1

Republic of the Philippines Supreme Court Manila FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 187744 Present: LEONARDO-DE CASTRO,* Acting Chairperson, BERSAMIN, DEL CASTILLO, VILLARAMA, JR., and PERLAS-BERNABE,** JJ. Promulgated: June 20, 2012

- versus -

ROGER TEJERO, Accused-Appellant.

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

DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision[1] dated November 28, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02905 which affirmed with modifications the Decision[2] dated June 22, 2007 of the Regional Trial Court (RTC) of Bangued, Abra, Branch 1, in Criminal Case Nos. 2004-202, 2004203 and 2004-204. The RTC found accused-appellant Roger Tejero (Tejero) guilty beyond reasonable doubt of three counts of rape committed against AAA[3] and sentenced him to suffer the penalty of reclusion perpetua and to pay AAA the amount of P50,000.00 as moral damages for each count of rape. The Court of Appeals ordered Tejero to pay the additional amount of P50,000.00 as civil indemnity.

In three separate Informations dated October 6, 2004 filed before the RTC, Tejero was charged with three counts of rape committed against AAA on February 1, 2004, [4] February 8, 2004[5] and April 4, 2004,[6] which were docketed as Criminal Case Nos. 2004-204, 2004-203 and 2004-202, respectively. Except as to the aforesaid different dates of the commission of the crime, the Informations were identically worded. The Information in Criminal Case No. 2004-204[7] reads: CRIM. CASE NO. 2004-204 The undersigned 3rd Asst. Provincial Prosecutor accuses ROGER TEJERO for violation of R.A. 7610 (RAPE) committed as follows: That on or about February 1, 2004 at 3:00 P.M. at x x x, Abra, Philippines and within the jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully and feloniously succeeded in having carnal knowledge with AAA, a minor, 14 years of age, by means of force and intimidation, against her will and consent, to the great damage and prejudice of the offended party.

During his arraignment on April 25, 2005, Tejero entered a plea of not guilty for all three counts.
[8]

During trial, the prosecution submitted as evidence victim AAAs testimony and documents consisting of (1) the Medico Legal Certificate[9] presenting the result of the medical examination conducted on AAA by Dr. Liberty Baez (Dr. Baez) on July 24, 2004, and (2) AAAs Certificate of Live Birth[10] issued by the Office of the Municipal Civil Registrar of Bangued, Abra, showing that AAA was born on March 27, 1990. The prosecutions version of the events was summarized by the RTC as follows: The prosecution presented the private complainant herself, [AAA] who testified that she was only fourteen years old when the accused raped her on three different occasions in the year 2004. Her Birth Certificate which indicated that she was born on March 27, 1990 was formally offered in evidence to show her minority at the time the crimes were allegedly committed against her. She was also a student at the x x x National High School at x x x, Abra at this time. She directly identified accused ROGER TEJERO as the man who raped her repeatedly. She regarded him as her stepfather since he has been cohabiting with her mother in their home at x x x, Abra when these criminal acts were committed by him. She claimed that she was first raped by the accused on a Sunday February 1, 2004 at their living room. In her sworn statement (Exhibit B) which formed part of her testimony, she stated that this happened at 3:00 oclock in the afternoon when her mother was out selling vegetables and while her two siblings went to the family house of their maternal grandparents. She narrated that she was suddenly pulled by her stepfather, removed her clothes and then raped her. He then warned her not to tell anybody or else he would kill all of them.

On February 8, 2004, the next Sunday, the accused again raped her at their living room in the same house. At that time, her mother was selling vegetables again in another barangay while the accused fended off her sisters to the family house of their maternal grandparents again. In her sworn statement, she observed that his breath even stank with alcohol when he was raping her. The accused also pointed a rifle at her to threaten her. For the third time, the accused again raped her on April 4, 2004 at about 5:00 oclock in the afternoon now inside a room at their house while her mother was out selling vegetables again. In her sworn statement, she also revealed that she did not report all the incidents to anyone because of her fear of her stepfathers repeated threats that he would kill all of them if she did. Her mother [BBB] only came to know that she has been repeatedly ravaged by him when she was hospitalized for three weeks due to her appendicitis. During her check-up, her attending doctor discovered that she was already about five months pregnant. She said that her pregnancy was a result of the rape. She eventually gave birth to a baby boy.[11]

For the defense, Tejero himself took the witness stand. The RTC gave the following gist of Tejeros testimony: On the other hand, the defense presented accused Roger Tejero. He said that he is a widower and that after his first wife died, he and the mother of the complainant [BBB] have been living together as husband and wife for the past years. They have two other children. The private complainant, [BBBs] biological daughter [AAA], is only his stepdaughter. He said that he used to work as a jeepney driver for his sister DELIA TEJERO since March 28, 2002 every Sunday of the week since another driver drives a public utility jeepney from Mondays to Saturdays. He belied the allegation that he raped [his] stepdaughter on three separate occasions since all of these dates fell on a Sunday, the day that he was always scheduled to drive the jeepney. On February 1, 2004, on the occasion of the first alleged rape, the accused recounted that at about 3:00 oclock p.m., he was at the parking space in Bangued, Abra for jeepneys bound for Lagangilang, Abra waiting for passengers. The jeepney was loaded by 4:30 oclock p.m. and he reached the jeepney stop at x x x at around 5:00 oclock p.m. He traversed another six kilometers to reach their house at x x x which took about another thirty minutes. On February 8, 2004, on the occasion of the second alleged rape, at about 3:00 to 4:00 oclock p.m. , he was again at the same parking space in Bangued, Abra waiting for passengers and he was able to reach x x x at about 5:00 p.m. only. On April 4, 2004 on the occasion of the third alleged rape, at about 2:00 oclock p.m., he was again at the same parking space in Bangued, Abra waiting for passengers. He concluded that the allegations of rape that happened on these dates were all lies and that he knew nothing about the criminal acts.[12]

On June 22, 2007, the RTC rendered its Decision giving credence to AAAs testimony and rejecting Tejeros defense of denial and alibi. The dispositive portion of the RTC judgment reads: WHEREFORE, premises considered, the Court hereby finds accused ROGER TEJERO GUILTY beyond reasonable doubt of the commission of three counts of RAPE and hereby sentences him to the maximum penalty of RECLUSION PERPETUA for each COUNT of RAPE in the presence of the aggravating circumstances of minority and the relation of the victim to the accused as his step-parent. He is also ordered to pay the private complainant AAA the amount of Fifty Thousand Pesos (P50,000.00) in moral damages.[13] As a result, the RTC issued an Order of Commitment[14] for Tejero on July 30, 2007, pursuant to which, Tejero was received at the New Bilibid Prison on August 4, 2007.[15] Tejero subsequently filed an appeal with the Court of Appeals where it was docketed as CAG.R. CR.-H.C. No. 02905. The appellate court, though, in its Decision dated November 28, 2008, merely affirmed the judgment of conviction of the RTC, with the modification ordering Tejero to pay an additional amount ofP50,000.00 as civil indemnity. The Court of Appeals decreed thus: WHEREFORE, the appealed Decision dated June 22, 2007 of the trial court is affirmed, subject to the modification that accused-appellant is further ordered to pay fifty thousand pesos (P50,000.00) to AAA as civil indemnity.[16] Thereafter, the Court of Appeals elevated Tejeros case to this Court in view of the penalty imposed. After both parties filed their separate manifestations in which they waived the filing of supplemental briefs, the Court submitted the case for resolution. In his Brief before the Court of Appeals, Tejero made a lone assignment of error: THE TRIAL COURT GRAVELY ERRED IN RENDERING A VERDICT OF CONVICTION DESPITE THE FACT THAT THE GUILT OF THE ACCUSEDAPPELLANT WAS NOT PROVEN BEYOND REASONABLE DOUBT.[17] Tejeros instant appeal is anchored on the catch-all argument that his guilt has not been proven beyond reasonable doubt. Tejero challenges AAAs credibility considering: (1) AAAs concealment of the alleged rapes for more than six months after they happened without a satisfactory explanation for the delay in reporting the same; (2) AAAs failure to take precautionary measures to prevent the successive rapes committed against her; and (3) AAAs untruthful account that Tejero pointed a gun at her during one of the rape incidents, meant only to ensure the latters conviction. The instant appeal has no merit.

Inarguably, Tejero wants the Court to inquire into the sufficiency of the evidence presented, including the credibility of the lone witness for the prosecution, AAA, a course of action which this Court will not do, consistent with its repeated holding that this Court is not a trier of facts. Basic is the rule that factual findings of trial courts, including their assessment of the witnesses' credibility, are entitled to great weight and respect by this Court, particularly when the Court of Appeals affirms the findings.[18] The trial court's conclusions on the credibility of witnesses in rape cases are generally accorded great weight and respect, and at times even finality, unless there appear in the record certain facts or circumstances of weight and value which the lower court overlooked or misappreciated and which, if properly considered, would alter the result of the case. Since the trial judge had the direct and singular opportunity to observe the facial expression, gesture and tone of voice of the complaining witnesses while testifying, it was truly competent and in the best position to assess whether the witnesses were telling the truth.[19] The Court finds no reason herein to depart from the general rule. Tejero fails to convince this Court that both the RTC and the Court of Appeals overlooked or misappreciated any fact or circumstance on record of weight and value that would have altered the results of the case. To the contrary, the evidence on record strongly supports the finding of guilt rendered by the RTC and the Court of Appeals against Tejero. AAA was firm and unrelenting in pointing to Tejero as the one who raped her on three occasions. AAA knew Tejero very well as Tejero was cohabiting with BBB, AAAs mother, and AAA deemed Tejero as her stepfather. AAAs testimony was candid, spontaneous, and consistent as revealed in the following excerpts from the Transcript of Stenographic Notes (TSN): Q A Q A Q A You claimed that you were raped by this Roger Tejero, will you tell this Honorable Court how you were raped by this person Miss Witness? [He] suddenly pulled me, sir, he removed my clothes and then rape me. When was that Miss Witness? February 1, 2004, inside our house at our living room, sir. And what else did he do on that date February 1, 2004? He warned me, sir, not to tell to anybody because if I will tell this to anybody, he will kill us all. That happened after he raped you on February 1, 2004 is that correct Miss Witness? Yes, sir.

Q A

Q A Q A Q A Q A Q A

And while he was doing that act on you Miss Witness on February 1, 2004, did you feel anything? I was feeling pain, sir. After that incident on February 1, 2004, are there other incident that happened Miss Witness? Yes, sir. When is that Miss Witness? February 8, 2004, sir. And what happened again on that date Miss Witness? He again raped me, sir. How did he do that Miss Witness? My mother went to [s]ell vegetable to the other barangay and my sisters went to our family house that time, sir. What else did you (sic) do on February 8, 2004? He again raped me, sir, at the living room of our house. That is on February 8, 2004? Yes, sir. After that rape on February 8, 2004 are there other incidents that happen to you again Miss Witness? Yes, sir. When was that Miss Witness? April 4, 2004, sir. Do you remember what time was that Miss Witness? Yes, sir, 5:00 oclock in the afternoon. How did he do that to you Miss Witness? My mother went again to sell vegetables because she was the one providing us, sir.[20]

Q A Q A Q A Q A Q A Q A

The RTC observed that the defense failed to shake AAAs credibility even during crossexamination: The defense could not even shake the credibility of the young victim when they subjected her to a rigorous cross-examination nor even point to any malicious motivation by the defendants stepdaughter or her mother why they would say brazen lies that could destroy not just any ordinary man but their very own stepfather and

husband, respectively. It is simply improbable that the private complainant who is of a tender age, innocent and guileless, would brazenly impute a crime so serious as rape to a man she consider as stepfather, if these were simply lies.[21] AAA was just 14 years old when she was raped. The Court explains in People v. Bonaagua[22] why it gives credence to testimonies of young girls who allege being raped: It is well entrenched in this jurisdiction that when the offended parties are young and immature girls, as in this case, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the matter about which they testified were not true. A young girl would not usually concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the examination of her private parts; and undergo all the trouble and inconvenience, not to mention the trauma and scandal of a public trial, had she not in fact been raped and been truly moved to protect and preserve her honor, and motivated by the desire to obtain justice for the wicked acts committed against her. Moreover, the Court has repeatedly held that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction.[23] What is more, in the case at bar, Dr. Baezs physical examination of AAA on July 24, 2004 revealed AAAs old healed vaginal lacerations and confirmed AAAs five-month pregnancy, which were consistent with AAAs allegations of rape in February and April 2004: Abdomen: positive abdominal mass S/P appendectomy Enlarged to about five months age of gestation no edema

Extremities:

Perineal Examination: Old healed superficial lacerations at 2, 4, 7 oclock positions Old healed deep laceration at 3 oclock position Internal Examination: Introitus admits two fingers with ease Cervix soft, closed Uterus enlarged to 5 months AOG Positive bleeding, negative tenderness Laboratory Examination: Urinalysis:

Pus cells - 0-3 Epith Cells - + Bacteria - + + + + Pregnancy Test - Positive[24]

AAAs delay in reporting the rapes does not undermine her credibility. In a long line of cases, the Court pronounced that the failure of the victim to immediately report the rape is not necessarily an indication of a fabricated charge.[25] It is quite understandable how AAAs tender age, AAAs regard for Tejero as her stepfather, Tejeros threat to kill AAA and her whole family, and Tejeros physical proximity to AAA and her family (Tejero lives in the same house with AAA and her family) could all have easily convinced AAA that Tejeros threat was real and discouraged AAA from immediately reporting the rapes to anyone. AAAs plight is similar to that of the rape victim in People v. Casil,[26] wherein the Court recognized that: The threats of appellant to kill her and all members of her family should she report the incidents to anyone were etched in her gullible mind and sufficed to intimidate her into silence. Add to this the fact that she was living with appellant during the entire period of her tribulation, with her mother often away working for a living, and one can readily visualize the helplessness of her plight.[27]

The Court further held in People v. Manuel [28] that: One should not expect a fourteen-year old girl to act like an adult or mature and experienced woman who would know what to do under such difficult circumstances and who would have the courage and intelligence to disregard a threat on her life and complain immediately that she had been forcibly deflowered. It is not uncommon for young girls to conceal for sometime the assaults on their virtue because of the rapists threat on their lives, more so when the rapist is living with her.[29]

Equally unsuccessful is Tejeros attempt to destroy AAAs credibility by questioning the latters failure to take precautionary measures to prevent the successive rapes. Again, AAA is a young girl who had been raped and threatened by someone she considers her stepfather and who lives with her and her family in the same house. The Court need not require AAA to prove that she fought back or protected herself in some way to stop the rape or to keep the rape from happening again. It is not accurate to say that there is a typical reaction or norm of behavior among rape victims, as not every victim can be expected to act conformably with the usual expectation of

mankind and there is no standard behavioral response when one is confronted with a strange or startling experience, each situation being different and dependent on the various circumstances prevailing in each case.[30] Besides, in rape cases, physical resistance need not be established when intimidation is exercised upon the victim and the latter submits herself out of fear. Intimidation is addressed to the mind of the victim and is therefore subjective. Barely out of childhood, there was nothing AAA could do but resign to appellant's evil desires to protect her life. Minor victims like AAA are easily intimidated and browbeaten into silence even by the mildest threat on their lives.[31] In comparison to the evidence for the prosecution, Tejero proffered denial and alibi as his defense. For an alibi to prosper, it should be satisfactorily shown that the accused was at some other place during the commission of the crime and that it was physically impossible for him to have been then at the site thereof.[32] Tejero insists that he was plying a jeepney on the days when AAA was raped, and was at a parking lot in Bangued, Abra, waiting for passengers at the exact time when the rapes occurred. Without corroborating witnesses, however, Tejeros testimony is essentially selfserving. Also, since Tejero had access to a vehicle, it was not improbable that he could have been at AAAs house at some time during the days of the rape incidents. Jurisprudence teaches that between categorical testimonies that ring of truth, on one hand, and a bare denial, on the other, the Court has strongly ruled that the former must prevail. Indeed, positive identification of the accused, when categorical and consistent, and without any ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial.[33] When AAA was raped, Republic Act No. 8353 or the Anti-Rape Law of 1997 (which repealed Article 335 of the Revised Penal Code and classified rape as a crime against persons) was already effective. The new provisions on rape, particularly, Articles 266-A and 266-B of the Revised Penal Code, read: Art. 266-A. Rape; When and how committed. - Rape is committed 1.) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation[.] Art. 266-B. Penalties.- Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

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xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim.

Under the above provision, one way to commit rape is having carnal knowledge of a woman using force or intimidation. Tejero herein was able to have carnal knowledge of AAA thrice by threatening to kill AAA and her family. Furthermore, Tejero also exercised moral ascendancy over AAA since Tejero was then cohabiting with BBB, AAAs mother, and AAA considered Tejero as her stepfather. Such moral ascendancy sufficiently qualifies as intimidation. Although the rape of a person under 18 years of age by the common-law spouse of the victim's mother is punishable by death, this penalty cannot be imposed on Tejero because his relationship was not what was alleged in the Informations.[34] Thus, Tejero is guilty only of three counts of simple rape, punishable by reclusion perpetua for each count. The award of civil indemnity to the rape victim is mandatory upon the finding that rape took place. Moral damages, on the other hand, are awarded to rape victims without need of proof other than the fact of rape under the assumption that the victim suffered moral injuries from the experience she underwent. Based on prevailing jurisprudence, the award of P50,000.00 as civil indemnity and another P50,000.00 as moral damages for each count of simple rape are proper.[35] Conformably with the ruling in People v. Esperanza,[36] when either one of the qualifying circumstances of relationship or minority (for qualified rape under Article 266-B of the Revised Penal Code) is omitted or lacking, that which is pleaded in the Information and proved by the evidence may be considered as an aggravating circumstance. As such, AAAs minority may be considered as an aggravating circumstance. When a crime is committed with an aggravating circumstance either as qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. Consequently, AAA is entitled to the additional award of exemplary damages in the amount of P30,000.00 for each count of simple rape.[37] WHEREFORE, the Decision dated November 28, 2008 of the Court of Appeals in CAG.R. CR.-H.C. No. 02905 is AFFIRMED with MODIFICATIONS. Accused-appellant Roger Tejero is found GUILTY beyond reasonable doubt of three (3) counts of SIMPLE RAPE and is sentenced to suffer the penalty of reclusion perpetua and ordered to pay the victim AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages for every count. All damages awarded in this case should be imposed with interest at the rate of six percent (6%) per annum from the finality of the judgment until fully paid.[38]

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No pronouncement as to costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO Associate Justice Acting Chairperson, First Division

WE CONCUR:

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

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ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

TERESITA J. LEONARDO-DE CASTRO Associate Justice Acting Chairperson, First Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

* ** [1]

[2] [3]

[4] [5] [6]

Per Special Order No. 1226 dated May 30, 2012. Per Special Order No. 1227 dated May 30, 2012. Rollo, pp. 2-14; penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Edgardo P. Cruz and Normandie B. Pizarro, concurring. CA rollo, pp. 70-74; penned by Judge Charito B. Gonzales. The real name of the victim is withheld to protect her identity and privacy pursuant to Section 29 of Republic Act No. 7610, Section 44 of Republic Act No. 9262, and Section 40 of A.M. No. 04-10-11-SC. See our ruling in People v. Cabalquinto, 533 Phil. 703 (2006). CA rollo, pp. 10-11. Id. at 8-9. Id. at 6-7.

13

[7] [8]

[9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25]

[26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38]

Id. at 10-11. Records (Crim. Case No. 2004-202), p. 13; (Crim. Case No. 2004-203), p. 11; and (Crim. Case No. 2004-204), p. 12. Records (Crim. Case No. 2004-202), p. 7. Id. at 20. CA rollo, p. 71. Id. at 72. Id. at 73-74. Rollo, p. 18. Id. at 22. Id. at 13. CA rollo, p. 58. Lateo v. People, G.R. No. 161651, June 8, 2011, 651 SCRA 262, 272. People v. Dollano, Jr., G.R. No. 188851, October 19, 2011. TSN, September 20, 2005, pp. 5-7. CA rollo, p. 73. G.R. No. 188897, June 6, 2011, 650 SCRA 620. Id. at 632. Records (Crim. Case No. 2004-202), p. 7. People v. Espinoza, 317 Phil. 79, 86-87 (1995); People v. Plaza, 312 Phil. 830, 838 (1995); People v. Abendano, 312 Phil. 625, 636 (1995); People v. Casil, 311 Phil. 300, 309 (1995). Id. Id. at 310. G.R. Nos. 107732-33, September 19, 1994, 236 SCRA 545. Id. at 552. People v. Atadero, G.R. No. 183455, October 20, 2010, 634 SCRA 327, 343. People v. Castro, G.R. No. 172691, August 10, 2007, 529 SCRA 800, 809. People v. Villaraza, 394 Phil. 175, 195 (2000). People v. Amatorio, G.R. No. 175837, August 9, 2010, 627 SCRA 292, 304-305. Id., citing People v. Fraga, 386 Phil. 884, 909-910 (2000). People v. Caada, G.R. No. 175317, October 2, 2009, 602 SCRA 378, 398. 453 Phil. 54 (2003). People v. Caada, supra note 35 at 398. People v. Bulagao, G.R. No. 184757, October 5, 2011.

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Republic of the Philippines Supreme Court Manila

THIRD DIVISION

ARNEL SISON y ESCUADRO, Petitioner,

G.R. No. 187229

Present:

- versus -

VELASCO, JR., J., Chairperson, PERALTA, ABAD, MENDOZA, and PERLAS-BERNABE, JJ.

PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: February 22, 2012 x-------------------------------------------------x

DECISION

PERALTA, J.: Before us is a petition for review on certiorari seeking the reversal of the Court of Appeals (CA) Decision[1] dated March 17, 2009, which affirmed with modification the Joint Decision [2] dated December 14, 2007 of the Regional Trial Court (RTC), Quezon City, Branch 81, finding petitioner

15

Arnel Sison guilty of the crimes of rape and violation of Presidential Decree (P.D.) No. 1866, as amended by Republic Act (R.A.) No. 8294.

On April 21, 2003, two (2) separate Informations were filed with the RTC against petitioner for Kidnapping with Rape and violation of P.D. 1866, as amended by R.A. 8294 (Illegal Possession of Firearms and Ammunitions). The accusatory portions of the two (2) Informations respectively state:

Criminal Case No. Q-03-116710

That on or about the 16th day of April 2003, in Quezon City, Philippines, the above-named accused, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously, armed with firearm, kidnap and rape one [AAA] in the following manner, to wit: said [AAA] boarded the Mitsubishi Adventure with plate no. CSV-606, driven by the accused who was then plying his route at Bocaue Toll Gate going to Cubao, Quezon City, and upon reaching EDSA corner New York Street, Cubao, this City, accused suddenly poked his gun at her, kidnap and detain her and forcibly brought her at the Town and Country, Sta. Mesa, Manila, where accused had carnal knowledge of her by force and intimidation against her will and without her consent.[3]

Criminal Case No. Q-03-116711

That on or about the 17th day of April 2003, in Quezon City, Philippines, the said accused, without any authority of law, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) Peter Stahl .45 caliber pistol with Serial Number A414 with five (5) ammunitions, without first having secured the necessary license/permit issued by the proper authorities.[4]

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Petitioner pleaded not guilty[5] to both charges.

Trial thereafter ensued. During the trial, two different versions were presented.

The evidence for the prosecution, as aptly summarized by the RTC and adopted by the CA, are as follows:

Private complainant [AAA] was, at the time of subject incident, a resident of x x x and was working on a 10:00 p.m.7:00 a.m. shift as a Product Support Representative with x x x. Since her residence is quite far from her place of work and considering her working hours, her aunt would usually bring her to the Bocaue toll gate and from there, she would ride either a Tamaraw FX or bus going to Cubao bound to her office.

At around 8:00 p.m. of April 16, 2003, *AAA+ boarded accuseds passenger van, a black Mitsubishi Adventure with plate number CSV-606, at the Bocaue toll gate. She sat at the front passenger seat as it was the only vacant seat at that time since there were already nine passengers on board. When they reached Quezon City, the passengers alighted one by one, the last of whom alighted in New York Street, Cubao, Quezon City. [AAA] was supposed to alight in Aurora Blvd. When they were already in front of Nepa Q-Mart and [AAA] was the only passenger left in the van, accused told her that he would change first the P100.00 bill that she paid. Her fare was only P30.00, so she still had a change of P70.00. Accused made a few turns until they reached an alley, with nobody passing through. [AAA] felt uneasy so she told the accused that she would alight, but then she heard cocking of a gun. Accused suddenly put his right arm over her right shoulder, drew her nearer to him, pointed a gun at her chest with his right hand, while [he] continued driving with his left hand. Accused kept driving for about ten to twenty minutes until such time that they entered a drive-thru. [AAA] saw the logo of the Town and Country Motel. She also noticed the signage of the AMA Computer College so she presumed that they were in Sta. Mesa, Quezon City. A boy approached the van and the accused slightly opened the window beside him. The boy pointed to a garage room to which the accused entered. When they were already inside the garage, the accused pushed [AAA] out of the van. With the gun pointed at her, accused dragged her upstairs and again pushed her inside a room. [AAA] sat on the lone chair inside the room. Accused approached her, pulled her from the chair and pushed her into the bed. [AAA] got up and ran to the door but the accused grabbed her before she

17

could reach it and pushed her again to the bed. [AAA] pleaded to the accused, telling him: Pakawalan mo na ako. Ayoko na dito. Meron pa akong pamilya. Sana maintindihan mo na hindi ako ganun klaseng babae, meron pa naman iba pang babae dyan. However, the accused did not heed her plea but instead, pinned her to the bed, grabbed her pants destroying the zipper in the process, stripped her of her panty and pants. Accused then removed his t-shirt, shorts and underwear and rubbed his penis against her vagina, inserted it into her vagina and made pumping motions a couple of times. [AAA] felt pain. She kept on pleading to the accused to stop abusing her, but the accused told her. Ang sarap-sarap mo. Pasensya ka na *AAA+ nakagamit ako ng drugs. After a while, [AAA] felt that something sticky was released from the accused. He then wore his t-shirt, underwear and shorts. [AAA] could no longer move as she was still in the state of shock and at the time, feeling sorry for herself for what had happened to her.

After the accused had sexual intercourse with [AAA], accused directed her to dress up to which she complied. Before they went out of the room, accused told her not to make any scene, otherwise, he would not hesitate to shoot her. When he dropped her off somewhere in Cubao, Quezon City, he again threatened her not to report the incident to the police as he would kill her. He even got her cell phone number. When the accused was gone, [AAA] boarded a taxi and proceeded to the office where she narrated to her supervisor and officemates what happened to her. Her officemates accompanied her to Police Station 7, Camp Panopio, P. Tuazon corner EDSA, Quezon City where she reported the incident and executed a sworn statement (Exhibit A).

At around 12:20 a.m. of April 17, 2003, while PO2 Mario Palic was on duty at Police Station 7, victim [AAA] arrived and reported her ordeal in the hands of the accused. Officer Palic, together with fellow police officers, namely, Police Inspector Gatos, PO3 Nacional, PO1 Sapulaan and PO2 Lanaso immediately conducted followup operations which led to the arrest of the accused in front of the Baliwag Bus Terminal, Cubao, Quezon City. Recovered from him was a .45 caliber Peter Stahl pistol with serial number A414 and five (5) ammunitions (Exhibits E and E-1 to E5). The police officers likewise brought the black Mitsubishi Adventure with plate number CSV 606 (Exhibit F) to the police station for proper disposition.

The investigation conducted by PO2 Regundina Sosa disclosed that accuseds Permit to Carry Firearm No. 1-B149052 has already expired on January 11, 2003 (Exhibit H).

18

Medico-Legal Report No. M-1231-03, dated April 24, 2003, submitted by Dr. Pierre Paul Carpio states that Subject is in non-virgin state physically. There are no external signs of application of any form of trauma. (Exhibit K)[6]

Petitioner denied the accusation and claimed that what happened between him and AAA was a consensual sex. The RTC summarized the evidence for the defense as follows:

At around 8:00 p.m. of April 16, 2006 (sic), which was a Holy Tuesday, [AAA] boarded his van in Bocaue, taking the front passenger seat. Aside from her, he has other four (4) passengers, two were seated at the middle passenger seat and the other two (2) were at the back passenger seat. While he was driving, he had a conversation with [AAA], such as she was a graduate of AMA Computer School, that she works in a computer company, that she sends her siblings to school, that her father is in a rehabilitation center and her parents are separated, that she has many rich suitors, that she has a hard time sending her siblings to school and she needs money at that time. In return, accused told [AAA] that he owns the van and that his wife works abroad. He made bola to her and offered to give her P4,000.00 and some signature clothes. [AAA] did not respond, so he just continue[d] driving. When they reached Aurora Blvd., Cubao,Quezon City, the other four (4) passengers alighted. From there, he made a U-turn, proceeded to their terminal and told the dispatcher to include him in his list so he could ply back toCabanatuan. Considering that [AAA] did not make any attempt to alight from the van, he made a right turn to New York Street, Cubao, Quezon City, right turn again at the back of the terminal and proceeded to Aurora Blvd. He then asked *AAA+ ano? When [AAA] did not respond again, he drove going to Sta. Mesa, Manila and proceeded to Gardenia Hotel. They waited for about two (2) minutes inside the premises of the hotel, as there were no vacant rooms at that time. Thereafter, a bellboy carrying a pail, approached them and pointed to a room. However, accused wanted a garage room so he opened the door of his van about a foot wide as his window had been damaged and told the bellboy what he wanted. The bellboy acceded to his request and directed them to a garage room. Accused maneuvered the van inside the garage. They went out of the van and proceeded upstairs where the room was located. When they entered, the bellboy, who was cleaning the room, left. [AAA] entered the comfort room, while accused watched T.V. After coming out of the comfort room, [AAA] sat on the bed. Accused started kissing her on the neck and

19

removed her tube blouse and transparent strapless bra and kissed her breasts, while [AAA] held his private part. When he reached out for the zipper of her pants and began unzipping it, [AAA] stood up and willingly removed her pants. Accused also removed his pants. He touched her private part and inserted his fingers on it. [AAA] embraced him, held his penis and she herself inserted it on her vagina. They made pumping motions. The sexual congress lasted for quite sometime because [AAA] even went on top of him, during which time, he held her breast. After [AAA] reached her climax, he went on top of her and afterwards, he ejaculated so he withdrew his penis from her vagina. Thereafter, they dressed up. Accused was about to pay [AAA] P800.00, but he changed his mind and instead, gave her P600.00 only and pocketed the remaining P200.00. [AAA] did not anymore [count] the money. He summoned the bellboy, paid their bill, went out of the room and boarded the van. While they were waiting for the bellboy to open the garage door, he checked his gun which he placed under the drivers seat. He even showed it to [AAA]. When the garage door was opened, they left the hotel premises and proceeded to Cubao. They passed by the SM Department Store but since it was already 11:00 p.m., it was already closed so he was not able to buy her the blouse and wallet that he promised her. He also told her that he had no more money. That irritated [AAA] who suddenly grabbed his wallet lying on the [dashboard]. Accused stopped the van, got back the wallet from [AAA] and even pulled her hair (Sinabunutan ko po siya). *AAA+ got angry and called him hayop. He then dropped her off somewhere in Cubao, while he went back to their terminal. At about 11:00 p.m., he plied the van to San Carlos, Pangasinan, reaching the place at about 4:00 a.m. the following day, April 17, 2003. From there, he went back to Cabanatuan terminal, arriving there at 5:30 a.m. After talking to the dispatcher, he went home to Bangad and slept. He woke up about lunchtime, took a bath, and plied again his van, leaving Cabanatuan at 1:00 p.m. and reaching Cubao at 4:00 p.m. It was then that he was arrested. While they were on board the police vehicle, one of the policemen showed him a picture which he recognized as [AAA]. The policemen brought him to Police Station 7 where he was told that a grave offense was filed against him. They demanded the amount of P150,000.00 for his release. The next day, his mother and sister arrived and talked to the policemen. His mother and sister agreed to pay the amount of P150,000.00 but when they came back, they were already accompanied by his lawyer, Atty. Hernani Barrios, who advised them not to yield to the demand which they did. He was presented to the inquest fiscal and transferred to the Quezon City Jail where he is detained up to now.

20

Accused further testified that he, being a civilian agent of the MICO, Philippine Army, Fort Magsaysay, Palayan City, was carrying a caliber .45 Peter Stahl pistol (Exhibit E) with five (5) ammunitions (Exhibits A1 to A-5). However, the policemen took his Permit to Carry Firearm, Memorandum Receipt (MR) and Mission Order (MO) when they arrested him.

Nova Tabbu, accuseds sister, merely corroborated his testimony that the policemen demanded the amount of P150,000.00 for his release.

xxx

xxx

x xx

Erwin Ocampo, a technical sergeant of the 46th Military Intelligence Company, Fort Magsaysay, Palayan City, testified that the accused is a presidential agent for which reason he has on file an Agent Recruitment Report, Agent Agreement, Application for I.D. card, Oath of Loyalty, Pseudonym Agreement, Profile Penetration Agent and Human Resource Report.

Geronimo Ebrogar testified that he noticed the accused leaving the bus terminal at around 8:00 p.m. on April 16, 2003 with a female companion; that when the accused returned at 10:30 p.m. of the same night, he was alone.[7]

On December 14, 2007, the RTC issued a Joint Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:

In Criminal Case No. Q-03-116710, the Court finds accused ARNEL SISON y ESCUADRO guilty beyond reasonable doubt of the crime of Kidnapping with Rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA with

21

all the accessory penalties provided by law, and to pay private complainant (AAA) the amounts of P75,000.00 as civil indemnity and P100,000.00 as moral damages.

In Criminal Case No. Q-03-116711, the Court finds ARNEL SISON y ESCUADRO guilty beyond reasonable doubt of the offense of Violation of P.D. 1866, as amended by R.A. 8294, and is hereby sentenced to suffer an indeterminate sentence of six (6) months and one (1) day to two (2) years and four (4) months, and to pay a fine of thirty thousand pesos (P30,000.00).[8]

The RTC found AAA's testimony, narrating how petitioner raped her, to be candid and straightforward, thus reflective of her honesty and credibility. It found nothing on record that would show that AAA was actuated by ill motive in filing the charges against petitioner. The RTC also noted that AAA even cried when she testified in court. It did not believe petitioner's claim that AAA was a small time prostitute, considering that she was a college graduate who was already working at the time of the incident and the fact that she immediately reported the rape incident to the police despite threat to her life.

As to the charge of illegal possession of firearm and ammunitions, the RTC found the elements of the crime to be duly proven. AAA testified that petitioner pointed a gun at her and because of such threat submitted herself to his bestial desire; the gun, as well as the ammunitions, was offered in evidence and even the accused admitted that he had a gun at the time of the incident. It was established through the testimony of police investigator Regundina Sosa that based on petitioner's permit to carry firearm outside residence, the same had already expired on January 11, 2003, few months before his apprehension.

Petitioner filed his appeal with the CA. The Office of the Solicitor General filed its Comment and petitioner his Reply thereto.

On March 17, 2009, the CA issued its assailed Decision affirming petitioner's conviction. The dispositive portion of the Decision reads:

22

WHEREFORE, the instant appeal is DISMISSED. The assailed Decision dated December 14, 2007 is hereby AFFIRMED with MODIFICATION as follows:

1. Regarding Criminal Case No. Q-03-116710, the Court finds accused ARNEL SISON y ESCUADRO guilty beyond reasonable doubt of the crime of RAPE qualified by the use of a deadly weapon, and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA with all the accessory penalties provided by law, and to pay private complainant the amounts of P75,000.00 as civil indemnity and P100,000.00 as moral damages.

2. Anent Criminal Case No. Q-03-116711, the Court finds accused ARNEL SISON y ESCUADRO guilty beyond reasonable doubt of the offense of Violation of P.D. 1866, as amended by R.A. 8294, and is hereby sentenced to suffer an indeterminate sentence of thirty (30) days to four (4) months. SO ORDERED.[9]

In so ruling, the CA pointed out that the crime committed was not kidnapping with rape, but only rape qualified with the use of a deadly weapon. Applying jurisprudence, it said that if the offender is only to rape the victim and in the process, the latter had to be illegally detained, only the crime of rape is committed since illegal detention is deemed absorbed in rape. The CA upheld the RTC's assessment of AAA's credibility, because of its unique position to observe the deportment of the witness while testifying. It also found that while the prosecution was able to prove that petitioner's license to carry said firearm outside residence already expired at the time he was apprehended with it, however, there was no showing that the firearm he carried on April 17, 2003 was not licensed or its license had expired, thus petitioner could only be liable for carrying a licensed firearm outside his residence under the last paragraph of Section 1, P.D. 1866, as amended. Hence, this petition for review on the following assignment of errors: A. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT, GIVING FULL CREDENCE TO THE TESTIMONIES OF THE PRIVATE COMPLAINANT , WHICH IS PUNCTURED WITH MATERIAL INCONSISTENCY,

23

UNCERTAINTY, UNRELIABILTY AND WHOSE TESTIMONIES WERE INHERENTLY WEAK, FLAWED AND CONTRARY TO NORMAL HUMAN BEHAVIOR THEREBY CASTING GRAVE DOUBT ON THE CRIMINAL CULPABILITY OF THE ACCUSED- APPELLANT. IT LIKEWISE TOOK THE TESTIMONY OF THE COMPLAINANT AS GOSPEL TRUTH SANS ANY CRITICAL SCRUTINY AND ACCEPTED THE SAME WITH PRECIPITATE CREDULITY.

B. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT BY FAILING TO APPRECIATE NUMEROUS VITAL EVIDENCE, WHICH IF CONSIDERED, WOULD OTHERWISE RESULT IN THE ACQUITTAL OF THE ACCUSEDAPPELLANT.

C. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT IN FINDING THAT ACCUSED-APPELLANT USED A DEADLY WEAPON AGAINST COMPLAINANT IN THE PERPETUATION OF THE ALLEGED INCIDENT IN QUESTION.

D. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT IN CONVICTING THE ACCUSED-APPELLANT WHEN THE EVIDENCE ADDUCED BY THE PROSECUTION FAILED TO MEET THE STANDARD OF MORAL CERTAINTY.[10]

Petitioner faults the CA for affirming his conviction on the basis of AAAs inconsistent and incredible testimony. He argues that he and AAA had given two conflicting testimonies and the RTC erred in giving more weight to the unsubstantiated testimony of AAA.

Petitioners assignment of errors hinges on AAAs credibility and the sufficiency of the prosecution evidence to convict him of the crimes charged.

In People v. Espino, Jr.,[11] we said:

24

Time and again, we have held that when the decision hinges on the credibility of witnesses and their respective testimonies, the trial court's observations and conclusions deserve great respect and are often accorded finality, unless there appears in the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated and which, if properly considered, would alter the result of the case. The trial judge enjoys the advantage of observing the witness' deportment and manner of testifying, her "furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath" all of which are useful aids for an accurate determination of a witness' honesty and sincerity. The trial judge, therefore, can better determine if such witnesses were telling the truth, being in the ideal position to weigh conflicting testimonies. Unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they were lying. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.[12]

We find no reason to disregard the findings of the RTC, as affirmed by the CA, that AAA was raped by petitioner on April 16, 2003, since their findings were supported by the evidence on record. AAA testified in a straightforward manner, declaring that petitioner, with the use of a gun poked at her chest, drove her to a motel and brought her to the motel parking garage, dragged her to the second floor, then pushed her to the room and then to the bed. She tried to run and reach for the door, but petitioner grabbed her and pushed her back to the bed. She was stripped of her pants and panty and, thereafter, petitioner took off his shorts and underwear and despite her plea, forced himself to her and had sex with her. Afterwards, with the gun in his hand, petitioner threatened to kill her if she would report the matter to the police. [13]

In rape cases, the essential element that the prosecution must prove is the absence of the victims consent to the sexual congress.[14] The gravamen of the crime of rape is sexual congress with a woman by force or intimidation and without consent.[15] Force in rape is relative, depending on the age, size and strength of the parties. In the same manner, intimidation must be viewed in the light of the victims perception and judgment at the time of the commission of the crime and not by any hard and fast rule.[16]

25

Petitioners act of holding a gun and threatening AAA with the same showed force or at least intimidation which was sufficient for her to submit to petitioners bestial desire for fear of her life.

Petitioner denies having raped AAA and claims that what transpired between him and AAA was a consensual sex. In his desire to be acquitted of the crime of rape, petitioner insists that AAAs testimony was replete with incredibilities and inconsistencies, thus not worthy of credence. First, petitioner claims that while AAA testified during her direct examination that his right arm was on her shoulder with a gun pointed at her chest, she also testified during her crossexamination that she was texting her officemates, thus under such a circumstance, it would be insane for him to allow her to text her officemates if he has plans of raping her.

We do not agree.

A reading of AAAs testimony during her cross-examination shows that she never said that she was texting her officemates at the time that a gun was already pointed at her. She testified that she was the last passenger in the vehicle driven by petitioner and the latter told her that he had no change for the 100-peso bill fare she paid him;[17] that petitioner continued driving, but when he did not stop in a store they passed by to have the 100-peso bill changed, it was then that she texted her officemates.[18] She decided to go down the vehicle, but it was moving fast[19] and, thereafter, petitioner pulled her nearer to him by putting his right hand on her shoulder and pointed a gun at her chest.[20] Hence, the texting of officemates happened before the gun was poked at her.

The fact that not one of AAA's textmates was presented as witness would not detract from her credibility. Jurisprudence has steadfastly been already repetitious that the accused may be convicted on the sole testimony of the victim in a rape case, provided that such testimony is credible, natural, convincing, and consistent with human nature and the normal course of things.[21] AAA repeatedly stated that petitioner sexually abused her against her will. The straightforward narration by AAA of what transpired, accompanied by her categorical identification of petitioner as the malefactor, sealed the case for the prosecution. [22]

26

Second, petitioner assails AAA's vivid remembrance of the places they passed by, which shows her relaxed condition in petitioners company.

Such contention is devoid of merit.

AAA was a 21-year-old working woman and was not blindfolded when they were traversing the roads on the way to the motel. Thus, she was able to read the landmarks and logos in the places that they passed by which included the name of the motel.

Third, petitioner contends that AAA had several opportunities to ask for help or escape while they were in the motel, i.e., when petitioner was negotiating with the motel roomboy for a room with a parking garage, and after the roomboy had left the garage and petitioner pushed her outside of the vehicle.

We are not persuaded.

AAA testified that when petitioner slightly opened the window of the driver's side to talk to the roomboy, only a part of petitioner's head could be seen and since the vehicle was heavily tinted, the roomboy could not see her.[23] Also, she could not also say a thing because the gun was poked at her.[24] And after she was pushed out of the vehicle, she tried to escape but petitioner who was still holding the gun went out of the vehicle and got hold of her. [25] These circumstances present no opportunity for her to escape. Moreover, people react differently under emotional stress.[26] There is no standard form of behavior when one is confronted by a shocking incident, especially if the assailant is physically near. The workings of the human mind when placed under emotional stress are unpredictable.[27] In a given situation, some may shout, others may faint, and still others may be frozen into silence. Consequently, the failure of complainant to run away or shout for help at the very first opportunity cannot be construed consent to the sexual intercourse.[28]

Fourth, petitioner avers that to strip an unwilling person of her clothes will result in a serious struggle. However, the medical report did not show any indication of contusion or hematoma on AAA's legs or abdomen.

27

Even assuming that AAA failed to put up a strong resistance to repel petitioner's physical aggression, such failure does not mean that she was not raped. Petitioner had a gun which was sufficient to intimidate her and to submit to his lustful desire. It is well settled that physical resistance need not be established in rape when intimidation is exercised upon a victim and the latter submits herself, against her will, to the rapists advances because of fear for her life and personal safety.[29]

Fifth, petitioner points out the impossibility of AAA's account that his right arm was around her right shoulder poking a gun at her chest while his left hand was at the wheels, because such position would not allow him to change gear while making turns.

Such contention remained unsubstantiated and, therefore, self-serving. As the Solicitor General correctly argued, petitioner neglected to prove such impossibility by actual demonstration which is fatal to his cause.

Sixth, petitioner insists that he and AAA had a getting-to-know conversation during the trip, which explained why AAA even testified that he uttered her name during the sexual act; that she even got his cell phone number and it was through her text message that she arranged a tip for his arrest.

Such contention fails to persuade.

Granting that they had a conversation during the trip since AAA was seated in the front seat, such circumstance did not establish that she agreed to the sexual act. In fact, there is no evidence to prove petitioners claim that after the incident, AAA texted him and arranged for them to meet and was then apprehended by the police. The prosecution established that it was through the efforts of the police that petitioner was apprehended. Police Officer Mario Palic testified that based on the complaint for rape lodged by AAA in their station, he and the other police officers made a follow-up.[30] After which, they received an information that the vehicle used in the rape incident was parked along Edsa, New York, Quezon City, in front of the Baliwag

28

Terminal.[31] Together with AAA, they proceeded to the place where the vehicle was parked and when AAA saw petitioner standing near the parked vehicle, she identified him as her rapist.[32]

Seventh, petitioner claims that his failure to give AAA the amount of P4,000.00 and the things he had promised to buy for her was the reason why AAA charged him with the crime of rape.

Such argument deserves scant consideration.

We find apropos what the RTC said in the issue, thus:

x x x Even in these very hard times, the court could not believe that AAA, a college graduate of x x x Computer College and working as a Product Support Representative with x x x would stoop so low to subject herself to the shame and scandal of having undergone such a debasing defilement of her chastity if the charge filed were not true. [33]

In fact, while petitioner, in his direct testimony, was portraying AAA as a prostitute, the latter cried.[34] AAA's crying shows how she might have felt after being raped by the petitioner and yet be accused of a woman of loose morals. The victim's moral character in rape is immaterial where it is shown that intimidation was used for the victim to have sex with the accused. [35]

The truthfulness of AAAs charge for rape was further bolstered by her conduct immediately after the rape incident. After petitioner dropped her off in Cubao, AAA immediately went to her office and narrated her ordeal to her officemates. Accompanied by them, she went to the police station to report the incident and submitted herself to medical examination.

