the victim. Clearly,
appellant’s claimed surrender was neither spontaneous nor voluntary.

Absent any aggravating or mitigating circumstance for the offense of homicide the
penalty imposable under Art. 64 of the Revised Penal Code is reclusion temporal in its
medium period. Applying the Indeterminate Sentence Law, the penalty which could
actually be imposed on appellant is an indeterminate prison term consisting of eight (8)
years and one (1) day of prision mayor, as minimum to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal as maximum.

4. Proper Award of Damages

Appellant and the Solicitor General are one in contending that the trial court awarded
excessive actual damages without adequate legal basis. Thus, the amount of
P150,000.00 was awarded for funeral and burial expenses without any supporting
evidence on record. 116 This cannot be sustained in this review. In order for actual
damages to be recovered, the amount of loss must not only be capable of proof but
must actually be proven with reasonable degree of certainty, premised upon competent
proof or best evidence obtainable of the actual amount thereof, such as receipts or
other documents to support the claim. 117 The records clearly show in this case that
only the amount of P7,000 as funeral expenses was duly supported by a receipt. 118
Hence, the award of actual damages should be limited to P7,000 only.

Appellant further contests the award of P2,040,000 for loss of earning capacity as
unconscionable. Since the victim’s widow could not present any income tax return of
her husband to substantiate her claim that his net income was P60,000 annually, then
according to appellant, there is no basis for this award at all. At best, appellant says,
only temperate or nominal damages may be awarded.
The OSG responds that the award for loss of earning capacity has adequate basis as the
prosecution presented sufficient evidence on the productivity of the landholdings being
tilled by the deceased and the investments made by the Lopate family from their
income. Hence, said the OSG, it was not a product of sheer conjecture or speculation.
Nonetheless, the OSG submits that the original amount of P1,800,000 for loss of
earning capacity should be restored as it is this amount which takes into account only a
reasonable portion of annual net income which would have been received as support by
the heirs.

In setting said award at P2,040,000, amended from P1,800,000, for lost earnings, the
trial court took note of the following factors in its computations: chanrob1es virtual 1aw library

The Death Certificate of Nemesio Lopate shows that he died at the age of 29. 119 His
widow’s detailed testimony shows that their average annual net income from vegetable
farming was P60,000. 120 The victim’s share of the annual net income from the
couple’s farm is half thereof, or P30,000. Using the American Expectancy Table of
Mortality, the life expectancy of the victim at age 29 is set at 34 years.

Therefore, total loss of Earning Capacity (X) should be computed as follows: chanrob1es virtual 1aw library

X = 2/3 (80-29) x P30,000

X = 2/3 (51) x P30,000

X = 34 x P30,000

X = P1,020,000

This amount should form part of the damages awarded to the heirs.

We sustain the award of P50,000 as indemnity ex delicto. But there being no testimony
or other proof thereon, the award of P50,000 as moral damages cannot now be
sustained. Instead, temperate damages in the amount of P25,000 should be awarded.

The award of P20,000 in attorney’s fees should be maintained. Records show that the
victim’s widow had to hire the services of a private prosecutor to actively prosecute the
civil aspect of this case, 121 and in line with Article 2208 of the Civil Code, 122
reasonable attorney fees may be duly recovered.

WHEREFORE, the judgment of the Regional Trial Court of La Trinidad, Benguet, Branch
8, in Criminal Case No. 96-CR-2522 is MODIFIED as follows: chanrob1es virtual 1aw library

Appellant June Ignas y Sanggino is found GUILTY beyond reasonable doubt of the crime
of HOMICIDE as defined and penalized under Article 249 of the Revised Penal Code, as
amended. There being neither aggravating nor mitigating circumstance, he is hereby
sentenced to suffer an indeterminate penalty of ten (10) years and one (1) day of
prision mayor as minimum, to fourteen (14) years, eight (8) months, and one (1) day
of reclusion temporal as maximum.

Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the victim, Nemesio
Lopate, the following sums: a) P7,000 as actual damages; b) P1,020,000 for loss of
earning capacity; c) P50,000 as civil indemnity; d) P25,000 as temperate damages;
and e) P20,000 as attorney’s fees. Costs de officio. chanrob1es virtua1 1aw 1ibrary

SO ORDERED.
De Vera v. De Vera, G.R. No. 172832, April 7, 2009

G.R. No. 172832               April 7, 2009

ROSARIO T. DE VERA, Petitioner,
vs.
GEREN A. DE VERA, Respondent.

DECISION

NACHURA, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to
reverse the February 28, 2006 Decision1 of the Court of Appeals (CA) and its May 24, 2006
Resolution2 in CA-G.R. SP No. 91916.

The facts, as found by the CA, are as follows:

Petitioner Rosario T. de Vera accused her spouse Geren A. de Vera (Geren) and Josephine F.
Juliano (Josephine) of Bigamy. They were thus indicted in an Information, the accusatory portion of
which reads:

That on or about the 31st day of July, 2003, in the Municipality of San Juan, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the said accused Geren A. De Vera
being previously united in lawful marriage with Rosario Carvajal Tobias-De Vera, and without said
marriage having been legally dissolved, did, then and there willfully, unlawfully and feloniously
contract a second marriage with accused Josephine Juliano y Francisco, who likewise has previous
knowledge that accused Geren A. De Vera’s previous marriage with Rosario T. De Vera is still valid
and subsisting, said second marriage having all the essential requisites for its validity.

CONTRARY TO LAW.3

Upon arraignment, Geren pleaded "Guilty." However, in a Motion 4 dated April 8, 2005, he prayed
that he be allowed to withdraw his plea in the meantime in order to prove the mitigating circumstance
of voluntary surrender. The motion was opposed 5 by petitioner on the ground that not all the
elements of the mitigating circumstance of "voluntary surrender" were present. She added that
"voluntary surrender" was raised only as an afterthought, as Geren had earlier invoked a "voluntary
plea of guilty" without raising the former. Finally, she posited that since the case was ready for
promulgation, Geren’s motion should no longer be entertained.

In an Order6 dated June 6, 2005, the Regional Trial Court (RTC) granted Geren’s motion and
appreciated the mitigating circumstance of voluntary surrender in the determination of the penalty to
be imposed. Thus, on even date, the RTC promulgated Geren’s Sentence, 7 the dispositive portion of
which reads:
WHEREFORE, the court finds accused Geren A. de Vera guilty beyond reasonable doubt of the
crime of bigamy as charged in the Information and there being two (2) mitigating circumstances
(Plea of guilty and voluntary surrender), and no aggravating circumstance and applying the provision
of Article 349 in relation to paragraph 5, Article 64, Revised Penal Code, as amended, and the
Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of 6 MONTHS
of ARRESTO MAYOR, as minimum to FOUR (4) YEARS, TWO (2) MONTHS of PRISION
CORRECCIONAL, as maximum.

No pronouncement as to cost.

SO ORDERED.

Unsatisfied, petitioner moved for the partial reconsideration 8 of the decision but the same was denied
in an Order9 dated August 25, 2005.

In the meantime, on June 8, 2005, Geren applied for probation 10 which was favorably acted upon by
the RTC by referring it to the Probation Officer of San Juan, Metro Manila. 11

For failure to obtain favorable action from the RTC, petitioner instituted a special civil action for
certiorari before the CA. However, she failed to persuade the CA which rendered the assailed
decision affirming the RTC Order and Sentence, and the assailed resolution denying her motion for
reconsideration. In sustaining the appreciation of the mitigating circumstance of voluntary surrender,
the CA maintained that all its requisites were present.

Hence, the instant petition based on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A

WAY NOT PROBABLY IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS OF THIS
HONORABLE COURT WHEN:

A. IT ERRONEOUSLY FAILED TO APPLY THE RULING IN PEOPLE VS. CAGAS

REGARDING THE REQUISITES OF VOLUNTARY SURRENDER TO BE APPRECIATED
IN THE INSTANT CASE.

B. IT INCORRECTLY AFFIRMED THE ORDER AND SENTENCE BOTH DATED JUNE 6,

2005 AND THE ORDER DATED AUGUST 25, 2005 RENDERED BY THE PUBLIC
RESPONDENT IN APPRECIATING THE MITIGATING CIRCUMSTANCES OF PLEA OF
GUILTY AND VOLUNTARY SURRENDER IN FAVOR OF THE PRIVATE RESPONDENT IN
CRIMINAL CASE NO. 130139, AN ACT THAT WARRANTS THIS HONORABLE COURT
TO EXERCISE ITS APPELLATE JUDICIAL DISCRETION. 12

The petition lacks merit.

While we are called upon to resolve the sole issue of whether the CA correctly denied the issuance
of the writ of certiorari, we cannot ignore the procedural issues which the trial and appellate courts
failed to appreciate.

In filing her motion for reconsideration before the RTC and her petition for certiorari before the CA,
petitioner sought the modification of the court’s judgment of conviction against Geren, because of
the allegedly mistaken application of the mitigating circumstance of "voluntary surrender." The
eventual relief prayed for is the increase in the penalty imposed on Geren. Is this action of petitioner
procedurally tenable?

Section 7, Rule 120 of the Revised Rules of Criminal Procedure provides:

Sec. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal,
or when the sentence has been partially or totally satisfied or served, or when the accused has
waived in writing his right to appeal, or has applied for probation.

Simply stated, in judgments of conviction, errors in the decision cannot be corrected unless the
accused consents thereto; or he, himself, moves for reconsideration of, or appeals from, the
decision.13

Records show that after the promulgation of the judgment convicting Geren of bigamy, it was
petitioner (as private complainant) who moved for the reconsideration 14 of the RTC decision. This
was timely opposed by Geren, invoking his right against double jeopardy. 15 Although the trial court
correctly denied the motion for lack of merit, we would like to add that the same should have been
likewise denied pursuant to the above-quoted provision of the Rules.

As explained in People v. Viernes,16 the rule on the modification of judgments of conviction had

undergone significant changes before and after the 1964 and 1985 amendments to the Rules. Prior
to the 1964 Rules of Court, we held in various cases17 that the prosecution (or private complainant)
cannot move to increase the penalty imposed in a promulgated judgment, for to do so would place
the accused in double jeopardy. The 1964 amendment, however, allowed the prosecutor to move for
the modification or the setting aside of the judgment before it became final or an appeal was
perfected. In 1985, the Rules was amended to include the phrase "upon motion of the accused,"
effectively resurrecting our earlier ruling prohibiting the prosecution from seeking a modification of a
judgment of conviction. Significantly, the present Rules retained the phrase "upon motion of the
accused." Obviously, the requisite consent of the accused is intended to protect him from having to
defend himself anew from more serious offenses or penalties which the prosecution or the court may
have overlooked.18

Equally important is this Court’s pronouncement in People v. Court of Appeals 19 on the propriety of a
special civil action for certiorari assailing a judgment of conviction. In that case, the trial court
convicted the accused of homicide. The accused thereafter appealed his conviction to the CA which
affirmed the judgment of the trial court but increased the award of civil indemnity. The Office of the
Solicitor General (OSG), on behalf of the prosecution, then filed before this Court a petition for
certiorari under Rule 65, alleging grave abuse of discretion. The OSG prayed that the appellate
court’s judgment be modified by convicting the accused of homicide without appreciating in his favor
any mitigating circumstance. In effect, the OSG wanted a higher penalty to be imposed. The Court
declared that the petition constituted a violation of the accused’s right against double jeopardy;
hence, dismissible. Certainly, we are not inclined to rule differently.

Indeed, a petition for certiorari may be resorted to on jurisdictional grounds. In People v.

Veneracion,20 we entertained the petition for certiorari initiated by the prosecution to resolve the
issue of whether the RTC gravely abused its discretion in imposing a lower penalty. In that case, the
trial judge, fully aware of the appropriate provisions of the law, refused to impose the penalty of
death because of his strong personal aversion to the death penalty law, and imposed instead
reclusion perpetua. In resolving the case in favor of the prosecution, the Court concluded that the
RTC gravely abused its discretion, and remanded the case to the trial court for the imposition of the
proper penalty. By so doing, we allowed a modification of the judgment not on motion of the accused
but through a petition initiated by the prosecution. But it was an exceptional case. Here and now, we
reiterate the rule that review is allowed only in apparently void judgments where there is a patent
showing of grave abuse of discretion amounting to lack or excess of jurisdiction. The aggrieved
parties, in such cases, must clearly show that the public respondent acted without jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction. 21

Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility. 22 Obviously, no grave abuse of
discretion may be attributed to a court simply because of its alleged misappreciation of the mitigating
circumstance of voluntary surrender. Consequently, the trial court’s action cannot come within the
ambit of the writ’s limiting requirement of excess or lack of jurisdiction. Thus, the trial court’s action
becomes an improper object of, and therefore non-reviewable by, certiorari. 23

Even if we dwell on the merit of the case, which had already been done by the appellate court, we
find no cogent reason to grant the instant petition.

For voluntary surrender to be appreciated, the following requisites should be present: 1) the offender
has not been actually arrested; 2) the offender surrendered himself to a person in authority or the
latter’s agent; and 3) the surrender was voluntary. 24 The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit himself to the authorities
either because he acknowledges his guilt or he wishes to save the authorities the trouble and
expense that may be incurred for his search and capture. 25 Without these elements, and where the
clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his
safety, the surrender is not spontaneous and, therefore, cannot be characterized as "voluntary
surrender" to serve as a mitigating circumstance.26

Petitioner is correct in saying that in People v. Cagas 27 and in People v. Taraya,28 the Court added a
fourth requisite before "voluntary surrender" may be appreciated in favor of the accused – that there
is no pending warrant of arrest or information filed. Since the warrant of arrest had been issued,
petitioner insists that arrest was imminent and the "surrender" could not be considered "voluntary."

In Cagas, after the stabbing incident, the accused ran to the upper portion of the cemetery where a
police officer caught up with him. Thereupon, he voluntarily gave himself up. The Court held that if
the accused did then and there surrender, it was because he was left with no choice. Thus, the
"surrender" was not spontaneous.

In Taraya, when the accused learned that the police authorities were looking for him (because of a
warrant for his arrest), he immediately went to the police station where he confessed that he killed
the victim. Notwithstanding such surrender and confession to the police, the Court refused to
appreciate the mitigating circumstance in his favor.

Lastly, in People v. Barcino, Jr.,29 the accused surrendered to the authorities after more than one
year from the incident in order to disclaim responsibility for the killing of the victim. The Court refused
to mitigate the accused’s liability because there was no acknowledgment of the commission of the
crime or the intention to save the government the trouble and expense in his search and capture;
and there was a pending warrant for his arrest.
Certainly, we cannot apply the same conclusion to the instant case. Cagas is not applicable because
the accused therein did not surrender but was caught by the police. In Taraya, the warrant of arrest
had, in fact, been issued and was forwarded to the proper authorities for implementation. In Barcino,
it was a year after the commission of the crime when the accused went to the police station, not for
purposes of acknowledging his culpability, nor to save the government the expense and trouble of
looking for and catching him, but actually to deny his culpability.

In this case, it appears that the Information was filed with the RTC on February 24, 2005. On March
1, 2005, the court issued an Order finding probable cause for the accused to stand trial for the crime
of bigamy and for the issuance of a warrant of arrest. In the afternoon of the same day, Geren
surrendered to the court and filed a motion for reduction of bail. After the accused posted bail, there
was no more need for the court to issue the warrant of arrest.30

The foregoing circumstances clearly show the voluntariness of the surrender. As distinguished from
the earlier cases, upon learning that the court had finally determined the presence of probable cause
and even before the issuance and implementation of the warrant of arrest, Geren already gave
himself up, acknowledging his culpability. This was bolstered by his eventual plea of guilt during the
arraignment. Thus, the trial court was correct in appreciating the mitigating circumstance of
"voluntary surrender."

We would like to point out that the mere filing of an information and/or the issuance of a warrant of
arrest will not automatically make the surrender "involuntary." In People v. Oco, 31 the Court
appreciated the mitigating circumstance because immediately upon learning that a warrant for his
arrest was issued, and without the same having been served on him, the accused surrendered to the
police. Thus, it is clear that notwithstanding the pendency of a warrant for his arrest, the accused
may still be entitled to the mitigating circumstance in case he surrenders, depending on the actual
facts surrounding the very act of giving himself up.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals February 28,
2006 Decision and its May 24, 2006 Resolution in CA-G.R. SP No. 91916 are AFFIRMED.

SO ORDERED.

People v. Amazan, G.R. No. 136251, January 16, 2001

[G.R. Nos. 136251, 138606 & 138607. January 16, 2001.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JERITO AMAZAN,

JAIME AMAZAN, and DANILO VILLEGAS, Accused-Appellants.

DECISION

MENDOZA, J.:

This is an appeal from the decision 1 dated July 8, 1998, of the Regional Trial Court,
Branch 44, Masbate, finding accused-appellants Jerito Amazan, Jaime Amazan, and
Danilo Villegas guilty of murder, and each of the latter two of attempted homicide and
sentencing them accordingly. chanrob1es virtua1 1aw 1ibrary
The informations against accused-appellants alleged: chanrob1es virtual 1aw library

Crim. Case No. 8494: chanrob1es virtual 1aw library

The undersigned 2nd Asst. Provincial Prosecutor accuses JERITO AMAZAN, JAIME
AMAZAN AND DANILO VILLEGAS of San Vicente, Dimasalang, Masbate of the crime of
Murder, committed as follows: chanrob1es virtual 1aw library

That on or about April 27, 1997, in the evening thereof, at Barangay San Vicente,
Municipality of Dimasalang, Province of Masbate, Philippines, within the jurisdiction of
this Honorable Court, the above-named accused confederating together and helping
one another, with intent to kill, evident premeditation, treachery, superiority of strength
and taking advantage of nighttime, did then and there willfully, unlawfully and
feloniously attack, assault and hack with bolos Artemio Arma, hitting him on the head,
thereby inflicting wounds, which caused his death.

CONTRARY TO LAW.

Masbate, Masbate, August 5, 1997. 2

Crim. Case No. 8496: chanrob1es virtual 1aw library

The undersigned 2nd Asst. Provincial Prosecutor accuses JAIME AMAZAN of San
Vicente, Dimasalang, Masbate of the crime of Frustrated Murder, committed as
follows:
chanrob1es virtual 1aw library

That on or about April 27, 1997, in the evening thereof at Barangay San Vicente,
Municipality of Dimasalang, Province of Masbate, Philippines, within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, evident
premeditation, treachery and superiority of strength, did then and there willfully,
unlawfully and feloniously attack, assault and hack with a bolo Amparo Arma, hitting
him (sic) on the left face, thus performing all the acts of execution which would have
produced the crime of Murder as a consequence, but nevertheless did not produce it by
reason of causes independent of the will of the accused, that is, by the timely and able
medical attendance rendered to said Amparo Arma, which prevented her death.

CONTRARY TO LAW.

Masbate, Masbate, August 5, 1997. 3

Crim. Case No. 8497: chanrob1es virtual 1aw library

The undersigned 2nd Asst. Provincial Prosecutor accuses DANILO VILLEGAS of San
Vicente, Dimasalang, Masbate of the crime of Frustrated Murder, committed as
follows:
chanrob1es virtual 1aw library

That on or about April 27, 1997, in the evening thereof at Barangay San Vicente,
Municipality of Dimasalang, Province of Masbate, Philippines, within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, evident
premeditation and treachery, did then and there willfully unlawfully and feloniously
attack, assault and hack with a bolo Antonio Arma, hitting him on the left face and arm,
thus performing all the acts of execution which would have produced the crime of
Murder, as a consequence, but nevertheless did not produce it by reason of causes
independent of the will of the accused, that is, the timely and able medical attendance
rendered to said Antonio Arma, which prevented his death.

CONTRARY TO LAW.

Masbate, Masbate, August 5, 1997. 4

Upon arraignment, Accused-appellants pleaded not guilty to the charges against them,

whereupon joint trial of the three cases ensued. 5

The prosecution presented three witnesses, namely, Alberto Arma, 6 Amparo Arma, 7
and Antonio Arma. 8 Their testimonies established the following: chanrob1es virtual 1aw library

Alberto Arma, then 14 years old and son of the deceased Artemio Arma, testified that,
at 7 o’clock in the evening of April 27, 1997, he and his father, Artemio, went to their
farm to graze their carabao. 9 The farm is about 30 meters from their house. 10 As
Artemio was tethering their carabao to a coconut tree, he was struck on the head with
a bolo by accused-appellant Jerito Amazan, a nephew of Amparo Arma, Artemio’s wife.
Artemio then turned around, and was stabbed by Jaime Amazan, Jerito’s younger
brother. Alberto, who was at that time about five meters away, cried for help. 11 His
mother, Amparo Arma, rushed from their house, accompanied by her daughter-in-law,
Lorna. She saw accused-appellants Jerito and Jaime Amazan and Danilo Villegas, a
neighbor, all armed with bolos, training their flashlights on the body of Artemio Arma.
She asked Jerito what happened to her husband but, instead of receiving an answer,
she was hacked on the face with a bolo by Jaime. 12

Amparo, Alberto, and Lorna ran towards their house. On the way they met Antonio,
Amparo’s other son. The three (Amparo, Alberto, and Antonio) then went to the place
where Artemio lay dead. But as he was trying to help his father, Antonio was struck
with a bolo on the face and left hand by Danilo Villegas. Then accused-appellants ran
away. 13

Amparo and Antonio brought the body of Artemio to their house. It was later brought
by Barangay Captain Danilo Almocera to Dr. Ernesto L. Tamayo for autopsy. On the
other hand, Amparo and Antonio proceeded to the hospital of Dr. Alfonso H. Alino at
Poblacion, Dimasalang, Masbate for treatment of their wounds. 14

Amparo Arma and her son Antonio suffered injuries which are described in the medical
certificates (Exhs. D and E, respectively) issued by Dr. Alino, as follows: chanrob1es virtua1 1aw 1ibrary

April 29, 1997

TO WHOM IT MAY CONCERN: chanrob1es virtual 1aw library

This is to certify that Amparo Arma came to me on April 27, 1997 at 9:30 P.M. for
treatment of stab wound on the left face, seven inches long and one inch deep
extending from the left ear across the left face close to the left side of the nose.
This wound can heal in (for) a period of two weeks unless complication occurs. The
patient is confined in the hospital since April 27, 1997 up to this date of issuing the
medical certificate.

April 30, 1997

TO WHOM IT MAY CONCERN: chanrob1es virtual 1aw library

This is to certify that Antonio Arma came to me for treatment of stab wounds on the left
face six inches from the left ear down to the left chin and from the left ear down to the
left neck 1 1/2" deep. Then another wound on the dorsum of the left hand 4" long and
2" deep. These wounds can heal in (for) a period of two weeks to three weeks unless
complication occurs.

The patient was confined on the 27th of April till the 29th of April. This certification is
issued on request of the patient for whatever purpose this may serve. 15

Dr. Alino testified that Amparo’s wound was not fatal. With regard to Antonio’s wounds,
he opined that had medical assistance not been extended to Antonio, his wounds would
have caused his death. However, on cross-examination, Dr. Alino admitted that when
Amparo and Antonio arrived at the hospital at around 9:30 p.m. on April 27, 1997, 16
their wounds were no longer bleeding. He also opined that the wounds which Amparo
and Antonio sustained could have been caused by a sharp instrument or a bolo. 17

On the other hand, Dr. Ernesto L. Tamayo of the Office of the Municipal Health Officer
of Dimasalang, Masbate, who conducted a postmortem examination on the body of
Artemio Arma, issued a medico-legal report (Exh. G) containing the following findings:
virtual 1aw library
chanrob1es

FINDINGS: chanrob1es virtual 1aw library

= Hacking wound, 5 inches in length, with fructure (sic) of the affected area, parieto-
occipital area, left;

= Hacking wound, measuring 4 1/2 inches in length, also with fracture of the affected
area, parieto-occipital area, rt.

= Longitudinal contusion, 3 inches in length, abdomen, left. 18

Dr. Tamayo testified that the first two wounds on the head were fatal. Both sides of the
skull were fractured and there was massive bleeding in both wounds. He was of the
opinion that the two wounds were caused by a sharp-edged instrument, such as a bolo.
As to the third injury, Dr. Tamayo opined that this could have been caused by a blunt
instrument, i.e., a stone or a piece of wood. It is also possible that the three injuries
were caused by two or more persons since the first two injuries were caused by a sharp
instrument, while the last was caused by a blunt instrument. 19

The prosecution witnesses disclosed that the probable motive for the killing of Artemio
was Jaime’s jealousy, because he suspected Artemio of having an affair with his wife.
20
The defense gave a different version of the events. Jaime Amazan testified that at 6:30
in the evening of April 27, 1997, he and his brother, Jerito Amazan, gathered tuba and
afterward went to the house of Jerito near the boundary of the land of Hermogenes
Apues and Amparo Arma. A short time thereafter, Jaime went out to defecate at the
farm of the Armas, a little distant from Jerito’s house. Before he could do so, however,
he saw Amparo, Antonio, Artemio, and Alberto Arma, who were armed with bolos and
pieces of wood, coming. He claimed that Artemio and Antonio tried to hit him with their
bolos. 21

When Jerito Amazan saw his brother Jaime being attacked, he got his bolo and tried to
help him. Artemio turned to him and tried to strike him with his bolo, but Jerito was
able to parry the blow. At that point, Jaime grabbed Artemio’s hands, thus enabling
Jerito to hit Artemio on the head with his bolo. Artemio dropped his bolo to the ground.
Jaime picked it up and used it against Antonio. When Alberto Arma saw that his father
and brother had been wounded, he ran away. Amparo tried to hit Jerito with a piece of
wood, but the latter was also able to evade the blow and hit her with his bolo. Antonio
and Amparo then ran away. 22

Jerito helped his wounded brother Jaime to his house and went to Danilo Villegas’ house
to ask for help. 23 Danilo Villegas claimed he was then asleep after gathering coconuts.
His wife and three children were with him. He said Jerito came to ask for help in
bringing his brother to the hospital. With Danilo’s help, Jaime was taken to the hospital
of Dr. Alino for treatment. 24

Jerito Amazan then went to the police station and surrendered. 25 Jaime also
surrendered to the police after being confined in the hospital for four days and reported
that he had wounded Antonio Rama. 26

As proof of Jaime’s injuries and subsequent confinement, the defense presented the
medical certificate (Exh. 1) issued by Dr. Alino, dated July 11, 1997, which contains the
following:
chanrob1es virtual 1aw library

July 11, 1997

TO WHOM THIS MAY CONCERN: chanrob1es virtual 1aw library

This is to certify that Jaime Amazan was confined in the hospital for treatment of stab
wounds on the right shoulder; right forearm below the right elbow, at lateral and on the
right leg below to right knee, posterior, on April 27, 1997 at around 9:00 o’clock in the
evening and discharged on April 30, 1997.

The patient was jailed and treatment was continued outside. 27

Dr. Alino testified that the wounds were not fatal, although they were serious. He
opined that, if untreated, these wounds could have caused Jaime to bleed to death. He
could also have been exposed to tetanus and other severe complications. 28

Danilo Villegas was "invited" by the police for interrogation at the police station and
subsequently detained. 29 Warrants for the arrest of accused-appellants were issued by
the Municipal Circuit Trial Court of Dimasalang on May 9, 1997. 30

The defense also presented Barangay Captain Daniel Almocera. He testified that at
around 7 o’clock in the evening of April 27, 1997, he received at home a report of a
stabbing incident involving the Armas. He therefore went to the Arma residence with
two barangay tanods and found Artemio Arma already dead. Seeing that Amparo and
Antonio had been wounded, he had them taken to the hospital for treatment. He was
informed by Amparo’s daughter-in-law that it was Jerito Amazan who caused their
injuries. The next morning, he went to the site of the incident and found scattered
bloodstains on the ground. The place was near the houses of Jerito Amazan and
Hermogenes Apues. Upon further investigation, it was disclosed that the land belonged
to the victim Artemio Arma. 31

The defense also presented Hermogenes Apues to establish the exact location of the
incident. Apues testified that he had been a resident of San Vicente, Dimasalang,
Masbate since birth. He knew accused-appellants and the victims. Artemio Arma was, in
fact, a relative of his first wife. 32

On July 8, 1998, the trial court rendered its decision, the dispositive part of which
reads:chanrob1es virtua1 1aw 1ibrary

WHEREFORE, premises considered, this court finds: chanrob1es virtual 1aw library

1. In Criminal Case No. 8494, Accused Jerito Amazan, Jaime Amazan and Danilo

Villegas GUILTY beyond reasonable doubt of the crime of MURDER for the killing of
Artemio Arma without the presence of any aggravating circumstance, said accused are
sentenced to RECLUSION PERPETUA and to pay the heirs of Artemio Arma the sum of
P50,000.00 as indemnity for the loss of life of the latter.

2. In Criminal Case No. 8496, Accused Jaime Amazan GUILTY beyond reasonable doubt

of the crime of ATTEMPTED HOMICIDE for the wounding of Amparo Arma with the
presence of the mitigating circumstance of voluntary surrender credited in his favor,
said accused is hereby sentenced to a straight penalty of ONE (1) YEAR imprisonment.

3. In Criminal Case No. 8497, Accused Danilo Villegas GUILTY beyond reasonable doubt

of the crime of ATTEMPTED HOMICIDE for the wounding of Antonio Arma, said accused
is hereby sentenced to a straight penalty of ONE (1) YEAR and TEN (10) MONTHS
imprisonment.

Finally, the Provincial Warden of Masbate is hereby directed to ship to the New National
Penitentiary at Muntinlupa City the above-named accused within thirty (30) days from
the finality of this decision and to report to this court immediately his compliance
thereon.

IT IS SO ORDERED. 33

Hence, this appeal. Accused-appellants raised the following assignment of errors: chanrob1es virtual 1aw library

I
THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES
OF THE PROSECUTION WITNESSES.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE QUALIFYING

CIRCUMSTANCE OF TREACHERY WAS ATTENDANT IN THE COMMISSION OF THE CRIME
CHARGED.

III

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED

BETWEEN JERITO AMAZAN, JAIME AMAZAN AND DANILO VILLEGAS IN CRIMINAL CASE
NO. 8494.

IV

THE COURT A QUO ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY

ACCUSED-APPELLANT JERITO AMAZAN.

THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF ACCUSED-APPELLANT

JAIME AMAZAN FOR THE CRIME OF ATTEMPTED HOMICIDE IN CRIMINAL CASE NO.
8496 HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

VI

THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT DANILO VILLEGAS

FOR ATTEMPTED HOMICIDE IN CRIMINAL CASE NO. 8497.

First. In their first, fifth, and sixth assignment of errors, Accused appellants raise

questions concerning the credibility of the prosecution witnesses. They allege
contradictions and inconsistencies in the witnesses’ testimonies, as follows: chanrob1es virtual 1aw library

A. Inconsistencies m testimony.

(1) Alberto Arma’s confused testimony: chanrob1es virtual 1aw library

(a) as to who between the brothers Amazan hacked Artemio twice; and

(b) that the killing of his father occurred prior to April 27, 1997, while the hacking of his
brother and mother took place on April 27, 1997;
(2) Alberto’s admission on cross-examination that some of his statements were not
true; and

(3) The alleged contradiction between Alberto’s testimony that Amparo was hacked on
the trail by Jaime, and Amparo’s testimony that she was hacked by Jaime while she was
asking Jerito what happened to her husband.

B. Contradictions between sworn statements and testimony in open court.

(1) The inconsistency between Amparo’s sworn statement that when she arrived at the
farm she was hacked by Jaime on the face, and her testimony that Jaime hacked her
while she was asking Jerito what happened to her husband;

(2) The inconsistency between Antonio’s sworn statement where he claimed that he
was hacked by Danilo Villegas while he was embracing his father, and his testimony in
open court that he was hacked while he was standing near his father.

To begin with, the evaluation of the credibility of witnesses by the trial court will not be
disturbed on appeal unless it is shown that it overlooked certain facts or circumstances
of substance that, if considered, could have affected the results of the case. 34
Inconsistencies as to minor details and collateral matters do not affect the credibility of
the witnesses nor the veracity or weight of their testimonies. Such minor
inconsistencies may even serve to strengthen their credibility as they negate any
suspicion that the testimonies have been rehearsed. 35

A. In Alberto’s case, the alleged inconsistencies in his testimony can be explained by his
age, his inexperience with court proceedings, and the relative darkness of the place at
the time of the occurrence of the incident. Alberto was only 14 years old and finished
only the sixth grade. 36 When he testified in court, he was only about 15 years of age.
This Court has recognized that even the most candid of witnesses commit mistakes and
make confused and inconsistent statements. This is especially true with young
witnesses who could be overwhelmed by the atmosphere of the courtroom. Hence,
there is more reason to accord them an ample space for inaccuracy. 37 In this case,
Alberto in fact cried during his direct examination. When asked on cross-examination
why he cried, he answered he was nervous. 38 His answers to the defense counsel’s
questions actually reflected his nervousness when he confusedly answered that his
father was killed before April 27, 1997, while his brother and mother were hacked on
April 27, 1997. This was obviously not true, as the records of the case show. chanrob1es virtua1 1aw 1ibrary

Alberto’s failure to state categorically which of the Amazan brothers hit Artemio twice
can be easily explained. At 7 o’clock in the evening of April 27, 1997, in Brgy. San
Vicente, Dimasalang, Masbate, the place was nearly pitch dark as the sun had already
set at 5:58 p.m. and the moon did not shine until 10:00 p.m. 39 In fact, Accused-
appellants used flashlights in attacking the victims. The place was surrounded with corn
plants and coconut trees, about 15 feet high. 40 Furthermore, considering the
suddenness and violence of the attack, it is understandable why Alberto failed to
perceive dearly what was happening around him as to enable him to keep track of the
Amazans’ individual actions.

Alberto’s statement that some parts of his testimony were not true was due to his
failure to understand the questions interposed by the defense counsel. This is evident in
the following portion of his testimony: chanrob1es virtual 1aw library

Q. Were you able to understand your answer when you were asked by the defense
counsel, that while you are testifying, you feel nervous because you are not telling the
truth, and your answer is ayes, sir" where you able to pathom (sic) or understand your
answer?

A. I did not understand.

Q. Meaning, you were not able to understand the question asked by the defense
counsel?

A. Yes, sir. 41

No sane witness would admit that he was nervous because he was not telling the truth.

With regard to Amparo’s testimony, the contradictions pointed out by accused-

appellants are more apparent than real. Amparo’s and Alberto’s testimonies, which
accused-appellants claim are contradictory, are as follows: chanrob1es virtual 1aw library

Amparo’s testimony: chanrob1es virtual 1aw library

Q. After that, what happened next? When you arrived there?

A. I was asking Jerito as to what happened to my husband, suddenly, Jaime Amazan

approached me and hacked me. (TSN, p. 5, April 13, 1998)

Alberto’s testimony: chanrob1es virtual 1aw library

Q. When you shouted for help to your mother what happened next?

A. My mother was hacked by Jaime when they met at the trail. (TSN, p. 12, March 17,
1998) 42

There is really no contradiction between the two testimonies. Amparo and Alberto’s
testimonies are consistent that Jaime Amazan had hacked Amparo. Amparo merely
added more details to her narration, which is understandable since she was the one
who asked Jerito what was going on. Alberto did not contradict his mother’s claim that
she was asking Jerito what happened when she was struck by Jaime with a bolo.

B. With respect to the contradictions between the sworn statements and the
testimonies in court of Amparo and Antonio, it has been observed that such
inconsistencies are oftentimes due to the fact that affidavits are generally not prepared
by the affiants themselves but by others, like police investigators, and are only signed
by the affiants. 43

In any event, the witnesses should have been shown their prior inconsistent statements
and given a chance to explain themselves, as required by Rule 132, §13. This was not
done in this case. The witnesses were never confronted during the trial with the alleged
inconsistencies between their affidavits and their testimonies and asked to explain
them. k is only now on appeal that the question is raised.

Moreover, Antonio was not the only one who identified Danilo Villegas as his assailant.
Rather, both Amparo and Alberto Arma also testified to the same thing, claiming that
they saw Danilo Villegas hack Antonio. 44 Antonio’s seeming uncertainty only reflects
his shock at seeing his father lying dead on the ground.

Second. Accused-appellants contend that the suddenness of the attack against Artemio
Arma alone does not constitute treachery. There must be evidence that the mode of
attack was consciously adopted by them to make it impossible or difficult for the victim
to defend himself. Moreover, Accused-appellants maintain that the attack was frontal.
Hence, the deceased Artemio had a fair warning of the impending attack.

There is treachery when the offender commits any of the crimes against person,
employing means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which
the offended party might make. 45 For treachery to be considered, two elements must
concur: (1) the employment of means of execution that gives the person attacked no
opportunity to defend himself or retaliate; and (2) the means of execution were
deliberately or consciously adopted. 46

In the case at bar, Artemio had no warning of the impending attack. Accused-
appellants’ assertion that the attack was frontal is belied by the report of Dr. Tamayo
which shows that the deceased sustained two (2) head wounds at the parieto-occipital
area, right and left. In other words, the wounds were inflicted on the upper back part of
the skull, indicating that the attack was made from behind. In addition, according to
Alberto, Jerito did not draw his bolo until he was near Artemio. Then he hit Artemio on
the head. 47 The first wound was fatal. 48 It rendered the victim helpless against the
subsequent attacks of accused appellants.

Third. Accused-appellants allege that there is no evidence of any conspiracy among

them but that each one acted independently of the others. They claim that the
prosecution failed to produce evidence indicating a common criminal purpose.

