91.

G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
MELENCIO-HERRERA, J.:

FACTS

The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were Tan, a driver, and the other deceased
victim Marcial Laroa. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January
1983, Soriano drove the Fiera to Buenavista, Agusan Del Norte, together with Laroa and a helper of one Samuel Comendador. While at
Buenavista, accused Emeliano Trinidad, a member of the Integrated National Police, assigned at Nasipit Police Station, and residing at
Baan, Butuan City, asked for a ride to Bayugan, Agusan Del Sur, which is on the way to Davao City. Trinidad was in uniform and had
two firearms, a carbine, and the other, a side-arm .38 caliber revolver. Soriano, Laroa, Tan, and Trinidad then left Butuan on 20
January 1983 at about 5:20 p.m. bound for Davao City. Tan was driving the Fiera. Seated to his right was Soriano, Laroa and the
accused Trinidad, in that order. When they reached the stretch between El Rio and Afga, Trinidad advised them to drive slowly
because, according to him, the place was dangerous. All of a sudden, Tan heard two gunshots. Soriano and Laroa slumped dead. Tan
did not actually see the shooting of Laroa but he witnessed the shooting of Soriano having been alerted by the sound of the first
gunfire. Both were hit on the head. Trinidad had used his carbine in killing the two victims.

Tan then hurriedly got off the Fiera, ran & hid himself in the bushes. Tan heard a shot emanating from the Fiera while he was hiding in
the bushes. When a passenger jeep passed by, Tan hailed it and rode on the front seat. After a short interval of time, he noticed that
Trinidad was seated at the back. When the jeep started to drive away, Tan clung to its side. Trinidad fired two shots, one of which hit
Tan on his right thigh. As another passenger jeep passed by, Tan jumped from the first jeep and ran to the second. However, the
passengers in the latter jeep told him to get out not wanting to get involved in the affray. Pushed out, Tan crawled until a member of
the P.C. chanced upon him and helped him board a bus for Butuan City.

ISSUE

WON Trinidad can be convicted of frustrated or attempted murder.

RULING

Trinidad's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive narration of Tan.
Tan's testimony remained unshaken even during cross- examination. No ill motive has been attributed to him to prevaricate the truth.
He was in the vehicle where the killing transpired, a witness to the actual happening, and a victim himself who managed narrowly to
escape death despite the weaponry with which Trinidad was equipped.
Trinidad can only be convicted of Attempted Murder. Trinidad had commenced the commission of the felony directly by overt acts
but was unable to perform all the acts of execution which would have produced it by reason of causes other than his spontaneous
desistance, such as, that the jeep to which Tan was clinging was in motion, and there was a spare tire which shielded the other parts of
his body. Moreover, the wound on his thigh was not fatal and the doctrinal rule is that where the wound inflicted on the victim is not
sufficient to cause his death, the crime is only Attempted Murder, the accused not having performed all the acts of execution that
would have brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13,
1980, 96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the penalty will have to be modified.

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted Murder, having been
proven beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby sentenced.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

92.
G.R. No. 168827 April 13, 2007
BENJAMIN P. MARTINEZ, Petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.
CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision 1 and the Resolution of the Court of Appeals (CA) in CA-G.R. CR No. 25436,
affirming with modification the trial court’s judgment finding Benjamin P. Martinez guilty beyond reasonable doubt of frustrated
homicide.

FACTS

Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner Benjamin Martinez was the husband of Dean’s
co-teacher, Lilibeth Martinez. On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses
Martinez in the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a suitor of Elvisa
Basallo, had been peddling false reports that Dean and Elvisa had illicit relations; he even told Freda that Elvisa was Dean’s mistress.
The spouses Martinez filed a motion to dismiss the complaint. The court denied the motion. Dean went to the Tubao Credit Cooperative
(TCC) office to pick up the dividend certificate of his wife who was a member of the cooperative. He left the building and walked to his
car which was parked in front. As he did, he read the dividend certificate of his wife. Dean was about a step away from an L-300 van
which was parked in front of the building when petitioner, armed with a bolo, suddenly emerged from behind the vehicle and stabbed
him on the left breast. Dean instantly moved backward and saw his assailant. Dean fled to the bank office and was able to gain entry
into the bank. Petitioner ran after him and upon cornering him, tried to stab him again. Dean was able to parry the blow with his right
hand, and the bolo hit him on the right elbow. Dean fell to the floor and tried to stand up, but petitioner stabbed him anew on his left
breast. Dean managed to run to the counter which was partitioned by a glass. Unable to get inside the counter, petitioner shouted at
Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You kneel down because I will really kill you now this
day)."

SPO1 Henry Sulatre rushed to the place on board the police car. He and Barangay Captain Rodolfo Oller brought petitioner to the police
station. On their way, petitioner shouted: "Sinaksak kon pare, sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him,
he is just a visitor so he should not act like a king here in Tubao)." SPO1 Sulatre placed Benjamin in jail. Benjamin kept on shouting:
"Napatay kon, napatay kon (I killed him, I killed him)."

In the meantime, PO3 Valenzuela brought Dean to the Doña Gregoria Memorial Hospital in Agoo, La Union. The victim was transferred
to the Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean was examined and operated. On March 10, 1999, SPO1
Sulatre filed a criminal complaint for frustrated murder against petitioner in the MCTC. The IRH issued a medical certificate on February
28, 1999, stating that Dean’s wounds would need medical attendance of more than 30 days. Barangay Captain Oller and SPO1 Sulatre
executed an affidavit on petitioner’s arrest. Dean had his affidavit sworn before the Public Prosecutor on March 30, 1999.

On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not guilty.On April 30, 2001, the trial
court rendered judgment convicting petitioner of frustrated homicide.
The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1 Sulatre, and the documentary
evidence of the prosecution. The court rejected petitioner’s twin defenses of denial and self-defense. It declared that his version lacked
strong corroboration, and that his witnesses (a close relative and a friend) were biased. Maintaining his innocence, petitioner claimed
that he had merely acted in self-defense when Dean insulted him, spat on his face and assaulted him with fist blows on a mere
suspicion that he (petitioner) was blocking Dean’s way through the exit door of the cooperative. Finding that the prosecution failed to
prove the qualifying circumstances of treachery, the trial court convicted petitioner of frustrated homicide. The court declared that the
crime involved a "love triangle," and considered the protagonists’ history of personal animosity. There was no evident premeditation
because Dean had been "forewarned" of the attack.

ISSUE

WON Martinez acted in self-defense whether complete or incomplete

RULING

The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It declared that Dean sustained two fatal stab
wounds in his left chest, a fact which belied petitioner’s defense and confirmed the prosecution’s theory that he purposely and
vigorously attacked the victim. The CA ruled that when an unlawful aggression which has begun no longer exists, the one making the
defense has no more right to kill or even wound the aggressor. The appellate court pointed out that in the case before it, the supposed
unlawful aggression of Dean ceased from the moment he retreated inside the cooperative building; there was no need for petitioner to
follow Dean inside the building and stab him with his bolo. Petitioner should have simply stood his ground and walked away.

Dean’s testimony, by itself, is sufficient to warrant the conviction of petitioner for frustrated homicide. Petitioner’s conviction may be
anchored on Dean’s testimony since the trial court found it credible and entitled to full probative weight. Petitioner failed to prove his
plea of self-defense by clear and convincing evidence. The rulings of the trial court and the appellate court are correct. Whether or not
petitioner acted in self-defense whether complete or incomplete is a question of fact, the well-entrenched rule is that findings of fact of
the trial court in the ascertainment of the credibility of witnesses and the probative weight of the evidence on record affirmed, on
appeal, by the CA are accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable reason to
deviate from the said findings.