However, as to petitioner's conviction for illegal possession of firearms, such judgment must be set aside. We find that he can no longer be held liable for such offense since another crime was committed, i.e., rape.

29

P.D. 1866, as amended by RA 8294, the law governing Illegal Possession of Firearms provides:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as highpowered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter, such as caliber .40, .41, .44, .45 and also lesser-calibered firearms but considered powerful, such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use, unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

In People v. Ladjaalam,[36] we laid down the correct interpretation of the law and ruled:

30

x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance. xxxx x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.[37]

All told, we affirm petitioner's conviction for the crime of rape. However, petitioner's conviction of illegal possession of firearms is set aside. Under Article 266-B of the Revised Penal Code, whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. The prosecution was able to sufficiently allege in the Information, and establish during trial, that a gun was used in the commission of rape. Since no aggravating or mitigating circumstance was established in the commission of the crime, the lesser penalty shall be imposed.[38] Thus, we affirm the penalty of reclusion perpetua meted by the courts below. As to the damages awarded for the crime of qualified rape, however, modifications are in order. Considering that the penalty imposable is reclusion perpetua, the award of P75,000.00 as civil indemnity must be reduced to P50,000.00.[39] Also the award of P100,000.00 as moral damages should be reduced to P50,000.00 based on prevailing jurisprudence.[40] Exemplary damages in the amount of P30,000.00 should be awarded by reason of the established presence of the qualifying circumstance of use of a deadly weapon.[41]

31

In addition, interest at the rate of six percent (6%) per annum shall be imposed on all damages awarded from the date of finality of this judgment until fully paid, likewise pursuant to prevailing jurisprudence.[42]

WHEREFORE, the Decision dated March 17, 2009 of the Court of Appeals, sentencing petitioner Arnel Sison y Escuadro to reclusion perpetua for the crime of qualified rape, is hereby AFFIRMED with MODIFICATION that he is ORDERED to pay AAA the reduced amounts of P50,000.00 as civil indemnity andP50,000.00 as moral damages. Petitioner is also ORDERED to pay P30,000.00 as exemplary damages and interest at the rate of six percent (6%) per annum is imposed on all the damages awarded from the date of finality of this judgment until fully paid.

Petitioner's conviction of Illegal Possession of Firearms is hereby REVERSED and SET ASIDE.

SO ORDERED.

DIOSDADO M. PERALTA Associate Justice WE CONCUR:

PRESBITERO J. VELASCO, JR. Associate Justice

32

Chairperson

ROBERTO A. ABAD Associate Justice

JOSE CATRAL MENDOZA Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

PRESBITERO J. VELASCO, JR. Associate Justice Third Division, Chairperson

33

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

[1]

Penned by Associate Justice Vicente S. E. Veloso, with Associate Justices Edgardo P. Cruz and Ricardo R. Rosario, concurring; rollo, pp. 61-78. [2] Per Judge Ma. Theresa L. dela Torre-Yadao; id. at 128-139. [3] CA rollo, p. 10. [4] Id. at 12. [5] Records, p. 27. [6] Rollo, pp. 64-65.
[7] [8] [9] [10] [11] [12] [13] [14] [15]

Id. at 66-68. Id. at 139. Id. at 77-78. Id. at 23-24. G.R. No. 176742, June 17, 2008, 554 SCRA 682. Id. at 696-697. TSN, July 2, 2003, pp. 8-14. People v. Baluya, G.R. No. 133005, April 11, 2005, 380 SCRA 532, 542. Id., citing People v. Dela Cruz, G.R. Nos. 131167-68, August 23, 2000, 338 SCRA 582.

34

[16] [17] [18] [19] [20] [21] [22]

Id., citing People v. Yparraguire, G.R. No. 124391, July 5, 2000, 335 SCRA 69. TSN, August 14, 2003, p. 3. Id. at 8. Id. at 10. Id. People v. Espino, Jr., supra note 11, at 701. Id. at 702, citing People v. Macapal, Jr., G.R. No. 155335, July 14, 2005, 463 SCRA TSN, September 10, 2003, p. 5. Id. at 6-7. TSN, July 2, 2003, p. 10. People v. Sandig, G.R. No. 143124, July 25, 2003, 407 SCRA 280, 287. Id. Id., citing People v. Gecomo, G.R. Nos. 115035-36, February 23, 1996, 254 SCRA 82. People v. Magbanua, G.R. No. 176265, April 30, 2008, 553 SCRA 698, 705. TSN, October 15, 2003, pp. 4-5. Id. at 6 Id. at 7. Rollo, p. 137. TSN, June 8, 2007, p. 8. People v. Baluya, G.R. No. 133005, April 11, 2002, 380 SCRA 532, 545. G.R. Nos. 136149-51, September 19, 2000, 340 SCRA 617.

387, 400.
[23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38]

Id. at 648-650. Revised Penal Code, Art. 63. [39] People of the Philippines v. Carlo Dumadag y Romio, G.R. No. 176740, June 22, 2011, citing People v. Macapanas, G.R. No. 187049, May 4, 2010, 620 SCRA 54, 76; People v. Jumawid, G.R. No. 184756, June 5, 2009, 588 SCRA 808. [40] Id. [41] Id., citing People v. Toriaga, G.R. No. 177145, February 9, 2011, 642 SCRA 515. [42] Id., citing People v. Jimmy Alverio, G.R. No. 194259, March 16, 2011; People v. Jose Galvez y Blanco, G.R. No. 181827, February 2, 2011.

35

Republic of the Philippines Supreme Court Manila THIRD DIVISION SALVADOR YAPYUCO y ENRIQUEZ, Petitioner, - versus HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents. x---------------------------x MARIO D. REYES, ANDRES S. G.R. No. 122677 REYES and VIRGILIO A. MANGUERRA, Petitioners, - versus HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents. x--------------------------x GERVACIO B. CUNANAN, JR. and G.R. No. 122776 ERNESTO PUNO, Petitioners, Present: PERALTA, J., Acting Chairperson,* BERSAMIN, ** ABAD, VILLARAMA, JR., *** and PERLAS-BERNABE, JJ. G.R. Nos. 120744-46

- versus -

HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Promulgated: Respondents. June 25, 2012 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

36

PERALTA, J.: Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton violence is never justified when their duty could be performed otherwise. A shoot first, think later disposition occupies no decent place in a civilized society. Never has homicide or murder been a function of law enforcement. The public peace is never predicated on the cost of human life. These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the June 30, 1995 Decision[1] of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614 cases for murder, frustrated murder and multiple counts of attempted murder, respectively. The cases are predicated on a shooting incident on April 5, 1988 in Barangay Quebiawan, San Fernando, Pampanga which caused the death of Leodevince Licup (Licup) and injured Noel Villanueva (Villanueva). Accused were petitioners Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National Police (INP)[2] stationed at the Sindalan Substation in San Fernando, Pampanga; Jose Pamintuan (Pamintuan) and Mario Reyes, who were barangay captains of Quebiawan and Del Carmen, respectively; Ernesto Puno, Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David, Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David (David), who were either members of the Civil Home Defense Force (CHDF) or civilian volunteer officers in Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with murder, multiple attempted murder and frustrated murder in three Informations, the inculpatory portions of which read: Criminal Case No. 16612: That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively, confederating and mutually helping one another, and while responding to information about the presence of armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and with deliberate intent to take the life of Leodevince S. Licup, attack the latter with automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple gunshot wounds which are necessarily mortal on the different parts of the body, thereby causing the direct and immediate death of the latter. CONTRARY TO LAW.[3]

37

Criminal Case No. 16613: That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively, confederating and mutually helping one another, and while responding to information about the presence of armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent to kill, attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having commenced the commission of murder directly by overt acts of execution which should produce the murder by reason of some cause or accident other than their own spontaneous desistance. CONTRARY TO LAW.[4] Criminal Case No. 16614: That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force (CHDF), respectively, confederating and mutually helping one another, and while responding to information about the presence of armed men in said barangay and conducting surveillance thereof, thus committing the offense in relation to their office, did then and there, with treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent of taking the life of Noel C. Villanueva, attack the latter with automatic weapons by firing directly at the green Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple gunshot wounds which are necessarily mortal and having performed all the acts which would have produced the crime of murder, but which did not, by reason of causes independent of the defendants will, namely, the able and timely medical assistance given to said Noel C. Villanueva, which prevented his death. CONTRARY TO LAW.[5]

Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities,[6] the accused except Pabalan who died earlier on June 12, 1990,[7] and Yapyuco who was then allegedly indisposed[8] entered individual pleas of not guilty.[9] A month later, Yapyuco voluntarily

38

surrendered to the authorities, and at his arraignment likewise entered a negative plea.[10] In the meantime, Mario Reyes, Andres Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative to Criminal Case No. 16612.[11] Said motion was heard on the premise, as previously agreed upon by both the prosecution and the defense, that these cases would be jointly tried and that the evidence adduced at said hearing would automatically constitute evidence at the trial on the merits.[12] On May 10, 1991, the Sandiganbayan granted bail in Criminal Case No. 16612.[13] Yapyuco likewise applied for bail on May 15, 1991 and the same was also granted on May 21, 1991.[14] Pamintuan died on November 21, 1992,[15] and accordingly, the charges against him were dismissed. At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial inquest. [16] Hence, joint trial on the merits ensued and picked up from where the presentation of evidence left off at the hearing on the bail applications. The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma, De Vera, Panlican and Licup were at the residence of Salangsang as guests at the barrio fiesta celebrations between 5:00 and 7:30 p.m.. The company decided to leave at around 7:30 p.m., shortly after the religious procession had passed. As they were all inebriated, Salangsang reminded Villanueva, who was on the wheel, to drive carefully and watch out for potholes and open canals on the road. With Licup in the passenger seat and the rest of his companions at the back of his Tamaraw jeepney, Villanueva allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as they were approaching a curve on the road, they met a burst of gunfire and instantly, Villanueva and Licup were both wounded and bleeding profusely.[17] Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not see any one on the road flag them down.[18] In open court, Flores executed a sketch[19] depicting the relative location of the Tamaraw jeepney on the road, the residence of Salangsang where they had come from and the house situated on the right side of the road right after the curve where the jeepney had taken a left turn; he identified said house to be that of a certain Lenlen Naron where the gunmen allegedly took post and opened fire at him and his companions. He could not tell how many firearms were used. He recounted that after the shooting, he, unaware that Licup and Villanueva were wounded, jumped out of the jeepney when he saw from behind them Pamintuan emerging from the yard of Narons house. Frantic and shaken, he instantaneously introduced himself and his companions to be employees of San Miguel Corporation but instead, Pamintuan reproved them for not stopping when flagged. At this point, he was distracted when Villanueva cried out and told him to summon Salangsang for help as he (Villanueva) and Licup were

39

wounded. He dashed back to Salangsangs house as instructed and, returning to the scene, he observed that petitioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao jeepney to be taken to the hospital.[20] This was corroborated by Villanueva who stated that as soon as the firing had ceased, two armed men, together with Pamintuan, approached them and transferred him and Licup to another jeepney and taken to the nearby St. Francis Hospital.[21] Flores remembered that there were two sudden bursts of gunfire which very rapidly succeeded each other, and that they were given no warning shot at all contrary to what the defense would say.[22] He professed that he, together with his co-passengers, were also aboard the Sarao jeepney on its way to the hospital and inside it he observed two men, each holding long firearms, seated beside the driver. He continued that as soon as he and his companions had been dropped off at the hospital, the driver of the Sarao jeepney immediately drove off together with his two armed companions.[23] He further narrated that the day after the shooting, he brought Licup to the Makati Medical Center where the latter expired on April 7, 1988.[24] He claimed that all the accused in the case had not been known to him prior to the incident, except for Pamintuan whom he identified to be his wifes uncle and with whom he denied having had any rift nor with the other accused for that matter, which would have otherwise inspired ill motives. [25] He claimed the bullet holes on the Tamaraw jeepney were on the passenger side and that there were no other bullet holes at the back or in any other portion of the vehicle.[26] Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence of his companions at his residence on the subject date and time, and corroborated Villanuevas and Flores narration of the events immediately preceding the shooting. He recounted that after seeing off his guests shortly after the procession had passed his house and reminding them to proceed carefully on the pothole-studded roads, he was alarmed when moments later, he heard a volley of gunfire from a distance which was shortly followed by Flores frantic call for help. He immediately proceeded to the scene on his bicycle and saw Pamintuan by the lamppost just outside the gate of Narons house where, inside, he noticed a congregation of more or less six people whom he could not recognize. [27] At this point, he witnessed Licup and Villanueva being loaded into another jeepney occupied by three men who appeared to be in uniform. He then retrieved the keys of the Tamaraw jeepney from Villanueva and decided to deliver it to his mothers house, but before driving off, he allegedly caught a glance of Mario Reyes on the wheel of an owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same jeepney which he remembered to be that frequently used by Yapyuco in patrolling the barangay. He claimed he spent the night at his mothers house and in the morning, a policeman came looking for him with whom, however, he was not able to talk.[28]

40

Salangsang observed that the scene of the incident was dark because the electric post in front of Narons house was strangely not lit when he arrived, and that none of the neighboring houses was illuminated. He admitted his uncertainty as to whether it was Yapyucos group or the group of Pamintuan that brought his injured companions to the hospital, but he could tell with certainty that it was the Sarao jeepney previously identified by Villanueva and Flores that brought his injured companions to the hospital.[29] Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp Olivas, affirmed that she had previously examined the firearms suspected to have been used by petitioners in the shooting and found them positive for gunpowder residue. She could not, however, determine exactly when the firearms were discharged; neither could she tell how many firearms were discharged that night nor the relative positions of the gunmen. She admitted having declined to administer paraffin test on petitioners and on the other accused because the opportunity therefor came only 72 hours after the incident. She affirmed having also examined the Tamaraw jeepney and found eleven (11) bullet holes on it, most of which had punctured the door at the passenger side of the vehicle at oblique and perpendicular directions. She explained, rather inconclusively, that the bullets that hit at an angle might have been fired while the jeepney was either at a standstill or moving forward in a straight line, or gradually making a turn at the curve on the road.[30] Additionally, Silvestre Lapitan, administrative and supply officer of the INP-Pampanga Provincial Command tasked with the issuance of firearms and ammunitions to members of the local police force and CHDF and CVO members, identified in court the memorandum receipts for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and Yapyuco.[31] Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the injuries of Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel from the occipital region of Villanuevas head as well as from the posterior aspect of his chest; he noted nothing serious in these wounds in that the incapacity would last between 10 and 30 days only. He also located a bullet wound on the front lateral portion of the right thigh, and he theorized that this wound would be caused by a firearm discharged in front of the victim, assuming the assailant and the victim were both standing upright on the ground and the firearm was fired from the level of the assailants waist; but if the victim was seated, the position of his thigh must be horizontal so that with the shot coming from his front, the trajectory of the bullet would be upward. He hypothesized that if the shot would come behind Villanueva, the bullet would enter the thigh of the seated victim and exit at a lower level.[32]

41

With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient, he noted a lacerated wound at the right temporal region of the head one consistent with being hit by a hard and blunt object and not a bullet. He noted three (3) gunshot wounds the locations of which suggested that Licup was upright when fired upon from the front: one is a through-andthrough wound in the middle lateral aspect of the middle portion of the right leg; another, throughand-through wound at the middle portion of the right forearm; and third one, a wound in the abdomen which critically and fatally involved the stomach and the intestines. He hypothesized that if Licup was seated in the passenger seat as claimed, his right leg must have been exposed and the assailant must have been in front of him holding the gun slightly higher than the level of the bullet entry in the leg. He found that the wound in the abdomen had entered from the left side and crossed over to and exited at the right, which suggested that the gunman must have been positioned at Licups left side. He explained that if this wound had been inflicted ahead of that in the forearm, then the former must have been fired after Licup had changed his position as a reaction to the first bullet that hit him. He said that the wound on the leg must have been caused by a bullet fired at the victims back and hit the jeepney at a downward angle without hitting any hard surface prior.[33] Dr. Solis believed that the wound on Licups right forearm must have been caused by a bullet fired from the front but slightly obliquely to the right of the victim. Hypothesizing, he held the improbability of Licup being hit on the abdomen, considering that he might have changed position following the infliction of the other wounds, unless there was more than one assailant who fired multiple shots from either side of the Tamaraw jeepney; however, he proceeded to rule out the possibility of Licup having changed position especially if the gunfire was delivered very rapidly. He could not tell which of Licups three wounds was first inflicted, yet it could be that the bullet to the abdomen was delivered ahead of the others because it would have caused Licup to lean forward and stoop down with his head lying low and steady.[34] Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission (NAPOLCOM) affirmed that the accused police officers Yapyuco, Cunanan and Puno had been administratively charged with and tried for gross misconduct as a consequence of the subject shooting incident and that he had in fact conducted investigations thereon sometime in 1989 and 1990 which culminated in their dismissal from service.[35] Dolly Porquerio, stenographer at the NAPOLCOM, testified that at the hearing of the administrative case, Yapyuco authenticated the report on the shooting incident dated April 5, 1988 which he had previously prepared at his office. This, according to her, together with the sketch showing the relative position of the responding law enforcers and the Tamaraw jeepney at the scene of the incident, had been forwarded to the NAPOLCOM Central Office for consideration.[36] The Sandiganbayan, in fact, subpoenaed these

42

documents together with the joint counter-affidavits which had been submitted in that case by Yapyuco, Cunanan and Puno. Of all the accused, only Yapyuco took the stand for the defense. He identified himself as the commander of the Sindalan Police Substation in San Fernando, Pampanga and the superior officer of petitioners Cunanan and Puno and of the accused Yu whose jurisdiction included Barangays Quebiawan and Telebastagan. He narrated that in the afternoon of April 5, 1988, he and his men were investigating a physical injuries case when Yu suddenly received a summon for police assistance from David, who supposedly was instructed by Pamintuan, concerning a reported presence of armed NPA members in Quebiawan. Yapyuco allegedly called on their main station in San Fernando for reinforcement but at the time no additional men could be dispatched. Hence, he decided to respond and instructed his men to put on their uniforms and bring their M-16 rifles with them.[37] Yapyuco continued that at the place appointed, he and his group met with Pamintuan who told him that he had earlier spotted four (4) men carrying long firearms. As if sizing up their collective strength, Pamintuan allegedly intimated that he and barangay captain Mario Reyes of nearby Del Carmen had also brought in a number of armed men and that there were likewise Cafgu members convened at the residence of Naron. Moments later, Pamintuan announced the approach of his suspects, hence Yapyuco, Cunanan and Puno took post in the middle of the road at the curve where the Tamaraw jeepney conveying the victims would make an inevitable turn. As the jeepney came much closer, Pamintuan announced that it was the target vehicle, so he, with Cunanan and Puno behind him, allegedly flagged it down and signaled for it to stop. He claimed that instead of stopping, the jeepney accelerated and swerved to its left. This allegedly inspired him, and his fellow police officers Cunanan and Puno,[38] to fire warning shots but the jeepney continued pacing forward, hence they were impelled to fire at the tires thereof and instantaneously, gunshots allegedly came bursting from the direction of Narons house directly at the subject jeepney.[39] Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at Pamintuan that they were San Miguel Corporation employees. Holding their fire, Yapyuco and his men then immediately searched the vehicle but found no firearms but instead, two injured passengers whom they loaded into his jeepney and delivered to nearby St. Francis Hospital. From there he and his men returned to the scene supposedly to investigate and look for the people who fired directly at the jeepney. They found no one; the Tamaraw jeepney was likewise gone.[40]

43

Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time was in bad shape, as in fact there were several law enforcement officers in the area who had been ambushed supposedly by rebel elements,[41] and that he frequently patrolled the barangay on account of reported sightings of unidentified armed men therein.[42] That night, he said, his group which responded to the scene were twelve (12) in all, comprised of Cunanan and Puno from the Sindalan Police Substation, [43] the team composed of Pamintuan and his men, as well as the team headed by Captain Mario Reyes. He admitted that all of them, including himself, were armed.[44] He denied that they had committed an ambuscade because otherwise, all the occupants of the Tamaraw jeepney would have been killed. [45] He said that the shots which directly hit the passenger door of the jeepney did not come from him or from his fellow police officers but rather from Cafgu members assembled in the residence of Naron, inasmuch as said shots were fired only when the jeepney had gone past the spot on the road where they were assembled.[46] Furthermore, Yapyuco professed that he had not communicated with any one of the accused after the incident because he was at the time very confused; yet he did know that his co-accused had already been investigated by the main police station in San Fernando, but the inquiries did not include himself, Cunanan and Puno.[47] He admitted an administrative case against him, Cunanan and Puno at the close of which they had been ordered dismissed from service; yet on appeal, the decision was reversed and they were exonerated. He likewise alluded to an investigation independently conducted by their station commander, S/Supt. Rolando Cinco. [48] S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga acknowledged the volatility of the peace and order situation in his jurisdiction, where members of the police force had fallen victims of ambuscade by lawless elements. He said that he himself has actually conducted investigations on the Pamintuan report that rebel elements had been trying to infiltrate the employment force of San Miguel Corporation plant, and that he has accordingly conducted clearing operations in sugarcane plantations in the barangay. He intimated that days prior to the incident, Yapyucos team had already been alerted of the presence of NPA members in the area. Corroborating Yapyucos declaration, he confessed having investigated the shooting incident and making a report on it in which, curiously, was supposedly attached Pamintuans statement referring to Flores as being married to a resident of Barangay Quebiawan and found after surveillance to be frequently visited by NPA members. He affirmed having found that guns were indeed fired that night and that the chief investigator was able to gather bullet shells from the scene.[49]

44

Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco as well as the latters documentary evidence.[50] Mario Reyes, Andres Reyes, Lugtu, Lacson, Yu and Manguera, waived their right to present evidence and submitted their memorandum as told.[51] The Sandiganbayan reduced the basic issue to whether the accused had acted in the regular and lawful performance of their duties in the maintenance of peace and order either as barangay officials and as members of the police and the CHDF, and hence, could take shelter in the justifying circumstance provided in Article 11 (5) of the Revised Penal Code; or whether they had deliberately ambushed the victims with the intent of killing them.[52] With the evidence in hand, it found Yapyuco, Cunanan, Puno, Manguera and Mario and Andres Reyes guilty as co-principals in the separate offense of homicide for the eventual death of Licup (instead of murder as charged in Criminal Case No. 16612) and of attempted homicide for the injury sustained by Villanueva (instead of frustrated murder as charged in Criminal Case No. 16614), and acquitted the rest in those cases. It acquitted all of them of attempted murder charged in Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and Calma. The dispositive portion of the June 30, 1995 Joint Decision reads: WHEREFORE, judgment is hereby rendered as follows: I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-principals in the offense of Homicide, as defined and penalized under Article 249 of the Revised Penal Code, and crediting all of them with the mitigating circumstance of voluntary surrender, without any aggravating circumstance present or proven, each of said accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1) DAY of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as the maximum; to indemnify, jointly and severally, the heirs of the deceased victim Leodevince Licup in the amounts ofP77,000.00 as actual damages and P600,000.00 as moral/exemplary damages, and to pay their proportionate shares of the costs of said action. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged in the information, namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Carlos David y Baez, Ruben Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y Barrera, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are

II.

45

hereby acquitted of the offense of Multiple Attempted Murder charged therein, with costs de oficio. III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-principals in the offense Attempted Homicide, as defined and penalized under Article 249, in relation to Article 6, paragraph 3, both of the Revised Penal Code, and crediting them with the mitigating circumstance of voluntary surrender, without any aggravating circumstance present or proven, each of said accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision correccional as the minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as the maximum; to indemnify, jointly and severally, the offended party Noel Villanueva in the amount of P51,700.00 as actual and compensatory damages, plus P120,000.00 as moral/exemplary damages, and to pay their proportionate share of the costs of said action. SO ORDERED.[53]

The Sandiganbayan declared that the shootout which caused injuries to Villanueva and which brought the eventual death of Licup has been committed by petitioners herein willfully under the guise of maintaining peace and order;[54] that the acts performed by them preparatory to the shooting, which ensured the execution of their evil plan without risk to themselves, demonstrate a clear intent to kill the occupants of the subject vehicle; that the fact they had by collective action deliberately and consciously intended to inflict harm and injury and had voluntarily performed those acts negates their defense of lawful performance of official duty;[55] that the theory of mistaken belief could not likewise benefit petitioners because there was supposedly no showing that they had sufficient basis or probable cause to rely fully on Pamintuans report that the victims were armed NPA members, and they have not been able by evidence to preclude ulterior motives or gross inexcusable negligence when they acted as they did;[56] that there was insufficient or total absence of factual basis to assume that the occupants of the jeepney were members of the NPA or criminals for that matter; and that the shooting incident could not have been the product of a well-planned and well-coordinated police operation but was the result of either a hidden agenda concocted by Barangay Captains Mario Reyes and Pamintuan, or a hasty and amateurish attempt to gain commendation.[57]

46

These findings obtain context principally from the open court statements of prosecution witnesses Villanueva, Flores and Salangsang, particularly on the circumstances prior to the subject incident. The Sandiganbayan pointed out that the Tamaraw jeepney would have indeed stopped if it had truly been flagged down as claimed by Yapyuco especially since as it turned out after the search of the vehicle they had no firearms with them, and hence, they had nothing to be scared of.[58] It observed that while Salangsang and Flores had been bona fide residents of Barangay Quebiawan, then it would be impossible for Pamintuan, barangay captain no less, not to have known them and the location of their houses which were not far from the scene of the incident; so much so that the presence of the victims and of the Tamaraw jeepney in Salangsangs house that evening could not have possibly escaped his notice. In this regard, it noted that Pamintuans Sworn Statement dated April 11, 1988 did not sufficiently explain his suspicions as to the identities of the victims as well as his apparent certainty on the identity and whereabouts of the subject Tamaraw jeepney. [59] It surmised how the defense, especially Yapyuco in his testimony, could have failed to explain why a large group of armed men which allegedly included Cafgu members from neighboring barangays were assembled at the house of Naron that night, and how petitioners were able to identify the Tamaraw jeepney to be the target vehicle. From this, it inferred that petitioners had already known that their suspect vehicle would be coming from the direction of Salangsangs house such knowledge is supposedly evident first, in the manner by which they advantageously positioned themselves at the scene to afford a direct line of fire at the target vehicle, and second, in the fact that the house of Naron, the neighboring houses and the electric post referred to by prosecution witnesses were deliberately not lit that night.[60] The Sandiganbayan also drew information from Flores sketch depicting the position of the Tamaraw jeepney and the assailants on the road, and concluded that judging by the bullet holes on the right side of the jeepney and by the declarations of Dr. Solis respecting the trajectory of the bullets that hit Villanueva and Licup, the assailants were inside the yard of Narons residence and the shots were fired at the jeepney while it was slowly moving past them. It also gave weight to the testimony and the report of Dabor telling that the service firearms of petitioners had been tested and found to be positive of gunpowder residue, therefore indicating that they had indeed been discharged.[61] The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence pointing to the culpability of petitioners: the nature and location of the bullet holes on the jeepney and the gunshot wounds on the victims, as well as the trajectory of the bullets that caused such damage and injuries; particularly, the number, location and trajectory of the bullets that hit the front passenger side of the jeepney; the strategic placement of the accused on the right side of the street

47

and inside the front yard of Narons house; the deliberate shutting off of the lights in the nearby houses and the lamp post; and the positive ballistic findings on the firearms of petitioners. [62] This evidentiary resum, according to the Sandiganbayan, not only fortified petitioners admission that they did discharge their firearms, but also provided a predicate to its conclusion that petitioners conspired with one another to achieve a common purpose, design and objective to harm the unarmed and innocent victims. Thus, since there was no conclusive proof of who among the several accused had actually fired the gunshots that injured Villanueva and fatally wounded Licup, the Sandiganbayan imposed collective responsibility on all those who were shown to have discharged their firearms that night petitioners herein.[63] Interestingly, it was speculated that the manner by which the accused collectively and individually acted prior or subsequent to or contemporaneously with the shooting indicated that they were either drunk or that some, if not all of them, had a grudge against the employees of San Miguel Corporation;[64] and that on the basis of the self-serving evidence adduced by the defense, there could possibly have been a massive cover-up of the incident by Philippine Constabulary and INP authorities in Pampanga as well as by the NAPOLCOM.[65] It likewise found very consequential the fact that the other accused had chosen not to take the witness stand; this, supposedly because it was incumbent upon them to individually explain their participation in the shooting in view of the weight of the prosecution evidence, their invocation of the justifying circumstance of lawful performance of official duty and the declaration of some of them in their affidavits to the effect that they had been deployed that evening in the front yard of Narons residence from which the volley of gunfire was discharged as admitted by Yapyuco himself.[66] As to the nature of the offenses committed, the Sandiganbayan found that the qualifying circumstance of treachery has not been proved because first, it was supposedly not shown how the aggression commenced and how the acts causing injury to Villanueva and fatally injuring Licup began and developed, and second, this circumstance must be supported by proof of a deliberate and conscious adoption of the mode of attack and cannot be drawn from mere suppositions or from circumstances immediately preceding the aggression. The same finding holds true for evident premeditation because between the time Yapyuco received the summons for assistance from Pamintuan through David and the time he and his men responded at the scene, there was found to be no sufficient time to allow for the materialization of all the elements of that circumstance.[67] Finally as to damages, Villanueva had testified that his injury required leave from work for 60 days which were all charged against his accumulated leave credits;[68]that he was earning P8,350.00 monthly;[69] and that he had spent P35,000.00 for the repair of his Tamaraw

48

jeepney.[70] Also, Teodoro Licup had stated that his family had spent P18,000.00 for the funeral of his son, P28,000.00 during the wake, P11,000.00 for the funeral plot and P20,000.00 in attorneys fees for the prosecution of these cases.[71] He also submitted a certification from San Miguel Corporation reflecting the income of his deceased son.[72] On these bases, the Sandiganbayan ordered petitioners, jointly and severally, to indemnify (a) Villanueva P51,700.00 as actual and compensatory damages and P120,000.00 as moral/exemplary damages, plus the proportionate costs of the action, and (b) the heirs of deceased Licup in the amount of P77,000.00 as actual damages and P600,000.00 as moral/exemplary damages, plus the proportionate costs of the action. Petitioners motion for reconsideration was denied; hence, the present recourse. In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayans finding of conspiracy and labels the same to be conjectural. He points out that the court a quohas not clearly established that he had by positive acts intended to participate in any criminal object in common with the other accused, and that his participation in a supposed common criminal object has not been proved beyond reasonable doubt. He believes the finding is belied by Flores and Villanueva, who saw him at the scene only after the shooting incident when the wounded passengers were taken to the hospital on his jeepney.[73] He also points out the uncertainty in the Sandiganbayans declaration that the incident could not have been the product of a well-planned police operation, but rather was the result of either a hidden agenda concocted against the victims by the barangay officials involved or an amateurish attempt on their part to earn commendation. He theorizes that, if it were the latter alternative, then he could hardly be found guilty of homicide or frustrated homicide but rather of reckless imprudence resulting in homicide and frustrated homicide. [74] He laments that, assumingarguendo that the injuries sustained by the victims were caused by his warning shots, he must nevertheless be exonerated because he responded to the scene of the incident as a bona fide member of the police force and, hence, his presence at the scene of the incident was in line with the fulfillment of his duty as he was in fact in the lawful performance thereof a fact which has been affirmed by the NAPOLCOM en banc when it dismissed on appeal the complaint for gross misconduct against him, Cunanan and Puno.[75] He also invokes the concept of mistake of fact and attributes to Pamintuan the responsibility why he, as well as the other accused in these cases, had entertained the belief that the suspects were armed rebel elements.[76] In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the Sandiganbayan has not proved their guilt beyond reasonable doubt, and the assailed decision was based on acts the evidence for which has been adduced at a separate trial but erroneously attributed to them. They explain that there were two sets of accused, in the case: one, the police officers

49

comprised of Yapyuco, Cunanan and Puno and, two, the barangay officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves who had waived the presentation of evidence. They question their conviction of the charges vis-a-vis the acquittal of David, Lugtu, Lacson and Yu who, like them, were barangay officials and had waived their right to present evidence in their behalf. They emphasize in this regard that all accused barangay officials and CHDFs did not participate in the presentation of the evidence by the accused police officers and, hence, the finding that they too had fired upon the Tamaraw jeepney is hardly based on an established fact. [77] Also, they believe that the findings of fact by the Sandiganbayan were based on inadmissible evidence, specifically on evidence rejected by the court itself and those presented in a separate trial. They label the assailed decision to be speculative, conjectural and suspicious and, hence, antithetical to the quantum of evidence required in a criminal prosecution.[78] Finally, they lament that the finding of conspiracy has no basis in evidence and that the prosecution has not even shown that they were with the other accused at the scene of the incident or that they were among those who fired at the victims, and neither were they identified as among the perpetrators of the crime.[79] In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They claim that judging by the uncertainty in the conclusion of the Sandiganbayan as to whether the incident was the result of a legitimate police operation or a careless plot designed by the accused to obtain commendation, conspiracy has not been proved beyond reasonable doubt. This, because they believe the prosecution has not, as far as both of them are concerned, shown that they had ever been part of such malicious design to commit an ambuscade as that alluded to in the assailed decision. They advance that as police officers, they merely followed orders from their commander, Yapyuco, but were not privy to the conversation among the latter, David and Pamintuan, moments before the shooting. They posit they could hardly be assumed to have had community of criminal design with the rest of the accused.[80] They affirm Yapyucos statement that they fired warning shots at the subject jeepney,[81] but only after it had passed the place where they were posted and only after it failed to stop when flagged down as it then became apparent that it was going to speed away as supposedly shown by bullet holes on the chassis and not on the rear portion of the jeepney. They also harp on the absence of proof of ill motives that would have otherwise urged them to commit the crimes charged, especially since none of the victims had been personally or even remotely known to either of them. That they were not intending to commit a crime is, they believe, shown by the fact that they did not directly aim their rifles at the passengers of the jeepney and that in fact, they immediately held their fire when Flores identified themselves as employees of San Miguel Corporation. They conceded that if killing was their intent, then they could have easily fired at the victims directly.[82]

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Commenting on these petitions, the Office of the Special Prosecutor stands by the finding of conspiracy as established by the fact that all accused, some of them armed, had assembled themselves and awaited the suspect vehicle as though having previously known that it would be coming from Salangsangs residence. It posits that the manner by which the jeepney was fired upon demonstrates a community of purpose and design to commit the crimes charged. [83] It believes that criminal intent is discernible from the posts the accused had chosen to take on the road that would give them a direct line of fire at the target as shown by the trajectories of the bullets that hit the Tamaraw jeepney.[84] This intent was supposedly realized when after the volley of gunfire, both Flores and Licup were wounded and the latter died as a supervening consequence.[85] It refutes the invocation of lawful performance of duty, mainly because there was no factual basis to support the belief of the accused that the occupants were members of the NPA, as indeed they have not shown that they had previously verified the whereabouts of the suspect vehicle. But while it recognizes that the accused had merely responded to the call of duty when summoned by Pamintuan through David, it is convinced that they had exceeded the performance thereof when they fired upon the Tamaraw jeepney occupied, as it turned out, by innocent individuals instead.[86] As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence adduced before the Sandiganbayan as well the findings based thereon should not be binding on them, the OSP explains that said petitioners, together with Pamintuan, David, Lugtu, Lacson and Yu, had previously withdrawn their motion for separate trial and as directed later on submitted the case for decision as to them with the filing of their memorandum. It asserts there was no denial of due process to said petitioners in view of their agreement for the reproduction of the evidence on the motion for bail at the trial proper as well as by their manifestation to forego with the presentation of their own evidence. The right to present witnesses is waivable. Also, where an accused is jointly tried and testifies in court, the testimony binds the other accused, especially where the latter has failed to register his objection thereto.[87] The decision on review apparently is laden with conclusions and inferences that seem to rest on loose predicates. Yet we have pored over the records of the case and found that evidence nonetheless exists to support the penultimate finding of guilt beyond reasonable doubt. I. It is as much undisputed as it is borne by the records that petitioners were at the situs of the incident on the date and time alleged in the Informations. Yapyuco, in his testimony which was adopted by Cunanan and Puno as well as Manguerra, Mario Reyes and Andres Reyes in their affidavits which had been offered in evidence by the prosecution,[88] explained that their presence at

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the scene was in response to the information relayed by Pamintuan through David that armed rebel elements on board a vehicle described to be that occupied by the victims were reportedly spotted in Barangay Quebiawan. It is on the basis of this suspicion that petitioners now appeal to justification under Article 11 (5) of the Revised Penal Code and under the concept of mistake of fact. Petitioners admit that it was not by accident or mistake but by deliberation that the shooting transpired when it became apparent that the suspect vehicle was attempting to flee, yet contention arises as to whether or not there was intention to harm or even kill the passengers aboard, and who among them had discharged the bullets that caused the eventual death of Licup and injured Villanueva. The first duty of the prosecution is not to present the crime but to identify the criminal.[89] To this end, the prosecution in these cases offered in evidence the joint counter-affidavit[90] of Andres Reyes and Manguerra; the counter-affidavit[91] of Mario Reyes; the joint counter-affidavit[92] of Cunanan and Puno; the counter-affidavit[93]of Yapyuco; and the joint counter-affidavit[94] of Yapyuco, Cunanan and Puno executed immediately after the incident in question. In brief, Cunanan and Puno stated therein that [their] team was forced to fire at the said vehicle when it accelerated after warning shots were fired in air and when it ignored Yapyucos signal for it to stop;[95] in their earlier affidavit they, together with Yapyuco, declared that they were constrained x x x to fire directly to (sic) the said fleeing vehicle.[96] Yapyucos open court declaration, which was adopted by Cunanan and Puno, is that he twice discharged his firearm: first, to give warning to the subject jeepney after it allegedly failed to stop when flagged down and second, at the tires thereof when it came clear that it was trying to escape.[97] He suggested substantiating the implication in his affidavit that it was the whole team [which fired] at the fleeing vehicle [98] that the bullets which hit the passenger side of the ill-fated jeepney could have come only from the CHDFs posted inside the yard of Naron where Manguerra, Mario Reyes and Andres Reyes admitted having taken post while awaiting the arrival of the suspect vehicle.[99] Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only Manguerra from their group who discharged a firearm but only into the air to give warning shots,[100] and that it was the policemen [who] directly fired upon the jeepney.[101] Manguerra himself shared this statement.[102] Yet these accounts do not sit well with the physical evidence found in the bullet holes on the passenger door of the jeepney which Dabor, in both her report and testimony, described to have come from bullets sprayed from perpendicular and oblique directions. This evidence in fact supports Yapyucos claim that he, Cunanan and Puno did fire directly at the jeepney after it had made a right turn and had already moved past them such that the line of fire to the passengers thereof would be at an oblique angle from behind. It also bolsters his claim that, almost simultaneously, gunshots came bursting after the jeepney has passed the spot

52

where he, Cunanan and Puno had taken post, and when the vehicle was already right in front of the yard of Narons house sitting on the right side of the road after the curve and where Manguerra, Mario Reyes and Andres Reyes were positioned, such that the line of fire would be direct and perpendicular to it.[103] While Dabors ballistics findings are open to challenge for being inconclusive as to who among the accused actually discharged their firearms that night, her report pertaining to the examination of the ill-fated Tamaraw jeepney affirms the irreducible fact that the CHDFs posted within the yard of Narons house had indeed sprayed bullets at the said vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate themselves by arguing that such finding cannot be applied to them as it is evidence adduced in a separate trial. But as the OSP noted, they may not evade the effect of their having withdrawn their motion for separate trial, their agreement to a joint trial of the cases, and the binding effect on them of the testimony of their co-accused, Yapyuco.[104] Indeed, the extrajudicial confession or admission of one accused is admissible only against said accused, but is inadmissible against the other accused. But if the declarant or admitter repeats in court his extrajudicial admission, as Yapyuco did in this case, during the trial and the other accused is accorded the opportunity to cross-examine the admitter, the admission is admissible against both accused because then, it is transposed into a judicial admission.[105] It is thus perplexing why, despite the extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latters testimony implicating them in the incident, they still had chosen to waive their right to present evidence when, in fact, they could have shown detailed proof of their participation or nonparticipation in the offenses charged. We, therefore, reject their claim that they had been denied due process in this regard, as they opted not to testify and be cross-examined by the prosecution as to the truthfulness in their affidavits and, accordingly, disprove the inculpatory admissions of their coaccused. II. The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance of his duty or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed is the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.[106] The justification is based on the complete absence of intent and negligence on the part of the accused, inasmuch as guilt of a felony connotes that it was committed with criminal intent or with fault or negligence.[107] Where invoked, this ground for non-liability amounts to an acknowledgment that the accused has caused the injury or has

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committed the offense charged for which, however, he may not be penalized because the resulting injury or offense is a necessary consequence of the due performance of his duty or the lawful exercise of his right or office. Thus, it must be shown that the acts of the accused relative to the crime charged were indeed lawfully or duly performed; the burden necessarily shifts on him to prove such hypothesis. We find that the requisites for justification under Article 11 (5) of the Revised Penal Code do not obtain in this case. The undisputed presence of all the accused at the situs of the incident is a legitimate law enforcement operation. No objection is strong enough to defeat the claim that all of them who were either police and barangay officers or CHDF members tasked with the maintenance of peace and order were bound to, as they did, respond to information of a suspected rebel infiltration in the locality. Theirs, therefore, is the specific duty to identify the occupants of their suspect vehicle and search for firearms inside it to validate the information they had received; they may even effect a bloodless arrest should they find cause to believe that their suspects had just committed, were committing or were bound to commit a crime. While, it may certainly be argued that rebellion is a continuing offense, it is interesting that nothing in the evidence suggests that the accused were acting under an official order to open fire at or kill the suspects under any and all circumstances. Even more telling is the absence of reference to the victims having launched such aggression as would threaten the safety of any one of the accused, or having exhibited such defiance of authority that would have instigated the accused, particularly those armed, to embark on a violent attack with their firearms in self-defense. In fact, no material evidence was presented at the trial to show that the accused were placed in real mortal danger in the presence of the victims, except maybe their bare suspicion that the suspects were armed and were probably prepared to conduct hostilities. But whether or not the passengers of the subject jeepney were NPA members and whether or not they were at the time armed, are immaterial in the present inquiry inasmuch as they do not stand as accused in the prosecution at hand. Besides, even assuming that they were as the accused believed them to be, the actuations of these responding law enforcers must inevitably be ranged against reasonable expectations that arise in the legitimate course of performance of policing duties. The rules of engagement, of which every law enforcer must be thoroughly knowledgeable and for which he must always exercise the highest caution, do not require that he should immediately draw or fire his weapon if the person to be accosted does not heed his call. Pursuit without danger should be his next move, and not vengeance for personal feelings or a damaged

54

pride. Police work requires nothing more than the lawful apprehension of suspects, since the completion of the process pertains to other government officers or agencies.[108] A law enforcer in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm.[109] United States v. Campo[110] has laid down the rule that in the performance of his duty, an agent of the authorities is not authorized to use force, except in an extreme case when he is attacked or is the subject of resistance, and finds no other means to comply with his duty or cause himself to be respected and obeyed by the offender. In case injury or death results from the exercise of such force, the same could be justified in inflicting the injury or causing the death of the offender if the officer had used necessary force.[111] He is, however, never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise.[112] People v. Ulep[113] teaches that The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights.[114]

Thus, in People v. Tabag,[115] where members of the Davao CHDF had killed four members of a family in their home because of suspicions that they were NPA members, and the accused sought exoneration by invoking among others the justifying circumstance in Article 11 (5) of the Revised Penal Code, the Court in dismissing the claim and holding them liable for murder said, thus: In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised Penal Code, for the massacre of the Magdasals can by no means be considered as done in the fulfillment of a duty or in the lawful exercise of an office

55

or in obedience to an order issued by a superior for some lawful purpose. Other than suspicion, there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children were members of the NPA. And even if they were members of the NPA, they were entitled to due process of law. On that fateful night, they were peacefully resting in their humble home expecting for the dawn of another uncertain day. Clearly, therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the Magdasals. The massacre was nothing but a merciless vigilante-style execution.[116] Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that it failed to heed the first round of warning shots as well as the signal for it to stop and instead tried to flee. While it is possible that the jeepney had been flagged down but because it was pacing the dark road with its headlights dimmed missed petitioners signal to stop, and compound to it the admitted fact that the passengers thereof were drunk from the party they had just been to, [117] still, we find incomprehensible petitioners quick resolve to use their firearms when in fact there was at least one other vehicle at the scene the Sarao jeepney owned by Yapyuco which they could actually have used to pursue their suspects whom they supposedly perceived to be in flight. Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of force, and it is incumbent on herein petitioners to prove such necessity. We find, however, that petitioners failed in that respect. Although the employment of powerful firearms does not necessarily connote unnecessary force, petitioners in this case do not seem to have been confronted with the rational necessity to open fire at the moving jeepney occupied by the victims. No explanation is offered why they, in that instant, were inclined for a violent attack at their suspects except perhaps their over-anxiety or impatience or simply their careless disposition to take no chances. Clearly, they exceeded the fulfillment of police duties the moment they actualized such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to Villanueva and exposing the rest of the passengers of the jeepney to grave danger to life and limb all of which could not have been the necessary consequence of the fulfillment of their duties. III. At this juncture, we find that the invocation of the concept of mistake of fact faces certain failure. In the context of criminal law, a mistake of fact is a misapprehension of a fact which, if true, would have justified the act or omission which is the subject of the prosecution. [118] Generally, a reasonable mistake of fact is a defense to a charge of crime where it negates the intent component of the crime.[119] It may be a defense even if the offense charged requires proof of only general intent.[120] The inquiry is into the mistaken belief of the defendant,[121] and it does not look at all to the belief or state of mind of any other person.[122] A proper invocation of this defense requires (a) that the mistake be honest and reasonable;[123] (b) that it be a matter of fact;[124] and (c) that it negate

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the culpability required to commit the crime[125] or the existence of the mental state which the statute prescribes with respect to an element of the offense.[126] The leading authority in mistake of fact as ground for non-liability is found in United States v. Ah Chong,[127] but in that setting, the principle was treated as a function of self-defense where the physical circumstances of the case had mentally manifested to the accused an aggression which it was his instinct to repel. There, the accused, fearful of bad elements, was woken by the sound of his bedroom door being broken open and, receiving no response from the intruder after having demanded identification, believed that a robber had broken in. He threatened to kill the intruder but at that moment he was struck by a chair which he had placed against the door and, perceiving that he was under attack, seized a knife and fatally stabbed the intruder who turned out to be his roommate. Charged with homicide, he was acquitted because of his honest mistake of fact. Finding that the accused had no evil intent to commit the charge, the Court explained: x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability, provided always there is no fault or negligence on his part and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." x x x If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does not believe them he is legally guiltless of homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be, the law will not punish him though they are in truth otherwise, and he has really no occasion for the extreme measure. x x x [128]

Besides, as held in People v. Oanis[129] and Baxinela v. People,[130] the justification of an act, which is otherwise criminal on the basis of a mistake of fact, must preclude negligence or bad faith on the part of the accused.[131] Thus, Ah Chong further explained that

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The question then squarely presents itself, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake of fact was not due to negligence or bad faith.[132] IV. This brings us to whether the guilt of petitioners for homicide and frustrated homicide has been established beyond cavil of doubt. The precept in all criminal cases is that the prosecution is bound by the invariable requisite of establishing the guilt of the accused beyond reasonable doubt. The prosecution must rely on the strength of its own evidence and not on the evidence of the accused. The weakness of the defense of the accused does not relieve the prosecution of its responsibility of proving guilt beyond reasonable doubt.[133] By reasonable doubt is meant that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt.[134] The overriding consideration is not whether the court doubts the innocence of the accused, but whether it entertains reasonable doubt as to his guilt.[135] The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.[136] Corpus delicti consists of two things: first, the criminal act and second, defendant's agency in the commission of the act.[137] In homicide (by dolo) as well as in murder cases, the prosecution must prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. In other words, proof of homicide or murder requires incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice), that is, with intent to kill. Such evidence may consist in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.[138] In such case, even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. [139] Evidence of intent to kill is crucial only to a finding of frustrated

58

and attempted homicide, as the same is an essential element of these offenses, and thus must be proved with the same degree of certainty as that required of the other elements of said offenses.[140] The records disclose no ill motives attributed to petitioners by the prosecution. It is interesting that, in negating the allegation that they had by their acts intended to kill the occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose picture depicted in the defense evidence is certainly an ugly one: petitioners affidavits as well as Yapyucos testimony are replete with suggestions that it was Pamintuan alone who harbored the motive to ambush the suspects as it was he who their (petitioners) minds that which they later on conceded to be a mistaken belief as to the identity of the suspects. Cinco, for one, stated in court that Pamintuan had once reported to him that Flores, a relative of his (Pamintuan), was frequently meeting with NPA members and that the San Miguel Corporation plant where the victims were employed was being penetrated by NPA members. He also affirmed Yapyucos claim that there had been a number of ambuscades launched against members of law enforcement in Quebiawan and in the neighboring areas supposedly by NPA members at around the time of the incident. But as the Sandiganbayan pointed out, it is unfortunate that Pamintuan had died during the pendency of these cases even before his opportunity to testify in court emerged.[141] Yet whether such claims suffice to demonstrate ill motives evades relevance and materiality. Motive is generally held to be immaterial inasmuch as it is not an element of a crime. It gains significance when the commission of a crime is established by evidence purely circumstantial or otherwise inconclusive.[142] The question of motive is important in cases where there is doubt as to whether the defendant is or is not the person who committed the act, but when there is no doubt that the defendant was the one who caused the death of the deceased, it is not so important to know the reason for the deed.[143] In the instant case, petitioners, without abandoning their claim that they did not intend to kill anyone of the victims, admit having willfully discharged their service firearms; and the manner by which the bullets concentrated on the passenger side of the jeepney permits no other conclusion than that the shots were intended for the persons lying along the line of fire. We do not doubt that instances abound where the discharge of a firearm at another is not in itself sufficient to sustain a finding of intention to kill, and that there are instances where the attendant circumstances conclusively establish that the discharge was not in fact animated by intent to kill. Yet the rule is that in ascertaining the intention with which a specific act is committed, it is always proper and necessary to look not merely to the act itself but to all the attendant circumstances so far as they develop in the evidence.[144]

59

The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber carbine.[145] While the use of these weapons does not always amount to unnecessary force, they are nevertheless inherently lethal in nature. At the level the bullets were fired and hit the jeepney, it is not difficult to imagine the possibility of the passengers thereof being hit and even killed. It must be stressed that the subject jeepney was fired upon while it was pacing the road and at that moment, it is not as much too difficult to aim and target the tires thereof as it is to imagine the peril to which its passengers would be exposed even assuming that the gunfire was aimed at the tires especially considering that petitioners do not appear to be mere rookie law enforcers or unskilled neophytes in encounters with lawless elements in the streets. Thus, judging by the location of the bullet holes on the subject jeepney and the firearms employed, the likelihood of the passenger next to the driver and in fact even the driver himself of being hit and injured or even killed is great to say the least, certain to be precise. This, we find to be consistent with the uniform claim of petitioners that the impulse to fire directly at the jeepney came when it occurred to them that it was proceeding to evade their authority. And in instances like this, their natural and logical impulse was to debilitate the vehicle by firing upon the tires thereof, or to debilitate the driver and hence put the vehicle to a halt. The evidence we found on the jeepney suggests that petitioners actuations leaned towards the latter. This demonstrates the clear intent of petitioners to bring forth death on Licup who was seated on the passenger side and to Villanueva who was occupying the wheel, together with all the consequences arising from their deed. The circumstances of the shooting breed no other inference than that the firing was deliberate and not attributable to sheer accident or mere lack of skill. Thus, Cupps v. State[146] tells that: This rule that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise.