Accused-appellants’ contention has no merit. Conspiracy exists when two or more

persons come to an agreement concerning the commission of a felony and decide to
commit it. 49 In determining the existence of conspiracy, it is not necessary to show
that all the conspirators actually hit and killed the victim. What is important is that all
participants performed specific acts with such closeness and coordination as to indicate
a common purpose or design to bring about the death of the victim. 50 The agreement
may be deduced from the manner in which the offense was committed. 51

In this case, all of accused-appellants came together at the place where Artemio was
tethering his carabao; the three were present at the time of the attack on Artemio;
they were all armed; none of them made any effort to stop the attack on the deceased;
and all three of them fled together after attaining their purpose.chanrob1es virtua1 1aw 1ibrary

In fact, both Jerito and Jaime participated in the assault on Artemio. On the other hand,
Danilo Villegas’ participation in the conspiracy was shown by the fact that, after Artemio
had fallen on the ground, he checked to ensure that Artemio was really dead. 52
Moreover, Villegas turned to Antonio when he saw the latter coming to the aid of his
father.

Fourth. Accused-appellants insist that it was the victim and the members of his family
who were guilty of aggression. According to accused-appellants, when Jerito saw his
brother Jaime being attacked, Jerito only tried to help him. But he was met by Artemio
who tried to hit him with a bolo. When Artemio tried to strike Jerito again, Jaime caught
Artemio’s hands. This enabled Jerito to strike Artemio with his bolo. As a result, Artemio
dropped his bolo on the ground. Jaime then picked it up and used it against Antonio
and Amparo.

We think the trial court correctly rejected accused-appellants’ version. For the justifying
circumstance of defense of relative to be credited in favor of an accused, the following
requisites must be proven: (1) unlawful aggression; (2) reasonable necessity of the
means employed to repel it; and (3) in case the provocation was given by the person
attacked, the one making the defense had no part therein. 53 The burden is on the
accused to prove these elements of self-defense or defense of relative. 54

Here, none of these requisites has been proven by Accused-Appellants. First, Jerito’s
claim that he was attacked by Artemio and that it was his defensive action of hitting
him frontally which caused Artemio’s injuries is contrary to the evidence which shows
that Artemio suffered wounds at the upper back portion of his head, indicating that the
latter was attacked from behind. Second, no reason has been shown why the Armas
should attack Accused-Appellants. Accused-appellants have been neighbors of the
victim and the prosecution witnesses for years. Amparo Arma is in fact the aunt of the
Amazans, and Alberto and Antonio are their cousins. Third, the seriousness of the
wounds sustained by the Armas, compared to the minor injuries suffered by Jaime,
makes it improbable that the former were the aggressors. That one of accused-
appellants (Jaime Amazan) suffered some injuries which were not fatal only indicates
that one or some of the victims fought back.

Fifth. The information in Crim. Case No. 8494 (for murder) alleged the presence of the
aggravating circumstances of evident premeditation, abuse of superior strength, and
nighttime. In Crim. Case No. 8496 and 8497 (for frustrated murder), the informations
alleged the presence of evident premeditation and treachery. In addition, in Crim. Case
No. 8496, the information alleged the aggravating circumstance of abuse of superior
strength.

In all three cases, the lower court correctly ruled that there was no aggravating
circumstance of evident premeditation. Indeed, there is no evidence showing (a) the
time when accused-appellants determined to commit the crime; (b) acts manifestly
indicating that they had clung to their determination; and (c) a sufficient lapse of time
between the determination and the execution to allow them opportunity to reflect upon
the consequences of their acts and to allow their conscience to overcome the resolution
of their will. 55

With respect to the allegation of abuse of superior strength in Crim. Case No. 8494, this
circumstance cannot be appreciated because it is deemed absorbed in treachery, 56
which is present in this case.
In Crim. Case No. 8496, however, the trial court erred in not appreciating the
aggravating circumstance of abuse of superior strength against accused-appellant
Jaime Amazan. In United States v. Consuelo, 57 it was held that when a man attacks
an unarmed and defenseless woman, it constitutes taking advantage of superior
strength. This circumstance is clearly shown in the present case by the fact ht, without
any warning, Jaime attacked Amparo, who was unarmed, as she came to find out what
had happened to her husband.

On the other hand, the aggravating circumstance of nighttime cannot be appreciated

since there is no evidence to show that nighttime was deliberately sought by accused-
appellants to facilitate the commission of the crime or prevent its discovery or evade
capture or facilitate their escape. 58

The trial court also correctly credited Jerito and Jaime Amazan with the mitigating
circumstance of voluntary surrender. Jerito Amazan surrendered to the police
authorities right after he had brought Jaime Amazan to the hospital. 59 The latter
(Jaime Amazan) himself surrendered to the police four days later. 60 Although Jaime
admitted that he surrendered because of fear of reprisal, this fact should not be taken
against him for, as the Court has held in another case, 61 this circumstance does not
detract from the spontaneity of the surrender, nor does it alter the fact that, by giving
himself up, he has saved the State the time and trouble of searching for him until
arrested.

Under Art. 248 of the Revised Penal Code, murder is punishable by reclusion perpetua
to death. In view of the absence of any other aggravating circumstance and the
presence of the mitigating circumstance of voluntary surrender of Jerito and Jaime
Amazan, the trial court correctly found them guilty of murder in Crim. Case No. 8494
and imposed on them the penalty of reclusion perpetua 62 in accordance with Art. 63 of
the Revised Penal Code.

The trial court also correctly found Danilo Villegas guilty of murder in Crim. Case No.
8494 and imposed on him the penalty of reclusion perpetua in accordance with Art. 63
of the Revised Penal Code, there being no other aggravating and mitigating
circumstances present. 63

We hold, however, that it was error for the trial court to convict Jaime of attempted
homicide in Crim. Case No. 8496 for inflicting injuries on Amparo. As the crime was
committed with abuse of superior strength, the crime committed is attempted murder,
in accordance with Art. 248 of the Revised Penal Code. Dr. Alino testified that Amparo’s
injuries were not fatal. In fact, she only went to the hospital for treatment at 9:30 p.m.
of April 27, 1997, two hours after she sustained her injuries, which were no longer
bleeding when Dr. Alino treated them. 64 But the fact that Jaime hit Amparo on the
face with a bolo shows that his intent was not only to injure but to kill.

The penalty lower by two degrees than that prescribed by law for the consummated
felony shall be imposed upon the principals in an attempt to commit a felony. 65 The
trial court imposed a straight penalty of one (1) year imprisonment on Jaime Amazan.
66 This penalty should be modified. In accordance with the Indeterminate Sentence
Law and Art. 64 of the Revised Penal Code, the minimum of the indeterminate penalty
should be anywhere within the range of prision correccional, while the maximum should
be prision mayor minimum, considering the absence of any aggravating circumstances
and the presence of the mitigating circumstance of voluntary surrender. chanrob1es virtua1 1aw 1ibrary

In Criminal Case No. 8497, the trial court correctly found Danilo Villegas guilty of
attempted homicide for the injuries inflicted on Antonio Arma. Antonio’s injuries were
not fatal, as can be gleaned from Dr. Alino’s testimony that Antonio’s wounds were no
longer bleeding when he arrived at the hospital. 67 But the fact that Danilo hacked
Antonio on the face shows that his intent was to kill and not merely to injure.

The trial court erred in imposing on Danilo Villegas a straight penalty of imprisonment
for one (1) year and ten (10) months. In accordance with the Indeterminate Sentence
Law and Art. 64 of the Revised Penal Code, the minimum of the penalty should be
within the range of arresto mayor and the maximum should be prision correccional
medium, in view of the absence of any aggravating and mitigating circumstances.

The trial court also correctly awarded the heirs of Artemio Arma the sum of P50,000.00
as indemnity for the death of Artemio Arma. 68 However, in line with our recent
rulings, the heirs of the victim are also entitled to an additional amount of P50,000.00
as moral damages. 69

WHEREFORE, the decision of the Regional Trial Court, Branch 44, Masbate, is MODIFIED
as follows: chanrob1es virtual 1aw library

(1) In Criminal Case No. 8494, Accused Jerito Amazan and Jaime Amazan are found
guilty of murder and, taking into account the absence of any aggravating circumstance
and the presence of the mitigating circumstance of voluntary surrender, are hereby
sentenced to reclusion perpetua for the killing of Artemio Arma;

(2) In Criminal Case No. 8496, Accused-appellant Jaime Amazan is found guilty of

attempted murder and is hereby sentenced to an indeterminate penalty the minimum
of which is two (2) years and four (4) months of prision correccional minimum and the
maximum of which is eight (8) years of prision mayor minimum.

(3) In Criminal Case No. 8497, Accused-appellant Danilo Villegas is found guilty of

attempted homicide and is hereby sentenced to an indeterminate penalty the minimum
of which is four (4) months of arresto mayor medium and the maximum of which is four
(4) years and two (2) months of prision correccional medium.

(4) Accused-appellants Jerito Amazan, Jaime Amazan and Danilo Villegas are ordered to
pay the heirs of the victim Artemio Arma the additional amount of P50,000.00 as moral
damages. chanrob1es virtua1 1aw 1ibrary

In all other respects the appealed decision is AFFIRMED.

SO ORDERED.
People v. Amion, G.R. No. 140511, March 1, 2001

G.R. No. 140511            March 1, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BALTAZAR AMION y DUGADUGA, accused-appellant.

GONZAGA-REYES, J.:

SPO2 Baltazar Amion y Dugaduga, a member of the Bacolod City Police Office (BCPO) was
charged with the crime of Murder for the death of PO3 Victor Vaflor, a member of the Escalante
Police Station, under the following Information:1

"That on or about the 24th day of January, 1994, in the City of Bacolod, Philippines, and
within the jurisdiction of this Honorable Court, the herein accused, without any justifiable
cause or motive, being then armed with an M16 Armalite Rifle, with intent to kill and by
means of treachery and evident premeditation, did, then and there willfully, unlawfully and
feloniously assault, attack and shoot with said firearm one Victor Vaflor, Jr. thereby inflicting
upon the person of the latter the following wounds, to wit:

1. Wound, gunshot (entrance) roughly oval in shape, 0.7 cm. in diameter surrounded
by a contused-abraded collar 0.3 cm. in width almost evenly distributed around the
gunshot wound located at the right deltoid region directed diagonally medially upward
penetrating the subcutaneous tissue and muscles then to the thoracic cavity and
making a wound (exit) stellate in shape 1.7 cm. x 1.2 cm. located at the right cheek.

2. Wound gunshot (entrance) roughly oval in shape 0.7 cm. in diameter surrounded
by a contused-abraded collar 0.3 cm. in width almost evenly distributed around the
gunshot wound located at the right axillary region directed forward medially laterally
penetrating the subcutaneous tissues and muscles then to the thoracic cavity
involving the lungs, heart blood vessels, then make a wound (exit) stellate in shape
1.7 cm. x 1.2 cm. Located at the left axillary region.

3. Wound, gunshot (entrance) roughly oval in shape 0.7 cm. in diameter surrounded
by a contused-abraded collar 0.3 cm in width almost evenly distributed around the
gunshot wound located at the left infrascapular region directed forward medially
diagonally upward penetrating the subcutaneous tissues, muscles and then to the
thoracic cavity involving the lungs and heart then making a wound (exit) stellate in
shape 1.5 cm. x 1.2 cm. Located at the suprascapular region right.

4. Wound, gunshot (entrance) roughly oval in shape 0.7 cm. in diameter surrounded
by a contused-abraded collar 0.3 cm. in width almost evenly distributed around the
gunshot wound located at the left lumbar region along the midspinal line directed
forward medially diagonally upward penetrating the subcutaneous tissues, muscles
and then to the abdominal cavity involving the left kidney, liver and stomach then
making a wound (exit) at the right infrascapular region.

5. Contusion-abrasion 2 cm. long along the face, fronto-parietal region, right of the
head with fracture of the right side of the face and the skull and laceration of the
brain substance.

Cause of death:
 Cardio-respiratory arrest, shock, hemorrhage, severe, fracture of the skull,
rupture of the lungs and heart due to multiple gunshot wounds.

which were the direct and immediate cause of his death, to the damage and prejudice of his
heirs, as follows:

1. As indemnity for the death of the victim P50,000.00

2. As indemnity for the loss of earning P88,800.00
capacity of the victim
3. As moral damages P10,000.00

Act contrary to law."

The prosecution presented: 1) Police Supt. Edmundo Sanicas of the BCPO; 2) PO3 Richard
Dejoras, 34, a member of the Escalante Police Station; 3) SPO2 Virgilio Pachoro, a member of the
BCPO; 4) Mrs. Antoinietta Vaflor, widow of the late PO3 Victor Vaflor; 5) Dr. Johnnie V. Aritao, City
Health Officer, Bacolod City Health Office; and 6) SPO3 Francisco Castidad, a member of the BCPO
and the officer-in-charge of its Property Division.

The defense presented accused Amion and his companion at the time of the incident, Ricardo
Divino.

The trial court 2 found Chief Inspector Sanicas and PO3 Dejoras to be credible witnesses, and
rejected the testimony of CVO Ricardo Divino. Finding the evidence against the accused as "simply
overwhelming", the court rendered judgment as follows:

"FOR ALL THE FOREGOING, the Court finds the accused SPO2 Baltazar Amion y
Dugaduga, GUILTY beyond reasonable doubt as Principal by Direct Participation of the
crime of Murder, qualified by treachery, defined and penalized under Article 248 of the
Revised Penal Code as amended by R. A. 7659. The following ordinary aggravating
circumstances were present in the commission of the crime:

1. Abuse of public office due to the use of his service firearm in the killing;

2. Use of motor vehicle which facilitated the commission of the crime; and

3. Aid of armed men in the commission of the crime.

There is present only one (1) mitigating circumstance of voluntary surrender.

The accused is therefore sentenced to suffer the MAXIMUM PENALTY OF DEATH. He is

also sentenced to pay by way of civil liability, the following:

1. To the heirs of the late PO3 Victor Vaflor, the sum of P50,000.00 as death
indemnity and P88,800.00 as compensatory damages;

2. To Mrs. Antonietta Vaflor, the sum of P10,000.00 as moral damages."

The case is before us on automatic review.

Accused-appellant's brief raises the following assignment of errors:

"I. THE HONORABLE TRIAL COURT ERRED IN UPHOLDING THE TESTIMONIES OF

PO3 RICHARD DEJORAS AND CI EDUARDO SANICAS WHICH CONTAINED
STATEMENTS THAT WERE NOT ONLY FALSE BUT HIGHLY IMPROBABLE;

II. THE HONORABLE TRIAL COURT ERRED IN ITS FINDINGS OF FACTS, ON SEVERAL
MATTERS, AS WILL BE DISCUSSED AND POINTED OUT LATER IN THIS BRIEF;

III. THE HONORABLE TRIAL COURT ERRED IN DISCOUNTING THE CLEAR EVIDENCE
OF SELF-DEFENSE, BASED ON THE LAWS AND JURISPRUDENCE APPLICABLE." 3

After a very careful review of the evidence, we resolve to affirm the prosecution's case which rested
mainly on the testimonies of two eyewitnesses, namely Chief Inspector Edmundo Sanicas and PO3
Richard Dejoras.

Sanicas' testimony as summarized by the- trial court is as follows:

"(On) January 24, 1994, Chief Inspector (henceforth CI) Edmundo Sanicas was at his house
in Mansilingan, Bacolod City. As of that date, CI Sanicas has no specific assignment as he
had just been relieved of his duty as Chief of Police of the town of E. B. Magalona. CI
Sanicas is 51 years of age, married and has been a policeman for nearly thirty (30) years.

CI Sanicas told the Court that at about 1:00 P.M. of that day, January 24, 1994, two (2)
policemen from Escalante town came to see him to deliver the message of the Chief of
Police of that town for a coordination with him concerning his projected trip to Manila
regarding a police training program. These two (2) policemen in their police uniform, came
on board an Escalante patrol car together with a civilian companion. He came to know these
policemen later as PO3 Victor Vaflor and PO3 Richard Dejoras both of the Escalante Police
Station.

After they had a talk inside his house, CI Sanicas conducted the two (2) Escalante policemen
as they left his house. As he emerged from the steel gate following the two (2) policemen, he
saw SPO2 Baltazar Amion, only about a meter away from PO3 Vaflor. SPO2 Amion started
shooting at PO3 Vaflor with an armalite rifle as the latter was about to open the door of the
Escalante police car. PO3 Vaflor fell. CI Sanicas attempted to take away the armalite rifle but
SPO2 Amion refused to surrender it. SPO2 Amion circled around the Escalante patrol car
followed by CI Sanicas. Upon reaching the fallen PO2 Vaflor, Amion again fired shots at him.

For the second time, CI Sanicas attempted to disarm the accused but the latter refused to
surrender the armalite rifle. For the second time, the accused circled the Escalante police car
followed by CI Sanicas. CI Sanicas could not distinctly recall whether shots were fired when
the accused approached his victim for the second time.

PO3 Vaflor was loaded on the Precinct 7 police car upon instruction of CI Sanicas to be
brought to the hospital. On the way, the police car driven by the accused passed by Precinct
7 and both the accused and CI Sanicas disembarked. It was here where the accused finally
surrendered his armalite rifle to CI Sanicas. When the victim eventually reached the Bacolod
Sanitarium Hospital, he was declared Dead on Arrival (DOA)."4

The summary of the testimony of PO3 Richard Dejoras is as follows:

 "PO3 Dejoras is a regular member of the Escalante Police Station. He also resides at
Escalante, and he and the accused were immediate neighbors in Escalante before the
accused transferred to Bacolod City.

PO3 Dejoras testified that in the morning of January 24, 1994, he and PO3 Victor Vaflor, also
a member of the Escalante Police Station, was ordered by the Chief of Police of that town to
proceed to Bacolod City to accomplish the following missions:

1. To submit the Performance Evaluation Report at the PNP Headquarters in

Bacolod City;

2. To submit calamity loan applications of Escalante policemen with the GSIS; and

3. To see Chief Inspector Edmundo Sanicas of the BCPO to inquire about a training
program.

They rode on the police car of Escalante and arrived at Bacolod City at about 10:00 A.M.
After they accomplished their first two (2) missions, they ate their lunch and went on to locate
the residence of Chief Insp. Sanicas which is in Mansilingan, Bacolod City. Both he and
Vaflor were in their police uniform and both carried handguns which were their service
firearms.

It was PO3 Vaflor who drove the Escalante police car which was a Nissan Sentra
automobile. Aside from the two (2) of them, they have a civilian companion who is a friend of
PO3 Vaflor. Since they do not know the specific location of the house of CI Sanicas in Brgy.
Mansilingan, they passed by Precinct 7 and made an inquiry. Having obtained direction from
the police officers of Precinct 7, including the accused himself who even gave them direction,
they were able to locate the house of CI Sanicas. PO3 Vaflor parked the car right in front of
the steel gate of the perimeter fence of the house of CI Sanicas.

After they had a talk with CI Sanicas and accomplished their mission, they went back to their
police car. He was the first to step out of the steel gate followed by PO3 Vaflor and by CI
Sanicas who conducted them towards their car. As PO3 Vaflor was about to open the door of
the police car on the driver's side, the accused who was only about four (4) meters away,
shot him with an armalite rifle. PO3 Vaflor fell. He tried to intervene and pacify the accused
but to no avail. The accused even threatened him. On board the Precinct 7 police car parked
just immediately behind the Escalante police car, he saw Ladislao Amion, uncle of the
accused seated at the front seat, while a companion who was holding an armalite rifle,
pointed the firearm in his direction.

The accused shot PO3 Vaflor several times at intervals of from thirty (30) seconds to one (1)
minute. During an interval in the shooting, CI Sanicas tried to intervene and disarm the
accused but he refused to surrender his firearm and instead fired more shots at his fallen
victim.

PO3 Dejoras declared that the attack was so sudden and it took all the three (3) of them by
surprise. After the shooting, CI Sanicas took away PO3 Vaflor's service firearm which was
still tucked in its holster."5

On the other hand, accused-appellant's version is as follows:

 "Testifying for his own behalf, the accused declared that he went on a roving patrol with CVO
(Civilian Volunteer Organization) Ricardo Divino at about 12:30 P.M. on January 24, 1994.
When they reached the vicinity of the house of CI Sanicas, they noticed a car parked at the
middle of the road in front of the house of CI Sanicas. Accused Amion said he disembarked
from the police car for the purpose of requesting the driver of the blocking car to clear the
way. He brought along with him his armalite rifle which was slung on his shoulder. As he
approached the gate of the premises of the house of CI Sanicas, PO3 Vaflor emerged from
the house, so he greeted him by saying in the vernacular, "you are here". PO3 Vaflor
responded by saying, "so what". He saw PO3 Vaflor making a motion to pull out his sidearm,
so he levelled his armalite rifle in his direction and the armalite fired.

The accused Amion said that he could not fully explain what happened on that early
afternoon of January 24, 1994. He said he was almost in a state of shock when he saw PO3
Vaflor as it was the latter who killed his uncle, Rodito Amion. He witnessed the killing in the
town of Escalante in 1986. He said he pleaded to PO3 Vaflor to spare the life of his uncle but
he was not heeded. That afternoon, in front of the house of CI Sanicas, he immediately fired
his armalite rifle when he saw PO3 Vaflor going for his gun." 6

Richard Divino corroborated Amion's testimony. He was with the latter on a roving patrol and as they
were about to pass in front of the house of CI Sanicas, they noticed a police patrol car parked on the
road. Amion stepped down from the patrol car to request whoever is the driver of the parked car to
give way. Divino saw the accused talking with the person whom he later came to know as PO3
Vaflor. He testified that he saw PO3 Vaflor making a motion to draw his gun and it was at that time
when the accused shot him.

The trial court concluded that the testimonies of Sanicas and Dejoras positively show that the
accused suddenly, deliberately and without warning, shot to death PO3 Victor Vaflor in the afternoon
of January 24, 1994 at Brgy. Mansilingan, Bacolod City. The firearm used in the killing was an
armalite rifle with Serial No. RP-186739 which was issued to him in his official capacity as a member
of the Bacolod City Police Office. The trial court found that the motive for the killing is revenge as the
victim is one of those charged with murder for the death of Amion's uncle many years ago. The
killing was attended by treachery as the accused was already waiting by the gate when victim
emerged and was fired upon with an M16 armalite rifle and was thus absolutely unprepared for the
attack and had no chance to defend himself or to escape.

We find no cogent justification to disturb the findings of the trial court.

We do not agree with accused-appellant that the testimonies of Dejoras and Sanicas were highly
improbable. Accused-Appellant claims that based on their testimonies he could not have shot Vaflor
without harming Sanicas and Dejoras; that since Dejoras had come out of the gate first, he should
have retreated and closed the gate when he saw Amion since he knew of the feud existing between
him and Vaflor; and that the nature of the gunshot wounds sustained by Vaflor do not support the
testimony of Sanicas that he shot Vaflor from a distance of one (1) meter.

The objections refer to minor matters and do not detract from the positive identification of accused-
appellant as the assailant. Moreover, the two (2) witnesses corroborated each other on the essential
points regarding the shooting incident. The first shot hit Vaflor as the latter was about to open the
door of the Escalante police car. We agree with appellee that both Dejoras and Sanicas were
outside the line of fire during the shooting and could not have been hit unless directly shot at.
Moreover, Dejoras saw Amion when he was well past the gate and was already in front of the car;
hence it is pointless to argue that Dejoras should have closed the gate when he saw Amion. As
regards the "alleged established rules in ballistics as to the effective fire power of an armalite", there
is no showing to support the bare allegation that judging from Vaflor's bullet wounds, he could not
have been fired upon at a distance of about one (1) meter.

What is material is that the two (2) prosecution witnesses positively declared that accused-appellant
without warning fired upon Vaflor with an M16 armalite. Sanicas admitted that the incident happened
so quickly and that there could have been other details that escaped his observation but his
testimony, as capsulized by the trial court is as follows:

"What he can distinctly recall is that after he stepped out of the steel gate following PO3
Vaflor, the accused, who was only about a meter away from PO3 Vaflor, fired a shot with his
armalite rifle and PO3 Vaflor fell. CI Sanicas tried to disarm the accused and in so doing, he
must have stepped up between the accused and his victim for what the accused did was to
back away and circle the Escalante patrol car with CI Sanicas following him. Upon reaching
the fallen Vaflor, the accused fired shots at him again. Again, CI Sanicas tried to disarm the
accused but again, the accused refused to give up his firearm and again, he backed away
with CI Sanicas following him. The accused again circled the Escalante patrol car and again
approached his fallen victim. CI Sanicas is not certain whether the accused shot Vaflor for
the third time".7

Sanicas himself was caught by surprise as it happened "so fast" as he "never thought that the thing
would happen(ed) like that in front of me with two (2) people who are also members of the police
force".8 Like Sanicas, Dejoras, who is a friend and neighbor of accused-appellant, had no reason to
testify against the accused-appellant.

Accused-appellant further claims that in discounting the testimonies of CVO Divino and SPO4
Alabia, the defense of the accused was greatly affected and "in effect barred the truth from being
unearthed". The submission is not tenable. Divino's attempt to corroborate the version of accused-
appellant that Vaflor made a motion to draw his gun and it was at this point that accused-appellant
fired his rifle was rejected by the court as "rehearsed and untruthful", in contrast to the testimonies of
Sanicas and Dejoras which the court described as credible and were given in a "sincere, honest and
straightforward manner." Needless to state the doctrinal rule is that the question of assessing the
credibility of witnesses is primarily addressed to the trial court, whose findings are generally
respected on appeal.

The accused-appellant pleads that he acted in self-defense thus:

"As borne out by the records, the accused NEVER intended to shoot PO3 VAFLOR. In fact,
when he saw him coming out of the gate, he greeted him, "DONG ARI KA" (Hi, you're
here?). However, PO3 VAFLOR retorted by saying: "TI ANO" (So what!). Then, PO3
VAFLOR made a gesture as if to pull out his gun (as in fact the Prosecution has admitted
that PO3 VAFLOR was then carrying his service firearm). And this left the accused-appellant
without any alternative but to shoot PO3 VAFLOR with his only firearm, the armalite rifle. If
he did not shoot PO3 VAFLOR, the latter should have shot him (accused-appellant). The act
of VAFLOR in trying to pull out his service firearm is definitely an act of UNLAWFUL
AGGRESSION. (PP. VS. ZAMBARRANO, CA 54 O.G. 8455; PP. VS. ALVAREZ, JR. 8 ACR
690). With no other weapon available to him, except his armalite rifle, accused-appellant's
using the said armalite in order to defend was reasonable." 9

Where the offender admits authorship of the killing, the onus probandi is shifted to him to prove the
elements of self-defense, namely that 1) there was unlawful aggression by the victim; 2) that the
means employed to prevent or repel such regression was reasonable; and 3) that there was lack of
sufficient provocation on the part of the person defending himself. As above-stated, the first element
was not proven. Unlawful aggression presupposes an actual, sudden and expected attack and this
was not proven. Moreover, Vaflor suffered multiple gunshot wounds after falling down from the first
gunshot. The accused circled the Escalante patrol car, with Sanicas following him in order to disarm
him, and upon reaching the fallen Vaflor, fired shots at him again. If he shot the victim merely to
defend himself, there would have been no cause for accused-appellant to shoot him again. 10

With respect to the attendant circumstances, we agree with the Solicitor General that the use of a
motor vehicle cannot be considered as an aggravating circumstance, as the police vehicle used to
reach the Sanicas residence was not used directly or indirectly to facilitate the criminal
act.11 Although the accused-appellant used a patrol car to commute from Escalante to the Sanicas
residence, there is no showing that the use of that vehicle facilitated the act of shooting itself.

Neither may the aggravating circumstance of aid of armed men be appreciated in this case. The trial
court found that during the shooting, an armed companion was on board the patrol car pointing his
rifle in the direction of Dejoras. In the first place, this aggravating circumstance contemplates more
than one armed man, as the use of the plural form easily suggests. In the second place, the
requisites of this aggravating circumstance are: 1) that armed men or persons took part in the
commission of the crime, directly or indirectly, and 2) that the accused availed himself of their aid or
relied upon them when the crime was committed. Neither circumstance was proven present; it is
clear from the evidence that the accused-appellant carried out the killing all by himself and did not
rely on his companion for assistance.

We also do not agree that the fact that accused-appellant used his service firearm in shooting Vaflor
should be considered as an aggravating circumstance as he took advantage of his public
position.12 There is authority to the effect that for public position to be appreciated as an aggravating
circumstance, the public official must use his influence, prestige and ascendancy which his office
gives him in realizing his purpose:

"If the accused could have perpetrated the crime without occupying his position, then there is
no abuse of public position. In one case where the accused was a sergeant of the Philippine
Army, this Court held that the mere fact that he was in fatigue uniform and had an army rifle
at the time is not sufficient to establish that he misused his public position. In another case
where the accused, a Constabulary soldier used a Garand rifle in the provincial jail armory in
killing a policeman, the aggravating circumstance of taking advantage of public position was
not appreciated because accused could have secured a rifle from other sources. And in the
murder by a public officer, it was ruled that firearms, however and whenever obtained, are
not an ingredient of murder or homicide. The crime could have been committed by
defendants in the same or like manner and with the same ease if they had been private
individuals and fired with unlicensed weapons. In the case at bar, although the victim was
killed with appellant's armalite rifle which was issued to him, there was nothing to show that
appellant took advantage of his position. In the absence of proof that advantage was taken
by appellant, the aggravating circumstance of abuse of position could not be properly
appreciated against him."13

Appellee assails the court's conclusion that the circumstance of voluntary surrender is present
contending that there is no showing that appellant surrendered in a spontaneous manner, as shown
by the testimony of Sanicas 14 that appellant refused to surrender his firearm. Accused-appellant in
his Reply Brief asserts that it was he who lifted the body of Vaflor and loaded it on his vehicle and
brought him to the Bacolod Sanitarium and Hospital, without instruction from CI Sanicas. The fact
that accused-appellant yielded his weapon to Sanicas at the time of the incident, albeit with some
persuasion from the latter, should be considered in his favor. Moreover, the records show that the
warrant of arrest was dated March 3, 1994 and received by the Station Commander, Bacolod PNP
Station and by the Provincial Director, PNP Provincial Commander, Camp Alfredo, on March 14,
1994 and March 12, 1994 respectively, whereas the Commitment Order signed by the Executive
Judge was dated March 7, 1994 15 . It would appear therefore that the accused-appellant was
already in police custody before the warrant of arrest was served. The warrant of arrest itself carries
a marginal note "voluntarily surrendered March 5, 1994". We find no cogent justification to rule that
the trial court erred in giving the accused the benefit of the mitigating circumstance of voluntary
surrender.

In view of the absence of aggravating circumstances and the presence of one mitigating
circumstance, the penalty imposed by the trial court should be modified.

The penalty for murder Under Article 248 is reclusion perpetua to death16 . Pursuant to Article 63, in
case of two indivisible penalties, when the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Hence
the imposable penalty is reclusion perpetua.

The civil indemnity for death is P50,000.00. With respect to the loss of earning capacity, the formula
for computing the same is laid down in People vs. Silvestre:17

Net Earning Capacity = life expectancy x Gross Annual Income – living expense

The deceased Vaflor was a policeman earning P3,800.00 a month, or P45,600.00/annum, and was
43 years old at the time of his death, thus:

Net
life expectancy Gross
Earning living expenses
= [2/3(80-age at x Annual -
Capacity (50% of GAI)
death)] Income (GAI)
(x)
2(80-43)
X = x 45,600.00 - 22,800.00
3
x = 24.666666 x 22,800.00
Net Earning Capacity = P562,399.98

The indemnity for loss of earning capacity should be P562,399.98.

WHEREFORE, the judgment finding the accused-appellant Baltazar Amion y Dugaduga guilty
beyond reasonable doubt of murder is hereby AFFIRMED with the MODIFICATION that the penalty
imposed is reduced to reclusion perpetua and the damages for loss of earning capacity is increased
to P562,399.98. The awards of P50,000.00 as death indemnity and P10,000.00 as moral damages
are affirmed.

SO ORDERED.

People v. Magat, G.R. No. 130026, May 31, 2000

[G.R. No. 130026. May 31, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ANTONIO MAGAT y

LONDONIO, Accused-Appellant.
 DECISION

PER CURIAM:

Before this court for automatic review is the joint decision of the Regional Trial Court of
Quezon City, Branch 103, in Criminal Cases Nos. Q-96-68119 and Q-96-68120, finding
accused-appellant Antonio Magat y Londonio guilty of raping his daughter, Ann Fideli L.
Magat, on two occasions and sentencing him to suffer the extreme penalty of death for
each case, and to pay the sum of P750,000.00 as compensatory, moral and exemplary
damages.

The two (2) Informations, charging accused-appellant with rape reads: chanrob1es virtual 1aw library

CRIMINAL CASE NO. Q-96-68119

The undersigned, upon sworn complaint of the offended party, nineteen year old (19)
ANN FIDELI LIMPOCO MAGAT, accuses ANTONIO MAGAT y LONDONIO, her father, of
the crime of rape defined and penalized under Article 335, Revised Penal code, as
amended by RA 7659, committed as follows: chanrobles.com.ph : red

"That on or about the 14th day of August 1994, during the 17th birthday of Ann Fideli L
Magat in Kasunduan, Quezon City and within the jurisdiction of the Honorable
Court, Accused ANTONIO MAGAT Y LONDONIO, with lewd designs, and by means of
threat and violence, did then and there, unlawfully and feloniously, lie and succeeded in
having sexual intercourse with Ann Fideli Limpoco Magat." 1

CRIMINAL CASE NO. 96-68120

"The undersigned, upon sworn complaint of the offended party, nineteen year old (19)
ANN FIDELI LIMPOCO MAGAT, accuses ANTONIO MAGAT y LONDONIO, her father, of
the crime of rape defined and penalized under Article 335, Revised Penal Code, as
amended by RA 7659, committed as follows: chanrob1es virtual 1aw library

That on or about the 1st day of September 1996, in Barangay Holy Spirit, Quezon City,
and within the jurisdiction of this Honorable Court, Accused ANTONIO MAGAT Y
LONDONIO, with lewd designs and by means of threat and violence, did then and there,
unlawfully and feloniously, lie and succeeded in having sexual intercourse with Ann
Fideli Limpoco Magat." 2

Upon arraignment on January 10, 1997, Accused-appellant pleaded guilty but bargained

for a lesser penalty for each case. Complainant’s mother, Ofelia Limpoco Magat, and
the public prosecutor, Rio Espiritu agreed with the plea bargain. Consequently, the trial
court issued, on that same day, an Order, the fallo of which reads: jgc:chanrobles.com.ph

"On arraignment, Accused with the assistance of his counsel Atty. Diosdado Savellano

and upon the request of the accused, the information was read and explained to him in
tagalog, a dialect known to him and after which accused entered a plea of "GUILTY" to
the crime charged against him, and further pleads for a lower penalty to which the Hon.
Public Prosecutor interpose no objection.

ACCORDINGLY, the court hereby finds the accused ANTONIO LONDONIO MAGAT,
GUILTY beyond reasonable doubt of the crime of Violation of Article 335, RPC in relation
to RA 7659 and he is hereby sentenced to suffer a jail term of ten (10) years
imprisonment for each case." 3

After three months, the cases were revived at the instance of the complainant on the
ground that the penalty imposed was "too light." 4 As a consequence, Accused-
appellant was re-arraigned on both Informations on April 15, 1997 where he entered a
plea of not guilty. 5

Thereafter, trial on the merits ensued with the prosecution presenting Dr. Ida Daniel,
medico-legal officer of the National Bureau of Investigation and complainant’s mother.

On July 3, 1997 accused-appellant entered anew a plea of guilty. 6 The court read to
him the Informations in English and Tagalog and repeatedly asked whether he
understood his change of plea and propounded questions as to his understanding of the
consequences of his plea. 7

Convinced of accused-appellant’s voluntariness of his plea of guilty, the court required

the taking of complainant’s testimony. The accused-appellant did not present any
evidence.

On July 15, 1997, the trial court rendered judgment, the decretal portion of which
reads:jgc:chanrobles.com.ph

"CONSEQUENTLY, the court renders judgment finding the accused ANTONIO MAGAT y
LONDONIO, GUILTY of the crime of Rape in violation of Article 335 of the Revised Penal
Code, as amended, beyond reasonable doubt and accordingly, sentences him as
follows: chanrob1es virtual 1aw library

1. In Crim. Case No. Q-96-68119, the accused Antonio Magat y Londonio is sentenced
to DEATH by lethal injection; and

2. In Crim. Case No. Q-96-68120, the accused Antonio Magat y Londonio is sentenced
to DEATH by lethal injection.

On the civil aspect, the accused Antonio Magat y Londonio is hereby ordered to pay Ann
Fideli Limpoco Magat the sum of P50,000.00 as compensatory damages; further sum of
P200,000.00 as moral damages and another sum of P500,000 00 as exemplary and
corrective damages.

SO ORDERED." 8

Hence, this automatic review.

Accused-appellant contends that the trial court erred in re-arraigning and proceeding
into trial despite the fact that he was already convicted per Order of the trial court
dated January 10, 1997 based on his plea of guilt. He also argues that when the court
rendered judgment convicting him, the prosecution did not appeal nor move for
reconsideration or took steps to set aside the order. Consequently, the conviction
having attained finality can no longer be set aside or modified even if the prosecution
later realizes that the penalty imposed was too light. Accused-appellant likewise posit
that the re-arraignment and trial on the same information violated his right against
double jeopardy.