Like alibi, petitioner’s claim of self-defense is weak; it is also settled that self-defense is easy to fabricate and difficult to disprove. Such
a plea is both a confession and avoidance. One who invokes self-defense, complete or incomplete, thereby admits having killed the
victim by inflicting injuries on him. The burden of evidence is shifted on the accused to prove the confluence of the essential elements
for the defense as provided in Article 11, paragraph 1 of the Revised Penal Code:

x x x (1) unlawful aggression; (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. x x x

The accused must rely on the strength of his own evidence and not on the weakness of that of the prosecution because even if the
evidence of the prosecution is weak, the same can no longer be disbelieved. The accused cannot escape conviction if he fails to prove
the essential elements of complete self-defense.
In Garcia v. People, the Court defined unlawful aggression:

x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on the life and limb of a person – a
mere threatening or intimidating attitude is not sufficient. There must be actual physical force or a threat to inflict physical injury. In
case of a threat, it must be offensive and positively strong so as to display a real, not imagined, intent to cause injury. Aggression, if
not continuous, does not constitute, aggression warranting self-defense.

Aggression, if not continuous, does not constitute aggression warranting self-defense. When unlawful aggression ceases, the defender
no longer has any justification to kill or wound the original aggressor. The assailant is no longer acting in self-defense but in retaliation
against the original aggressor.

There can be no self-defense, complete or incomplete, unless the accused proves unlawful aggression on the part of the
victim. Unlawful aggression is a sudden and unexpected attack or an imminent danger thereof, and not merely a threatening or an
intimidating attitude.

Petitioner failed to discharge his burden.

Petitioner next argues that should he be convicted of any crime, it should be of less serious physical injuries only, absence the element
of intent to kill. He advances the argument that the single wound suffered by the victim was not life threatening and that the latter was
transferred to undergo operation in another hospital only because the medical staff where he was first rushed bungled their job. He
makes much of the fact that Dr. Darius R. Pariñas who issued the Medical Certificate never testified for the prosecution.

Again, the Court is not swayed.

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 the following: (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) words uttered by the offender at the time the injuries are inflicted by him on the victim.

Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioner’s pose. To begin with, as between
petitioner and the victim, the former had more hatred to harbor arising from the fact that the victim filed a lawsuit against him and his
wife. Petitioner thus had more motive to do harm than the victim. By his own account, he and Dean had a history of personal
animosity. Secondly, petitioner was armed with a deadly 14½-inch bolo. Thirdly, if it were true that petitioner stabbed Dean merely to
defend himself, it defies reason why he had to stab the victim three times. Petitioner’s claim that Dean suffered only a single non-life
threatening wound is misleading. The presence of these wounds, their location and their seriousness would not only negate self-
defense; they likewise indicate a determined effort to kill. Moreover, physical evidence is evidence of the highest order. It speaks more
eloquently than a hundred witnesses. Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent
to kill was present. It has been clearly established that petitioner ambushed Dean and struck him with a bolo. Dean was defenseless
and unarmed, while petitioner was deadly armed. 1
It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of execution but the crime was not
consummated because of the timely medical intervention applied on the victim.

When Dean was attacked he was unarmed. He had just exited the cooperative building and had no inkling that he would be waylaid as
he made his way towards his car. Upon the other hand, petitioner was armed with a deadly 14½-inch bolo. The attacked on Dean was
swift and unannounced; undeniably, petitioner’s attack was treacherous.

Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads:

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

A crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime.
The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted
the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime
was not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender
is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim
barring medical intervention or attendance.

Petitioner is hereby found guilty beyond reasonable doubt of Frustrated Murder under Article 248 in relation to Article 6, first paragraph
of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty from nine (9) years and four (4) months of
prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium
period, as maximum. Petitioner is ordered to pay Dean Dongui-is the amount of ₱56,275.48 as actual damages; ₱25,000 as moral
damages; ₱25,000.00 as exemplary damages; and ₱10,000.00 as attorney’s fees.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice
93.

G.R. No. L-17666 June 30, 1966

ISIDORO MONDRAGON, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
ZALDIVAR, J.:

FACTS

At about 5:00 in the afternoon of July 11, 1954, while complainant Serapion Nacionales was opening the dike of his rice field situated
in Antandan, Miagao, Iloilo, to drain the water therein and prepare the ground for planting the next day, he heard a shout from afar
telling him not to open the dike, Nacionales continued opening the dike, and the same voice shouted again, "Don't you dare open the
dike." When he looked up, he saw Isidoro Mondragon coming towards him. Nacionales informed appellant that he was opening the dike
because he would plant the next morning. Without much ado, Mondragon tried to hit the complainant who dodged the blow.
Thereupon, appellant drew his bolo and struck complainant on different parts of his body. Complainant backed out, unsheathed his own
bolo, and hacked appellant on the head and forearm and between the middle and ring fingers in order to defend himself. The appellant
retreated, and the complainant did not pursue him but went home instead. The following day, the complainant was treated by Dr.
Alfredo Jamandre, Municipal Health Officer of Miagao, Iloilo.

ISSUE

WON Mondragon is guilty of the crime of attempted homicide and not of the crime of less serious physical injuries.

RULING

It is the contention of the petitioner that the facts as found by the Court of Appeals do not show that the petitioner had the intention to
kill the offended party. There is merit in the contention of the petitioner. The intention of the petitioner to kill the offended party has
not been conclusively shown. The finding of the Court of Appeals that the petitioner had the intention to kill the offended party is
simply the result of an inference from an answer made by the petitioner while testifying in his own behalf. Appellant's intention to kill
may be inferred from his admission made in court that he would do everything he could to stop Nacionales from digging the canal
because he needed the water. However, it was established that the injuries received by the complainant were not necessarily fatal as
to cause the death of said complainant.

The facts as found by the Court of Appeals do not establish the intent to kill on the part of the petitioner. Under the circumstances
surrounding the fight between the petitioner and the offended party, the intention of the petitioner to kill the offended party was not
manifest. The statement made by the petitioner almost five years after the occurrence of the incident should not be considered as an
accurate indication of what he had in his mind at the time of the incident. Besides, that answer of the petitioner is not a categorical
statement of an intention on his part to kill the offended party. The term "will do everything" has a broad meaning and it should be
construed in a manner as to give the petitioner the benefit of the doubt as to what he really meant to do. At least it cannot be said that
when the petitioner answered "yes", when he was asked whether he would do everything to stop Nacionales from digging the canal,
the only way he had in mind to stop Nacionales was to kill him. It must be noted that this answer of the petitioner was made to a
qualifying question propounded to him by the private prosecutor over the objection of his counsel on the ground that the question was
misleading. At most, that answer of the petitioner may only be considered as an expression of opinion of what he would do under a
given circumstance.

The intent to kill being an essential element of the offense of frustrated or attempted homicide, said element must be proved by clear
and convincing evidence. That element must be proved with the same degree of certainty as is required of the other elements of the
crime. The inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond
reasonable doubt (People vs. Villanueva, 51 Phil. 488).

The element of intent to kill not having been duly established, and considering that the injuries suffered by the offended party were not
necessarily fatal and could be healed in less than 30 days, the Court held that the offense that was committed by the petitioner is only
that of less serious physical injuries.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon and Sanchez, JJ., concur.
94.
G.R. Nos. 138943-44 September 17, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HENRY ALMAZAN, accused-appellant.
BELLOSILLO, J.:

FACTS

On 28 September 1996, at about 4:00 o'clock in the afternoon, Vicente Madriaga and a certain Allan played chess in front of the
former's house at Pag-asa, Camarin, Caloocan City. Spectators were Vicente's son Noli, who was carrying his 2-year old daughter,
Vicente's grandson Noel, and a neighbor named Angel Soliva. While the game was underway, Henry Almazan unexpectedly arrived and
brandished a .38 caliber revolver in front of the group. Almazan's fighting cocks had just been stolen and he suspected Angel, one of
the spectators, to be the culprit. Thus he said, "manos-manos na lang tayo," aimed his gun at Angel and pulled the trigger. It did not
fire. He tried again, but again it failed.