V.

60

Verily, the shooting incident subject of these petitions was actualized with the deliberate intent of killing Licup and Villanueva, hence we dismiss Yapyucos alternative claim in G.R. No. 120744 that he and his co-petitioners must be found guilty merely of reckless imprudence resulting in homicide and frustrated homicide. Here is why: First, the crimes committed in these cases are not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being the incident of another act performed without malice.[147] People v. Guillen[148] and People v. Nanquil [149]declare that a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. And in People v. Castillo,[150] we held that that there can be no frustrated homicide through reckless negligence inasmuch as reckless negligence implies lack of intent to kill, and without intent to kill the crime of frustrated homicide cannot exist. Second, that petitioners by their acts exhibited conspiracy, as correctly found by the Sandiganbayan, likewise militates against their claim of reckless imprudence. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy need not be proven by direct evidence. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. Conspiracy once found, continues until the object of it has been accomplished and unless abandoned or broken up. To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.[151] Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence. From the legal viewpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its execution.[152] The instant case requires no proof of any previous agreement among petitioners that they were really bent on a violent attack upon their suspects. While it is far-fetched to conclude that conspiracy arose from the moment petitioners, or all of the accused for that matter, had converged and strategically posted

61

themselves at the place appointed by Pamintuan, we nevertheless find that petitioners had been ignited by the common impulse not to let their suspect jeepney flee and evade their authority when it suddenly occurred to them that the vehicle was attempting to escape as it supposedly accelerated despite the signal for it to stop and submit to them. As aforesaid, at that point, petitioners were confronted with the convenient yet irrational option to take no chances by preventing the jeepneys supposed escape even if it meant killing the driver thereof. It appears that such was their common purpose. And by their concerted action of almost simultaneously opening fire at the jeepney from the posts they had deliberately taken around the immediate environment of the suspects, conveniently affording an opportunity to target the driver, they did achieve their object as shown by the concentration of bullet entries on the passenger side of the jeepney at angular and perpendicular trajectories. Indeed, there is no definitive proof that tells which of all the accused had discharged their weapons that night and which directly caused the injuries sustained by Villanueva and fatally wounded Licup, yet we adopt the Sandiganbayans conclusion that since only herein petitioners were shown to have been in possession of their service firearms that night and had fired the same, they should be held collectively responsible for the consequences of the subject law enforcement operation which had gone terribly wrong.[153] VI. The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes of homicide and attempted homicide only, respectively for the death of Licup and for the non-fatal injuries sustained by Villanueva, and that they deserve an acquittal together with the other accused, of the charge of attempted murder with respect to the unharmed victims.[154] The allegation of evident premeditation has not been proved beyond reasonable doubt because the evidence is consistent with the fact that the urge to kill had materialized in the minds of petitioners as instantaneously as they perceived their suspects to be attempting flight and evading arrest. The same is true with treachery, inasmuch as there is no clear and indubitable proof that the mode of attack was consciously and deliberately adopted by petitioners. Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal whereas an attempt thereof, under Article 250 in relation to Article 51, warrants a penalty lower by two degrees than that prescribed for principals in a consummated homicide. Petitioners in these cases are entitled to the ordinary mitigating circumstance of voluntary surrender, and there being no aggravating circumstance proved and applying the Indeterminate Sentence Law, the Sandiganbayan has properly fixed in Criminal Case No. 16612 the range of the penalty from six (6)

62

years and one (1) day, but should have denominated the same as prision mayor, not prision correccional, to twelve (12) years and one (1) day of reclusion temporal. However, upon the finding that petitioners in Criminal Case No. 16614 had committed attempted homicide, a modification of the penalty is in order. The penalty of attempted homicide is two (2) degrees lower to that of a consummated homicide, which is prision correccional. Taking into account the mitigating circumstance of voluntary surrender, the maximum of the indeterminate sentence to be meted out on petitioners is within the minimum period of prision correccional, which is six (6) months and one (1) day to two (2) years and four (4) months of prision correccional, whereas the minimum of the sentence, which under the Indeterminate Sentence Law must be within the range of the penalty next lower to that prescribed for the offense, which is one (1) month and one (1) day to six (6) months of arresto mayor. We likewise modify the award of damages in these cases, in accordance with prevailing jurisprudence, and order herein petitioners, jointly and severally, to indemnify the heirs of Leodevince Licup in the amount of P77,000.00 as actual damages and P50,000.00 in moral damages. With respect to Noel Villanueva, petitioners are likewise bound to pay, jointly and severally, the amount of P51,700.00 as actual and compensatory damages and P20,000.00 as moral damages. The award of exemplary damages should be deleted, there being no aggravating circumstance that attended the commission of the crimes. WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995, are hereby AFFIRMED with the following MODIFICATIONS: (a) In Criminal Case No. 16612, petitioners are sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor, as the minimum, to twelve (12) years and one (1) day of reclusion temporal, as the maximum; in Criminal Case No. 16614, the indeterminate sentence is hereby modified to Two (2) years and four (4) months of prision correccional, as the maximum, and Six (6) months of arresto mayor, as the minimum. (b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of Leodevince Licup in the amount of P77,000.00 as actual damages, P50,000.00 in moral damages, as well as Noel Villanueva, in the amount of P51,700.00 as actual and compensatory damages, and P20,000.00 as moral damages.

63

SO ORDERED.

DIOSDADO M. PERALTA Associate Justice

WE CONCUR:

LUCAS P. BERSAMIN Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

DIOSDADO M. PERALTA Associate Justice Acting Chairperson, Third Division

64

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Per Special Order No. 1228 dated June 6, 2012 Designated Acting Member in lieu of Associate Justice Jose Catral Mendoza, per Special Order No. 1241 dated June 14, 2012. *** Designated Acting Member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 1229 dated June 6, 2012. [1] Penned by Associate Justice Romeo M. Escareal (Chairman), with Associate Justices Minita V. Chico-Nazario and Roberto M. Lagman, concurring; rollo (G.R. Nos. 120744-46), pp. 780. [2] Now known as the Philippine National Police. [3] Records, Vol. 1, pp. 1-2. [4] Records, Vol. 5, pp. 1-2. [5] Records, Vol. 6, pp. 1-2 [6] Records, Vol. 1, p. 46. [7] Accordingly, the charges against him were dismissed. See April 30, 1991 Order, id. at 108. TSN, April 30, 1991, pp. 3-5. [8] April 30, 1991 Order, records, vol. 1, pp. 107-108; TSN, April 30, 1991, pp. 12-14. See also records, vol. 1, pp 191-197. [9] Records, Vol. 1, pp. 96-105. [10] Id. at 307. [11] Records, Vol. 1, pp. 52-55. [12] Resolution dated May 10, 1991, records, vol. 1, pp. 198-205. [13] Id. at 205. [14] Id. at. 300-308. [15] See certificate of Death, records, Vol. II, p. 707; see also Manifestation dated December 11, 1992, id. at 703-704. [16] Records, Vol. 1, p. 388. [17] TSN, April 30, 1991, pp. 27-30, 32-34, 37-40, 42-50, 52-53; TSN, July 5, 1991, pp. 2022.
**

65

[18] [19]

Id.; Id.; TSN, May 2, 1991, pp. 25-26 Exhibits L, L-1 to L-5. [20] TSN, May 2, 1991, pp. 6-13, 15-17-19, 22-25, 26-29, 45-46, 52-53; TSN, July 5, 1991, pp. 38-46; 48-49; [21] TSN, April 30, 1991, pp. 27-30, 32-34, 37-40, 42-50, 52-53; TSN, July 5, 1991, pp. 2022; [22] TSN, May 2, 1991, pp. 25-26. [23] Id. at 31-32, 44-45, 51. [24] Id. at 37 and 55. [25] Id. at 16. [26] Id. at 57-59. [27] TSN, July 23, 1991, pp. 38-41; TSN, May 3, 1991, pp. 4-10, 18, 27, 29. [28] Id. at 17-20, 24-26, 41-47; id. at 10-14, 18-23. [29] TSN, May 3, 1991, pp. 14-15. [30] TSN, July 24, 1991, pp. 38-40, 47-55; TSN, November 26, 1991, pp. 4-8, 10-14, 19-20. See Technical Report No. PI-032-88, Exhibit J. [31] TSN, April 30, 1991, pp. 17-19. See Memorandum Receipts, Exhibits D, E, F, G, H. [32] TSN, October 22, 1991, pp. 7, 10-11, 13-20, 42-43, 49-50. Dr. Pedro Solis appears to have authored a book on legal Medicine in 1964. See Medico-legal Report dated April 6, 1988, Exhibit I. [33] TSN, October 22, 1991, pp. 21-23, 26-28, 30-34, 37-42, 50-53. [34] Id. at 44-48. [35] TSN, October 7, 1991, pp. 12, 14-15. [36] TSN, October 25, 1991, pp. 17-44. [37] TSN, September 15, 1993, pp. 5-12; TSN, November 8, 1993, p. 10. [38] Memorandum of Cunanan and Puno filed with the Sandiganbayan, rollo (G.R. No. 122776), p. 126. [39] TSN, September 15, 1993, pp. 13-15, 18-21; TSN, November 8, 1993, pp. 3, 5, 12, 2325, 31. See also Joint Counter Affidavit of Cunanan and Puno, dated July 20, 1988, in which they stated that their team was forced to fire at the said vehicle when it did not heed the supposed warning shots, Exhibit A. In their earlier Joint Affidavit dated April 5, 1988, Yapyuco, Cunanan and Puno stated that after firing warning shots in the air, the subject jeepney accelerated its speed which constrained (them) to fire directly to (sic) the said fleeing vehicle, Exhibit O. [40] TSN, September 15, 1993, pp. 22-23; TSN, November 8, 1993, pp. 6-7, 10-11, 21-23. [41] Id. at 23-25; Id. at 4. [42] TSN, November 8, 1993, p. 12, 15-16. [43] Id. at 6-7 [44] TSN, September 15, 1993, p. 23; TSN, November 8, 1993, pp. 7-8, 10-11, 20 [45] TSN, November 8, 1993, p. 5. [46] Id. at 8-9. [47] Id. at 21-23. [48] TSN, September 15, 1993, pp. 26-29. [49] TSN, November 22, 1993, pp. 26-36, 40-43, 46-47. [50] See Order dated April 6, 1994, records, Vol. II, p. 955. [51] See Manifestation and Motion dated May 6, 1993, id. at 759-761, and Resolution dated June 1, 1993, id. at 763-764. [52] Rollo (G.R. Nos. 120744-46), p. 55.

66

[53] [54] [55] [56] [57] [58] [59] [60] [61] [62] [63] [64] [65] [66] [67] [68] [69] [70] [71] [72] [73] [74] [75] [76] [77] [78] [79] [80] [81] [82] [83] [84] [85] [86] [87] [88] [89] [90] [91] [92] [93] [94] [95] [96] [97] [98] [99]

Id. at 77-79. Id. at 56-57. Id. at 64-66. Id. at 69-70. Id. at 64-65. Id. at 61. Id. at 58. Id. at 60-61. Id. at 60-63. Id. at 73-74. Id. at 74-75. Id. at 64-65. Id. at 69. Id. at 68-69. Id. at 71-73. Exhibit X. TSN, July 5, 1991, pp. 7-9, 27. Id. at 11-12, 17. TSN, January 9, 1991, pp. 4-12. Exhibit FF. Rollo (G.R. Nos. 120744-46), p. 96. Id. at 93-95. Id. at 108. Id. at 103. Rollo (G.R. No. 122677), pp. 57-65. Id. at 75-81. Id. at 82-89. Rollo (G.R. No. 122776), pp. 101-103. Id. Id. at 104-106. Id. at 223-225. Id. at 226-227. Id. at 227-228. Id. at 228-230. Rollo (G.R. No. 122677), pp. 230-232. See note 50 and Exhibits A, B, C, N and O. People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578, 592. Co-executed by deceased Pabalan, dated September 28, 1988, Exhibit N. Dated September 28, 1988, Exhibit C. Dated July 20, 1988, Exhibit A. Dated July 20, 1988, Exhibit B. Dated April 5, 1988, Exhibit O. Exhibits A-1, O, B and B-1. Exhibit O. See notes 38 and 39. Exhibit B-1. See notes 38 and 39. See also Exhibits B and C.

67

[100] [101]

Exhibit C. Exhibit N. [102] Id. [103] See notes 30, 38 and 39. Refer also to the sketch of Yapyuco and Flores depicting the relative location of the Tamaraw jeepney at the scene of the incident. [104] Rollo (G.R. No. 122677), pp. 230-232. [105] People v. Panida, G.R. Nos. 127125 and 138952, July 6, 1999, 310 SCRA 66; People v. Buntag, 471 Phil. 82, 95 (2004). [106] See People v. Oanis, 74 Phil. 257, 262-263 (1943); People v. Pajenado, G.R. No. L26458, January 30, 1976, 69 SCRA 172, 177; Baxinela v. People, 520 Phil. 202, 214-215; People v. Belbes, 389 Phil. 500, 508-509 (2000); People v. Ulep, G.R. No. 132547, September 20, 2000, 340 SCRA 688, 699; Cabanlig v. Sandiganbayan, G.R. No. 148431, July 28, 2005, 464 SCRA 324, 333. [107] People v. Fallorina, G.R. No. 137347, March 4, 2004, 424 SCRA 655, 665, applying Article 3 of the Revised Penal Code. [108] People v. Tan, G.R. Nos. 116200-02. June 21, 2001, 359 SCRA 283, 297-298. [109] People v. Oanis, supra note 106, at 262. [110] 10 Phil. 97, 99-100 (1908). [111] United States v. Mojica, 42 Phil. 784, 787 (1922). [112] People v. Oanis, supra note 106, at 262. [113] Supra note 106. [114] People v. Ulep, supra note 106, at 700. [115] 335 Phil. 579 (1997). [116] Id. at 597. (Emphasis has been supplied.) [117] See note 17. [118] 21 Am Jur 2d, $152, p. 232, citing Turner v. State, 210 Ga. App. 303, 436 S.E.2d 229. [119] Id., citing U.S. v. Vasarajs, 908 F.2d 443 and People v. Nash, 282 Ill. App. 3d 982, 218 Ill. Dec. 410, 669 N.E.2d 353. [120] Id., citing Com. V. Simcock, 31 Mass. App. Ct. 184, 575 N.E.2d 1137 [121] Id., citing Johnson v. State, 734 S.W.2d 199 [122] Id. [123] Id. at 233, citing U.S. v. Buchannan, 115 F.3d 445; People v. Reed, 53 Cal. App. 4th 389. Generally, ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by fault or negligence of party doing the charged act. (Crawford v. State, 267 Ga. 543, 480 S.E.2d 573). For a mistake of fact to negate a mental state required to establish a criminal offense, the mistake must be reasonable, and the act, to be justified, must be taken under a bona fide mistaken belief (Cheser v. Com., 904 S.W.2d 239). [124] Id. at 233, citing Potter v. State, 684 N.E.2d 1127. If a mistake arises not from ignorance of law, but from ignorance of an independently determined legal status or condition that is one of the operative facts of a crime, such a mistake is one of fact (U.S. v. Lopez-Lima, 738 F.Supp. 1404). [125] Id. at 233, citing Potter v. State, 684 N.E.2d 1127; Miller v. State, 815S.W.2d 582. [126] Id. at 233, citing Jones v. State, 263 Ga. 835, 439 S.E.2d 645. [127] 15 Phil. 488 (1910). [128] Id. at 500-501. (Emphasis supplied.) [129] Supra note 106. [130] Supra note 106. [131] People v. Oanis, supra note 106, at 264; Baxinela v. People, supra note 106, at 215. [132] United States v. Ah Chong, supra note 127, at 493.

68

[133]

People v. Crispin, G.R. No. 128360, March 2, 2000, 327 SCRA 167, 179; People v. Calica, G.R. No. 139178, April 14, 2004, 427 SCRA 336, 362. [134] People v. Dramayo, G.R. No. L-21325, October 29, 1971, 42 SCRA 59, 64; People v. Calica, supra, at 347. [135] People v. Gamer, G.R. No. 115984, February 29, 2000, 326 SCRA 660, 674. [136] People v. Delim, G.R. No. 142773, January 28, 2003, 396 SCRA 386, 400, citing People v. Fulinara, G.R. No. 88326, August 3, 1995, 247 SCRA 28. [137] Gay v. State, 60 Southwestern Reporter, 771 (1901) [138] People v. Delim, supra note 136, at 400. [139] United States v. Gloria, 3 Phil. 333 (1903-1904). [140] Mondragon v. People, G.R. No. L-17666, June 30, 1966, 17 SCRA 476, 480-481; See also Reyes, Luis B., Revised Penal Code, Book II, 15th ed (2001), p. 470. [141] Rollo (G.R. Nos. 120744-46), pp. 67-68 [142] See Crisostomo v. Sandiganbayan, 495 Phil. 718, 745 (2005), citing People v. Flores, 389 Phil. 532 (2000). [143] People v. Ramirez, 104 Phil. 720, 726 (1958). [144] United States v. Montenegro, 15 Phil. 1, 6 (1910). [145] Exhibits U, U-0, U-1, U-2, W, W-1 and W-2. [146] 97 Northwestern Reporter, 210 (1903). (Emphasis supplied.) [147] People v. Oanis, supra note 106, at 262. [148] 47 O.G. 3433, 3440 [149] 43 Phil. 232 (1922). [150] 42 O.G. 1914, 1921. [151] People v. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA 454, 473. [152] U.S. v. Ancheta, 1 Phil. 165 (1901-1903); U.S. v. Santos, 2 Phil. 453, 456 (1903); People v. Mandagay and Taquiawan, 46 Phil. 838, 840 (1923); People v. Agbuya, 57 Phil. 238, 242 (1932); People v. Ibaez, 77 Phil. 664; People v. Macabuhay, 46 O.G. 5469; People v. San Luis, 86 Phil. 485, 497 (1950); People v. Dima Binasing, 98 Phil. 902, 908 (1956). [153] Rollo (G.R. Nos. 120744-46), p. 75, citing People v. Toling, G.R. No. L-27097, January 17, 1975, 62 SCRA 17 and People v. Tamani, G.R. Nos. L-22160 and L-22161, January 21, 1974, 55 SCRA 153. [154] Namely, Eduardo Flores, Raul Panlican, Alejandro De Vera and Restituto Calma.

69

Republic of the Philippines Supreme Court Manila SECOND DIVISION

ARTEMIO VILLAREAL, Petitioner, - versus -

G.R. 151258

No.

PEOPLE OF THE PHILIPPINES, Respondent. x-------------------------x PEOPLE OF THE PHILIPPINES, Petitioner, - versus -

G.R. No. 154954

THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO,and RONAN DE GUZMAN, Respondents. x-------------------------x FIDELITO DIZON, Petitioner, G.R. No. 155101

70

- versus -

PEOPLE OF THE PHILIPPINES, Respondent. x-------------------------x GERARDA H. VILLA, Petitioner, G.R. Nos. 178057 & 178080 - versus Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated: February 1, 2012

MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR., andANSELMO ADRIANO, Respondents.

x--------------------------------------------------x DECISION SERENO, J.: The public outrage over the death of Leonardo Lenny Villa the victim in this case on 10 February 1991 led to a very strong clamor to put an end to hazing.[1] Due in large part to the brave efforts of his mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death. This widespread condemnation prompted Congress to enact a special law, which became effective in 1995, that would criminalize hazing.[2] The intent of the law was to discourage members from making hazing a requirement for joining their sorority, fraternity, organization, or association.[3] Moreover, the law was meant to counteract the exculpatory implications of consent and initial innocent act in the conduct of initiation rites by making the mere act of hazing punishable or mala prohibita.[4] Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country. [5] Within a year of his death, six more cases of hazing-related deaths emerged those of Frederick Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant Marine Institute; and Joselito Hernandez of the University of the Philippines in Baguio City.[6]

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Although courts must not remain indifferent to public sentiments, in this case the general condemnation of a hazing-related death, they are still bound to observe a fundamental principle in our criminal justice system [N]o act constitutes a crime unless it is made so by law.[7] Nullum crimen, nulla poena sine lege. Even if an act is viewed by a large section of the populace as immoral or injurious, it cannot be considered a crime, absent any law prohibiting its commission. As interpreters of the law, judges are called upon to set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly based on the elements of the offense and the facts allowed in evidence. Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R. No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and 178080 (Villa v. Escalona). FACTS The pertinent facts, as determined by the Court of Appeals (CA)[8] and the trial court,[9] are as follows: In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar Bogs Asuncion, Samuel Sam Belleza, Bienvenido Bien Marquez III, Roberto Francis Bert Navera, Geronimo Randy Recinto, Felix Sy, Jr., and Leonardo Lenny Villa (neophytes). On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufos Restaurant to have dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect during the initiation rites. The latter were informed that there would be physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for three days. After their briefing, they were brought to the Almeda Compound in Caloocan City for the commencement of their initiation. Even before the neophytes got off the van, they had already received threats and insults from the Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then subjected to traditional forms of Aquilan initiation rites. These rites included the Indian Run, which required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to the neophytes; the Bicol Express, which obliged the neophytes to sit on the floor with their backs against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs; the Rounds, in which the neophytes were held at the back of their pants by the auxiliaries (the Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the latter were being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans; and the Auxies Privilege Round, in which the auxiliaries were given the opportunity to inflict physical pain on the neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles. They survived their first day of initiation.

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On the morning of their second day 9 February 1991 the neophytes were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternitys principles. Whenever they would give a wrong answer, they would be hit on their arms or legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment them physically and psychologically. The neophytes were subjected to the same manner of hazing that they endured on the first day of initiation. After a few hours, the initiation for the day officially ended. After a while, accused non-resident or alumni fraternity members[10] Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to paddling and to additional rounds of physical pain. Lenny received several paddle blows, one of which was so strong it sent him sprawling to the ground. The neophytes heard him complaining of intense pain and difficulty in breathing. After their last session of physical beatings, Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at the carport. After an hour of sleep, the neophytes were suddenly roused by Lennys shivering and incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans started helping him. They removed his clothes and helped him through a sleeping bag to keep him warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced dead on arrival. Consequently, a criminal case for homicide was filed against the following 35 Aquilans: In Criminal Case No. C-38340(91) 1. Fidelito Dizon (Dizon) 2. Artemio Villareal (Villareal) 3. Efren de Leon (De Leon) 4. Vincent Tecson (Tecson) 5. Junel Anthony Ama (Ama) 6. Antonio Mariano Almeda (Almeda) 7. Renato Bantug, Jr. (Bantug) 8. Nelson Victorino (Victorino) 9. Eulogio Sabban (Sabban) 10. Joseph Lledo (Lledo) 11. Etienne Guerrero (Guerrero) 12. Michael Musngi (Musngi) 13. Jonas Karl Perez (Perez) 14. Paul Angelo Santos (Santos) 15. Ronan de Guzman (De Guzman) 16. Antonio General (General) 17. Jaime Maria Flores II (Flores)

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18. 19. 20. 21. 22. 23. 24. 25.

Dalmacio Lim, Jr. (Lim) Ernesto Jose Montecillo (Montecillo) Santiago Ranada III (Ranada) Zosimo Mendoza (Mendoza) Vicente Verdadero (Verdadero) Amante Purisima II (Purisima) Jude Fernandez (J. Fernandez) Adel Abas (Abas)

26.

Percival Brigola (Brigola)

In Criminal Case No. C-38340 1. Manuel Escalona II (Escalona) 2. Crisanto Saruca, Jr. (Saruca) 3. Anselmo Adriano (Adriano) 4. Marcus Joel Ramos (Ramos) 5. Reynaldo Concepcion (Concepcion) 6. Florentino Ampil (Ampil) 7. Enrico de Vera III (De Vera) 8. Stanley Fernandez (S. Fernandez) 9. Noel Cabangon (Cabangon) Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the other hand, the trial against the remaining nine accused in Criminal Case No. C38340 was held in abeyance due to certain matters that had to be resolved first.[12]
[11]

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal under Article 249 of the Revised Penal Code.[13] A few weeks after the trial court rendered its judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced anew.[14] On 10 January 2002, the CA in (CA-G.R. No. 15520)[15] set aside the finding of conspiracy by the trial court in Criminal Case No. C-38340(91) andmodified the criminal liability of each of the accused according to individual participation. Accused De Leon had by then passed away, so the following Decision applied only to the remaining 25 accused, viz: 1. Nineteen of the accused-appellants Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola (Victorino et al.) were acquitted, as their individual guilt was not established by proof beyond reasonable doubt.

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2.

Four of the accused-appellants Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) were found guilty of the crime of slight physical injuries and sentenced to 20 days of arresto menor. They were also ordered to jointly pay the heirs of the victim the sum of 30,000 as indemnity. Two of the accused-appellants Fidelito Dizon and Artemio Villareal were found guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found no mitigating or aggravating circumstance, the CA sentenced them to an indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum of 50,000 and to pay the additional amount of 1,000,000 by way of moral damages.

3.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused Concepcion on the ground of violation of his right to speedy trial.[16] Meanwhile, on different dates between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano.[17] On 25 October 2006, the CA in CAG.R. SP Nos. 89060 & 90153[18] reversed the trial courts Orders and dismissed the criminal case against Escalona, Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.[19]

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

G.R. No. 151258 Villareal v. People The instant case refers to accused Villareals Petition for Review on Certiorari under Rule 45. The Petition raises two reversible errors allegedly committed by the CA in its Decision dated 10 January 2002 in CA-G.R. No. 15520 first, denial of due process; and, second, conviction absent proof beyond reasonable doubt.[20] While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of Death of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March 2011. Counsel thus asserts that the subject matter of the Petition previously filed by petitioner does not survive the death of the accused.

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G.R. No. 155101 Dizon v. People Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CAs Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520.[21] Petitioner sets forth two main issues first, that he was denied due process when the CA sustained the trial courts forfeiture of his right to present evidence; and, second, that he was deprived of due process when the CA did not apply to him the same ratio decidendi that served as basis of acquittal of the other accused.[22] As regards the first issue, the trial court made a ruling, which forfeited Dizons right to present evidence during trial. The trial court expected Dizon to present evidence on an earlier date since a co-accused, Antonio General, no longer presented separate evidence during trial. According to Dizon, his right should not have been considered as waived because he was justified in asking for a postponement. He argues that he did not ask for a resetting of any of the hearing dates and in fact insisted that he was ready to present evidence on the original pre-assigned schedule, and not on an earlier hearing date. Regarding the second issue, petitioner contends that he should have likewise been acquitted, like the other accused, since his acts were also part of the traditional initiation rites and were not tainted by evil motives.[23] He claims that the additional paddling session was part of the official activity of the fraternity. He also points out that one of the neophytes admitted that the chairperson of the initiation rites decided that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do the paddling.[24] Further, petitioner echoes the argument of the Solicitor General that the individual blows inflicted by Dizon and Villareal could not have resulted in Lennys death.[25] The Solicitor General purportedly averred that, on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could not be considered fatal if taken individually, but if taken collectively, the result is the violent death of the victim.[26] Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lennys father could not have stolen the parking space of Dizons father, since the latter did not have a car, and their fathers did not work in the same place or office. Revenge for the loss of the parking space was the alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking space were only part of the psychological initiation. He then cites the testimony of Lennys co-neophyte witness Marquez who admitted knowing it was not true and that he was just making it up.[27] Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern for Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who mentioned that the former had kicked the leg of the neophyte and told him to switch places with Lenny to prevent the latters chills. When the chills did not stop, Dizon, together with Victorino, helped Lenny through a sleeping bag and made him sit on a chair. According to petitioner, his alleged ill motivation is contradicted by his manifestation of compassion and concern for the victims well-being. G.R. No. 154954 People v. Court of Appeals

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This Petition for Certiorari under Rule 65 seeks the reversal of the CAs Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight physical injuries.[28] According to the Solicitor General, the CA erred in holding that there could have been no conspiracy to commit hazing, as hazing or fraternity initiation had not yet been criminalized at the time Lenny died. In the alternative, petitioner claims that the ruling of the trial court should have been upheld, inasmuch as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries led to the victims death, petitioner posits that the accused Aquilans are criminally liable for the resulting crime of homicide, pursuant to Article 4 of the Revised Penal Code. [29] The said article provides: Criminal liability shall be incurred [b]y any person committing a felony (delito) although the wrongful act done be different from that which he intended. Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor General, the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in setting aside the trial courts finding of conspiracy and in ruling that the criminal liability of all the accused must be based on their individual participation in the commission of the crime. G.R. Nos. 178057 and 178080 Villa v. Escalona Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CAs Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and 90153.[30] The Petition involves the dismissal of the criminal charge filed against Escalona, Ramos, Saruca, and Adriano. Due to several pending incidents, the trial court ordered a separate trial for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to commence after proceedings against the 26 other accused in Criminal Case No. C-38340(91) shall have terminated. On 8 November 1993, the trial court found the 26 accused guilty beyond reasonable doubt. As a result, the proceedings in Criminal Case No. C-38340 involving the nine other co-accused recommenced on 29 November 1993. For various reasons, the initial trial of the case did not commence until 28 March 2005, or almost 12 years after the arraignment of the nine accused. Petitioner Villa assails the CAs dismissal of the criminal case involving 4 of the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to speedy trial within a reasonable period of time. She also points out that the prosecution cannot be faulted for the delay, as the original records and the required evidence were not at its disposal, but were still in the appellate court. We resolve herein the various issues that we group into five.

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ISSUES 1. 2. Whether the forfeiture of petitioner Dizons right to present evidence constitutes denial of due process; Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of the right of the accused to speedy trial; Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when it set aside the finding of conspiracy by the trial court and adjudicated the liability of each accused according to individual participation; Whether accused Dizon is guilty of homicide; and Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight physical injuries. DISCUSSION Resolution on Preliminary Matters G.R. No. 151258 Villareal v. People In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took note of counsel for petitioners Notice of Death of Party. According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if the offender dies prior to final judgment. The term personal penalties refers to the service of personal or imprisonment penalties,[31] while the term pecuniary penalties (las pecuniarias) refers to fines and costs,[32] including civil liability predicated on the criminal offense complained of (i.e., civil liability ex delicto).[33] However, civil liability based on a source of obligation other than the delict survives the death of the accused and is recoverable through a separate civil action.[34] Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal and pecuniary penalties, including his civil liability directly arising from the delict complained of. Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and terminated. G.R. No. 155101 (Dizon v. People) In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of October 1993.[35] The Order likewise stated that it will not entertain any postponement and that all the accused who have not yet presented their respective evidence should be ready at all times down the

3.

4. 5.

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line, with their evidence on all said dates. Failure on their part to present evidence when required shall therefore be construed as waiver to present evidence.[36] However, on 19 August 1993, counsel for another accused manifested in open court that his client Antonio General would no longer present separate evidence. Instead, the counsel would adopt the testimonial evidence of the other accused who had already testified.[37] Because of this development and pursuant to the trial courts Order that the parties should be ready at all times down the line, the trial court expected Dizon to present evidence on the next trial date 25 August 1993 instead of his originally assigned dates. The original dates were supposed to start two weeks later, or on 8 September 1993.[38] Counsel for accused Dizon was not able to present evidence on the accelerated date. To address the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a previously scheduled case, and that he would be ready to present evidence on the dates originally assigned to his clients.[39] The trial court denied the Manifestation on the same date and treated the Constancia as a motion for postponement, in violation of the three-daynotice rule under the Rules of Court.[40] Consequently, the trial court ruled that the failure of Dizon to present evidence amounted to a waiver of that right.[41] Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial court forfeited his right to present evidence. According to him, the postponement of the 25 August 1993 hearing should have been considered justified, since his original pre-assigned trial dates were not supposed to start until 8 September 1993, when he was scheduled to present evidence. He posits that he was ready to present evidence on the dates assigned to him. He also points out that he did not ask for a resetting of any of the said hearing dates; that he in fact insisted on being allowed to present evidence on the dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating the schedule of presentation of evidence, thereby invalidating the finding of his guilt. The right of the accused to present evidence is guaranteed by no less than the Constitution itself.[42] Article III, Section 14(2) thereof, provides that in all criminal prosecutions, the accused shall enjoy the right to be heard by himself and counsel This constitutional right includes the right to present evidence in ones defense,[43] as well as the right to be present and defend oneself in person at every stage of the proceedings.[44] In Crisostomo v. Sandiganbayan,[45] the Sandiganbayan set the hearing of the defenses presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to lack of quorum in the regular membership of the Sandiganbayans Second Division and upon the agreement of the parties. The hearing was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to attend. The Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant for the arrest of Crisostomo and the confiscation of his surety bond. The Order further declared that he had waived his right to present evidence because of his nonappearance at yesterdays and todays scheduled hearings. In ruling against the Order, we held thus: Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomos non-appearance during the 22 June 1995 trial was merely a

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waiver of his right to be present for trial on such date only and not for the succeeding trial dates xxx xxx xxx

Moreover, Crisostomos absence on the 22 June 1995 hearing should not have been deemed as a waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be clear and must be coupled with an actual intention to relinquish the right. Crisostomo did not voluntarily waive in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel. In criminal cases where the imposable penalty may be death, as in the present case, the court is called upon to see to it that the accused is personally made aware of the consequences of a waiver of the right to present evidence. In fact, it is not enough that the accused is simply warned of the consequences of another failure to attend the succeeding hearings. The court must first explain to the accused personally in clear terms the exact nature and consequences of a waiver. Crisostomo was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing. Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court could personally conduct a searching inquiry into the waiver x x x.[46] (Emphasis supplied) The trial court should not have deemed the failure of petitioner to present evidence on 25 August 1993 as a waiver of his right to present evidence. On the contrary, it should have considered the excuse of counsel justified, especially since counsel for another accused General had made a last-minute adoption of testimonial evidence that freed up the succeeding trial dates; and since Dizon was not scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five hearing dates for the reception of evidence. If it really wanted to impose its Order strictly, the most it could have done was to forfeit one out of the five days set for Dizons testimonial evidence. Stripping the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process. Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to enforce an automatic remand of the case to the trial court.[47] In People v. Bodoso, we ruled that where facts have adequately been represented in a criminal case, and no procedural unfairness or irregularity has prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that a guilty verdict may nevertheless be upheld if the judgment is supported beyond reasonable doubt by the evidence on record.[48]

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We do not see any material inadequacy in the relevant facts on record to resolve the case at bar. Neither can we see any procedural unfairness or irregularity that would substantially prejudice either the prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth by accused Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead, what he is really contesting in his Petition is the application of the law to the facts by the trial court and the CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition that all actions of the petitioner were part of the traditional rites, and that the alleged extension of the initiation rites was not outside the official activity of the fraternity.[49] He even argues that Dizon did not request for the extension and he participated only after the activity was sanctioned.[50] For one reason or another, the case has been passed or turned over from one judge or justice to another at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the reception of the evidence of petitioner Dizon would only inflict further injustice on the parties. This case has been going on for almost two decades. Its resolution is long overdue. Since the key facts necessary to decide the case have already been determined, we shall proceed to decide it. G.R. Nos. 178057 and 178080 (Villa v. Escalona) Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have been dismissed, since they failed to assert their right to speedy trial within a reasonable period of time. She points out that the accused failed to raise a protest during the dormancy of the criminal case against them, and that they asserted their right only after the trial court had dismissed the case against their co-accused Concepcion. Petitioner also emphasizes that the trial court denied the respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and Adriano, because it found that the prosecution could not be faulted for the delay in the movement of this case when the original records and the evidence it may require were not at its disposal as these were in the Court of Appeals.[51] The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article III of the 1987 Constitution.[52] This right requires that there be a trial free from vexatious, capricious or oppressive delays.[53] The right is deemed violated when the proceeding is attended with unjustified postponements of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause or justifiable motive.[54] In determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case.[55] The conduct of both the prosecution and the defense must be weighed.[56] Also to be considered are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice wrought upon the defendant.[57] We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of the accused to speedy trial is tantamount to acquittal.[58] As a consequence, an appeal or a reconsideration of the dismissal would amount to a violation of the principle of double jeopardy.[59] As we have previously discussed, however, where the dismissal of the case is

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capricious, certiorari lies.[60] The rule on double jeopardy is not triggered when a petition challenges the validity of the order of dismissal instead of the correctness thereof.[61] Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction prevents double jeopardy from attaching.[62] We do not see grave abuse of discretion in the CAs dismissal of the case against accused Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The court held thus: An examination of the procedural history of this case would reveal that the following factors contributed to the slow progress of the proceedings in the case below: xxx xxx xxx

5) The fact that the records of the case were elevated to the Court of Appeals and the prosecutions failure to comply with the order of the court a quo requiring them to secure certified true copies of the same. xxx xxx xxx

While we are prepared to concede that some of the foregoing factors that contributed to the delay of the trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been utterly violated in this case x x x. xxx xxx xxx

[T]he absence of the records in the trial court [was] due to the fact that the records of the case were elevated to the Court of Appeals, and the prosecutions failure to comply with the order of the court a quo requiring it to secure certified true copies of the same. What is glaring from the records is the fact that as early as September 21, 1995, the court a quo already issued an Order requiring the prosecution, through the Department of Justice, to secure the complete records of the case from the Court of Appeals. The prosecution did not comply with the said Order as in fact, the same directive was repeated by the court a quo in an Order dated December 27, 1995. Still, there was no compliance on the part of the prosecution. It is not stated when such order was complied with. It appears, however, that even until August 5, 2002, the said records were still not at the disposal of the trial court because the lack of it was made the basis of the said court in granting the motion to dismiss filed by co-accused Concepcion x x x. xxx xxx xxx

It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost seven years, there was no action at all on the part of the court a quo.Except for the pleadings filed by both the prosecution and the

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petitioners, the latest of which was on January 29, 1996, followed by petitioner Sarucas motion to set case for trial on August 17, 1998 which the court did not act upon, the case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is precisely the kind of delay that the constitution frowns upon x x x.[63] (Emphasis supplied) This Court points out that on 10 January 1992, the final amended Information was filed against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera.[64] On 29 November 1993, they were all arraigned.[65] Unfortunately, the initial trial of the case did not commence until 28 March 2005 or almost 12 years after arraignment.[66] As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the Sandiganbayan for close to five years since the arraignment of the accused amounts to an unreasonable delay in the disposition of cases a clear violation of the right of the accused to a speedy disposition of cases.[67] Thus, we held: The delay in this case measures up to the unreasonableness of the delay in the disposition of cases in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the Ombudsman in resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the Court held that the delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him; and in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its discretion in not quashing the information which was filed six years after the initiatory complaint was filed and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be in the instant case, where the reinvestigation by the Ombudsman has dragged on for a decade already.[68] (Emphasis supplied) From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused Escalona et al.s right to speedy trial was violated. Since there is nothing in the records that would show that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De Vera, the effects of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano. G.R. No. 154954 (People v. Court of Appeals) The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a person is charged with an offense, and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused the accused cannot again be charged with the same or an identical offense.[69] This principle is founded upon the law of reason, justice and conscience.[70] It is embodied in the civil law maxim non bis in idem found in the common law of England and undoubtedly in every system of jurisprudence.[71] It found expression

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in the Spanish Law, in the Constitution of the United States, and in our own Constitution as one of the fundamental rights of the citizen,[72] viz: Article III Bill of Rights Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right, provides as follows:[73] SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same Rules.[74] The requisites for invoking double jeopardy are the following: (a) there is a valid complaint or information; (b) it is filed before a competent court; (c) the defendant pleaded to the charge; and (d) the defendant was acquitted or convicted, or the case against him or her was dismissed or otherwise terminated without the defendants express consent.[75] As we have reiterated in People v. Court of Appeals and Galicia, [a] verdict of acquittal is immediately final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear out the accused by a multitude of cases with accumulated trials. It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction. And finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty.[76] We further stressed that an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal.[77] This prohibition, however, is not absolute. The state may challenge the lower courts acquittal of the accused or the imposition of a lower penalty on the latter in the following

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recognized exceptions: (1) where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a deprivation of due process;[78] (2) where there is a finding of mistrial;[79] or (3) where there has been a grave abuse of discretion.[80] The third instance refers to this Courts judicial power under Rule 65 to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.[81] Here, the party asking for the review must show the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner by reason of passion and hostility;[82] or a blatant abuse of authority to a point so grave and so severe as to deprive the court of its very power to dispense justice.[83] In such an event, the accused cannot be considered to be at risk of double jeopardy.[84] The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the acquittal of Victorino et al. and (2) the conviction of Tecson et al.for the lesser crime of slight physical injuries, both on the basis of a misappreciation of facts and evidence. According to the Petition, the decision of the Court of Appeals is not in accordance with law because private complainant and petitioner were denied due process of law when the public respondent completely ignored the a) Position Paper x x x b) the Motion for Partial Reconsideration x x x and c) the petitioners Comment x x x.[85] Allegedly, the CA ignored evidence when it adopted the theory of individual responsibility; set aside the finding of conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code.[86] The Solicitor General also assails the finding that the physical blows were inflicted only by Dizon and Villareal, as well as the appreciation of Lenny Villas consent to hazing.[87] In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value of the evidence presented by the parties.[88] In People v. Maquiling, we held that grave abuse of discretion cannot be attributed to a court simply because it allegedly misappreciated the facts and the evidence.[89] Mere errors of judgment are correctible by an appeal or a petition for review under Rule 45 of the Rules of Court, and not by an application for a writ of certiorari.[90] Therefore, pursuant to the rule on double jeopardy, we are constrained to deny the Petition contra Victorino et al. the 19 acquitted fraternity members. We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug the four fraternity members convicted of slight physical injuries.