The January 10, 1997 order of the trial court convicting the accused-appellant on his
own plea of quilt is void ab initio on the ground that accused-appellant’s plea is not the
plea bargaining contemplated and allowed by law and the rules of procedure. The only
instance where a plea bargaining is allowed under the Rules is when an accused pleads
guilty to a lesser offense. Thus, Section 2, Rule 116 of Revised Rules of Court
provides:jgc:chanrobles.com.ph

"SECTION 2. Plea of guilty to a lesser offense. — The accused, with the consent of the
offended party and the fiscal, may be allowed by the trial court to plead guilty to a
lesser offense, regardless of whether or not it is necessarily included in the crime
charged, or is cognizable by a court of lesser jurisdiction than the trial court. No
amendment of the complaint or information is necessary.

"A conviction under this plea shall be equivalent to a conviction of the offense charged
for purposes of double jeopardy." cralaw virtua1aw library

Here, the reduction of the penalty is only a consequence of the plea of guilt to a lesser
penalty.

It must be emphasized that accused-appellant did not plead to a lesser offense but
pleaded guilty to the rape charges and only bargained for a lesser penalty. In short, as
aptly observed by the Solicitor General, he did not plea bargain but made conditions on
the penalty to be imposed. This is erroneous because by pleading guilty to the offense
charged, Accused-appellant should be sentenced to the penalty to which he pleaded.

It is the essence of a plea of guilty that the accused admits absolutely and
unconditionally his guilt and responsibility for the offense imputed to him. 9 Hence, an
accused may not foist a conditional plea of guilty on the court by admitting his guilt
provided that a certain penalty will be meted unto him. 10

Accused-appellant’s plea of guilty is undoubtedly a conditional plea. Hence, the trial

court should have vacated such a plea and entered a plea of not guilty for a conditional
plea of guilty, or one subject to the proviso that a certain penalty be imposed upon him,
is equivalent to a plea of not guilty and would, therefore, require a full-blown trial
before judgment may be rendered. 11

In effect, the judgment rendered by the trial court which was based on a void plea
bargaining is also void ab initio and can not be considered to have attained finality for
the simple reason that a void judgment has no legality from its inception. 12 Thus,
since the judgment of conviction rendered against accused-appellant is void, double
jeopardy will not lie. chanrobles virtuallawlibrary
Nonetheless, whatever procedural infirmity in the arraignment of the accused-appellant
was rectified when he was re-arraigned and entered a new plea. Accused-appellant did
not question the procedural errors in the first arraignment and having failed to do so,
he is deemed to have abandoned his right to question the same 13 and waived the
errors in procedure. 14

Accused-appellant also maintains that assuming that there was proper basis for setting
aside the Order of January 10,1997, the trial court erred in not finding that he made an
improvident plea of guilty. He faults the trial court in not complying with the procedure
laid down in the Section 3, Rule 116 of the Revised Rules of Court. 15 He claims that
the record of the case fails to support the trial court’s assertion that it conducted a
searching inquiry to determine that the accused appellant voluntarily entered his plea of
guilty with full understanding of the consequences of his plea. He claims that there is no
evidence that the trial court conducted searching inquiry in accordance with the rules.

Under the present rule, if the accused pleads guilty to capital offense, trial courts are
now enjoined: (a) to conduct searching inquiry into the voluntariness and full
comprehension of the consequences of his plea; (b) to require the prosecution to
present evidence to prove the guilt of the accused and the precise degree of his
culpability; and (c) to ask the accused if he so desires to present evidence in his behalf
and allow him to do so if he desires. 16

This Court, in a long line of decisions imposed upon trial judges to comply with the
procedure laid down in the rules of arraignment, particularly the rules governing a plea
of guilty to a capital offense in order to preclude any room for reasonable doubt in the
mind of either the trial court or of this Court, on review, as to the possibility that there
might have been some misunderstanding on the part of the accused as to the nature of
the charges to which he pleaded guilty and to ascertain the circumstances attendant to
the commission of the crime which justify or require the exercise of a greater or lesser
degree of severity in the imposition of the prescribed penalties. 17 Apart from the
circumstances that such procedure may remove any doubt that the accused fully
understood the consequences of his plea is the fact that the evidence taken thereon is
essential to the fulfillment by this Court of its duty of review of automatic appeals from
death sentences. 18

We have carefully reviewed the record of this case and are convinced that the trial
judge has faithfully discharged his bounden duty as minister of the law to determine the
voluntariness and full understanding of accused-appellants’ plea of guilty. The absence
of the transcript of stenographic notes of the proceedings during the arraignment do
not make the procedure flawed. The minutes of the proceedings 19 indubitably show
that the judge read the Informations to the accused-appellant both in English and
Tagalog, asked him questions as to his understanding of the consequences of his plea,
his educational attainment and occupation. Accused-appellant could have known of the
consequence of his plea having pleaded twice to the charges against him. In fact, in the
two (2) letters sent to the trial court judge, Accused-appellant not only admitted his
"sins" but also asked for forgiveness and prayed for a chance to reform. 20

Moreover, the prosecution has already presented its evidence. Thus, even assuming
that there was an improvident plea of guilt, the evidence on record can sustain the
conviction of the accused Appellant.
The testimony of the complainant, as summarized by the Solicitor General, reveal: jgc:chanrobles.com.ph

"Complainant’s . . . parents separated when she was only seven (7) years old and she
and her younger brother David were left with her father, Accused-appellant, while
another brother, Jonathan, and sister, Abigail, stayed with their mother (TSN, July 15,
1997, p. 46; May 22, 1997, pp. 38-41; 49-51).

"On her 9th birthday, her father first raped her and she was beaten when she resisted,
thus, she found it futile to resist every time her father touched her after that (TSN,
supra, pp. 24-25).

"August 14, 1994, was complainant’s 17th birthday. That evening, while sleeping
together with accused-appellant and her brother in their rented house at Kasunduan,
Quezon City, she was awakened by the kisses of her father. He then removed her
clothes and, after removing his own clothes, went on top of her and inserted his penis
inside her vagina as he had done to her many times before this incident. After he had
finished, he told her to wash her vagina which she did (TSN, supra, pp. 12-17).

"On September 1, 1996, complainant who was already 19 years old, was at home with
accused-appellant and her brother after ‘selling’ when her father ordered her and her
brother to go to sleep. Her brother fell asleep but complainant could not sleep and was
restless that night. Again, Accused-appellant raped her on the same bed where her
brother was also sleeping. She did not resist him anymore because nothing would
happen anyway and he would just beat her if she did (TSN, supra, 21-25).

". . . complainant further revealed that she was not only sexually abused but also
physically abused by accused-appellant who even beat her with a whip while being tied
and struck her with a bag containing tin cans causing head injuries necessitating her
hospitalization. She also confirmed that her father started raping her on her 9th
birthday which was repeated several times after that. She likewise revealed that she
felt some fluid (’katas’) coming out of her father’s penis every time he raped her but
she did not become pregnant because her father made her drink the water from boiled
guava leaves and a medicine she identified as ‘Gextex’ (should be Gestex) if her
menstruation was delayed. In fact, when her menstrual period was delayed for three
(3) months, her father even boxed her stomach after making her drink the water boiled
from guava leaves and Gextex thereby causing her to bleed profusely. She was not able
to report or reveal what her father did to her because she was warned by him that he
would kill her, her brother, her mother and her relatives if ever she would escape and
reveal the rape. Besides, she had nowhere else to go and was further made to believe
by her father that there was nothing wrong with what he was doing to her because it
was not forbidden by the Bible."cralaw virtua1aw library

The medical examination confirmed complainant’s testimony. Dr. Ida P. Daniel of the
NBI testified that complainant had "lax fourchette" and "distensible hymen" which may
be caused by sexual intercourse or penetration of a hard blunt object such as a penis.
She also concluded that the "shallow rugosities" inside her vagina lead to the conclusion
that there was more than one or even more than ten (10) times of sexual intercourse
or penetration of a hard blunt object that passed through her vaginal canal. Moreover,
her hymen orifice can allow complete penetration of an average-sized Filipino adult
penis in its erect stage which is from 2.5 to 3.0 cms. in diameter. 21

Surprisingly, Accused-appellant did not present any evidence to rebut the prosecution’s

evidence nor testified in his behalf to deny the inculpatory testimony of the
complainant, giving us the impression that he acknowledges the charges against him.

While we have in a catena of cases set aside convictions based on pleas of guilty in
capital offenses because of the improvidence of the plea, we did so only when such plea
is the sole basis of the judgment of the condemnatory judgment. Thus, when the trial
court in obedience to this Court’s injunction, receives evidence to determine precisely
whether or not the accused has erred in admitting guilt, the manner in which the plea
of guilty is made loses legal significance, for the simple reason that the conviction is
predicated not on the plea but on the evidence proving the commission by the accused
of the offense charged. 22 In such case, it cannot be claimed that defendant was
sentenced to death without having been previously informed of the nature of the
charges against him and of the qualifying and aggravating circumstances recited in the
information, as he is fully apprised not only of the allegations in the information but of
the entire evidence of the prosecution. 23

Additionally, Accused-appellant’s second plea of guilty validated his first plea of guilt. It

removed any reasonable doubt as to his guilt. 24

Accused-appellant further impugns the trial court’s imposition of the death penalty in
Criminal Case No. Q-96-68120 contending that the complainant was already nineteen
(19) years old when the alleged rape occurred.

Republic Act No. 7659 which amended Article 335 of the Revised Penal Code
provides:jgc:chanrobles.com.ph

"The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances: chanrobles virtual lawlibrary

1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim." (Emphasis
supplied)

Complainant was born on August 14, 1977. 25 On September 1, 1996, when the rape
was committed (Criminal Case No. Q-96-68120), complainant was already nineteen
(19) years of age. Therefore, the same does not fall under the last paragraph of Article
335 of the Revised Penal Code, as amended by RA No. 7659. The proper penalty should
be reclusion perpetua pursuant to Article 335 of Revised Penal Code.

However, the extreme penalty of death should be imposed in Criminal Case No. Q-96-
68119, complainant being only 17 years of age when accused-appellant, his father,
raped her.

Finally, Accused-appellant likewise assails the award of P750,000.00 damages claiming

that the same is excessive.
With regard to the award of compensatory damages, we have ruled in People v. Victor,
26 which was later reaffirmed in People v. Prades, 27 that "if the crime of rape is
committed or effectively qualified by any of the circumstances under which the death
penalty is authorized by the present amended law, the indemnity of the victim shall be
in the increased amount of not less than P75,000.00." 28 Accordingly, in Criminal Case
NO. Q-96-68119, the award of compensatory damages should be increased from
P50,000.00 to P75,000.00. In Criminal Case No. Q-96-68120 however, while appellant
was sentenced to reclusion perpetua, the compensatory damage should be the same
(P75,000.00). As rightly argued by the Solicitor General, the trauma, ignominy, pain
and shame suffered by the complainant can not be treated or regarded any lesser.

The award of civil indemnity "is not only a reaction to the apathetic societal perception
of the penal law and the financial fluctuations over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes against chastity." 29 More
so, if the crime is committed by the father against his own flesh and blood.

With respect to the award of moral damages, we have in People v. Prades, 30 held: jgc:chanrobles.com.ph

". . . The Court has also resolved that in crimes of rape, such as that under
consideration, moral damages may additionally be awarded to the victim in the criminal
proceeding, in such amount as the Court deems just, without the need for pleading or
proof of the basis thereof as has heretofore been the practice. Indeed, the conventional
requirement of allegata et probata in civil procedure and for essentially civil cases
should be dispensed with in criminal prosecution for rape with the civil aspect included
therein, since no appropriate pleadings are filed wherein such allegations can be made.

"Corollarily, the fact that complainant has suffered the trauma of mental, physical and
psychological sufferings which constitute the bases for moral damages are too obvious
to still require the recital thereof at the trial by the victim, since the Court itself even
assumes and acknowledges such agony on her part as a gauge of her credibility. What
exists by necessary implication as being ineludibly present in the case need not go
through the superfluity of still being proved through a testimonial charade." cralaw virtua1aw library

Nevertheless, we find the award of P200,000.00 moral damages excessive. An award of

P50,000.00 for each count of rape is to our mind more reasonable. However, we are
deleting the award of exemplary or corrective damages, in the absence of any legal
basis therefor.

Four members of the Court maintain their position that Republic Act No. 7659, insofar
as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the
ruling of the Court, by majority vote, that the law is constitutional and the death
penalty should be imposed accordingly.

WHEREFORE, judgment is hereby rendered as follows: chanrob1es virtual 1aw library

1. In Criminal Case No. Q-96-68119, the decision of the Regional Trial Court convicting
accused-appellant Antonio Magat y Londonio of rape and sentencing him to the
Supreme Penalty of DEATH is hereby AFFIRMED with the modification that the award of
compensatory damages be increased to Seventy-Five Thousand Pesos (P75,000.00),
moral damages is reduced to Fifty Thousand Pesos (P50,000.00) and exemplary
damages deleted.

2. In Criminal Case No. Q-96-68120, the decision of the Regional Trial Court convicting
accused-appellant of rape and sentencing him to the Supreme Penalty of DEATH is
hereby reduced to RECLUSION PERPETUA. The award of compensatory damages is
increased to Seventy - Five Thousand Pesos (P75.000 00), moral damages is reduced
to Fifty Thousand Pesos (P50,000.00) and exemplary damages is deleted.

SO ORDERED. chanroblesvirtuallawlibrary

d. Aggravating circumstances

People v. Gano, G.R. No. 134373, February 28, 2001

G.R. No. 134373. February 28, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CASTANITO GANO Y

SAGUYONG a.k.a JERRY PEREZ, ALLAN PEREZ, ALLAN SAGUYONG and JERRY
GANO, Accused-Appellant.

DECISION

BELLOSILLO, J.:

With blood and gore akin to the butchery of swine in slaughterhouses Castanito Gano
mercilessly hacked his three (3) victims and robbed them of their few earthly
possessions. But, as may be gleaned from the theories of the parties, the core issue
now before us is whether the three (3) killings should be appreciated as separate
aggravating circumstances to warrant the imposition of the penalty of death.

This is an automatic review of the Decision of the Regional Trial Court of San Mateo,
Rizal, convicting CASTANITO GANO Y SAGUYONG of the crime of robbery with homicide
and sentencing him to suffer the supreme penalty of DEATH. He was also ordered to
indemnify the heirs of each of the three (3) victims the amount of P50,000.00 or a total
of P150,000.00, and to pay the costs.

Upon arraignment, the accused Castanito Gano made a qualified admission by

admitting the killing of the three (3) victims but denying the charge of robbery.
Considering that what is charged is a complex crime with a single penalty imposed
under Art. 294 of The Revised Penal Code, the accused with the assistance of his
counsel entered a plea of not guilty.

On 27 December 1994 ALBERTO MARBELLA bade farewell to his wife Conchita and
daughter Angelica who were staying with his parents-in-law in Guinayang, San Mateo,
Rizal, before boarding a bus for Polangui, Albay. Three (3) days later, or on 30
December 1994, he learned from his sister Araceli Marbella through a long distance
telephone call that his wife and parents-in-law Ponciano Salen and Anicia Salen were
brutally murdered. When he learned about the distressing news, he wasted no time in
returning to Manila on 1 January 1995. Accompanied by his sister Araceli, Alberto
immediately went to the San Mateo Police Station where a certain Major Santos told
him that the cadaver of the victims had already been brought to Camp Crame for
autopsy. Upon advice of Major Santos, he and Araceli went to the Santiago Funeral
Parlor which was in charge of the funeral arrangements but were informed that the
victims' bodies would be lying in state at the residence of the Salens, his parents-in-
law, in Guinayang, San Mateo, Rizal.

From the police investigator and kibitzers Alberto learned that Castanito Gano
a.k.a. Allan Perez, a former employee of Alberto's father-in-law in the latters bakery,
was tagged as the culprit in the "massacre" of his family. He also discovered upon
inspection of his household, particularly the drawers where their valuables were kept,
that several items were missing, particularly, (a) about P30,000.00 in different
denominations representing their revolving capital in their sari-sari store; (b) two (2)
pieces of gold bracelets valued at about P2,000.00 owned by his wife Conchita and
daughter Angelica; and, (c) two (2) wristwatches also owned by Conchita. According to
Alberto, Angelica told him she saw the accused grab the money from her mother.
Alberto identified the articles recovered from the accused Castanito Gano upon the
latter's apprehension by the authorities. They included (a) a Mickey Mouse watch
marked Exh. "A;" (b) a Citizen gold watch marked Exh. "B;" (c) Conchita's leather
wallet marked Exh. "C;" and, (d) an envelop containing peso bills amounting
to P1,590.00, marked Exh. "D."

Senior Inspector Ernesto Garcia testified that at around 7:00 oclock in the morning of
31 December 1994 his office received a report of a "massacre" at the Salen residence in
Gen. Luna St., Guinayang, San Mateo, Rizal. Forthwith, he together with two (2) other
police officers proceeded to the crime scene. There they found on the ground floor the
prostrate body of Ponciano Salen. Before he could make any further investigation,
Garcia was informed by a relative of the victim of the identity of the suspect. This
prompted him and his companions to proceed to the domestic airport for the possible
arrest of the accused.

At the airport, the group coordinated with the Philippine Airlines (PAL) ticketing office to
verify whether a certain passenger using the name Castanito Gano a.k.a. Allan
Gano or Jerry Perez or several other known aliases of the suspect was booked on a
flight for Agusan del Sur. As the process of verification was taking much of their time,
they decided to leave for the North Harbor which was also a possible escape route of
the accused. Along the way they would call up the PAL ticketing office every now and
then for the result of the verification, while also keeping the San Mateo police updated
on the progress of their pursuit operation. A lucky break came when the PAL ticketing
office called them and confirmed the presence of one Jerry Perez on board the plane
bound for Butuan City.

Since there was no direct flight from Manila to Butuan City, Sr. Inspector Garcia
together with SPO1 Juanito Justo and SPO1 Joselito Guillermo boarded a plane for Cebu
and from there took a connecting flight to Butuan City. When they alighted at the
airport they were met by a certain Sgt. Matty who informed them that he and his men
had already arrested the suspect. Senior Inspector Garcia and his companions then
proceeded to the Western Police District of Butuan City where they found Castanito
Gano being detained. SPO2 Domingo Martin Lucero, the police officer who actually
arrested the accused at the airport, informed Sr. Inspector Garcia and his group about
the items found in the possession of the accused, which consisted of two (2)
wristwatches and some cash. At the trial Sr. Inspector Garcia disclosed that on their
way back to Manila the accused confessed to him his responsibility for the triple killing
and the robbery.

Marlyn Candido, live-in partner of the accused, affirmed the contents of her affidavit
regarding particularly her positive identification of the bloodstained garments worn by
the accused on 30 December 1994. She likewise confirmed that her live-in partner was
using the aliases of Jerry Perez, Allan Perez, 1 Allan Saguyong and Jerry Gano.

Eduardo Zulueta, a relative of the victims, explained that he was with the responding
policemen at the initial investigation conducted at the scene of the crime when they
found the mangled bodies of the three (3) victims soaked in their own blood. The
lifeless body of Ponciano Salen (Exh. "Y," "Y-1," "Z" and "Z-1") was found at the dirty
kitchen while that of Anicia Salen (Exh. "W," "W-1" and "T") was inside a room on the
second floor. Outside the other room in the same floor was the body of Conchita
Marbella (Exh. "S," "S-1," "X" and "X-1"). Eduardo first learned about the identity of the
suspect when he and the police investigators were told by Angelica, daughter of
Conchita, that Castanito perpetrated the carnage. Eduardo recalled that at around 8:00
in the morning of 31 December, the day following the incident, he noticed Angelica
standing alone in the terrace of their house. This made him wonder why the bakery was
not yet open although it was already late in the day. He also noticed bloodstains on the
dress of Angelica (Exh. "GG" and "GG-1") which she said came from the body of her
mother Conchita.

SPO2 Richard Salvador testified on the recovery of the stolen items from the person of
the accused. Salvador explained that the stolen articles were recovered from the
accused Castanito Gano when the latter was apprehended in Butuan City by the team
of PO Martin Lucero who turned them over to SPO1 Juanito Justo. SPO2 Salvadors
investigation at the scene of the crime showed that the cabinet where the asported
items, specifically the wristwatches, jewelry, wallet and cash were supposedly kept,
showed signs of having been forcibly opened. He learned later from the victims
relatives that the stolen goods were taken from the cabinet. According to witness
Salvador, the accused Castanito Gano admitted the killings before many people,
including members of the press, and other police officers when he arrived at the San
Mateo Police Station. 2cräläwvirtualibräry

Angelica Marbella, four (4) years old, the only living witness to the killing of her mother
and grandparents, categorically stated that the accused, known to her as Allan,
perpetrated the gruesome killings. She likewise pointed to the accused as the one who
stole the money from the drawer of her mother, her Mickey Mouse watch and other
valuables. She also identified her set of bloodstained garments presented in evidence
and explained that the bloodstains came from her "Mommy."

On cross-examination, Angelica reiterated her earlier testimony that the

accused Allan was the author of the crime and that she was certain about it because
she saw the whole incident. Although she mentioned earlier that the accused struck her
relatives with a piece of wood she readily identified a bolo as the object used by the
culprit in killing her mother and grandparents.
Accused Castanito Gano, testifying as his only witness for himself, narrated that he was
arrested at the Butuan airport by a team led by one SPO2 Lucero. He claimed that he
was not only searched without any warrant by the arresting police officers but the
search itself yielded nothing except a wad of bank notes which he claimed to be his
remaining cash after buying his plane ticket. He averred that the money he had left was
part of his salary and his winnings from jueteng. He recalled that at the Manila
Domestic Terminal he was asked questions by several people, including members of the
media, regarding the charges against him and he answered them without a lawyer
assisting him.

Castanito denied having robbed the victims of their valuables and insisted that he saw
the alleged stolen items for the first time only during the trial. He belied the claim by
the prosecution that he forcibly opened the lockers or drawers of the victims to steal; in
fact, the drawers were still intact and in good condition when he left the Salen
residence. He expressed remorse for having killed the victims when he said, "I am
sorry now, but at the time I did not know how I felt," and then again in response to the
question on whether he was admitting the crime, he said, "Inamin ko yoon pagpatay
parang hindi ko ano ang pangyayaring iyon, parang pansandalian na lang, parang wala
ako sa sarili ko noon,  parang sunod-sunuran na lang ako sa ginawa ko sa mga araw na
iyon pero, parang hindi ko matandaan kung ano ang nangyari sa sarili ko noon nagawa
ko yoon ganoon."

SPO Domingo Lucero testified on rebuttal that when they were informed by Col. Maralit
as to the presence of the suspect using the name Jerry Perez on board one of the
planes bound for Butuan, he dispatched a team to Bacasi Butuan airport to arrest the
suspect. Coordinating with the PAL manager who forthwith confirmed their information,
the arresting officers boarded the plane that had just landed and accosted a passenger
who when asked identified himself as Jerry Perez. The group then invited the suspect to
the office of the Airport Manager. When asked why he was being brought to the office,
the suspect replied that he knew the reason for his detention and thereafter admitted
that he was responsible for the death of the Salen family. When SPO Lucero asked the
suspect to open his bag, he (SPO Lucero) saw among the clothes a white envelope
containing cash in different denominations. His search of the person of the suspect also
yielded a leather wallet with the brand name Grand Royale, and a plastic purse which
contained a Citizen watch. The suspect was also found to be wearing a Mickey
Mouse wristwatch. According to SPO Lucero, after he made a receipt of the recovered
items, he turned them over to Police Inspector Ernesto Garcia of the San Mateo police
force.

Accused Castanito Gano clarified on sur-rebuttal that contrary to the declarations of

SPO Lucero, he did not voluntarily offer the contents of his bag but were in fact taken
by the apprehending officers. He was not sure whether the alleged stolen items were
found in his bag but one thing he was certain of, the arresting officers did not find
anything when they searched his body.

Giving full credence to the testimony of minor Angelica Marbella, the trial court
convicted the accused of the crime of robbery with homicide. In imposing the death
penalty on the accused, the trial court appreciated the mitigating circumstance of
"admitting the crime" as well as two (2) aggravating circumstances based on the
number of victims killed. 3
cräläwvirtualibräry
In this automatic review, the accused staunchly rejects his conviction for robbery with
homicide and insists that the prosecution failed to prove that he committed robbery. In
other words, he claims that he should only be convicted of homicide, and not robbery
with homicide, the latter being a more serious offense.

The accused draws attention to his testimony where he categorically declared that the
only item recovered from him by the police officers was the remainder of his salary and
what he won from jueteng, and that he saw the alleged stolen valuables for the first
time during the trial. Moreover, he contends that the allegation of SPO2 Lucero that he
(accused) voluntarily surrendered the stolen items is contrary to normal human
behavior. 4 cräläwvirtualibräry

From the evidence, accused Castanito Gano is guilty beyond reasonable doubt as
charged.

Angelica, in her innocence and guileless narration of the incident of 30 December 1994,
ineluctably showed that the accused not only mercilessly slaughtered the victims but
also took their personal belongings, particularly her Mickey Mouse watch for no other
purpose than gain. Her testimony leaves no doubt as to this fact -

Fiscal Capellan:

Q: Madam witness, do you know the person depicted in this picture?

A: Yes, sir.

Q: Who is he?

A: Alan, sir.

Q: Do you know Alan?

A: Yes, sir.

Q: Why do you know him? I will just withdraw that question. Is he good?

A: No, sir.

Q: Why Madam Witness?

Fiscal Capellan: At any rate, her answer was no : May we go to another point?

Q: Is he the one who killed your mother?

A: Yes, sir.

Q: How about your grandparents?

A: Yes, sir.
Q: And Madam Witness, is he also the one who took the money from the drawer of your
mother?

A: Yes, sir.

Q: And were you able to witness that?

A: Yes, sir.

Q: And what else did Alan get if any?

A: Mickey Mouse, ring, earrings, sir.

Q: Who owns the Mickey Mouse?

A: That is mine, sir.

May we make it of record that she pointed to herself when we propounded that
question.

Q: Madam Witness, I am showing to (you) a Mickey Mouse, kindly go over the same
and tell this Honorable Court if this is the same Mickey Mouse that you are (sic)
referring to earlier which was owned by you?

A: Yes, sir.

Q: At this point, may we make it on record that the child instinctively got the watch
from the Court personnel demonstrating that she is familiar and that she is the owner
of the said watch. The said watch was earlier marked as Exhibit A.

Q: Madam Witness, where were you when the accused killed your mother and also your
grandparents?

A: I was in our house, sir.

Q: And where were you also when the accused got the items?

We will go to another point. Were you also inside the house when Alan, the accused in
this case got the cash and other jewelry?

A: Yes, sir.5 cräläwvirtualibräry

We are of the opinion however that with the exception of the Mickey Mouse watch, the
other items, i.e., cash, wallet, Citizen watch and bracelets recovered from the accused,
have not been established to be the fruits of the crime since the ownership of the same
or the fact that they were stolen by him has not been satisfactorily established. This
notwithstanding, the charge of robbery must be sustained as the taking by the accused
of Angelicas Mickey Mouse watch was sufficiently proved.
Accused Castanito Gano killed three (3) persons by reason or on the occasion of the
robbery. The question that needs to be resolved is whether the multiplicity of homicides
could be appreciated as an aggravating circumstance. For sometime, this ticklish issue
has been the subject of conflicting views by this Court when it held in some cases that
the additional rapes/homicides 6 committed on the occasion of robbery would not
increase the penalty, while in other cases it ruled that the multiplicity of rapes/
homicides committed could be appreciated as an aggravating circumstance. 7 But
in People v. Regala 8 this Court spoke with finality on the matter -

It should be noted that there is no law providing that the additional rape/s or
homicide/s should be considered as aggravating circumstance. The enumeration of
aggravating circumstances under Article 14 of the Revised Penal Code is exclusive as
opposed to the enumeration in Article 13 of the same Code regarding mitigating
circumstances where there is specific paragraph (paragraph 10) providing for analogous
circumstances.

It is true that the additional rapes (or killings in the case of multiple homicide on the
occasion of the robbery) would result in an anomalous situation where from the
standpoint of the gravity of the offense, robbery with one rape would be on the same
level as robbery with multiple rapes. However, the remedy lies with the legislature. A
penal law is liberally construed in favor of the offender and no person should be
brought within its terms if he is not clearly made so by the statute.

This case is singular in its barbarity and nauseating in the manner with which the
accused, bolo in hand, butchered his preys. Notwithstanding the viciousness with which
he perpetrated the offense, we are constrained to apply the principle laid down
in People v. Regala, and accordingly, the two (2) other killings contrary to the ruling of
the trial court, should not be appreciated as aggravating circumstances.

Incidentally, we also examined the possibility of appreciating dwelling as a generic

aggravating circumstance, but the attempt was again thwarted by a recent amendment
to Secs. 8 and 9 of Rule 110 of the Revised Rules on Criminal Procedure, which took
effect 1 December 2000 -

Sec. 8. Designation of the offense. - The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting
the offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

Sec. 9. Cause of the accusation. - The acts or omissions complained of as constituting

the offense and the qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the language used in the statute
but in the terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstances and for
the court to pronounce judgment.

Pursuant to the aforequoted amended provisions, the Rules now require that the
information or complaint allege not only the qualifying but the aggravating
circumstances as well, otherwise, the same cannot be properly appreciated. Guided by
the consecrated rule that when a penal statute, substantive and remedial or procedural,
is favorable to the accused, the courts shall give it a retroactive application and so we
must in this case as the Information does not allege dwelling as an aggravating
circumstance.

With respect to the mitigating circumstance, we note that the trial court considered the
admission by the accused of the killings as a mitigating circumstance, presumably
referring to voluntary confession as provided under Art. 14 of The Revised Penal Code,
notwithstanding his denial of the charge of robbery. In effect, therefore, the accused
was merely confessing to the crime of homicide but not to robbery with homicide, a
considerably graver offense. But we note that for voluntary confession to be
appreciated as an extenuating circumstance, the same must not only be made
unconditionally but the accused must admit to the offense charged, i.e., robbery with
homicide in the present case, and not to either robbery or homicide only. Hence, if the
voluntary confession is conditional or qualified, it is not mitigating.

Any person found guilty of robbery with the use of violence against or intimidation of
person shall suffer the penalty of reclusion perpetua to death when by reason or on the
occasion of robbery the crime of homicide shall have been committed. 9 For reasons
earlier discussed, the trial court erred in appreciating the two (2) killings as aggravating
circumstances and the voluntary confession as a mitigating circumstance. There being
neither aggravating nor mitigating circumstances, Art. 63 of The Revised Penal
Code dictates that the lesser penalty, or only reclusion perpetua, be imposed. We affirm
the award of P50,000.00 or a total of P150,000.00 for the three (3) homicides as death
indemnity. In consonance with Art. 2219, par. (1), in relation to Art. 2206, of the Civil
Code, an award of P50,000.00 to the legal heirs of each of the three (3) victims for
moral damages would be reasonable. 10 cräläwvirtualibräry

WHEREFORE , the Decision of the Regional Trial Court of San Mateo, Rizal, finding
accused CASTANITO GANO Y SAGUYONG, a.k.a Jerry Perez, Allan Perez, Allan
Saguyong and  Jerry Gano guilty of Robbery with Homicide is AFFIRMED with the
MODIFICATION that the penalty therefor is lowered to reclusion perpetua, and the
FURTHER MODIFICATION that the accused is ordered to pay P50,000.00 as civil
indemnity and another P50,000.00 as moral damages, or P100,000.00 to the legal heirs
of each of the three (3) victims Conchita Marbella, Ponciano Salen and Anicia Salen, or
a total of P300,000.00.

SO ORDERED.

People v. Dacibar, G.R. No. 111286, February 17, 2000

G.R. No. 111286           February 17, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAMIL DACIBAR and WARLITO DICON, accused-appellants.

QUISUMBING, J.:
On appeal is the decision dated January 25, 1993 of the Regional Trial Court of Roxas City, Branch
16, in Criminal Case No. C-3690, finding appellants guilty of the crime of murder, imposing upon
them the penalty of life imprisonment, ordering appellants to pay, jointly and severally, the heirs of
the victim the amount of P50,000.00 as moral damages, P29,000.00 as actual damages, and to pay
the costs. Pursuant to Administrative Circular No. 6-22 on the correct application of the penalty
of reclusion perpetua, the trial court, on February 2, 1992, rendered an amended decision
sentencing appellants to the penalty of reclusion perpetua with its accessory penalties, instead of life
imprisonment.1

The facts of the case, as summarized by the Office of the Solicitor General and which we find to be
supported by the records, are as follows:

At around nine o'clock in the evening of September 5, 1991, Welda Bacalangco was sitting
behind their bed near her husband, Josue, who was sitting at the end of the bed and was
lifting the mosquito net. (p. 3, TSN, August 27, 1992 and p. 11, TSN, September 8, 1992)
Suddenly, there was an explosion, followed by the sounds of footsteps. (p. 3, TSN, August
27, 1992) Welda looked through their window and saw appellant Warlito Dicon coming out
from under their house, stooping and carrying a long firearm. (ibid.) Following him was
appellant Ramil Dacibar who was carrying a bolo. (ibid.) Seeing her husband shot, Welda
shouted to her children that their father was shot. (ibid.)

Riza who was then washing dishes at the kitchen also heard the gunshot and saw Warlito
Dicon holding a long firearm and Ramil Dacibar holding a bolo emerging from under their
house. Upon hearing her mother shouting that her father was shot (p. 13, TSN, August 27,
1992) she immediately ran to her father and embraced him. (p. 3, TSN, August 27, 1992)
Realizing the predicament of her father, Riza together with her sister, shouted for help. (p.
13, TSN, August 19, 1992)

Riza's uncle came to help. He carried the victim with the intention of bringing the latter to the
hospital. (p. 4, TSN, August 27, 1992) However, by the time they reached the basketball
court, the victim was already dead. Thus, he brought the victim back to the latter's house. (p.
13, TSN, August 19, 1992)2

On June 2, 1992, appellants were charged with the crime of murder under the following information: 3

That on or about September 5, 1991 at around 9:00 o'clock in the evening in Brgy. Balighot,
Maayon, Capiz, Philippines, the above-named accused, conspiring and helping one another,
accused Warlito Dicon y Demelino being armed with a long firearm and accused Ramil
Dacibar being armed with a bolo, willfully and feloniously shot one JOSE BACALANGCO
with the said firearm, thereby inflicting on the chest and other parts of the body of the said
Jose Bacalangco gunshot wounds which caused his death immediately thereafter.

The crime is qualified by treachery and abuse of superior strength and aggravated by
nighttime and dwelling.

Upon arraignment, both appellants entered a plea of not guilty. 4 Thereafter, trial on the merits
ensued.

The prosecution presented the following witnesses: (1) Dr. Alejandro Orosco, Rural Health Physician
of Maayon, Capiz, who conducted the post-mortem examination on the victim and issued the
certificate of death stating that the cause of death was "multiple gunshot wounds"; 5 (2) Riza
Bacalangco, the 17 year-old daughter of the victim; and (3) Welda Bacalangco, the widow of the
victim. Both the widow and the daughter of the victim testified they were present in the house when
the killing took place. Welda testified also on the expenses they incur: P20,000 for the funeral rites,
masses and wake; and P9,000.00 for the coffin and niche, or a total of P29,000.00 in all, for the
deceased. For their suffering, she prayed for P30,000.00 as moral damages.

In turn, the defense presented (1) SPO3 Paulino Durana, a member of the Philippine National Police
of Maayon, Capiz, who testified on the conduct of the police investigation of the killing; (2)
Magdalena Dacibar, an aunt of appellant Ramil Dacibar, who testified that the victim's daughter
asked for her help on the night of the incident, and that two of the victim's sons had a previous
dispute with her husband; and (3) appellant Warlito Dicon, who testified that he was at his house at
the time the victim was killed.

On January 25, 1993, the trial court rendered its decision convicting appellants of the crime of
murder. The decretal portion of the decision reads:

WHEREFORE, in the light of the foregoing, and finding the accused Warlito Dicon y
Demelino and Ramil Dacibar guilty beyond reasonable doubt of the crime of Murder, this
Court hereby imposes to each of the accused to suffer the penalty of Reclusion
Perpetua, with its accessory penalties that carries with it, and to indemnify jointly and
severally the heirs of the victim Josue Bacalangco the sum of Fifty-Thousand (P50,000.00)
Pesos in moral damages and Twenty-Nine Thousand (P29,000.00) Pesos as actual
compensatory damages, and to pay the costs of this proceedings.

SO ORDERED.6

Hence, the present appeal. Appellants are now before us, claiming that the trial court committed the
following errors:

THE COURT OF ORIGIN ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY

BECAUSE THE DECISION IS WITHOUT FACTUAL BASES.

II

THE COURT ERRED IN BASING THE DECISION ON INFERENCE.

III

THE COURT ERRED IN NOT GIVING WEIGHT TO THE EVIDENCE AND TESTIMONIES
FOR THE DEFENSE.

IV

THE COURT ERRED IN ENTERING THE DEFENSE OF ALIBI. THE DEFENSE IS NOT
ALIBI. IT IS THAT DEFENDANTS DID NOT COMMIT THE CRIME.7

In their consolidated brief, appellants allege that the trial court's findings are without factual basis.
They contend that it was physically impossible for the victim to have been shot from under his house
by the appellants. They assail the trial court's finding that the victim's relatives, Welda and Riza
Bacalangco, had no reason to implicate appellants in the crime if they were not the perpetrators
thereof. They also question the finding that the motive for the crime was the killing of Warlito Dicon's
dog. Their failure to attend the wake of the victim despite their close relationship to him, they say,
should not have been taken against them, and they contend that the delay of the victim's wife in
naming them as her husband's assailants should have been considered by the trial court. Appellants
also claim that the trial court should have favorably considered their non-flight from the locality of the
crime, and they assert that the testimony of Magdalena Dacibar that she heard two of the victim's
relatives say that the shooting was the victim's fault should have been weighed in their favor. Lastly,
they contend that they do not rely on the defense of alibi.