At this juncture, Vicente Madriaga stood up and tried to calm down Henry, but the latter refused to be pacified ("ayaw paawat"). Angel
ran away and Henry aimed his gun instead at Noli. Noli cried for mercy, for his life and that of his daughter, but to no avail. Henry shot
Noli at the left side of his stomach sending him immediately to the ground. His daughter, unscathed, held on to Noli, crying. Henry
then turned on Noel and shot him on the left thigh. Noel managed to walk lamely ("paika-ika") but only to eventually fall to the
ground. Thereafter, Vicente Madriaga called on his neighbors who brought Noli and Noel to the hospital. Noli however died before
reaching the hospital, while Noel survived his injuries.

Dr. Ma. Cristina Freyra of the PNP Crime Laboratory Service conducted an autopsy on the body of Noli which revealed that the cause of
the victim's death was a gunshot at the trunk from a .38 caliber revolver. Dr. Misael Jonathan Ticman, attending physician of Noel, in
turn declared that the gunshot wound on the left thigh of Noel was a minor injury that would heal in a week. 4 Noel was never admitted
in the hospital as his doctor sent him home the same day. 5 On cross-examination, Dr. Ticman testified that if not medically treated the
wound might get infected or lead to the victim's death.6

Witnesses for the defense narrated a different version. They pointed to Angel Soliva instead as the person to blame for Noli Madriaga's
death while justifying Noel Madriaga's wound as a result of self-defense.

Henry Almazan testified that at about 4:00 o'clock in the afternoon of 28 September 1996 he went home accompanied by his friend
Johnald Molina. Henry's wife informed him upon his return that his fighting cocks, twelve (12) in number, had been stolen. He went out
of the house to inquire from neighbors as to who could have taken his cocks. He was followed by Johnald. On their way they saw
Vicente Madriaga and Allan playing chess surrounded by Noli, Noel, Angel and other persons. They were drinking liquor. As he
(Almazan) and Johnald were passing by, Angel called Henry and asked if he was looking for his fighting cocks. The group then burst
into laughter and pointed to their pulutan. Someone in the group advised Henry not to look anymore for his fighting cocks as he would
only be courting trouble ("naghahanap ka lang ng sakit ng katawan"). To this advice Henry replied, "Bakit naman ganoon?" Suddenly,
Angel pulled out his gun and shot Henry twice but the gun did not fire. Seizing the opportunity Henry grappled with Angel for the
possession of his gun. During the scuffle Angel pulled the trigger which hit Noli. Henry finally succeeded in wresting the gun from Angel
and aimed it at him. Suddenly, he received a blow from behind and he fell. As he raised his head from the ground, he saw Noel poised
to attack him with a broken bottle, so that he had to train his gun at the lower part of Noel's body and fired. The bullet hit Noel on the
thigh which sent him reeling down his knees ("napaluhod"). Shocked and afraid that he hit Noel, Henry ran home.

Johnald Molina corroborated Henry Almazan's statement in all material points. To avoid being involved and out of fear, Johnald did not
report the incident to the police. Later however, bothered by his conscience and being the friend of Henry, Johnald volunteered to
testify on what he knew of the incident.

The court a quo found Henry Almazan's defense devoid of merit. Apart from being positively identified by the prosecution witnesses as
the person responsible for the violence and the injuries inflicted, the trial court declared that the theft of Henry's fighting cocks
constituted sufficient motive for the killing and that as a cockfight afficionado he must have found it imperative to exact vengeance on
his suspected culprits. The trial court held that the testimony of Johnald failed to create reasonable doubt on the guilt of Henry since as
a friend he was expected to extend succor to a friend, especially one in need. Thus, the trial court held Henry Almazan guilty of murder
and frustrated murder as charged. Accused-appellant went into hiding after the shooting incident and was only collared by the agents
from the Western Police District eight (8) months later.

ISSUE

WON treachery and evident premeditation can be appreciated in this case;

WON the crime committed is attempted murder and not frustrated murder.

RULING

In imposing the penalty for each offense, the lower court appreciated the qualifying circumstance of treachery against accused-
appellant on the ground that the victims were completely defenseless when attacked and did not commit the slightest provocation, but
found no justification for evident premeditation as there was no proof as to the manner and time during which the plan to kill was
hatched. On the contrary, the trial court found in favor of accused-appellant the mitigating circumstance of passion and obfuscation.

Accused-appellant now prays to be absolved of murder on the ground that the prosecution has failed to prove his guilt beyond
reasonable doubt. He assails the testimony of Shirley Abordo, common-law wife of Nilo Madriaga, for being hearsay, as well as the
testimony of Vicente Madriaga for its alleged inconsistencies in various vital points. Significantly, accused-appellant impugns the
veracity of the prosecution's evidence for its failure to present Angel Soliva who was primarily involved in the incident and whom the
defense points to as the real transgressor. Thus, accused-appellant contends that evidence sufficient to establish the absolute and
moral certainty of his guilt being absent he should be acquitted.
Accused-appellant contends that the trial court erred in holding him guilty of frustrated murder as the wound sustained by Noel
Madriaga was not fatal that could have caused his death if not for timely medical assistance. Moreover, accused-appellant claims that
he shot Noel only to forestall any attack on him and not to kill Noel intentionally.

Appellate courts are doctrinally bound by the trial court's assessment of the credibility of witnesses given the clear advantage of a trial
judge in the appreciation of testimonial evidence. The trial court is in the best position to assess the credibility of witnesses and their
testimonies because of its unique opportunity to observe the witnesses first-hand and to note their demeanor, conduct and attitude
under grueling examination - factors which are significant in the evaluation of the sincerity of witnesses and in unearthing the
truth. We see no reason to depart from this doctrine.

The witnesses for the prosecution were consistent in their narration of the manner by which the events transpired, and they remained
steadfast in their identification of accused-appellant as the author of the violence. Despite attempts to confound them, Vicente
Madriaga and Noel Madriaga were relentless in their declaration that it was accused-appellant, armed with a .38 caliber revolver, who
pounced upon them without warning thereby killing Noli Madriaga and wounding Noel Madriaga in the process. They were one in their
assertion that accused-appellant was inflamed by his suspicion that Angel Soliva and Noel Madriaga had stolen his fighting cocks and
was intent on getting even with them, thus he fired at them. Efforts to pass the blame on the group by claiming that in their inebriated
state they mocked accused-appellant and thus initiated the violence were actually set to naught as Vicente and Noel Madriaga
unfailingly denied the same.

Testimonial evidence to be credible should not only come from the mouth of a credible witness but should also be credible, reasonable
and in accord with human experience,failing in which, it should be rejected. Indeed, Johnald Molina corroborated the statement of
accused-appellant pointing at Angel Soliva as the real culprit; however, we are inclined to agree with the observation of the court a
quo that it was natural for an individual to exert effort in liberating his friend from confinement or execution, even to the extent of
distorting the truth.

It is significant to note that accused-appellant went into hiding after the shooting incident and was only collared by the agents from the
Western Police District eight (8) months later. Flight indeed is an indication of guilt, especially when accused-appellant failed to
sufficiently explain why he left his residence and resurrected only several months after.

The trial court properly appreciated the presence of treachery as the attack was made upon the unarmed victims who had not
committed the slightest provocation and who were totally unaware of the murderous designs of accused-appellant. Contrary to the
finding of the court a quo, treachery in this case qualifies the offense to murder, hence, may not be considered a generic aggravating
circumstance to increase the penalty from reclusion perpetua to death.