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Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the state seeks the imposition of a higher penalty against the accused.[91] We have also recognized, however, that certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.[92] The present case is one of those instances of grave abuse of discretion. In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA reasoned thus: Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical punishment heaped on him were serious in nature. However, by reason of the death of the victim, there can be no precise means to determine the duration of the incapacity or the medical attendance required. To do so, at this stage would be merely speculative. In a prosecution for this crime where the category of the offense and the severity of the penalty depend on the period of illness or incapacity for labor, the length of this period must likewise be proved beyond reasonable doubt in much the same manner as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof of the said period is absent, the crime committed should be deemed only as slight physical injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is constrained to rule that the injuries inflicted by the appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature.[93] (Emphasis supplied and citations included) The appellate court relied on our ruling in People v. Penesa[94] in finding that the four accused should be held guilty only of slight physical injuries. According to the CA, because of the death of the victim, there can be no precise means to determine the duration of the incapacity or medical attendance required.[95] The reliance on Penesa was utterly misplaced. A review of that case would reveal that the accused therein was guilty merely of slight physical injuries, because the victims injuries neither caused incapacity for labor nor required medical attendance.[96] Furthermore, he did not die.[97] His injuries were not even [98] serious. Since Penesa involved a case in which the victim allegedly suffered physical injuries and not death, the ruling cited by the CA was patently inapplicable. On the contrary, the CAs ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable merely for slight physical injuries grossly contradicts its own findings of fact. According to the court, the four accused were found to have inflicted more than the usual punishment undertaken during such initiation rites on the person of Villa.[99] It then adopted the

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NBI medico-legal officers findings that the antecedent cause of Lenny Villas death was the multiple traumatic injuries he suffered from the initiation rites.[100] Considering that the CA found that the physical punishment heaped on [Lenny Villa was] serious in nature,[101] it was patently erroneous for the court to limit the criminal liability to slight physical injuries, which is a light felony. Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences of an act, even if its result is different from that intended. Thus, once a person is found to have committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the death of the victim, courts are required to automatically apply the legal framework governing the destruction of life. This rule is mandatory, and not subject to discretion. The CAs application of the legal framework governing physical injuries punished under Articles 262 to 266 for intentional felonies and Article 365 for culpable felonies is therefore tantamount to a whimsical, capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According to the Revised Penal Code, the mandatory and legally imposable penalty in case the victim dies should be based on the framework governing the destruction of the life of a person, punished under Articles 246 to 261 for intentional felonies and Article 365 for culpable felonies, and not under the aforementioned provisions. We emphasize that these two types of felonies are distinct from and legally inconsistent with each other, in that the accused cannot be held criminally liable for physical injuries when actual death occurs.[102] Attributing criminal liability solely to Villareal and Dizon as if only their acts, in and of themselves, caused the death of Lenny Villa is contrary to the CAs own findings. From proof that the death of the victim was the cumulative effect of the multiple injuries he suffered, [103] the only logical conclusion is that criminal responsibility should redound to all those who have been proven to have directly participated in the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical injuries. As an allowable exception to the rule on double jeopardy, we therefore give due course to the Petition in G.R. No. 154954. Resolution on Ultimate Findings According to the trial court, although hazing was not (at the time) punishable as a crime, the intentional infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the accused, the court a quo found that pursuant to Article 4(1) of the Revised Penal Code, the accused fraternity members were guilty of

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homicide, as it was the direct, natural and logical consequence of the physical injuries they had intentionally inflicted.[104] The CA modified the trial courts finding of criminal liability. It ruled that there could have been no conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of hazing during their initiation rites. The accused fraternity members, therefore, were liable only for the consequences of their individual acts. Accordingly, 19 of the accused Victorino et al. were acquitted; 4 of them Tecson et al. were found guilty of slight physical injuries; and the remaining 2 Dizon and Villareal were found guilty of homicide. The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits a felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even with, the victim. Rather, the case involves an ex ante situation in which a man driven by his own desire to join a society of men pledged to go through physically and psychologically strenuous admission rituals, just so he could enter the fraternity. Thus, in order to understand how our criminal laws apply to such situation absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the underlying concepts shaping intentional felonies, as well as on the nature of physical and psychological initiations widely known as hazing. Intentional Felony and Conspiracy Our Revised Penal Code belongs to the classical school of thought.[105] The classical theory posits that a human person is essentially a moral creature with an absolute free will to choose between good and evil.[106] It asserts that one should only be adjudged or held accountable for wrongful acts so long as free will appears unimpaired.[107] The basic postulate of the classical penal system is that humans are rational and calculating beings who guide their actions with reference to the principles of pleasure and pain.[108] They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible gain or advantage in committing the crime.[109] Here, criminal liability is thus based on the free will and moral blame of the actor.[110] The identity of mens rea defined as a guilty mind, a guilty or wrongful purpose or criminal intent is the predominant consideration.[111] Thus, it is not enough to do what the law prohibits.[112] In order for an intentional felony to exist, it is necessary that the act be committed by means of dolo or malice.[113] The term dolo or malice is a complex idea involving the elements of freedom, intelligence, and intent.[114] The first element, freedom, refers to an act done with deliberation and with power to choose between two things.[115] The second element, intelligence, concerns the ability to determine the morality of human acts, as well as the capacity to distinguish between a licit and an illicit act.[116] The last element, intent, involves an aim or a determination to do a certain act.[117] The element of intent on which this Court shall focus is described as the state of mind accompanying an act, especially a forbidden act.[118] It refers to the purpose of the mind and the resolve with which a person proceeds.[119] It does not refer to mere will, for the latter pertains to the

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act, while intent concerns the result of the act.[120] While motive is the moving power that impels one to action for a definite result, intent is the purpose of using a particular means to produce the result.[121] On the other hand, the term felonious means, inter alia, malicious, villainous, and/or proceeding from an evil heart or purpose.[122] With these elements taken together, the requirement of intent in intentional felony must refer to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act. Stated otherwise, intentional felony requires the existence of dolus malus that the act or omission be done willfully, maliciously, with deliberate evil intent, and with malice aforethought.[123] The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if the mind of the person performing the act complained of is innocent.[124] As is required of the other elements of a felony, the existence of malicious intent must be proven beyond reasonable doubt.[125] In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of the Revised Penal Code which provides that conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it is to be interpreted to refer only to felonies committed by means of dolo or malice. The phrase coming to an agreement connotes the existence of a prefaced intent to cause injury to another, an element present only in intentional felonies. In culpable felonies or criminal negligence, the injury inflicted on another is unintentional, the wrong done being simply the result of an act performed without malice or criminal design.[126] Here, a person performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or lack of skill, the deed results in a wrongful act.[127] Verily, a deliberate intent to do an unlawful act, which is a requisite in conspiracy, is inconsistent with the idea of a felony committed by means of culpa.[128] The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the commission of the intentional felony of homicide.[129]Being mala in se, the felony of homicide requires the existence of malice or dolo[130] immediately before or simultaneously with the infliction of injuries.[131] Intent to kill or animus interficendi cannot and should not be inferred, unless there is proof beyond reasonable doubt of such intent.[132] Furthermore, the victims death must not have been the product of accident, natural cause, or suicide.[133] If death resulted from an act executed without malice or criminal intent but with lack of foresight, carelessness, or negligence the act must be qualified as reckless or simple negligence or imprudence resulting in homicide.[134]

Hazing and other forms of initiation rites

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The notion of hazing is not a recent development in our society.[135] It is said that, throughout history, hazing in some form or another has been associated with organizations ranging from military groups to indigenous tribes.[136] Some say that elements of hazing can be traced back to the Middle Ages, during which new students who enrolled in European universities worked as servants for upperclassmen.[137] It is believed that the concept of hazing is rooted in ancient Greece,[138] where young men recruited into the military were tested with pain or challenged to demonstrate the limits of their loyalty and to prepare the recruits for battle.[139] Modern fraternities and sororities espouse some connection to these values of ancient Greek civilization.[140] According to a scholar, this concept lends historical legitimacy to a tradition or ritual whereby prospective members are asked to prove their worthiness and loyalty to the organization in which they seek to attain membership through hazing.[141] Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an organization to receive an invitation in order to be a neophyte for a particular chapter.[142] The neophyte period is usually one to two semesters long.[143] During the program, neophytes are required to interview and to get to know the active members of the chapter; to learn chapter history; to understand the principles of the organization; to maintain a specified grade point average; to participate in the organizations activities; and to show dignity and respect for their fellow neophytes, the organization, and its active and alumni members.[144] Some chapters require the initiation activities for a recruit to involve hazing acts during the entire neophyte stage.[145] Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for admission to an organization.[146] In hazing, the recruit, pledge, neophyte, initiate, applicant or any other term by which the organization may refer to such a person is generally placed in embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar tasks or activities.[147] It encompasses different forms of conduct that humiliate, degrade, abuse, or physically endanger those who desire membership in the organization.[148] These acts usually involve physical or psychological suffering or injury.[149] The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our national hero Andres Bonifacio organized a secret society named Kataastaasan Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable Association of the Sons and Daughters of the Nation).[150] The Katipunan, or KKK, started as a small confraternity believed to be inspired by European Freemasonry, as well as by confraternities or sodalities approved by the Catholic Church.[151] The Katipunans ideology was brought home to each member through the societys initiation ritual.[152] It is said that initiates were brought to a dark room, lit by a single point of illumination, and were asked a series of questions to determine their fitness, loyalty, courage, and resolve.[153] They were made to go through

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vigorous trials such as pagsuot sa isang lungga or [pagtalon]sa balon.[154] It would seem that they were also made to withstand the blow of pangherong bakal sa pisngi and to endure a matalas na punyal.[155] As a final step in the ritual, the neophyte Katipunero was made to sign membership papers with the his own blood.[156] It is believed that the Greek fraternity system was transported by the Americans to the Philippines in the late 19th century. As can be seen in the following instances, the manner of hazing in the United States was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa. Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting physical exercises that sometimes resulted in permanent physical damage; to eat or drink unpalatable foods; and in various ways to humiliate themselves.[157] In 1901, General Douglas MacArthur got involved in a congressional investigation of hazing at the academy during his second year at West Point.[158] In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the shriners hazing event, which was part of the initiation ceremonies for Hejaz membership.[159] The ritual involved what was known as the mattress-rotating barrel trick.[160] It required each candidate to slide down an eight to nine-foot-high metal board onto connected mattresses leading to a barrel, over which the candidate was required to climb.[161] Members of Hejaz would stand on each side of the mattresses and barrel and fun-paddle candidates en route to the barrel.[162] In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were seen performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte paratroopers chests.[163] The victims were shown writhing and crying out in pain as others pounded the spiked medals through the shirts and into the chests of the victims.[164] In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha Psi invited male students to enter into a pledgeship program.[165] The fraternity members subjected the pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest, and the back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a heavy book and a cookie sheet while the pledges were on their hands and knees; various kicks and punches to the body; and body slamming, an activity in which active members of the fraternity lifted pledges up in the air and dropped them to the ground.[166] The fraternity members then put the pledges through a seven-station circle of physical abuse.[167] In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of the Kappa Alpha Order at the Auburn University in Alabama.[168] The hazing included the following: (1) having to dig a ditch and jump into it after it had been filled with water, urine,

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feces, dinner leftovers, and vomit; (2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or into pits and trash cans; (4) eating foods like peppers, hot sauce, butter, and yerks (a mixture of hot sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such as cleaning the fraternity house and yard, being designated as driver, and running errands; (6) appearing regularly at 2 a.m. meetings, during which the pledges would be hazed for a couple of hours; and (7) running the gauntlet, during which the pledges were pushed, kicked, and hit as they ran down a hallway and descended down a flight of stairs.[169] In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim Sylvester Lloyd was accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity. [170] He participated in initiation activities, which included various forms of physical beatings and torture, psychological coercion and embarrassment.[171] In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from hazing activities during the fraternitys initiation rites.[172]Kenner and the other initiates went through psychological and physical hazing, including being paddled on the buttocks for more than 200 times.[173] In Morton v. State, Marcus Jones a university student in Florida sought initiation into the campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year.[174] The pledges efforts to join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones, together with other candidates, was blindfolded, verbally harassed, and caned on his face and buttocks.[175] In these rituals described as preliminaries, which lasted for two evenings, he received approximately 60 canings on his buttocks.[176] During the last two days of the hazing, the rituals intensified.[177] The pledges sustained roughly 210 cane strikes during the four-night initiation.[178] Jones and several other candidates passed out.[179] The purported raison dtre behind hazing practices is the proverbial birth by fire, through which the pledge who has successfully withstood the hazing proves his or her worth.[180] Some organizations even believe that hazing is the path to enlightenment. It is said that this process enables the organization to establish unity among the pledges and, hence, reinforces and ensures the future of the organization.[181] Alleged benefits of joining include leadership opportunities; improved academic performance; higher self-esteem; professional networking opportunities; and the esprit dcorp associated with close, almost filial, friendship and common cause.[182]

Anti-Hazing laws in the U.S.

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The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military.[183] The hazing of recruits and plebes in the armed services was so prevalent that Congress prohibited all forms of military hazing, harmful or not.[184] It was not until 1901 that Illinois passed the first state anti-hazing law, criminalizing conduct whereby any one sustains an injury to his [or her] person therefrom.[185] However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to Halt Useless College Killings and other similar organizations,that states increasingly began to enact legislation prohibiting and/or criminalizing hazing.[186] As of 2008, all but six states had enacted criminal or civil statutes proscribing hazing.[187] Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and carry relatively light consequences for even the most severe situations.[188]Only a few states with anti-hazing laws consider hazing as a felony in case death or great bodily harm occurs.[189] Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or great bodily harm, which is a Class 4 felony.[190] In a Class 4 felony, a sentence of imprisonment shall be for a term of not less than one year and not more than three years.[191] Indiana criminal law provides that a person who recklessly, knowingly, or intentionally performs hazing that results in serious bodily injury to a person commits criminal recklessness, a Class D felony.[192] The offense becomes a Class C felony if committed by means of a deadly weapon. [193] As an element of a Class C felony criminal recklessness resulting in serious bodily injury, death falls under the category of serious bodily injury.[194] A person who commits a Class C felony is imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years.[195] Pursuant to Missouri law, hazing is a Class A misdemeanor, unless the act creates a substantial risk to the life of the student or prospective member, in which case it becomes a Class C felony.[196] A Class C felony provides for an imprisonment term not to exceed seven years.[197] In Texas, hazing that causes the death of another is a state jail felony.[198] An individual adjudged guilty of a state jail felony is punished by confinement in a state jail for any term of not more than two years or not less than 180 days.[199] Under Utah law, if hazing results in serious bodily injury, the hazer is guilty of a third-degree felony.[200] A person who has been convicted of a third-degree felony may be sentenced to imprisonment for a term not to exceed five years. [201] West Virginia law provides that if the act of hazing would otherwise be deemed a felony, the hazer may be found guilty thereof and subject to penalties provided therefor.[202] In Wisconsin, a person is guilty of a Class G felony if hazing results in the death of another.[203] A Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.[204] In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing statute.[205] This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry Ballous family resorted to a civil action for wrongful death, since there was no antihazing statute in South Carolina until 1994.[206]

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The existence of animus interficendi or intent to kill not proven beyond reasonable doubt The presence of an ex ante situation in this case, fraternity initiation rites does not automatically amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt that the perpetrators were equipped with a guilty mind whether or not there is a contextual background or factual premise they are still criminally liable for intentional felony. The trial court, the CA, and the Solicitor General are all in agreement that with the exception of Villareal and Dizon accused Tecson, Ama, Almeda, and Bantug did not have the animus interficendi or intent to kill Lenny Villa or the other neophytes. We shall no longer disturb this finding. As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries on him. It justified its finding of homicide against Dizon by holding that he had apparently been motivated by ill will while beating up Villa. Dizon kept repeating that his fathers parking space had been stolen by the victims father.[207] As to Villareal, the court said that the accused suspected the family of Bienvenido Marquez, one of the neophytes, to have had a hand in the death of Villareals brother.[208] The CA then ruled as follows: The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with evil and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa, appellants Dizon and Villareal must and should face the consequence of their acts, that is, to be held liable for the crime of homicide.[209] (Emphasis supplied) We cannot subscribe to this conclusion. The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the existence of animus interficendi. For a full appreciation of the context in which the supposed utterances were made, the Court deems it necessary to reproduce the relevant portions of witness Marquezs testimony: Witness We were brought up into [Michael Musngis] room and we were briefed as to what to expect during the next three days and we were told the members of the fraternity and their batch and we were also told about the fraternity song, sir. xxx Witness xxx xxx

We were escorted out of [Michael Musngis] house and we were made to ride a van and we were brought to another place in

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Kalookan City which I later found to be the place of Mariano Almeda, sir. xxx Witness xxx xxx

Upon arrival, we were instructed to bow our head down and to link our arms and then the driver of the van and other members of the Aquilans who were inside left us inside the van, sir. xxx xxx xxx

Witness

We heard voices shouted outside the van to the effect, Villa akin ka, Asuncion Patay ka and the people outside pound the van, rock the van, sir. Will you please recall in what tone of voice and how strong a voice these remarks uttered upon your arrival? Some were almost shouting, you could feel the sense of excitement in their voices, sir. xxx xxx xxx

Atty. Tadiar

Witness

Atty. Tadiar

During all these times that the van was being rocked through and through, what were the voices or utterances that you heard? Villa akin ka, Asuncion patay ka, Recinto patay ka sa amin, etc., sir. And those utterances and threats, how long did they continue during the rocking of the van which lasted for 5 minutes? xxx xxx xxx

Witness

Atty. Tadiar

Witness

Even after they rocked the van, we still kept on hearing voices, sir. xxx xxx xxx

Atty. Tadiar

During the time that this rounds [of physical beating] were being inflicted, was there any utterances by anybody? Yes sir. Some were piercing, some were discouraging, and some were encouraging others who were pounding and beating us, it was just like a fiesta atmosphere, actually some of them enjoyed looking us being pounded, sir.

Witness

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Atty. Tadiar Witness

Do you recall what were those voices that you heard? One particular utterance always said was, they asked us whether matigas pa yan, kayang-kaya pa niyan. Do you know who in particular uttered those particular words that you quote? I cannot particularly point to because there were utterances simultaneously, I could not really pin point who uttered those words, sir. xxx xxx xxx

Atty. Tadiar

Witness

Atty. Tadiar

Were there any utterances that you heard during the conduct of this Bicol Express? Yes, sir I heard utterances. Will you please recall to this Honorable Court what were the utterances that you remember? For example, one person particularly Boyet Dizon stepped on my thigh, he would say that and I quote ito, yung pamilya nito ay pinapatay yung kapatid ko, so that would in turn sort of justifying him in inflicting more serious pain on me. So instead of just walking, he would jump on my thighs and then after on was Lenny Villa. He was saying to the effect that this guy, his father stole the parking space of my father, sir. So, thats why he inflicted more pain on Villa and that went on, sir. And you were referring to which particular accused? Boyet Dizon, sir. When Boyet Dizon at that particular time was accusing you of having your family have his brother killed, what was your response? Of course, I knew sir that it was not true and that he was just making it up sir. So he said that I knew nothing of that incident. However, he just in fact after the Bicol Express, he kept on uttering those words/statements so that it would in turn justify him and to give me harder blows, sir. xxx xxx xxx

Witness Atty. Tadiar

Witness

Atty. Tadiar Witness Atty. Tadiar

Witness

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Atty. Tadiar

You mentioned about Dizon in particular mentioning that Lenny Villas father stole the parking space allotted for his father, do you recall who were within hearing distance when that utterance was made? Yes, sir. All of the neophytes heard that utterance, sir. xxx xxx xxx

Witness

Witness

There were different times made this accusation so there were different people who heard from time to time, sir. xxx xxx xxx

Atty. Tadiar

Can you tell the Honorable Court when was the next accusation against Lenny Villas father was made? When we were line up against the wall, Boyet Dizon came near to us and when Lenny Villas turn, I heard him uttered those statements, sir. What happened after he made this accusation to Lenny Villas father? He continued to inflict blows on Lenny Villa. How were those blows inflicted? There were slaps and he knelt on Lenny Villas thighs and sometime he stand up and he kicked his thighs and sometimes jumped at it, sir. xxx xxx xxx

Witness

Atty. Tadiar

Witness Atty. Tadiar Witness

Atty. Tadiar

We would go on to the second day but not right now. You mentioned also that accusations made by Dizon you or your family had his brother killed, can you inform this Honorable Court what exactly were the accusations that were charged against you while inflicting blows upon you in particular? While he was inflicting blows upon me, he told me in particular if I knew that his family who had his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story that he made up and I said that I knew nothing about it and he continued inflicting blows on me, sir. And another incident was when a talk was being given, Dizon was on another part of the pelota court and I was sort of looking and we saw that he was

Witness

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drinking beer, and he said and I quote: Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin, sir. Atty. Tadiar Witness Atty. Tadiar What else? Thats all, sir. And on that first night of February 8, 1991, did ever a doctor or a physician came around as promised to you earlier? No, sir.[210] (Emphasis supplied)

Witness

On cross-examination, witness Bienvenido Marquez testified thus: Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there was a briefing that was conducted immediately before your initiation as regards to what to expect during the initiation, did I hear you right? Yes, sir. Who did the briefing? Mr. Michael Musngi, sir and Nelson Victorino. Will you kindly tell the Honorable Court what they told you to expect during the initiation? They told us at the time we would be brought to a particular place, we would be mocked at, sir. So, you expected to be mocked at, ridiculed, humiliated etc., and the likes? Yes, sir. You were also told beforehand that there would be physical contact? Yes, sir at the briefing. xxx Witness xxx xxx

Witness Judge Purisima Witness Judge Purisima

Witness

Judge Purisima

Witness Judge Purisima

Witness

Yes, sir, because they informed that we could immediately go back to school. All the bruises would be limited to our arms and

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legs, sir. So, if we wear the regular school uniforms like long sleeves, it would be covered actually so we have no thinking that our face would be slapped, sir. Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but that will be covered? Yes, sir. So, what kind of physical contact or implements that you expect that would create bruises to your body? At that point I am already sure that there would be hitting by a paddling or paddle, sir. xxx Judge Purisima xxx xxx

Witness JudgePurisima

Witness

Now, will you admit Mr. Marquez that much of the initiation procedures is psychological in nature? Combination, sir.[211] (Emphasis supplied) xxx xxx xxx

Witness

Atty. Jimenez

The initiation that was conducted did not consist only of physical initiation, meaning body contact, is that correct? Yes, sir. Part of the initiation was the so-called psychological initiation, correct? Yes, sir. And this consisted of making you believe of things calculated to terrify you, scare you, correct? Yes, sir. In other words, the initiating masters made belief situation intended to, I repeat, terrify you, frighten you, scare you into perhaps quitting the initiation, is this correct? Sometimes sir, yes. You said on direct that while Mr. Dizon was initiating you, he said or he was supposed to have said according to you that your family

Witness Atty. Jimenez

Witness Atty. Jimenez

Witness Atty. Jimenez

Witness Atty. Jimenez

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were responsible for the killing of his brother who was an NPA, do you remember saying that? Witness Atty. Jimenez Yes, sir. You also said in connection with that statement said to you by Dizon that you did not believe him because that is not true, correct? Yes, sir. In other words, he was only psychologizing you perhaps, the purpose as I have mentioned before, terrifying you, scaring you or frightening you into quitting the initiation, this is correct? No, sir, perhaps it is one but the main reason, I think, why he was saying those things was because he wanted to inflict injury. He did not tell that to you. That is your only perception, correct? No, sir, because at one point, while he was telling this to Villareal, he was hitting me. But did you not say earlier that you [were] subjected to the same forms of initiation by all the initiating masters? You said that earlier, right? Yes, sir. Are you saying also that the others who jumped on you or kicked you said something similar as was told to you by Mr. Dizon? No, sir. But the fact remains that in the Bicol Express for instance, the masters would run on your thighs, right? Yes, sir. This was the regular procedure that was followed by the initiating masters not only on you but also on the other neophytes? Yes, sir.

Witness Atty. Jimenez

Witness

Atty. Jimenez Witness

Atty. Jimenez

Witness Atty. Jimenez

Witness Atty. Jimenez

Witness Atty. Jimenez

Witness

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Atty. Jimenez

In other words, it is fair to say that whatever forms of initiation was administered by one master, was also administered by one master on a neophyte, was also administered by another master on the other neophyte, this is correct? Yes, sir.[212] (Emphasis supplied)

Witness

According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal were baseless,[213] since the statements of the accused were just part of the psychological initiation calculated to instill fear on the part of the neophytes; that [t]here is no element of truth in it as testified by Bienvenido Marquez; and that the harsh words uttered by Petitioner and Villareal are part of tradition concurred and accepted by all the fraternity members during their initiation rites.[214] We agree with the Solicitor General. The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on the part of the CA it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot be tolerated, especially because it was the CAs primary basis for finding that Villarreal had the intent to kill Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat, according to Bienvenido Marquezs testimony, as reproduced above, it was Dizon who uttered both accusations against Villa and Marquez; Villareal had no participation whatsoever in the specific threats referred to by the CA. It was Boyet Dizon [who] stepped on [Marquezs] thigh; and who told witness Marquez, [I]to, yung pamilya nito ay pinapatay yung kapatid ko. It was also Dizon who jumped on Villas thighs while saying, [T]his guy, his father stole the parking space of my father. With the testimony clarified, we find that the CA had no basis for concluding the existence of intent to kill based solely thereon. As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu and contextual premise of the incident to fully appreciate and understand the testimony of witness Marquez. At the outset, the neophytes were briefed that they would be subjected to psychological pressure in order to scare them. They knew that they would be mocked, ridiculed, and intimidated. They heard fraternity members shout, Patay ka, Recinto, Yari ka, Recinto, Villa, akin ka, Asuncion, gulpi ka, Putang ina mo, Asuncion, Putang ina nyo, patay kayo sa amin, or some other words to that effect.[215] While beating the neophytes, Dizon accused Marquez of the death of the formers purported NPA brother, and then blamed Lenny Villas father for stealing the parking space of Dizons father. According to the Solicitor General, these statements, including those of the accused Dizon, were all part of the psychological initiation employed by the Aquila Fraternity.[216] Thus, to our understanding, accused Dizons way of inflicting psychological pressure was through hurling make-believe accusations at the initiates. He concocted the fictitious stories, so that he could justify giving the neophytes harder blows, all in the context of fraternity initiation and role playing. Even one of the neophytes admitted that the accusations were untrue and made-up.

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The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows: Senator Lina. -- so as to capture the intent that we conveyed during the period of interpellations on why we included the phrase or psychological pain and suffering. xxx xxx xxx

So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or neophyte is made to undergo certain acts which I already described yesterday, like playing the Russian roulette extensively to test the readiness and the willingness of the neophyte or recruit to continue his desire to be a member of the fraternity, sorority or similar organization or playing and putting a noose on the neck of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth floor of the building facing outside, asking him to jump outside after making him turn around several times but the reality is that he will be made to jump towards the inside portion of the building these are the mental or psychological tests that are resorted to by these organizations, sororities or fraternities. The doctors who appeared during the public hearing testified that such acts can result in some mental aberration, that they can even lead to psychosis, neurosis or insanity. This is what we want to prevent.[217] (Emphasis supplied) Thus, without proof beyond reasonable doubt, Dizons behavior must not be automatically viewed as evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context of the fraternitys psychological initiation. This Court points out that it was not even established whether the fathers of Dizon and Villa really had any familiarity with each other as would lend credence to the veracity of Dizons threats. The testimony of Lennys co-neophyte, Marquez, only confirmed this view. According to Marquez, he knew it was not true and that [Dizon] was just making it up.[218] Even the trial court did not give weight to the utterances of Dizon as constituting intent to kill: [T]he cumulative acts of all the accused were not directed toward killing Villa, but merely to inflict physical harm as part of the fraternity initiation rites x x x.[219] The Solicitor General shares the same view. Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of the Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and should not be inferred unless there is proof beyond reasonable doubt of such intent.[220] Instead, we adopt and reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity members had the specific intent to kill Lenny Villa.[221] The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt

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The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then posits that since all of the accused fraternity members conspired to inflict physical injuries on Lenny Villa and death ensued, all of them should be liable for the crime of homicide pursuant to Article 4(1) of the Revised Penal Code. In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code,[222] the employment of physical injuries must be coupled with dolus malus. As an act that is mala in se, the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are.[223] Thus, we have ruled in a number of instances[224] that the mere infliction of physical injuries, absent malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v. People,[225] the accused teacher, using a bamboo stick, whipped one of her students behind her legs and thighs as a form of discipline. The student suffered lesions and bruises from the corporal punishment. In reversing the trial courts finding of criminal liability for slight physical injuries, this Court stated thus: Independently of any civil or administrative responsibility [w]e are persuaded that she did not do what she had done with criminal intent the means she actually used was moderate and that she was not motivated by ill-will, hatred or any malevolent intent. Considering the applicable laws, we then ruled that as a matter of law, petitioner did not incur any criminal liability for her act of whipping her pupil. In People v. Carmen,[226] the accused members of the religious group known as the Missionaries of Our Lady of Fatima under the guise of a ritual or treatment plunged the head of the victim into a barrel of water, banged his head against a bench, pounded his chest with fists, and stabbed him on the side with a kitchen knife, in order to cure him of nervous breakdown by expelling through those means the bad spirits possessing him. The collective acts of the group caused the death of the victim. Since malicious intent was not proven, we reversed the trial courts finding of liability for murder under Article 4 of the Revised Penal Code and instead ruled that the accused should be held criminally liable for reckless imprudence resulting in homicide under Article 365 thereof. Indeed, the threshold question is whether the accuseds initial acts of inflicting physical pain on the neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the Revised Penal Code, thereby making it subject to Article 4(1) thereof. In People v. Regato, we ruled that malicious intent must be judged by the action, conduct, and external acts of the accused.[227] What persons do is the best index of their intention.[228] We have also ruled that the method employed, the kind of weapon used, and the parts of the body on which the injury was inflicted may be determinative of the intent of the perpetrator.[229] The Court shall thus examine the whole contextual background surrounding the death of Lenny Villa.

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Lenny died during Aquilas fraternity initiation rites. The night before the commencement of the rites, they were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, and that they could quit anytime. On their first night, they were subjected to traditional initiation rites, including the Indian Run, Bicol Express, Rounds, and the Auxies Privilege Round. The beatings were predominantly directed at the neophytes arms and legs. In the morning of their second day of initiation, they were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternitys principles. Late in the afternoon, they were once again subjected to traditional initiation rituals. When the rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another traditional ritual paddling by the fraternity. During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the neophytes by functioning as human barriers and shielding them from those who were designated to inflict physical and psychological pain on the initiates.[230] It was their regular duty to stop foul or excessive physical blows; to help the neophytes to pump their legs in order that their blood would circulate; to facilitate a rest interval after every physical activity or round; to serve food and water; to tell jokes; to coach the initiates; and to give them whatever they needed. These rituals were performed with Lennys consent.[231] A few days before the rites, he asked both his parents for permission to join the Aquila Fraternity.[232]His father knew that Lenny would go through an initiation process and would be gone for three days.[233] The CA found as follows: It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join the initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were given briefings on what to expect. It is of common knowledge that before admission in a fraternity, the neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods such as mocking, psychological tests and physical punishment would take place. They knew that the initiation would involve beatings and other forms of hazing. They were also told of their right and opportunity to quit at any time they wanted to. In fact, prosecution witness Navera testified that accused Tecson told him that after a week, you can already play basketball. Prosecution witness Marquez for his part, admitted that he knew that the initiates would be hit in the arms and legs, that a wooden paddle would be used to hit them and that he expected bruises on his arms and legs. Indeed, there can be no fraternity initiation without consenting neophytes.[234] (Emphasis supplied) Even after going through Aquilas grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation.

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Based on the foregoing contextual background, and absent further proof showing clear malicious intent, we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition. Although the additional rounds on the second night were held upon the insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the accused fraternity members still participated in the rituals, including the paddling, which were performed pursuant to tradition. Other than the paddle, no other weapon was used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles, including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those who wished to join the fraternity went through the same process of traditional initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress itself recognized that hazing is uniquely different from common crimes.[235] The totality of the circumstances must therefore be taken into consideration. The underlying context and motive in which the infliction of physical injuries was rooted may also be determined by Lennys continued participation in the initiation and consent to the method used even after the first day. The following discussion of the framers of the 1995 AntiHazing Law is enlightening: SENATOR GUINGONA. Most of these acts, if not all, are already punished under the Revised Penal Code. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. If hazing is done at present and it results in death, the charge would be murder or homicide. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or serious physical injuries. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be penalized under rape or acts of lasciviousness. SENATOR LINA. That is correct, Mr. President.

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SENATOR GUINGONA. So, what is the rationale for making a new offense under this definition of the crime of hazing? SENATOR LINA. To discourage persons or group of persons either composing a sorority, fraternity or any association from making this requirement of initiation that has already resulted in these specific acts or results, Mr. President. That is the main rationale. We want to send a strong signal across the land that no group or association can require the act of physical initiation before a person can become a member without being held criminally liable. xxx xxx xxx

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because the distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an initiation into a club or organization, he is seeking the punishment of certain acts that resulted in death, et cetera as a result of hazing which are already covered crimes. The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it may be a legitimate defense for invoking two or more charges or offenses, because these very same acts are already punishable under the Revised Penal Code. That is my difficulty, Mr. President. SENATOR LINA. x x x Another point, Mr. President, is this, and this is a very telling difference: When a person or group of persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr. President, let us say there is death or there is homicide, mutilation, if one files a case, then the intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is important is the result from the act of hazing. To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that they should really shun this activity called hazing. Because, initially, these fraternities or sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are even committed initially, Mr. President. So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim o

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pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo. xxx xxx xxx

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again disturbed by his statement that the prosecution does not have to prove the intent that resulted in the death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or deranged mind. We do not have to prove the willful intent of the accused in proving or establishing the crime of hazing. This seems, to me, a novel situation where we create the special crime without having to go into the intent, which is one of the basic elements of any crime. If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a new society or a new club is, per se, not punishable at all. What are punishable are the acts that lead to the result. But if these results are not going to be proven by intent, but just because there was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr. President. SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because in the context of what is happening in the sororities and fraternities, when they conduct hazing, no one will admit that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged. If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the masters intended to maim. What is important is the result of the act of hazing. Otherwise,the masters or those who inflict the physical pain can easily escape responsibility and say, We did not have the intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or maim. This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the elements if they are separate offenses. xxx xxx xxx

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SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a person died. The charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to prove conspiracy or not anymore? SENATOR LINA. Mr. President, if the person is present during hazing x x x SENATOR GUINGONA. The persons are present. First, would the prosecution have to prove conspiracy? Second, would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is no need to prove intent to kill. SENATOR GUINGONA. But the charge is murder. SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr. President. [236] (Emphasis supplied) During a discussion between Senator Biazon and Senator Lina on the issue of whether to include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus: SENATOR BIAZON. Mr. President, this Representation has no objection to the inclusion of sodomy as one of the conditions resulting from hazing as necessary to be punished. However, the act of sodomy can be committed by two persons with or without consent. To make it clearer, what is being punished here is the commission of sodomy forced into another individual by another individual. I move, Mr. President, that sodomy be modified by the phrase without consent for purposes of this section. SENATOR LINA. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only going to aggravate the crime of hazing if it is done without consent will change a lot of concepts here. Because the results from hazing aggravate the offense with or without consent. In fact, when a person joins a fraternity, sorority, or any association for that matter, it can be with or without the consent of the intended victim. The fact that a person joins a sorority or fraternity with his consent does not negate the crime of hazing. This is a proposed law intended to protect the citizens from the malpractices that attend initiation which may have been announced with or without physical infliction of pain or injury, Mr. President. Regardless of whether there is announcement that there will be physical hazing or whether there is none, and therefore, the neophyte is duped into joining a fraternity is of no moment. What is important is that there is an infliction of physical pain.

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The bottom line of this law is that a citizen even has to be protected from himself if he joins a fraternity, so that at a certain point in time, the State, the individual, or the parents of the victim can run after the perpetrators of the crime, regardless of whether or not there was consent on the part of the victim. xxx xxx xxx

SENATOR LINA. Mr. President, I understand the position taken by the distinguished Gentleman from Cavite and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and practices.

In this bill, we are not going to encroach into the private proclivities of some individuals when they do their acts in private as we do not take a peek into the private rooms of couples. They can do their thing if they want to make love in ways that are not considered acceptable by the mainstream of society. That is not something that the State should prohibit. But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent of the neophyte. If the law is passed, that does not make the act of hazing not punishable because the neophyte accepted the infliction of pain upon himself. If the victim suffers from serious physical injuries, but the initiator said, Well, he allowed it upon himself. He consented to it. So, if we allow that reasoning that sodomy was done with the consent of the victim, then we would not have passed any law at all. There will be no significance if we pass this bill, because it will always be a defense that the victim allowed the infliction of pain or suffering. He accepted it as part of the initiation rites. But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of consent will not apply because the very act of inflicting physical pain or psychological suffering is, by itself, a punishable act. The result of the act of hazing, like death or physical injuries merely aggravates the act with higher penalties. But the defense of consent is not going to nullify the criminal nature of the act. So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without consent of the victim, then the whole foundation of this proposed law will collapse. SENATOR BIAZON. Thank you, Mr. President. SENATOR LINA. Thank you very much.

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THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The Chair hears none; the same is approved.[237] (Emphasis supplied) Realizing the implication of removing the states burden to prove intent, Senator Lina, the principal author of the Senate Bill, said: I am very happy that the distinguished Minority Leader brought out the idea of intent or whether there it is mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to go to. If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that suggestion, Mr. President.[238](Emphasis supplied) Thus, having in mind the potential conflict between the proposed law and the core principle of mala in se adhered to under the Revised Penal Code, Congress did not simply enact an amendment thereto. Instead, it created a special law on hazing, founded upon the principle of mala prohibita. This dilemma faced by Congress is further proof of how the nature of hazing unique as against typical crimes cast a cloud of doubt on whether society considered the act as an inherently wrong conduct or mala in se at the time. It is safe to presume that Lennys parents would not have consented[239] to his participation in Aquila Fraternitys initiation rites if the practice of hazing were considered by them as mala in se. Furthermore, in Vedaa v. Valencia (1998), we noted through Associate Justice (now retired Chief Justice) Hilario Davide that in our nations very recent history, the people have spoken, through Congress, to deem conduct constitutive of hazing, [an] act[] previously considered harmless by custom, as criminal.[240]Although it may be regarded as a simple obiter dictum, the statement nonetheless shows recognition that hazing or the conduct of initiation rites through physical and/or psychological suffering has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law, there was to some extent a lacuna in the law; hazing was not clearly considered an intentional felony. And when there is doubt on the interpretation of criminal laws, all must be resolved in favor of the accused. In dubio pro reo. For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial courts finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof beyond reasonable doubt of the existence of malicious intent to inflict physical injuries or animus iniuriandi as required in mala in secases, considering the contextual background of his death, the unique nature of hazing, and absent a law prohibiting hazing.

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The accused fraternity members guilty of reckless imprudence resulting in homicide The absence of malicious intent does not automatically mean, however, that the accused fraternity members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Reckless imprudence or negligence consists of a voluntary act done without malice, from which an immediate personal harm, injury or material damage results by reason of an inexcusable lack of precaution or advertence on the part of the person committing it.[241] In this case, the danger is visible and consciously appreciated by the actor.[242] In contrast, simple imprudence or negligence comprises an act done without grave fault, from which an injury or material damage ensues by reason of a mere lack of foresight or skill.[243] Here, the threatened harm is not immediate, and the danger is not openly visible. [244] The test[245] for determining whether or not a person is negligent in doing an act is as follows: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the doer the duty to take precaution against the mischievous results of the act. Failure to do so constitutes negligence.[246] As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of precaution and diligence required varies with the degree of the danger involved. [247] If, on account of a certain line of conduct, the danger of causing harm to another person is great, the individual who chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or avoid damage or injury.[248] In contrast, if the danger is minor, not much care is required.[249] It is thus possible that there are countless degrees of precaution or diligence that may be required of an individual, from a transitory glance of care to the most vigilant effort. [250] The duty of the person to employ more or less degree of care will depend upon the circumstances of each particular case.[251] There was patent recklessness in the hazing of Lenny Villa. According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple traumatic injuries.[252] The officer explained that cardiac failure refers to the failure of the heart to work as a pump and as part of the circulatory system due to the lack of blood.[253] In the present case, the victims heart could no longer work as a pumping organ, because it was deprived of its requisite blood and oxygen.[254] The deprivation was due to the channeling of the blood supply from the entire circulatory system including the heart, arteries, veins, venules, and capillaries to the thigh, leg, and arm areas of Lenny, thus causing the formation of multiple hematomas or blood clots.[255] The multiple hematomas were wide, thick, and deep,[256] indicating that these could have resulted mainly from injuries sustained by the victim from fist blows, knee blows, paddles, or the like.[257] Repeated blows to those areas caused the blood to gradually ooze out

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of the capillaries until the circulating blood became so markedly diminished as to produce death. [258] The officer also found that the brain, liver, kidney, pancreas, intestines, and all other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale due to the lack of blood, which was redirected to the thighs and forearms.[259] It was concluded that there was nothing in the heart that would indicate that the victim suffered from a previous cardiac arrest or disease.[260] The multiple hematomas or bruises found in Lenny Villas arms and thighs, resulting from repeated blows to those areas, caused the loss of blood from his vital organs and led to his eventual death. These hematomas must be taken in the light of the hazing activities performed on him by the Aquila Fraternity. According to the testimonies of the co-neophytes of Lenny, they were punched, kicked, elbowed, kneed, stamped on; and hit with different objects on their arms, legs, and thighs.[261]They were also paddled at the back of their thighs or legs;[262] and slapped on their faces.[263] They were made to play rough basketball.[264] Witness Marquez testified on Lenny, saying: [T]inamaan daw sya sa spine.[265] The NBI medico-legal officer explained that the death of the victim was the cumulative effect of the multiple injuries suffered by the latter. [266] The relevant portion of the testimony is as follows: Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of defense counsels that the injuries that you have enumerated on the body of the deceased Lenny Villa previously marked as Exhibit G-1 to G-14 individually by themselves would not cause the death of the victim. The question I am going to propound to you is what is the cumulative effect of all of these injuries marked from Exhibit G-1 to G-14? All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to isolate such injuries here because we are talking of the whole body. At the same manner that as a car would not run minus one (1) wheel. No, the more humane in human approach is to interpret all those injuries in whole and not in part.[267]

Witness

There is also evidence to show that some of the accused fraternity members were drinking during the initiation rites.[268] Consequently, the collective acts of the fraternity members were tantamount to recklessness, which made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe to their initiates a duty of care not to cause them injury in the process.[269] With the foregoing facts, we rule that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-legal officer found that the victims death was the cumulative effect of the injuries suffered, criminal responsibility redounds to all those who directly participated in and contributed to the infliction of physical injuries.