In its brief, the Office of the Solicitor General contends that there is enough circumstantial evidence
to establish the culpability of appellants in the killing, and that their defenses of denial and alibi are
inherently weak.

Essentially, the core issue in this case is the credibility of witnesses and the sufficiency of
circumstantial evidence to convict appellants of the crime charged.

Appellants assail the decision of the trial court for alleged lack of factual basis. They argue that: (1)
the presence of powder burns around the gunshot wounds on the victim show that the assailant was
inside the house of the victim, not outside; (2) the trajectory of the bullet shows that the assailant
was firing from a position on level with the victim, thus negating the claim that he was shot from
under the house; (3) the position of the victim and the height of the assailant would have rendered it
impossible for the latter to have shot the former from under the house; and (4) the initial blotter
report of the victim's wife indicates that the assailants were "unidentified persons" at the time said
report was made.8

Welda Bacalangco, the victim's wife, testified that her husband, Josue, was sitting at the side of their
bed and raising the mosquito net in order to get inside when he was shot. 9 Riza Bacalangco, the
victim's daughter, heard the shot and looked out from the area where she was washing dishes and
saw appellants come out from under their house.10 Welda also saw the appellants emerge from
under the house when she looked out the window right after her husband was shot, when she heard
footsteps underneath the house. 11 She also testified that she heard the gunshot come from the hole
in the floor a little further from their feet.12 This hole, measuring at least twelve by seven inches, 13 was
estimated by Welda to be almost two arms' length from where her husband was seated on the
bed.14 The height of the floor of the house from the ground was estimated to be around one meter
and six inches, or forty-two inches,15 while the height of appellant Warlito Dicon, the alleged bearer of
the firearm, was estimated by his counsel to be around five feet and four inches, or sixty-four
inches.16

These circumstances tend to affirm the trial court's finding that appellants were the victim's
assailants. The alleged shooter, Warlito Dicon, could easily squat or crouch under the floor of the
house in order to clear the twenty-two inch difference between his height and the floor's elevation
from the ground. At that position, he would have had to aim his firearm through the hole in the floor
at a slanting position, at the victim who was likewise in an oblique position at the side of the bed as
he was getting inside the mosquito net at the time. This would explain the level trajectory of the
pellets found on the victim's body.

Furthermore, the hole in the floor through which the victim was shot was estimated by Welda
Bacalangco to be almost two arms' length from where the victim was seated. Considering that the
victim was bent over at the time, the distance between the location of the victim's wounds and the
hole in the floor would closely approximate the estimate of the examining physician that the muzzle
of the gun was around eighteen to twenty-four inches away from the victim's body. 17 This estimate of
the examining physician was based on the presence of powder burns around the entrance of the
wounds on the left arm of the victim. Hence, the presence of powder burns on the victim would not
negate the trial court's finding that the victim was shot from outside the house, specifically from
under the floor.

In addition, the fact that the first blotter report made by the victim's wife refers to the assailants as
"unidentified persons" does not detract from the veracity of her positive identification of appellants as
the perpetrators of the crime in a later report, and in the course of trial. 18 In the first place, we have
held that entries in the police blotter should not be given undue significance or probative value, as
they do not constitute conclusive proof. 19 Secondly, Welda Bacalangco testified that she initially
hesitated to identify her husband's assailants during the police investigation due to her fear that her
sons might carry out reprisals against appellants.20 She did tell the police, however, that she would
come back to file a case because she knew the identity of the perpetrators. 21 When her sons arrived
from sea one week after the killing, Welda gathered all her children and relatives, revealed to them
the names of her husband's killers, and admonished them not to resort to any drastic
measures.22 Having done this, she then filed a complaint, this time identifying appellants as the
perpetrators of the crime.1âwphi1.nêt

The evidence for the defense confirms Welda's claim that she chose not to immediately identify
appellants for valid reasons. Defense witness SPO3 Paulino Durana testified that during the police
investigation of the incident, Welda Bacalangco told him that she could not yet give the names of the
assailants as she still had a "problem."23 When he asked her what this problem was, she answered
that she could not identify the assailants for "security reasons." 24 Instead, she said that she would
come back to file a case because she knew the identity of the killers. 25 These findings show that
Welda's reluctance to identify the perpetrators in the police blotter was justified by her fear of her
kin's wrath against appellants, which would only complicate matters for her family. The initial
reluctance of witnesses such as Welda to volunteer information about a criminal case is of common
knowledge and has been judicially declared as insufficient to affect credibility, 26 especially when a
valid reason exists for such hesitance.

Appellants also allege that the trial court based its decision on inference, and that it did not give
weight to the evidence for the defense. They say that the court should have relied on the evidence
presented by the parties and should not have made its own conclusions without basis. They find
fault in the trial court's statement concerning the prosecution witnesses to the effect that
"Considering their relationship, the Court had (sic) no reason to believe for them to (sic) concoct a
story and pinning (sic) the guilt of a serious crime as murder to (sic) these two accused if they were
in truth and in fact not the perpetrators thereto (sic)."27

This statement of the trial court is in accord with our rulings on the matter. We have held that where
there is no evidence to indicate that the witness against the accused has been actuated by any
improper motive, and absent any compelling reason to conclude otherwise, the testimony given is
ordinarily accorded full faith and credit.28 We find no indicia of improper motive on the part of Welda
and Riza Bacalangco when they testified against appellants, in spite of their relationship to the
deceased victim. It is settled that in the absence of a showing of improper motive on the part of
witnesses, their testimonies are not affected by their relationship to the victim. 29 The earnest desire
to seek justice for a dead kin is not served should the witnesses abandon their conscience and
prudence and blame one who is innocent of the crime. 30 A witness' relationship to the victim of a
crime would even make his or her testimony more credible as it would be unnatural for a relative
who is interested in vindicating the crime to accuse thereof somebody other than the real culprit. 31

Appellants urge that the trial court should not have readily believed the allegations of the prosecution
witnesses as to why they killed Josue Bacalangco. These allegations, however, were never refuted
nor disproved by the defense in the course of trial.
Welda and Riza Bacalangco both testified that the dispute between appellant Warlito Dicon and the
victim arose when the latter exchanged his rooster for a dog, which turned out to be that of the
former. The dog was later slaughtered and feasted on by the Bacalangco family. Three days later,
Dicon confronted the victim at the basketball court and shouted that he would "have his day
also."32 Throughout the trial, these allegations of the prosecution were never disputed nor
questioned, even as appellant Warlito Dicon testified on his behalf. Instead, appellants would
haphazardly try to make it appear that other persons had a dispute with the victim, particularly one
Ludovico de la Guna, Jr.33 However, as borne out by the stenographic notes, we find that the
testimonies of Welda and Riza Bacalangco were delivered in a convincing and straightforward
manner, supporting the veracity of their assertions.

We agree with appellants that their failure to attend the wake of the victim despite there being
relatives and neighbors of the latter is not by itself indicative of their guilt of the crime. Likewise,
however, the fact that appellants never fled the locality where the crime was committed is not by
itself a valid defense against the prosecution's allegations, as the defense would like this Court to
believe.34 Although it is settled that the flight of an accused is competent evidence against him as
tending to establish his guilt, there is no law or principle holding that non-flight per se is proof, let
alone conclusive proof, of innocence. Much like the defense of alibi, the defense of non-flight cannot
prevail against the weight of positive identification of the appellants. 35

Appellants further allege that the testimony of defense witness Magdalena Dacibar was never
appreciated by the trial court. This witness testified that she heard Riza Bacalangco and another
member of the household say that the shooting was the victim's fault because he had been handling
his firearm at the time.36 She also testified that two of the victim's sons had an altercation with her
family earlier.37

We fail to see the witness' point in recalling the dispute between the victim's sons and her family,
specifically her husband. Even if such were established, it would not clear the question as to who
killed the victim. At best, it would even point to an additional motive on the part of appellant Ramil
Dacibar for the killing, as he is a nephew of the husband of Magdalena Dacibar. 38 In addition, the
witness stayed for a mere five minutes at the victim's house after she was called by Riza Bacalangco
to help them. Whatever aid she offered the victim's family was limited to her telling them not to worry
anymore as the victim was already dead and that there was nothing else to be done. Thereafter, she
went home.39

Within that short span of time immediately after the killing, the victim's family was understandably in
a state of shock and could not yet discern what had really happened. As a matter of common
observation and knowledge, the reaction or behavior of persons when confronted with a shocking
incident varies.40 Hence, they could not be expected to utter any sort of remark or aside on the
incident, even an insensitive one, such as that the victim was at fault for his own death. It would only
be later, after Welda and Riza Bacalangco recalled seeing appellants emerge from under their
house, that they would realize what had actually transpired.

Moreover, the witness' testimony regarding what she heard Riza Bacalangco and an unidentified
relative say about the victim's alleged fault in the killing cannot prevail over the positive identification
of appellants as the persons who fled the scene of the crime. Against this, appellants have
interposed the defenses of denial and alibi.

Ramil Dacibar in effect interposed the defense of denial. Given the evidence, however, there is
nothing to substantiate his denial of complicity in the killing. It is well-settled that denial, if
unsubstantiated by clear and convincing evidence, is a negative self-serving assertion, which
deserves no weight in law.41
Warlito Dicon, for his part, testified that he was at his house at the time the incident in question took
place.42 Unquestionably, he invokes the defense of alibi, contrary to his counsel's assertion that all
he invoked was denial.43 His assertion that he was at home at the time the killing took place,
however, was not corroborated by anyone else. Dicon's defense of alibi is thus inherently weak as it
is wanting in material corroboration.44 Furthermore, Dicon stated that the distance of his house from
that of the victim was only (300) meters,45 an easily traversible distance, which cannot discount his
presence at the crime scene. For alibi to prosper, an accused must prove that not only was he
absent at the scene of the crime at the time of its commission, but also that it was physically
impossible for him to be situated at said instance.46

While the principal witnesses for the prosecution did not actually see appellants shoot and kill the
victim, direct proof of their culpability is not necessary when circumstantial evidence would suffice.
The requisites thereof are: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the circumstances is such as to
produce a conviction beyond a reasonable doubt. For circumstantial evidence to be sufficient to
support a conviction, all circumstances must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he
is innocent and with every other rational hypothesis except that of guilt. Facts and circumstances
consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and
probative force, may surpass even direct evidence in its effect upon the court. 47

In the case at bar, we consider the following circumstances established: (1) that the victim's family
ate and slaughtered the dog of appellant Warlito Dicon; (2) on account of which the latter
subsequently confronted the victim and shouted that he "would have his day also;" (3) the killing of
the victim took place, effected by gunshot wounds; and (4) right after the shooting, Welda and Riza
Bacalangco both saw appellants Warlito Dicon and Ramil Dacibar emerge from under their house,
carrying a long firearm and bolo, respectively. We find that these established circumstances, taken
together, form an unbroken chain of events that point to the culpability of appellants, and to no other
conclusion except their guilt.

The lackluster defenses of appellants, particularly denial and alibi, fail to cast doubt on the
continuous chain of circumstances established by the prosecution. The defenses invoked by
appellants cannot prevail over the positive identification by the prosecution witnesses who had no
improper motive whatsoever to falsely testify against them. 48 When circumstantial evidence
constitutes an unbroken chain of natural and rational circumstances corroborating each other, it
cannot be overcome by inconcrete and doubtful evidence, such as that presented by appellants in
the case at bar.49

Likewise, circumstantial evidence will also serve to establish the degree of participation of each
appellant. In its decision, the trial court established the existence of a conspiracy to kill the
victim50 between appellants. It inferred conspiracy from the acts of appellants, which pointed to a
joint purpose and design.

We have held that conspiracy need not be established by direct evidence of acts charged, but may
and generally must be proved by a number of indefinite acts, conditions and circumstances, which
vary according to the purpose accomplished. Previous agreement to commit a crime is not essential
to establish conspiracy, it being sufficient that the condition attending its commission and the acts
executed may be indicative of a common design to accomplish a criminal purpose and objective. If
there is a chain of circumstances to that effect, conspiracy has been established. 51

Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as
clearly and convincingly as the crime itself.52 In the absence of direct proof thereof, as in the present
case, it may be deduced from the mode, method and manner by which the offense was perpetrated,
or inferred from the acts of the accused themselves when such acts point to a joint purpose and
design, concerted action and community of interest. 53 Hence, it is necessary that a conspirator
should have performed some overt act as a direct or indirect contribution in the execution of the
crime planned to be committed. The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being
present at the commission of the crime or by exerting moral ascendancy over the other co-
conspirators.54

In the case at bar, it was established that appellant Warlito Dicon had a dispute with the victim over
the killing and eating of the formers' dog, as a result of which Dicon verbally threatened the victim
with vengeance. The victim was later shot and killed, on which occasion both appellants were seen
leaving the scene of the crime carrying a firearm and a bolo, emerging from under the victim's
house.

These circumstances, proved by the evidence, indicate a conspiracy to kill the victim. The fact that
immediately after the killing, both appellants were seen emerging from under the victim's house — a
place where they had no business to be at 9'o-clock in the evening — indicates that a particular,
deliberate and planned method of attack was employed by them to kill the victim. And while it was
not determined who fired the fatal shot, it was established that both appellants left the house
together, indicating a joint purpose and design, concerted action and community of interest between
appellants. If one of the two shot the victim, the other was nonetheless present at the scene of the
crime, undoubtedly to lend some form of moral and material assistance to the actual assassin —
another badge of conspiracy. Thus, appellants as conspirators are equally liable for the crime as it is
unnecessary to determine who inflicted the fatal wounds because in conspiracy the act of one is the
act of all.55

In finding appellants guilty of murder, the trial court ruled that the crime was qualified by treachery,
premeditation, superior strength, nighttime and dwelling, although it said that premeditation, superior
strength and nighttime were absorbed by treachery. 56

We agree that treachery attended the commission of the crime. Treachery is present when the
shooting was unexpected and sudden, giving the unarmed victim no chance whatsoever to defend
himself.57 The two conditions for treachery to be present are (1) that at the time of the attack, the
victim was not in a position to defend himself and (2) the offender consciously adopted the particular
means, method, or form of attack employed by him. 58

In the case at bar, the victim had absolutely no idea that he was going to be shot as he went to bed,
from under his own house at that. He was not in a position to defend himself, being unaware and
unexpectant of an attempt on his life, in the particular manner purposely adopted by appellants.
Clearly, he was killed in a treacherous manner. The circumstance of treachery, however, absorbs
the aggravating circumstances of superior strength and nighttime. 59 We cannot appreciate the
existence of evident premeditation as the trial court did, as there is no proof as to when appellants
determined to kill the victim, and which acts manifested that they clung to this nefarious scheme.
Furthermore, the attendance of evident premeditation as an aggravating circumstance was not
alleged in the information filed against appellants. 60

The trial court was correct in appreciating the aggravating circumstance of dwelling. Although the
triggerman fired the shot from outside the house, his victim was inside. For the circumstance of
dwelling to be considered, it is not necessary that the accused should have actually entered the
dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own
house, although the assailant may have devised means to perpetrate the assault from
without.61 Thus, in the case at bar, although the attack was made not from inside the house but from
below the floor of the house, nevertheless, the aggravating circumstance of dwelling may be
considered as attending the shooting,62 as in fact the target/victim was hit inside his own house.

The aggravating circumstance of dwelling was considered by the trial court in imposing the
maximum penalty upon appellants for the crime of murder qualified by treachery. At the time of the
commission of the offense at bar, the imposable penalty for murder was reclusion temporal in its
maximum period to death, the maximum thereof being death. With the non-effectivity of the death
penalty at the time, the trial court imposed the penalty of reclusion perpetua upon appellants. We are
in full accord with said penalty.

On the matter of damages, we note that the trial court ordered appellants to jointly and severally pay
the heirs of the victim P50,000.00 for moral damages. We find this award supported by testimony in
the records but only in the amount of P30,000.00. Pursuant to current jurisprudence, 63 we also find
that the heirs of the victim are entitled to a death indemnity of P50,000.00. We further find the award
of P29,000.00 as actual damages in order. Lastly, considering that the crime was attended by the
aggravating circumstance of dwelling, 64 the amount of P20,000.00 should also be awarded as
exemplary damages.

WHEREFORE, the decision dated January 25, 1993, amended on February 2, 1993, of the Regional
Trial Court of Roxas City, Branch 16, finding appellants guilty of Murder and sentencing them
to reclusion perpetua is AFFIRMED WITH MODIFICATION, in that appellants are ordered to pay
jointly and severally the heirs of the victim Josue Bacalangco, the amounts of P50,000.00 as death
indemnity, P29,000.00 as actual damages, P30,000.00 as moral damages and P20,000.00 as
exemplary damages. Costs against appellants. 1âwphi1.nêt

SO ORDERED.

People v. Molina, G.R. Nos. 134777-8, July 24, 2000

G.R. Nos. 134777-78               July 24, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLAND MOLINA, accused-appellant.

DECISION

PER CURIAM:

Before us on automatic review is the Decision dated February 26, 1998 of the Regional Trial Court
1 

of Bangued, Abra, Branch 2, in Criminal Case No. 1757 finding Roland Molina guilty of murder for
killing Joseph Bon-ao and sentencing him to suffer the supreme penalty of death. In Criminal Case
No. 1758 which was tried jointly with Criminal Case No. 1757, the trial court found Molina likewise
guilty of frustrated murder committed against Angelito Bon-ao.

The information for each crime reads as follows:

CRIMINAL CASE NO. 1757 for Murder

That on or about the 4th day of March, 1996, at around midnight, at Poblacion Lagangilang, Abra,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill,
with treachery and while armed with a sharp-pointed instrument (unrecovered), did, then and there,
willfully, unlawfully and feloniously attack and stab one JOSEPH BON-AO, thereby inflicting a fatal
stab wound at the back hitting the intercostal vessels, lacerating the right lung and severing the third
right posterior rib which caused his instantaneous death; to the damage and prejudice of the victim
and his heirs.

CONTRARY TO LAW. 2

CRIMINAL CASE NO. 1758 for Frustrated Murder

That on or about the 4th day of March, 1996, at about 12:00 Midnight, at Poblacion, Municipality of
Lagangilang, Province of Abra, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent to kill, with treachery and while armed with a sharp-pointed instrument
(unrecovered), did, then and there, willfully, unlawfully and feloniously attack and stab one
ANGELITO BON-AO, thereby inflicting stab wounds on the different parts of his body, thus
performing all the acts of execution which would have produced the crime of MURDER as a
consequence, but nevertheless did not produce it by reason of causes independent of his will, that
is, by reason of the timely medical attendance rendered to the victim which prevented his death; to
the damage and prejudice of the victim and his heirs.

CONTRARY TO LAW. 3

At the arraignment, accused-appellant Molina, with the assistance of counsel, pleaded not guilty to
the offenses charged.

Trial ensued with prosecution witnesses' Dr. Hubert L. Seares testifying on the operation and
4 

treatment he performed on Angelito Bon-ao to save his life; SPO4 Mariano Rabaja testifying on the
5 

statements made by Danny Vidal and Angelito Bon-ao upon investigation; Danny Vidal and Angelito
6 

Bon-ao testifying on the events that transpired before, during and after the crimes; and Dr. Maria
7 

Dickenson testifying on the post-mortem examination she performed on Joseph Bon-ao.

8  9 

The People's version of the events that lead to the crimes may be succinctly stated as follows:

Between the hours of 12 and 1 in the morning of March 4 and 5, 1996, brothers Joseph and Angelito
Bon-ao, along with their cousin, Danny Vidal, were on their way home after having witnessed the
town fiesta of Lagangilang. They were on their way from the fair grounds to the gate of the Abra
10 

State Institute of Sciences and Technology (ASIST) to get a ride home when suddenly they heard
somebody shout "Kuba", referring to Joseph Bon-ao, a hunchback. Looking back, they asked a
11 

group of persons, with accused-appellant Roland Molina among them, who shouted "Kuba". None 12 

of them answered back, though accused-appellant said in the local dialect "I am Roland Molina of
Pagpagatpat, Tayum, across the river." Joseph then said: "If no one among you said that, we will be
13 

on our way. Accused-appellant even told Joseph and his companions "Do not fool Sleepy Molina of
14 

Pagpagatpat." 15

As the three were about to turn around to go on their way, with Joseph the only one having made a
full turn, accused-appellant Roland Molina rushed him and delivered a strong stabbing blow at the
back of Joseph. Angelito saw this happened since he has not yet made a full turn when accused-
16 

appellant stabbed his brother Joseph. Angelito swiftly went to aid his brother but accused-appellant
17 

likewise stabbed him at the back. Then, accused-appellant and his companions, among them
18 

Lorenzo Tejero, fled the scene. 19

Danny carried Joseph, who was by that time slumped on the ground, to the edge of the road and
likewise did the same for Angelito. The police authorities were called and with their help the two
20 

brothers were brought to the Seares Family Clinic in Bangued, Abra, for treatment, but Joseph was
declared dead on arrival while Angelito was saved only through the expert medical attendance of Dr.
Hubert L. Seares. Angelito Bon-ao sustained three (3) stab wounds, with one (1) fatal wound, 4
21 

cms., located at the posterior chest wall, and two (2) non-fatal wounds located at the lumbar area.
As testified to by Dr. Hubert L. Seares, Angelito was discharged from the clinic on March 14, 1996
though he was not yet completely healed. He was given medical treatment as an outpatient for more
than a month. 22

Dr. Maria L. Dickenson, Municipal Health Officer of Lagangilang, Abra conducted the post-mortem
examination on the body of Joseph Bon-ao which revealed, (a) a stab wound which was 1.8 cm. in
length located at the back just to the left side of the vertebral column, at the level of the third
intercostal space, posteriorly, with the upper extremity sharp and the lower extremity blunt, directed
inwards, medialwards and to the right, hitting the intercostal vessels, lacerating the upper lobe of the
right lung, severing the third posterior rib, right; and (b) a deep abrasion on the left cheek. The cause
of death was the massive, external and internal hemorrhage due to the stab wound at the back, left
side.23

For his part, accused-appellant professed innocence. He denied the crimes imputed to him and
attempted to put the blame upon somebody, an unknown unidentified person. Along with accused-
appellant's testimony, the testimony of Jovito Nadarisay was offered by the defense.
24 

Accused-appellant's version of the incident is as follows:

Accused-appellant. and Lorenzo Tejero, residents of Pagpagatpat, Tayum, Abra, went to

Lagangilang, Abra on that fateful night of March 4, 1996 to attend the town fiesta. They watched a
25 

"zarzuela" at the ASIST amphitheater at 9:00 o'clock. Between the hours of 10 and 12, they went on
26 

their way to the road where the public utility vehicles pass to get a ride for home. 27

They met three drunk persons while descending an incline at the main gate of ASIST. When he told
Tejero "Bumaba" (go down or going down) the three misheard what he said
as "Kuba" (hunchback). One of the drunk men, Joseph Bon-ao, a hunchback, asked accused-
28 

appellant and his group whom among them said "Kuba". He and Tejero denied they were the ones
29 

but the hunchback asked for their names and the accused gave his name as Roland "Sleepy" Molina
from Pagpagatpat and he, in turn, asked who they are. The Bon-aos and their companion did not
30 

answer, instead they surrounded Molina and Tejero and when Joseph tried to draw a bolo, he picked
up a stone and threw the same at Joseph who was not hit. Molina then ran away and after covering
31 

a distance of 10-15 meters, he was overtaken by a "taller" man who held him at the back of his
collar. Joseph got near this "taller" man and armed with a knife tried to stab Molina who stooped low
32 

to avoid the blow and was not hit. A table belonging to a "balut" vendor was hit instead. He shouted
33  34 

for help saying, "Bro, help me." By the time he called again Lorenzo Tejero for help, the "taller" man
was not there anymore. He did not recognize this "taller" man because he was stooping to avoid
35 

"kuba's" knife. He ran to the fair grounds where there is a big crowd. He did not notice a third man.
36 

He learned just then that there was somebody hurt in the commotion where he and Tejero were
before he ran to the fair ground. Afterwards, he went home.
37  38

In the course of the trial, it was discovered that accused-appellant was previously charged and
convicted of attempted homicide in Criminal Case No. 1133 by the same Regional Trial Court in a
decision dated October 9, 1996. The dispositive portion of the said decision reads:
39 
WHEREFORE, the Court finds accused Roland Molina and Pio Pataray guilty beyond reasonable
doubt of the crime of attempted homicide, with the aggravating circumstances of dwelling and
nighttime, defined and penalized under Article 249 of the Revised Penal Code, in relation to Articles
6, 51, and 64 of the same code, and hereby sentences him to the indeterminate penalty of six (6)
months of arresto mayor to four (4) years of prision correccional as maximum.

Both accused are further ordered to indemnify the private complainant the sum of five thousand
pesos (P5,000.00) representing actual damages and to pay the costs of this suit.

SO ORDERED. 40

When confronted with this fact on the witness stand on December 18, 1997, accused-appellant
interposed no objection and admitted the same. 41

In a Decision dated February 26, 1998, the trial court convicted accused-appellant of the crimes for
which he was charged, appreciating against him the aggravating circumstance of recidivism. The
decretal portion of the decision reads:

WHEREFORE, premises considered, the Court finds the accused Roland Molina guilty beyond
reasonable doubt of the crime of murder defined and penalized under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, with the aggravating circumstance of recidivism
and no mitigating circumstance for the death of Joseph Bon-ao and sentences him to suffer the
extreme penalty of death and to indemnify the heirs of the victim the amount of P75,000.00 in actual
damages plus the amount of P50,000.00 for his death plus the amount of P500,000.00 in moral and
exemplary damages and to pay the costs; likesise [sic], the Court finds the same accused guilty
beyond reasonable doubt of the crime of frustrated murder defined under Article 248 of the Revised
Penal Code as amended in relation to Article 6 of the same code with the aggravating circumstance
of recidivism and no mitigating circumstance for the fatal wounding of Angelito Bon-ao and
sentences him to suffer an indeterminate penalty of four (4) years, two (2) months and twenty-one
(21) days of prision correccional as minimum to eight (8) years of prision mayor as maximum, to
indemnify Angelito Bon-ao the amount of P50,000.00 in actual and compensatory damages plus
P100,000.00 in moral and exemplary damages and to pay the costs.

SO ORDERED. 42

Accused-appellant challenges the appreciation of facts by the trial court in totally disregarding the
defense's version of the incident. He contends that the testimony of Nadarisay is not per
se incredible and improbable. In a simple manner, he argues, 44-year-old Nadarisay narrated how
the Bon-aos were stabbed by Lorenzo Tejero and not by accused-appellant himself. He professed
that Nadarisay unequivocally identified Tejero as the real assailant of the Bon-aos. Furthermore,
accused argues that the encounter between the accused-appellant and the victims was casual and
the attack was done impulsively, hence the act done at the spur of the moment is not treacherous. 43

We find accused-appellant's protestations to be untenable.

We see no reason to disturb the findings and evaluation made by the trial court. Issues of
appreciation of evidence and credibility of witnesses are best left to the trial court for it is only the
trial court that has the foremost opportunity to weigh and assess these matters. We have long
declared that the Supreme Court will not interfere with the judgment of the trial court in passing upon
the credibility of opposing witnesses, unless there appears in the record some facts or
circumstances of weight and influence which have been overlooked and, if considered, would affect
the result.
44
Indeed, the testimony of the two eyewitnesses, Angelito Bon-ao and Danny Vidal, to the commission
of the crime, is consistent, categorical and hardly suffers from grave inconsistencies.

Angelito Bon-ao testified thus:

DIRECT EXAMINATION (Atty. Pre)

Q: Where were you going with your companions?

A: We plan in going home here in Bangued because we have a service car near the gate of the
ASIST sir and our arrangement to the driver around 12:00 o'clock we're going home in Bangued,
Abra.

Q: And while you were walking with your cousin Danny Vidal and brother Joseph Bon-ao, is there
anything unusual incident that happened?

A: Yes sir.

Q: What happened?

A: My brother sir was stabbed.

COURT:

Q: How about you?

A: I was also stabbed sir.

ATTY. PRE:

Q: When you said your brother was stabbed were there persons?

A: Yes sir.

Q: Who were these persons?

A: He is Mr. Sleepy Molina sir. Witness pointed to the accused who is sitting at the accused bench.

Q: Was he with some companions?

A: Yes sir but I can't recognize his companions.

Q: Did you know Roland Molina on that night?

A: On that spot sir he introduced himself sir.

COURT:

Q: How did he introduced himself?

A: When we were walking and about to meet the group of Roland Molina one of them shouted
"kuba", "kuba" my brother got angry because he is a hunchback and still they call him "kuba",
"kuba". We consulted them.

ATTY. PRE:

Q: Who consulted them?

A: My brother and my cousin sir.

Q: What did they say when they confronted them?

A: Do not fool at Sleepy Molina who is from Pagpagatpat.

Q: Who is Sleepy Molina you are referring to?

A: The accused sir.

COURT:

Q: Do not fool at sleepy Molina who is from Pagpagatpat is that what he said?

A: Yes sir.

ATTY. PRE:

Q: When Roland Molina said that what followed next?

A: Then if you were not the one who shouted "kuba kuba" then it is alright with us.

Q: Who said that?

A: Danny and my brother sir.

Q: Then what happened next?

A: As soon as we turn our back that was the time Roland Molina stab my brother sir.

Q: What part of the body of your brother was stabbed by Roland Molina?

A: At his back sir.

Q: How many times?

A: Once sir.

Q: Did you see the stabbing of your brother?

A; Yes sir.
Q: And then what did you do when your brother was stab?

A: When my brother was stabbed I went to help him sir. When I went to the succor of my brother
although I was not armed he stab me sir. I was stab here witness showing a scars at the right side of
his back.

ATTY. PRE:

May we make it of record that the witness puts up his shirt, showed his body where there are several
scars.

COURT:

Q: So, you are the second man who was stabbed of the two of you?

A: Yes Sir.

Q: And what happened when you were stabbed?

A: They ran away sir.

Q: And how about you, what did you do?

A: We asked for the help of the police authorities sir.

Q: Was there police who came? ,

A: Yes Sir.

Q: What did they do with your brother Joseph?

A: We were brought to the police car sir.

Q: Where did they bring him?

A: Seares Family Clinic, Sir.

Q: Did your brother reach the hospital alive?

A: He was already dead when we reached the hospital sir.

Q: And you were the one who was treated?

A: Yes Sir.

Q: Do you know the doctor who treated you?

A: Yes Sir. Dr. Huber Seares sir.

 x x x           x x x          x x x

CROSS-EXAMINATION (Atty. Velasco)

Q: Did you see actually the stabbing of your brother?

A: Yes sir.

Q: Even from a distance of about 3 to 4 meters away ahead with your back against your brother and
the accused?

A: Yes sir because I turn my head towards them (tinalliaw). 45

Thus, Angelito Bon-ao categorically and consistently pointed out accused-appellant as the person
who inflicted the fatal wound on his brother Joseph and likewise administered the fatal injuries on
Angelito himself. Where it not for the timely medical assistance of Dr. Suares , Angelito would have
46 

succumbed to death.

The other eyewitness to the incident, Danny Vidal, likewise gave a credible testimony. His
declaration at the witness stand:

DIRECT EXAMINATION (Atty. Pre)

Q: Will you narrate how the incident happened on that night?

A: While we were walking we met several persons one of them shouted "kuba".

COURT:

Q: Kuba is kubbo in ilocano dialect is that correct?

A: Yes, sir.

Q: Is there any "kuba" among the three of you?

A: Yes sir.

Q: Who?

A: Joseph Bon-ao sir.

ATTY. PRE:

Q: When somebody said "Kuba" what followed next?

A: We asked who among them shouted "kuba" and they answered none.

Q: Who answered?

A: Roland Molina Sir.

Q: Is that Roland Molina you are referring to inside the courtroom?

A: Yes Sir.

Q: Will you point at him?

A: Witness pointed to the accused who is sitted [sic] at the accused bench.

Q: And when Roland Molina said "none", what followed next?

A: After that we told them if nobody shouted that, we better go. But when we proceeded walking that
was the time Roland Molina stabbed Joseph Bon-ao Sir.

Q: How far were you from Joseph Bon-ao, when he was stabbed by Roland Molina?

A: Two (2) meters sir.

COURT:

Q: Who of them was stabbed first?

A: Joseph Sir.

Q: What part of Joseph was hit? At his back?

A: Yes Sir.

Q: How many times did Molina stab Joseph?

A: Once Sir.

COURT:

Continue.

ATTY. PRE:

Q: What happened when Joseph was stabbed?

A: When he was stabbed his brother came to his succor but he again stab the younger brother of
Joseph Sir.

Q: You are referring to Angelito Bon-ao?

A: Yes Sir.

Q: How many times did Roland Molina stab Angelito Bon-ao when he came to succor his brother?

A: I cannot recall sir.

COURT:

Q: What happened after Roland Molina stab Angelito Bon-ao?

A: They ran away sir.

Q: When you say they, the group of Molina or your group?

A: Group of Roland Molina Sir.

Q: Where did they go?

A: I do not know sir.

Q: How many people were there in the group of Molina?

A: There were 3 of them sir.

Q: What did you du after the stabbing of your cousins?

A: When Joseph Bon-ao slog down to the ground I went to carry him sir.

Q: Where did you bring him?

A: I brought him at the edge of the road sir.

Q: How about Angelito Bon-ao, what did you do to him?

A: After bringing Joseph Bon-ao at the edge of the road I also went to get Angelito Bon-ao Sir.

Q: Where did you bring him?

A: I brought him to the police car sir.

Q: How about Joseph, where did you bring him?

A: I also brought him to the police car sir.

COURT:

Continue.

ATTY. PRE:

Q: And when they were brought to the police car where did you bring them?

A: We brought to the Seares Family Clinic sir.

Q: Who were the policemen who help you bring the Bon-ao brothers to the Seares Clinic?
A: I cannot recall anymore sir.

COURT:

Q: Was Joseph still alive when you reach Seares Family Clinic?

A: No more sir.

Q: So, he is dead already?

A: Yes sir. 47

Danny Vidal was unwavering in his positive identification of accused-appellant as the malefactor of
the crimes for which he was charged. Thus, Danny further buttressed Angelito Bon-ao's testimony.

As weighed against the positive identification of accused-appellant by one of his victims, Angelito
Bon-ao, which was further corroborated by an eyewitness to the scene, Danny Vidal, and the
absence of any showing of ill-motive on their part other than their quest for justice, accused-
appellant's denial of commission of the crime and imputation of the same to another person is
demolished to obscurity. Besides, accused-appellant's imputation of the crime to another malefactor
48 

was heard of only during his testimony and was never raised before the police authorities during the
49 

investigation. Clearly, his bare denial amounts to nothing more than negative and self-serving
evidence undeserving of weight in law. 50

With respect to treachery, it is our view that the prosecution has convincingly established the
same.  Jurisprudence has required that treachery must be proved by clear and convincing evidence,
1âwphi1

or as conclusively as the killing itself. For treachery to be appreciated as a qualifying circumstance,

51 

two (2) conditions must concur, to wit: (a) the employment of means of execution that gives the
person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution
be deliberately and consciously adopted. 52

In the case under review, the concurrence of the said conditions is firmly anchored on the
declarations of the prosecution eyewitnesses', Danny Vidal and Angelito Bon-ao. Both Vidal and
Bon-ao witnessed that, for no apparent reason, after they started to leave the presence of Molina's
group, the latter stabbed Joseph Bon-ao at his back. The sudden and unanticipated killing of Joseph
Bon-ao reinforced the trial court's finding of treachery, bolstered by the fact that the striking blow was
at the back of the victims. The same holds true to Angelito who was completely caught off guard as
53 

he was stabbed three (3) times when he chose to aid his brother Joseph. The Bon-aos had no
inkling that Joseph's inquiry on who shouted "kuba" would foreshadow the untimely demise of
Joseph and the near death of Angelito. As consistently held by this Court, an unexpected and
sudden attack under circumstances which render the victim unable and unprepared to defend
himself by reason of the suddenness and severity of the attack constitutes alevosia or treachery. Its54 

essence lies in the adoption of ways that minimize or neutralize any resistance which may be put up
by the unsuspecting victim. 55

On the aggravating circumstance of recidivism, the trial court properly appreciated the same though
not alleged in the information. Article 14(9) of the Revised Penal Code defines a recidivist as "one
who, at the time of his trial for one crime shall have been previously convicted by final judgment of
another crime embraced in the same title of this Code." To prove recidivism, it is necessary to allege
the same in the information and to attach thereto certified copies of the sentences rendered against
the accused. Nonetheless, the trial court may still give such aggravating circumstance credence if
the accused does not object to the presentation of evidence on the fact of recidivism. 56

In the case at bar, the accused-appellant never voiced out any objection when confronted with the
fact of his previous conviction for attempted homicide in a decision dated October 9, 1996 in
Criminal Case No. 1133. Neither does it appear that accused-appellant appealed from the said
57 

decision of conviction for attempted homicide, claiming he became aware of the promulgation of the
decision in that case only at the provincial jail during the pendency of his case for murder and
frustrated murder. Thus, at the time of his trial for murder and frustrated murder, the decision in
58 

Criminal Case No. 1133 for attempted homicide has long been final.