Accused-appellant admits responsibility for the injuries inflicted on Noel but reasons out that he did so only to defend himself. Accused-
appellant therefore pleads self-defense, a justifying circumstance that could acquit him of the charge but which we are not disposed to
grant as the elements necessary to qualify his actions were not present. In alleging that the killing arose from an impulse to defend
oneself, the onus probandi rests upon accused-appellant to prove by clear and convincing evidence the elements thereof: (a) that
there was unlawful aggression on the part of the victim; (b) that there was reasonable necessity for the means employed to prevent or
repel it; and, (c) that there was lack of sufficient provocation on the part of the defendant. This, it has failed to discharge.
Nevertheless, we find that the accused-appellant should be held liable for attempted murder, not frustrated murder. For the charge of
frustrated murder to flourish, the victim should sustain a fatal wound that could have caused his death were it not for timely medical
assistance. This is not the case before us. The court a quo anchored its ruling on the statement of Dr. Ticman on cross-examination
that the wound of Noel could catch infection or lead to his death if not timely and properly treated. However, in his direct testimony,
Dr. Ticman declared that the wound was a mere minor injury for which Noel, after undergoing treatment, was immediately advised to
go home. He even referred to the wound as a slight physical injury that would heal within a week and for which the victim was in no
danger of dying. Clear as the statement is, coupled with the fact that Noel was indeed immediately advised to go home as he was not
in any danger of death, we have no reason to doubt the meaning and implications of Dr. Ticman's statement. According to
jurisprudence, if the victim was wounded with an injury that was not fatal, and could not cause his death, the crime would only be
attempted. The observation that the conviction should be for slight physical injuries only is likewise improper as the accused-appellant
was.

In the final analysis, there being no mitigating nor aggravating circumstance and the more appropriate offense being attempted
murder, the Joint Decision of the trial court of 15 June 1999 finding accused-appellant HENRY ALMAZAN guilty of Murder and
sentencing him to reclusion perpetua with its accessory penalties. However, his conviction for Frustrated Murder in G.R. No. 138944
(Crim. Case No. C-51277) is MODIFIED by lowering the crime to Attempted.

SO ORDERED.

Mendoza, Quisumbing, Buena, and De Leon, Jr., concur.

95.
G.R. No. 86163 April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, BIENVENIDO
SALVILLA, defendant-appellant.
MELENCIO-HERRERA, J.:

FACTS

On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about noon time. The plan was hatched
about two days before. The accused were armed with homemade guns and a hand grenade. When they entered the establishment,
they met Rodita Hablero an employee thereat who was on her way out for her meal break and announced to her that it was a hold-up.
She was made to go back to the office and there Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two
daughters, Mary and Mimie the latter being a minor 15 years of age, and told the former that all they needed was money. Hearing this,
Severino told his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and
handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they already had the money but
they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of Severino after which the latter, his two
daughters, and Rodita, were herded to the office and kept there as hostages.

At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took turns eating while the others
stood guard. Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. Severino
answered that he could not do so because it was a Saturday and the banks were closed.

In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station
Commander of the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the
assurance that no harm would befall them as he would accompany them personally to the police station. The accused refused to
surrender or to release the hostages.

Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted
for about four hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead,
explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be
accompanied by Mary Choco in going out of the office. When they were out of the door, one of the accused whose face was covered by
a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to Rodita the
P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they
refused. Ultimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an
offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and
Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so that her right leg had to be amputated.

For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and
demanded money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the
counter of the office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the
office. He maintained, however, that he stopped his co-accused from getting the wallet and wristwatch of Severino and, like the
P5,000.00 were all left on the counter, and were never touched by them. He claimed further that they had never fired on the military
because they intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and went
outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her. Appellant also admitted the appeals
directed to them to surrender but that they gave themselves up only much later.

ISSUE

WON the crime of robbery is consummated

RULING

The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires asportation or
carrying away, in addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the
taking and 3) the carrying away or asportation And without asportation the crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).

There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as
the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and
consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking,
there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery.

Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three co-accused
touched the P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those
items were recovered from their persons.

Those factual allegations are contradicted by the evidence

The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by
police and so did not pick up the money offered by the victim, where the defendant and an accomplice, armed with a knife and a
club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with their
instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two men;
 these actions brought the money within the dominion and control of defendant and completed the taking. (Johnson vs. State,
432 So 2d 758).

"Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an
instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs.
Commonwealth, 105 SE 2d 149) [Emphasis supplied].

It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not
affect the nature of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to
dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).

The crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary
that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the
physical presence of the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d 404;
Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553).

Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order.

It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and
there were no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of
events. Her failure to mention the taking in her sworn statement would not militate against her credibility, it being settled that an
affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries or suggestions
(People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).

The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was
actuated by any improper motive in testifying against the accused.

In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court
are entitled to great weight as it was in a superior position to assess the same in the course of the trial ( see People vs. Ornoza G.R.
No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).

Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be considered in their favor to
mitigate their liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually
arrested; (b) that the offender surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary
(People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).

The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender by the
police and military authorities but they refused until only much later when they could no longer do otherwise by force of circumstances
when they knew they were completely surrounded and there was no chance of escape. The surrender of the accused was held not to
be mitigating as when he gave up only after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R.
Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender
was not spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that they intended to
surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary surrender to speak of (People vs.
Dimdiman 106 Phil. 391 [1959]).

All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant, Bienvenido Salvilla, established
beyond reasonable doubt.

Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty
imposed by the Trial Court.

Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal
Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that
a complex crime under Article 48 of the Revised Penal Code has been committed such that the penalty for the more serious offense of
Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be imposed instead of the penalty
prescribed for Robbery with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal.

Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary
means" does not connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime
is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent,
Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means" as
it was selected by Appellant and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery.

The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the
accused were convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the detention is
absorbed in the crime of robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and another for
Serious Illegal Detention. In the present case, only one Information was filed charging the complex offense. For another, in Astor, the
robbery had already been consummated and the detention was merely to forestall the capture of the robbers by the police. Not so in
this case, where the detention was availed of as a means of insuring the consummation of the robbery. Further, in Astor, the detention
was only incidental to the main crime of robbery so that it was held therein:

. . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not
anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no choice
but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime
of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the criminals by peace
officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p.
1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of
robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was only incidental to the main crime of robbery, and
although in the course thereof women and children were also held, that threats to kill were made, the act should not be
considered as a separate offense. Appellants should only be held guilty of robbery.
In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the
same. After the amount of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were
1âwphi1

then taken as hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their release. The
detention was not because the accused were trapped by the police nor were the victims held as security against the latter. The
detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an
additional amount. The police and other authorities arrived only much later after several hours of detention had already passed. And,
despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of P100,000.00 they demanded
could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate.

The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other
purpose than to prevent the victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where
the victims were taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v.
Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and where the victims
were only incidentally detained so that the detention was deemed absorbed in robbery.

SO ORDERED.

Paras, Padilla Sarmiento and Regalado JJ., concur.

96.

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
MEDIALDEA, J.:

FACTS

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar.
Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her
boarding house with her classmates. Shortly after her classmates had left, all of a sudden, somebody held her and poked a knife
to her neck. She then recognized appellant who was a frequent visitor of another boarder. She pleaded with him to release her,
but he ordered her to go upstairs with him. With his left arm wrapped around her neck and his right hand poking a "balisong" to
her neck, appellant dragged complainant up the stairs. With the Batangas knife still poked to her neck, they entered
complainant's room. Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand
holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-
shirt. Then he pulled off her bra, pants and panty. He ordered her to lie down on the floor and then mounted her. He made her
hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving. Appellant then
lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into
her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping and dashed out room
after the other and finally found her escape by jumping out through a window.