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It appears from the aforementioned facts that the incident may have been prevented, or at least mitigated, had the alumni of Aquila Fraternity accused Dizon and Villareal restrained themselves from insisting on reopening the initiation rites. Although this point did not matter in the end, as records would show that the other fraternity members participated in the reopened initiation rites having in mind the concept of seniority in fraternities the implication of the presence of alumni should be seen as a point of review in future legislation. We further note that some of the fraternity members were intoxicated during Lennys initiation rites. In this light, the Court submits to Congress, for legislative consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would increase the applicable penalties. It is truly astonishing how men would wittingly or unwittingly impose the misery of hazing and employ appalling rituals in the name of brotherhood. There must be a better way to establish kinship. A neophyte admitted that he joined the fraternity to have more friends and to avail himself of the benefits it offered, such as tips during bar examinations.[270] Another initiate did not give up, because he feared being looked down upon as a quitter, and because he felt he did not have a choice.[271]Thus, for Lenny Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By giving consent under the circumstances, they left their fates in the hands of the fraternity members. Unfortunately, the hands to which lives were entrusted were barbaric as they were reckless. Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then, these five accused fraternity members would have all been convicted of the crime of hazing punishable by reclusion perpetua (life imprisonment).[272] Since there was no law prohibiting the act of hazing when Lenny died, we are constrained to rule according to existing laws at the time of his death. The CA found that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.s individual participation in the infliction of physical injuries upon Lenny Villa.[273] As to accused Villareal, his criminal liability was totally extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code. Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight physical injuries to reckless imprudence resulting in homicide shall apply only with respect to accused Almeda, Ama, Bantug, and Tecson. The accused liable to pay damages

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The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of 50,000 as civil indemnity ex delicto and 1,000,000 as moral damages, to be jointly and severally paid by accused Dizon and Villareal. It also awarded the amount of 30,000 as indemnity to be jointly and severally paid by accused Almeda, Ama,Bantug, and Tecson. Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim. In accordance with prevailing jurisprudence,[275] we sustain the CAs award of indemnity in the amount of 50,000.
[274]

The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred in connection with the death of the victim, so long as the claim is supported by tangible documents.[276] Though we are prepared to award actual damages, the Court is prevented from granting them, since the records are bereft of any evidence to show that actual expenses were incurred or proven during trial. Furthermore, in the appeal, the Solicitor General does not interpose any claim for actual damages.[277] The heirs of the deceased may recover moral damages for the grief suffered on account of the victims death.[278] This penalty is pursuant to Article 2206(3) of the Civil Code, which provides that the spouse, legitimate and illegitimate descendants and the ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.[279] Thus, we hereby we affirm the CAs award of moral damages in the amount of 1,000,000. WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical injuries is also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr.,and Vincent Tecson are found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code. They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of 50,000, and moral damages in the amount of 1,000,000, plus legal interest on all damages awarded at the rate of 12% from the date of the finality of this Decision until satisfaction.[280] Costs de oficio. The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED.

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Finally, pursuant to Article 89(1) of the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case against Artemio Villareal deemed CLOSED and TERMINATED. Let copies of this Decision be furnished to the Senate President and the Speaker of the House of Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would increase the applicable penalties. SO ORDERED.

MARIA LOURDES P. A. SERENO Associate Justice WE CONCUR:

ANTONIO T. CARPIO Associate Justice Chairperson

ARTURO D. BRION Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

BIENVENIDO L. REYES Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the Opinion of the Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson, Second Division

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CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

[1]

Sponsorship Speech of former Senator Joey Lina, Senate Transcript of Session Proceedings No. 34 (08 October 1992) 9th Congress, 1st Regular Sess. at 21-22 [hereinafter Senate TSP No. 34]. [2] Id. [3] Senate Transcript of Session Proceedings No. 47 (10 November 1992) 9th Congress, 1st Regular Sess. at 20-21, 24-27 [hereinafter Senate TSP No. 47]. [4] Id.; Senate Transcript of Session Proceedings No. 62 (14 December 1992) 9th Congress, 1st Regular Sess. at 15 [hereinafter Senate TSP No. 62]. [5] Senate TSP No. 34, supra note 1. [6] Id. [7] U.S. v. Taylor, 28 Phil 599 (1914). The Court declared, In the Philippine Islands there exist no crimes such as are known in the United States and England as common law crimes; id. at 604. [8] CA Decision (People v. Dizon, CA-G.R. CR No. 15520), pp. 1-5; rollo (G.R. No. 151258), pp. 62-66. [9] RTC Decision [People v. Dizon, Criminal Case No. C-38340(91)], pp. 1-57; rollo (G.R. No. 151258), pp. 109-167. [10] As explained in the Petition for Review of Villareal, resident brods are those fraternity members who are currently students of the Ateneo Law School, while alumni brods are those fraternity members who are graduates or former students of the law school; see Villareals Petition for Review (Villareal v. People, G.R. No. 151258), pp. 5-7; rollo (G.R. No. 151258), pp. 17-19.
[11] [12]

RTC Decision [Crim. Case No. C-38340(91)], p. 2, supra note 9; rollo, p. 110. Id. [13] Id. at 66-67; rollo, pp. 175-176. [14] CA Decision (Escalona v. RTC, CA-G.R. SP No. 89060), p. 4; rollo (G.R. No. 178057), p. 131. [15] Penned by Associate Justice Eubulo G. Verzola and concurred in by Associate Justices Rodrigo V. Cosico and Eliezer R. de los Santos (with Concurring Opinion). [16] RTC Decision (People v. Dizon, Crim. Case No. 38340), p. 21; rollo (G.R. No. 178057), p. 1114. [17] CA Decision (Escalona v. RTC), pp. 12-14, supra note 14; rollo, pp. 139-141.

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[18]

Penned by Associate Justice Mariflor P. Punzalan Castillo and concurred in by Associate Justices Andres B. Reyes, Jr. and Hakim S. Abdulwahid. [19] CA Decision (Escalona v. RTC), pp. 37-39, supra note 14; rollo, pp. 166-168. [20] Villareals Petition for Review (Villareal v. People, G.R. No. 151258), p. 13; rollo, p. 25. [21] Dizons Petition for Review (Dizon v. People, G.R. No. 155101), p. 1; rollo, p. 3. [22] Id. at 17; rollo, p. 19. [23] Id. at 10; rollo, p. 12. [24] Id. at 22; rollo, p. 24. [25] Id. at 23; rollo, p. 25. [26] Id. at 23-24; rollo, pp. 25-26. [27] Id. at 26; rollo, p. 28. [28] Peoples Petition for Certiorari (People v. CA, G.R. No. 154954), p. 2; rollo, p. 13. [29] Id. at 167; rollo, p. 118. [30] Villas Petition for Review on Certiorari (Villa v. Escalona, G.R. Nos. 178057 and 178080), p. 1; rollo, p. 84. [31] Petralba v. Sandiganbayan, G.R. No. 81337, 16 August 1991, 200 SCRA 644. [32] People v. Badeo, G.R. No. 72990, 21 November 1991, 204 SCRA 122, citing J. Aquinos Concurring Opinion in People v. Satorre, G.R. No. L-26282, August 27, 1976, 72 SCRA 439. [33] People v. Bayotas, G.R. No. 102007, 2 September 1994, 236 SCRA 239; People v. Bunay, G.R. No. 171268, 14 September 2010, 630 SCRA 445. [34] People v. Bunay, supra, citing People v. Bayotas, supra. [35] CA Decision (People v. Dizon), p. 7, supra note 8; rollo, p. 68. [36] Id. [37] Id. [38] Id. [39] Id. at 7-8; rollo, pp. 68-69. [40] Id. at 8; rollo, p. 69. [41] Id. [42] People v. Banihit, 393 Phil. 465 (2000); People v. Hernandez, 328 Phil. 1123 (1996), citing People v. Dichoso, 96 SCRA 957 (1980); and People v. Angco, 103 Phil. 33 (1958). [43] People v. Hapa, 413 Phil. 679 (2001), citing People v. Diaz, 311 SCRA 585 (1999). [44] People v. Hapa, supra, citing Parada v. Veneracion, 336 Phil. 354, 360 (1997). [45] Crisostomo v. Sandiganbayan, 495 Phil. 718 (2005). [46] Id. [47] People v. Bodoso, 446 Phil. 838 (2003). [48] Id. [49] Dizons Petition for Review, supra note 21 at 20; rollo, p. 22. [50] Id. at 23; rollo, p. 25. [51] Villas Petition for Review on Certiorari, supra note 30 at 19; rollo, p. 102. [52] People v. Hernandez, G.R. Nos. 154218 & 154372, 28 August 2006, 499 SCRA 688. [53] People v. Tampal, 314 Phil. 35 (1995), citing Gonzales v. Sandiganbayan, 199 SCRA 298 (1991); Acebedo v. Sarmiento, 146 Phil. 820 (1970). [54] People v. Tampal, supra; Acebedo v. Sarmiento, supra. [55] People v. Tampal, supra. [56] Id. [57] Id.

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[58]

People v. Hernandez, supra note 52, citing People v. Tampal, supra; Philippine Savings Bank v. Spouses Bermoy, 471 SCRA 94, 107 (2005); People v. Bans, 239 SCRA 48 (1994); People v. Declaro, 170 SCRA 142 (1989); and People v. Quizada, 160 SCRA 516 (1988). [59] See People v. Hernandez, supra note 52. [60] Id. [61] Id. [62] Id. [63] CA Decision (Escalona v. RTC), pp. 24-30, supra note 14; rollo, pp. 151-157. [64] Id. at 4; rollo, p. 131. [65] Id. [66] Id. [67] Abardo v. Sandiganbayan, 407 Phil. 985 (2001). [68] Id. [69] Melo v. People, 85 Phil. 766 (1950). [70] Id. [71] Id. [72] Id. [73] People v. Nazareno, G.R. No. 168982, 5 August 2009, 595 SCRA 438. [74] Id.; People v. Maquiling, 368 Phil. 169 (1999). [75] People v. Velasco, 394 Phil. 517 (2000), citing Rules on Criminal Procedure, Rule 117, Sec 7; Paulin v. Gimenez, G. R. No. 103323, 21 January 1993, 217 SCRA 386; Comelec v. Court of Appeals, G. R. No. 108120, 26 January 1994, 229 SCRA 501; People v. Maquiling, supra note 74. [76] People v. Court of Appeals and Galicia, G.R. No. 159261, 21 February 2007, 516 SCRA 383, 397, citing People v. Serrano, 315 SCRA 686, 689 (1999). [77] People v. Court of Appeals and Galicia, supra, citing People v. Velasco, 340 SCRA 207, 240 (2000). [78] Galman v. Sandiganbayan, 228 Phil. 42 (1986), citing People v. Bocar, 138 SCRA 166 (1985); Combate v. San Jose, 135 SCRA 693 (1985); People v. Catolico, 38 SCRA 389 (1971); and People v. Navarro, 63 SCRA 264 (1975). [79] People v. Court of Appeals and Galicia, supra note 76 [citing People v. Tria-Tirona, 463 SCRA 462, 469-470 (2005); and People v. Velasco, 340 SCRA 207 (2000)]; People v. Court of Appeals and Francisco, 468 Phil. 1 (2004); Galman v. Sandiganbayan, supra, citing People v. Bocar, supra. [80] People v. Court of Appeals and Galicia, supra note 76, citing People v. Serrano, supra note 76 at 690; People v. De Grano, G.R. No. 167710, 5 June 2009, 588 SCRA 550. [81] People v. Nazareno, supra note 73; De Vera v. De Vera, G.R. No. 172832, 7 April 2009, 584 SCRA 506. [82] People v. Nazareno, supra note 73; De Vera v. De Vera, supra. [83] People v. De Grano, supra note 80, citing People v. Maquiling, supra note 74 at 704. [84] Id. [85] Peoples Petition for Certiorari, p. 8, supra note 28; rollo, p. 19. [86] Id. at 80-81; rollo, pp. 91-92. [87] Id. at 82-86; rollo, pp. 93-97. [88] See Francisco v. Desierto, G.R. No. 154117, 2 October 2009, 602 SCRA 50, citing First Corporation v. Court of Appeals, G.R. No. 171989, 4 July 2007, 526 SCRA 564, 578. [89] People v. Maquiling, supra note 74, citing Teknika Skills and Trade Services v. Secretary of Labor and Employment, 273 SCRA 10 (1997).

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[90]

People v. Maquiling, supra note 74, citing Medina v. City Sheriff of Manila, 276 SCRA 133, (1997); Jamer v. National Labor Relations Commission, 278 SCRA 632 (1997); and Azores v. Securities and Exchange Commission, 252 SCRA 387 (1996). [91] De Vera v. De Vera, supra note 81; People v. Dela Torre, 430 Phil. 420 (2002); People v. Leones, 418 Phil. 804 (2001); People v. Ruiz, 171 Phil. 400 (1978); People v. Pomeroy, 97 Phil. 927 (1955), citing People v. Ang Cho Kio, 95 Phil. 475 (1954). [92] See generally People v. Court of Appeals and Galicia, supra note 76; and People v. Court of Appeals and Francisco, supra note 79. [93] CA Decision (People v. Dizon), pp. 21-22, supra note 8; rollo, pp. 82-83. [94] People v. Penesa, 81 Phil. 398 (1948). [95] CA Decision (People v. Dizon), pp. 21-22, supra note 8; rollo, pp. 82-83. [96] People v. Penesa, supra note 94. [97] Id. [98] Id. [99] CA Decision (People v. Dizon), p. 16, supra note 8; rollo, p. 77. [100] Id. at 21; rollo, p. 82. [101] Id. [102] See footnote 1 of Corpus v. Paje, 139 Phil. 429 (1969). [103] RTC Decision [Crim. Case No. C-38340(91)], p. 61, supra note 9; rollo, p. 170. [104] Id. at 58; rollo, p. 167. [105] RAMON C. AQUINO, THE REVISED PENAL CODE VOLUME ONE 3 (1961); see People v. Estrada, 389 Phil. 216 (2000); People v. Sandiganbayan, 341 Phil. 503 (1997). [106] VICENTE J. FRANCISCO, THE REVISED PENAL CODE: ANNOTATED AND COMMENTED BOOK ONE 4 (3rd ed. 1958); see People v. Estrada, supra. [107] FRANCISCO, supra at 4; People v. Estrada, supra. [108] AQUINO, supra note 105 at 3. [109] Id. [110] GUILLERMO B. GUEVARA, PENAL SCIENCES AND PHILIPPINE CRIMINAL LAW 6 (1974). [111] People v. Sandiganbayan, 341 Phil. 503 (1997). [112] FRANCISCO, supra note 106 at 33. [113] Id. at 33-34. [114] MARIANO A. ALBERT, THE REVISED PENAL CODE (ACT NO. 3815) 21-24 (1946). [115] Id. at 21. [116] Id. at 21. [117] Guevarra v. Almodovar, 251 Phil. 427 (1989), citing 46 CJS Intent 1103. [118] BLACKS LAW DICTIONARY 670 (8th abr. ed. 2005); see People v. Regato, 212 Phil. 268 (1984). [119] Guevarra v. Almodovar, supra note 117. [120] ALBERT, supra note 114 at 23. [121] People v. Ballesteros, 349 Phil. 366 (1998); Bagajo v. Marave, 176 Phil. 20 (1978), citing People v. Molineux, 168 N.Y. 264, 297; 61 N.E. 286, 296; 62 L.R.A. 193. [122] BLACKS LAW DICTIONARY, supra note 118 at 520. [123] See FRANCISCO, supra note 106 at 34; ALBERT, supra note 114 at 23-25. [124] U.S. v. Catolico, 18 Phil. 504 (1911); U.S. v. Ah Chong, 15 Phil. 488 (1910). [125] U.S. v. Barnes, 8 Phil. 59 (1907); Dado v. People, 440 Phil. 521 (2002), citing Mondragon v. People, 17 SCRA 476, 481 (1966); People v. Villanueva, 51 Phil. 488 (1928); U.S. v. Reyes, 30

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Phil. 551 (1915); U.S. v. Mendoza, 38 Phil. 691 (1918); People v. Montes, 53 Phil. 323 (1929); People v. Pacusbas, 64 Phil. 614 (1937); and People v. Penesa, supra note 94. [126] People v. Fallorina, 468 Phil. 816 (2004), citing People v. Oanis, 74 Phil. 257 (1943); FRANCISCO, supra note 106 at 51-52, citing People v. Sara, 55 Phil. 939 (1931). [127] See generally FRANCISCO, supra note 106 at 51. [128] Id. at 52; People v. Oanis, 74 Phil. 257 (1943), citing People v. Nanquil, 43 Phil. 232 (1922); People v. Bindoy, 56 Phil. 15 (1931). [129] Mahawan v. People, G.R. No. 176609, 18 December 2008, 574 SCRA 737, citing Rivera v. People, G.R. No. 166326, 25 January 2006, 480 SCRA 188, 196-197. [130] People v. Quijada, 328 Phil. 505 (1996). [131] Mahawan v. People, supra note 129, citing Rivera v. People, supra note 129. [132] Dado v. People, supra note 125. [133] People v. Delim, 444 Phil. 430, 450 (2003), citing WHARTON, CRIMINAL LAW VOL. 1, 473-474 (12TH ED., 1932). [134] See People v. Garcia, 467 Phil. 1102 (2004), citing People v. Carmen, G.R. No. 137268, 26 March 2001, 355 SCRA 267; U.S. v. Tayongtong, 21 Phil. 476 (1912); see generally U.S. v. Maleza, 14 Phil. 468 (1909). [135] A. Catherine Kendrick, Ex Parte Barran: In Search of Standard Legislation for Fraternity Hazing Liability, 24 AM. J. TRIAL ADVOC. 407 (2000) [136] Id. [137] In re Khalil H., No. 08110, 2010 WL 4540458 (N.Y. App. Div. Nov. 9, 2010) (U.S.) [citing Kuzmich, Comment, In Vino Mortuus: Fraternal Hazing and Alcohol-Related Deaths, 31 MCGEORGE L REV. 1087, 1088-1089 (2000); andSYMPOSIUM, THE WORKS OF PLATO (THE MODERN LIBRARY 1956)]; Gregory E. Rutledge, Hell Night Hath No Fury Like a Pledge Scorned ... and Injured: Hazing Litigation in U.S. Colleges and Universities, 25 J.C. & U.L. 361, 368-9 (1998); Kendrick, 24 AM. J. TRIAL ADVOC. [138] In re Khalil H., supra; Rutledge, supra. [139] Jamie Ball, This Will Go Down on Your Permanent Record (But We'll Never Tell): How the Federal Educational Rights and Privacy Act May Help Colleges and Universities Keep Hazing a Secret, 33 SW. U. L. REV. 477, 480 (2004),citing Rutledge, supra. [140] Id. [141] Id. [142] Kendrick, supra note 135, citing Scott Patrick McBride, Comment, Freedom of Association in the Public University Setting: How Broad is the Right to Freely Participate in Greek Life?, 23 U. DAYTON L. REV. 133, 147-8 (1997). [143] Id. [144] Id. [145] Id., citing Ex parte Barran, 730 So.2d 203 (Ala. 1998) (U.S.). [146] See generally Sec. 1, Republic Act No. 8049 (1995), otherwise known as the Anti-Hazing Law. [147] Id. [148] In re Khalil H., supra note 137, citing WEBSTER'S THIRD INTERNATIONAL DICTIONARY, 1041 (1986); and People v. Lenti, 44 Misc.2d 118, 253 N.Y.S.2d 9 (N.Y. Nassau County Ct. 1964) (U.S.). [149] See generally Republic Act No. 8049 (1995), Sec. 1, otherwise known as the Anti-Hazing Law; Susan Lipkins, Hazing: Defining and Understanding Psychological Damages, 2 ANN.2007 AAJCLE 2481 (2007).

120

[150]

REYNALDO C. ILETO, THE DIORAMA EXPERIENCE: A VISUAL HISTORY OF THE PHILIPPINES 84 (2004). [151] Id. [152] Id. [153] Id.; see Philippine Insurrection Records, Reel 31, Folder 514/10 Cartilla del Katipunan, quoted in LUIS CAMARA DERY, ALAY SA INANG BAYAN: PANIBAGONG PAGBIBIGAY KAHULUGAN SA KASAYSAYAN NG HIMAGSIKAN NG 1896, 16-24 (1999). [154] Philippine Insurrection Records, supra, quoted in DERY, supra at 17. [155] Philippine Insurrection Records, supra, quoted in DERY, supra at 18. [156] ILETO, supra note 150. [157] STEPHEN E. AMBROSE, DUTY, HONOR, COUNTRY: A HISTORY OF WEST POINT 222 (1999). [158] Id. [159] Easler v. Hejaz Temple of Greenville, 285 S.C. 348, 329 S.E.2d 753 (S.C. 1985) (U.S.). (The South Carolina Supreme Court held, inter alia, that (1) evidence supported the jury finding that the manner in which the association carried out mattress-rotating barrel trick, a hazing event, was hazardous and constituted actionable negligence; and (2) the candidate was not barred from recovery by the doctrine of assumption of risk. Id.) [160] Id. [161] Id. [162] Id. [163] CNN U.S., Pentagon Brass Disgusted by Marine Hazing Ceremony, January 31, 1997, available at<http://articles.cnn.com/1997-01-31/us/9701_31_hazing_1_hazing-incidentcamp-lejeune-marines?_s=PM:US> (visited 3 December 2010); see also Gregory E. Rutledge, Hell Night Hath No Fury Like a Pledge Scorned ... and Injured: Hazing Litigation in U.S. Colleges and Universities, 25 J.C. & U.L. 361, 364 (1998). [164] CNN U.S., supra; see also Rutledge, supra. [165] State v. Allen, 905 S.W.2d 874, 875 (Mo. 1995) (U.S.). (One of the pledges Michael Davis blacked out and never regained consciousness. He died the following afternoon. The Supreme Court of Missouri affirmed the trial courts conviction of hazing. Id.) [166] Id. [167] Id. [168] Ex parte Barran, 730 So.2d 203 (Ala. 1998) (U.S.). (The Alabama Supreme Court ruled that the (1) pledge knew and appreciated the risks inherent in hazing; and (2) pledge voluntarily exposed himself to hazing, supporting the fraternity's assumption of the risk defense. Consequently, the Court reversed the judgment of the Court of Civil Appeals and reinstated the ruling of the trial court, which entered the summary judgment in favor of the defendants with respect to the victims negligence claims. The case was remanded as to the other matters. Id.) [169] Id. [170] Lloyd v. Alpha Phi Alpha Fraternity, No. 96-CV-348, 97-CV-565, 1999 WL 47153 (Dist. Ct., N.D. N.Y., 1999) (U.S.). (The plaintiff filed a law suit against Cornell University for the latters liability resulting from the injuries the former sustained during the alleged hazing by the fraternity. The New York district court granted defendant Cornells motion to dismiss the plaintiffs complaint. Id.) [171] Id. [172] Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178 (Pa. Super.Ct. 2002). (The Pennsylvania Superior Court held that: (1) the fraternity owed the duty to protect the initiate from

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harm; (2) breach of duty by fraternity was not established; (3) individual fraternity members owed the duty to protect the initiate from harm; and (4) the evidence raised the genuine issue of material fact as to whether the fraternity's chapter advisor breached the duty of care to initiate. Id.) [173] Id. [174] Morton v. State, 988 So.2d 698 (Flo. Dist. Ct. App. 2008) (U.S.). (The District Court of Appeal of Florida reversed the conviction for felony hazing and remanded the case for a new trial because of erroneous jury instruction. Id.) [175] Id. [176] Id. [177] Id. [178] Id. [179] Id. [180] Rutledge, supra note 137. [181] Rutledge, supra note 137, citing Fraternity Hazing: Is that Anyway to Treat a Brother?, TRIAL, September 1991, at 63. [182] Rutledge, supra note 137, [citing Robert D. Bickel & Peter F. Lake, Reconceptualizing the University's Duty to Provide A Safe Learning Environment: A Criticism of the Doctrine of In Loco Parentis and the Restatement (Second) of Torts, 20 J.C. & U.L. 261 (1994); Jennifer L. Spaziano, It's All Fun and Games Until Someone Loses an Eye: An Analysis of University Liability for Actions of Student Organizations, 22 PEPP. L. REV. 213 (1994); Fraternity Hazing: Is that Anyway to Treat a Brother?, TRIAL, Sept. 1991, at 63; and Byron L. Leflore, Jr., Alcohol and Hazing Risks in College Fraternities: Re-evaluating Vicarious and Custodial Liability of National Fraternities, 7 REV. LITIG. 191, 210 (1988)]. [183] Darryll M. Halcomb Lewis, The Criminalization of Fraternity, Non-Fraternity and NonCollegiate Hazing, 61 MISS. L.J. 111, 117 (1991), citing Benjamin, The Trouble at the Naval Academy, 60 The Independent 154, 155 (1906). According to Lewis, the 1874 statute outlawing hazing was directed specifically at the United States Naval Academy. [184] Gregory L. Acquaviva, Protecting Students from the Wrongs of Hazing Rites: A Proposal for Strengthening New Jersey's Anti-Hazing Act, 26 QUINNIPIAC L. REV. 305, 311 (2008), citing Lewis, supra note 183 at 118. [185] Acquaviva, supra, citing Lewis, supra note 183 at 118-119. [186] Acquaviva, supra, citing Lewis, supra note 183 at 119. [187] Acquaviva, supra at 313. [188] Amie Pelletier, Note, Regulation of Rites: The Effect and Enforcement of Current Anti-Hazing Statutes, 28 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 377, 377 (2002). [189] Id. [190] Id., citing 720 Ill. Comp. Stat. Ann. 120/10 (1992) (U.S.). [191] 730 ILCS 5/5-8-2 (West, Westlaw through P.A. 96-1482 of the 2010 Sess.) (U.S.). [192] Pelletier, supra note 188, citing Ind. Code Ann. 35-42-2-2 (U.S.). [193] Pelletier, supra note 188, citing Ind. Code Ann. 35-42-2-2 (U.S.). [194] Ind. Code Ann. 35-42-2-2 (West, Westlaw through 2010 Sess.) (U.S.) citing State v. Lewis, 883 N.E.2d 847 (Ind. App. 2008) (U.S.). [195] Ind. Code Ann. 35-50-2-6 (West, Westlaw through 2010 Sess.) (U.S.). [196] Pelletier, supra note 188, citing Mo. Rev. Stat. 578.365 (2001) (U.S.). [197] Mo. Stat. Ann. 558.011 (West, Westlaw through 2010 First Extraordinary Gen. Ass. Sess.). [198] Pelletier, supra note 188, citing Tex. Educ. Code Ann. 37.152 (Vernon 1996) (U.S.). [199] Tex. Stat. Code Ann., Penal Code 12.35 (Vernon, Westlaw through 2009 Legis. Sess.) (U.S.).

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[200] [201]

Pelletier, supra note 188, citing Utah Code Ann. 76-5-107.5 (1999) (U.S.). Utah Code Ann. 1953 76-3-203 (Westlaw through 2010 Gen. Sess.) (U.S.). [202] Pelletier, supra note 188, citing W. Va. Code 18-16-3 (1999) (U.S.). [203] See Pelletier, supra note 188, citing Wis. Stat. 948.51 (1996) (U.S.). [204] Wis. Stat. Ann. 939.50 (Westlaw through 2009 Act 406) (U.S.). [205] Pelletier, supra note 188 at 381. [206] Id. [207] CA Decision (People v. Dizon), p. 15, supra note 8; rollo, p. 76. [208] Id. [209] Id. [210] TSN, 21 April 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 68-72, 90-91, 100-102, 108-109, 127-134. [211] TSN, 26 May 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 29-32, 43. [212] TSN, 3 June 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 24-28. [213] Peoples Comment (Dizon v. People, G.R. No. 155101), p. 131; rollo, p. 626; Peoples Comment (Villareal v. People, G.R. No. 151258), p. 120-3; rollo, pp. 727-730. [214] Peoples Comment (Dizon v. People, G.R. No. 155101), pp. 130-131; rollo, pp. 625-626; Peoples Comment (Villareal v. People, G.R. No. 151258), pp. 120-123; rollo, pp. 727-730. [215] RTC Decision [Crim. Case No. C-38340(91)], pp. 18-35, supra note 9; rollo, pp. 127-144. [216] Peoples Comment (Dizon v. People, G.R. No. 155101), pp. 130-131; rollo, pp. 625-626; Peoples Comment (Villareal v. People, G.R. No. 151258), pp. 120-123; rollo, pp. 727-730. [217] Senate TSP No. 51 (17 November 1992) 9th Congress, 1st Regular Sess., pp. 12-13. [218] TSN, 21 April 1992(People v. Dizon, Crim. Case No. C-38340), pp. 68-72, 90-91, 100-102, 108-109, 127-134; see TSN, 26 May 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 29-32, 43; and TSN, 3 June 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 24-28. [219] RTC Decision [Crim. Case No. C-38340(91)], p. 58, supra note 9; rollo, p. 167. [220] Dado v. People, supra note 125. [221] RTC Decision [Crim. Case No. C-38340(91)], p. 58, supra note 9; rollo, p. 167. [222] The aforementioned articles refer to the Revised Penal Code provisions on Physical Injuries. These are the following: (a) Art. 262 Mutilation; (b) Art. 263 Serious Physical Injuries; (c) Art. 264 Administering Injurious Substances or Beverages; (d) Art. 265 Less Serious Physical Injuries; and, (e) Art. 266 Slight Physical Injuries and Maltreatment. [223] Cf. United States v. Ah Chong, 15 Phil. 488 (1910); and Calimutan v. People, 517 Phil. 272 (2006). [224] Cf. Calimutan v. People, supra, citing People v. Carmen, 407 Phil. 564 (2001); People v. Nocum, 77 Phil. 1018 (1947); People v. Sara, 55 Phil 939 (1931); and People v. Ramirez, 48 Phil 204 (1925). [225] 176 Phil. 20 (1978). [226] People v. Carmen, supra note 224. [227] People v. Regato, supra note 118. [228] Id. [229] Cf. People v. Penesa, supra note 94. [230] RTC Decision [Crim. Case No. C-38340(91)], pp. 38-44, supra note 9; rollo, pp. 147-153. [231] RTC Decision [Crim. Case No. C-38340(91)], pp. 18-35, supra note 9; rollo, pp. 127-144. [232] RTC Decision [Crim. Case No. C-38340(91)], p. 38, supra note 9; rollo, p. 147; TSN, 16 July 1992 (People v. Dizon, Crim. Case No. C-38340), p. 108.

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[233]

RTC Decision [Crim. Case No. C-38340(91)], p. 38, supra note 9; rollo, p. 147; TSN, 16 July 1992 (People v. Dizon, Crim. Case No. C-38340), p. 109. [234] CA Decision (People v. Dizon), pp. 13-14, supra note 8; rollo, pp. 74-75. [235] Senate TSP No. 47, supra note 3. [236] Senate TSP No. 47, supra note 3. [237] Senate TSP No. 62, supra note 4 at 13-15. [238] Senate TSP No. 47, supra note 3. [239] RTC Decision [Crim. Case No. C-38340(91)], p. 38, supra note 9; rollo, p. 147; TSN, 16 July 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 108-109. [240] Vedaa v. Valencia, 356 Phil. 317, 332 (1998). [241] Caminos v. People, 587 SCRA 348 (2009) citing LUIS B. REYES, THE REVISED PENAL CODE: CRIMINAL LAW BOOK ONE 995 (15th ed. 2001); People v. Vistan, 42 Phil 107 (1921), citing U.S. vs. Gomez, G.R. No. 14068, 17 January 1919 (unreported); U.S. v. Manabat, 28 Phil. 560 (1914). [242] People v. Vistan, supra, citing U.S. vs. Gomez, supra. [243] Id. [244] Id. [245] Gaid v. People, G.R. No. 171636, 7 April 2009, 584 SCRA 489; Gan v. Court of Appeals, 247A Phil. 460 (1988). [246] Gaid v. People, supra; Gan v. Court of Appeals, supra. [247] Gaid v. People, supra; People v. Vistan, supra note 241, citing U.S. vs. Gomez, supra note 241. [248] Id. [249] Id. [250] See Gaid v. People, supra note 245, at 503 (Velasco, J., dissenting). [251] Id. [252] RTC Decision [Crim. Case No. C-38340(91)], p. 37, supra note 9; rollo, p. 146. [253] Id. [254] Id. at 36; rollo, p. 145. [255] Id.; TSN, 24 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 52-67. [256] RTC Decision [Crim. Case No. C-38340(91)], p. 37, supra note 9; rollo, p. 146. [257] Id.; TSN, 24 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 68-69. [258] RTC Decision [Crim. Case No. C-38340(91)], p. 37, supra note 9; rollo, p. 146; TSN, 24 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 70-71. [259] RTC Decision [Crim. Case No. C-38340(91)], p. 37, supra note 9; rollo, p. 146. [260] TSN, 24 June 1992 (People v. Dizon, Crim. Case No.C-38340), p. 50. [261] RTC Decision [Crim. Case No. C-38340(91)], p. 18-21, supra note 9; rollo, p. 127-130. [262] Id. at 23; rollo, p. 132. [263] Id. at 25; rollo, p. 134. [264] Id. at 26; rollo, p. 135. [265] TSN, 21 April 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 175-176. [266] RTC Decision [Crim. Case No. C-38340(91)], p. 61, supra note 9; rollo, p. 170. [267] TSN, 16 July 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 92-93. [268] TSN, 21 April 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 110-111. [269] Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (S.C. App. 1986) (U.S.) citing Easler v. Hejaz Temple of Greenville, 285 S.C. 348, 329 S.E.2d 753 (S.C. 1985) (U.S.). [270] RTC Decision [Crim. Case No. C-38340(91)], p. 34, supra note 9; rollo, p. 143. [271] Id. at 27; rollo, p. 136.

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[272] [273]

Republic Act No. 8049 (1995), Sec. 4(1), otherwise known as the Anti-Hazing Law. CA Decision (People v. Dizon), p. 22, supra note 8; rollo, p. 83. [274] Brias v. People, 211 Phil. 37 (1983); see also People v. Yanson, G.R. No. 179195, 3 October 2011, citing People v. Del Rosario, G.R. No. 189580, 9 February 2011. [275] People v. Mercado, G.R. No. 189847, 30 May 2011 [citing People v. Flores, G.R. No. 188315, 25 August 2010; People v. Lindo, G.R. No. 189818, 9 August 2010; People v. Ogan, G.R. No. 186461, 5 July 2010; and People v. Cadap, G.R. No. 190633, 5 July 2010]. [276] Seguritan v. People, G.R. No. 172896, 19 April 2010, 618 SCRA 406. [277] Peoples Consolidated Memoranda (Dizon v. People, G.R. No. 155101), p. 144; rollo, p. 1709. [278] Heirs of Ochoa v. G & S Transport Corporation, G.R. No. 170071, 9 March 2011, citing Victory Liner Inc. v. Gammad, 486 Phil. 574, 592-593 (2004). [279] Id. [280] Eastern Shipping Lines, Inc. vs. Court of Appeals, G.R. No. 97412, 17 July 1994, 234 SCRA 78.

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THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 193672 Present: VELASCO, JR., J., Chairperson, PERALTA, ABAD, MENDOZA, and PERLAS-BERNABE, JJ.

- versus -

GLENFORD SAMOY and LEODIGARIO ISRAEL, Accused, Promulgated:

LEODIGARIO ISRAEL, Appellant. January 18, 2012

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

DECISION

ABAD, J.:

This case is about the reliability of the identification of the accused involved in a robbery with homicide case three years after the commission of the crime.

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The Facts and the Case

The Cagayan Provincial Prosecutor filed a case for robbery on the highway [1] against accused Jonathan Valencia, Glenford Samoy, and Leodigario Israel before the Aparri Regional Trial Court (RTC), Branch 6, in Criminal Case VI-967.

Edmund Addun and Johnny Ventura (Johnny) testified that on the morning of December 27, 1997 they left Tuguegarao City for Sanchez Mira, Cagayan, with Rodolfo Cachola, Canuto Forlaje, and Melencio Ventura (Melencio) to buy pigs. They rode a small Isuzu Elf truck with Johnny on the wheel. They were on errand for spouses Edwin and Elizabeth Cauilan, their employers, who bought and sold hogs.

When the group reached the boundary of Barangay Logac, Lallo, Cagayan and Barangay Iringan, Allacapan, Cagayan, three armed men, which included accused Glenford Samoy and Leodigario Israel, flagged them down. One carried an M16 armalite rifle, the second a .45 caliber pistol, and the third a .38 caliber pistol. The accused ordered those on the truck to alight and hand over their money. Melencio, who was in charge of buying the hogs for their employer, immediately handed over the P60,000.00 he had with him.

The accused then ordered their captives to get their things from the truck and go up the mountain. When they hesitated, one of the accused fired his gun. This prompted the captives to run for their lives, except Addun who closed his eyes because of a gun aimed directly at him. The accused fired three warning shots to stop those who where running away. When the latter did not heed the shots, the accused fired directly at them, seriously wounding Melencio while slightly hurting Johnny and Forlaje. The robbers then fled to the mountain. Although the robbery victims brought Melencio to the hospital, he was pronounced dead on arrival.

The accused, on the other hand, denied having taken part in the commission of the crime. Accused Samoy claimed that when the robbery took place, he was helping out in the

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wedding preparations of a cousin. He was unable, however, to attend the wedding on the next day because of a hangover he got from drinking the night before. Accused Israel, for his part, claimed that he was planting rice in a farm all day on December 27, 1997. He left home early in the morning and returned home in the afternoon.

On July 1, 2003 the RTC found both Samoy and Israel guilty beyond reasonable doubt of robbery with homicide and meted out to them the penalty of reclusion perpetua. The RTC held that the accused committed only one act of robbery and that the prosecution was unable to prove that they organized themselves to commit robbery on the highway. The RTC likewise held them solidarily liable to Melencios heirs in the sum of P1,260,000.00 for loss of earning capacity, P30,000.00 as actual damages, and P50,000.00 as moral damages. The RTC also ordered the accused to return the P60,000.00 taken during the robbery to the spouses Cauilan.

Both accused appealed to the Court of Appeals (CA) in CA-G.R. CR-H.C. 00328 but Samoy escaped from prison on October 5, 2004, resulting in the dismissal of his appeal. On June 4, 2010 the CA affirmed the RTC decision with respect to Israel. In addition, it ordered him to pay P50,000.00 as civil indemnity and P20,000.00 more for loss of earning capacity to correct a discrepancy in computation.

The Issue Presented

The only issue presented is whether or not the CA, along with the RTC, erred in finding that accused Israel committed robbery with homicide in company of others.

The Ruling of the Court

Accused Israel assails the manner by which Johnny and Addun identified him. Three years had passed, he said, before they identified him at the trial as one of the robbers. Israel argues that his physical appearance had surely changed through those years, rendering Johnny and Adduns

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identification of him inaccurate. Israel also pointed out that the RTC and the CA failed to take into account the witnesses emotional imbalance, caused by the terrible experience they went through, making their testimonies altogether untrustworthy. The Court disagrees.

Contrary to the theory of the accused, victims of criminal violence are more likely to observe and remember their appalling experience rather than ignore and forget them. [2] Three years are not too long. Such victims are able to recall the faces of and the body movements unique to the men who terrorized them.[3] Parenthetically, the robbery in this case took place in broad daylight, the assailants were not wearing masks or hats, and the frightening episode lasted for several minutes. The offenders tried before fleeing to send their victims up the mountain after robbing them.

Accused Israel claims that the CA improperly ignored inconsistent testimonies regarding the question of whether or not he wore sunglasses during the robbery. But the fact is that Addun and Johnny categorically identified him as the robber among the three who was armed with a .45 caliber pistol. That one of these witnesses had the impression that Israel wore sunglasses could not diminish the strength of such identification.

For his part, all that Israel could claim is that he could not have been involved in the robbery since he was planting rice elsewhere when it happened. But Israels house was just near the Maluyo highway, giving him an easy access to any public transport which could bring him to the Logac junction. He was not able to prove that it was physically impossible for him to be at the scene of the crime at the time of its commission.[4] Thus, in the absence of any improper motive to incriminate Israel, the positive identification made by the prosecution witnesses must prevail over his mere denial and alibi.

The RTC and the CA were likewise correct in finding accused Israel guilty only of robbery with homicide, not of robbery on the highway as defined in P.D. 532. Conviction for the latter crime requires proof that several accused organized themselves for the purpose of committing robbery indiscriminately, preying upon innocent and defenseless people on the highway.[5] Here, the prosecution proved only one act of robbery.

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WHEREFORE, this Court AFFIRMS in its entirety the assailed Decision of the Court of Appeals in CA-G.R. CR-H.C. 00328 dated June 4, 2010.

SO ORDERED.

ROBERTO A. ABAD Associate Justice WE CONCUR:

PRESBITERO J. VELASCO, JR. Associate Justice Chairperson

DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

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ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

PRESBITERO J. VELASCO, JR. Associate Justice Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

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[1] [2] [3] [4] [5]

Section 3b of Presidential Decree 532, Anti-Piracy and Anti-Highway Robbery Law of 1974. People v. Togahan, G.R. No. 174064, June 8, 2007, 524 SCRA 557, 571. Id. People v. Apelado, 374 Phil. 773, 783 (1999). People v. Pascual, 432 Phil. 224, 234 (2002).

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SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 193833 Present:

CARPIO, J., Chairperson, BRION, - versus PEREZ, SERENO, and REYES, JJ.

PO1 FROILAN L. TRESTIZA, P/S INSP. LORIEMAN* L. MANRIQUE, and RODIE J. PINEDA @ Buboy, Accused.

PO1 FROILAN L. TRESTIZA, Accused-Appellant.

Promulgated: November 16, 2011

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

DECISION

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CARPIO, J.:

The Case

G.R. No. 193833 is an appeal1 from the Decision2 promulgated on 30 June 2009 as well as the Resolution3 promulgated on 11 June 2010 by the Court of Appeals (appellate court) in CA-G.R. CR.-HC. No. 03119. The appellate court affirmed the 24 July 2007 Joint Decision4 of Branch 143 of the Regional Trial Court of Makati City (trial court) in Criminal Case Nos. 02-3393 for Kidnapping (for Ransom), 03-766 for Robbery, and 04-1311 also for Robbery.

The trial court found appellant PO1 Froilan L. Trestiza (Trestiza) guilty beyond reasonable doubt as principal by direct participation of the crime of Kidnapping for Ransom under Article 267 of the Revised Penal Code, as amended by Section 8 of Republic Act No. 7659 (RA 7659), and sentenced him to suffer the penalty of reclusion perpetuaand to pay damages to Irma Navarro (Navarro) and Lawrence Yu (Yu). P/Insp. Lorieman L. Manrique (Manrique) and Rodie Pineda y Jimenez (Pineda) were likewise found guilty of the same crime by the trial court, and adjudged the same sentence as Trestiza. The trial court acquitted Trestiza, Manrique and Pineda in Criminal Case Nos. 03-766 and 04-1311.

The Facts The following charges were brought against Trestiza, Manrique and Pineda on 20 November 2002:

Criminal Case No. 02-3393 for Kidnapping

That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PO1 FroilanTrestiza y Lacson and P/S Insp. Loriemar L. Manrique, both active members of the Philippine National Police, and Rodie Pineda y Jimenez, a private individual[,] all of them armed with firearms, conspiring, confederating and mutually helping one another with one PO2 [Reynel] Jose, a member of the Philippine National Police, did then and there willfully, unlawfully and feloniously kidnap Lawrence Yu y Lim and Maria Irma Navarro, or otherwise deprive them of their liberty by then and there kidnap without legal grounds for the purpose of extorting money for their safety and immediate release as in fact said accused demanded the amount of P1,000,000.00 as ransom money from them.

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CONTRARY TO LAW.5 Criminal Case No. 02-3394 for Illegal Possession of Firearm and Ammunitions

That on or about the 16th day of November 2002, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) Pistol Glock 21 bearing SN 035481 with thirteen (13) rounds of live ammunitions and without the corresponding license or permit thereof, which he carried outside of his residence.

CONTRARY TO LAW.6 On 15 April 2004, Trestiza was acquitted of the crime charged in Criminal Case No. 02-3394.7 The Affidavit of Arrest stated that the serial number of the firearm seized was 035481, while the firearm itself had a serial number of BRG-768. The trial court rejected the explanation that the difference between the serial numbers was a mere typographical error.

An order8 of the trial court dated 16 April 2004 in Criminal Case Nos. 02-3393, 02-3394, 03-766 and 04-1311 recounted the circumstances involved in the filing of the charges against Trestiza, Manrique and Pineda.

Criminal Case No. 02-3393 for Kidnapping against accused PO1 Froilan Trestiza y Lacson (PO1 Trestiza), PS/Insp. Loriemar L. Manrique (PS/Insp. Manrique) and Rodie Pineda y Jimenez (Pineda) and Criminal Case No. 02-3394 for Illegal Possession of Firearms and Ammunitions against accused PO1 Trestiza alone were filed before this Court on 20 November 2002. Surprisingly, however, SPO2 [Reynel] Jose was not included as an accused in the Kidnapping case although in the original Information, Prosecutor Andres N. Marcos mentions him as someone who mutually helped all the other accused in the willful, unlawful, felonious kidnapping of private complainants Lawrence Yu y Lim (Yu) and Ma. Irma Navarro (Navarro). A Motion for Reinvestigation dated 21 November 2002 was then filed by all three accused while a separate Motion for Reinvestigation and/or Preliminary Investigation dated 22 November was filed by accused PS/Insp. Manrique. Then Acting Presiding Judge Salvador S. Abad Santos issued the Order dated 26 November 2002 granting the Motions filed by all accused. In the said Order, he directed the Public Prosecutor to conduct a Preliminary Investigation of the cases filed and to furnish the Court with his Report within sixty (60) days from said date.