All the foregoing considered, the trial court did not err in convicting the accused-appellant for the
crimes of murder and frustrated murder. Article 248 of the Revised Penal Code, as amended,
prescribes the penalty of reclusion perpetua to death for the crime of murder. Article 63, second par.
of the Revised Penal Code, provides that "[i]n all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following rules shall be observed in the application
thereof: 1. [w]hen in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied." Thus, the imposable penalty, in view of the
presence of the aggravating circumstance of recidivism, shall be the supreme penalty of death for
the killing of Joseph Bon-ao.

As regards the frustrated murder of Angelito Bon-ao, the penalty one degree lower than reclusion
perpetua to death, which is reclusion temporal, shall be imposed pursuant to Art. 248 of the Revised
Penal Code in relation to Art. 50 thereof. Applying the Indeterminate Sentence Law and in the
presence of the modifying circumstance of recidivism, the maximum penalty to be imposed shall be
taken from the maximum period of the imposable penalty which is reclusion temporal maximum, the
range of which is seventeen (17) years, four (4) months and one (1) day to twenty (20) years, while
the minimum shall be taken from the penalty next lower in degree which is prision mayor in any of its
periods, the range of which is six (6) years and one (1) day to twelve (12) years.

As to the amount of damages, prevailing jurisprudence sets the civil indemnity for death in the
59 

amount of ₱50,000.00, which can be awarded without need of further proof other than the death of
the victim. With respect to the award of actual damages in both cases, the same is deleted
considering that there is nothing in the record to justify the said award. The Court can only grant
such amount for expenses if they are supported by receipts. Moral damages may be recovered in
60 

criminal offenses resulting in physical injuries but there must be a factual basis for the award. None
appears in this case. As to exemplary damages, there being one aggravating circumstance,
61 

exemplary damages in the amount of ₱30,000.00 may be awarded in both cases, pursuant to
62 

Article 2230 of the New Civil Code.

Four (4) Justices of the Court however continue to maintain the unconstitutionality of RA No. 7659
insofar as it, prescribes the death penalty; nevertheless, they submit to the ruling of the majority to
the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case
at bar.

WHEREFORE, the appealed decision dated February 26, 1998 of the Regional Trial Court of
Bangued, Abra, Branch 2 in Criminal Case Nos. 1757 imposing the death penalty on the accused-
appellant ROLAND MOLINA for the crime of murder is hereby AFFIRMED with the
MODIFICATION that accused-appellant is ordered to pay the heirs of the victim, Joseph Bon-ao, in
the amount of ₱50,000.00 as civil indemnity and ₱30,000.00 as exemplary damages. In Criminal
Case No. 1758, the appealed decision finding accused-appellant ROLAND MOLINA guilty of
frustrated murder is likewise AFFIRMED with the MODIFICATION that he is hereby sentenced to an
indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to twenty (20)
years of reclusion temporal as maximum, and to pay the victim, Angelito Bon-ao, the amount of ₱30,
000.00 as exemplary damages. The awards of actual and moral damages in both cases are
DELETED.

In accordance with Sec. 25 of the RA 7659, amending Art. 83 of the Revised Penal Code, upon the
finality of this Decision, let the records of Criminal Case No. 1757 be forthwith forwarded to His
Excellency, the President of the Philippines, for the possible exercise of his pardoning power. Costs
against accused-appellant.

SO ORDERED.

People v. Padama, G.R. No. 132137, October 1, 1999

[G.R. No. 132137. October 1, 1999.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINADOR PADAMA, JR.

y ALEJANDRO and JOSEPH POLLANTE, Accused.

DOMINADOR PADAMA, JR., Accused-Appellant.

DECISION

GONZAGA-REYES, J.:

On June 12, 1997, at about 7:30 in the morning, Gerry Gatchalian left his store at the
public supermarket in Cabanatuan City to take breakfast at a nearby canteen. He was
chased by two men, each armed with a knife, and stabbed simultaneously several
times. He eventually died of severe blood loss. chanrobles.com:cralaw:red

Dominador Padama, Jr. and Joseph Pollante were charged with murder on June 30,
1997. The amended information reads: jgc:chanrobles.com.ph

"That on or about the 12th day of June, 1997, in the City of Cabanatuan, Republic of
the Philippines and within the jurisdiction of this Honorable Court, the above named
accused, conspiring, confederating and mutually aiding and abetting with one another,
with intent to kill, with treachery evident premeditation and abuse of superior strength,
did and then and there, willfully, unlawfully and feloniously attack, assault and use
personal violence upon the person of one JERRY GATCHALIAN Y PINEDA, by stabbing
the latter at different parts of the body thereby inflicting upon him mortal wounds which
instantaneously caused his death.

CONTRARY TO LAW." 1

Upon arraignment, Dominador Padama, Jr. y Alejandro pleaded not guilty Joseph
Pollante is still at large.

The prosecution presented three eyewitnesses: Julie Ann Seroriales, a saleslady in the
grocery store of the victim Gerry Gatchalian, who was in front of the store putting
goods on display; Fernando Mariano, a restaurant owner at the Supermarket who was
buying fruits from a vendor when the incident happened; and Dominic Menao, a helper
in the Gatchalian’s store, who witnessed the stabbing eight steps away from where it
happened.

Gerry Gatchalian sustained at least 13 lacerated wounds, including a fatal wound on the
chest. The autopsy report (Exhibit "G" to "G-4") which was interpreted by witness Dr.
Jun Concepcion of the City Health Office of Cabanatuan, revealed the following: jgc:chanrobles.com.ph

"GENERAL DATA: chanrob1es virtual 1aw library

GERRY P. GATCHALIAN, 37 years, male, married from Melencio Extension, Kapt. Pepe
Subd., Cabanatuan City was a victim of hacking and stabbing incident which occurred at
around 7:30 A. M. of June 12, 1997.

FINDINGS: chanrob1es virtual 1aw library

Length : 180 CM

Head : chanrob1es virtual 1aw library

— Hacking wound #1-12-15 cm long and 3-4 cm deep along zygomatic area stretching
down to the angle of the left mandible.

— Lacerated wound #1-2-3 cm. long; 2-3 cm. deep over eyebrow, left.

— Linear abrasion, 6-8 cm over left cheek.

— Confluent abrasion, zygomatic area and upper lid, right.

Chest: chanrob1es virtual 1aw library

Lacerated wound, 3-4 cm long and 4-5 cm deep midclavicular line, left; penetrating,
the above mention injury caused a 2-3 cm laceration of the left upper lobe of the lung;
4-5 cm deep; blood of about one liter (1 li.) accumulates on the left pleural cavity. chanrobles virtual lawlibrary

— the rest of the internal structures in the chest are not affected.

— Lacerated wound; 2-3 cm. long and 1-2 cm deep, chest, left non-penetrating.

— Lacerated wound 2-3 cm midaxillary line, left.

— Lacerated wound 3-4 cm; 4-5 cm deep, suprascapular region, left.

Abdomen: chanrob1es virtual 1aw library

— Lacerated wound 3-4 cm; 2-3 cm deep just above the umbilicess.

— Gaping lacerated wound; 4-5 cm deep flank, left.

— Lacerated wound, 2-3 cm; 1-2 deltoid area, left.

— Lacerated wound 4-5 cm; 5-6 cm deep over lateral aspect distal 3rd arm, right.

— Lacerated wound, 2-3 cm –3-4 cm deep, prox 3rd forearm, right.

— Lacerated wound, 3-4 cm-5 cm. deep lateral aspect middle 3rd FA, right.

CAUSE OF DEATH: chanrob1es virtual 1aw library

FATAL STAB WOUND INVOLVING CHEST WITH SUBSEQUENT HYPOVOLEMIC SHOCK." 2

The accused Padama, Jr. was arrested in Barangay San Antonio, Municipality of Muñoz,
Nueva Ecija. The owner of the house, Nestor Ramos, where Padama, Jr. was arrested,
surrendered a kitchen knife. 3

Padama, Jr. denied the charge. He testified that when he heard that Gerry Gatchalian
was stabbed by his friend Pollante he went to the place of the incident to prevent the
latter from further stabbing the victim. He ran away out of fear when he heard the
warning shots. 4

The trial court found Padama, Jr. guilty. The dispositive portion of the decision reads as
follows:
jgc:chanrobles.com.ph

"WHEREFORE, premises considered, the Court finds, and so holds, the accused
Dominador Padama, Jr. y Alejandro, guilty beyond reasonable doubt of the crime of
Murder, and hereby sentences him to DEATH; he is likewise ordered to indemnify the
heirs of the victim the sum of P50,000.00 and the sum of P210,000.00 representing
burial expenses.

No moral damages are awarded as the same is subsumed in the civil indemnity for
death (People v. Daen, G. R. No. 112015, May 26, 1995)." 5

The case is now before us on automatic review. Accused-appellant Padama, Jr. raises
the following assignment of errors in his brief: chanrob1es virtual 1aw library

THE TRIAL COURT ERRED IN REJECTING THE ACCUSED DEFENSE OF DENIAL.

II

THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF

EVIDENT PREMEDITATION DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
THE SAME.

III
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY UPON THE ACCUSED-
APPELLANT.

Accused-appellant claims that the trial court’s rejection of his defense of denial "sounds
judgmental contrary to the accused’s constitutional presumption of innocence." Under
the second and third assignment of errors, which were discussed jointly, the appellant
assails the court’s finding of evident premeditation, which was allegedly not supported
by any direct evidence, as there is nothing in the records to show that the killing was
planned in advance.

After a careful examination of the evidence of record, we resolve to affirm the judgment
of conviction and to modify the penalty to reclusion perpetua.

The evidence of the prosecution convincingly established the complicity of the Accused-

Appellant. There were witnesses to the stabbing incident, which occurred early in the
morning at 7:30 when it was already "very bright." 6

The testimonies of the three witnesses were summarized by the trial court as follows: jgc:chanrobles.com.ph

"Julie Ann Seroriales testified that she was a saleslady in the grocery store of the
spouses Gerry Gatchalian y Pineda (the deceased victim) and Andrelina Gatachalian —
situated at the Cabanatuan City supermarket. She came to know the two accused-
namely, Dominador Padama, Jr. y Alejandro and Joseph Pollante during her seven-
month stint at the store; in fact, she said, "they became friends." chanrobles virtual lawlibrary

At about 7:20 o’clock in the morning of 12 June 1997, Gerry Gatchalian left his store to
have breakfast an eatery nearby, Lovy’s. While seated at the store where she worked,
she saw the two accused, each wielding a knife-chasing her employer, Jerry Gatchalian
(sic). When the two caught up with Gerry Gatchalian, Accused Joseph Collante (sic)
staffed the former, who, after being thus stabbed ran away. When Gerry Gatchalian fell
down on the pavement, the two accused pounced on him simultaneously stabbing him.
She could not definitely state the number of times the victim was stabbed but that
there were many. The stabbing incident which occurred fast, happened about 10 to 15
paces from where she was seated at the store.

When a gunshot rang out, the two accused simultaneously ran away in one direction.
The victim still managed to run towards the store of his sister.

She executed an affidavit (Exhibit A and A-1) on 23 June 1997 where she detailed what
she saw.

This witness identified the person of the accused inside the courtroom.

Fernando P. Mariano, a restaurant operator inside the Cabanatuan City supermarket,

happened to be in the vicinity-buying fruits from the stall of a friend-where the incident
in question took place. He saw the actual stabbing incident, about two to three meters
away from where he was — which took place at about 7:30 o’clock in the morning of 12
June 1997. He saw two man with bladed weapons in their hand chasing a man, who he
later on came to know to be Gerry, the deceased victim therein.
When Gerry was about two to three meters away from where he stood, he (Gerry) fell
down sidewise ("nakatagilid") on the pavement. For emphasis the following testimony
of the witness Fernando Mariano is hereto reproduced: chanrob1es virtual 1aw library

‘FISCAL MACARAIG: chanrob1es virtual 1aw library

Q: Who among the two men caught the victim and who first stabbed Gerry?

A: When Gerry fell down I saw Dominador Padama stabbed Gerry, sir.

Q: And what about this Joseph what did he do?

A: It was when Dominador Padama caught up with the victim who was then lying on
the ground that Dominador Padama sat on top of Gerry and it was at that time when
the victim was struggling with his feet it was the other accused Joseph who took hold of
both feet and stabbed the victim for two consecutive times.

Q: Can you calculate how many times did these two accused stab simultaneously the
victim?

A: There were man times, sir, I believe it could be 14 to 17 times, sir.

Q: What were the instruments that were used by the two accused in stabbing the
victim?

A: One is a kitchen knife which is about 4 inches, more or less, and the other one is the
one being used in slaughtering pigs called colonial which is about 6 inches.

Q: Do you have knowledge as to whether these particular instruments where recovered

at the crime scene?

A: The one used by Joseph Pollante was recovered while the other one was carried by
Dominador Padama, Jr.

[TSN 14 Aug. 1997, p. 5]

FISCAL MACARAIG: chanrob1es virtual 1aw library

Q: While these two accused were simultaneously stabbing the victim will you please tell
us if the victim was in a position to defend himself at that time?

ATTY. MAGBITANG: chanrob1es virtual 1aw library

The question is very leading.

COURT: chanrob1es virtual 1aw library

May answer. chanrobles lawlibrary : rednad

A: He was lying flat on the ground with his hands trying to parry the stabbing, sir.’
The two accused ceased their stabbing frenzy only when this witness fired a warning
shot in the air. The accused fled together in on direction.

Dominic Menao, is a helper at the store of the spouses Gerry (the deceased victim) and
Andrelina Gatchalian.

At around 7:30 a. m., 12 June 1997, inside their grocery store at the Cabanatuan City
supermarket, he heard a commotion outside their store; people were shouting. He was
about eight (8) paces from where he saw his manager the victim Gerry Gatchalian,
being stabbed by the two accused Dominador Padama, Jr. and Joseph Collantes. He
identified the accused Padama inside the courtroom. He said the two accused held
knives ("kutsilyo" in the vernacular) in their hands. At one specific time, he saw Joseph
Collantes stab the victim in the abdomen, while Padama stabbed the victim in the
chest. He could not, however ascertain the exact number of times his employer was
stabbed.

The stabbing stopped only when a gunshot rang out wherein after the two accused fled
together in one direction." 7

The accused were both known to prosecution witnesses Seroriales and Menao as they
were helpers in the store across the Gatchalian’s store 8 and were identified in court.
The accused-appellant himself could not offer any reason why the three eyewitnesses
would testify against him. 9

We find that the trial court did not err in ruling that the defense of denial is
"overwhelmed by the convincing, straight-forward and probable testimonies of the
prosecution witnesses" whose testimonies "to a man, . . . point to accused Padama as
one of the perpetrators of the crime." The trial court also correctly held that the flight of
the accused is an indication of his guilt or of a guilty mind. As correctly noted by the
court, his flight "hardly speaks well of his supposedly honorable intention of stopping
his co-accused Pollante from his plan to inflict harm" upon the victim.

The conclusion that the killing was attended with treachery or taking advantage of
superior strength, as the two accused "each armed with bladed weapons and
continuously attacking and raining knife thrusts upon the unarmed and unsuspecting
victim which caused his eventual death" is also not to be disturbed. The evidence shows
that the two accused took turns in stabbing the victim while the latter had already
fallen down on the pavement. 10

The crime of murder is committed where the killing is attended by among others
"treachery, taking advantage of superior strength, with the aid of armed men, or
employing means or persons to ensure or afford impunity" 11 and is punishable
by reclusion perpetua to death.

However, we are unable to agree with the trial court’s finding that the commission of
the crime was aggravated by evident premeditation. Evident premeditation cannot be
appreciated where there is no evidence of record of planning and preparation made by
the accused to commit the crime. 12 Evident premeditation must be evident; not
merely suspected, indicating deliberate planning. 13
The requisites of evident premeditation are: (a) the time when the accused determined
to commit the crime; (b) an act manifestly indicating that the accused has clung to his
determination; and (c) a sufficient lapse of time between such determination and
execution to allow him to reflect upon the consequences of his act. 14

There is nothing on the records to show that accused-appellant and Joseph Pollante
planned in advance the killing of Gerry Gatchalian. There was no evidence how and
when the killing of Gerry Gatchalian was planned in advance.

The Solicitor General posits that the evidence shows that: jgc:chanrobles.com.ph

"At about 11:00 o’clock in the evening of June 11, 1997, appellant learned from his co-
accused Joseph Pollante and other persons that there was a quarrel between the victim
and Pollante wherein the victim uttered to Pollante that he ‘will be shot and his life is
only worth P10,000.00’. (p. 8, tsn, September 30, 1997). Upon learning this, appellant
confided to his co-accused Pollante that the victim had made a similar threat to him.
Appellant claims that the victim was angry at him for courting their store helper, Julie
Anne Seriorales, and that the victim suspected him of stealing shampoo from his store.
The prosecution was able to elicit from appellant that before the stabbing incident,
Pollante had made a resolution to kill the victim: chanrobles.com : virtual law library

‘Q May we know the reason why you tried to prevent Joseph Pollante from stabbing the
victim?

A Because I already thought that if he can kill the victim he will be pitiful and if he is
killed, he will be the one to suffer, sir.

Q Was there an occasion that you actually told this to Joseph Pollante? Before the
incident occurred?

A I was able to inform him. Sir.

Q What was the reaction of Joseph Pollante?

A None, sir, he told me ‘bahala na’

(p. 7, tsn, September 30, 1997)

The victim’s wife, prosecution witness Andrelina Gatchalian, confirmed the animosity
between appellant and the victim but for a different reason. According to Gatchalian,
she was present when the victim confronted appellant and Pollante during the last week
of March 1997 regarding the plan of the two accused to steal from their store which
plan was uncovered when one of their store helpers informed the victim about it.
Gatchalian recalled that when the victim confronted and warned the two accused not to
repeat such a plan, the two accused stared at the victim with dagger looks (pp. 2-4, 7-
8, tsn, September 11, 1997)." 15

We are unable to sustain the contention that on the eve of the incident in question,
Joseph Pollante had already resolved to avenge the victim’s insults, a sentiment shared
by appellant who also resolved a grudge or resentment against the victim of a similar
insult and threat. Proof of the alleged resentment does not constitute conclusive proof
of evident premeditation. An expression of hatred does not necessarily imply a
resolution to commit a crime; there must be a demonstration of outward acts of a
criminal intent that is notorious and manifest. 16

Evident premeditation cannot be appreciated where there is no direct proof showing

when accused-appellant conceived the plan to kill the deceased. That he clung to his
determination to kill the deceased, and that sufficient time had elapsed between the
determinate execution of the crime to allow his conscience to overcome the resolution
of his will. 17 A finding of evident premeditation cannot be based on mere lapse of
time, and must be clearly shown just as the crime itself.

We accordingly hold that the aggravating circumstance of evident premeditation cannot

be appreciated to justify the imposition of the death penalty. In the absence of this
aggravating circumstance, the penalty should be reclusion perpetua. 18

As regards the actual expenses incurred for burial, the same was the subject of
documentary 19 and testimonial evidence. 20

WHEREFORE, the judgment of the court a quo finding Dominador Padama, Jr. y
Alejandro guilty beyond reasonable doubt of the crime of murder directing him to
indemnify the heirs of the victim the sum of P50,000.00 as indemnity for death, and
the sum of P210,000.00 representing burial expenses; is hereby AFFIRMED; however
the penalty imposed upon accused-appellant is reduced to reclusion perpetua.

SO ORDERED.

People v. Padlan, G.R. No. 111263, May 21, 1998

G.R. No. 111263. May 21, 1998

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARIO PADLAN @

MARCOS, ROMEO MAGLEO @ MOTMOT, and ALFREDO MAGLEO @ BOY, Accused-
Appellants.

DECISION

MENDOZA, J.:

This is an appeal from the decision,1 dated June 30, 1993, rendered by the Regional
Trial Court, Branch 56 of San Carlos City, Pangasinan, in Criminal Case No. SCC-1960,
finding accused-appellants Mario Marcos Padlan, Romeo Motmot Magleo, and Alfredo
Boy Magleo guilty of two counts of murder and sentencing each of them

to suffer an imprisonment of:

1. Reclusion perpetua, for the death of Rodolfo Manzon.

2. Reclusion perpetua, for the death of Mateo Manzon.
and to indemnify the heirs of the deceased as follows:

1) P60,000.00 for the death of Rodolfo Manzon.

2) P50,000.00 for the death of Mateo Manzon.
3) P100,000.00 for actual and temperate damages.
4) P200,000.00 as moral damages.
5) P5,000.00 as exemplary damages.

The information filed against accused-appellants charged

That on or about the 15th day of November, 1992, at around 1:15 oclock in the
morning at Barangay Libas, San Carlos City in Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating, and mutually aiding each other, with evident premeditation,
treachery, and intent to kill, did then and there wilfully, unlawfully, and
feloniously, with the use of high-powered long firearm, attack and shoot Rodolfo
Manzon and Mateo Manzon, killing them instantaneously as a consequence, to
the damage and prejudice of the heirs of the said victims in the amount of P
____________.

Contrary to Article 248 of the Revised Penal Code.2 cräläwvirtualibräry

When arraigned on June 7, 1993, accused-appellants pleaded not guilty, whereupon

trial was held. The prosecutions main witnesses were Carlito Manzon and Jordan
Pagsolingan. Carlito Manzon is a nephew of the deceased Rodolfo Manzon, Carlitos
father being the brother of Rodolfo Manzon. Jordan Pagsolingan is the son of Carlito
Manzons sister, Flora Pagsolingan, and therefore is a grandnephew of the deceased
Rodolfo Manzon.

Per their testimonies,3 at around 11 p.m. of November 14, 1992, at a pre-wedding

dance in Barangay Libas, San Carlos City, Rufo Manzon was beaten up by accused-
appellant Mario Padlan and a certain Lito Fernandez. He was saved from further
punishment by the timely intervention of Carlito Manzon and Jordan Pagsolingan who
took him away and led him to the house of Flora Pagsolingan in Barangay Anando.
Carlito Manzon and Jordan Pagsolingan then went to Barangay Payar to fetch Rufos
father, Rodolfo Manzon. Mateo, a brother of Rufo, came along in response.

At Sitio Caniogon of Barangay Libas, the four saw accused-appellants Mario Padlan,
Romeo Magleo, and Alfredo Magleo. They tried to avoid them, but they were pursued
by the three. Romeo Magleo ordered them to stop, shouting Hoy! at them. Carlito and
Jordan saw that Mario Padlan was armed with a rifle. Jordan also saw that accused-
appellant Alfredo Magleo had a knife.

Carlito and Jordan were young boys aged 16 and 15, respectively. Mario Padlan went
around the two boys to get near Rodolfo Manzon and then shot the latter. Mario Padlan
fired three times at Rodolfo Manzon,4 as the other accused-appellants watched.5cräläwvirtualibräry

Frightened, Jordan Pagsolingan and Carlito Manzon ran away. As they were fleeing,
Jordan Pagsolingan said he heard two more shots fired.6 He and Carlito went home to
Barangay Anando to report the incident. Upon learning of the incident, Jordans mother,
Flora Pagsolingan, and Eling Manzon lost no time and went to the city proper to report
the matter to the police.

Flora Pagsolingan corroborated the testimonies of her son Jordan and her brother
Carlito Manzon.7 She testified that the incident was entered in the blotter of the
police.8
cräläwvirtualibräry

SPO4 Alberto Castro of the Philippine National Police in San Carlos City also
testified.9 He said that upon receipt of Flora Pagsolingans report, at 3:20 a.m. of
November 15, 1992, a team of policemen went to the scene of the crime and
afterwards to the residence of Mario Padlan in Barangay Libas, but was told by the
latters wife that he did not go home that night. The police finally found him at about 7
a.m., in the house of his father-in-law, Alejandro Magleo. Magleo, a former barangay
captain, surrendered Mario Padlan to the police. SPO4 Castro said that the report
mentioning the participation of the two other accused-appellants, Romeo and Alfredo
Magleo, came only at about 5 in the morning.10 cräläwvirtualibräry

SPO Virgilio G. Cardioza, who was a member of the team, testified that they recovered
from the scene of the crime four empty shells fired from an armalite rifle.11 Rodolfo
Manzon had a short bolo which the police found to be in its scabbard,12 while Mateo
Manzon had a slingshot with darts.13 Near the feet of Rodolfo Manzon the police found a
knife.14 SPO Cardioza said he interviewed Jordan Pagsolingan and was told that Mario
Padlan fired at them and that with Padlan were Romeo and Alfredo Magleo.15 SPO
Cardioza said that he and his companions after sometime found Mario Padlan in the
house of his father-in-law, but they were unable to locate the other accused-appellants
Romeo and Alfredo Magleo in their residences.16 cräläwvirtualibräry

Lolita Manzon, the wife and mother of the victims, testified17 that prior to their death,
Rodolfo Manzon worked as a tenant farmer on land that produced eight cavans a year,
while her son Mateo, 15 years of age, was a high school sophomore who helped his
father farm the land. She bought coffins but could not remember how much she paid
for them because of her shock and grief. The deaths of her husband and son were for
her very painful because there were two of them.18 cräläwvirtualibräry

Dr. Juan I. Pizarro, who conducted the postmortem examination of the bodies of the
victims, found Rodolfo Manzon to have suffered the following wounds:

1. Lacerated wound, anterior surface of left forearm, 3 inches from the

elbow, measuring 11/2 by 11/2 inch.
2. Incised wound rectangular in shape 1/2 inch by 1/2 inch, 3/4 inch deep
located 1/2 inch just below wound No. 1.
3. Gunshot wound with point of entrance, circular in shape, 10 mm. in
diameter, located at the left epigastric area along anterior axillary line
3 inches below the coastal line with irregular borders penetrating the
abdominal cavity with portion of the intestine protruding outside
through this wound.

Point of Exit - None.19

cräläwvirtualibräry
Dr. Pizarro testified that wound no. 1 could have been caused by a pointed instrument
and wound no. 2 by a sharp-bladed instrument. Wound no. 3 was the fatal wound,
which caused massive internal hemorrhage.20 cräläwvirtualibräry

Dr. Pizarro found Mateo Manzon to have suffered a [g]aping incised wound 21/2 inches
long and 11/2 inches wide and 51/2 inches deep horizontally across the anterior chest
wall just below the medial end of the right clavicle lacerating the right first rib and right
portion of the sternum, directed posteriorily to the left lacerating the lungs and the
heart.21 According to Dr. Pizarro, the wound, which was caused by a sharp-pointed
instrument, was fatal.22 cräläwvirtualibräry

Accused-appellant Alfredo Magleo admitted23 that he was at the pre-wedding party in

Barangay Libas in the evening of November 14, 1992. He claimed, however, that he
and accused-appellant Mario Padlan and others did not leave the place until 4 a.m. of
the following day, November 15, 1992. Alfredo said that from the party he went home
to Barangay Anando, and that in the morning, while the police officers went to the
house of his father and arrested his brother-in-law, accused-appellant Mario Padlan,
they did not arrest him (Alfredo Magleo) despite the fact that his house was only 15
meters away.

Accused-appellants Mario Padlan and Romeo Magleo also interposed the defense of
alibi. Padlan claimed24 that they were in the house of Aniceto de la Cruz for the pre-
wedding party for the latters daughter, Evangeline de la Cruz, and Roly Domingo which
lasted from 7 p.m. of November 14, 1992 up to 4 a.m. of November 15, 1992; and that
after the party, accused-appellant Romeo Magleo stayed behind, as he had been asked
by Aniceto de la Cruz to help prepare the food for the guests on the day of the wedding.

Padlan claimed that from the party, he went to the house of his father-in-law Alejandro
Magleo because his wife was there. It was there that the police found him and invited
him to go with them to the police station for questioning. He said he denied
involvement in the killing and even asked to be given a paraffin test by the National
Bureau of Investigation, but that although he was taken to the NBI, he could not be
tested because of lack of equipment. Padlan also testified that he had no
misunderstanding with the Pagsolingan family.

For his part, Romeo Magleo testified25 that before he left the house of Aniceto de la Cruz
(where the party was held) at 8:30 a.m. of November 15, 1992, Flora Pagsolingan
arrived with some policemen and asked if any untoward incident had happened during
the celebration, to which Romeo Magleo said he answered in the negative; and that he
(Romeo Magleo) was not apprehended by the police officers.

Aniceto de la Cruz, in whose house the party was held, testified that none of the
accused-appellants had left the party before it ended at 4 a.m. of November 15,
1992.26cräläwvirtualibräry

The defense also presented as witnesses three farmers, Rodolfo Lavarias, Tomas
Lavarias, and Ernesto Lavarias, all of whom were residents of Barangay Anando.
Ernesto Lavarias testified27 that at around midnight of November 14, 1992, he heard
cries coming from the house of Flora Pagsolingan less than 30 meters away. For this
reason, he said, he fetched his brother Tomas and the two of them then went to Floras
house. There they learned that Rufo Manzon had been beaten up. Rufo was brought to
the house of Flora. According to Ernesto Lavarias, Flora Pagsolingan sent her son
Jordan Pagsolingan and Carlito Manzon to fetch Rufos parents. In no time, Jordan and
Lito were back with news that Rufos parents were coming.

On rebuttal, Flora Pagsolingan testified28 that actually Ernesto and Tomas Lavarias went
to her house only at about 1:15 in the morning of November 15, 1992, and that was
because of the news that Rodolfo Manzon had been shot.

The trial court found accused-appellants guilty as charged in its decision, the dispositive
portion of which was quoted earlier herein. Hence, this appeal. Accused-appellants
contend:

I.

THE LOWER COURT ERRED IN NOT FINDING THE EVIDENCE OF THE

PROSECUTION SUBSTANTIALLY INSUFFICIENT TO ESTABLISH THE GUILT OF
THE HEREIN ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT IN THE
CASE AT BAR.

II.

THE LOWER COURT ERRED IN NOT GIVING WEIGHT TO THE EVIDENCE OF THE
HEREIN ACCUSED-APPELLANTS.

The contentions are without merit.

First. Accused-appellants were positively identified by prosecution witnesses Jordan

Pagsolingan and Carlito Manzon as the ones who had stopped them on the way on the
day of the incident. While accused-appellants claimed they were in the house of Aniceto
de la Cruz attending a pre-wedding party, their alibi cannot prevail over the testimonies
of the prosecution witnesses positively identifying them as the assailants. The place
where accused-appellants were at the time of the killing is in Barangay Libas where the
crime also took place. It was not at all physically impossible for them to have
committed the crime.29 Each of the accused-appellants claimed he had no quarrel with
the deceased or the prosecutions main witnesses. Their identification, however, makes
it irrelevant that there is no proof of ill motive on their part to commit the crime. Motive
assumes significance only where there is no showing of who the perpetrators of the
crimes were.30cräläwvirtualibräry

It is contended that the testimonies of the two prosecution eyewitnesses, Carlito

Manzon and Jordan Pagsolingan, are at odds with the entry in the police blotter.
Accused-appellants Romeo and Alfredo Magleo contend that entry in the police blotter
does not name them as among those involved in the killing of Rodolfo Manzon and his
son Mateo.

The entry reads:

FIRST, SECOND & THIRD SHIFT: 0800h-0800h 14-15 NOVEMBER 1992.

Entry Nr-496

Date: 11-15-92

Time: 0320H = Flora Pagsolingan y Manzon, 39 years old, widow, housekeeper,

high school graduate, and resident of Brgy. Anando, this city came
and reported to this office that Rodolfo Manzon and Mateo Manzon,
Carlito Manzon and Jordan Pagsolingan were fired upon by Marcos
Pagsolingan in company w/ two other whom they do not know their
names. Reportee further reported that they do not know whether
Mateo Manzon and Rodolfo Manzon were hit. Incident happened at
about 1:15 A.M. today November 15, 1992 at Brgy. Libas, this city per
her signature appear herein.

SGD: Flora Pagsolingan

SPO4 Albert Castro, SPO4 A. Patayan PO3 Viduya, PO3 Cardinoza,

SPO2 Tamayo and PO3 Lazaro were dispatched to investigate.

SGD: SPO4 ANDRES G. ELERTA

Desk Officer31 cräläwvirtualibräry

Flora Pagsolingan explained that at the time she made the report, she was in [a] state
of shock ... confused, and did not know what [she] was doing.32 She must have been in
such a state of agitation that even the police investigator, who took down her
statement, identified accused-appellant Mario Marcos Padlan as Marcos Pagsolingan,
although Flora maintains she never said the assailant was Marcos Pagsolingan. As she
testified:

COURT:

Q Now, in this police blotter, it was entered by the police, which you also confirmed,
that it was Marcos Pagsolingan who fired his gun?

A What I said was Marcos Padlan, sir.

Q So, in other words, this entry in this police blotter is not accurate?

A I said Marcos Padlan, your Honor, and I did not put so much attention on the two
because my mind was confused.

Q In other words, you confirmed the fact that your son Jordan Pagsolingan and this
Carlito Manzon told you that it was Marcos Padlan who fired his gun at Rodolfo Manzon
and Mateo Manzon?

A It was what they were telling me, sir.33 cräläwvirtualibräry

Accused-appellants contend that Floras son, Jordan, and Carlito Manzon could have
corrected her or otherwise helped her since the two boys were with her when she gave
her statement to the police. But the two boys said they were themselves agitated if not
in shock as well as in fear34 and so possibly could not have corrected Floras mistakes.

Accused-appellants cite the testimony of SPO4 Alberto Castro which allegedly

corroborates the blotter entry naming accused-appellant Mario Padlan as the only
assailant. That is not so. SPO4 Castros testimony is as follows:

Q Aside from Marcos Padlan, did [Jordan Pagsolingan] also mention others?

A Actually, at the crime scene when we conducted an investigation, Flora Pagsolingan

and her son were only mentioning Marcos Padlan, sir.

Q Now, what time did you receive that report from Flora Pagsolingan on November 15,
1992?

A If I am not mistaken, before 5:00 oclock, sir.

Q 5:00 oclock in the morning?

A Yes, sir.

Q And you immediately formed a team and investigated the veracity of the report, can
you tell us further what time more or less did you go to the place of the incident?

A 3:20 oclock in the morning of November 15, sir.

Q So that, do we understand from you senior police officer that the report was made at
5:00 oclock in the morning of November 15?

A No, sir, what I mean, I am referring to the other accused that if I am not mistaken,
there were three (3) accused in this particular case. We received a report only at about
5:00 oclock in the morning mentioning the two (2) accused.

Q Who were the two (2) accused?

A Magleo brothers, sir.

Q In what manner are they accused of?

A In the first place, this Flora Pagsolingan and her son only mentioned Marcos Padlan,
so, we concentrated on Marcos Padlan, we invited him to the police station, sir.35
cräläwvirtualibräry

Thus what SPO4 Castro said was that while in the beginning only accused-appellant
Mario Padlan was named by Flora Pagsolingan and her son Jordan, the police later
received a report at 5 a.m. that accused-appellants Romeo Magleo and Alfredo (Boy)
Magleo were also involved in the killing of Rodolfo Manzon and his son Mateo. In fact,
according to the police blotter, Rodolfo Manzon, his son Mateo, Carlito Manzon, and
Jordan Pagsolingan were fired at by Mario Marcos Padlan (erroneously identified therein
as Marcos Pagsolingan) and two unidentified men. Another member of the police team,
SPO Virgilio G. Cardioza, also testified that, during their investigation at the scene of
the crime, Jordan Pagsolingan named the two Magleos as the companions of Mario
Padlan.36cräläwvirtualibräry

It is not surprising that attention should focus on Mario Padlan because he was the one
seen by Jordan Pagsolingan and Carlito Manzon shooting Rodolfo Manzon. In the
process, the participation of the other two as coconspirators was obscured. But when it
came to their turn to make their sworn statements and later to testify in court, Jordan
Pagsolingan and Carlito Manzon categorically stated that the Magleo brothers were
present at the shooting.

Moreover, it should not be forgotten that entries in police blotters, though regularly
done in the course of the performance of official duty, are not conclusive proof of the
truth stated in such entries and should not be given undue significance or probative
value because they are usually incomplete and inaccurate. Sometimes they are based
on partial suggestion or inaccurate reporting and hearsay, untested in the crucible of a
trial on the merits.37 But an indication of the guilt of the Magleos is the fact that shortly
after the killing they went into hiding. They could not be found in their respective
residences for which reason an alias warrant had to be issued by the trial court for their
arrest. Flight has been held to be evidence of guilt.38cräläwvirtualibräry

Second.  Accused-appellants focus on the credibility of the prosecution witnesses.

Accused-appellants point out a discrepancy between Jordan Pagsolingan and Carlito
Manzons testimonies to the effect that they were with Rufo Manzon when the latter was
attacked by Mario Padlan and Lito Fernandez and their affidavits39 in which they stated
that they were on their way to the pre-wedding dance party when they came upon Rufo
Manzon being beaten up. There really appears to be a discrepancy concerning this
matter. However, it is not denied that Rufo Manzon had been beaten up by Mario
Padlan and Lito Fernandez, and this was the reason his father, the deceased Rodolfo
Manzon, was summoned. Whether Rufo Manzon was with Carlito Manzon and Jordan
Pagsolingan when he was set upon or whether he was then alone is therefore of little
moment.

Accused-appellants point out other discrepancies in the evidence of the prosecution.

Accused-appellants cite Jordan Pagsolingans testimony that accused-appellant Mario
Padlan fired three times at Rodolfo Manzon and that, as he and Carlito Manzon were
fleeing, he heard two more gunshots, so that in all accused-appellant fired at the
victims five times.

Accused-appellants say that this is contrary to the evidence that Rodolfo Manzon
sustained only one gunshot wound.