Still naked, she darted to the municipal building and asked for help. Pat. Donceras, the first policeman to see her, took off his
jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to
apprehend appellant. Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was
physically examined. The trial court convicted the accused of frustrated rape.

ISSUE

WON the frustrated stage applies to the crime of rape.

RULING

The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted
the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

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

1. By using force or intimidation;

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

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

xxx xxx xxx

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and,
from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of
cases, we have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ because
not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable
how the frustrated stage in rape can ever be committed.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and
nighttime.

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

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

97.

G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:

FACTS

On 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan heard one of her daughters cry "Ayo'ko, ayo'ko!”,
prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon,
Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused and boxed him several times. Primo evaded her
blows and pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her
brother, a cousin and an uncle who were living within their compound, to chase the accused. Seconds later, Primo was apprehended by
those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their
neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative
results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel's body.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme
of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. Although Primo Campuhan
insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of
death.

ISSUE

WON the accused is guilty of consummated statutory rape.

RULING

The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of
the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years
old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of
consummating the sexual act is sufficient to constitute carnal knowledge. But the act of touching should be understood here as
inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or
the pudendum.

Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either
labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness. The case at bar merely constitutes a "shelling of the castle of orgasmic potency," or a "strafing of the citadel of
passion”.

It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the
permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her
claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of
serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution
but to run roughshod over the constitutional right of the accused to be presumed innocent.

Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same
time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we
have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape;
worse, be sentenced to death. Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken
place.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of
rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape — are
present in the instant case, hence, the accused should be punished only for it.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and
sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE.

SO ORDERED.

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De
Leon, Jr., JJ., concur.
98.

G.R. No. 166441October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
BERSAMIN, J.:

FACTS

Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and glass wares in different municipalities
around the country. On December 20, 1993, Norberto and Belinda employed AAA and BBB to help them in selling their wares in
Bangar, La Union which was then celebrating its fiesta. On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB
went to sleep. Less than an hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her
breast and touching her private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto
ordered her not to scream or she’ll be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas fell on
deaf ears. She fought back and kicked Norberto twice. Norberto was not able to pursue his lustful desires. Norberto offered her money
and told her not to tell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (the
house boy) but she failed to wake him up. Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private
parts of BBB. AAA saw her companion awake but her hands were shaking. When she finally entered the tent, Norberto left and went
outside. Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. In the evening of December 21,
1993, AAA and BBB went straight to the municipal hall where they met a policeman by the name of "Sabas". They told Sabas the
sexual advances made to them by Norberto. Norberto was summoned to the police station where he personally confronted his
accusers. When Norberto’s wife, Belinda, arrived at the police station, an argument ensued between them. On January 10, 1994, AAA
and BBB went back to La Union and executed their respective sworn statements against Norberto.

ISSUE

WON the accused is guilty of the crime of attempted rape.

RULING
The intent to commit rape should not easily be inferred against the petitioner, even from his own declaration of it, if any, unless he
committed overt acts directly leading to rape. The basic element of rape then and now is carnal knowledge of a female. Carnal
knowledge is defined simply as "the act of a man having sexual bodily connections with a woman," which explains why the slightest
penetration of the female genitalia consummates the rape. In other words, rape is consummated once the penis capable of
consummating the sexual act touches the external genitalia of the female. In attempted rape, the concrete felony is rape, but the
offender does not perform all the acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia
consummates rape, and rape in its attempted stage requires the commencement of the commission of the felony directly by overt acts
without the offender performing all the acts of execution that should produce the felony, the only means by which the overt acts
performed by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his intent
to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal law, that showing must be through his
overt acts directly connected with rape. He cannot be held liable for attempted rape without such overt acts demonstrating the intent
to lie with the female. In short, the State, to establish attempted rape, must show that his overt acts, should his criminal intent be
carried to its complete termination without being thwarted by extraneous matters, would ripen into rape. It is obvious that the
fundamental difference between attempted rape and acts of lasciviousness is the offender’s intent to lie with the female. In rape, intent
to lie with the female is indispensable, but this element is not required in acts of lasciviousness. Attempted rape is committed,
therefore, when the "touching" of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is manifest
only through the showing of the penis capable of consummating the sexual act touching the external genitalia of the female. Without
such showing, only the felony of acts of lasciviousness is committed.

WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS OF LASCIVIOUSNESS.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice
99.

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
GARCIA, J.:

FACTS

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution2 denying petitioner’s motion for reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner
Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court, the above-named
accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then and there
willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but was
unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance, said acts being committed
against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano (Malou), and her
classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the decision
of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room
307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept on a
folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could not
move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with cloth wet
with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got free.
With this …the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may
pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle was
the feel of her attacker’s clothes and weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17).
He … was wearing a t-shirt and shorts … Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. xxx.

It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside from the window with
grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had fled from her room going through the left
bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until a week prior to the attack. CHITO confided his feelings
for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13, 1991, wearing a
white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and
Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up to
Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the
room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later, relented] …. S/G Ferolin
made the following entry in the security guard’s logbook …:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter
(sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the time CHITO’s knocking on the door woke him up, ….
He was able to fix the time of CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the knock at
the door ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. …. It was at around 3 o’clock in the
morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), ….

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open window through which the intruder supposedly
passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO …. He mentioned to the latter that something had
happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.

People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO and Joseph to go with them to Camp Crame where the
two (2) were questioned ….

An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30 class, he and his
roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not belonging
to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to
search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not
know was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55)
as he had seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black
Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s because CHITO
had lent the very same one to him …. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO
used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a zipper when Renato saw it
then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along with some
CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 o’clock in
Camp Crame, however, did Renato know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response to the written
request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:

xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:

Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or making at any time
amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the following, as culled from the same decision
of the appellate court:

In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma
Phi Fraternity …. MALOU, …, was known to him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes, arrived at their
Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was included in the entourage
of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John
Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4) presidential nominees of the Fraternity, CHITO included,
were being dunked one by one into the pool. xxx.

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was dunked. Perla Duran, …, offered each … dry clothes
to change into and CHITO put on the white t-shirt with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black short pants with stripe, socks and
shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded
to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks,
and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….

At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked at his own watch
and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry …. xxx.

S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly tried to open the door until
Rommel Montes, … approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the
door of Unit 306 … but was likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph
immediately turned his back on CHITO and went inside the bedroom. CHITO , …changed to a thinner shirt and went to bed. He still had on the same short
pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school uniform when, around 6:30 A.M, Joseph came to the
room not yet dressed up. He asked the latter why this was so and, without elaborating on it, Joseph told him that something had happened and to just go to
Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of MALOU and tried to rape
her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building …. When two (2) CIS men came to the unit asking for Renato Baleros,
CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306….

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them, CHITO and Joseph, were brought to
Camp Crame.

When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one interviewed CHITO to
ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp Crame Hospital …..
At the hospital, … CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip ….

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345),
inside Room 310 at more/less 6:30 to 7 o’clock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and
Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the
contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the early evening of
December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when he returned to
the apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in
the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray
bag ever contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas short pants was alluded to be among the
items inside his gray bag late in the afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan, who both testified being with CHITO
in the December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on the same car going to and coming from the party and dropping the
petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short
pants and leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing CHITO
between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and white barong
tagalog.

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her father’s
house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed that
chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond
reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of
P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in toto.
Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent sufficient, competent and
convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the requisites
for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

 5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to prove the
same.