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On 21 February 2003, Public Prosecutor Andres N. Marcos filed a Motion to Withdraw Information of Kidnapping with Ransom and to Admit Information for Robbery with attached Resolution dated 03 January 2008. He pointed out therein that after he conducted a preliminary investigation, he found no probable cause exists to warrant the indictment of the accused for the crime of Kidnapping with Ransom. He added that they should be charged instead for the crimes of Robbery and Grave Threats. The Court set the hearing of this Motion to 06 March 2003.

On 03 March 2003, private complainants appearing through Private Prosecutor Teresita G. Oledan filed an Urgent Motion to Hold Withdrawal of Information for Kidnapping Charge with Entry of Appearance as Private Prosecutor. They alleged in said Motion that they were not furnished clear and certified true copies of the Resolution dated 03 January 2003 to enable them to file their Opposition/Comment to the Motion to Withdraw.

On 05 March 2003, the Branch Clerk of Court of RTC Makati Branch 135 sent a letter dated 26 February 2003 addressed to the Branch Clerk of this Court ostensibly transmitting the Release Order of PO1 Trestiza dated 22 February 2003 together with other pertinent documents in connection with Criminal Case No. 02-3394, which was duly approved by the Hon. Francisco B. Ibay, Presiding Judge of said Court.

The Order of Release dated 22 February 2003 signed by Judge Ibay directed the Jail Warden of Makati Police Station, Makati City to discharge from his custody the person of said accused as the latter was able to file the corresponding bail bond in the amount of two hundred thousand pesos (PHP200,000.00) thru the Plaridel Surety and Insurance Company provided there exists no order in any other case to the effect that he shall remain confined under your custody. He set the arraignment of the accused on 14 March 2003 at 8:30 oclock in the morning.

Before the scheduled hearing of the Motion to Withdraw at 2:00 oclock in the afternoon of 06 March 2003, the Private Prosecutor filed her Opposition thereto at 1:30 oclock in the afternoon of said date. She alleged therein that while the Motion to Withdraw filed by Public Prosecutor Marcos prays for the withdrawal of the Information for Kidnapping with Ransom and the substitution thereof with an Information for Robbery, the latter Information was filed immediately with the Criminal Cases Unit of the Office of the Clerk of Court on the same date that the Motion to Withdraw was filed with this Court on 21 February 2003. Subsequently, said Information for Robbery was raffled to RTC Branch 57 on 03 March 2003 yet there was a scheduled hearing of the Motion to Withdraw on 06 March 2003. She added that the complainants were in a quandary why the alleged substituted Information for Robbery was raffled to another Court and docketed as Criminal Case No. 03-766, when this Court has already acquired jurisdiction over the original cases filed. The same case was thereafter consolidated with this Court on 26 March 2003 as per Order dated 24 March 2003 rendered by the Honorable Reinato G. Quilala, Presiding Judge thereat.

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Accused PS/Insp. Manrique, PO1 Trestiza, and Pineda posted bail in this case, which was duly approved by Judge Ibay, while accused SPO2 Joses bail was approved by Judge Napoleon E. Inoturan, Presiding Judge of RTC Branch 133.

At the hearing to the Motion to Withdraw, then Acting Presiding Judge Abad Santos gave counsel for the accused time within which to file his comment/objection to the Urgent Motion to Hold Withdrawal of Information for Kidnapping filed by the private complainants, furnishing the Private Prosecutor a copy thereof, who was given the same number of days to file her Reply, if necessary. The Court likewise ordered the re-commitment of all three (3) accused, who were then present at that hearing, to the custody of the Makati City Jail despite the fact that they have already posted bail, considering that the Motion to Withdraw was still pending resolution.

Counsel for the accused filed his Comment to the Opposition dated 10 March 2003 alleging that the same did not bear the conformity of the Public Prosecutor who has direct control and supervision over the Private Prosecutor as provided for under the Rules of Criminal Procedure. Said Comment, to his mind, is thus a mere scrap of paper which did not deserve any consideration by the Court.

On 13 March 2003, the Court was furnished by the private complainants a copy of their Motion for Reconsideration of the Resolution dated January 03, 2003 but Released on February 20, 2003 which they filed with the Office of the City Prosecutor of Makati City.

xxx

On 29 May 2003, accused PO1 Trestiza and PS/Insp. Manrique filed an Urgent Motion to Resolve Motion for Withdrawal of Original Information claiming that said Original Informations have subsequently been amended by the Public Prosecutors Office and just needs the court/judge[s] approval of the Motion to Withdraw Complaint and for Admission of the Amended Information. Moreover, they averred that the City Prosecutors Office has approved the findings of the reinvestigating Assistant City Prosecutor on the downgrading of the original complaint. Both accused prayed that said motion be heard on 28 May 2003.

On 9 June 2003, the Private Prosecutor filed an Ex-Parte Opposition to Accuseds Motion for Withdrawal of Original Information with Motion for Issuance of the Warrant of Arrest against accused SPO2 Jose. She alleged therein that it is true that one of the accuseds right is the right to

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speedy trial. However, where, as in this case, the stench of something fishy already was evident when suddenly the robbery case as amended by Prosecutor Marcos and more recently affirmed by Prosecutor Sibucao, there should be further in-depth investigation as the circumstances on how the three accused were able to post bail without the knowledge and approval of this Honorable Court, which had already acquired jurisdiction over the case. In fact, a Petition for Review from the Resolution of Prosecutor Sibucao denying the Private Complainants Motion for Reconsideration of the 03 January 2003 Resolution of Prosecutor Marcos duly approved by the City Prosecutor has been seasonably filed. She further alleged that, the Urgent Motion allegedly filed by accused PO1 Trestiza and PS/Insp. Manrique does not include accused SPO2 Jose, also a member of the Police Force. However, the records show that the latter also post bail for the Robbery case and was in fact outside the Chamber of this Honorable Court when the hearing was being conducted. However, when she went out to look for him, SPO2 Jose was able to do a Houdini and disappeared from view. Private Prosecutor Oledan prayed for the deferment of the proceedings herein until the final resolution of the Petition for Review.

Referring back to the Urgent Motion to Resolve by accused PO1 Trestiza and PS/Insp. Manrique, considering that the latter prayed for it to be heard on 28 May 2003, but filed said Motion the following day only, the same was then set for hearing on 10 June 2003. On the same date, the Private Prosecutor furnished the Court a copy of their Petition for Review which they filed with the Department of Justice. In the meantime, the Branch Clerk of this Court issued a Certification to the effect that Acting Presiding Judge Abad Santos was on official leave until 15 July 2003 and that there is an Urgent Motion to be resolved. Pairing Judge Manuel D. Victorio, acting on the Urgent Motion, issued the Order of even date directing the City Prosecution Office to submit to the Court the complete records of its Preliminary Investigation within five (5) days from notice, thereafter the same shall be considered for resolution.

On 23 June 2003, accused PO1 Trestiza filed an Ex-Parte Motion for Early Resolution of the Pending Motion to Resolve, reiterating the grounds stated in his previous Motion.

Before the issue could be resolved by the Pairing Judge, however, the Honorable Estela Perlas Bernabe, took over this Court as Assisting Presiding Judge, after the Honorable Salvador S. Abad Santos requested the Supreme Court to be relieved of his assignment herein. Judge Bernabe issued the Order dated 27 June 2003 holding in abeyance the Resolution of the Prosecutions Motion to Withdraw Information for a period of sixty (60) days from the filing of the Petition for Review by private complainants with the Reviewing Office. On 08 July 2003, she denied the Motion to Dismiss Criminal Case No. 02-3394 for Illegal Possession of Firearms filed against accused PO1 Trestiza on the grounds that the allegations raised by said accused are defenses proper for determination in a full-blown trial and set the pre-trial of the same to 24 July 2003. Trial on the merits for this particular Criminal Case ensued until the Prosecution rested its case and said accused filed his Demurrer to Evidence on 05 March 2004.

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In the meantime, without any word yet as to the outcome of the Petition for Review filed with the DOJ relative to Criminal Case No. 02-3393, Judge Bernabe issued the Order dated 28 August 2003, directing the City Prosecution Office to conduct a re-assessment and re-evaluation of the evidence presented and to submit its report and recommendation within a period of thirty (30) days from receipt of said Order. The Resolution of the subject Motion was again held in abeyance.

On 02 March 2004, the Prosecution filed a Motion to Resolve (Motion to Withdraw Information of Kidnapping) with attached Order dated 19 February 2004. It alleged therein that it conducted a thorough re-assessment and re-evaluation of the evidence obtaining in this case in compliance with the Order of this Court dated 28 August 2003 and maintains that the correct and appropriate charges to be filed against accused should be for ROBBERY and GRAVE THREATS but for two (2) counts each, and NOT for KIDNAPPING as initially filed. Thus, it prayed for this Court to be allowed to withdraw the present Information for Kidnapping considering that the appropriate charges of two (2) counts of Robbery and two (2) counts of Grave Threats in lieu of the charge of KIDNAPPING have already been filed with the proper Courts.

To justify the Prosecutions withdrawal of the Information for KIDNAPPING, Public Prosecutor Edgardo G. Hirang states, in the Order attached to the said Motion, that, to wit:

A careful re-evaluation of the pieces of evidence adduced by both parties shows that the offense of Kidnapping shall not prosper against all the accused. As correctly stated in the Resolution issued on February 20, 2003, one of the essential elements for the crime of Kidnapping for Ransom defined and penalized under [Article] 267 of the Revised Penal Code, as amended, is that [the] offender must be a private individual which does not obtain in the case at bar as respondents Trestiza, Manrique, and Jose are public officers being police officers who at the time the complainants were allegedly divested of their cash money and personal belongings by herein respondents, were conducting a police operation to enforce the provision of the Dangerous Drug Law (R.A. 9165).

All accused were in the place of the incident to conduct such operation is shown not only by the existence of coordination between them and the police authorities but also by the declaration of the complainants that they were able to verify the plate number of the vehicle of the accused from the Makati Police Station.

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Hence, they should be charged with the offense of Robbery under Article 294, paragraph 5 of the Revised Penal Code and Grave Threats as recommended by this Office in its Resolution issued on February 20, 2003. Considering that there are two (2) complainants, the respondents should be charged with two (2) counts of Robbery and Grave Threats.

The Prosecution filed on the same date a Motion to Amend Information and to Admit Attached Amended Information in Criminal Case No. 02-766 alleging that the Criminal Information therein for Robbery should only be limited to private complainant Yus complaint and not to Navarros. Counsel for the accused, Atty. Jose Ma. Q. Austria, filed an Urgent Motion to calendar the hearing of the Motion to Amend Information and to Admit Amended Information which the Court granted in its Order dated 25 March 2004.

In the meantime, Criminal Case No. 04-1311 for Robbery which was filed on the strength of the Complaint of Navarro was consolidated with similar cases pending before this Court, upon the Order dated 12 March 2004 by the Honorable Ma. Cristina J. Cornejo, Presiding Judge of RTC Branch 147.

After study, the Court resolves to:

1. DENY the Motion to Withdraw Information for Kidnapping under Criminal Case No. 02-3393; 2. To [sic] GRANT the Motion to Amend Information for Robbery; [and] 3. To [sic] Hold in Abeyance the Issuance of the Warrant of Arrest against SPO2 Jose in Criminal Case No. 02-3393 until after the Information relative thereto shall have been duly amended by the Prosecution.

In its Motion to Withdraw Information for Kidnapping, the Public Prosecutor argues in essence that the crime of Kidnapping could not be possibly committed by the accused as they, except for one, are police officers, who at the time the complainants were divested of cash and other personal belongings were conducting a police operation to enforce the provisions of the Dangerous Drugs

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Law.This to the mind of the movant runs counter to the provisions of Art. 267 of the Revised Penal Code which provides that any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than three days; 2. If it shall have committed simulating public authority; 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made; 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The Court finds this unmeritorious. Even a public officer can commit the said crime within the context of the aforesaid legal provision. This is settled in our jurisprudence in the case of People vs. ALIPIO SANTIANO, JOSE SANDIGAN, et al. (GR No. 123979[,] December 3, 1998) which provides in part:

The fact alone that appellant Pillneta is an organic member of the NARCOM and appellant Sandigan a member of the PNP would not exempt them from the criminal liability of kidnapping.It is quite clear that in abducting and taking away the victim, appellants did so neither in furtherance of official functions nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office, but in purely private capacity that they have acted in concert with their coappellant Santiano and Chanco.

Even an eminent jurist, Justice Florenz B. Regalado elucidates on this point clearly:

This article provides that the crimes of kidnapping and serious illegal detention are committed by private individuals obviously because if the offender is a public officer the crime is arbitrary detention under Art. 124, but passing sub silentio on the matter of kidnapping. It should be understood however, that the public officer who unlawfully detains another and is punishable by Art. 124 is one who has the duty to

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apprehend a person with a correlative power to detain him. If he is only an employee with clerical or postal functions, although the Code considers him as a public officer, his detention of the victim is illegal detention under this article since he is acting in a private, and not an official, capacity. If a policeman kidnaps the victim, except when legally authorized as part of police operations, he cannot also be said to be acting in an official capacity, hence he is to be treated as a private individual liable under this article. (underscoringours)

From the purpose and the formulation of R.A. 18 and R.A. 1084, it can be deduced that the legislative intendment was to put all forms of kidnapping under Art. 267 when Congress amended it together with Art. 270. There appears to have been some oversight, however, in the related articles and these will be discussed at the proper juncture. (Florenz B. Regalado, Pages 488 and 489, Criminal Law Conspectus, First Edition, March 2000)

As to whether or not the accused were indeed engaged in the performance of a legitimate police operation at the time the private complainants were allegedly deprived of their liberty and personal belongings is a matter which at this stage can only be considered as a defense that calls for further factual support in the course of judicial proceedings. Was there a Mission Order? Are there documents to show that police-to-police coordinations were indeed made? Are there corroborations to these claims whether documentary or testimonial? The need for further evidence supportive of this claim gains significance in the light of the emphatic assertions to the contrary by the private complainants and their witnesses.

As there appears to be probable cause for the inclusion of accused SPO2 Jose in Criminal Case No. 02-3393 for Kidnapping considering that the latter was specifically mentioned in the body of the Information as someone who conspired, confederated and mutually helped the other accused in this case, the Court resolves to await for the Prosecution to amend the same before issuing a Warrant of Arrest against said accused.

Lastly, the Court finds the sought amendment of the Information for Robbery to be well-taken.

WHEREFORE, premises considered, the Court resolves to:

1. DENY the Motion to Withdraw Information for Kidnapping [under Criminal Case No. 02-3393];

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2. GRANT the Motion to Amend Information for Robbery; 3. Hold in abeyance the Issuance of the Warrant of Arrest against accused SPO2 Jose in Criminal Case No. 02-3393 until after the Information relative thereto shall have been duly amended by the Prosecution. Set these cases for arraignment on 27 April 2004 at 8:30 oclock in the morning. The Amended Information for Robbery duly attached in the Motion is hereby ADMITTED.

SO ORDERED.

Atty. Jose Ma. Q. Austria (Atty. Austria) withdrew as counsel for Manrique and Pineda. Atty. Austria also manifested that he would file an Omnibus Motion relative to the 16 April 2004 Order of the trial court. The arraignment was reset to 25 May 2004,9 which was further reset to 28 June 2004,10 19 July 2004,11 23 August 2004,12 and finally on 31 August 2004.13

Atty. Austria filed his Omnibus Motion for Trestiza: motion for reconsideration of the 16 April 2004 Order, motion to quash the informations, and motion to allow Trestiza to post bail.14 Complainants opposed the Omnibus Motion.15 The corresponding reply16 and rejoinder17 were also filed. In its 19 August 2004 Order,18 the trial court denied the Omnibus Motion. It ruled that the trial court has the authority to deny a Motion to Withdraw Information relative to a criminal case filed before it. Moreover, the quashal of theinformations against the accused goes into the determination of the nature of the arrest, which, in turn, goes into the merits of the case. Finally, the charge of kidnapping is a non-bailable offense.

When the case was called for arraignment, Trestiza, Manrique and Pineda all pleaded not guilty to the following charges: Criminal Case No. 02-3393:

That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PO1 Froilan Trestiza y Lacson and P/S Insp. Loriemar L. Manrique, both active members of the Philippine National Police, and Rodie Pineda y Jimenez, a private individual[,] all of them armed with firearms, conspiring, confederating and mutually helping one another with one PO2 Reynel Jose, a member of the Philippine National Police, did then and there willfully, unlawfully and feloniously kidnap

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Lawrence Yu y Lim and Maria Irma Navarro, or otherwise deprive them of their liberty by then and there kidnap without legal grounds for the purpose of extorting money for their safety and immediate release as in fact said accused demanded the amount of P1,000,000.00 as ransom money from them.

CONTRARY TO LAW.

Criminal Case No. 03-766:

That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the abovenamed accused, PO1 Froilan Trestiza y Lacson and P/S Insp. Loriemar L. Manrique, PO2 Reynel Jose, all active members of the Philippine National Police, and Rodie Pineda y Jimenez, a private individual[,] all of them armed with firearms, conspiring, confederating and mutually helping one another with intent to gain by means of force and violence or intimidation, did then and there willfully, unlawfully and feloniously rob and divest Lawrence Yu y Lim and Maria Irma Navarro of the following items to wit:

a. One (1) piece of necklace (gold) with pendant amounting to P50,000.00; b. Two (2) pieces bracelet (gold) worth more or less P70,000.00; c. One (1) Rolex watch worth P270,000.00; d. One (1) mens ring worth P15,000.00; e. Two (2) cellphone[s] described as Nokia 9210 & 3310; f. One (1) Philip Chariole [sic] watch worth P150,000.00; g. One (1) Philip Chariole [sic] bracelet worth P75,000.00; h. One (1) solo diamond studded [sic] (3K) worth P500,000.00; i. One (1) womens ring gold worth P12,000.00; j. One (1) necklace gold [sic] worth P20,000.00;

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k. One (1) [sic] cellphone[s] described as Nokia 7650 & 8855; and, l. Cash money amounting to more or less P300,000.00

to the damage and prejudice of the said complainants.

CONTRARY TO LAW.

Criminal Case No. 04-1311:

That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping and aiding one another, with intent of gain and by means of force and violence or intimidation, did then and there willfully, unlawfully and feloniously rob and divest Irma Maria A. Navarro of the following items to wit:

a. One (1) Chariol (sic) watch b. One (1) Gold ring c. One (1) Chariol (sic) bracelet d. One (1) pair diamond earring (sic) e. One (1) gold necklace f. One (1) cellphone 7650 Nokia g. One (1) cellphone 8855 Nokia h. Cash money amounting to P120,000.00

to the damage and prejudice of the complainant.

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CONTRARY TO LAW.19

The trial court set the case for pre-trial conference on 14 September 2004,20 which was reset to 20 September 2004.21 The parties stipulated on the following:

1. That on November 7, 2002, the three (3) accused, Trestiza, Manrique and Pineda were using an Adventure van with plate no. XAU-298;

2. That Loriemar Manrique was the team leader of the group comprising [sic] of Rodie Pineda and Reynel Jose on November 7, 2002;

3. That the incident started at the Hotel Intercon located in Makati City;

4. That Loriemar Manrique is a member of the PNP Drug Enforcement Agency;

5. That accused Froilan Trestiza was the driver of the Adventure van bearing plate no. XAU-298 on November 17, 2002;

6. That after the operation was conducted, there was never any occasion that the accused Froilan Trestiza communicated with any of the complainants;

7. None of the items allegedly lost by the complainants were recovered from accused Froilan Trestiza.22

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The trial court summarized the testimonies during trial as follows:

The prosecution sought to establish its case by presenting the following witnesses: Ma. Irma A. Navarro, Lawrence Yu y Lim, PO2 Rodolfo Santiago, PO3 Rosauro P. Almonte, John Paul Joseph P. Suguitan, Angelo Gonzales, PO3 Edward C. Ramos, Schneider R. Vivas, PSInsp. Salvador V. Caro, and Chief Insp. Roseller Fabian.

The Prosecutions main evidence relies heavily upon the accounts of Irma and Lawrence who testified respectively as follows:

On November 7, 2002 at about one oclock in the morning, Irma and her boyfriend Lawrence, both twenty-two (22) years old at the time of the incident, were at the Where Else Disco in Makati attending a party. They stayed thereat for around thirty (30) minutes only. Irma however, went out ahead of Lawrence. When she was about to proceed to where Lawrences Honda ESI car was parked, she noticed that the said car was blocked by another vehicle which was a Mitsubishi Adventure van. Three (3) armed men later on emerged from the said van. As she was about to open the door of the Honda ESI, somebody hit her in [sic] the nape. When she turned her back, she saw the three (3) men in the company of Rodie Pineda alias Buboy (Pineda). She knew Pineda because the latter was her sister Cynthias kumpare, Pineda being the godfather of Cynthias child. Furthermore, she saw Pineda in their residence the night of November 6, 2002 as he visited his [sic] sister. She asked Pineda what was happening but the latter replied pasensya na, mare, trabaho lang (Bear with me, mare, this is just a job).

She was told that the three (3) whose identities she later on learned as Capt. Lorieman Manrique, PO2 Reynel Jose and PO1 Froilan Trestiza, were policemen. She asked why she was being accosted but she was handcuffed by Manrique. She was ushered inside the Honda ESI. Pineda asked her where Lawrence was but she was left inside the car with Jose while Pineda, Trestiza andManrique on the other hand went away apparently to look for Lawrence. Pineda and Manrique later on went back inside the Honda ESI. They drove later with Jose behind the wheels [sic] while Pineda occupied the passenger seat. They followed the Mitsubishi Adventure van which was then driven by Trestiza. Unknown to Irma, Lawrence was already inside the van at the time. They just drove and drove around (umiikot), passing through small alleys as they avoided major routes. She was asked later by Pineda to remove her jewelry. She was able to remove only her earrings as she was in handcuffs. Pineda himself removed her Philip Chariolle [sic] watch and bracelet. Her necklace and ring followed. All these were later on turned over by Pineda to Manrique. Her bag where her wallet containing the amount of P120,000.00 was likewise taken.

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Her two (2) cellphones, a 7650 and an 8855, were likewise taken by Pineda. They stopped several times at the side streets and the accused would talk to each other. Pineda would stay with her inside the vehicle while Jose would go out and talk to the occupants of the Mitsubishi Adventure. Later on, she and Lawrence were brought together inside the Mitsubishi Adventure van. It was there that they were told that they will not be released if they will not be able to produce one million pesos. These were all uttered by Jose and Manrique. It was somewhere in Blumentritt, San Juan where all the accused stopped for the last time. She was crying all the while.

She later on felt the call of nature, prompting her to ask permission if she could possibly relieve herself. She was accompanied by Pineda to a nearby Shell gas station in San Juan. When they returned to where they stopped, she was asked as to whom she could possibly call so that the money that the accused were asking will be produced. The accused later on asked Lawrence to make a call using his cellphone with speaker phone. Lawrence was able to get in touch with his friends John Paul Suguitan and Angelo Gonzales. The latter was told that Lawrence figured in an accident and that he needs money badly. Lawrence and his friends agreed that the money the two will produce will be brought to the Caltex gas station along Ortigas corner Wilson Street in Greenhills. They proceeded to the said place later where they waited for the friends of Lawrence. She was told later by Manrique that she better pray that the transaction pushes through. Manrique further warned her against reporting the incident to anyone lest her whole family will be held liable. She was even shown by the accused the picture of her child. She was cursed by Jose. Trestiza on the other hand told her that Lawrences transaction should better push through.

The two, John Paul Suguitan and Angelo Gonzales, later on arrived at the gas station. Lawrence took from them what appears to be a package and handed the same to Pineda. Manrique thereafter called Pineda asking positive na ba? to which Pineda replied yes. The amount raised by the friends of Lawrence was one hundred eighty thousand pesos (Php 180,000.00). They (Irma and Lawrence) were later brought to the Star Mall along Edsa. Their captors warned them not to report the matter to the authorities otherwise they will face dire consequences. The items taken from Irma like the cash money, jewelry and cellphone were placed by the men inside the console box of the Mitsubishi Adventure. When they reached Star Mall, the men talked to them for thirty minutes. Again, they were warned about the consequences of their reporting the incident to the police. Irma was told that the men knew her address, the members of her family and that they have the picture of her child. She was likewise warned not to report the matter to her father, Rod Navarro, who was an actor and a policeman, otherwise her daughter with Lawrence will be the one [to] bear the consequences (anak ko ang mananagot). They were released after thirty (30) minutes. Lawrence had to plead for their gasoline from the accused and he was given Php 100.00.

Irma decided not to tell her mother about the incident as she was very afraid. Lawrence however made a report to the Makati police station in the evening of 7 November 2002 where he was shown a coordination sheet pertaining to the plate number of the Mitsubishi Adventure. Buboy Pineda in the meanwhile kept on calling them (Irma and Lawrence) demanding for their balance of one

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million pesos (Php 1,000,000.00). Irmas mother however soon learned of the incident because of a newspaper item. Her father likewise learned of the incident and lost no time in contacting authorities from the CIDG. They (Irma and Lawrence) were later investigated by the CIDG people to whom they gave their sworn statements on November 14, 2002. As Buboy Pineda continued to call them for the alleged balance, an entrapment operation was planned on that date. Boodles of money were dusted with ultra-violet powder. On the same date, Buboy Pineda called Lawrence for purposes of meeting him that night in order to get the remaining money. The entrapment operation which was conducted along the New World Hotel, and participated in by PO2 Almonte, was successful as Buboy Pineda was arrested. Recovered from the possession of Pineda were a gold necklace without a pendant; a Nokia cellphone model 7650; a Toyota corolla car with plate number PNG 214 color red and one (1) ignition key. The necessary acknowledgment receipt was duly signed by the said accused. A pawnshop ticket was likewise recovered from his possession.

Lawrence on the other hand narrated that during that fateful day of 7 November 2002 at around 1:30 oclock in the morning, as he was stepping out from the Where Else Disco, he was suddenly sandwhiched [sic] by two (2) persons, Manrique and Trestiza. Pineda whom he likewise knew, held a gun and pointed the same to him. He was later on lifted through his belt and loaded to a yellow Mitsubishi Adventure. He was made to occupy the passenger seat at the back while Trestiza drove the said vehicle. Manrique occupied the seat beside Trestiza. He asked the accused who they were and he was told that they were policemen. At the time, Trestiza was wearing an outfit which was hip hop while Manrique was wearing a polo which was button down. He was cursed and told to shut up. He was asked to bow down his head as they drove along. He remembers that the accused dug into his pockets and his valuables consisting of cellphones, a 9210 and a 3310models [sic] respectively, including his wallet, cigarettes, watch bracelet, ring, necklace and a pair of earrings, were taken from him. He later on saw his Honda ESI car. He noticed that the Mitsubishi Adventure they riding was following the said Honda ESI. Manrique later asked him how much money did he have. When replied that his money was inside his car, Manrique allegedly retorted imposible. They later on stopped in Mandaluyong near an open canal. He was asked again by Manrique about his money. At that point, another man whose name he later on learned was SPO2 Reynel Jose, boarded also the Mitsubishi Adventure. Jose asked him about his money. When he replied that his money was inside his car, Jose got mad and boxed him on his face. They later on resumed driving around. When they stopped again, Jose asked him whether he has thought of the money. When he again replied that the money was inside his car, he was boxed repeatedly by Jose. Manrique and Trestiza were seated in the front seats but did not do anything.

They resumed driving again. Jose asked him again about the money. When he gave the same response, Jose put a plastic material over his head which made him unable to breath [sic]. Jose strangled him, prompting him to shout later okay na, okay na. Sige na, sige na magbibigay na ako (Okay, okay. I will give.). Jose stopped strangling him and immediately removed the plastic material over his head. Jose remarked that had he cooperated earlier, he would not have been hurt. Trestiza and Manrique told him that he should not have kept the matter long. Later on, the four (4) men had a brief huddle. He was later on approached by them saying okay na ha, isang milyon na (Okey ha, its one million). He could not recall however who in

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particular made the remark. He was later on instructed by Manrique to call certain persons with the information that he figured in [an] accident. He was made to use his 9210 model phone as the same had a speaker thus enabling the accused to listen to the conversation. He tried to get in touch with his siblings but failed. He was able to contact later on his friends John Paul Suguitan and Angelo Gonzales who were then in Libis. He told his friends that he needed money very badly as he had an accident. He instructed his friends to proceed to the area given by Manrique which was at the Caltex gas station alongOrtigas corner Wilson Street in Greenhills.

Later on, Irma and Lawrence were allowed to be together inside the Mitsubishi Adventure. It was at that point where they were told to produce the amount of One Million pesos (Php1,000,000.00) that night so they will be released. These very words were uttered by Jose and Manrique. Irma later on asked permission to answer the call of nature and she was accompanied by Pineda to the Shell gas station in San Juan where she relieved herself. Upon arriving at the said gas station, Lawrence was directed to drive his Honda ESI car. He was in the company of Pineda while Irma on the other hand was with Manrique, Trestiza and Jose inside the Mitsubishi Adventure. While Irma was inside the Mitsubishi Adventure, she was told that if the person contacted by Lawrence will not show up, they will not be released and if Lawrence will escape, she will be finished off. Manrique thereafter told Irma to better pray that the transaction will push through. She was warned that if she reports the incident, her family will be harmed. The said accused had her childs picture at the time. Jose was cursing her. Trestiza on the other hand was seated at the driver side of the Mitsubishi Adventure van and remarked that Lawrences transaction should push through so that they will be released.

Not long after, Lawrence alighted from his car and stood beside the vehicle. His friends vehicle later on arrived. Lawrence approached the vehicle that has just arrived and took something. Pineda remained seated in Lawrences car while smoking. The door of the said car was open at the time. Lawrence thereafter walked back to where Pineda was and handed to him a package. It was already around 4: or 4:30 in the morning. Lawrences friends thereafter went away, prompting Pineda to call Manrique. Manrique allegedly asked positive na ba? to which Pineda replied yes.

The amount raised by the friends of Lawrence was one hundred eighty thousand pesos (Php 180,000.00). They (Irma and Lawrence) were later brought to the Star Mall along Edsa. Their captors warned them not to report the matter to the authorities otherwise they will face dire consequences. The items taken from Irma like the cash money, jewelry and cellphone were placed by the men inside the console box of the Mitsubishi Adventure. When they reached Star Mall, the men talked to them for thirty minutes. Again, they were warned about the consequences of their reporting the incident to the police. Irma was told that the men knew her address, the members of her family and that they have the picture of her child. She was likewise warned not to report the matter to her father, Rod Navarro, who was an actor and a policeman, otherwise her daughter with Lawrence will be the one [to] bear the consequences (anak ko ang mananagot). They were released alongEdsa after thirty (30) minutes. Lawrence had to plead for their gasoline from the accused and he was given Php 100.00.

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Irma decided not to tell her mother about the incident as she was very afraid. Lawrence however made a report to the Makati police station in the evening of 7 November 2002 where he was shown a coordination sheet pertaining to the plate number of the Mitsubishi Adventure. Buboy Pineda in the meanwhile kept on calling them (Irma and Lawrence) demanding for their balance of one million pesos (Php 1,000,000.00). Irmas mother however soon learned of the incident because of a newspaper item. Her father likewise learned of the incident and lost no time in contacting authorities from the CIDG. They (Irma and Lawrence) were later investigated by the CIDG people to who they gave their sworn statements on November 14, 2002. As Buboy Pineda continued to call them for the alleged balance, an entrapment operation was planned on that date. Boodles of money were dusted with ultra-violet powder. On the same date, Buboy Pineda called Lawrence for purposes of meeting him that night in order to get the remaining money. The entrapment operation which was conducted along the New World Hotel, and participated in by PO2 Almonte, was successful as Buboy Pineda was arrested. Recovered from the possession of Pineda were a gold necklace without pendant; a Nokia cellphone model 7650; a Toyota corolla car with plate number PNG 214 color red and one (1) ignition key. The necessary acknowledgment receipt was duly signed by the said accused. A pawnshop ticket was likewise recovered from his possession.

Early in the morning of the following day at the CIDG, Lorieman Manrique went to the said office looking for his co-accused Froilan Trestiza. He (Manrique) was arrested thereat when the private complainants who happened to be there as they were giving additional statements identified him (Manrique) through a one-way mirror. Trestiza was likewise arrested later as he was identified by his co-accused Rodie Pineda. During the arrest, Trestiza was found to be in possession of an unlicensed firearm for which the corresponding charge was filed. He (Trestiza) was likewise the subject of the complaint sheet filed by Irma and Lawrence and was likewise identified by his coaccused Pineda as one of the cohorts in the kidnapping of the former.

The Defense on the other hand presented the following version:

Private complainants Irma Navarro and Lawrence Yu were known to accused Rodie Buboy Pineda, a freelance dance instructor prior to his incarceration, and a godfather to the child of Irmas sister, since 1997. The two (Irma and Lawrence) are known to Pineda as suppliers of prohibited drugs, particularly Ecstasy, blue anchors, and yeng-yen. The two, Irma and Lawrence have been distributing these drugs to various customers who [sic] frequented bars and disco pubs. Pineda has been transacting with the two, particularly Lawrence, for a profit. Realizing later that his involvement with the group of Lawrence has become deeper and deeper, Pineda thought of causing the arrest of the latter. He (Pineda) soon decided to report the matter to the police authorities and contacted forthwith his long-time acquaintance, now his co-accused Froilan Trestiza on November 6, 2002 at 10:30 in the evening. At that time, Trestiza was a policeman under the Special Action Unit, Group Directors Office of the National Capital Region. Pineda and Trestiza, who have known

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each other for the past ten years, used to be dancers at the Equinox Disco along Pasay Road. Upon learning the information from Pineda, Trestiza contacted his classmate PO2 Rolando de Guzman of the Philippine Drugs Enforcement Agency (PDEA) who in turn referred Trestiza to Captain Lorieman Manrique who was then the Deputy Chief of the Special Enforcement Unit of the PDEA, Metro Manila Regional Office. Manrique was called later by Trestiza through cellphoneand they agreed to meet the same night, at around midnight, at the parking lot of the Intercontinental Hotel in Makati. Manrique prepared a Pre-Operation sheet for a possible narcotics operation. He likewise gave [the] plate number of the vehicle he was then driving which was a Mitsubishi Adventure van with plate number HAU-298.

During their ensuing meeting, Manrique was with PO2 Reynel Jose. Pineda and Manrique talked to each other. Manrique later on briefed Pineda and Jose. Trestiza was about three to five meters away from the three (3). After the briefing, Manrique asked Trestiza to drive the Mitsubishi Adventure. Manrique told Trestiza that the buy-bust operation has been pre-coordinated with the Makati police. Manrique later joined Trestiza inside the Mitsubishi Adventure while Jose and Pineda were outside as though waiting for someone. Irma and Lawrence later on arrived and they talked to Pineda and Jose. Pineda introduced Jose to Irma and Lawrence as the buyer. Jose was only wearing a t-shirt at the time and it seemed Lawrence and Irma doubted him. Jose told the two that he has the money with him and he would like to buy drugs. Irma however whispered something to Lawrence prompting the latter to vascillate [sic]. From where they are seated inside the Mitsubishi Adventure, Trestiza and Manrique could see what were [sic] going on among Irma, Lawrence, Jose and Pineda. Later on, Jose approached Trestiza and Manrique and told them that the pre-arranged signal is when he (Jose) scratched his head. According further to Jose, his scratching of his head will mean a signal to Trestiza to drive towards them the vehicle. As Jose later on scratched his head, Trestiza drove the vehicle towards the group as instructed. Manrique thereafter alighted and effected the arrest of Irma and Lawrence. Irma went hysterical and was loaded into the Honda ESI while Lawrence was made to board the Mitsubishi Adventure. It was at that point when two (2) mobile cars arrived with policemen on board. A commotion immediately ensued between the police men aboard the mobile cars and Manriques men. Firearms were drawn and poked against each of the men (nagkatutukan ng baril). Jose, however, later on showed what appeared to be a document to the men aboard the mobile car. One of the men later on made a call through his radio and then left afterwards.

Manrique later on instructed Trestiza to drive towards Edsa on their way to Camp Crame. Along the way, Manrique conducted a tactical interrogation against Lawrence and Irma about their drugrelated activities. Upon reaching SM Megamall, however, Manrique told Trestiza to pull over. Manrique talked to Lawrence, Irma, Jose and Pineda. Trestiza remained inside the van. Trestiza, however, overheard that Lawrence was at that point was talking about his supplier of ecstasy. Thereafter, Manrique briefed anew Pineda and Jose in the presence of Irma and Lawrence. It was understood among them that Lawrence will wait for his alleged supplier whose name was allegedly Jojo at the Caltex gas station along Wilson Street in Greenhills. Lawrence

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told Manrique that thisJojo was really a big-time supplier of ecstasy and cocaine. Upon arriving at the gas station, the group waited for Lawrences supplier for an hour but nobody appeared. Manrique became impatient and went to where Lawrence was. Manrique later told his men that Lawrence might have alerted his supplier. He (Manrique) then decided to bring the two (Irma and Lawrence) to Camp Crame.Trestiza, however, pointed out to Manrique that nothing was taken from the possession of the two. Manrique conferred anew with Jose. Jose remarked that the items could have been thrown away. It was later on decided that Irma and Lawrence will just be released. The two were indeed released near the [Manuela] Complex along Edsa. Trestiza was later on arrested by the CIDG operatives in the early morning of November 16, 2002 at the parking lot of the Club 5 Disco. A gun was poked at him and he was shoved inside a vehicle. He was boxed and placed on handcuffs. He was not shown any warrant of arrest. He told the arresting officers that he is also a policeman. He was brought later to Camp Crame. While at Camp Crame, he was shown to his co-accused Pineda and the latter was asked di ba sya yung nag-drive noong may operation laban kina Irma Navarro? (Is he not the one who drove during the operation against Irma Navarro?). He (Trestiza) asked the authorities what were the grounds for detaining him but his queries were not answered. His watch, wallet and cellphone were taken. Later on the same day, Irma arrived in Camp Crame. The authorities thereat talked to Irma, afterwhich, a policeman told her eto yung itinuturo ni Buboy na nag-drive. (This is the one pointed to by Buboy as the one who drove). Several days later, all the accused were presented to the press by the office of General Matillano. The Philippine Daily Inquirer covered the story and later on came out with an article entitled We Were Framed.

The defense likewise presented PO2 Rolando de Guzman who corroborated the claim of Trestiza that he was called by the latter concerning the information given by Pineda. No further evidence was presented.23

The Trial Courts Ruling

In its Joint Decision24 dated 24 July 2007, the trial court found Trestiza, Manrique, and Pineda guilty beyond reasonable doubt as principals by direct participation of the crime of Kidnapping for Ransom.

The trial court concentrated its ruling on the credibility of the witnesses. It found the testimonies of the prosecution credible, with their versions of the incident dovetailing with each other even on minor details. On the other hand, the defenses testimonies taxed the credulity of the trial court. The trial court raised numerous questions about the defenses story line:

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x x x But this leads the court to wonder: if indeed Pineda was so bothered by his involvement with the group of Lawrence, why did he spill the beans against Irma and Lawrence only? Did he not state that it was a group that he was transacting with? Who were the other members of this group? What were their activities that were so dark and clandestine so as to make him suddenly shudder and opt for a change of life? These were not answered by Pinedas testimony.

Also, while Manrique presented what appears to be a Pre-Operation Coordination Report, thus creating at first glance the impression that theirs was a legitimate police operation, this still does not detract from nor diminish the credibility of the complainants claim that they were subsequently abducted and money was demanded in exchange for their release. For even if the court is to indulge the claim of the defense that the complainants were indeed drug-pushers and undeserving of this courts sympathy, the nagging doubt about the existence of a prepared police operation as whatManrique and his co-accused refer to, persists. For one, the said Pre-Operation/Coordination Sheet appears to be unreliable. Aside from the fact that the same was not duly authenticated, the failure of the defense, particularly accused Manrique, to summon the signatories therein who may attest to the existence and authenticity of such document was not at all explained. Second, all the accused narrated about their almost-fatal encounter with another group of policemen while they were allegedly in the act of conducting the supposed buy-bust operation against the complainants. This event, to the view of this court, only invites the suspicion that the Pre-Operation/Coordination Sheet was dubious if not actually non-existent.

The accused likewise claimed that they released the two later along Edsa as nothing was found on them. The manner of the release, however, raises several questions: why were the complainants who were earlier suspected of being drug-pushers not brought to the police precinct? Did not Lawrence volunteer the name of his alleged supplier earlier during the tactical interrogation? Why were they unloaded just like that along Edsa at that ungodly hour? Was there an incident report on the matter considering that Manrique was mindful enough earlier to first secure a Pre-Operation/Coordination sheet?25 The dispositive portion of the trial courts Decision states:

WHEREFORE, premises considered, judgment is hereby rendered in Criminal Case No. 02-3393 finding the accused PO1 FROILAN TRESTIZA Y LACSON, P/INSP LORIEMAN L. MANRIQUE and RODIE PINEDA Y JIMENEZ GUILTY beyond reasonable doubt as principals by direct participation of the crime of KIDNAPPING for RANSOM, and they are hereby sentenced to suffer the penalty of RECLUSION PERPETUA. In addition thereto, they are ordered to pay, jointly and severally, the private complainants the sums of PHP 300,000.00 as actual damages, and PHP 300,000.00 as exemplary damages. All the accused are ACQUITTED in Criminal Cases Nos. 03-766 and 04-1311 both for Robbery respectively.

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Send the records of this case to the archives in so far as accused PO2 Reynel Jose, who continues to be at large, is concerned. Let, however, a Warrant of Arrest be issued against him. SO ORDERED.26

On the same date as the promulgation of its decision, the trial court issued an Order of Commitment27 of Trestiza, Manrique, and Pineda to the Director of the Bureau of Corrections.

On 27 July 2007, Trestiza, Manrique, and Pineda filed a Motion for New Trial and for Inhibition. Two witnesses, Camille Anne Ortiz y Alfonso (Ortiz) and Paulo Antonio De Leon y Espiritu (De Leon), allegedly intimate friends of Navarro and Yu, will testify as to the circumstances which took place in the early morning of 7 November 2002. Their testimonies, if admitted, will allegedly result in the acquittal of Trestiza, Manrique, and Pineda. These witnesses are not known to the accused, and they could not have been produced during trial. Moreover, the accused are of the belief that trial court judge Zenaida T. Galapate-Laguilles acted with bias against them. She allegedly made an offthe-record remark and stated that the prosecution failed to establish what they sought to prove, but then later on questioned the existence of the defenses Pre-Operation/Coordination Sheet in her decision. Judge Galapate-Laguilles also failed to resolve the Petition for Bail, and failed to point out discrepancies in the testimonies of the defenses witnesses, particularly those regarding the arrests of Trestiza, Manrique, and Pineda.

The prosecution opposed the Motion for New Trial and Inhibition.28 De Leon shared a cell with Manrique since July 2003, while the trial was ongoing, and hence De Leons supposed testimony should not be considered newly discovered evidence. On the other hand, Ortizs narration of events in her affidavit is full of inconsistencies. The prosecution likewise questioned the credibility of the witnesses who allegedly heard Judge Galapate-Laguilles off-the-record remark. One was Trestizas relative, while the other was a security escort who was supposed to stay outside the courtroom. Finally, the motion itself was filed late. The supplement to the motion, to which the affidavits of the additional witnesses were attached, was filed two days after the finality of the trial courts decision. Copies of the decision were furnished to both prosecution and defense on 24 July 2007, which was also the date of promulgation. The Motion for New Trial and Inhibition was dated 27 July 2007, while the Supplement to the Motion which included the witnesses affidavits was dated 10 August 2007.

The trial court held hearings on the twin motions. On 3 October 2007, the trial court issued an Order29 denying the Motion for New Trial and for Inhibition. The evidence presented was merely

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corroborative, and the prosecution was able to prove its case despite the judges alleged off-therecord equivocal remark.

On 19 October 2007, Trestiza, Manrique, and Pineda filed a notice of appeal.30 The Order denying the Motion for New Trial and for Inhibition was received on 18 October 2007, while the Motion for New Trial and for Inhibition was filed on 27 July 2007 or three days after the promulgation of the Decision on 24 July 2004. The trial court gave due course to the notice of appeal.31 In their brief filed with the appellate court, Trestiza, Manrique, and Pineda assigned the following errors:

The trial court erred in convicting accused Trestiza despite the fact that he was not part of the alleged conspiracy in that it was not stipulated during the pre-trial that he was just the driver and was not part of the team. Besides, he did not perform any act in furtherance of the alleged conspiracy.

The trial court erred in giving credence to the testimonies of private complainants Lawrence Yu and Irma Navarro as their demeanor in the witness stand show hesitation indicative of guilt of fabrication and their testimonies lack spontaneity and were not straightforward.

The trial court erred in giving credence to the testimonies of prosecution witnesses John Paul Suguitan and Angelo Gonzales as they alleged facts and circumstance that are contrary to human nature and experience.

The trial court erred in convicting the accused despite the fact that the complainants were arrested in a legitimate operation as evidenced by the Pre-Operation/Coordination Sheet which was authenticated by accused-appellant Manrique.32

The Appellate Courts Ruling

On 30 June 2008, the appellate court dismissed the appeal and affirmed the trial courts decision.

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In its recitation of facts, the appellate court quoted from the Peoples Brief for the prosecution and from the trial court for the defense. The appellate court ruled that Trestizascontention that he was just the driver of the van and never communicated with the witnesses deserves scant consideration. Yu identified Trestiza as one of the two men who sandwiched him as he left Where Else Disco, and insisted that Yu cooperate with Jose when Jose asked Yu for cash. Trestizas acts thus show that he acted in concert with his co-accused in the commission of the crime. The appellate court relied on the trial courts assessment of the reliability of the prosecutions witnesses, and gave credence to their testimonies. The appellate court declared that all the elements of kidnapping for ransom are present and thus affirmed the trial courts decision:

In any event, it was established that all the elements constituting the crime of kidnapping for ransom in the case at bar are present. The elements of kidnapping for ransom under Article 267 of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) 7659 are as follows: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is extorting ransom for the release of the victim (People vs. Raul Cenahonon, 527 SCRA 542). Here, Navarro and Yu testified how they were abducted at gun point from the parking lot in Makati and confined inside the car and van respectively; that they were both handcuffed, hence, deprived of their liberty and that appellants made a demand for them to deliver a certain amount in exchange for their release.