The number of wounds does not have to be equal to the number of shots, because
some of the shots may have missed their mark. It is also possible that in the
excitement of the moment, Jordan Pagsolingan may have made a mistake as to the
number of shots he heard. What is important is that although Rodolfo Manzon suffered
only one gunshot wound, the fact is that the police recovered four empty shells from
the scene of the crime. This confirms the statement of Jordan Pagsolingan that several
gunshots had been fired by accused-appellant Mario Padlan.

Accused-appellants claim that had it been their intention to kill the victims, they could
easily have ambushed the victims instead of openly confronting them, considering that
they are known to the witnesses and the victims. This assumes that accused-appellants
knew that the Manzons were going to pass the place where they were so as to enable
them to waylay their victims. The fact, however, is that it was the Manzons who saw
accused-appellants at a distance and who tried to run away from them, but accused-
appellants, using a shortcut, were able to overtake the Manzons.

Accused-appellants doubt whether the prosecution witnesses really recognized them.

Accused-appellants argue that if Mario Padlan trained his flashlight on the group of the
eyewitnesses and the Manzons, the prosecution witnesses would not have recognized
accused-appellants. As Jordan Pagsolingan explained, however, it was quite bright that
early morning because there was a moon and accused-appellants were known to them
because we usually joke together.40 Carlito Manzon also testified that the moon was
bright at that time.41cräläwvirtualibräry

Finally, accused-appellants brand the prosecution evidence as fabricated because of the

close relationship of the prosecutions main witnesses to the victims. In the absence of
proof of improper motive, the mere relationship of the prosecution witnesses to the
victims is not a ground for doubting their truthfulness. On the contrary, their natural
interest to secure the conviction of the real culprits could have deterred them from
implicating otherwise innocent persons, for then the real culprits would go scot
free.42 In this case, there is additional reason for rejecting accused-appellants
contention that because of their relationship to the deceased the prosecution witnesses
concocted stories to lay the blame for the killing on accused-appellants: accused-
appellants admitted that they had no quarrel or misunderstanding with the Pagsolingan
family which could make Jordan Pagsolingan and Carlito Manzon testify falsely against
them.

The various criticisms made by accused-appellants against the testimonies of Jordan

Pagsolingan and Carlito Manzon boil down to a question of their credibility. The trial
court, which was in the unique position to hear the witnesses and observe their
deportment and manner of testifying, believed their testimonies.43 We have considered
the contrary view of accused-appellants which we find to be without merit. Accused-
appellants have not shown that, in the evaluation of the testimonies of the witnesses
for both parties, the trial court overlooked matters of substance and weight justifying
reversal of the findings of the trial court.44 Accordingly, we give its findings full faith and
credit.

Third. Accused-appellants claim that even if all of them were present at the scene of
the crime, no inference of conspiracy can be drawn since the two prosecution
eyewitnesses did not see Romeo and Alfredo Magleo attack the victims. Several
circumstances indicate, however, that there was a conspiracy to kill Rodolfo Manzon
and his son, Mateo, in addition to the fact that all of accused-appellants were at the
scene of the crime, to wit: (1) accused-appellant Romeo Magleo shouted Hoy! at the
Manzons to make them stop as the latter were running away; (2) accused-appellants
pursued the Manzons when the latter tried to flee from them; and (3) accused-
appellant Alfredo Magleo was seen by Jordan Pagsolingan with a knife, which fits the
description of the weapon used in wounding Rodolfo Manzon and Mateo Manzon:
pointed and sharp-bladed.45 cräläwvirtualibräry

Nevertheless, we do not think that the crime committed was murder. The qualifying
circumstances of evident premeditation and treachery have not been shown in this
case. Proof of conspiracy does not imply the existence of evident premeditation. Evident
premeditation can be presumed only where conspiracy is directly established, not
where, as in this case, conspiracy is only implied.46 Nor was treachery established with
certainty.47 The prosecution has not shown that there was that swift and unexpected
attack of an unarmed victim, which is the essence of treachery.48 First, the victims were
not defenseless, since they too were armed. Rodolfo had a bolo, while Mateo had a
slingshot with darts. Second, the sight of accused-appellants at a distance must have
sufficiently warned the Manzons of accused-appellants and their intentions; that was
why they tried to evade them. Thus, an important condition for the existence of
treachery under Art. 14(16) of the Revised Penal Code has not been proven: that the
means of execution employed was deliberately and consciously adopted so as to give
the person attacked no opportunity to defend himself or to retaliate. Accordingly, the
killing of Rodolfo Manzon and his son Mateo constitutes not murder but only homicide.

The trial court found that the killing was attended by the aggravating circumstances of
(1) abuse of superior strength, (2) aid of armed men, and (3) nocturnity. Indeed, there
was abuse of superior strength in this case. Whatever superiority in number the victims
had over accused-appellants (four to three) was more than offset by the fact that the
latter group was composed of adult males in their physical prime. Accused-appellant
Mario Padlan was 28,49 while accused-appellants Romeo and Alfredo Magleo were
2650 and 32,51 respectively. In contrast, the former group, with the sole exception of
Rodolfo Manzon, who was 43,52 was composed of youths barely in their early teens.
Mateo Manzon and Jordan Pagsolingan were both 15 years old,53 while Carlito Manzon
was 16 years of age.54 More importantly, the group of accused-appellants had a firearm
and a knife which gave them a clear advantage over the bolo and slingshot of the
victims.

But we do not think the aggravating circumstance of nocturnity can be appreciated as

nocturnity was not shown to have been purposely sought by accused-appellants the
better to commit the crime.55 Nor can the aggravating circumstance of aid of armed
men be appreciated, considering that accused-appellants, as coconspirators, acted
under the same plan and for the same purpose.56 cräläwvirtualibräry

Under Art. 249 of the Revised Penal Code the penalty for homicide is reclusion
temporal.  As there was one aggravating circumstance (abuse of superior strength), the
penalty should be fixed in its maximum period, the duration of which is from 17 years,
4 months, and 1 day to 20 years. Under the Indeterminate Sentence Law, the minimum
of the penalty is prision mayor, which is from 6 years and 1 day to 12 years, as the
penalty next lower in degree to reclusion temporal.

In addition, we find errors committed by the trial court in awarding damages for the
death of Rodolfo Manzon and his son Mateo. The indemnity for death as currently
fixed57 is P50,000.00 so the trial courts award of P60,000.00 for the death of Rodolfo
Manzon should be reduced accordingly.
The award of P100,000.00 for actual and temperate damages cannot be allowed.
Damages cannot be both actual and temperate. Temperate or moderate damages are
allowed because, while some pecuniary loss has been suffered, from the nature of the
case its amount cannot be proved with certainty.58 This is not the case here. The trial
court awarded the P100,000.00 as temperate damages apparently because the
prosecution failed to adduce proof of expenses in connection with the death, wake, or
burial of Rodolfo and Mateo Manzon but not because from the nature of the case it was
not possible to show with certainty the amount of the damage done. For the same
reason, no award of actual damages can be made.59 cräläwvirtualibräry

The award of P200,000.00 for moral damages is excessive. As moral damages are not
intended to enrich the prevailing party,60 an award of P50,000.00 would be in keeping
with this purpose of the law.

The award of exemplary damages is warranted under Art. 2230 of the Civil Code in
view of the presence of the aggravating circumstance of abuse of superior strength.
Imposition of exemplary damages is also justified under Art. 2229 of the Civil Code in
order to set an example for the public good. For this purpose, we believe that the
amount of P20,000.00 can be appropriately awarded.61 In reviewing the records of this
case, we noticed a variance between the allegation in the information and the evidence
presented regarding the manner in which Mateo Manzon was killed. The information
alleged that he and his father Rodolfo Manzon were killed with the use of high-powered
long firearm, but the medical certificate indicates that while Rodolfo Manzon suffered
both incised and lacerated wounds as well as a gunshot wound, his son Mateo suffered
only a [g]aping incised wound 21/2 inches long and 11/2 inches wide and 51/2 inches deep
horizontally across the anterior chest wall just below the medial end of the right clavicle
lacerating the right first rib and right portion of the sternum, directed posteriorily to the
left lacerating the lungs and the heart. The variance, however, is not an obstacle to
finding the accused-appellants liable for double homicide. The variance does not affect
or change the nature of the crime charged, namely, murder, which in view of our
finding is actually homicide. The variance concerns merely the manner of execution of
the crime. The defense could have objected to the presentation of the evidence, in
which event the court could have ordered the amendment of the information so as to
make the allegation conform to the evidence presented and the accused-appellants
would be none the worse for it. Accordingly, we hold that accused-appellants are liable
for two counts of homicide.

WHEREFORE, the decision of the Regional Trial Court is AFFIRMED with the
MODIFICATION that the accused-appellants are found guilty of two counts of homicide
and each one is sentenced to two prison terms of 12 years of prision mayor, as
minimum, to 20 years of reclusion temporal, as maximum, and to pay to the heirs of
the victims P50,000.00 as indemnity for the death of Rodolfo Manzon, P50,000.00 as
indemnity for the death of Mateo Manzon, P50,000.00 as moral damages,
and P20,000.00 as exemplary damages.

SO ORDERED

People vs. Espina, G.R. No. 123102, February 29, 2000

 G.R. No. 123102. February 29, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MADELO ESPINA Y

CAASARES, Accused-Appellant.

DECISION

QUISUMBING, J.:

On appeal is the decision dated September 4, 1995, of the Regional Trial Court of
Bulacan, Branch 141 convicting appellant of the crime of murder, sentencing him to
suffer the penalty of reclusion perpetua,  and ordering him to pay the heirs of the victim
the at amounts of P100,000.00, as indemnity, P15,000.00 as funeral expenses, and
P50,000.00 as damages.

Appellant, a 17 year-old jeepney conductor, was charged with murder for the killing of
Ma. Nympha Belen y Melano, a 21 year-old mental retardate.

The facts of the case are as follows:

On July 1, 1993, at about. 12:00 in the evening, prosecution witness Tolentino A. Colo
was sleeping inside a jeepney parked at a garage in Francisco Homes, San Jose Del
Monte, Bulacan. Suddenly, he was awakened when a woman cried out "Aruy!". Colo
stood up and saw appellant coming out of a hut located some eight (8) meters away
from the garage. Appellant was holding a curved knife in his hand. His t-shirt, hands,
and knife were drenched with blood. Colo saw a woman inside the hut fall down on her
face. Although it was nighttime, there was a light inside the hut and a mercury lamp
some three (3) meters away which cast enough illumination for Colo to recognize
appellant and the woman as Ma. Nympha Belen. When appellant saw Colo, he
shouted "panglima ire"  referring to the victim, and "panganim ka!  referring to
Colo.ared out of his wits, Colo immediately jumped out of the window of the jeepney
and hid in the roof of a nearby house. Appellant gave chase but when he could not find
Colo, he finally gave up and left. Colo remained on the roof for five (5) long hours. At
around 6:00 the following morning, he gingerly went down and drove the jeepney in his
usual route. On July 2, 1993, at around 7:00 in the evening, Colo was arrested by the
police and brought to the station for investigation. The following day, Colo told Mrs.
Precila Melanio-Belen, mother of the victim, that it was appellant who killed her
daughter.2cräläwvirtualibräry

On August 3, 1993, appellant was charged with the crime of murder under the following
Information:3 cräläwvirtualibräry

"I N F O R M A T I O N

The undersigned Asst. Provincial Prosecutor accuses Madelo Espina y Caasares of the
crime of murder, penalized under the provisions of Article 248 of the Revised Penal
Code, committed as follows:
That on or about the 1st day of July, 1993, in the municipality of San Jose del Monte,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the
said accused Madelo Espina y Caasares, armed with a bladed weapon and with intent to
kill one Maria Nympha Belen, did then and there wilfully, unlawfully and feloniously,
with evident premeditation, abuse of superior strength and treachery, attack, assault
and stab with the said bladed weapon he was then provided the said Maria Nympha
Belen, a mentally retarded woman, hitting the latter on the different parts of her body,
thereby causing her serious physical injuries which directly caused her death.

Contrary to law.

Malolos, Bulacan, August 3, 1993."

Upon arraignment on October 29, 1993, appellant entered a plea of not guilty.4 At the
pre-trial conference,5 the sworn statements of Mrs. Precila Melanio-Belen6 and Tolentino
Colo,7 the post-mortem examination8 and death certificate of Ma. Nympha Belen9 were
marked in evidence.

During trial, the prosecution presented the following witnesses: (1) Mrs. Precila
Melanio-Belen, mother of the victim, who testified that her daughter was a mental
retardate, and that their family paid more than P15,000.00. for the funeral of the
victim;10 (2) Tolentino A. Colo, a jeepney driver, who narrated the events he witnessed
in connection with the stabbing incident; (3) SPO3 Rogelio Encina, a member of the
Philippine National Police (PNP), San Jose Del Monte, Bulacan, who was tasked to bring
to court the knife used in the killing from the Municipal Trial Court of San Jose Del
Monte, Bulacan;11 (4) Dr. Juan V. Zaldariaga, Jr., Medico-Legal Officer of the National
Bureau of Investigation (NBI), who conducted the post-mortem examination and
testified that the victim sustained six (6) stab wounds, five (5) of which were fatal.12
cräläwvirtualibräry

For the defense, appellant himself testified. He stated that in the evening of July 1,
1993, he was having a drinking spree with Jun, Gusing, Panis, Colo, and some others,
at the garage in San Jose Del Monte, Bulacan. At around 10:00 P.M., he left the group
and being drunk, he decided to sleep inside the parked jeepney in the garage instead of
going home. At around 12:10 in the morning, he was awakened by policemen and
brought to the police detachment where he was questioned regarding the killing. He
told the police that he did not know who killed the victim.13
cräläwvirtualibräry

On September 4, 1995, the trial court rendered a decision14 finding appellant guilty of

murder, the dispositive portion of which states:

"WHEREFORE, the Court finds the accused Madelo Espina y Caasares guilty of the crime
of Murder, the court hereby imposes upon the accused the penalty of Reclusion
Perpetua.

To indemnify the heirs of the victim P100,000.00.

To pay Precila Belen P15,000.00 expenses for wake & burial.

To pay P50,000.00 moral damage.

The accused a detention prisoner, the Provincial Warden of Malolos, Bulacan is ordered
to commit the accused to the National Penitentiary immediately upon receipt hereof.

SO ORDERED."15 cräläwvirtualibräry

Hence, the present appeal. Appellant contends that the trial court gravely erred in -

I. ...GIVING FULL FAITH AND CREDENCE TO THE TESTIMONY OF ALLEGED

EYEWITNESS, AND IN NOT ACQUITTING ACCUSED APPELLANT ON GROUND OF
REASONABLE DOUBT.

II. ORDERING ACCUSED-APPELLANT TO INDEMNIFY THE HEIRS OF THE VICTIM IN THE

AMOUNT OF P100,000.00; TO PAY THE AMOUNT OF P 15,000.00 AS REIMBURSEMENT
FOR THE WAKE AND THE BURIAL EXPENSES; AND P50,000.00 AS MORAL DAMAGES.

In his brief,16 appellant assails the credibility of prosecution witness, Colo considering

that the latter was also a suspect in the killing, and was under detention at the time he
gave his statement pointing to appellant as the killer. Further, appellant claims, Colo
had a motive in pointing to appellant as the assailant since they had a previous quarrel
over money. Appellant also contends that Colo's behavior after witnessing the incident
is not in consonance with normal human behavior, for instead of reporting the matter to
the police, he merely went ahead plying his usual jeepney route. Appellant also avers
that the murder weapon was not positively identified in court. Lastly, appellant insists
that he was convicted on the basis of insufficient circumstantial evidence. And even
assuming that appellant committed the crime, the lower court failed to take into
consideration the privileged mitigating circumstance of minority, appellant being only
seventeen (17) years old at the time of the commission of the crime.

For the State, the Office of the Solicitor General17 contends that Colo was released after
investigation, suggesting the insufficiency of evidence to implicate him. Further, the
OSG belies the imputation of ill-motive on the part of Colo to testify against appellant
considering that the alleged quarrel over money was brought up to explain why
appellant was no longer living with Colo, not why Colo would implicate appellant. The
OSG also contends that there is also no standard form of behavior when one is
confronted with a shocking incident. Hence, the OSG prays for the affirmance of the
conviction for murder since the killing is qualified by abuse of superior strength. But, it
recommends that indemnity be reduced to P50,000.00 pursuant to existing
jurisprudence.

In sum, the issues center on the credibility of the prosecution witness Colo and the
sufficiency of the circumstantial evidence to convict appellant of the crime charged.

Anent the issue of credibility of witnesses, the elementary rule is that appellate courts
will generally not disturb the findings of the trial court. The latter is in a better position
to decide the question, having heard the witnesses themselves and observed their
deportment and manner of testifying during the trial, unless it has plainly overlooked
certain facts of substance and value that, if considered, might affect the result of the
case.18 The rule admits of certain exceptions, namely: (1) when patent inconsistencies
in the statements of witnesses are ignored by the trial court, or (2) when the
conclusions arrived at are clearly unsupported by the evidence.19 No inconsistencies in
Colo's testimony were pointed out by appellant. Neither does appellant contend that the
trial court erred in relying on the evidence on record.

Appellant attempts to impeach the testimony at this late stage of the proceeding. The
records show that appellant was afforded ample opportunity to cross examine Colo and
to demonstrate any falsity or error in his allegedly biased testimony. Appellant failed,
however, to undermine Colos credibility.

The fact that a witness may have been investigated in connection with the commission
of the crime and that he had a previous quarrel with appellant are no grounds for
disqualification of a witness under Section 20 of Rule 130 of he Rules of Court. By itself,
prejudice against an accused cannot warrant the disqualification of witnesses or the
total disregard of their testimonies.20 Under the same rule, in general, any person can
testify in court, regardless of personal interest in a case. At any rate, these
circumstances may affect the credibility of the witness, the assessment of which is
within the province of the trial court. Anent his motive in testifying, Colo repeatedly
insisted that he offered to testify because he pitied the mother of the victim who could
find no witnesses willing to shed light on the death of her daughter.21 The foregoing
factors considered, we find no cogent reason to overturn the factual findings of the trial
court.

As to the sufficiency of evidence to convict appellant, we have likewise held that direct
evidence of the commission of a crime is not the only matrix wherefrom a trial court
may draw its conclusion and finding of guilt.22 Under Section 4 of Rule 130 of the Rules
of Court, conviction may be had even on circumstantial evidence provided three
requisites concur: (1) there is more than one circumstance; (2) the facts from which
the inferences are derived are proven; and (3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt.

The following circumstances, when pieced together, lead to the ineluctable conclusion
that appellant stabbed the victim: (1) Appellant, by his own admission, was at the locus
criminis at around the time of stabbing incident.23 (2) He was seen leaving the hut,
barely seconds after the killing, by witness Colo.24 (3) He was seen leaving the hut
holding a bloodied knife, and his t shirt and hands drenched with blood.25 (4) The knife,
which had one blunt extremity and one sharp extremity , was presented in evidence,
was akin to the knife used to inflict the wounds sustained by the victim.26 (5) He was
heard exclaiming "pang lima ire"  referring to the victim and "pang-anim ka' referring to
Colo.27 (6) Appellant, still holding the knife, even chased Colo, but eventually left when
he could not find Colo.28
cräläwvirtualibräry

The most incriminating piece of evidence against appellant is Colo's testimony that he
saw appellant holding a bloodied curved knife, with his t- shirt and hands drenched with
blood, leaving the locus criminis. Thus, in People v. Malimit,29 one of the circumstantial
evidence considered in convicting appellant of the crime of Robbery with Homicide is
the testimony of two witnesses that they saw appellant holding a blood-stained bolo in
his right hand, rushing out of the victim's store mere seconds prior to their discovery of
the crime.

For circumstantial evidence to be sufficient to support a conviction, all circumstances

must be consistent with each other, consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with the hypothesis that he is innocent and
with every other rational hypothesis except that of guilt.30 Thus, conviction based on
circumstantial evidence can be upheld, provided the circumstances proven constitute an
unbroken chain which leads to one fair and reasonable conclusion that points to the
accused, to the exclusion of all others, as the guilty person,31 a conclusion adequately
proven in this case.

Appellant's defense of denial is unavailing. For the defense of denial and alibi to
prosper, it must be clearly established by positive, clear and satisfactory proof that (1)
the accused was somewhere else when the offense was committed, and (2) it was
physically impossible for the accused to have been physically present at the scene of
the crime or its immediate vicinity at the time of its commission.32 Appellant was right
smack in the midst of the locus criminis  at the time of the commission of the crime.
Hence, his defense of denial and alibi miserably failed to comply with the strict
requirements of time and place.33 cräläwvirtualibräry

As to the crime committed, the Information alleged three qualifying circumstances -

abuse of superior strength, evident premeditation, and treachery. The trial court
appreciated abuse of superior strength and evident premeditation without specifying
which one qualified the crime to murder. We find, however, that only abuse of superior
strength qualified the killing to murder.

In several cases,34 we have held that an attack made by a man with a deadly weapon
upon an unarmed and defenseless woman constitutes the circumstance of abuse of that
superiority which his sex and the weapon used in the act afforded him, and from which
the woman was unable to defend herself. This is the exact scenario in this case.

Evident premeditation, however, was not sufficiently proven by the prosecution. The
following requisites must be established before evident premeditation may be
considered in imposing the proper penalty: (a) the time when the accused determined
to commit the crime; (b) an act manifestly indicating that the accused clung to his
determination; and (c) a sufficient lapse of time between such determination and
execution to allow him to reflect upon the consequences of his act.35 Given the
attendant factual circumstances in this case, we find them insufficient to establish
evident premeditation.

Treachery likewise did not attend the commission of the crime. The qualifying
circumstance of treachery can not be taken into consideration in the absence of
evidence showing the manner of attack and what ensued inside the hut. Nobody
witnessed the actual killing, only its immediate aftermath. Where treachery is alleged,
the manner of attack must be proven.36 . It cannot be presumed or concluded merely
on the basis of the resulting crime.37 When no particulars are known regarding the
manner in which the aggression was made or how the act which resulted in the death of
the victim began and developed, it cannot be established from mere supposition that
the accused perpetrated the killing with treachery.38 cräläwvirtualibräry

The trial court erred in appreciating nighttime as a generic aggravating circumstance.

Nighttime only becomes an aggravating circumstance when (1) it is especially sought
by the offender; (2) it is taken advantage of by him; or (3) it facilitates the commission
of the crime by ensuring the offender's immunity from capture.39 Here, other than the
time of the crime, there is nothing else to suggest that appellant deliberately availed
himself or took advantage of the circumstances of nighttime. Further, when the place of
the crime is illuminated by light, as in this case, nighttime is not aggravating.40 cräläwvirtualibräry

In sum, we find the crime committed by appellant to be murder because killing was
qualified by abuse of superior strength. At the time of the commission f the crime, the
penalty for murder was reclusion temporal  maximum to death.41 Appellant having been
born on May 16, 1976,42 he was 17 years, 1 month and 15 days old, at the time of the
commission of the crime. The existence of the privileged mitigating circumstance of
minority requires the imposition of the penalty next lower in degree43 which is prision
mayor  maximum to reclusion temporal medium. Applying the Indeterminate Sentence
Law, the maximum penalty to be imposed upon appellant shall be taken from the
medium period of the imposable penalty, which is reclusion temporal minimum, while
the minimum shall be taken from the penalty next lower in degree, which is prision
correccional  maximum to prision mayor  medium.

As to the amount of damages, the death indemnity should be lowered to P50,000.00

pursuant to existing jurisprudence.44 As to actual damages, the records do not contain
any receipts for the funeral expenses incurred by the family of the victim. The mother
of the victim likewise did not testify as to the moral damages sustained as a result of
the death of her daughter. Hence, for lack of competent proof, we cannot award either
actual or moral damages.45 cräläwvirtualibräry

WHEREFORE , the decision of the trial court finding appellant Madelo Espina Caasares
guilty beyond reasonable doubt of the crime of murder is hereby AFFIRMED WITH
MODIFICATION regarding the penalty imposed so that appellant is hereby sentenced to
an indeterminate prison term of four (4) years, ten (10) months and twenty (20) days
of prision correccional  maximum as minimum, to twelve (12) years, four (4) months
and ten (10) days of reclusion temporal  minimum as maximum, to pay the heirs of the
victim the amount of P50,000.00 as death indemnity, and to pay the costs.

SO ORDERED.

People v. Jugueta, G.R. No. 202124, April 5, 2016

G.R. No. 202124

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
IRENEO JUGUETA, Accused-Appellant.

DECISION

PERALTA, J.:

This resolves the appeal from the Decision   of the Court of Appeals (CA) dated January 30, 2012 in
1

CA-G.R. CR HC No. 03252. The CA affirmed the judgments of the Regional Trial Court (RTC),
Branch 61, Gumaca, Quezon, finding accused-appellant Ireneo Jugueta y Flores guilty beyond
reasonable doubt of Double Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in
Criminal Case No. 7702-G.
In Criminal Case No. 7698-G, appellant was charged with Double Murder, defined and penalized
under Article 248 of the Revised Penal Code, allegedly committed as follows:

That on or about the 6th day of June 2002, at about 9:00 o'clock in the evening, at Barangay Caridad
Ilaya, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a caliber.22 firearm, with intent to kill,
qualified by treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot with said firearm Mary Grace Divina, a minor, 13 years old, who
suffered the following:

"Gunshot wound -

Point of Entry – lower abdomen, right, 2 cm. from the midline and 6 cm. from the level of the
umbilicus, directed upward toward the left upper abdomen."

and Claudine Divina, a minor, 3 ½ years of age, who suffered the following:

"Gunshot wound -

Point of Entry - 9th ICS along the mid-axillary line, right, 1 cm. diameter

Point of Exit - 7th ICS mid-axillary line, left;"

which directly caused their instant death.

That the crime committed in the dwelling of the offended party who had not given provocation for the
attack and the accused took advantage of nighttime to facilitate the commission of the offense.

Contrary to law. 2

In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger San Miguel, was
charged with Multiple Attempted Murder, allegedly committed as follows:

That on or about 9:00 o’clock in the evening of 6th day of June, 2002, at Barangay Caridad Ilaya,
Municipality of Atimonan, Province of Quezon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually
helping one another, armed with short firearms of undetermined calibres, with intent to kill, qualified
by treachery, with evident premeditation and abuse of superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault, and shoot with the said firearms the house occupied by
the family of Norberto Divina, thereby commencing the commission of the crime of Murder, directly
by overt acts, but did not perform all the acts of execution which would have produced it by reason of
some cause or accident other than the spontaneous desistance of the accused, that is, the
occupants Norberto Divina, his wife Maricel Divina and children Elizabeth Divina and Judy Ann
Divina, both elementary pupils and who are minors, were not hit.

CONTRARY TO LAW. 3

Roger San Miguel, however, moved for reinvestigation of the case against them. At said
proceedings, one Danilo Fajarillo submitted his sworn statement stating that on June 6, 2002, he
saw appellant with a certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm while the other two had no participation in the shooting
incident. Fajarillo further stated that Roger San Miguel was not present at the crime scene. Based on
the sworn statement of Fajarillo, the Provincial Prosecutor found no prima facie case against Gilbert
Estores and Roger San Miguel.  Thus, upon motion of the prosecution, the case for Attempted
4

Murder against Gilbert Estores and Roger San Miguel was dismissed, and trial proceeded only as to
appellant.5

At the trial, the prosecution presented the testimonies of Norberto Divina, the victim, and Dr. Lourdes
Taguinod who executed the Medico-Legal Certificate and confirmed that the children of Norberto,
namely, Mary Grace and Claudine, died from gunshot wounds. Dr. Taguinod noted that the
trajectory of the bullet wounds showed that the victims were at a higher location than the shooter,
but she could not tell what kind of ammunitions were used. 6

Norberto testified that the appellant is his brother-in-law. He recounted that in the evening of June 6,
2002, as his entire family lay down on the floor of their one-room nipa hut to sleep, the "sack" walling
of their hut was suddenly stripped off, and only the supporting bamboo (fences) remained. With the
covering of the wall gone, the three (3) men responsible for the deed came into view. Norberto
clearly saw their faces which were illuminated by the light of a gas lamp hanging in their small hut.
Norberto identified the 3 men as appellant, Gilbert Estores and Roger San Miguel.

The 3 men ordered Norberto to come down from his house, but he refused to do so. The men then
uttered, "Magdasal ka na at katapusan mo na ngayon." Norberto pleaded with them, saying,
"Maawa kayo sa amin, matanda na ako at marami akong anak. Anong kasalanan ko sa inyo?"
Despite such plea for mercy, a gunshot was fired, and Norberto immediately threw his body over his
children and wife in an attempt to protect them from being hit. Thereafter, he heard successive
gunshots being fired in the direction where his family huddled together in their hut.7

When the volley of shots ceased and the three (3) men left, Norberto saw that his two (2) young
daughters were wounded. His wife went out of their house to ask for help from neighbors, while he
and his older daughter carried the two (2) wounded children out to the street. His daughter Mary
Grace died on the way to the hospital, while Claudine expired at the hospital despite the doctors'
attempts to revive her.8

In answer to questions of what could have prompted such an attack from appellant, Norberto replied
that he had a previous altercation with appellant who was angered by the fact that he (Norberto) filed
a case against appellant's two other brothers for molesting his daughter. 9

On the other hand, appellant was only able to proffer denial and alibi as his defense. Appellant's
testimony, along with those of Gilbert Estores, Roger San Miguel, Isidro San Miguel and Ruben
Alegre, was that he (appellant) was just watching TV at the house of Isidro San Miguel, where he
had been living for several years, at the time the shooting incident occurred. However, he and the
other witnesses admitted that said house was a mere five-minute walk away from the crime scene. 10

Finding appellant’s defense to be weak, and ascribing more credence to the testimony of Norberto,
the trial court ruled that the evidence clearly established that appellant, together with two other
assailants, conspired to shoot and kill the family of Norberto. Appellant was then convicted of Double
Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in Criminal Case No. 7702-G.

The dispositive portion of the trial court’s judgment in Criminal Case No. 7698-G reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond
reasonable doubt for Double Murder defined and punished under Article 248 of the Revised Penal
Code and is hereby sentenced to suffer Reclusion Perpetua for the death of Mary Grace Divina and
to indemnify her heirs in the amount of Php50,000.00 and another to suffer Reclusion Perpetua for
the death of Claudine Divina and accused is further ordered to indemnify the heirs of Claudine
Divina in the sum of Php50,000.00. In addition, he is hereby ordered to pay the heirs of the victims
actual damages in the amount of Php16,150.00 and to pay for the costs.

SO ORDERED. 11

On the other hand, the dispositive portion of the trial court’s judgment in Criminal Case No. 7702-G,
reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond
reasonable doubt for Multiple Attempted Murder defined and penalized under Article 248 in relation
to Article 51 of the Revised Penal Code and is hereby sentenced to suffer the penalty of FOUR (4)
YEARS and TWO (2) MONTHS of Prision Correccional as minimum to EIGHT (8) YEARS and ONE
(1) DAY of Prision Mayor as maximum for each of the offended parties; Norberto Divina, Maricel
Divina, Elizabeth Divina and Judy Ann Divina. Further, accused is ordered to pay for the costs of the
suit.

SO ORDERED. 12

Aggrieved by the trial court's judgments, appellant appealed to the CA. On January 30, 2012, the CA
rendered a Decision affirming appellant's conviction for the crimes charged. 13

Dissatisfied with the CA Decision, appellant elevated the case to this Court. On July 30, 2012, the
Court issued a Resolution  notifying the parties that they may submit their respective Supplemental
14

Briefs. Both parties manifested that they will no longer submit supplemental briefs since they had
exhaustively discussed their positions before the CA. 15

The main issue advanced in the Appellant's Brief deals with the inconsistencies in Norberto's
testimony, such as his failure to state from the beginning that all three assailants had guns, and to
categorically identify appellant as the one holding the gun used to kill Norberto’s children.

The appeal is unmeritorious.

At the outset, it must be stressed that factual findings of the trial court, its assessment of the
credibility of witnesses and the probative weight of their testimonies, and the conclusions based on
these factual findings are to be given the highest respect. Thus, generally, the Court will not
recalibrate and re-examine evidence that had been analyzed and ruled upon by the trial court and
affirmed by the CA. 16

The evidence on record fully supports the trial court's factual finding, as affirmed by the CA, that
appellant acted in concert with two other individuals, all three of them carrying firearms and
simultaneously firing at Norberto and his family, killing his two young daughters. Norberto clearly
saw all of the three assailants with their firearms as there is illumination coming from a lamp inside
their house that had been laid bare after its walling was stripped off, to wit:

Q: When the wall of your house was stripped off by these three persons at the same time, do you
have light in your house?

A: Yes, sir.
Q: What kind of light was there?

A: A gas lamp.

Q: Where was the gas lamp placed at that time?

A: In the middle of our house.

xxxx

Q: when did they fire a shot?

A: On the same night, when they had stripped off the wallings.

Q: How many gunshots did you hear?

A: Only one.

Q: Do you know the sound of a gunshot? A firearm?

A: Yes, sir, it is loud? (sic)

xxxx

Q: After the first shot, was there any second shot?

A: After that, successive fire shot (sic) followed and my youngest and eldest daughters were hit.

xxxx

Q: How many of the three were holding guns at that time?

A: All of them.

Q: You mean to tell the honorable court that these three persons were

having one firearm each?

A: Yes, sir.

Q: And they fired shots at the same time?

A: Yes, sir.

Q: To what direction these three persons fired (sic) their firearms during that night?

A: To the place where we were.

Q: When those three persons were firing their respective firearms, what was your position then?
A: I ordered my children to lie down.

Q: How about you, what was your position when you were ordering your children to lie down?

A: (witness demonstrated his position as if covering his children with his body and ordering them to
line (sic) down face down)

Q: Mr. Witness, for how long did these three persons fire shots at your house?

A: Less than five minutes, sir.

Q: After they fired their shots, they left your house?

A: Yes, sir.

Q: And when these persons left your house, you inspected your children to see what happened to
them?

A: Yes, sir, they were hit.

xxx 17

Appellant and the two other malefactors are equally responsible for the death of Norberto's
daughters because, as ruled by the trial court, they clearly conspired to kill Norberto's family.
Conspiracy exists when two or more persons come to an agreement regarding the commission of a
crime and decide to commit it. Proof of a prior meeting between the perpetrators to discuss the
commission of the crime is not necessary as long as their concerted acts reveal a common design
and unity of purpose. In such case, the act of one is the act of all.18 Here, the three men
undoubtedly acted in concert as they went to the house of Norberto together, each with his own
firearm. It is, therefore, no longer necessary to identify and prove that it is the bullet particularly fired
from appellant's firearm that killed the children.

Murder is defined under Article 248 of the Revised Penal Code as the unlawful killing of a person,
which is not parricide or infanticide, attended by circumstances such as treachery or evident
premeditation.  The presence of any one of the circumstances enumerated in Article 248 of the
19

Code is sufficient to qualify a killing as murder.  The trial court correctly ruled that appellant is liable
20

for murder because treachery attended the killing of Norberto’s two children, thus:

x x x Evidence adduced show that the family of Norberto Divina, were all lying down side by side
about to sleep on June 6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made
of sack was stripped off by [appellant] Ireneo Jugueta, Roger San Miguel and Gilberto Alegre (sic)
[Gilbert Estores]. They ordered him to go out of their house and when he refused despite his plea for
mercy, they fired at them having hit and killed his two (2) daughters. The family of Norberto Divina
were unarmed and his children were at very tender ages. Mary Grace Divina and Claudine who were
shot and killed were 13 years old and 3 ½ years old respectively. In this case, the victims were
defenseless and manifestly overpowered by armed assailants when they were gunned down. There
was clear showing that the attack was made suddenly and unexpectedly as to render the victims
helpless and unable to defend themselves. Norberto and his wife and his children could have
already been asleep at that time of the night. x x x  21
Verily, the presence of treachery qualified the killing of the hapless children to murder. As held
in People v. Fallorina,  the essence of treachery is the sudden and unexpected attack on an
22

unsuspecting victim without the slightest provocation on his part. Minor children, who by reason of
their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a
child, treachery exists.

As to the charge of multiple attempted murder, the last paragraph of Article 6 of the Revised Penal
Code states that a felony is attempted when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should produce the felony
by reason of some cause or accident other than his own spontaneous desistance. In Esqueda v.
People,  the Court held:
23

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim, or frustrated or
attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim.
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in
the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) the words uttered by the offender at the time the injuries
are inflicted by him on the victim.