6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met, hence, he should be
acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding petitioner guilty
beyond reasonable doubt of the crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for petitioner’s acquittal, but
not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in
the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There
are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the commission of
the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act of
commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the
person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort to adducing circumstantial
evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is
insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh
impossible, to prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept the night over had a
window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard
Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruder’s apparel to be something made of
cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-
shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and MALOU’s night dress
both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her face where the
chemical-soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the petitioner
for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth soaked in chemical while holding her body tightly under the
weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim. It is argued that petitioner’s actuation
thus described is an overt act contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended to ravish
Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that if petitioner’s intention was otherwise,
he would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the
following circumstances: (1) By using force or intimidation; (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. Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the
offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce the crime of rape
by reason of some cause or accident other than his own spontaneous desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang,17 stated that "the attempt which
the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the offense
by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and natural
relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its
objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal
Code.18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the
fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.
1avvphil.net

Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning
or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the
mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence
at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that
there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that
was really his immediate intention, is anybody’s guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of
the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered
unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended victim is
still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory before
even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere speculations
and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance,
the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her
sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to
force his penis into the complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the extreme
our credulity if we were to conclude that mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information filed
against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial, Malou
testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily,
while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as
light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a
crime the right to be informed of the nature and cause of the accusation, 24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for
which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust vexation. As it were,
unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct
which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. 25 The paramount question is whether
the offender’s act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed.26 That Malou, after the
incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape
proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from ₱5.00 to
₱200.00 or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE
and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light
coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of ₱200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

100.

G.R. No. L-14128 December 10, 1918

THE UNITED STATES, plaintiff-appellee,
vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.
TORRES, J.:

FACTS

This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First Instance of this city, charging
Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo Navarro y Bunadia, with the crime of arson, and, on the 20th of
May of the present year, judgment was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to six years and one
day of presidio mayor and to pay one-half of the costs. From this judgment this defendant appealed. With respect to Hugo Labarro or
Navarro, the proceedings were dismissed with the other half of the costs de officio.

Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from the house in which he was living
his family, at No. 328, San Rafael Street, San Miguel, Mrs. Auckback, who appears to have been a resident of the neighborhood, called
Mrs. Lewin and told her that much smoke was issuing from the lower floor of the latter's house, for until then Mrs. Lewin had not
noticed it, and as soon as her attention was brought to the fact she ordered the servant Paulino Banal to look for the fire, as he did and
he found, so asked with kerosene oil and placed between a post of the house and a partition of the entresol, a piece of a jute sack and
a rag which were burning. At that moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while, the other
defendant Hugo Labarro was cleaning the horses kept at the place.

On the same morning of the occurrence, the police arrested the defendants, having been called for the purpose by telephone. Severino
Valdes, after his arrest, according to the statement, Exhibit C, drawn up in the police station, admitted before several policemen that it
was he who had set the fire to the sack and the rag, which had been noticed on the date mentioned. and he also who had started the
several other fires which had occurred in said house on previous days; that he had performed such acts through the inducement of the
other prisoner, Hugo Labarro, for they felt resentment against, or had trouble with, their masters, and that, as he and his coaccused
were friends, he acted as he did under the promise on Labarro's part to give him a peso for each such fire that he should start. lawphi1.net

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police station, although he denied having
placed the rag and piece of jute sack, soaked with kerosene, in the place where they were found, and stated, that it was the servant
Paulino who had done so. He alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that he had
gathered together, which is contrary to the statement he made in the police station, to wit, that he had set the fire to the said rag and
piece of sack under the house.

For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other defendant Hugo Labarro.

Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve the Lewin family, to burn the
house above mentioned. occupied by the latter and in which this defendant was employed, some policemen were watching the building
and one of them, Antonio Garcia del Cid., one morning prior to the commission of the crime, according to his testimony, saw the
defendant Valdes climbing up the wall of the warehouse behind the dwelling house, in which warehouse there was some straw that had
previously been burned, and that, when the defendant noticed the presence of the policeman, he desisted from climbing the wall and
entering the warehouse.

The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an upright of the house and a partition of
the entresol of the building, thus endangering the burning of the latter, constitutes the crime of frustrated arson of an inhabited house,
on an occasion when some of its inmates were inside of it.. This crime of provided for and punished by article 549, in connection with
articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same by direct participation is the defendant
Severino Valdes, for, notwithstanding his denial and unsubstantiated exculpations, the record discloses conclusive proof that it was he
who committed the said unlawful act, as it was also he who was guilty of having set the other fires that occurred in said house. In an
affidavit the defendant admitted having made declarations in the police station, and though at the trial he denied that he set fire to the
sacks and the rag which were found soaked in kerosene and burning, and, without proof whatever, laid the blame unto his
codefendant, the fact is that confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower part of the
house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should have noticed it, and he allowed the sack and
the rag to continue burning until Mrs. Auckback noticing a large volume of smoke in the house, gave the alarm. No proof was
submitted to substantiate the accusation he made against the servant Paulino, who apparently is the same persons as the driver Hugo
Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts conceive to the burning of said
house, but nevertheless., owing to causes independent of his will, the criminal act which he intended was not produced. The offense
committed cannot be classified as consummated arson by the burning of said inhabited house, for the reason that no part of the
building had yet commenced to burn, although, as the piece of sack and the rag, soaked in kerosene oil, had been placed near partition
of the entresol, the partition might have started to burn, had the fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection with the commission of the crime, and therefore
the penalty of presidio mayor immediately inferior in degree to that specified in article 549 of the Penal Code, should be imposed in its
medium degree.

For the foregoing reasons the judgment appealed from should be affirmed, with the modification however, that the penalty imposed
upon the defendant shall be given eight years and one day of presidio mayor, with the accessory penalties prescribed in article 57 of
the Code. The defendant shall also pay the costs of both instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

101.

G.R. No. 148965 February 26, 2002

JOSE "JINGGOY" E. ESTRADA, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, respondents.
PUNO, J.:

A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the submission of the
petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from the charge of plunder filed against
him by the respondent Ombudsman.

The antecedent facts are as follows:

In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of
the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and
conspirators were filed with the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint Resolution finding probable cause warranting the filing with the
1

Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the
Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents was herein petitioner Jose
"Jinggoy" Estrada, then mayor of San Juan, Metro Manila.

The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to respondent
Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10, 2001 and no bail for petitioner’s provisional
liberty was fixed.

On April 24, 2001, petitioner filed a "Motion to Quash or Suspend" the Amended Information on the ground that the Anti-Plunder Law,
R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent Ombudsman opposed the motion.

On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis, petitioner and his co-
accused were placed in custody of the law.

On April 30, 2001, petitioner filed a "Very Urgent Omnibus Motion" alleging that: (1) no probable cause exists to put him on trial and
2

hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a "series or combination of
overt or criminal acts" as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed that he be
excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed that he be allowed
to post bail in an amount to be fixed by respondent court.3

On June 28, 2001, petitioner filed a "Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds That An Outgoing
Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable
Offense As To Him." 4

On July 3, 2001, petitioner filed a "Motion to Strike Out So-Called ‘Entry of Appearance,’ To Direct Ombudsman To Explain Why He
Attributes Impropriety To The Defense And To Resolve Pending Incidents." 5

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioner’s "Motion to Quash and Suspend" and "Very Urgent
Omnibus Motion." Petitioner’s alternative prayer to post bail was set for hearing after arraignment of all accused. The court held:
6

"WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO QUASH AND
SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’ Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused
Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001 filed by
accused Edward S. Serapio.

Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose ‘Jinggoy’ Estrada, his VERY URGENT OMNIBUS
MOTION, praying that he be: (1) dropped from the information for plunder for want of probable cause and (2) discharged from custody
immediately which is based on the same grounds mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his
alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET for hearing together with the petition for bail of
accused Edward S. Serapio scheduled for July 10, 2001, at 2:00 o’clock in the afternoon after the arraignment of all the accused." 7
The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the motion and
proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a plea of "not guilty" for him. 8

Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction in:

"1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the equal
protection of the laws;

2) not holding that the Plunder Law does not provide complete and sufficient standards;

3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is
not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of
substantive due process;

4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and
unusual punishment totally in defiance of the principle of proportionality."
9

We shall resolve the arguments of petitioner in seriatim.