In fine, the Court rules and so holds that appellants guilt for the offense of kidnapping for ransom has been proven beyond moral certainty of doubt.

WHEREFORE, the decision appealed from is hereby AFFIRMED and this appeal is hereby DISMISSED.

SO ORDERED.33

Trestiza alone filed a Motion for Reconsideration34 of the appellate courts decision. In his Motion, Trestiza claimed that he alone, through counsel, filed an appeal brief.Trestiza further claimed that the stipulations made during pre-trial established Trestizas limited involvement, that is, he was merely a driver of the vehicle when the alleged crime took place, he never communicated with the complainants, and none of the items allegedly taken from the complainants were recovered from Trestizas possession. The trial court did not mention nor discuss these stipulations in its decision. Even the trial courts finding of facts shows Trestizas participation was merely that of an

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invited driver in a legitimate Philippine Drug Enforcement Agency (PDEA) drug bust operation. Moreover, the testimonies of witnesses of both prosecution and defense establish thatTrestiza was a member of the Philippine National Police (PNP) when he allegedly committed the crime. Under the circumstances, Trestiza claimed he should be held liable only for Arbitrary Detention. Finally, Trestizas identification was not only improper for being suggested, but his warrantless arrest should also be held invalid.

The Office of the Solicitor General (OSG) filed a comment opposing Trestizas Motion for Reconsideration. The stipulations do not discount that Trestiza conspired with his coappellants Manrique and Pineda in committing the crime charged. The apprehension and detention of Navarro and Yu were clearly effected for the purpose of ransom; hence, the proper crime really is Kidnapping with Ransom. Trestiza filed a Reply to the Comment35 on 20 October 2009.

The appellate court denied Trestizas Motion for Reconsideration in a Resolution dated 11 November 2009.36 An examination of the appellants brief showed that the brief was filed for Trestiza, Manrique and Pineda. The appellate court found no compelling reason to warrant consideration of its decision.

Trestiza still filed a Notice of Appeal37 of the appellate courts decision on 10 January 2010. The appellate court initially denied38 Trestizas Notice of Appeal due to late filing, but eventually granted39 Trestizas Motion for Reconsideration40 of the 16 February 2010 resolution denying his Notice of Appeal.

Trestiza filed the present supplemental brief41 before this Court on 15 August 2011. In his brief, Trestiza emphasized that Yu was apprehended by agents of the PNP and PDEA on 30 June 2011 during a raid of an illegal drugs laboratory. Yu was charged with the crime of manufacturing, possessing, and selling illegal drugs under Sections 8, 11, and 12, Article II of Republic Act No. 9165.

The Issues

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Trestiza raised the following arguments against the appellate courts decision:

I. The supervening event involving the apprehension of Lawrence L. Yu as the head of a big-time drug syndicate throws his credibility as a witness beneath the abyss of morass and decay that must be now totally discarded.

II. The facts and circumstances surrounding the above-entitled case is consistent with the innocence of [Trestiza] rendering the evidence presented insufficient and without moral certainty to support a conviction.

III. At the very least, the equipoise rule finds application in the case at bar, taking into consideration the supervening event that demolished the credibility of the witnesses presented by the prosecution.

IV. The Constitutional presumption of innocence of [Trestiza] has not been overwhelmed by the tainted testimony and total lack of credibility of Lawrence L. Yu and, in light of the supervening event, could not now be overcome by questionable testimonies presented by the prosecution.

V. The conviction of an innocent man is a great injustice that affects the very foundations of humanity.

VI. It was not sufficiently shown that all the accused in the above-entitled case conspired in committing the crime of Kidnapping for Ransom and the same was not proven by proof beyond reasonable doubt.

VII. [Trestiza] has no malicious or evil intent in acquiescing to drive the vehicle used in the buybust operation.

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VIII. [Trestiza] is innocent of the crime of Kidnapping for Ransom.42

The Courts Ruling

At the outset, we declare that the 30 June 2011 arrest of Yu has no bearing on the present case. The two cases are independent of each other and should be treated as such. Yus innocence or guilt regarding his 30 June 2011 arrest does not affirm or negate the commission of the crime of Kidnapping for Ransom against him.

Warrantless Arrest These are the circumstances surrounding Trestizas arrest: Pineda had been contacting Yu to follow up on the balance on the ransom. Pineda was then arrested pursuant to an entrapment operation conducted in the early morning of 16 November 2002 at New World Hotel. During the investigation at Camp Crame, Pineda revealed that Trestiza could be found at Club 5 in Makati. Pineda and Yu accompanied the arresting team to Club 5. Yu pointed out Trestiza to the arresting team while Trestiza was on his way to his black Hummer.43

Trestiza questioned the legality of his warrantless arrest in an Omnibus Motion44 filed before his arraignment. In its Order dated 19 August 2004, the trial court stated that thequashal of the informations on account of Trestizas illegal arrest is not warranted. The determination of the nature of the arrest goes directly into the merits of the case, and needs a deeper judicial determination. Matters of defense are not grounds for a Motion to Quash. The trial court, however, did not make any ruling related to Trestizaswarrantless arrest in its 24 July 2007 Decision.

Section 5, Rule 113 of the 2000 Rules of Criminal Procedure enumerates the instances when warrantless arrests are lawful.

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:

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(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

It is clear that Trestizas warrantless arrest does not fall under any of the circumstances mentioned in Section 5, Rule 113. However, Trestiza failed to make a valid objection to his warrantless arrest.

Any objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the person of the accused must be opportunely raised before he enters his plea; otherwise, the objection is deemed waived.45 Trestiza, being a policeman himself, could have immediately objected to his warrantless arrest. However, he merely asked for the grounds for his arrest. He did not even file charges against the arresting officers. There was also a lengthy amount of time between Trestizas arrest on 16 November 2002 and the filing of the Omnibus Motion objecting to Trestizas warrantless arrest on 11 May 2004. Although it may be argued that the objection was raised prior to the entry of Trestizas plea of not guilty in the kidnapping for ransom charge, it must be noted that the circumstances of the present case make us rule otherwise. Trestizawas charged with two crimes at the time of his arrest: kidnapping with ransom under Criminal Case No. 02-3393 and illegal possession of firearms under Criminal Case No. 02-3394. Trestiza did not question the legality of his warrantless arrest nor the acquisition of jurisdiction of the trial court over his person, and fully participated in the hearing of the illegal possession of firearms case. Thus, Trestiza is deemed to have waived any objection to his warrantless arrest. Under the circumstances, Trestizas Omnibus Motion in the kidnapping for ransom case is a mere afterthought and cannot be considered as a timely objection.

Assuming arguendo that Trestiza indeed made a timely objection to his warrantless arrest, our jurisprudence is replete with rulings that support the view that Trestizasconviction is proper despite being illegally arrested without warrant. In People v. Manlulu, the Court ruled:

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[T]he illegality of the warrantless arrest cannot deprive the State of its right to prosecute the guilty when all other facts on record point to their culpability.46

Indeed, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error.47 The fatal flaw of an invalid warrantless arrest becomes moot in view of a credible eyewitness account.48

Kidnapping with Ransom The trial courts findings of facts, its calibration of the collective testimonies of witnesses, its assessment of the probative weight of the evidence of the parties, as well as its conclusions anchored on the said findings, are accorded great weight, and even conclusive effect, unless the trial court ignored, misunderstood or misinterpreted cogent facts and circumstances of substance which, if considered, would alter the outcome of the case. This is because of the unique advantage of the trial court to observe, at close range, the conduct, demeanor and the deportment of the witnesses as they testify.49 We see no reason to overrule the trial courts finding that Trestiza is guilty of kidnapping with ransom.

Article 267 of the Revised Penal Code provides:

Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty ofreclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

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4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.

Before the present case was tried by the trial court, there was a significant amount of time spent in determining whether kidnapping for ransom was the proper crime charged against the accused, especially since Trestiza and Manrique were both police officers. Article 267 of the Revised Penal Code specifically stated that the crime should be committed by a private individual.50 The trial court settled the matter by citing our ruling in People v. Santiano,51 thus:

The fact alone that appellant Pillueta is an organic member of the NARCOM and appellant Sandigan a member of the PNP would not exempt them from the criminal liability of kidnapping. It is quite clear that in abducting and taking away the victim, appellants did so neither in furtherance of official functions nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office, but in purely private capacity that they have acted in concert with their coappellant Santiano and Chanco.

In the same order, the trial court asked for further evidence which support the defenses claim of holding a legitimate police operation. However, the trial court found as unreliable the PreOperation/Coordination Sheet presented by the defense. The sheet was not authenticated, and the signatories were not presented to attest to its existence and authenticity.

The second to the last paragraph of Article 267 prescribes the penalty of death when the extortion of ransom was the purpose of the kidnapping. Yu and Navarro were released only after they were able to give various personal effects as well as cash amounting to P300,000, with the promise to give the balance of P1,000,000 at a later date.

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Trestiza insists that his participation is limited to being a driver of the Mitsubishi Adventure van. Yu testified otherwise.

Direct Examination of Lawrence Lim Yu

Atty. Oledan: Q: What happened [after you left Wherelse Disco]?

Witness: A: As soon as I stepped out of the Wherelse Disco, somebody bumped me at my right side. And then later on, I was sandwiched by two (2) persons and when I looked up, I noted the presence of one (1) man immediately in front of me holding a gun.

Q: And these men who sandwiched you and the third men [sic] who held the gun in front of you, would you be able to identify them? A: Yes, maam.

Q: Are they inside this Courtroom? A: Yes, maam.

Q: Will you please identify them? A: The three of them, maam.

At this juncture, the witness is to pointing to the three (3) men, who are the accused in this case, inside the Courtroom.

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COURT: (To the Accused) Again, for the record, please stand up, gentlemen.

At this juncture, the three (3) accused stood up.

COURT: (To Witness) Are you sure these were the three (3) men whom you are referring to? WITNESS: A: Yes, maam.

COURT: Make it of record that the witness pointed to accused PO1 Froilan Trestiza, PSINP Loriemar Manrique and Rodie Pineda.

ATTY. OLEDAN: Q: (To Witness) Specifically, who among these three (3) sandwiched you?

WITNESS: A: It was PO1 Trestiza and Capt. Manrique.

xxx

Q: What happened after you were brought inside the Mitsubishi vehicle? A: Later on, Officer Trestiza and Capt. Manrique likewise boarded the Mitsubishi Adventure.

xxx

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Q: Who was driving the vehicle? A: It was Froilan Trestiza, maam.

xxx

Q: After [Reynel Jose] said [that had Yu cooperated earlier, he would not have been hurt] and the plastic removed from your head, what did [sic] the two, Trestiza and Manrique, doing? A: They told me the same thing. They told me that I should not have kept the matter long.

Q: What happened after that? A: After that, Reynel Jose alighted again and we drove towards an area, which I know now to be within San Juan. Right in front of the Tambunting Pawnshop.

Q: What happened at the Tambunting Pawnshop? Did the vehicle stop there? A: The two (2) vehicles parked there beside each other.

Q: What happened when you were there at Tambunting Pawnshop? A: After parking in front of the Tambunting Pawnshop, they boarded Irma and have her sat [sic] beside me. Then after which, the door at my left side was opened.

Q: What else happened? A: They told me not to make any move, that I just keep on sitting there. Afterwards, the men huddled with each other (nagkumpul-kumpol po sila).

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Q: Where did they huddle? A: They huddled in an area close to me, almost in front of me.

Q: Who among the accused huddled together? A: The four (4) of them, maam.

Q: How long did they huddle? A: For a while only, maam, around (10) ten minutes.

Q: After ten (10) minutes, what happened? A: After ten (10) minutes, Buboy approached me.

Q: What did he say? A: He told me that they thought my money would be One Million Pesos (P1,000,000.00).

xxx

Q: So, after that huddle, after you were told by Buboy that okay na yong one million and that was confirmed by one of the three (3) men who said isang million na, what happened? A: I was talking to Buboy at that time and I was telling him, Why do you have to do this to me? You are the kumpare of the elder sister of Irma.

Q: What did Buboy say to that? A: Buboy retorted, Pare, pasensya na, pera pera lang yan.

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Q: After Buboy said that, what happened? A: I told him that he need not do that, because if he needs money, I can always lend him.

Q: What did Buboy say? A: After saying this to Buboy, he told me to just shut up and then he later on handed over to me a cell phone and told me to contact a person, who can give me money.

Q: Who handed you your cell phone? A: It was Froilan Trestiza, maam.

xxx

Q: After that, were you told to go home already? A: Not yet, maam. Before letting us go, they threatened us. They reminded us that they have our IDs, the pictures of our children and the members of our family.

Q: What did you do after that? A: We just kept on saying yes because we wanted to go home already.

Q: What time was that? A: It was almost daybreak (mag-uumaga na). I have no watch already at that time, maam. Q: So, what did you do after that?

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A: After that, Froilan Trestiza handed to me my sim card telling me that they will be calling me in my house concerning my alleged balance.52

We agree with the appellate courts assessment that Trestizas acts were far from just being a mere driver. The series of events that transpired before, during, and after the kidnapping incident more than shows that Trestiza acted in concert with his co-accused in committing the crime. Conspiracy may be implied if it is proved that two or more persons aimed their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment.53

Trestizas civil liability is joint and several with Manrique and Pineda. They are liable for the P120,000 taken from Navarro and the P180,000 raised by Yu. In line with prevailing jurisprudence,54 Trestiza is also liable for P75,000 as civil indemnity which is awarded if the crime warrants the imposition of death penalty; P75,000 as moral damages because the victim is assumed to have suffered moral injuries, without need of proof; and P30,000 as exemplary damages.

WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in CA-G.R. H.C. No. 03119 promulgated on 30 June 2009, as well as the Resolution promulgated on 11 June 2010, is AFFIRMED with MODIFICATION. Froilan L. Trestiza is guilty beyond reasonable doubt of Kidnapping in Criminal Case No. 02-3393 and is sentenced to suffer the penalty of reclusion perpetua, as well as the accessory penalties provided by law. In addition to the restitution of P300,000 for the ransom,Trestiza is ordered to pay Lawrence Yu and Irma Navarro P75,000 as civil indemnity, P75,000 as moral damages, and P30,000 as exemplary damages.

Costs against Froilan L. Trestiza.

SO ORDERED.

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ANTONIO T. CARPIO Associate Justice

WE CONCUR:

ARTURO D. BRION Associate Justice

JOSE PORTUGAL PEREZ MARIA LOURDES P. A. SERENO

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Associate Justice Associate Justice

BIENVENIDO L. REYES Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

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RENATO C. CORONA Chief Justice

* Sometimes referred to as Loriemar in the records. 1 Under Rule 45 of the 1997 Rules of Civil Procedure and Rule 122 of the Revised Rules of Criminal Procedure. 2 Rollo, pp. 2-26. Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Fernanda Lampas Peralta and Apolinario D. Bruselas, Jr., concurring. 3 Id. at 31-32. Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Fernanda Lampas Peralta and Apolinario D. Bruselas, Jr., concurring. 4 CA rollo, pp. 58-73. Penned by Judge Zenaida T. Galapate-Laguilles. 5 Records, pp. 2-3. Signed by 2nd Assistant City Prosecutor Andres N. Marcos, an unnamed Review Prosecutor, and Senior State Prosecutor Leo B. Dacera III. 6Id. at 6. Signed by 2nd Assistant City Prosecutor Andres N. Marcos, Assistant City Prosecutor Melquiades I. Mutiangpili, Review Prosecutor Rodolfo C. Lalin, and Senior State Prosecutor Leo B. Dacera III. 7 Id. at 530-533. Penned by Judge Zenaida T. Galapate-Laguilles. 8 Id. at 534-545. Penned by Judge Zenaida T. Galapate-Laguilles. 9 Id. at 550-551. 10 Id. at 601-602.

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11 Id. at 628. 12 Id. at 650, 656-657. 13 Id. at 659. 14 Id. at 565-584. 15 Id. at 611-622. 16 Id. at 637-643. 17 Id. at 644-647. 18 Id. at 656-657. 19 CA rollo, pp. 59-60. Italics in the original. 20 Records, p. 671. 21 Id. at 681. 22 Id. at 688. 23 CA rollo, pp. 61-69. Italics in the original. 24 Id. at 58-73. 25 Id. at 71-72. 26 Id. at 73. 27 Records, p. 1093. 28 Id. at 1123-1131. 29 Id. at 1157-1161. 30 CA rollo, p. 75. 31 Id. at 76. 32 Id. at 89. 33 Rollo, pp. 25-26.

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34 CA rollo, pp. 609-633. 35 Id. at 653-663. 36 Id. at 665-667. 37 Id. at 672-673. 38 Id. at 676. 39 Id. at 701-704. 40 Id. at 687-699. 41 Rollo, pp. 59-122. 42 Id. at 66-87. 43 TSN, 23 November 2004, pp. 5-41 (PO3 Rosauro P. Almonte). 44 Records, pp. 565-584. 45 De Asis v. Hon. Romero, 148-B Phil. 710, 716-717 (1971). Citations omitted. 46 G.R. No. 102140, 22 April 1994, 231 SCRA 701, 710 citing People v. Briones, G.R. No. 90319, 15 October 1991, 202 SCRA 708. 47 People v. Calimlim, 416 Phil. 403, 420 (2001). See also People v. De Guzman, G.R. Nos. 9832124, 30 June 1993, 224 SCRA 93; People v. De Guia, G.R. Nos. 107200-03, 9 November 1993, 227 SCRA 614; People v. Lopez, 315 Phil. 59 (1995);People v. Conde, 408 Phil. 532 (2001). 48 People v. Manlulu, supra. 49 People v. Tonog, Jr., G.R. No. 144497, 29 June 2004, 433 SCRA 139, 153-154. 50 See Luis B. Reyes, 2 The Revised Penal Code: Criminal Law 542 (1998). The following are the elements of the crime: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances is present:

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(a) That the kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating public authority; (c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person detained is a minor, female or a public officer. 51 359 Phil. 928, 943 (1998). 52 TSN, 11 July 2005, pp. 13-15, 20-21, 48-51, 53-54, 81-82. 53 People v. Pagalasan, 452 Phil. 341, 363 (2003) paraphrasing Regina v. Murphy, 172 Eng. Rep. 502 (1837). 54 People v. Bautista, G.R. No. 188601, 29 June 2010, 622 SCRA 524. Citations omitted.

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SECOND DIVISION

PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee,

G.R. No. 182460

Present: CARPIO, J., Chairperson, BRION, DEL CASTILLO, - versus ABAD, and PEREZ, JJ.

Promulgated:

March 9, 2010 JESSIE VILLEGAS MURCIA, Accused-Appellant.

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

DECISION

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PEREZ, J.:

The subject of review is the Decision[1] of the Court of Appeals affirming with modification the Decision[2] of the Regional Trial Court (RTC), which found appellant Jessie Villegas Murcia guilty beyond reasonable doubt of the crimes of arson and frustrated homicide.

In an Information dated 6 April 2004, appellant was accused of the crime of arson committed as follows:

That on or about the 24th day of March, 2004, in the Municipality of Bauang, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by some evil motive, did then and there willfully, unlawfully and feloniously set fire and burn a residential house knowing the same to be inhabited by one FELICIDAD M. QUILATES burning and killing said FELICIDAD M. QUILATES as well as burning and damaging nine (9) other neighboring houses in the process, to the damage and prejudice of said house-owners in the aggregate amount of THREE MILLION PESOS (Php3,000,000.00), Philippines Currency, as well as to the damage and prejudice of the heirs of FELICIDAD QUILATES.

The charge is qualified by the resulting death of Felicidad M. Quilates.

CONTRARY TO LAW.[3]

Appellant was also charged in another Information for frustrated homicide, the accusatory portion reads:

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CRIMINAL CASE NO. 2980-BG

That on or about the 24th day of March, 2004, in the Municipality of Bauang, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab with a knife one, Alicia Q. Manlupig inflicting upon the latter stab wounds, thus performing all the acts of execution which would produce the crime of homicide as a consequence, but nevertheless did not produce it be reason of causes independent of the will; that is, by the timely medical attendance rendered to said Alicia Q. Manlupig which prevented her death, all to the damage and prejudice of said offended party.

CONTARARY TO LAW.[4]

Upon arraignment, appellant pleaded not guilty to both charges. Trial on the merits ensued. Based on the narration of prosecution witnesses, the facts follow. Eulogio Quilates (Eulogio) is the owner of a two-storey house in Paringao, Bauang, La Union. Among the occupants of his house were his sister Felicidad Quilates (Felicidad); another sister Alicia Manlupig (Alicia); and nephew Herminio Manlupig (Herminio). Appellant, who is the adopted son of Felicidad, occupied one room in the house. At around 3:30 p.m. of 24 March 2004, appellant was having a drinking spree with his cousin Herminio and brothers-in-law Joey Viduya and Ricky Viduya (Ricky) in front of their house. Appellant and Herminio were arguing over the matter of caring for Felicidad while the latter was confined in the hospital. Ricky tried to mediate between the two. Appellant was then seen going inside the house to get a bolo. When he emerged from the house ten (10) minutes later, he ran after Herminio but the latter managed to escape unscathed. Appellant again went back to the house. [5]

Meanwhile, after pacifying appellant and Herminio, Ricky resumed drinking. A few minutes later, he saw smoke coming from the room of appellant. As Ricky was about to enter the house,

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he met appellant at the door. Appellant apparently tried to stab Ricky but was unsuccessful. Ricky witnessed appellant stab Felicidad and Alicia.[6]

Herminio, who had since come back to the drinking table, also saw the smoke. He peeped through the small window of the house and witnessed appellant burning some clothes and boxes in the sala. Herminio immediately went inside the house to save his personal belongings. Upon emerging from the house, Herminio saw his mother, Alicia, bloodied.[7]

Alicia testifies that she was sitting on a chair near the toilet when she saw smoke coming out of appellants room. Before she could react, appellant came charging at her and stabbed her. She sustained wounds on her upper thigh, arms, below her breast and on her ear. Alicia was still able to ask for help, and her daughter-in-law brought her to the hospital.[8]

Eulogio heard a commotion while he was cooking in the second floor of the house. When Eulogio went down, he already saw smoke coming from the room of appellant. He then saw Felicidad near the comfort room located outside the house and was bleeding from her mouth. As he was about to help Felicidad, he met appellant who was then holding a knife. Eulogio immediately ran away.[9]

Upon seeing Herminio, appellant immediately attacked him with a knife. However, Herminio and Ricky were able to pin appellant down. Before they could retaliate, the barangay captain arrived at the scene.[10] As a result, eight (8) houses were razed.

Inspector Ferdinand Formacion responded to the fire incident and saw four (4) houses were already burned. After putting out the fire, he and the arson investigator conducted an ocular investigation and invited witnesses to the police station to submit their sworn statements. SPO2 Rodolfo Lomboy, chief investigator of Philippine National Police Bauang Police Station, was told by witnesses that appellant intentionally set the boxes on fire inside the house.[11]

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Eulogio estimated the value of his house at P250,000.00,[12] while another sister of Felicidad, Pacita Quilates, presented a receipt covering the burial expenses for Felicidad, amounting to P10,000.00.[13]

An autopsy was performed on Felicidad, and it was disclosed that she died from cardiorespiratory arrest secondary to third degree burns involving 90% of body surface to include underlying tissues and organs.[14]

Appellant was the lone witness for the defense. He stated that while he was having a drinking spree, he saw Felicidad go inside the house to get a glass of water. He followed her and gave her water. He noticed Felicidad light a gas lamp. He then went back to his friends and resumed drinking. He got into a heated argument with Herminio. The latter struck him in the head. He immediately went inside the house to get a weapon. He was able to get a bolo, went back outside and hit Herminio. The latter ran away and appellant chased him. Appellant met Alicia and confronted her about the actuations of Herminio. But Alicia cursed him. Appellant thereafter hit her with the knife. Appellant then fell on the ground and lost consciousness because, apparently, he was struck by something in the back.[15] Appellant denied setting the house on fire.[16]

On 30 May 2006, decision was rendered by the RTC, finding appellant guilty beyond reasonable doubt of arson and frustrated homicide, thus:

WHEREFORE, in Crim. Case No. 2979-Bg., the Court FINDS and DECLARES the accused JESSIE VILLEGAS MURCIA, guilty beyond reasonable doubt of the crime of arson as charged and defined under Art. 320 of the Revised Penal Code, as amended by R.A. No. 7659, and he is hereby sentenced to suffer the extreme penalty of death; to indemnify the heirs of the victim Felicidad Quilates, the amount of Php50,000.00 as moral damages; Php50,000.00 as death indemnity; Php10,000.00 as actual damages and another Php10,000.00 as temperate damages.

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Further, the accused is ordered to indemnify Eulogio Quilates the amount of P250,000.00, representing the value of the burned house.

In Crim. Case No. 2980-Bg., the Court likewise FINDS and DECLARES the accused JESSIE VILLEGAS MURCIA guilty beyond reasonable doubt of the crime of frustrated homicide as charged and he is hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS of prision correccional as minimum, to TEN (10) YEARS of prision mayor as maximum; to pay the victim Alicia Q. Manlupig the amount of Php10,000.00 as temperate damages; and to pay the costs.

In the service of his sentence, the accused shall be credited with his preventive imprisonment under the terms and conditions, provided for by Art. 29 of the Revised Penal Code, as amended.

Let the record of Crim. Case No. 2979-Bg. be sent to the Court of Appeals for automatic review.[17]

The trial court found that the corpus delicti in arson, as well as the identity of the perpetrator, were established beyond reasonable doubt by the prosecution. While there was no evidence to directly link appellant to the crime, the trial court relied on circumstantial evidence.

In view of the penalty imposed, the case was forwarded to the Court of Appeals for automatic review and judgment.

The Court of Appeals affirmed the trial courts findings but reduced the penalty from death to reclusion perpetua.

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Appellant filed a notice of appeal, which was given due course by the Court of Appeals on 22 January 2008. In a Resolution[18] dated 7 July 2008, this Court required the parties to simultaneously submit their respective supplemental briefs. Appellant and the Office of the Solicitor General (OSG) both filed their manifestations,[19] stating that they would no longer file any supplemental briefs and instead adopt their respective briefs.

Appellant admitted to the crime of frustrated homicide, hence the review is limited to the crime of arson.

Appellant maintains his innocence of the charge of arson. He questions the credibility of some witnesses and specifically imputes ill-motive on the part of Herminio in testifying against him, especially after their fight.[20] Appellant submits that the testimonies of witnesses, which failed to turn into a coherent whole, did not prove the identity of the perpetrator.[21] On the other hand, the OSG banks on circumstantial evidence, as relied to by the trial court, to prove the guilt of appellant.[22] The OSG vouches for the credibility of the prosecution witnesses and avers that their testimonies have proven the corpus delicti and warrant appellants conviction.[23] In the prosecution for arson, proof of the crime charged is complete where the evidence establishes: (1) the corpus delicti, that is, a fire because of criminal agency; and (2) the identity of the defendant as the one responsible for the crime. In arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. Even the uncorroborated testimony of a single eyewitness, if credible, is enough to prove the corpus delicti and to warrant conviction.[24] The photographs,[25] evidencing the charred remains of the houses, established the occurrence of the fire. In this case, however, there is no direct evidence to establish the culpability of appellant. At any rate, direct evidence is not the sole means of establishing guilt beyond reasonable doubt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. Indeed, rules on evidence and principles in jurisprudence have long recognized that the accused may be convicted through circumstantial evidence.[26]

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Section 4 of Rule 133 of the Rules of Court provides: Section 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 order to justify a conviction upon circumstantial evidence, the combination of circumstances must be such as to leave no reasonable doubt in the mind as to the criminal responsibility of the accused.[27] The appellate court considered the following circumstances to establish an unbroken chain of events pointing to the logical conclusion that appellant started the fire:

First, accused-appellant Murcia returned inside E. Quilates house after chasing H. Manlupig with a bolo and after being pacified by R. Viduya and J. Viduya;

Second, during the resumption of their drinking session, R. Viduya and H. Manlupig saw a thick smoke emanating from E. Quilates house particularly the window of accused-appellant Murcias room in the ground floor;

Third, H. Manlupig peeped through the said window and saw accusedappellant Murcia throwing cartons of clothes into the fire. Meanwhile, E. Quilates, who was then cooking at the second floor, went downstairs and saw the fire coming from the room occupied by accused-appellant Murcia in the ground floor;

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Fourth, R. Viduya saw accused-appellant Murcia stabbing F. Quilates and A. Manlupig, among other persons. E. Quilates saw his sister F. Quilates with blood oozing from her mouth. Accused-appellant Murcia met him at the ground brandishing a knife at him which prevented him from helping the wounded F. Quilates and forced him to run away for safety. E. Quilates other sister, A. Manlupig, was also seen wounded and lying unconscious in the canal; and

Fifth, the houses of E. Quilates and his neighbors were razed by fire and the commission of the crime of arson resulted in the demise of F. Quilates whose remains were burned beyond recognition.[28]

Indeed, appellant was last seen inside the house before the fire started. Eulogio and Ricky saw smoke emanating from the room of appellant. Herminio testified that he saw appellant burning clothes in his room. Appellant then went on a stabbing rampage while the house was on fire. While nobody directly saw appellant burn the house, these circumstances would yield to a logical conclusion that the fire that gutted eight (8) houses was authored by appellant.

Necessarily, the issue narrows down to credibility of the witnesses. Worthy of reiteration is the doctrine that on matters involving the credibility of witnesses, the trial court is in the best position to assess the credibility of witnesses since it has observed firsthand their demeanor, conduct and attitude under grilling examination. Absent any showing of a fact or circumstance of weight and influence which would appear to have been overlooked and, if considered, could affect the outcome of the case, the factual findings and assessment on the credibility of a witness made by the trial court remain binding on an appellate tribunal.[29]

In this case, We find no cogent reason to depart from the findings of the lower courts.

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Appellant imputes ill-motive on the part of Herminio. This Court does not discount the fact that there was a fight between appellant and Herminio which preceded the occurrence of the fire. However, it cannot be presumed that Herminio will automatically give a false testimony against appellant. His testimony, having withstood cross-examination, has passed the scrutiny of the lower courts and was held to be credible.

The lower courts found appellant liable under Article 320(1) of the Revised Penal Code, as amended by Section 10 of Republic Act No. 7659. It may not be amiss to point out that there are actually two categories of arson, namely: Destructive Arson under Article 320 of the Revised Penal Code and Simple Arson under Presidential Decree No. 1316. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused.[30] Article 320 contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. On the other hand, Presidential Decree No. 1316 covers houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments.[31]

A close examination of the records, as well as description of the crime as stated in the information, reveals that the crime committed is in fact simple arson because the burned properties are residential houses.

At any rate, the penalty for simple arson resulting to death, under Section 5 of Presidential Decree No. 1613,[32] is reclusion perpetua to death. With the repeal of the death penalty law through Republic Act No. 9346, the appellate court correctly imposed the penalty of reclusion perpetua.

This Court, however, takes exception to the trial courts award of damages. With respect to the heirs of Felicidad, We modify the amount of temperate damages from P10,000.00 to P 25,000.00, and accordingly delete the amount of actual damages, in line with the ruling in People v. Villanueva.[33] In said case, the Court held that when actual damages

185

proven by receipts during the trial amount to less thanP25,000.00, the award of temperate damages for P25,000.00 is justified in lieu of actual damages of a lesser amount.[34]

Anent the actual damages awarded to Eulogio amounting to P250,000.00, as indemnification for the burned house, We note that said amount representing the value of the burned house was merely given by Eulogio as an estimate. It was not substantiated by any document or receipt. For one to be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and the best evidence obtainable by the injured party.[35]

Instead, We award temperate damages in accordance with Art. 2224 of the Civil Code, providing that temperate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proven with certainty.[36] It is thus reasonable to expect that the value of the house burned down amounted to at least P200,000.00.

WHEREFORE, the appealed decision finding appellant JESSIE VILLEGAS MURCIA guilty beyond reasonable doubt of the crime of arson and sentencing him to reclusion perpetua is AFFIRMED with MODIFICATIONS:

1.

Appellant is ordered to indemnify the heirs of Felicidad Quilates the amount of P50,000.00 as moral damages; P50,000.00 as death indemnity; and P25,000.00 as temperate damages.

2.

The award of P10,000.00 as actual damages in favor of the heirs of Felicidad Quilates is deleted.

3.

Appellant is ordered to pay Eulogio Quilates the amount of P200,000.00 as temperate damages.

186

The award of P250,000.00 as actual damages in favor of Eulogio Quilates is deleted.

SO ORDERED.

JOSE PORTUGAL PEREZ Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice Chairperson

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ARTURO D. BRION Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson, Second Division

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CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

[1]

[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19]

Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Rosalinda Asuncion-Vicente and Enrico A. Lanzanas concurring. Rollo, pp. 2-15. Presided by Judge Rose Mary R. Molina-Alim. Records, pp. 207-217. Id. at 1. Id. at 207-208. TSN, 12 July 2004, pp. 3-4. Id. at 6-8. Id. at 17-20. TSN, 27 July 2004, pp. 7-9. TSN, 14 September 2004, pp. 6-8. Id. at 20-21. TSN, 20 September 2004, p. 10. TSN, 14 September 2004, p. 8. Records, p. 173. Id. at 29. TSN, 12 July 2005, pp. 4-11. TSN, 26 July 2005, p. 9. CA rollo, p. 107. Rollo, p. 22. Id. at 24-25 and 29-30.

189

[20] [21] [22] [23] [24]

[25] [26] [27]

[28] [29]

[30] [31] [32]

[33] [34] [35] [36]

CA rollo, pp. 90-91. Id. at 93. Id. at 126-127. Id. at 125. People v. De Leon, G.R. No. 180762, 4 March 2009, 580 SCRA 617, 627; Gonzales, Jr. v. People, G.R. No. 159950, 12 February 2007, 515 SCRA 480, 486-487; People v. Oliva, 395 Phil. 265, 274-275 (2000). Records, p. 178. People v. Gonzales, G.R. No. 180448, 28 July 2008, 560 SCRA 419, 424. People v. Delim, G.R. No. 175942, 13 September 2007, 533 SCRA 366, 375-376; People v. Sevilleno, 469 Phil. 209, 220 (2004); People v. Acosta, 382 Phil. 810, 823 (2003). Rollo, pp. 12-13. People v. Gonzales, supra note 25 at 424-425; Bricenio v. People, G.R. No. 157804, 20 June 2006, 491 SCRA 489, 496. People v. Malngan, G.R. No. 170470, 26 September 2006, 503 SCRA 294, 327. Id. at 328. Sec. 5. Where Death Results from Arson. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. 456 Phil. 14 (2003). Id. at 29. People v. Dela Cruz, G.R. No. 168173, 24 December 2008, 575 SCRA 412, 446-447. People v. Berando, G.R. No. 177827, 30 March 2009; People v. Almoguerra, 461 Phil. 340, 362 (2003).

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Republic of the Philippines Supreme Court Manila FIRST DIVISION ANDRE L. D AIGLE, Petitioner, G.R. No. 174181 Present: CARPIO, LEONARDO-DE CASTRO, Acting Chairperson, DEL CASTILLO, VILLARAMA, JR., and PERLAS-BERNABE, JJ.

-versus-

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. June 27, 2012 x-------------------------------------------------------------------x DECISION DEL CASTILLO, J.: The failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.[1] Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking a reversal of the Decision[2] dated March 31, 2006 of the Court of Appeals (CA) in CA-G.R. CR No. 25830 which affirmed with modification the Decision[3] dated January 15, 2001 of the Regional Trial Court (RTC), Branch 93, San Pedro, Laguna in Criminal Case No. 0434-SPL convicting petitioner Andre L. DAigle of the crime of Estafa. Likewise assailed is the CA Resolution[4] dated August 17, 2006 denying the Motion for Reconsideration[5] thereto. Factual Antecedents On June 5, 1997, petitioner was charged with Estafa before the RTC under the following Information:

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That in, about and sometime prior to December 1996, in the Municipality of San Pedro, Province of Laguna, Philippines, within the jurisdiction of this Honorable Court, the said accused being then the Managing Director of Samfit Phils. received from said Samfit, Phils. for management, care and custody the following company properties: a) b) Electric transformer worth P16,500.00 Two (2) units of electronic boxes and two (2) units of computer boxes worth P490,000.00 Machine spare parts consisting of set of rack and pinion pair of bevel and gears MB-20-30 pair of meter gears 42 teeth set of gears 32 teeth gear bith bearing inserted 3 SL 20 bearings V plate one-way clutch one-way bearing CSK 20HC5 8 of LJ 34 bearings V type roller bearing 1 x 0 8 pieces of 6200 ZZE bearing with a total value of P12,765.35 [Equipment] and raw materials valued at P162,400.00

c) d)

with a total value of SIX HUNDRED EIGHTY ONE THOUSAND, SIX HUNDRED SIXTY FIVE PESOS & 35/100 (P681,665.35) under the express obligation to use the same for a particular purpose[,] that is, exclusively for the machinery of Samfit Phils. but accused far from complying with his obligation with grave abuse of confidence reposed upon him by his employer, did then and there willfully, unlawfully, and feloniously misapply, misappropriate and convert the aforesaid corporate properties to his own personal use and benefit and despite several demands made upon him, accused refused and failed and still refuses and fails to return or account for the same to the damage and prejudice of Samfit, Phils., represented by its President, Mr. Arturo Parducho, in the aforesaid sum of P681,665.35. CONTRARY TO LAW.[6]

Petitioner pleaded not guilty upon arraignment and the case was set for pre-trial and trial on the merits. During trial, the prosecution presented as its principal witness Arturo Parducho (Parducho), Director and President of Samfit Philippines, Inc. (SPI), a corporation primarily engaged in the manufacture of underwires for brassieres. According to him, petitioner was the former managing director of SPI tasked with

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the management of the company as well as the management, care and custody of SPIs personal properties. At the time that he was holding said position, petitioner was likewise a majority stockholder of TAC Manufacturing Corporation (TAC), an entity engaged in the fabrication of wire bending machine similar to that being used by SPI.[7] Sometime in November 1996, petitioner was divested of his duties and responsibilities as SPIs managing director[8] due to alleged conflict of business interest. Because of this, Parducho conducted an audit and inventory of SPIs properties and reviewed its financial statements, vouchers, books of account and other pertinent records. He also interviewed some of SPIs employees.[9] These revealed that several properties of SPI such as wire materials, electronic transformer, electronic and computer boxes, machine spare parts, while still under the management, care and custody of petitioner, went missing and were left unaccounted for.[10] Further investigation revealed that some of SPIs wire bending machines, computer and electronic boxes were inside the premises of TAC. This was confirmed by Daniel Gutierrez, a former employee of TAC, who likewise admitted that TAC copied the wire bending machines of SPI.[11] In a letter dated January 14, 1997,[12] SPIs counsel formally demanded upon petitioner to turn over to SPI all its equipment under his care and custody. Ignoring the demand, petitioner was thus indicted with the present case. SPI also filed a replevin case against him for the recovery of the electronic and computer boxes. Subsequently, and by virtue of the Writ of Replevin,[13] an electronic box found inside TACs premises was recovered from petitioner while a computer box was later on surrendered to the Sheriff. In his defense, petitioner alleged that his engineering firm TAC fabricated spare parts for SPI on a daily basis. Aside from this, it also did the repair and maintenance of SPIs machines. He also claimed that he had an understanding with SPI that TAC would support SPIs operation until its business standing improves. And since petitioner only had a 10% share in SPI, TAC would fabricate for it two additional machines valued at $60,000.00 each so that he could get additional 40% share therein. Under this set-up, Samfit UK would provide the micro stepping motors and motor drives as well as the control panels. However, petitioner was not able to finish fabricating the bending machines as he was dismissed by SPI. As a consequence, he filed a labor case against it before the Department of Labor and Employment. Petitioner further claimed that SPI owes him about a million pesos for the repairs of its machines. While he admitted that SPIs electronic transformer, computer boxes and motor drives were recovered while in his possession thru a writ of replevin, he reasoned out that he did not return them to SPI after his dismissal because he intended to exercise his right of lien over them since he has properties which were still in the possession of SPI, collectibles amounting to P900,000.00, and unpaid one-month salary of P80,000.00. Finally, he denied having appropriated the computer boxes for his own benefit.[14]

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Ruling of the Regional Trial Court After trial, the RTC found that the prosecution had established the guilt of petitioner for the crime of Estafa under paragraph 1(b), Article 315[15] of the Revised Penal Code (RPC). It ratiocinated that the unjustified failure of petitioner to account for and deliver to SPI, upon demand, the properties entrusted to his care, custody and management is sufficient evidence of actual conversion thereof to his personal use. The dispositive portion of the RTC Decision[16] rendered on January 15, 2001 reads: WHEREFORE, the Court hereby sentences accused ANDRE D AIGLE to suffer an indeterminate penalty of imprisonment of one (1) year, eight (8) months and twenty (20) days of prision correccional as minimum to twenty (20) years of reclusio[n] temporal as maximum; to indemnify private complainant in the amount of P191,665.35 and to pay costs. SO ORDERED.[17]

Aggrieved, petitioner seasonably appealed to the appellate court. Ruling of the Court of Appeals In a Decision[18] dated March 31, 2006, the CA denied petitioners appeal and affirmed with modification the trial courts Decision, viz: WHEREFORE, the decision of the Regional Trial Court of San Pedro, Laguna (Branch 93), dated January 15, 2001, in Criminal Case No. 0434-SPL, is MODIFIED to the effect that appellant is sentenced to an indeterminate sentence of six (6) years and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. The decision is AFFIRMED in all other respects. SO ORDERED.[19]

Petitioners Motion for Reconsideration[20] was likewise denied in a Resolution[21] dated August 17, 2006. Hence, this petition with the following assignment of errors: I THE COURT OF APPEALS ERRED IN DENYING PETITIONER-ACCUSED[S] MOTION FOR RECONSIDERATION FOR LACK OF VALID REASONS/JUSTIFICATION.

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II THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT, (RTC-BRANCH 93, SAN PEDRO, LAGUNA), AND AT THE SAME TIME MODIFYING THE EXTENT OF THE PENALTY [IMPOSED] FOR THE CRIME ALLEGEDLY COMMITTED.[22]

Our Ruling

After a circumspect consideration of the arguments earnestly pressed by the petitioner vis--vis that of the respondent People of the Philippines (respondent), and in the light of the practically parallel finding of facts and conclusions of the courts below, this Court finds the instant petition partly meritorious. Concerning the first assigned error, the Court finds no cogent reason to sustain petitioners claim that the appellate court erred in denying his Motion for Reconsideration without valid reason or justification. The reason for the appellate courts denial of petitioners Motion for Reconsideration is clear and simple, that is, after it made a thorough evaluation of the issues and arguments proffered in the said motion, the CA found that same were already passed upon and duly considered in its assailed Decision. This is very plain from the contents of the August 17, 2006 Resolution of the CA denying petitioners Motion for Reconsideration. Undoubtedly, petitioners motion for reconsideration was denied due to a valid reason and justifiable cause. Petitioner also bemoans the fact that the dispositive portion of the trial courts Decision did not expressly mention that he was found guilty beyond reasonable doubt of the crime charged. Suffice it to say, however, that a judgment is not rendered defective just because of the absence of a declaration of guilt beyond reasonable doubt in the dispositive portion. The ratio decidendi of the RTC Decision extensively discussed the guilt of the petitioner and no scintilla of doubt against the same was entertained by the courts below. Indeed, petitioners guilt was duly proven by evidence of the prosecution. In any event, a judgment of conviction, pursuant to Section 2, Rule 120 of the Rules of Court, is sufficient if it states: 1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; 2) the participation of the accused in the offense, whether as principal, accomplice or accessory; 3) the penalty imposed upon the accused; and 4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. We find that all of these are sufficiently stated in the trial courts Decision.

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Anent the second assigned error, petitioner posits that the CA erred in affirming the said RTC Decision and in modifying the penalty imposed upon him since the prosecution failed to establish beyond reasonable doubt all the elements of estafa. He argues that Article 315, paragraph 1(b) of the RPC requires that the person charged was given juridical possession of the thing misappropriated. Here, he did not acquire juridical possession of the things allegedly misappropriated because his relation to SPIs properties was only by virtue of his official functions as a corporate officer. It is actually SPI, on whose behalf he has acted, that has the juridical possession of the said properties. Respondent, through the Office of the Solicitor General, on the other hand counters that the prosecutions evidence has fully established all the elements of the crime charged. Based on SPIs records, petitioner received from it various equipment of SPI on several occasions for the sole purpose of manufacturing underwires for brassieres. However after the conduct of an audit in December 1996, petitioner failed to properly account therefor. Petitioners arguments fail to persuade. Entrenched in jurisprudence are the following essential elements of Estafa under Article 315, paragraph 1(b) of the RPC: 1. That money, goods or other personal properties are received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return, the same; That there is a misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; That such misappropriation or conversion or denial is to the prejudice of another; and 4. That there is a demand made by the offended party on the offender.[23]

2.

3.