In this case, the prosecution has clearly established the intent to kill on the part of appellant as
shown by the use of firearms, the words uttered during, as well as the manner of, the commission of
24

the crime. The Court thus quotes with approval the trial court’s finding that appellant is liable for
attempted murder, viz.:

In the case at bar, the perpetrators who acted in concert commenced the felony of murder first by
suddenly stripping off the wall of their house, followed by successive firing at the intended victims
when Norberto Divina refused to go out of the house as ordered by them. If only there were good in
aiming their target, not only Mary Grace and Claudine had been killed but surely all the rest of the
family would surely have died. Hence, perpetrators were liable for Murder of Mary Grace Divina and
Claudine Divina but for Multiple Attempted Murder for Norberto Divina, Maricel Divina, Elizabeth
Divina and Judy Ann Divina. But as [appellant] Ireneo Jugueta was the only one charged in this
case, he alone is liable for the crime committed. 25

Meanwhile, the supposed inconsistencies in Norberto's testimony, i.e., that he failed to state from the
very beginning that all three assailants were carrying firearms, and that it was the shots from
appellant’s firearm that killed the children, are too trivial and inconsequential to put a dent on said
witness's credibility. An examination of Norberto's testimony would show that there are no real
inconsistencies to speak of. As ruled in People v. Cabtalan,  "[m]inor inconsistencies and
26

discrepancies pertaining to trivial matters do not affect the credibility of witnesses, as well as their
positive identification of the accused as the perpetrators of the crime."  Both the trial court and the
27

CA found Norberto's candid and straightforward testimony to be worthy of belief and this Court sees
no reason why it should not conform to the principle reiterated in Medina, Jr. v. People  that:
28

Time and again, this Court has deferred to the trial court's factual findings and evaluation of
the credibility of witnesses, especially when affirmed by the CA, in the absence of any clear
showing that the trial court overlooked or misconstrued cogent facts and circumstances that
would justify altering or revising such findings and evaluation. This is because the trial court's
determination proceeds from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination, thereby placing the trial
court in unique position to assess the witnesses' credibility and to appreciate their
truthfulness, honesty and candor x x x. 29
The records of this case, particularly the testimonies of the witnesses, reveal no outstanding or
exceptional circumstance to justify a deviation from such long-standing principle. There is no cogent
reason to overturn the trial court's ruling that the prosecution evidence, particularly the testimony of
Norberto Divina identifying appellant as one of the assailants, is worthy of belief. Thus, the
prosecution evidence established beyond any reasonable doubt that appellant is one of the
perpetrators of the crime.

However, the Court must make a clarification as to the nomenclature used by the trial court to
identify the crimes for which appellant was penalized. There is some confusion caused by the trial
court's use of the terms "Double Murder" and "Multiple Attempted Murder" in convicting appellant,
and yet imposing penalties which nevertheless show that the trial court meant to penalize appellant
for two (2) separate counts of Murder and four (4) counts of Attempted Murder.

The facts, as alleged in the Information in Criminal Case No. 7698-G, and as proven during trial,
show that appellant is guilty of 2 counts of the crime of Murder and not Double Murder, as the killing
of the victims was not the result of a single act but of several acts of appellant and his cohorts. In the
same vein, appellant is also guilty of 4 counts of the crime of Attempted Murder and not Multiple
Attempted Murder in Criminal Case No. 7702-G. It bears stressing that the Informations in this case
failed to comply with the requirement in Section 13, Rule 110 of the Revised Rules of Court that an
information must charge only one offense.

As a general rule, a complaint or information must charge only one offense, otherwise, the same is
defective. The reason for the rule is stated in People of the Philippines and AAA v. Court of Appeals,
21st Division, Mindanao Station, et al.,  thus:
30

The rationale behind this rule prohibiting duplicitous complaints or informations is to give the
accused the necessary knowledge of the charge against him and enable him to sufficiently prepare
for his defense. The State should not heap upon the accused two or more charges which might
confuse him in his defense. Non-compliance with this rule is a ground for quashing the duplicitous
complaint or information under Rule 117 of the Rules on Criminal Procedure and the accused may
raise the same in a motion to quash before he enters his plea, otherwise, the defect is deemed
waived.

However, since appellant entered a plea of not guilty during arraignment and failed to move for the
quashal of the Informations, he is deemed to have waived his right to question the same. Section 9
of Rule 117 provides that "[t]he failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of any objections except those
based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."

It is also well-settled that when two or more offenses are charged in a single complaint or information
but the accused fails to object to it before trial, the court may convict him of as many offenses as are
charged and proved, and impose upon him the proper penalty for each offense. 31

Appellant can therefore be held liable for all the crimes alleged in the Informations in Criminal Case
Nos. 7698-G and 7702-G, i.e., 2 counts of murder and 4 counts of attempted murder, respectively,
and proven during trial.

Meanwhile, in People v. Nelmida,  the Court explained the concept of a complex crime as defined in
32

Article 4833 of the Revised Penal Code, thus:

In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and
in the conscience of the offender they constitute only one crime, thus, only one penalty is imposed.
There are two kinds of complex crime. The first is known as a compound crime, or when a single act
constitutes two or more grave or less grave felonies while the other is known as a complex crime
proper, or when an offense is a necessary means for committing the other. The classic example of
the first kind is when a single bullet results in the death of two or more persons. A different rule
governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shot, such acts constitute separate and distinct crimes. 34

Here, the facts surrounding the shooting incident clearly show that appellant and the two others, in
firing successive and indiscriminate shots at the family of Norberto from their respective firearms,
intended to kill not only Norberto, but his entire family. When several gunmen, as in this case,
indiscriminately fire a series of shots at a group of people, it shows their intention to kill several
individuals. Hence, they are committing not only one crime. What appellant and his cohorts
committed cannot be classified as a complex crime because as held in People v. Nelmida,  "each35

act by each gunman pulling the trigger of their respective firearms, aiming each particular moment at
different persons constitute distinct and individual acts which cannot give rise to a complex crime." 36

Furthermore, the Court notes that both the trial court and the CA failed to take into account dwelling
as an ordinary, aggravating circumstance, despite the fact that the Informations in Criminal Case
Nos. 7698-G and 7702-G contain sufficient allegations to that effect, to wit:

Criminal Case No. 7698-G for Double Murder:

That the crime was committed in the dwelling of the offended party who had not given provocation
for the attack and the accused took advantage of nighttime to facilitate the commission of the
offense.37

Criminal Case No. 7702-G for Multiple Attempted Murder:

x x x the above-named accused, conspiring and confederating together and mutually helping one
another, armed with short firearms of undetermined calibres, with intent to kill, qualified by treachery,
with evident premeditation and abuse of superior strength, did then and there wilfully, unlawfully and
feloniously attack, assault, and shoot with the said firearms the house occupied by the family of
Norberto Divina, thereby commencing the commission of the crime of Murder, directly by overt acts,
but did not perform all the acts of execution which would have produced it by reason of some cause
or accident other than the spontaneous desistance of the accused x x x 38

In People v. Agcanas,  the Court stressed that "[i]t has been held in a long line of cases that dwelling
39

is aggravating because of the sanctity of privacy which the law accords to human abode. He who
goes to another's house to hurt him or do him wrong is more guilty than he who offends him
elsewhere." Dwelling aggravates a felony where the crime is committed in the dwelling of the
offended party provided that the latter has not given provocation therefor.  The testimony of
40

Norberto established the fact that the group of appellant violated the victims' home by destroying the
same and attacking his entire family therein, without provocation on the part of the latter. Hence, the
trial court should have appreciated dwelling as an ordinary aggravating circumstance.

In view of the attendant ordinary aggravating circumstance, the Court must modify the penalties
imposed on appellant. Murder is punishable by reclusion perpetua to death, thus, with an ordinary
aggravating circumstance of dwelling, the imposable penalty is death for each of two (2) counts of
murder.  However, pursuant to Republic Act (RA) No. 9346, proscribing the imposition of the death
41

penalty, the penalty to be imposed on appellant should be reclusion perpetua for each of the two (2)
counts of murder without eligibility for parole. With regard to the four (4) counts of attempted murder,
the penalty prescribed for each count is prision mayor. With one ordinary aggravating circumstance,
the penalty should be imposed in its maximum period. Applying the Indeterminate Sentence Law,
the maximum penalty should be from ten (10) years and one (1) day to twelve (12) years of prision
mayor, while the minimum shall be taken from the penalty next lower in degree, i.e., prision
correccional, in any of its periods, or anywhere from six (6) months and one (1) day to six (6) years.
This Court finds it apt to impose on appellant the indeterminate penalty of four (4) years, two (2)
months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day
of prision mayor, as minimum, for each of the four (4) counts of attempted murder.

Anent the award of damages, the Court deems it proper to address the matter in detail as regards
criminal cases where the imposable penalty is reclusion perpetua to death. Generally, in these types
of criminal cases, there are three kinds of damages awarded by the Court; namely: civil indemnity,
moral, and exemplary damages. Likewise, actual damages may be awarded or temperate damages
in some instances.

First, civil indemnity ex delicto is the indemnity authorized in our criminal law for the offended party,
in the amount authorized by the prevailing judicial policy and apart from other proven actual
damages, which itself is equivalent to actual or compensatory damages in civil law.  This award
42

stems from Article 100 of the RPC which states, "Every person criminally liable for a felony is also
civilly liable."

It is to be noted that civil indemnity is, technically, not a penalty or a fine; hence, it can be increased
by the Court when appropriate.  Article 2206 of the Civil Code provides:
43

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity
at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article
291, the recipient who is not an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to be fixed by the
court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of
the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. 44

The second type of damages the Court awards are moral damages, which are also compensatory in
nature. Del Mundo v. Court of Appeals  expounded on the nature and purpose of moral
45

damages, viz.:

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such
as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the concept of grants, not punitive or
corrective in nature, calculated to compensate the claimant for the injury suffered. Although
incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages
may be awarded, the amount of indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have
sprung from any of the cases expressed in Article 2219  and Article 2220  of the Civil Code. x x x.
46 47

Similarly, in American jurisprudence, moral damages are treated as "compensatory damages

awarded for mental pain and suffering or mental anguish resulting from a wrong."  They may also be
48

considered and allowed "for resulting pain and suffering, and for humiliation, indignity, and vexation
suffered by the plaintiff as result of his or her assailant's conduct, as well as the factors of
provocation, the reasonableness of the force used, the attendant humiliating circumstances, the sex
of the victim, [and] mental distress." 49

The rationale for awarding moral damages has been explained in Lambert v. Heirs of Rey Castillon:
"[T]he award of moral damages is aimed at a restoration, within the limits possible, of the spiritual
status quo ante; and therefore, it must be proportionate to the suffering inflicted."
50

Corollarily, moral damages under Article 2220  of the Civil Code also does not fix the amount of
51

damages that can be awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil indemnity. 52

Finally, the Civil Code of the Philippines provides, in respect to exemplary damages, thus:

ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.

ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed
when the crime was committed with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended party.

Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to
serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably. In common law, there is preference in the
use of exemplary damages when the award is to account for injury to feelings and for the sense of
indignity and humiliation suffered by a person as a result of an injury that has been maliciously and
wantonly inflicted,  the theory being that there should be compensation for the hurt caused by the
53

highly reprehensible conduct of the defendant – associated with such circumstances as willfulness,
wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud  –54

that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those
species of damages that may be awarded against a person to punish him for his outrageous
conduct. In either case, these damages are intended in good measure to deter the wrongdoer and
others like him from similar conduct in the future. 55

The term aggravating circumstances used by the Civil Code, the law not having specified otherwise,
is to be understood in its broad or generic sense. The commission of an offense has a two-pronged
effect, one on the public as it breaches the social order and the other upon the private victim as it
causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier
punishment for the accused and by an award of additional damages to the victim. The increase of
the penalty or a shift to a graver felony underscores the exacerbation of the offense by the
attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike
the criminal liability which is basically a State concern, the award of damages, however, is likewise, if
not primarily, intended for the offended party who suffers thereby. It would make little sense for an
award of exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying
nature of an aggravating circumstance is a distinction that should only be of consequence to the
criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case,
an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an
award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.  56

The reason is fairly obvious as to why the Revised Rules of Criminal Procedure  requires 57

aggravating circumstances, whether ordinary or qualifying, to be stated in the complaint or

information. It is in order not to trample on the constitutional right of an accused to be informed of the
nature of the alleged offense that he or she has committed. A criminal complaint or information
should basically contain the elements of the crime, as well as its qualifying and ordinary aggravating
circumstances, for the court to effectively determine the proper penalty it should impose. This,
however, is not similar in the recovery of civil liability. In the civil aspect, the presence of an
aggravating circumstance, even if not alleged in the information but proven during trial would entitle
the victim to an award of exemplary damages.

Being corrective in nature, exemplary damages, therefore, can be awarded, not only due to the
presence of an aggravating circumstance, but also where the circumstances of the case show the
highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision,
lays down the very basis of the award. Thus, in People v. Matrimonio,  the Court imposed exemplary
58

damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually
abusing their own daughters. Also, in People v. Cristobal,  the Court awarded exemplary damages
59

on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting
a pregnant married woman. In People v. Cañada,  People v. Neverio  and People v. Layco, Sr.,  the
60 61 62

Court awarded exemplary damages to set a public example, to serve as deterrent to elders who
abuse and corrupt the youth, and to protect the latter from sexual abuse.

Existing jurisprudence pegs the award of exemplary damages at ₱30,000.00,  despite the lack of
63

any aggravating circumstance. The Court finds it proper to increase the amount to ₱50,000.00 in
order to deter similar conduct.

If, however, the penalty for the crime committed is death, which cannot be imposed because of the
provisions of R.A. No. 9346, prevailing jurisprudence  sets the amount of ₱100,000.00 as exemplary
64

damages.

Before awarding any of the above mentioned damages, the Court, however, must first consider the
penalty imposed by law. Under RA 7659 or An Act to Impose the Death Penalty on Certain Heinous
Crimes, Amending for that Purpose the Revised Penal Laws, and for Other Purposes, certain crimes
under the RPC and special penal laws were amended to impose the death penalty under certain
circumstances.  Under the same law, the following crimes are punishable by reclusion perpetua:
65

piracy in general,  mutiny on the high seas,  and simple rape.  For the following crimes, RA 7659
66 67 68

has imposed the penalty of reclusion perpetua to death: qualified piracy;  qualified bribery under
69

certain circumstances;  parricide;  murder;  infanticide, except when committed by the mother of the
70 71 72

child for the purpose of concealing her dishonor or either of the maternal grandparents for the same
purpose;  kidnapping and serious illegal detention under certain circumstances;  robbery with
73 74

violence against or intimidation of persons under certain circumstances;  destructive arson, except
75

when death results as a consequence of the commission of any of the acts penalized under the
article;  attempted or frustrated rape, when a homicide is committed by reason or on occasion
76

thereof; plunder;  and carnapping, when the driver or occupant of the carnapped motor vehicle is
77

killed or raped in the course of the commission of the carnapping or on the occasion
thereof.  Finally, RA 7659 imposes the death penalty on the following crimes:
78

(a) In qualified bribery, when it is the public officer who asks or demands the gift or present.

(b) In kidnapping and serious illegal detention: (i) when the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any other person; (ii) when
the victim is killed or dies as a consequence of the detention; (iii) when the victim is raped,
subjected to torture or dehumanizing acts.

(c) In destructive arson, when as a consequence of the commission of any of the acts
penalized under Article 320, death results.

(d) In rape: (i) when by reason or on occasion of the rape, the victim becomes insane or
homicide is committed; (ii) when committed with any of the following attendant
circumstances: (1) when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law-spouse of the parent of the victim; (2) when the victim is
under the custody of the police or military authorities; (3) when the rape is committed in full
view of the husband, parent, any of the children or other relatives within the third degree of
consanguinity; (4) when the victim is a religious or a child below seven years old; (5) when
the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease; (6) when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency; and (7) when by reason or on the
occasion of the rape, the victim has suffered permanent physical mutilation.

From these heinous crimes, where the imposable penalties consist of two (2) indivisible penalties or
single indivisible penalty, all of them must be taken in relation to Article 63 of the RPC, which
provides:

Article 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes
a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

1. when in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.
 2. when there are neither mitigating nor aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied.

3. when the commission of the act is attended by some mitigating circumstance and there is
no aggravating circumstance, the lesser penalty shall be applied.

4. when both mitigating and aggravating circumstances attended the commission of the act,
the courts shall reasonably allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation. (Revised Penal Code, Art. 63)

Thus, in order to impose the proper penalty, especially in cases of indivisible penalties, the court has
the duty to ascertain the presence of any mitigating or aggravating circumstances. Accordingly, in
crimes where the imposable penalty is reclusion perpetua to death, the court can impose
either reclusion perpetua or death, depending on the mitigating or aggravating circumstances
present.

But with the enactment of RA 9346 or An Act Prohibiting the Imposition of Death Penalty in the
Philippines, the imposition of death penalty is now prohibited. It provides that in lieu of the death
penalty, the penalty of reclusion perpetua shall be imposed when the law violated makes use of the
nomenclature of the penalties of the RPC. 79

As a result, the death penalty can no longer be imposed. Instead, they have to impose reclusion
perpetua. Despite this, the principal consideration for the award of damages, following the ruling
in People v. Salome  and People v. Quiachon,  is "the penalty provided by law or imposable for the
80 81

offense because of its heinousness, not the public penalty actually imposed on the offender." 82

When the circumstances surrounding the crime would justify the imposition of the death penalty
were it not for RA 9346, the Court has ruled, as early as July 9, 1998 in People v. Victor,  that the
83

award of civil indemnity for the crime of rape when punishable by death should be ₱75,000.00 We
reasoned that "[t]his is not only a reaction to the apathetic societal perception of the penal law and
the financial fluctuations over time, but also an expression of the displeasure of the Court over the
incidence of heinous crimes against chastity."  Such reasoning also applies to all heinous crimes
84

found in RA 7659. The amount was later increased to ₱100,000.00. 85

In addition to this, the Court likewise awards moral damages. In People v. Arizapa,  ₱50,000.00 was
86

awarded as moral damages without need of pleading or proving them, for in rape cases, it is
recognized that the victim's injury is concomitant with and necessarily results from the odious crime
of rape to warrant per se the award of moral damages.  Subsequently, the amount was increased to
87

₱75,000.00 in People v. Soriano  and P100,000.00 in People v. Gambao.

88 89

Essentially, despite the fact that the death penalty cannot be imposed because of RA 9346, the
imposable penalty as provided by the law for the crime, such as those found in RA 7569, must be
used as the basis for awarding damages and not the actual penalty imposed. 1avvphi1

Again, for crimes where the imposable penalty is death in view of the attendance of an ordinary
aggravating circumstance but due to the prohibition to impose the death penalty, the actual penalty
imposed is reclusion perpetua, the latest jurisprudence  pegs the amount of ₱100,000.00 as civil
90

indemnity and ₱100,0000.00 as moral damages. For the qualifying aggravating circumstance and/or
the ordinary aggravating circumstances present, the amount of ₱100,000.00 is awarded as
exemplary damages aside from civil indemnity and moral damages. Regardless of the attendance of
qualifying aggravating circumstance, the exemplary damages shall be fixed at ₱100,000.00. "[T]his
is not only a reaction to the apathetic societal perception of the penal law and the financial
fluctuation over time, but also an expression of the displeasure of the Court over the incidence of
heinous crimes x x x."91

When the circumstances surrounding the crime call for the imposition of reclusion perpetua only,
there being no ordinary aggravating circumstance, the Court rules that the proper amounts should
be ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages and ₱75,000.00 exemplary
damages, regardless of the number of qualifying aggravating circumstances present.

When it comes to compound and complex crimes, although the single act done by the offender
caused several crimes, the fact that those were the result of a single design, the amount of civil
indemnity and moral damages will depend on the penalty and the number of victims. For each of the
victims, the heirs should be properly compensated. If it is multiple murder without any ordinary
aggravating circumstance but merely a qualifying aggravating circumstance, but the penalty imposed
is death because of Art. 48 of the RPC wherein the maximum penalty shall be imposed,  then, for
92

every victim who dies, the heirs shall be indemnified with ₱100,000.00 as civil indemnity,
₱100,000.00 as moral damages and ₱100,000.00 as exemplary damages.

In case of a special complex crime, which is different from a complex crime under Article 48 of the
RPC, the following doctrines are noteworthy:

In People of the Philippines v. Conrado Laog,  this Court ruled that special complex crime, or more
93

properly, a composite crime, has its own definition and special penalty in the Revised Penal Code,
as amended. Justice Regalado, in his Separate Opinion in the case of People v. Barros,  explained
94

that composite crimes are "neither of the same legal basis as nor subject to the rules on complex
crimes in Article 48 [of the Revised Penal Code], since they do not consist of a single act giving rise
to two or more grave or less grave felonies [compound crimes] nor do they involve an offense being
a necessary means to commit another [complex crime proper]. However, just like the regular
complex crimes and the present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed of two or more offenses." 95

In People v. De Leon,  we expounded on the special complex crime of robbery with homicide, as
96

follows:

In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with
homicide perpetrated on the occasion or by reason of the robbery. The intent to commit robbery
must precede the taking of human life. The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide through reckless imprudence or
simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must be
consummated.

It is immaterial that the death would supervene by mere accident; or that the victim of homicide is
other than the victim of robbery, or that two or more persons are killed, or that aside from the
homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the
robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by
reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery
with homicide. The word "homicide" is used in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide.97
In the special complex crime of rape with homicide, the term "homicide" is to be understood in its
generic sense, and includes murder and slight physical injuries committed by reason or on occasion
of the rape.  Hence, even if any or all of the circumstances (treachery, abuse of superior strength
98

and evident premeditation) alleged in the information have been duly established by the prosecution,
the same would not qualify the killing to murder and the crime committed by appellant is still rape
with homicide. As in the case of robbery with homicide, the aggravating circumstance of treachery is
to be considered as a generic aggravating circumstance only. Thus we ruled in People v.
Macabales: 99

Finally, appellants contend that the trial court erred in concluding that the aggravating circumstance
of treachery is present. They aver that treachery applies to crimes against persons and not to crimes
against property. However, we find that the trial court in this case correctly characterized treachery
as a generic aggravating, rather than qualifying, circumstance. Miguel was rendered helpless by
appellants in defending himself when his arms were held by two of the attackers before he was
stabbed with a knife by appellant Macabales, as their other companions surrounded them. In People
v. Salvatierra, we ruled that when alevosia (treachery) obtains in the special complex crime of
robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance.

Robbery with homicide is a composite crime with its own definition and special penalty in the
Revised Penal Code. There is no special complex crime of robbery with murder under the Revised
Penal Code. Here, treachery forms part of the circumstances proven concerning the actual
commission of the complex crime. Logically it could not qualify the homicide to murder but, as
generic aggravating circumstance, it helps determine the penalty to be imposed. 100

Applying the above discussion on special complex crimes, if the penalty is death but it cannot be
imposed due to RA 9346 and what is actually imposed is the penalty of reclusion perpetua, the civil
indemnity and moral damages will be ₱100,000.00 each, and another ₱100,000.00 as exemplary
damages in view of the heinousness of the crime and to set an example. If there is another
composite crime included in a special complex crime and the penalty imposed is death, an additional
₱100,000.00 as civil indemnity, ₱100,000.00 moral damages and ₱100,000.00 exemplary damages
shall be awarded for each composite crime committed.

For example, in case of Robbery with Homicide  wherein three (3) people died as a consequence of
101

the crime, the heirs of the victims shall be entitled to the award of damages as discussed earlier.
This is true, however, only if those who were killed were the victims of the robbery or mere
bystanders and not when those who died were the perpetrators or robbers themselves because the
crime of robbery with homicide may still be committed even if one of the robbers dies.  This is also
102

applicable in robbery with rape where there is more than one victim of rape.

In awarding civil indemnity and moral damages, it is also important to determine the stage in which
the crime was committed and proven during the trial. Article 6 of the RPC provides:

Art. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those
which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when an offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

As discussed earlier, when the crime proven is consummated and the penalty imposed is death but
reduced to reclusion perpetua because of R.A. 9346, the civil indemnity and moral damages that
should be awarded will each be ₱100,000.00 and another ₱100,000.00 for exemplary damages or
when the circumstances of the crime call for the imposition of reclusion perpetua only, the civil
indemnity and moral damages should be ₱75,000.00 each, as well as exemplary damages in the
amount of ₱75,000.00. If, however, the crime proven is in its frustrated stage, the civil indemnity and
moral damages that should be awarded will each be ₱50,000.00, and an award of ₱25,000.00 civil
indemnity and ₱25,000.00 moral damages when the crime proven is in its attempted stage. The
difference in the amounts awarded for the stages is mainly due to the disparity in the outcome of the
crime committed, in the same way that the imposable penalty varies for each stage of the crime. The
said amounts of civil indemnity and moral damages awarded in cases of felonies in their frustrated or
attempted stages shall be the bases when the crimes committed constitute complex crime under
Article 48 of the RPC. For example, in a crime of murder with attempted murder, the amount of civil
indemnity, moral damages and exemplary damages is ₱100,000.00 each, while in the attempted
murder, the civil indemnity, moral damages and exemplary damages is ₱25,000.00 each.

In a special complex crime, like robbery with homicide, if, aside from homicide, several victims
(except the robbers) sustained injuries, they shall likewise be indemnified. It must be remembered
that in a special complex crime, unlike in a complex crime, the component crimes have no attempted
or frustrated stages because the intention of the offender/s is to commit the principal crime which is
to rob but in the process of committing the said crime, another crime is committed. For example, if
on the occasion of a robbery with homicide, other victims sustained injuries, regardless of the
severity, the crime committed is still robbery with homicide as the injuries become part of the crime,
"Homicide", in the special complex crime of robbery with homicide, is understood in its generic sense
and now forms part of the essential element of robbery,  which is the use of violence or the use of
103

force upon anything. Hence, the nature and severity of the injuries sustained by the victims must still
be determined for the purpose of awarding civil indemnity and damages. If a victim suffered mortal
wounds and could have died if not for a timely medical intervention, the victim should be awarded
civil indemnity, moral damages, and exemplary damages equivalent to the damages awarded in a
frustrated stage, and if a victim suffered injuries that are not fatal, an award of civil indemnity, moral
damages and exemplary damages should likewise be awarded equivalent to the damages awarded
in an attempted stage.

In other crimes that resulted in the death of a victim and the penalty consists of divisible penalties,
like homicide, death under tumultuous affray, reckless imprudence resulting to homicide, the civil
indemnity awarded to the heirs of the victim shall be ₱50,000.00 and ₱50,000.00 moral damages
without exemplary damages being awarded. However, an award of ₱50,000.00 exemplary damages
in a crime of homicide shall be added if there is an aggravating circumstance present that has been
proven but not alleged in the information.

Aside from those discussed earlier, the Court also awards temperate damages in certain cases. The
award of ₱25,000.00 as temperate damages in homicide or murder cases is proper when no
evidence of burial and funeral expenses is presented in the trial court.  Under Article 2224 of the
104

Civil Code, temperate damages may be recovered, as it cannot be denied that the heirs of the
victims suffered pecuniary loss although the exact amount was not proved.  In this case, the Court
105

now increases the amount to be awarded as temperate damages to ₱50,000.00.

In the case at bar, the crimes were aggravated by dwelling, and the murders committed were further
made atrocious by the fact that the victims are innocent, defenseless minors – one is a mere 3½-
year-old toddler, and the other a 13-year-old girl. The increase in the amount of awards for damages
is befitting to show not only the Court's, but all of society's outrage over such crimes and wastage of
lives.

In summary:

I. For those crimes  like, Murder,  Parricide,  Serious Intentional

106 107 108

Mutilation,  Infanticide,  and other crimes involving death of a victim where the penalty
109 110

consists of indivisible penalties:

1.1 Where the penalty imposed is death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱75,000.00

ii. Moral damages – ₱75,000.00

iii. Exemplary damages – ₱75,000.00

b. Attempted:

i. Civil indemnity – ₱50,000.00

ii. Exemplary damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated:

 a. Frustrated:

i. Civil indemnity – ₱50,000.00

ii. Moral damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

b. Attempted:

i. Civil indemnity – ₱25,000.00

ii. Moral damages – ₱25,000.00

iii. Exemplary damages – ₱25,000.00

II. For Simple Rape/Qualified Rape:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages  – ₱100,000.00

111

1.2 Where the crime committed was not consummated but merely attempted: 112

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated, but merely attempted:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

 c. Exemplary damages – ₱25,000.00

III. For Complex crimes under Article 48 of the Revised Penal Code where death, injuries, or
sexual abuse results, the civil indemnity, moral damages and exemplary damages will
depend on the penalty, extent of violence and sexual abuse; and the number of victims
where the penalty consists of indivisible penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

The above Rules apply to every victim who dies as a result of the crime committed.
In other complex crimes where death does not result, like in Forcible Abduction with
Rape, the civil indemnity, moral and exemplary damages depend on the prescribed
penalty and the penalty imposed, as the case may be.

IV. For Special Complex Crimes like Robbery with Homicide,  Robbery with113

Rape,  Robbery with Intentional Mutilation,  Robbery with

114 115

Arson,  Rape with Homicide,  Kidnapping with Murder,  Carnapping with Homicide  or
116 117 118 119

Carnapping with Rape,  Highway Robbery with Homicide,  Qualified Piracy,  Arson with
120 121 122

Homicide,  Hazing with Death, Rape, Sodomy or Mutilation  and other crimes with death,
123 124

injuries, and sexual abuse as the composite crimes, where the penalty consists of indivisible
penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the
above if the penalty imposed is Death but reduced to reclusion perpetua although
death did not occur.

1.2 For the victims who suffered mortal/fatal wounds  and could have died if not for
125

a timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

1.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the
above if the penalty imposed is reclusion perpetua.

2.2 For the victims who suffered mortal/fatal wounds and could have died if not for a
timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

 In Robbery with Physical Injuries,  the amount of damages shall likewise be
126

dependent on the nature/severity of the wounds sustained, whether fatal or non-fatal.

The above Rules do not apply if in the crime of Robbery with Homicide, the robber/s
or perpetrator/s are themselves killed or injured in the incident.
1âwphi1

Where the component crime is rape, the above Rules shall likewise apply, and that
for every additional rape committed, whether against the same victim or other
victims, the victims shall be entitled to the same damages unless the other crimes of
rape are treated as separate crimes, in which case, the damages awarded to simple
rape/qualified rape shall apply.

V. In other crimes that result in the death of a victim and the penalty consists of divisible
penalties, i.e., Homicide, Death under Tumultuous Affray, Infanticide to conceal the
dishonour of the offender,  Reckless Imprudence Resulting to Homicide, Duel, Intentional
127

Abortion and Unintentional Abortion, etc.:

1.1 Where the crime was consummated:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

1.2 Where the crime committed was not consummated, except those crimes where
there are no stages, i.e., Reckless Imprudence and Death under tumultuous affray:

a. Frustrated:

i. Civil indemnity – ₱30,000.00

ii. Moral damages – ₱30,000.00

b. Attempted:

i. Civil indemnity – ₱20,000.00

ii. Moral damages – ₱20,000.00

If an aggravating circumstance was proven during the trial, even if not

alleged in the Information,  in addition to the above mentioned amounts as
128

civil indemnity and moral damages, the amount of ₱50,000.00 exemplary

damages for consummated; ₱30,000.00 for frustrated; and ₱20,000.00 for
attempted, shall be awarded.

VI. A. In the crime of Rebellion where the imposable penalty is reclusion perpetua and death
occurs in the course of the rebellion, the heirs of those who died are entitled to the
following:
129

a. Civil indemnity – ₱100,000.00

 b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00 130

B. For the victims who suffered mortal/fatal wounds in the course of the rebellion and
could have died if not for a timely medical intervention, the following shall be
awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

C. For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

VII. In all of the above instances, when no documentary evidence of burial or funeral
expenses is presented in court, the amount of ₱50,000.00 as temperate damages shall be
awarded.

To reiterate, Article 2206 of the Civil Code provides that the minimum amount for awards of civil
indemnity is P3,000.00, but does not provide for a ceiling. Thus, although the minimum amount
cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and
increased when the present circumstance warrants it. 131

Prescinding from the foregoing, for the two (2) counts of murder, attended by the ordinary
aggravating circumstance of dwelling, appellant should be ordered to pay the heirs of the victims the
following damages: (1) ₱100,000.00 as civil indemnity for each of the two children who died; (2)
₱100,000.00 as moral damages for each of the two victims; (3) another ₱100,000.00 as exemplary
damages for each of the two victims; and (4) temperate damages in the amount of ₱50,000.00 for
each of the two deceased. For the four (4) counts of Attempted Murder, appellant should pay
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱50,000.00 as exemplary
damages for each of the four victims. In addition, the civil indemnity, moral damages, exemplary
damages and temperate damages payable by the appellant are subject to interest at the rate of six
percent (6%) per annum from the finality of this decision until fully paid.
132

Lastly, this Court echoes the concern of the trial court regarding the dismissal of the charges against
Gilberto Estores and Roger San Miguel who had been identified by Norberto Divina as the
companions of appellant on the night the shooting occurred. Norberto had been very straightforward
and unwavering in his identification of Estores and San Miguel as the two other people who fired the
gunshots at his family. More significantly, as noted by the prosecutor, the testimonies of Estores and
San Miguel, who insisted they were not at the crime scene, tended to conflict with the sworn
statement of Danilo Fajarillo, which was the basis for the Provincial Prosecutor's ruling that he finds
no probable cause against the two. Danilo Fajarillo's sworn statement said that on June 6, 2002, he
saw appellant with a certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm and the two other people with him had no participation in the
shooting incident. Said circumstances bolster the credibility of Norberto Divina's testimony that
Estores and San Miguel may have been involved in the killing of his two young daughters.

After all, such reinvestigation would not subject Estores and San Miguel to double jeopardy because
the same only attaches if the following requisites are present: (1) a first jeopardy has attached before
the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first. In turn, a first jeopardy attaches only (a) after a valid indictment; (b)
before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e)
when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated
without his express consent.  In this case, the case against Estores and San Miguel was dismissed
133

before they were arraigned. Thus, there can be no double jeopardy to speak of. Let true justice be
served by reinvestigating the real participation, if any, of Estores and San Miguel in the killing of
Mary Grace and Claudine Divina.

WHEREFORE, the instant appeal is DISMISSED. The Decision of the Court of Appeals dated
January 30, 2012 in CA-G.R. CR HC No. 03252 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. 7698-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of two (2) counts of the crime of murder defined
under Article 248 of the Revised Penal Code, attended by the aggravating circumstance of
dwelling, and hereby sentences him to suffer two (2) terms of reclusion perpetua without
eligibility for parole under R.A. 9346. He is ORDERED to PAY the heirs of Mary Grace
Divina and Claudine Divina the following amounts for each of the two victims: (a)
₱100,000.00 as civil indemnity; (b) ₱100,000.00 as moral damages; (c) ₱100,000.00 as
exemplary damages; and (d) ₱50,000.00 as temperate damages.

(2) In Criminal Case No. 7702-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of four (4) counts of the crime of attempted
murder defined and penalized under Article 248 in relation to Article 51 of the Revised Penal
Code, attended by the aggravating circumstance of dwelling, and sentences him to suffer the
indeterminate penalty of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum,
for each of the four (4) counts of attempted murder. He is ORDERED to PAY moral
damages in the amount of P50,000.00, civil indemnity of P50,000.00 and exemplary
damages of PS0,000.00 to each of the four victims, namely, Norberto Divina, Maricel Divina,
Elizabeth Divina and Judy Ann Divina.

(3) Accused-appellant Ireneo Jugueta is also ORDERED to PAY interest at the rate of six

percent (6%) per annum from the time of finality of this decision until fully paid, to be
imposed on the civil indemnity, moral damages, exemplary damages and temperate
damages.

(4) Let the Office of the Prosecutor General, through the Department of Justice,
be FURNISHED a copy of this Decision. The Prosecutor General is DIRECTED to
immediately conduct a REINVESTIGATION on the possible criminal liability of Gilbert
Estores and Roger San Miguel regarding this case. Likewise, let a copy of this Decision be
furnished the Secretary of Justice for his information and guidance.

SO ORDERED.

People v. Bumidang, G.R. No. 130630, December 4, 2000

 [G.R. No. 130630. December 4, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BALIWANG

BUMIDANG, Accused-Appellant.

DECISION

PER CURIAM:

Accused-appellant Baliwang Bumidang (hereafter BALIWANG) was charged before the

Regional Trial Court of Bayombong, Nueva Vizcaya, with the crime of rape in an
information 1 the accusatory portion of which reads as follows: chanrob1es virtual 1aw library

That on or about September 29, 1996, in the Municipality of Villaverde, Province of

Nueva Vizcaya, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd designs, taking advantage of superior strength, and
by means of force, violence, threat and intimidation and with the use of spear, did then
and there wilfully, unlawfully and feloniously have carnal knowledge of Gloria Imbat y
Bumatay against her will, to the damage and prejudice of said Gloria Imbat y
Bumatay. chanrob1es virtua1 1aw 1ibrary

CONTRARY TO LAW.

The information was docketed as Criminal Case No. 3170 and was assigned to Branch
27 of the court.

The prosecution of the case was commenced with the filing on 8 October 1996 of a
complaint for rape with the Municipal Circuit Trial Court (MCTC) of Villaverde-Quezon,
Nueva Vizcaya. After appropriate proceedings, the MCTC, having found a prima facie
case against BALIWANG, forwarded the records of the case to the Office of the
Provincial Prosecutor. 2

At the arraignment 3 on 14 May 1997 BALIWANG entered a plea of not guilty and
thereafter trial ensued.

On 2 June 1997 at around 2:30 a.m., BALIWANG escaped from jail. By reason thereof,
the trial court issued an order to proceed with the trial of the case in absentia. 4

After trial on the merits, the trial court rendered a decision 5 on 10 July 1997, the
dispositive portion of which reads as follows: chanrob1es virtual 1aw library

WHEREFORE, finding the accused GUILTY of rape with the use of a deadly weapon
under Art. 335 of the Revised Penal Code, Accused Baliwang Bumidang is hereby
sentenced to death by lethal injection and to pay the victim the sum of P30, 000.00.

SO ORDERED6 .

The evidence in chief for the prosecution consisted mainly of the testimonies of Gloria
Imbat, the offended party (hereafter Gloria); Melencio Imbat y Reyes, father of Gloria;
and Dr. Elpidio Quines, Municipal Health Officer of the Municipality of Villaverde, Nueva
Vizcaya.