I.

Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal protection of the
laws.10

The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been settled in the case
of Estrada v. Sandiganbayan. We take off from the Amended Information which charged petitioner, together with former President
11

Joseph E. Estrada, Atty. Edward Serapio, Charlie "Atong" Ang, Yolanda T. Ricaforte and others, with the crime of plunder as follows:

"AMENDED INFORMATION

The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. "ASIONG SALONGA" AND a.k.a "JOSE VELARDE",
together with Jose ‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the
crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as
follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable
Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS
FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY
OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION
EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT
OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN
THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-accused CHARLIE ‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte,
Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS
[P130,000,000.00], more or less, representing a portion of the TWO HUNDRED MILLION PESOS
[P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED
SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR
MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00],
RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE
HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE
OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME "JOSE VELARDE";

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM
OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
 SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.

CONTRARY TO LAW.

Manila for Quezon City, Philippines, 18 April 2001" 12

Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise that the Amended
Information charged him with only one act or one offense which cannot constitute plunder. He then assails the denial of his right to
bail.

Petitioner’s premise is patently false. A careful examination of the Amended Information will show that it is divided into three (3) parts:
(1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together with petitioner Jose "Jinggoy"
Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general terms how
the accused conspired in committing the crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the
predicate acts constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused
who committed each act.

Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Information which is of
"receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of ₱545,000,000.00 for illegal
gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x x x." In this sub-paragraph
(a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving or collecting money from illegal
gambling amounting to ₱545 million. Contrary to petitioner’s posture, the allegation is that he received or collected money from illegal
gambling "on several instances." The phrase "on several instances" means the petitioner committed the predicate act in
series. To insist that the Amended Information charged the petitioner with the commission of only one act or offense despite the
phrase "several instances" is to indulge in a twisted, nay, "pretzel" interpretation.

It matters little that sub-paragraph (a) did not utilize the exact words "combination" or "series" as they appear in R.A. No. 7080. For
in Estrada v. Sandiganbayan, we held that where these two terms are to be taken in their popular, not technical, meaning, the word
13

"series" is synonymous with the clause "on several instances." "Series" refers to a repetition of the same predicate act in any of the
items in Section 1 (d) of the law. The word "combination" contemplates the commission of at least any two different predicate acts in
any of said items. Plainly, sub-paragraph (a) of the Amended Information charges petitioner with plunder committed by a
series of the same predicate act under Section 1 (d) (2) of the law.

Similarly misleading is petitioner’s stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to charge him with
plunder together with the other accused, he was alleged to have received only the sum of P2 million, which amount is way below the
minimum of P50 million required under R.A. No. 7080. The submission is not borne out by the April 4, 2001 Resolution of the
Ombudsman, recommending the filing of charges against petitioner and his co-accused, which in pertinent part reads:

"x x x xxx xxx

Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious collection of
protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov. Singson himself and the fact that
Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an emissary of the respondent governor, jueteng haul
totalling P2 million, i.e., P1 million in January, 2000 and another P1 million in February, 2000. An alleged " listahan" of jueteng
recipients listed him as one "Jingle Bell," as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]." 14

Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was delivered to petitioner
as "jueteng haul" on "at least two occasions." The P2 million is, therefore, not the entire sum with which petitioner is specifically
charged. This is further confirmed by the conclusion of the Ombudsman that:

"x x x xxx xxx

It is clear that Joseph Ejercito Estrada, in confabulation with Jose ‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda Ricaforte,
demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the operators thereof,
channeled thru Gov. Luis ‘Chavit’ Singson, in exchange for protection from arrest or interference by law enforcers; x x x."15

To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable cause against him
for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner for which reason it issued a warrant
of arrest against him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of probable cause by
the Ombudsman has long passed. The issue cannot be resurrected in this petition.

II.

Next, petitioner contends that "the plunder law does not provide sufficient and complete standards to guide the courts in dealing with
accused alleged to have contributed to the offense." Thus, he posits the following questions:
16

"For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one who is clearly
involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What if another accused is shown to
have participated in three of the ten specifications, what would be the penalty imposable, compared to one who may have been
involved in five or seven of the specifications? The law does not provide the standard or specify the penalties and the courts are left to
guess. In other words, the courts are called to say what the law is rather than to apply what the lawmaker is supposed to have
intended."17

Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only one act or
offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the Amended
Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is
cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks that the second paragraph of
the Amended Information charges him to have conspired with former President Estrada in committing the crime of plunder. His alleged
participation consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If these
allegations are proven, the penalty of petitioner cannot be unclear. It will be no different from that of the former President for in
conspiracy, the act of one is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished
for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be considered by the court."

III.

Petitioner also faults the respondent Sandiganbayan for "sustaining the charge against petitioner for alleged offenses and with alleged
conspirators, with which and with whom he is not even remotely connected – contrary to the dictum that criminal liability is personal,
not vicarious – results in the denial of substantive due process."
18

The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-paragraph (a) but also
with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a principal and as co-conspirator of the former
President. This is purportedly clear from the first and second paragraphs of the Amended Information. 19

For better focus, there is a need to examine again the allegations of the Amended Information vis-à-vis the provisions of R.A. No.
7080.

The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime of plunder. The first
paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of
the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and
name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in
the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a)
alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of
illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the
offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080.
Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share
allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law.
This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c)
alleged two predicate acts - that of ordering the Government Service Insurance System (GSIS) and the Social Security System (SSS)
to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle
Corporation which became part of the deposit in the "Jose Velarde" account at the Equitable-PCI Bank. These two predicate acts fall
under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with
John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly enriched himself from
commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name "Jose
Velarde" at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No.
7080.
From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru
their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten
wealth in the aggregate amount of P4,097,804,173.17. As the Amended Information is worded, however, it is not certain whether the
accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten
wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with the
former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold
that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the
Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth
amounting to more than P4 billion.

We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate acts alleged in
sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate Informations. A study of the
history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-
Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former
President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and
magnitude of the acts allegedly committed by the former President to acquire illegal wealth. They also found that under the
20

then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved
different transactions, different time and different personalities. Every transaction constituted a separate crime and required a
separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation
of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against
practically the same accused before the Sandiganbayan. R.A. No. 7080 or the Anti-Plunder Law was enacted precisely to address this
21 22

procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz:

"Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for
personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that
may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions
sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but
constitute plunder of an entire nation resulting in material damage to the national economy. The above-described crime
does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible
recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting
influence of power."

There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy" is made up of
a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common
purpose. In the case at bar, the different accused and their different criminal acts have a commonality—to help the former President
amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different
participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed
to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused
ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly
enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former
President Estrada.
In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures: (1) the
so-called "wheel" or "circle" conspiracy, in which there is a single person or group (the "hub") dealing individually with two or more
other persons or groups (the "spokes"); and (2) the "chain" conspiracy, usually involving the distribution of narcotics or other
contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations
between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. 23

From a reading of the Amended Information, the case at bar appears similar to a "wheel" conspiracy. The hub is former President
Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e.,
the amassing, accumulation and acquisition of ill-gotten wealth.

IV.

Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation of conspiracy in
the Amended Information is too general. The fear is even expressed that it could serve as a net to ensnare the innocent. Their dissents
appear to be inspired by American law and jurisprudence.

We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law. Under
Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a crime in our
jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such as in conspiracy to
commit treason, rebellion and sedition. In contrast, under American criminal law, the agreement or conspiracy itself is
the gravamen of the offense. The essence of conspiracy is the combination of two or more persons, by concerted action, to
24

accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means. Its 25

elements are: agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose;
and requisite intent necessary to commit the underlying substantive offense. 26

A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of
conspiracy – conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure officer.
27

Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371, as follows:
28

"Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more
of such persons to any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more
than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided for such misdemeanor."

Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:

"Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District conspire to
prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of confidence under the United
States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his
duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the
duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or
impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more
than six years, or both."

Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2) conspiracy to
defraud the United States or any agency thereof. The conspiracy to "commit any offense against the United States" refers to an act
made a crime by federal laws. It refers to an act punished by statute. Undoubtedly, Section 371 runs the whole gamut of U.S.
29 30

Federal laws, whether criminal or regulatory. These laws cover criminal offenses such as perjury, white slave traffic,
31

racketeering, gambling, arson, murder, theft, bank robbery, etc. and also include customs violations, counterfeiting of currency,
copyright violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate commerce and other areas of
federal regulation. Section 371 penalizes the conspiracy to commit any of these substantive offenses. The offense of
32

conspiracy is generally separate and distinct from the substantive offense, hence, the court rulings that acquittal on the
33

substantive count does not foreclose prosecution and conviction for related conspiracy.34

The conspiracy to "defraud the government" refers primarily to cheating the United States out of property or money. It also covers
interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least by means that are
dishonest. It comprehends defrauding the United States in any manner whatever, whether the fraud be declared criminal or not.
35 36

The basic difference in the concept of conspiracy notwithstanding, a study of the American case law on how conspiracy should be
alleged will reveal that it is not necessary for the indictment to include particularities of time, place, circumstances or
causes, in stating the manner and means of effecting the object of the conspiracy. Such specificity of detail falls within the
scope of a bill of particulars. An indictment for conspiracy is sufficient where it alleges: (1) the agreement; (2) the offense-object
37

toward which the agreement was directed; and (3) the overt acts performed in furtherance of the agreement. To allege that the
38

defendants conspired is, at least, to state that they agreed to do the matters which are set forth as the substance of their conspiracy.
To allege a conspiracy is to allege an agreement. The gist of the crime of conspiracy is unlawful agreement, and where
39

conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is required in cases
where such object is charged as a substantive offense. 40

In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal with cases
challenging Informations alleging conspiracy on the ground that they lack particularities of time, place, circumstances or
causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a mode of committing a crime
or it may be alleged as constitutive of the crime itself. When conspiracy is alleged as a crime in itself, the sufficiency of
the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of
Criminal Procedure. It requires that the information for this crime must contain the following averments:

"Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of the accused, the
designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.
When the offense was committed by more than one person, all of them shall be included in the complaint or information."

The complaint or information to be sufficient must state the name of the accused, designate the offense given by statute, state the
acts or omissions constituting the offense, the name of the offended party, the approximate date of the commission of the offense
and the place where the offense was committed.

Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order to meet the
standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference to the section or subsection
of the statute punishing it. The information must also state the acts or omissions constituting the offense, and specify its qualifying
41

and aggravating circumstances. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of
42

common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No 43

information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element
44

of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be
45

determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime
46

in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his
defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense. 47

To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set
forth in the complaint or information. For example, the crime of "conspiracy to commit treason" is committed when, in time of war,
two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or
comfort, and decide to commit it. The elements of this crime are: (1) that the offender owes allegiance to the Government of the
48

Philippines; (2) that there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an
agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the
offender and other person or persons decide to carry out the agreement. These elements must be alleged in the information.

The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only
as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the
Information because conspiracy is not the gravamen of the offense charged. The conspiracy is significant only because it
changes the criminal liability of all the accused in the conspiracy and makes them answerable as co-principals regardless of the degree
of their participation in the crime. The liability of the conspirators is collective and each participant will be equally responsible for the
49

acts of others, for the act of one is the act of all. In People v. Quitlong, we ruled on how conspiracy as the mode of committing
50 51 52

the offense should be alleged in the Information, viz:

"x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that
have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense.
One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of
an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an
allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or
others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation,
equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated,
the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others
(People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a criminal responsibility not
only for his acts but also for the acts of his co-accused as well.

A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like
the part that each of the parties therein have performed, the evidence proving the common design or the facts
connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy
with the same degree of particularity required in describing a substantive offense. It is enough that the indictment
contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much
certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know
what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent
indictment based on the same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words of the
statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the
language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the respective statutes defining them (15A C.J.S. 842-844).

xxx xxx xxx

x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit
it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually
pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has
been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an
allegation, in the absence of the usual usage of the words "conspired" or "confederated" or the phrase "acting in
conspiracy," must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the
agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed
such as either by the use of the term "conspire" or its derivatives and synonyms or by allegations of basic facts
constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused
can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be
required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by
direct proof but may be inferred from shown acts and conduct of the accused.

xxx xxx x x x."

Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of
an offense in either of the following manner: (1) by use of the word "conspire," or its derivatives or synonyms, such as
confederate, connive, collude, etc; or (2) by allegations of basic facts constituting the conspiracy in a manner that a person of
53

common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea
to a subsequent indictment based on the same facts. 54

The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may be required
to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or
design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it. A statement of this evidence is
55

not necessary in the information.

In the case at bar, the second paragraph of the Amended Information alleged in general terms how the accused
committed the crime of plunder. It used the words "in connivance/conspiracy with his co-accused." Following the ruling
in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former President in committing the crime of
plunder.

V.

We now come to petitioner’s plea for bail. On August 14, 2002, during the pendency of the instant petition before this Court, petitioner
filed with respondent Sandiganbayan an "Urgent Second Motion for Bail for Medical Reasons." Petitioner prayed that he be allowed to
post bail due to his serious medical condition which is life-threatening to him if he goes back to his place of detention. The motion was
1âwphi1

opposed by respondent Ombudsman to which petitioner replied.

For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion for bail. Dr.
Roberto V. Anastacio, a cardiologist of the Makati Medical Center, testified as sole witness for petitioner.

On December 18, 2001, petitioner filed with the Supreme Court an "Urgent Motion for Early/Immediate Resolution of Jose ‘Jinggoy’
Estrada’s Petition for Bail on Medical/Humanitarian Considerations." Petitioner reiterated the motion for bail he earlier filed with
respondent Sandiganbayan. 56

On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and requiring said court to
make a report, not later than 8:30 in the morning of December 21, 2001.

On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated December 20, 2001
denying petitioner’s motion for bail for "lack of factual basis." Basing its finding on the
57
earlier testimony of Dr. Anastacio, the
Sandiganbayan found that petitioner "failed to submit sufficient evidence to convince the court that the medical condition of the
accused requires that he be confined at home and for that purpose that he be allowed to post bail."
58

The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty of reclusion
perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the
evidence of guilt is strong, to wit:

"Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a
capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution."
59

Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987 Constitution which reads:
"Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."

The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of
guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense
are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong
evidence of guilt.
60

This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be conducted by the
Sandiganbayan. The hearings on which respondent court based its Resolution of December 20, 2001 involved the reception of medical
evidence only and which evidence was given in September 2001, five months ago. The records do not show that evidence on
petitioner’s guilt was presented before the lower court.

Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence of petitioner’s
guilt is strong as to warrant the granting of bail to petitioner.

IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Mendoza, Panganiban, Quisumbing, and De Leon, Jr., JJ., concur.
Vitug, J., please see Separate Opinion.
Kapunan, and Buena, J., joins Justices Santiago and Gutierrez in their separate dissenting opinions.
Ynares-Santiago, J., pls. see separate Dissenting Opinion.
Sandoval-Gutierrez, J., please see my Dissent.
Carpio, J., no part as before.