Since BALIWANG had escaped and has remained at large, the defense did not present
any evidence.

The facts of the case are aptly summarized by the trial court in its decision which is
herein quoted verbatim.

On September 29, 1996, at around 2:00 a.m. while father and daughter, namely,
Melencio and Gloria Imbat, were already asleep in their house, the accused Baliwang
Bumidang y Baohan aged 19 years and half-naked, loudly called Melencio Imbat and
asked the latter to open the door. Melencio was aroused from his sleep and he opened
the door downstairs because Bumidang threatened to kill them if the door was not
opened. Accused Bumidang entered and asked the old man to bring him upstairs. While
they were upstairs, Bumidang asked him where he was sleeping. When Melencio
indicated that he slept at the place where they were, Bumidang got a spear at the side
of his (Melencio’s) bed. Pointing the weapon at him in a threatening manner, the
accused ordered him to lie in a prone position which he obeyed because he was afraid.
Then Bumidang asked the room of his unmarried daughter, Gloria, aged 56. Melencio,
80 years old, pointed the room of his daughter which was in the same room but
separated by an aparador. Bumidang went to Gloria’s room, still carrying the spear.
Suddenly, Gloria screamed for help, but the octogenarian remained in a prone position
as Bumidang threatened to kill him if he would help his daughter. Bumidang, a betel
nut-chewing man, approached Gloria and poked the spear at her. She recognized him
because he was lighting the room with a flashlight. The accused ordered her to stand
up and removed her pajama, with the panty going along with it. While the accused was
removing her clothes, she sat and struggled. Bumidang then removed his shortpants
and became completely naked. He used the flashlight to examine her genital. He placed
the spear beside her and whenever she attempted to move, he would point the spear at
her. The accused then went on top of her, inserted his penis into her pudenda. At this
instant, Gloria shouted to her father but the accused pointed the spear at her, and told
her, "can you see this?" The accused then made a pumping motion. After he was sated,
having satisfied his lust, the accused held her breast and kissed her lips. After resting
on top of her, he went to the door and left. Melencio helplessly saw the accused on top
of her daughter but he could not move because he was too afraid and weak. He did not
see how the accused consummated his beastly desire because he was too ashamed to
look at what he was doing to her daughter. Before the accused left, he made the
following threat: "If you will report to the authorities, I will come back and kill all of
you." Gloria then put on her dress. She was trembling. So she went to her father and
slept with him as she was afraid to be alone. She did not immediately report the
incident in the morning because they were afraid of the threat. She reported her ordeal
to Kagawad Rodolfo Pontillan who handed a note to be given to the authorities
(security). The accused was immediately arrested. Gloria submitted herself to the
examination of Dr. Quines on October 1, 1996. Dr. Quines conducted a vaginal
examination which is an internal examination of the vagina. When the physician
introduced his index finger, severe pain was suffered by Gloria. This was due to the
laceration of the hymen at 6:00 o’clock. No spermatozoa was [sic] obtained. The
laceration was about 3 to 5 days old at the time of the examination. 7
The trial court appreciated against BALIWANG the aggravating circumstances of (a)
dwelling, because the crime was committed inside the house of the victim; (b)
nighttime, because the sexual assault was perpetrated at about 2:00 a.m. to facilitate
the commission of the offense; and (c) ignominy, because he used his flashlight to
examine Gloria’s vagina and raped her in the presence of her old father, thereby
making its effects more humiliating. chanrob1es virtua1 1aw 1ibrary

The trial court then concluded that since the crime was committed with a deadly
weapon, the prescribed penalty therefor under Article 335 of the Revised Penal Code,
as amended by R.A. No. 7659, 8 is reclusion perpetua to death, and considering the
presence of three aggravating circumstances, the greater penalty of death should be
imposed pursuant to Article 63 of the same Code.

Pursuant to Article 47 of the Revised Penalty Code, as amended by Section 22 of RA.

No. 7659, the record of the case was forwarded to this Court for automatic review.

In the Brief for the Appellant, BALIWANG submits that the trial court erred in

I. . . .CONVICTING [HIM] DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS

GUILT BEYOND REASONABLE DOUBT.

II. . . . HOLDING THAT THE AGGRAVATING CIRCUMSTANCE OF DWELLING, NIGHTTIME

AND IGNOMINY ATTENDED THE COMMISSION OF THE CRIME.

BALIWANG contends that the declarations of complainant Gloria and of her father
Melencio were inaccurate and of doubtful veracity. Specifically, the allegations in their
sworn statements dated 3 October 1996 that: (1) they allowed BALIWANG to enter
their house in order to forestall the latter from making good his warning of setting their
house on fire; (2) Gloria was awake when BALIWANG made his threats; and (3) Gloria
had identified BALIWANG through his voice; which are different from or inconsistent
with their testimonies during the trial. Such being the case, the trial court should not
have given credit to their testimonies in court.

BALIWANG further argues that the imposition of the death penalty is without factual
and legal basis. The aggravating circumstances of dwelling, nighttime and ignominy
were absent in the instant case. The fact that the alleged crime was committed inside
the house of Gloria cannot be considered as an aggravating circumstance because the
prosecution has failed to show clearly that BALIWANG committed the crime with the
intention to violate the sanctity of Gloria’s abode. There was no showing that
BALIWANG purposely sought the cover of darkness or that nocturnity facilitated the
commission of the crime. The fact that BALIWANG shouted and used a flashlight
thereby revealing his identity to the victim negated the presence of nighttime as an
aggravating circumstance. Ignominy was not present since the alleged examination of
Gloria’s private parts by BALIWANG did not in any manner make the effects of the
crime more humiliating and disgraceful. chanrob1es virtua1 1aw 1ibrary

In the Appellee’s Brief the Office of the Solicitor General (OSG) asserts that
BALIWANG’s criminal complicity was established beyond reasonable doubt through
Gloria’s testimony of her sordid experience which was corroborated by her father’s
declaration that he witnessed BALIWANG heap his sexual depravity on Gloria, and Dr.
Quines’ opinion that the fresh lacerations on Gloria’s hymen may have been caused by
an erect penis. Furthermore, BALIWANG’s unexplained flight erased whatever doubt
there may be on his guilt. The inconsistencies in the sworn declarations of the
prosecution witnesses vis-a-vis their testimonies in open court did not diminish their
credibility for the following reasons: firstly, during the trial, prosecution witnesses
Gloria and Melencio were not confronted with the alleged inconsistencies, pursuant to
Section 13, Rule 132, Revised Rules of Court, in order to afford them an adequate
opportunity to explain the discrepancies; secondly, the sworn statements or affidavits
which are usually taken ex parte do not truly reflect the state of mind of the declarant
and are often inaccurate and incomplete; and, lastly, the inconsistencies pointed to by
the defense refer only to minor details, which all the more strengthen the value of the
testimonies of the witnesses.

The OSG argues that the trial court did not err in holding that dwelling, nighttime and
ignominy were present in the instant case. That BALIWANG committed the crime of
rape inside the house of Gloria, without the latter giving provocation, was sufficient to
support a finding of the presence of the aggravating circumstance of dwelling. It was
not necessary to show that BALIWANG entered the dwelling of the offended party with
the intention to commit the crime thereat. The circumstance of nighttime was
conclusively established by the fact that nocturnity allowed BALIWANG to perpetrate his
dastardly deed with impunity thereby facilitating the commission of the crime. Ignominy
should also be considered because BALIWANG by his acts of examining the genital of
GLORIA and raping her in the presence of her father made the effects of the crime
more humiliating and outrageous.

Finally, the OSG stresses that the severity of the offense committed justifies an award
of P75,000 to the victim as civil indemnity pursuant to current case law.

After a careful and thorough review of the record of the case and of the transcripts of
the testimonies of the witnesses for the prosecution, the Court finds no acceptable
reason to reverse the judgment of the trial court.

It is this Court’s common observation drawn from judicial experience that in most rape
cases the criminal responsibility of the offender almost always depends on the
declaration of the complainant considering that the crime of rape is not usually
committed in the presence of witnesses. 9 Like in many other rape cases, the guilt or
innocence of the accused depends to a large extent on the truthfulness of the offended
party’s testimony. It is therefore axiomatic in rape cases that the testimony of the
offended party be subjected to a careful scrutiny. This particular case is not an
exception. In ascertaining whether to believe the version of the prosecution or that of
the defense, this Court calls to mind the well-entrenched principle that the conclusion of
the trial court as regards the assessment of the credibility of witnesses is generally
viewed as correct and is accorded the highest respect considering that it is in a better
position to discern and weigh the conflicting testimonies of the witnesses during trial.
There are exceptions to this rule, such as when the evaluation was reached arbitrarily
or when the trial court overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which if considered would affect the result of
the case. 10 None of the exceptions is present in this case.chanrob1es virtua1 1aw 1ibrary
Gloria was clear, categorical and convincing when she testified on how she was sexually
ravaged by BALIWANG. She declared: chanrob1es virtual 1aw library

Q: Do you recall where you were in the earning morning of September 29, 1996 at
around 2:00 o’clock?

A: Yes, sir.

Q: Where were you?

A: I was in our house sleeping, sir.

Q: Were you alone?

A: We were two with my father, sir.

Q: While you were sleeping on that time and date, what happened?

A: I felt the accused went near me, sir.

Q: How did you come to know that it was the accused who went near you?

A: He had a flashlight and I recognized him, sir.

x          x           x

Q: What transpired next after Baliwang Bumidang was already at that place where you
were then sleeping?

A: He went near me and suddenly he poked the spear to me and ordered me to stand
up, sir.

Q: What else happened when you were ordered to stand?

A: Upon standing he immediately removed my pajama and that my panty went with it,
sir.

Q: What did you do while the accused was removing your pajama including the panty?

A: I sat and struggled, sir.

Q: What did the accused Bumidang do while you were already sitting and struggling?

A: He removed his pants. He got his flashlight and used it in examining my genital, sir.

Q: Where was the spear while he was examining your private parts?

A: He placed it at my side and if I would move he would point the spear at me, sir.
Q: What did the accused do after he removed his pants as you have stated?

A: He went on top of me and inserted his penis into my vagina, sir.

Q: What did you do when the accused was on top of you inserting his penis?

A: I called my father but he said (referring to the accused) can you see this? (referring
to the spear).

Q: What was your purpose in calling your father?

A: I do not know because after inserting his penis to my vagina I said, "Amang." cralaw virtua1aw library

Q: After the accused inserted his penis into your vagina, what else did he do next?

A: He made a pumping motion, sir.

Q: For how long had he been doing that?

A: I did not count and I was not in my right mind at that time, sir.

Q: After the pumping, what did he do?

A: He held my breast and kissed my lips, sir.

Q: After that, what transpired next?

A: He rested on top of me and then went down, sir.

Q: Where did he go if he went somewhere?

A: He proceeded towards the door and left, sir. 11

On the basis of the foregoing narration of events, the Court sees no material flaw
sufficient to discredit Gloria’s testimony which the trial court found convincing enough
and which remains unrebutted by the defense. Surely, nothing can be more credible
and persuasive than the testimony of the defiled woman and her old father who were
one in spirit in fighting for truth and justice to prevail.
chanrob1es virtua1 1aw 1ibrary

There is no merit in the argument of BALIWANG that the trial court should not have
given credence to the testimonies of Gloria and her father as they were allegedly
fraught with inconsistencies. The argument is anchored on the alleged disparity
between their testimonies given in open court and their statements in their affidavits.
However, the alleged inconsistencies are too minor to affect the credibility of Gloria and
Melencio. Settled is the rule that discrepancies or inconsistencies on minor matters do
not impair the essential integrity of the prosecution’s evidence as a whole or reflect on
the witness’ honesty. Such inconsistencies, which may be caused by the natural
fickleness of memory, even tend to strengthen rather than weaken the credibility of the
witness because they erase any suspicion of rehearsed testimony. 12 Likewise,
BALIWANG cannot capitalize on the alleged flaws in the affidavits. Being taken ex parte,
affidavits are generally considered to be inferior to the testimony given in open court,
are almost always incomplete and often inaccurate, sometimes from partial suggestion
or for want of suggestions and inquiries, without the aid of which the witness may be
unable to recall the connected collateral circumstances necessary for the correction of
the first suggestion of his memory and for his accurate recollection of all that belongs to
the subject. 13

We shall now dissect the trial court’s appreciation of the aggravating circumstances of
dwelling, nighttime and ignominy.

The trial court correctly appreciated the aggravating circumstance of dwelling. 14 There
was a clear violation of the sanctity of the victim’s place of abode when Gloria, who
apparently did not gave any provocation, was raped in her own house. Dwelling is
considered an aggravating circumstance primarily because of the sanctity of privacy the
law accords to human abode. 15

Nighttime is an aggravating circumstance 16 when (1) it is especially sought by the

offender; (2) it is taken advantage of by him; or (3) it facilitates the commission of the
crime by ensuring the offender’s immunity from capture. 17 In this case, other than the
fact that the crime was committed at about 2:00 o’clock in the morning, nothing on the
record suggests that BALIWANG deliberately availed himself or took advantage of
nighttime nor proved that BALIWANG used the darkness to facilitate his evil design or
to conceal his identity.

The aggravating circumstance of ignominy 18 shall be taken into account if means are
employed or circumstances brought about which add ignominy to the natural effects of
the offense; or if the crime was committed in a manner that tends to make its effects
more humiliating to the victim, that is, add to her moral suffering. 19 It was established
that BALIWANG used the flashlight and examined the genital of Gloria before he
ravished her. He committed his bestial deed in the presence of Gloria’s old father.
These facts clearly show that BALIWANG deliberately wanted to further humiliate
Gloria, thereby aggravating and compounding her moral sufferings. Ignominy was
appreciated in a case where a woman was raped in the presence of her betrothed, 20
or of her husband, 21 or was made to exhibit to the rapists her complete nakedness
before they raped her. 22

The crime of rape is defined and penalized under Article 335 of the Revised Penal Code,
as amended. In the case at bar, the prosecution established that BALIWANG committed
the crime charged with the use of a deadly weapon, i.e., with a spear. Accordingly,
pursuant to the 3rd paragraph of Article 335, of the Revised Penal Code, as amended, a
rape committed with the use of a deadly weapon is punishable by reclusion perpetua to
death. The aggravating circumstances of dwelling and ignominy having been duly
proven, the greater penalty of death shall be imposed, applying Article 63, paragraph 2,
no. 1, Revised Penal Code, which provides that when an aggravating circumstance is
present in the commission of an offense, the penalty for which is composed of two
indivisible penalties, the greater penalty should be imposed. chanrob1es virtua1 1aw 1ibrary

The Court finds it fitting to award Gloria the sum of P20,000 as exemplary damages
since the crime was committed with at least one aggravating circumstance, pursuant to
Article 2230 of the Civil Code. Likewise, it is appropriate to award Gloria an amount of
P50,000 by way of moral damages even in the absence of proof therefore in accordance
with the ruling in People v. Prades. 23 Lastly, the civil indemnity of P30,000 awarded by
the trial court is hereby increased to P75,000 pursuant to the policy enunciated in
recent case law. 24

WHEREFORE, the 10 July 1997 decision of the Regional Trial Court, Branch 27, of
Bayombong, Nueva Vizcaya, in Criminal Case No. 3170 finding accused-appellant
BALIWANG BUMIDANG guilty of rape with the use of a deadly weapon and sentencing
him to suffer the penalty of death is hereby AFFIRMED, subject to the MODIFICATION
that accused-appellant is hereby ordered to pay the victim Gloria Imbat, the sums of
P75,000 as civil indemnity, P50,000 as moral damages and P25,000 as exemplary
damages.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the
Revised Penal Code, upon finality of this decision, let the certified true copies of the
records of this case be forthwith forwarded to the Office of the President for possible
exercise of the pardoning power.

Costs de oficio.

SO ORDERED.
People v. Mat-an, G.R. No. 215720, February 21, 2018

G.R. No. 215720

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
OSCAR MAT-AN Y ESCAD, Accused-Appellant

DECISION

MARTIRES, J.:

On appeal is the 25 April 2014 Decision  of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
1

05858, which affirmed with modifications the 4 September 2012 Joint Judgment  of the Regional
2

Trial Court of Baguio City, Branch 59, in Criminal Case Nos. 29335-R and 29336-R, finding herein
accused-appellant Oscar Mat-An y Escad (Oscar) guilty beyond reasonable doubt of the crimes of
Slight Physical Injury and Murder, defined and penalized under Article 266 and Article 248 of the
Revised Penal Code (RPC).

THE FACTS

On 13 April 2009, Oscar was charged with the crimes of Attempted Homicide and Murder in two
Informations, the inculpatory allegations of which respectively read, thus:

Criminal Case No. 29335-R (Attempted Homicide)

That on or about the 8th day of April 2009, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there
willfully, unlawfully and feloniously attempt to kill ANTHONETTE EWANGAN, a 1 1/2 year old child,
by stabbing her with a knife at the nape, thus commencing the commission of the crime of homicide
directly by overt acts, but was not able to perform all the acts of execution which would produce the
crime of homicide as a consequence by reason of some causes other than his own spontaneous
desistance, that is, due to some other causes which prevented the accused from consummating his
unlawful purpose.

CONTRARY TO LAW. 3

Criminal Case No. 29336-R (Murder)

That on or about the 8th day of April 2009, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and taking
advantage of superior strength and with evident premeditation, did then and there willfully, unlawfully
and feloniously stab MINDA BABSA-A Y, a 61-year old woman, twice on her chest with a knife,
thereby inflicting upon the latter: Multiple stab wounds on the chest, and as a result thereof, said
MINDA BABSA-AY died.

That the killing was attended by the aggravating circumstance of evident premeditation considering
that the killing was planned, deliberated upon and the criminal design carried out by the accused,
and abuse of superior strength considering that the accused being then armed with a knife took
advantage of his superiority in strength disregarding the sex and age of the victim.

CONTRARY TO LAW. 4

On 13 May 2009, the RTC granted Oscar's motion to consolidate the two cases. 5

On 2 June 2009, Oscar, duly assisted by counsel, was arraigned and pleaded not guilty to the
charges against him. 6

On 10 November 2009, pre-trial was conducted wherein the parties entered into stipulations as to
the identity of the accused, among others; the minority of Anthonette Ewangan (Anthonette)  ; that
7

Oscar is the husband of Ruby Babsa-ay Mat-an (Ruby), the daughter of the deceased Minda
Babsaay (Minda); and that Ruby works overseas and sends money remittances through her mother
and not to Oscar.8

Thereafter, trial on the merits ensued.

Evidence for the Prosecution

The prosecution presented ten (10) witnesses, namely: Norma C. Gulayan (Norma), Dr. John L.
Tinoyan (Dr. Tinoyan), Dr. Samuel P. Daw-as, Jr. (Dr. Daw-as), Clyde Bunhian (Clyde), Police
Senior Inspector Angeline B. Amangan (PSI Amangan), Rosemarie B. Ewangan (Rosemarie), Police
Officer 3 Leo Mojica (PO3 Mojica), Police Officer 1 Jose Mana-ar, Jr. (PO1 Mana-ar), Robinson B.
Babsa-ay (Robinson), and Sheyanne Mat-an (Sheyanne). Their combined testimonies tended to
establish the following:

On 8 April 2009, at around 11:00 a.m., Norma was selling halo-halo beside Minda's store at
Sunnyside Fairview, Tacay Road, Baguio City; Clyde was in front of the same store. At that time,
Minda was inside her store cradling her 18-month-old granddaughter Anthonette in a blanket,  its 9

ends tied behind her back.

Moments later, Oscar entered the store and an argument ensued between him and Minda.
Apparently, Oscar was asking Minda why Ruby had not answered his calls. Minda responded by
telling Oscar not to create trouble and to return once he was sober. There was silence for a few
seconds;  after which, Norma and Clyde heard Minda moaning as if her mouth was being
10

covered.  Norma immediately ran inside the store where she saw Oscar stab Minda twice. Norma
11

pulled him out of the store and away from Minda.  Norma then asked Clyde, who followed her inside
12

the store, to look for Sheyanne, Oscar and Ruby's daughter.  Norma also called out to neighbors for
13

help.  Before calling Sheyanne, Clyde saw Oscar leaving the vicinity.
14 15

Sheyanne testified that on 8 April 2009, while she and her sister Desiree Mat-an were doing laundry,
Norma suddenly appeared, crying and without her slippers and told them that Minda was stabbed by
their father. Upon hearing this, they immediately ran towards Minda's store. Upon reaching the store,
they saw Minda in a prone position with blood splattered on the floor. Underneath Minda's body was
Anthonette who appeared to be injured as well.  Sheyanne then ran to the roadside where her father
16

was being held by some of their neighbors including PO1 Mana-ar, a police officer on vacation in
Baguio at that time.  Thereafter, PO1 Mana-ar, Sheyanne, and some of the neighbors brought
17

Oscar to the police station and they also turned over the knife used by Oscar to stab
Minda.  Meanwhile, Minda and Anthonette were rushed to the Baguio General Hospital and Medical
18

Center (BGHMC) where Anthonette was admitted for further observation.  Minda died on the same
19

day at the age of 61. 20

The postmortem examination conducted by Dr. Tinoyan revealed that Minda sustained four (4) stab
wounds in her chest- three (3) of which were fatal, while one (1) was superficial.  As regards
21

Anthonette, the medicolegal certificate prepared by Dr. Daw-as of the BGHMC revealed that she
sustained a superficial stab wound in the nape area. 22

Rosemarie, Anthonette's mother, testified that her daughter was confined in the hospital for a night;
and for that they incurred ₱929.00 for her medication and hospitalization,  as shown by the receipts
23

she presented.  The heirs of Minda incurred the amount of ₱83,763.00 as expenses for her wake
24

and burial.  This amount was admitted by the defense.

25 26

Evidence for the Defense

The defense presented Oscar as its sole witness. In his testimony, he invoked denial as his defense
and narrated his version of the incident as follows:

On 8 April 2009, at about 9:00 to 10:00 o'clock in the morning, Oscar was invited by Donato Bunhian
for a drink at Donato's house. Later, he went to Minda's store to buy bread, but he was not able to do
so because Minda said to him: "Why are you still coming here? You are even drunk." He answered
back but could no longer recall what his exact retort was.  After that brief exchange, he could no
27

longer recall what transpired next. When he came to his senses, he was already by the roadside,
allegedly waiting for a taxi to go to his workplace at Camp 7.  While waiting for a taxi, however,
28

some persons approached him and brought him to the police station where he was informed that he
had inflicted injuries on his mother-in-law. He maintained, however, that he did not kill his mother-in-
law and injure Anthonette; and that he was actually surprised by the charges against him. 29

The RTC Ruling

In its joint judgment, the RTC found Oscar guilty of attempted homicide and murder.

With respect to the killing of Minda, the trial court was convinced that the prosecution was able to
prove beyond reasonable doubt that Oscar had committed the crime. It also appreciated the
aggravating circumstance of evident premeditation to qualify the killing to murder. It observed that
Oscar decided to commit the crime because of his grudge against Minda as it was to her, and not to
him, that his wife remitted money from abroad.

The trial court also appreciated the aggravating circumstance of abuse of superior strength. It noted
that Oscar was about 5' 10" tall, heavily built, and armed with a deadly weapon; whereas Minda was
only 4' 11" in height, was already 61 years old, and was carrying a child.

As to the injury inflicted on Anthonette, the trial court ruled that the same constituted attempted
homicide. It also opined that abuse of superior strength was present considering her tender age.
However, the same could not be appreciated to qualify the crime to attempted murder because the
information charged only the crime of attempted homicide.

The dispositive portion of the joint judgment states:

WHEREFORE, in view of the foregoing disquisitions, the Court, finding the guilt of the accused
beyond reasonable doubt of the crimes of MURDER and ATTEMPTED HOMICIDE, imposes upon
the accused the following penalties:

1. Criminal Case No. 29335-R for Attempted Homicide - the Indeterminate Sentence of six (6)
months of arresto mayor as the minimum penalty to six (6) years and one (1) day of prision
correccional as the maximum penalty, to indemnify the private complainant the amount of ₱929.00
as actual and compensatory damages, ₱25,000.00 as moral damages, and ₱l0,000.00 as
exemplary damages.

2. Criminal Case No. 29336-R for Murder - reclusion perpetua and to indemnify the heirs of Minda
Babsa-ay the amounts of ₱83,763.00 as actual and compensatory damages, ₱50,000.00 as civil
indemnity, ₱25,000.00 as moral damages, and ₱25,000.00 as exemplary damages.

In the service of his sentence, accused shall serve them successively. He shall be credited with 4/5
of his preventive imprisonment.

Accused is ordered transferred to the National Bilibid Prisons, Muntinlupa, Metro Manila in view of
the nature of the penalties imposed upon him pending any appeal he may undertake.

SO ORDERED. 30

Aggrieved, Oscar appealed before the CA. 31

The CA Ruling

In its appealed decision, the CA affirmed with modification the RTC joint judgment. The appellate
court concurred with the trial court in its assessment that the prosecution was able to establish by
proof beyond reasonable doubt that Oscar killed Minda and injured Anthonette.

The appellate court, however, ruled that evident premeditation could not be appreciated to qualify
the killing of Minda to murder. It explained that the prosecution failed to establish with certainty the
time when Oscar decided to commit the felony. Consequently, that he clung to his determination to
kill Minda could not also be inferred. Nevertheless, the appellate court ruled that abuse of superior
strength attended the killing due to the evident disparity in strength between Oscar and Minda. Thus,
Oscar is still guilty of murder for the killing of Minda.
The appellate court also ruled that Oscar could not be held criminally liable for attempted homicide
because there was no evidence that he had the intent to kill Anthonette. Thus, Oscar could only be
convicted of physical injuries; and considering that the physician who treated Anthonette testified
that her injury was only superficial, Oscar is liable only for slight physical injuries theref

The fallo of the appealed decision provides:

FOR THESE REASONS, the September 4, 2012 Decision of the Regional Trial Court of Baguio City,
Branch 59, is AFFIRMED with the following MODIFICATIONS:

l. In Criminal Case No. 29335-R, accused-appellant OSCAR MAT-AN Y ESCAD is found GUILTY of

SLIGHT PHYSICAL INJURY and is meted a straight penalty of twenty (20) days of arresto menor,
and further ORDERED to pay the victim the amounts of ₱929.00 as actual damages and ₱5,000.00
as moral damages which shall earn interest at the rate of 6% per annum from date of finality of
judgment until fully paid.

2. In Criminal Case No. 29336-R, accused-appellant OSCAR MAT-AN Y ESCAD is found GUILTY of

MURDER and is sentenced to serve the penalty of reclusion perpetua, and further ORDERED to pay
the heirs of the victim the amounts of ₱83,763.00 as actual damages, ₱75,000.00 as civil indemnity,
₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages which shall -earn interest at
the rate of 6% per annum from date of finality of the judgment until fully paid.

SO ORDERED. 32

Hence, this appeal.

ISSUE

WHETHER THE TRIAL AND APPELLATE COURTS ERRED IN ADJUDGING ACCUSED-

APPELLANT OSCAR MAT-AN Y ESCAD GUILTY BEYOND REASONABLE DOUBT FOR THE
DEATH OF MINDA BABSA-A Y AND INJURIES SUSTAINED BY ANTHONETTE EWANGAN.

THE COURT'S RULING

The appeal lacks merit.

Factual findings of the trial court;

minor inconsistencies between the
testimonies of the witnesses

Oscar assails the credibility of the prosecution witnesses, particularly Norma's. He claims that
Norma's testimony that she had instructed Clyde to look for Sheyanne is inconsistent with
Sheyanne's version that Norma herself appeared before her while doing laundry and related the
incident to her. For Oscar, this discrepancy generated perplexity on who between Norma and
Sheyanne was telling the truth, thereby putting in question what they actually witnessed on the
morning of 8 April 2009.

This argument deserves scant consideration.

The established rule in our criminal jurisprudence is that when the issue is one of credibility of
witnesses, the appellate courts will not disturb the findings of the trial court considering that the latter
is in a better position to decide the question, having heard the witnesses themselves and observed
their deportment and manner of testifying during the trial. Unless it can be shown that the trial court
plainly overlooked certain facts of substance and value which, if considered, may affect the result of
the case; or in instances where the evidence fails to support or substantiate the trial court's findings
of fact and conclusions; or where the disputed decision is based on a misapprehension of facts; the
trial court's assessment of the credibility of witnesses will be upheld.
33

In this case, no cogent reason exists which would justify the reversal of the trial court's assessment
on the credibility of the witnesses. It is well-settled that immaterial and insignificant details do not
discredit a testimony on the very material and significant point bearing on the very act of accused-
appellants. As long as the testimonies of the witnesses corroborate one another on material points,
minor inconsistencies therein cannot destroy their credibility. Inconsistencies on minor details do not
undermine the integrity of a prosecution witness. 34

While there are inconsistencies between Norma and Sheyanne's testimonies, these refer only to
minor details which do not diminish the probative value of the testimonies at issue. Thus, the fact
remains that Norma's categorical and positive identification of Oscar as the person who stabbed
Minda prevails over his defense of denial. Denial is inherently a weak defense which cannot
outweigh positive testimony. As between a categorical statement that has the earmarks of truth on
the one hand and bare denial on the other, the former is generally held to prevail. 35

Furthermore, Oscar himself could not firmly deny the accusations against him. Oscar himself could
not categorically deny the possibility that he stabbed Minda and Anthonette after he "blacked-out."
He merely stated that he was "shocked" by the aforesaid charges and that he "cannot recall"
stabbing Minda and Anthonette, thus:

ATTY. CAMUYOT:

Q. So from the residence of your neighbour Donato Bunhian, where did you proceed, if you can
remember?

A. I went to buy bread at the store, Ma'am.

Q. What store are you referring to Mr. Witness?

A. From the store of my mother-in-law, Ma'am.

Q. And what is the name of your mother-in-law?

A. Minda Babsa-ay, Ma'am.

Q. So were you able to buy bread from the store of your mother-in-law?

A. [was not able to buy, Ma'am.

Q. Why?

A. [was about to buy bread, Ma'am, but then my mother-in-law, Minda Babsa-ay, uttered some
words on me, Ma'am.
Q. What did she utter to you particularly? What word did your mother-in-law uttered against you, if
you can still remember?

A. "Why are you still corning here? You are even drunk."

Q. So how did you answer your mother-in-law, if you did answer?

A. I answered her back, Ma'am, but I cannot recall anymore what I have answered.

Q. So what transpired after that exchange of words with your mother-in- law, if you can still
remember?

A. I cannot recall anymore, Ma'am, I was shocked and I had a black out.

Q. So when did you come next to your senses during that day if you did, Mr. Witness?

A. I was already at the road located at the upper level, Ma'am.

Q. On the same day, Mr. Witness?

A. Yes, Ma'm.  (emphasis supplied)

36

xxxx

A TTY. CAMUYOT:

Q. Now, Mr. Witness, you are being charged of murdering your mother-in-law, Minda Babsa-ay.
What can you say about this allegation?

A. I am shocked, Ma'am.

Q. You are also being charged, Mr. Witness of attempting to kill Ant[h]onette Ewangan. What can
you say about this charge?

A. I don't know anything about that, Ma'am.  (emphases supplied)

37

xxxx

PROS. BERNABE:

Q. You do not recall, Mr. Witness, that you stabbed your mother-inlaw?

A. No, ma'am.

Q. You do not also recall that you stabbed Ant[h]onette Ewangan whom she was carrying at that
time?

A. No, ma’am. 38
From the foregoing, it is clear that the trial and appellate courts did not err in convicting Oscar. The
prosecution was able to establish his guilt for Minda's death and Anthonette's injury. He cannot
escape liability therefor just because he "blacked out" and "could not recall" that he committed said
crimes.

Oscar is guilty of murder qualified

by abuse of superior strength, and
also of slight physical injury.

The Court concurs that the crime committed against Minda is Murder qualified by abuse of superior
strength.

The circumstance of abuse of superior strength is present whenever there is inequality of forces
between the victim and the aggressor, assuming a situation of superiority of strength notoriously
advantageous for the aggressor, and the latter takes advantage of it in the commission of the
crime.  The appreciation of the aggravating circumstance of abuse of superior strength depends on
39

the age, size, and strength of the parties. 40

In a plethora of cases, the Court has consistently held that the circumstance of abuse of superior
strength is present when a man, armed with a deadly weapon, attacks an unarmed and defenseless
woman. In such case, the assailant clearly took advantage of the superiority which his sex and the
weapon used in the act afforded him, and from which the woman was unable to defend herself. 41

In this case, the prosecution was able to establish that Oscar abused his superiority when he killed
Minda.  Indeed, it was sufficiently shown that Oscar was armed with a knife, a deadly weapon, while
1âшphi1

Minda was then burdened by a child and had no means to defend and repel the attacks of her
assailant. Furthermore, the trial court noted that Oscar was of heavy build and stood at 5' 10" in
contrast to Minda's 4' 11" frame. Clearly, Oscar abused his superiority afforded him by his sex,
height, and build and a weapon when he attacked Minda who was then carrying a child. Thus, the
trial and appellate courts correctly convicted him of murder.

The Court also concurs that Oscar can be held guilty only of slight physical injuries with respect to
Anthonette. The prosecution failed to present any evidence which would show that Oscar also
intended to kill Anthonette. Without the element of intent to kill, Oscar could only be convicted for
physical injury; and considering that Anthonette's wound was only superficial, the appellate court
correctly convicted Oscar of slight physical injury.

Alternative circumstance
of intoxication

Oscar disputes that, on the assumption of his guilt, the trial and appellate courts erred in not
appreciating the alternative circumstance of intoxication to mitigate his liability. He argues that
records would show that he blacked out and could not remember what transpired; thus, his mental
faculties were dulled by the alcohol he imbibed.

The Court is not persuaded.

Drunkenness or intoxication is a modifying circumstance which may either aggravate or mitigate the
crime.  It is aggravating if habitual or intentional; and it is mitigating if not habitual nor intentional, that
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is, not subsequent to the plan to commit the crime.  Once intoxication is established by satisfactory
42

evidence, then, in the absence of truth to the contrary, it is presumed to be unintentional or not
habitual.  From the foregoing, however, it is clear that the accused must first establish his state of
43

intoxication at the time of the commission of the felony before he may benefit from the presumption
that the intoxication was unintentional and not habitual. He must prove that he took such quantity of
alcoholic beverage, prior to the commission of the crime, as would blur his reason. 44

In this case, other than his bare allegation that he blacked out, Oscar failed to present sufficient
evidence that would show that he was in a state of intoxication as would blur his reason. This
uncorroborated and self-serving statement as to his state of intoxication is devoid of any probative
value.  On the contrary, there is sufficient reason to believe that Oscar recognized the injustice of his
45

acts. After stabbing her mother-in-law to death, Oscar proceeded to the roadside and waited for a
taxi in an apparent attempt to escape. His excuse that he was there because he was going to work
is not worthy of any belief. Thus, the trial and appellate courts did not err in not appreciating the
alternative circumstance of intoxication in favor of Oscar.

Penalties and monetary awards

In Criminal Case No. 29335-R, there being no aggravating or mitigating circumstance present in the
commission of the crime, the penalty shall be imposed in its medium period or twenty (20) days
of arresto menor, following Article 266 of the RPC. The Court further finds the monetary awards
consisting of ₱929.00 as actual damages and ₱5,000.00 as moral damages proper in this case.

In Criminal Case No. 29336-R, other than the circumstance of abuse of superior strength which
already qualified the crimes to murder, no other modifying circumstance is present, whether
aggravating or mitigating. Thus, the penalty of reclusion perpetua is imposed in accordance with
Article 248 of the RPC, as amended by Section 6 of Republic Act (R.A.) No. 7659, in relation to
Article 63(2) of the RPC.

The Court, however, modifies the CA decision with respect to the monetary awards. In People v.
Jugueta,  the Court summarized the amounts of damages which may be awarded for different
46

crimes. In said case, the Court held that when the penalty imposed is reclusion perpetua, the
following amounts may be awarded: (1) ₱75,000.00, as civil indemnity; (2) ₱75,000.00, as moral
damages; and (3) ₱75,000.00 as exemplary damages. The aforesaid amounts are proper in this
case. The Court further retains the award of actual damages in the amount of ₱83,763.00.

WHEREFORE, the present appeal is DISMISSED for lack of merit. The 25 April 2014 Decision of
the Court of Appeals in CA-G.R. CR-H.C. No. 05858 is AFFIRMED with MODIFICATIONS as
follows:

1. In Criminal Case No. 29335-R, accused-appellant OSCAR MAT-AN Y ESCAD is found GUILTY of

SLIGHT PHYSICAL INJURY and is meted a straight penalty of twenty (20) days of arresto
menor, and further ORDERED to pay the victim the amounts of ₱929.00 as actual damages and
₱5,000.00 as moral damages which shall earn interest at the rate of six percent (6%) per
annum from date of finality of judgment until fully paid.

2. In Criminal Case No. 29336-R, accused-appellant OSCAR MAT-AN YESCAD is found GUILTY of

MURDER and is sentenced to serve the penalty of reclusion perpetua, and further ORDERED to pay
the heirs of the deceased Minda Babsa-ay the following amounts: (1) ₱83,763.00 as actual
damages; (2) ₱75,000.00 as civil indemnity; (3) ₱75,000.00 as moral damages; and (4) ₱75,000.00
as exemplary damages. All monetary awards shall earn interest at the rate of six percent (6%) per
annum reckoned from the finality of this decision until their full payment.
47

SO ORDERED.