All these elements have been sufficiently established by the prosecution. Petitioner asserts that as majority stockholder of TAC, he entered into a business transaction with SPI wherein it would fabricate bending machines and spare parts for the latter. Under their agreement, SPI would provide the necessary components to be used in the fabrication as well as the electronic devices while work would be done at petitioners premises. Pursuant to this, petitioner admitted to having received from SPI an electronic transformer, electronic box and a computer box.[24] When petitioner, however, was not able to

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finish the work allegedly due to his dismissal from SPI, the latter demanded for the return of its properties. However, petitioner did not heed the demand and simply kept the properties as lien for his claims against SPI.[25] From petitioners own assertions, the existence of the first and fourth of the aforementioned elements is very clear. SPIs properties were received by the petitioner in trust. He received them for a particular purpose, that is, for the fabrication of bending machines and spare parts for SPI. And when SPI made a demand for their return after petitioners alleged dismissal therefrom, petitioner deliberately ignored the same. The Court cannot agree with petitioners postulation that he did not acquire juridical possession of SPIs properties since his relation with the same was only by virtue of his official function as SPIs corporate officer. As borne out by the records, the equipment subject matter of this case were received in trust by petitioner from SPI to be utilized in the fabrication of bending machines. Petitioner was given absolute option on how to use them without any participation on the part of SPI. Thus, petitioner acquired not only physical possession but also juridical possession over the equipment. As the Court held in Chua-Burce v. Court of Appeals:[26] When the money, goods or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received. Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. x x x

With regard to the element of misappropriation or conversion, the prosecution was able to prove this through circumstantial evidence. Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence.[27] The failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.[28] As mentioned, petitioner failed to account for, upon demand, the properties of SPI which were received by him in trust. This already constitutes circumstantial evidence of misappropriation or conversion of said properties to petitioners own personal use. Even if petitioner merely retained the properties for the purpose of preserving his right of lien over them, same is immaterial because, to reiterate, failure to return upon demand the properties which one has the duty to return is tantamount to appropriating the same for his own personal use. As correctly noted by the CA: We are not impressed by appellants excuse. We note that SPIs demand for the return of the properties subject of this case was made on January 14, 1997. At that time,

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appellant was no longer the managing director of SPI, he having been terminated from his position on November 19, 1996. This observation, coupled with SPIs demand for the return of its equipment and materials, show that appellant had lost his right to retain the said properties and the fact that he failed to return or at least account for them raises the presumption of misappropriation and conversion. x x x[29]

Lastly, it is obvious that petitioners failure to return SPIs properties valued at P191,665.35 caused damage and prejudice to the latter. In a last ditch effort to evade liability, petitioner claims that the controversy between him and SPI is an intra-corporate controversy considering that he was a stockholder of the latter. Such being the case, he avers that his conviction for estafa has no basis. Contrary, however to petitioners stance, by no stretch of imagination can the Court consider the controversy between him and SPI as an intra-corporate controversy. As correctly pointed out by the CA: Finally, we find no cogent basis, in law and in fact, which would support appellants allegation that the acts complained of in this case were corporate acts. His allegation without more that he had an agreement with Mr. Bernie Kelly of SPI to the effect that his (appellants) share in SPI would be increased to 40% in exchange for two bending machines does not give his act of retaining the properties a semblance of a corporate act. There is also no evidence that he acted on behalf of TAC Manufacturing Corporation, much less of SPI. Premises considered, we do not agree that appellants actuation should be considered as a corporate act, for which he claims he could not be held personally liable. x x x[30]

Regarding the credibility of prosecution witnesses, the RTC found said witnesses to be credible and therefore their testimonies deserve full faith and credence. The CA for its part, did not disturb the trial courts appreciation of the same. It is a well-entrenched doctrine that factual findings of the trial court, especially when affirmed by the appellate court, are accorded the highest degree of respect and are considered conclusive between the parties.[31] Though jurisprudence recognizes highly meritorious exceptions, none of them obtain herein which would warrant a reversal of the challenged Decision. Thus, the Court accords deference to the trial courts appreciation of said testimonies. Accordingly, the RTCs finding of petitioners guilt, as affirmed by the CA, is sustained. The proper imposable penalty The penalty in estafa cases as provided under paragraph 1, Article 315 of the RPC is prision correccional in its maximum period to prision mayor in its minimum period if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00. If the amount involved exceeds the latter sum, the same

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paragraph provides the imposition of the penalty in its maximum period with an incremental penalty of one year imprisonment for every P10,000.00 but in no case shall the total penalty exceed twenty (20) years imprisonment. In the present case, petitioner poses no serious challenge to the amount involved which is P191,665.35. Since said amount is in excess of P22,000.00, the penalty imposable should be within the maximum term of six (6) years, eight (8) months and twenty-one (21) days to eight (8) years of prision mayor.[32] [A] period of one (1) year shall be added to the penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be imposed exceed twenty (20) years.[33] Hence, sixteen (16) years must be added to the maximum term of the penalty of prision mayor. And since same exceeds twenty (20) years, the maximum term should be pegged at twenty (20) years of reclusion temporal. Applying now the Indeterminate Sentence Law, the penalty next lower than that prescribed by law which is prision correccional in its maximum to prision mayor in its minimum is prision correccional in its minimum to medium periods. Thus, the minimum term of the indeterminate sentence should be anywhere from six (6) months and one (1) day to four (4) years and two (2) months x x x.[34] Prescinding from the foregoing discussion, the Court finds that the CA correctly pegged the penalty in its maximum term of twenty (20) years of reclusiontemporal but erred in imposing the minimum term of six (6) years and one (1) day of prision mayor as same is beyond the lawful range. Thus, the Court sets the minimum term of the indeterminate penalty at four (4) years and two (2) months of prision correccional. Accordingly, petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum. WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 25830 dated March 31, 2006 and August 17, 2006, respectively, are hereby AFFIRMED with the MODIFICATION that petitioner is sentenced to suffer an indeterminate penalty of imprisonment of four (4) years and two (2) months of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum. SO ORDERED.

MARIANO C. DEL CASTILLO Associate Justice

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WE CONCUR:

ANTONIO T. CARPIO Senior Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice Acting Chairperson

MARTIN S. VILLARAMA, JR. Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

TERESITA J. LEONARDO-DE CASTRO Associate Justice Acting Chairperson

CERTIFICATION

200

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

[1] [2]

[3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15]

[16] [17] [18] [19] [20] [21] [22]

Per raffle dated June 25, 2012. Per Special Order No. 1226 dated May 30, 2012. Per Special Order No. 1227 dated May 30, 2012. Lee v. People, 495 Phil. 239, 250 (2005). CA rollo, pp. 162-181; penned by Associate Justice Aurora Santiago-Lagman and concurred in by Presiding Justice Ruben T. Reyes and Associate Justice Rebecca De Guia-Salvador. Records, vol. II, pp. 500-507; penned by Judge Francisco Dizon Pano. CA rollo, pp. 225-226. Id. at 182-216. Records, vol. I, pp. 1-2. TSN, January 28, 1998, pp. 6-7. Exhibit A, records, vol. I, p. 196. TSN, January 28, 1998, p. 9. Exhibit B, records, vol. I, p. 227-230. TSN, July 13, 1998, pp. 4-5. Exhibit L, records, vol. I, p. 207. Exhibit N, id. at 212-213. TSN, November 11, 1998, pp. 14-16. Article 315. Swindling (estafa) Any person who shall defraud another by any of the means mentioned hereinbelow x x x xxxx (b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. Supra note 3. Records, vol. II, p. 507. Supra note 2. CA rollo, p. 180. Supra note 5. Supra note 4. Rollo, p. 43.

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[23] [24] [25] [26] [27] [28] [29] [30] [31]

[32] [33] [34]

Cruzvale, Inc. v. Eduque, G.R. Nos. 172785-86, June 18, 2009, 589 SCRA 534, 545. TSN, November 11, 1998, p. 14. Id. at 14-15. 387 Phil. 15, 26 (2000). Lee v. People, supra note 1. Id. CA Decision p. 13; CA rollo, p. 174. Id. at 16; id. at 177. Philippine Health-Care Providers, Inc. (Maxicare) v. Estrada, G.R. No. 171052, January 28, 2008, 542 SCRA 616, 621. See Diaz v. People, G.R. No. 171121, August 26, 2008, 563 SCRA 322, 339. Id. Id.

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Republic of the Philippines Supreme Court Baguio City FIRST DIVISION PEOPLE OF THE PHILIPPINES, Appellee, G.R. No. 177761 Present: CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ.

- versus -

REMEDIOS TANCHANCO Promulgated: y PINEDA, Appellant. April 18, 2012 x------------- -------------------------------------------x DECISION DEL CASTILLO, J.: Theft becomes qualified when it is committed with grave abuse of confidence.[1] Factual Antecedents On appeal is the September 27, 2006 Decision[2] of the Court of Appeals (CA) in CA-GR. CR-H.C. No. 01409 which affirmed with modification the July 4, 2005 Decision[3] of the Regional Trial Court (RTC) of Las Pias City, Branch 198, finding appellant Remedios Tanchanco y Pineda (appellant) guilty beyond reasonable doubt of the crime of qualified theft. The Information[4] against appellant contained the following accusatory allegations: That during the period from October 2000 to May 8, 2001, in the City of Las Pias, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed Accused, being then employed as Legal Secretary and Liaison Officer of Complainant ATTY. REBECCA MANUEL Y AZANZA, with intent [to] gain, with grave abuse of confidence and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal, and carry away cash money amounting to Four Hundred Seventeen Thousand Nine Hundred Twenty-two [Pesos] and ninety

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centavos (P417,922.90) [from] said Complainant, to the damage and prejudice of the latter x x x. CONTRARY TO LAW.[5]

The appellant entered a plea of not guilty during her arraignment. Thereafter, trial ensued. Version of the Prosecution Private complainant Atty. Rebecca Manuel y Azanza (Rebecca) knew appellant for more than 25 years, the latter being the niece of her long-time neighbor. During this period, Rebecca and her children established a close relationship with appellant to the point that they treated her as a member of their family. In June 1999, Rebecca hired appellant to work in her office as legal secretary and liaison officer. One of appellants tasks as liaison officer was to process the transfer of titles of Rebeccas clients. In the course of appellants employment, Rebecca noticed that the completion of the transfer of titles was taking longer than usual. Upon inquiry, appellant attributed the delay to the cumbersome procedure of transferring titles, as well as to the fact that personnel processing the documents could not be bribed. Rebecca took appellants word for it. However, appellant suddenly abandoned her job on April 18, 2001. And when Rebecca reviewed appellants unfinished work, she discovered that the latter betrayed her trust and confidence on several occasions by stealing sums of money entrusted to her as payment for capital gains tax, documentary stamp tax, transfer tax and other expenses intended for the transfer of the titles of properties from their previous owners to Rebeccas clients. According to Rebecca, she gave appellant P39,000.00 as payment for donors tax in connection with a Deed of Donation and Acceptance and Deed of Partition by Donees/Co-Owners, which her client Tomas Manongsong (Tomas) paid for the partitioning of a parcel of land located in Batangas. Upon verification from the Bureau of Internal Revenue (BIR), however, it turned out that appellant paid only P31,709.08. This was confirmed by the Bank of Commerce,[6] where appellant made such payment. Appellant also received P20,000.00 from Tomass wife, Mila Manongsong, for the processing of the properties land titles. Appellant liquidated the same in a handwritten statement[7] in which she indicated payment of P10,089.45 for transfer tax under Official Receipt (OR) No. 1215709 and of P7,212.00 for registration with the Registry of Deeds of Bauan, Batangas under OR No. 5970738. An inquiry, however, later revealed that OR No. 1215709 was issued only for the amount of P50.00, representing payment for the issuance of a certified true copy of a tax declaration,[8] while OR No. 5970738 was never issued per Certification[9] from the same Registry of Deeds. Rebecca also found out that the documents relevant to the said transfer of titles are still with the BIR since the amount of P4,936.24 had not yet been paid.

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Appellant also duped Rebecca relative to the P105,000.00 for the payment of the capital gains and documentary stamp taxes. Said taxes arose from the sale of a house and lot covered by TCT No. (62911) T33899-A to her client Dionisia Alviedo (Alviedo). Appellant submitted a liquidation statement[10] stating that she paid the sums of P81,816.00 as capital gains tax and P20,460.00 for documentary stamp tax under Equitable Bank OR Nos. 937110 and 937111, respectively. However, said bank certified that said ORs do not belong to the series of ORs issued by it.[11] As a result, Rebecca was constrained to pay these taxes with the corresponding penalties and surcharges. Rebecca further alleged that in connection with the payment of the capital gains and documentary stamp taxes imposed on the property of another client, Carmelita Sundian (Sundian), she gave appellant P120,000.00. Appellant purportedly presented a handwritten liquidation report stating that she paid the amounts ofP94,281.00 as capital gains tax and P23,571.00 as documentary stamp tax under Equitable Bank OR Nos. 717228[12] and 717229.[13] Appellant also stated that the balance from the money intended for processing the papers of Sundian was only P2,148.00.[14] However, Rebecca discovered upon verification that the receipts submitted by appellant are bogus as Equitable Bank issued a Certification[15] that said ORs were issued to different persons and for different amounts. Rebecca was again forced to refund the sum to Sundian. With regard to Rebeccas client Rico Sendino, Rebecca claimed that she gave appellant P35,000.00 for the payment of capital gains and transfer taxes in connection with the deed of sale executed between one Priscilla Cruz and her said client. In the handwritten liquidation statement[16] submitted to her by appellant, the latter claimed to have paid the amount of P35,000.00 under Traders Royal Bank OR No. 1770047.[17] Again, the receipt turned out to be a fake as said bank issued a Certification[18] negating the issuance of said OR. And just as in transactions with her other clients, Rebecca was forced to shell-out money from her own funds to pay the same. Leilani Gonzaga (Gonzaga) was another client of Rebecca who engaged her services to pay the capital gains tax imposed on the sale of a property. After Rebecca told appellant to go to the BIR, the latter indicated in her handwritten liquidation statement that she paid the capital gains tax using two Equitable PCI Managers Checks for which she was issued OR Nos. 1770016 and 1770017, and cash payments of P71,184.00 under OR No. 1770018 and P17, 805.00 under OR No. 1770019.[19] However, no payments were actually made. To complete the processing of the transaction, Rebecca had to pay the sum of P3,273.00 to the Registry of Deeds and P9,050.00 for the transfer tax imposed on the transaction. The same thing happened with the payment of capital gains tax as a result of a Deed of Transfer with Partition Agreement of a Land executed between Rebeccas client Edmer and his siblings, Evelyn and Renato, all surnamed Mandrique.[20] This time, appellant showed Rebecca a donors tax return[21] accomplished in her own handwriting as proof of payment of the sum of P12,390.00. Appellant also liquidated the amount of P6,250.00 as advance payment made to a geodetic engineer for the purpose of

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subdividing the property.[22] Again, Rebecca was later able to verify that no payments in such amounts were made. According to Rebecca, appellant likewise pocketed the sum of P10,000.00 intended for the processing of 15 titles that the latter claimed to have paid in her liquidation report. Also, Rebecca asserted that appellant did not pay or file the proper application for the issuance of title of the Grand Del Rosario property. Aside from the above, Rebecca was likewise constrained to complete the processing of one of the three other titles recovered from appellant and had to pay the capital gains tax imposed on the purchase of the land in the sum of more than P100,000.00. All in all, the money supposed to be used as payments for capital gains and transfer taxes as well as for the registration of sale of properties of Rebeccas various clients amounted to P427,992.90. Aside from this sum, Rebecca also spent at least P650,000.00 for the reconstitution of all the documents, payment of surcharges for late filing of capital gains tax returns, transportation expenses and other incidental expenses. Version of the Appellant Appellant admitted that she used to be the legal secretary and liaison officer of Rebecca. In particular, as liaison officer, she attended to the transfer of titles of Rebeccas clients such as Gonzaga, Manongsong, Alviedo and others whose names she could no longer remember. She claimed that the processing of the title of the Manongsong property was her last transaction for Rebecca. She was given money to pay the capital gains tax at the BIR. When confronted with the charges filed against her, appellant merely denied the allegations. Ruling of the Regional Trial Court In its Decision[23] of July 4, 2005, the trial court found the existence of a high degree of confidence between Rebecca and appellant. It noted that the relationship between the two as employer-employee was not an ordinary one; appellant was being considered a part of Rebeccas family. Because of this trust and confidence, Rebecca entrusted to appellant cash in considerable sums which were liquidated through appellants own handwritten statements of expenses. However, appellant gravely abused the trust and confidence reposed upon her by Rebecca when she pocketed the money entrusted to her for processing the clients land titles. And as a cover up, she presented to Rebecca either fake or altered receipts which she did not even deny during trial. The trial court thus found appellant guilty beyond reasonable doubt of the crime charged. However, the trial court ruled that the total amount stolen by appellant was P407,711.68 and not P417,907.90 as claimed by Rebecca. It disposed of the case as follows:

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WHEREFORE, in view of all the foregoing, the court finds the accused Remedios Tanchanco y Pineda GUILTY beyond reasonable doubt of the crime of Qualified Theft as defined and penalized under Article 309, paragraph 1 and Article 310 of the Revised Penal Code, and hereby sentences said accused to suffer the penalty of reclusion perpetua and to indemnify the offended party in the sum of Four Hundred Seven Thousand Seven Hundred Eleven Pesos and Sixty Eight Centavos (P407,711.68) representing the total amount taken by the accused, without subsidiary imprisonment in case of insolvency, with costs. SO ORDERED.[24]

Ruling of the Court of Appeals

The appellate court affirmed the trial courts ruling but came up with a different figure as to the total amount taken by the appellant. The CA noted that there was no clear justification for the award of P407,711.68 as an examination of the records revealed that appellant failed to pay or padded her expenses only in the total amount of P248,447.45, computed as follows: On the Manongsong property: P 10,089.45 Transfer tax[25] P 7,212.00 Registration of the documents[26] P 2,000.00 Estate tax[27] P 8,000.00 Difference between the donors tax that accused- appellant claimed she paid and that which she actually paid per certification of the Bank of Commerce[28] P 27,301.45 Sub-total On the Alviedo property: P 81,816.00 Capital gains tax[29] P 20,460.00 Documentary stamp tax[30] P 102,276.00 Sub-total On the Sundian property: P 94,281.00 Capital gains tax[31] P 23,571.00 Documentary stamp tax[32] P 117,852.00 Sub-total On the Sendino property: P 6,018.00 Ueda donors tax[33] P 35,000.00 Capital gains tax and documentary stamp tax[34] P 41,018.00 Sub-total On the Mandrique property: P 10,000.00 Difference between donors tax per accused- appellants liquidation report and the amount she actually paid[35]

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P 10,000.00 P 248,447.45

Sub-total Total[36] (Footnotes supplied.)

Thus, the dispositive portion of its Decision[37] dated September 27, 2006 reads:

WHEREFORE, the assailed Decision dated July 4, 2005 is AFFIRMED with MODIFICATION in that accused-appellant, Remedios Tanchanco Pineda is hereby ordered to indemnify the private complainant Rebecca Manuel y Azanza the sum of Two Hundred Forty-Eight Thousand Four Hundred Forty-Seven Pesos and Forty Five Centavos (P248,447.45)representing the total amount she took from the private complainant. SO ORDERED.[38]

Issue

In this appeal, appellant again raises the lone issue she submitted to the CA, viz: THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF QUALIFIED THEFT DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HER FAVOR.[39]

Appellant maintains that there is no direct evidence to prove that she actually received the alleged amounts intended for the processing of various documents. She also denies the claim that she took the money entrusted to her during the period from May 2000 to May 8, 2001 as alleged in the Information. Our Ruling The appeal is not meritorious. Courts below correctly held appellant liable for qualified theft

The elements of the crime of Theft as provided for in Article 308 of the Revised Penal Code [(RPC)] are: (1) x x x there [was] taking of personal property; (2) x x x [the] property belongs to another; (3) x x x the taking [was] done with intent to gain; (4) x x x the taking [was] without the consent of the owner; and (5) x x x the taking was accomplished without the use of violence against or intimidation of persons or force upon things.[40]

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As to the first and second elements, we quote with approval the CAs discussion on the matter: Accused-appellant contends that the prosecution failed to prove by direct evidence the first and basic element of the offense that is, the taking of the sum of Php417,922.90 during the period from May 2000 up to May 8, 2001. She claims that the prosecution failed to adduce any evidence that would prove that the accused actually received the alleged amounts handed to her for the processing of various documents. xxxx Regarding x x x the prosecutions failure to present direct evidence to prove the accusedappellants taking of the questioned amount, it is Our view that the absence of direct evidence proving accused-appellants stealing and carrying away of the alleged Php417,922.90 from private respondent would not matter as long as there is enough circumstantial evidence that would establish such element of taking. After all, Sec. 4, Rule 133 of the Revised Rules of Court provides that an accused may be convicted on the basis of circumstantial evidence if more than one circumstance is involved, the facts of which, inferring said circumstances have been proven, and provided that the combination of all such circumstances would suffice to produce a conviction beyond reasonable doubt. There is no doubt, as held by the trial court, that the prosecution was able to establish the following circumstances: 1. Accused-appellant was the legal secretary and liaison officer of private complainant from June 1999 to April 18, 2001. She was the only person working for the private complainant during said period. 2. As legal secretary and liaison officer, accused-appellant was tasked to process land titles of private complainants clients. Her duties included the payment of taxes (documentary stamp taxes, capital gains taxes, transfer tax) for the transfer of title from previous owners to new owners/buyers of the property. 3. Because of the nature of accused appellants work and the trust reposed in her by private complainant, the latter confidently gave her considerable amounts of cash without need of receipts. The accused-appellant even admitted that she often received money from private complainant for payment of capital gains and transfer taxes. 4. There were also instances when accused-appellant was authorized by private complainant to collect money from her clients especially when the accused-appellant ran out of money needed in the processing of titles. 5. The accused-appellant was given a free hand in liquidating her expenses in her own handwriting. 6. Upon verification from banks and government agencies with which the accused-appellant transacted in relation to her tasks, the private complainant discovered that

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what the accused-appellant submitted were handwritten padded liquidation statements because her reported expenses turned out to be higher than what she actually spent; and worse, the official receipts she submitted to private complainant were fake. x x x. xxxx 7. The accused-appellant did not specifically deny her submitting altered or fake receipts in liquidating her expenses for said taxes. 8. And conceding her guilt, the accused-appellant suddenly disappeared leaving some of her tasks, unfinished. xxxx [These] pieces of circumstantial evidence presented by the prosecution constitute an unbroken chain leading to a fair and reasonable conclusion that accused-appellant took sums of money that were entrusted to her by the private complainant. x x x[41]

Circumstantial evidence may prove the guilt of appellant and justify a conviction if the following requisites concur: (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.[42] In other words, [f]or circumstantial evidence to be sufficient to support conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.[43] Here, we agree with the CA that the circumstances above enumerated lead to the reasonable conclusion that appellant took amounts of money from Rebecca. With regard to the third element, [i]ntent to gain (animus lucrandi) is presumed to be alleged in an information, in which it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of asportation.[44] In this case, it was established that appellant padded her expenses and submitted fake receipts of her supposed payment for the processing of the transfer of land titles, to gain from the money entrusted to her by Rebecca. Her intentional failure to properly and correctly account for the same constitutes appropriation with intent to gain. Anent the fourth element pertaining to Rebeccas lack of consent, same is manifested by the fact that it was only after appellant abandoned her job on April 18, 2001 that Rebecca discovered the missing sums of money. Her subsequent acts of confirming the payment or non-payment of fees and of verifying from different banks the issuance of the purported ORs presented to her by appellant in liquidating the amounts she entrusted to the latter, negates consent on Rebeccas part.

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With regard to the fifth element, it is clear from the facts that the taking was accomplished without the use of violence against or intimidation of persons or force upon things. From these, it is clear that all the elements of theft are obtaining in this case. The next crucial question now is, did appellant commit the crime with grave abuse of confidence as to make her liable for qualified theft? Under Article 310 of the [RPC], theft [becomes] qualified when it is, among others, committed with grave abuse of confidence. x x x[45] The grave abuse of confidence must be the result of the relation by reason of dependence, guardianship, or vigilance, between the appellant and the offended party that might create a high degree of confidence between them which the appellant abused.[46] Here, it is undisputed that appellant was a close friend of Rebecca and her family. It was due to this personal relationship that appellant was employed by Rebecca as a legal secretary and liaison officer. The latter position necessarily entails trust and confidence not only because of its nature and the functions attached to it, but also because appellant makes representations on behalf of Rebecca as regards third parties. By reason of this, all matters essentially pertaining to the conduct of business of the law office were known by, and entrusted to, appellant. This included the safekeeping of important documents and the handling of money needed for the processing of papers of Rebeccas clients. It is thus safe to assume that Rebecca relied on appellant when it comes to the affairs of her law office as to create a high degree of trust and confidence between them. And as Rebecca trusted appellant completely, and by reason of her being the liaison officer, she handed the monies to appellant without requiring the latter to sign any paper to evidence her receipt thereof. She also allowed appellant to liquidate the expenses incurred through mere handwritten liquidation statements solely prepared by appellant and treated them, as well as the official receipts presented, as true and correct. It thus becomes clear that it is because of the trust and confidence reposed by Rebecca upon appellant that the latter was able to make it appear from her liquidation statements that she spent the sums she received from Rebecca for their intended purposes. To conceal this, she presented to Rebecca fake or altered receipts for the supposed payment, all of which form part of the records as evidence. Unfortunately for appellant, she was not able to refute Rebeccas allegations against her as well as the evidence supporting the same since what she advanced during trial were mere bare denials. The Court has oft pronounced that x x x denial x x x [is] an inherently weak [defense] which cannot prevail over the positive and credible testimony of the prosecution witness that the accused committed the crime.[47] The Court therefore concludes that appellant took undue advantage of Rebeccas confidence in her when she appropriated for herself sums of money that the latter entrusted to her for a different purpose. The theft in this case was thus committed with grave abuse of confidence. Hence, appellant was correctly held by the lower courts as liable for qualified theft. With respect to appellants contention that she could not have taken the alleged amount of money until May 8, 2001 since her employment with Rebecca lasted only until April 18, 2001, same fails to impress. The Information alleged that the crime was committed during the period from October 2000 to May, 2001. The word during simply means at some point in the course of[48] or throughout the course

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of a period of time[49] from October 2000 to May 8, 2001. In the Information, during should therefore be understood to mean at some point from October 2000 to May 8, 2001, and not always until May 8, 2001. Further, the period alleged in the Information, which is from October 2000 to May 8, 2001 is not distant or far removed from the actual period of the commission of the offense, which is from October 2000 to April 17, 2001. As to the total amount unlawfully taken by appellant, we hold that the sum of P407,711.68 which the trial court came up with has no basis. After a thorough review of the records, we find as correct instead the result of the detailed computation made by the CA as to the total amount of money that appellant stole or padded as expenses, which is only P248, 447.75. The Proper Penalty Article 310 of the RPC provides that the crime of qualified theft shall be punished by the penalties next higher by two degrees than those respectively specified in Art. 309. Under paragraph 1, Art. 309 of the RPC, the penalty of prision mayor in its minimum and medium periods is to be imposed if the value of the thing stolen is more than P12,000.00 but does not exceed P22,000.00. But if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in said paragraph [prision mayor in its minimum and medium periods], and one year for each additional P10,000.00, but the total of the penalty which may be imposed shall not exceed twenty (20) years. In such cases and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of the RPC, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. Here, the amount stolen by appellant, as correctly found by the CA, is P248,447.75. Since the said amount exceeds P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period, which is eight (8) years, eight (8) months and one (1) day to ten (10) years of prision mayor.[50] To determine the additional years of imprisonment,P22,000.00 must be deducted from the said amount and the difference should then be divided by P10,000.00, disregarding any amount less than P10,000.00. Hence, we have twenty-two (22) years that should be added to the basic penalty. However, the imposable penalty for simple theft should not exceed a total of twenty (20) years. Thus, had the appellant committed simple theft, the penalty for this case would be twenty (20) years of reclusion temporal. But as the penalty for qualified theft is two degrees higher, the proper penalty as correctly imposed by both lower courts is reclusion perpetua.[51] WHEREFORE, the appeal is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01409 finding appellant Remedios Tanchanco y Pineda guilty beyond reasonable doubt of the crime of qualified theft is AFFIRMED. Costs against the appellant.

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SO ORDERED.

MARIANO C. DEL CASTILLO Associate Justice WE CONCUR:

RENATO C. CORONA Chief Justice Chairperson

LUCAS P. BERSAMIN TERESITA J. LEONARDO-DE CASTRO Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

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[1] [2]

[3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25]

[26] [27] [28] [29] [30] [31]

[32] [33] [34] [35]

[36] [37] [38] [39] [40] [41] [42]

Cruz v. People, G.R. No. 176504, September 3, 2008, 564 SCRA 99, 110. CA rollo, pp. 92-113; penned by Associate Justice Vicente S.E. Veloso and concurred in by Associate Justices Ruben T. Reyes and Juan Q. Enriquez, Jr. Records, pp. 653-659; penned by Judge Erlinda Nicolas-Alvaro. Id. at 1. Id. See Certification to that effect issued by said bank, Exhibit T, Folder of Exhibits, p. 712. Exhibit E-1, id. at 686. Exhibit V, id. at 714. Exhibit W, id. at 715. Exhibit J, id. at 696. Exhibit IIII, id. at 818. Exhibit EE, id. at 724. Exhibit FF, id. at 725. Exhibit GG, id. at 726. Exhibit MM, id. at 733. Exhibit RR, id. at 742. Exhibit SS, id. at 743. Exhibit HHHH, id. at 817. Exhibit III, id. at 763. Exhibit MMM, id. at 767. Exhibit PPP, id. at 771. Exhibit RRR, id. at 773. Supra note 3. Records, pp. 658-659. Exhibit E-1, Folder of Exhibits, p. 686; Exhibit S-1, id. at 711; TSN dated January 14, 2003, p. 13. Id.; id.; id.; Exhibit W, id. at 715. Exhibit F-1, id. at 686; id.; Exhibit T, id. at 712. Exhibit S-1, id. at 711; Exhibit U, id. at 713-A; TSN dated January 14, 2003, pp. 12-13. Exhibit J, id. at 696; TSN dated November 26, 2002, pp. 28-29 Id.; Exhibit III, id. at 763. Exhibit DD, id. at 723; Exhibit EE, id. at 724; Exhibit MM-1, id. at 734; TSN dated January 14, 2003, pp. 20-21. Id.; Exhibit FF, id. at 725; Exhibit MM-2, id. at 734; 3-4, 9-13. Exhibit RR, id. at 742; Exhibit CCC, id. at 755; TSN dated January 28, 2003, pp. 2, 7-10. Exhibit SS, id. at 743; Exhibit HHHH, id. at 817; TSN dated March 18, 2003, pp. 4-6. Appellant claimed to have paid P12,390.00 but actually paid only P2,390.00, see Exhibit PPP-7, id. at 771; TSN dated March 18, 2003, pp. 15-16. CA rollo, pp. 109-110. Supra note 2. CA rollo, pp. 112-113. Id. at 50. Astudillo v. People, G.R. Nos. 159734 & 159745, November 30, 2006, 509 SCRA 302, 324. CA rollo, pp. 102-109. RULES OF COURT, Rule 133, Section 4; People v. Abrera, 347 Phil. 302, 315 (1997).

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[43] [44] [45] [46] [47] [48] [49] [50]

[51]

People v. Casingal, 312 Phil. 945, 953-954 (1995). Cruz v. People, supra note 1 at 111. Cruz v. People, supra note 1 at 110. See People v. Koc Song, 63 Phil. 369 (1936) and Astudillo v. People, supra note 40 at 326. People v. Saludo, G.R. No. 178406, April 6, 2011. WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY (Unabridged). COMPACT OXFORD ENGLISH DICTIONARY OF CURRENT ENGLISH, Third Edition. People v. Mirto, G.R. No. 193479, October 19, 2011, citing People v. Mercado, 445 Phil. 813, 828 (2003). Id.

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Republic of the Philippines Supreme Court BaguioCity

FIRST DIVISION

ANNA LERIMA PATULA, Petitioner,

G.R. No. 164457

Present:

CORONA,C.J.,Chairperson, -versusLEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR.,JJ.

PEOPLE OF THE PHILIPPINES, Respondent.

Promulgated:

April 11, 2012 x-----------------------------------------------------------------------------------------x

DECISION

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BERSAMIN, J.:

In the trial of everycriminal case, a judge must rigidlytest the States evidence of guilt in order to ensure that such evidenceadheres to the basic rules of admissibility before pronouncing an accused guilty of the crime charged upon such evidence. Nothing less is demanded of the judge; otherwise, the guarantee of due process of law is nullified.The accused need notadduceanythingto rebut evidence that is discredited for failing the test.Acquittal should then follow.

Antecedents

Petitioner was charged withestafaunder an informationfiled in the Regional Trial Court (RTC) in DumagueteCitythat averred:

That on or about and during the period from March 16 to 20, 1997 and for sometime prior thereto, in the City of Dumaguete, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a saleswoman of Footluckers Chain of Stores, Inc., Dumaguete City, having collected and received the total sum of P131,286.97 from several customers of said company under the express obligation to account for the proceeds of the sales and deliver the collection to the said company, but far from complying with her obligation and after a reasonable period of time despite repeated demands therefore, and with intent to defraud the said company, did, then and there willfully, unlawfully and feloniously fail to deliver the said collection to the said company but instead, did, then and there willfully unlawfully and feloniously misappropriate, misapply and convert the proceeds of the sale to her own use and benefit, to the damage and prejudice of the said company in the aforesaid amount of P131,286.97.

Contrary to Art. 315, par 1 (b) of the Revised Penal Code.[1]

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Petitioner pled not guiltyto the offense charged in the information. At pre-trial, no stipulation of factswas had, and petitioner did not avail herself of plea bargaining. Thereafter, trial on the merits ensued.

The Prosecutions first witness was Lamberto Go, who testified that he was the branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in Dumaguete City since October 8, 1994; that petitioner was an employee of Footluckers, starting as a saleslady in 1996 until she became a sales representative; that as a sales representative she was authorized to take orders from wholesale customers coming from different towns (like Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and Siquijor), and to collect payments from them; that she could issue and sign official receipts of Footluckers for the payments, which she would then remit; that she would then submit the receipts for the payments for tallying and reconciliation; that at first her volume of sales was quite high, but later on dropped, leading him to confront her; that she responded that business was slow; that he summoned the accounting clerk to verify; that the accounting clerk discovered erasures on some collection receipts; that he decided to subject her to an audit by company auditor Karen Guivencan; that he learned from a customer of petitioners that the customers outstanding balance had already been fully paid although that balance appeared unpaid in Footluckers records; and that one night later on, petitioner and her parents went to his house to deny having misappropriated any money of Footluckers and to plead for him not to push through with a case against her, promising to settle her account on a monthly basis; and that she did not settle after that, but stopped reporting to work.[2]

On March 7, 2002, Gos cross examination, re-direct examination and re-crossexamination were completed.

The only other witness for the Prosecution was Karen Guivencan, whomFootluckers employed as its store auditor since November 16, 1995 until her resignation on March 31, 2001. She declared that Go had requested her to audit petitioner after some customers had told him that they had already paid their accounts but the office ledger had still reflected outstandingbalances for them; that she first conducted her audit by going to the customers in places from Mabinay to Zamboanguitain Negros Oriental, and then in Siquijor; thatshe discovered

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in the course of her audit that the amounts appearing on the original copies of receipts in the possession of around 50 customers varied from the amounts written on the duplicate copies of the receipts petitioner submitted to the office; that upon completing her audit, she submittedto Go a written report denominated as List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records as per Audit Duly Verified March 16-20, 1997 marked as Exhibit A; and that based on the report, petitioner had misappropriated the total amount ofP131,286.92.[3]

During Guivencans stint as a witness, the Prosecution marked the ledgers of petitioners various customers allegedly with discrepancies as Exhibits B to YYand their derivatives, inclusive. Each of the ledgers had a first column that contained the dates of the entries, a second that identified the invoices by the number, a third that statedthe debit, a fourth that noted the credit (or the amounts paid), and a fifth that summed the balances (debit minus credit).Only 49 of theledgerswere formally offered and admitted by the RTC because the 50thledger could no longer be found.

In the course of Guivencansdirect-examination,petitioners counsel interposed a continuing objection on the ground that the figuresentered in Exhibits B to YYand their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court.[4]With that, petitioners counsel did not anymore cross-examine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information.

TheProsecution thenformally offered its documentary exhibits, including Exhibits B to YYand their derivatives (like the originals and duplicates of the receipts supposedly executed and issued by petitioner), inclusive, the confirmation sheets used by Guivencan in auditing the accounts served by petitioner, and Guivencans so-called Summary (Final Report) of Discrepancies.[5]

After the Prosecution rested its case, the Defense decided not to file a demurrer to evidence although it had manifested the intention to do so, and instead rested itscase.The

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Prosecution and Defense submitted their respective memoranda, and submitted the case for decision.[6]

On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted not to present evidence for her defense the Prosecutions evidence remained unrefuted and uncontroverted,[7]rendered its decision finding petitioner guilty of estafa, to wit:

Wherefore, in the light of the foregoing facts and circumstances, the Court finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the crime of Estafa under Art. 315 par (1b) of the Revised Penal Code and accordingly, she is hereby sentenced to suffer an INDETERMINATE PENALTY of imprisonment of 8 years and 1 day of prision mayor as minimum to 18 years and 4 months of reclusion temporal as maximum with all the accessory penalties provided by law and to indemnify private complainant the amount of P131,286.92 with interest at 12% per annum until fully paid and to pay the costs.

Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure, the cash bail put up by the accused shall be effective only until the promulgation of this judgment.

SO ORDERED.[8]

Petitioner filed a motion for reconsideration, butthe RTC denied the motion on May 7, 2004.
[9]

Issues

Insisting that the RTCs judgment grossly violated *her+ Constitutional and statutory right to be informed of the nature and cause of the accusation against her because, while the charge

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against her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the evidence presented against her and upon which her conviction was based, was falsification, an offense not alleged or included in the Information under which she was arraigned and pleaded not guilty, and that said judgment likewise blatantly ignored and manifestly disregarded the rules on admission of evidence in that the documentary evidence admitted by the trial court were all private documents, the due execution and authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the Revised Rules on Evidence, petitioner has directly appealed to the Court via petition for review on certiorari, positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER , CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE CAN BE CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION WHICH IS EVEN (SIC) NOT ALLEGED IN THE INFORMATION.

2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND STATUTORY RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HER WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST HER ISESTAFA THROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE.

3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE, EXHIBITS B TO YY-YY-2, ALL PRIVATE DOCUMENTS, THE DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT PROVED IN ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED RULES ON EVIDENCE ASIDE FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED NOR ALLEGED IN THE INFORMATION.

4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED EXHIBITS B TO YY-YY2INCLUSIVE VIOLATED THE ACCUSEDS CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HER, FOR BEING

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IRRELEVANT AND IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE.

5. WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION REMAINS UNREFUTED AND UNCONTROVERTED DESPITE ACCUSEDS OBJECTION THAT SAID EVIDENCE IS IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED.

6. WHETHER OR NOT THE DEFENSES NOT CROSS-EXAMINING KAREN GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS BEING UNREFUTED AND UNCONTROVERTED, AND WHETHER OR NOT THE DEFENSES OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE DEFENSE CROSS-EXAMINED SAID WITNESS. 7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT A, WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN LERIMA PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND SELF-SERVING.[10]

The foregoing issues are now restatedas follows:

1.

Whether or not the failure of the information for estafa to allege the falsification of the duplicate receipts issued by petitioner to her customersviolated petitioners right to be informed of the nature and cause of the accusation;

2.

Whether or not the RTC gravely erred in admitting evidence of the falsification of the duplicate receiptsdespite the information not alleging the falsification;

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3.

Whether or not the ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) were admissible as evidence of petitioners guilt for estafaas charged despite their not being duly authenticated;and

4.

Whether or not Guivencanstestimony onthe ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) to prove petitioners misappropriation or conversion wasinadmissible for being hearsay.

Ruling

The petition is meritorious.

I Failure of information to allege falsification did not violate petitioners right to be informed of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to be informed of the nature and cause of the accusation when: (a) it held that the information did not have to allege her falsification of the duplicate receipts, and (b) when it convicted her of estafa under Article 315, paragraph 1(b) of the Revised Penal Codeby relying on the evidence on falsification.

The contentionof petitioner cannot be sustained.

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The Bill of Rights guaranteessome rightsto every person accused of a crime, among them the right to be informed of the nature and cause of the accusation, viz:

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

Rule 110 of the Revised Rules of Court, the rule then in effect when the information was filed in the RTC, contained the following provisions on the proper manner of alleging the nature and cause of the accusation in the information, to wit:

Section 8.Designation of the offense. Whenever possible, a complaint or information should state the designation given to the offense by the statute, besides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it. (7)

Section 9.Cause of accusation. The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (8)

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The importance of the proper manner of alleging the nature and cause of the accusation in the informationshould never be taken for granted by the State. An accused cannot be convicted of an offense that is not clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be violative of the Constitutional right to be informed of the nature and cause of the accusation. [11] Indeed, the accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in the information filed against him.

The crime of estafacharged against petitioner was defined and penalized by Article 315, paragraph 1 (b), Revised Penal Code, viz:

Article 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and

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4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means:

xxx

1. With

unfaithfulness

or

abuse

of

confidence,

namely:

xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

xxx

The elements of the offense charged were as follows:

(a) That the offender received money, goods or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same;

(b) That the offender misappropriated or converted such money, goods or other personal property, or denied his part in its receipt;

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(c) That the misappropriation or conversion or denial was to the prejudice of another; and

(d) That the offended party made a demand on the offender for the delivery or return of such money, goods or other personal property.[12]

According to the theory and proof of the Prosecution, petitioner misappropriated or converted the sums paid by her customers, and later falsified the duplicates of the receipts before turning such duplicates to her employer to show that the customers had paid less than the amounts actually reflected on the original receipts. Obviously, she committed the falsification in order to conceal her misappropriation or conversion. Considering that the falsificationwas not an offense separate and distinct from the estafacharged against her, the Prosecution could legitimately prove her acts of falsification as its means of establishing her misappropriation or conversion as an essential ingredient of the crime duly alleged in the information. In that manner, her right to be informed of the nature and cause of the accusation against her was not infringed or denied to her.

We consider it inevitable to conclude that the information herein completely pleaded the estafa defined and penalized under Article 315, paragraph 1 (b), Revised Penal Codewithin the context of the substantive lawand the rules. Verily, there was no necessity for the information to allege the acts of falsification by petitioner because falsification was not an element of the estafacharged.

Not surprisingly,the RTC correctly dealt in its decision with petitioners concern thuswise:

In her Memorandum, it is the contention of [the] accused that [the] prosecutions evidence utterly fails to prove the crime charged. According to the defense, the essence of Karen Guivencans testimony is that the accused falsified the receipts issued to the customers served by her by changing or altering the

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amounts in the duplicates of the receipts and therefore, her testimony is immaterial and irrelevant as the charge is misappropriation under Art. 315, paragraph (1b) of the Revised Penal Code and there is no allegation whatsoever of any falsification or alteration of amounts in the [i]nformation under which the accused was arraigned and pleaded NOT GUILTY. Accused, thus, maintains that the testimony of Karen Guivencan should therefore not be considered at all as it tended to prove an offense not charged or included in the [i]nformation and would violate [the] accuseds constitutional and statutory right to be informed of the nature and cause of the accusation against her. The Court is not in accord with such posture of the accused.

It would seem that the accused is of the idea that because the crime charged in the [i]nformation is merely [e]stafa and not [e]stafa [t]hru [f]alsification of documents, the prosecution could not prove falsification. Such argumentation is not correct. Since the information charges accused only of misappropriation pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the Court holds that there is no necessity of alleging the falsification in the Information as it is not an element of the crime charged.

Distinction should be made as to when the crimes of Estafa and Falsification will constitute as one complex crime and when they are considered as two separate offenses. The complex crime of Estafa Through Falsification of Documents is committed when one has to falsify certain documents to be able to obtain money or goods from another person. In other words, the falsification is a necessary means of committing estafa. However, if the falsification is committed to conceal the misappropriation, two separate offenses of estafa and falsification are committed. In the instant case, when accused collected payments from the customers, said collection which was in her possession was at her disposal. The falsified or erroneous entries which she made on the duplicate copies of the receipts were contrived to conceal some amount of her collection which she did not remit to the company xxx.[13]

II Testimonial and documentary evidence,being hearsay,

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did not prove petitioners guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt. In discharging this burden, the Prosecutions duty is to prove each and every element of the crime charged in the information to warrant a finding of guilt for that crime or for any other crime necessarily included therein.[14] The Prosecution must further prove the participation of the accused in the commission of the offense. [15]In doing all these, the Prosecution must rely on the strength of its own evidence, and not anchor its success upon the weakness of the evidence of the accused. The burden of proof placed on the Prosecution arises from the presumption of innocence in favor of the accused that no less than the Constitution has guaranteed.[16]Conversely, as to his innocence, the accused has no burden of proof,[17]that he must then be acquitted and set free should the Prosecution not overcome the presumption of innocence in his favor.In other words, the weakness of the defense put up by the accused is inconsequential in the proceedings for as long as the Prosecution has not discharged its burden of proof in establishing the commission of the crime charged and in identifying the accused as the malefactor responsible for it.

Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of petitioner for the estafa charged in the information?

To establish the elements of estafaearlier mentioned, the Prosecution presented the testimonies of Go and Guivencan, and various documentsconsisting of: (a) the receipts allegedly issued by petitioner to each of her customers upon their payment, (b) the ledgers listing the accounts pertaining to each customer with the corresponding notations of the receipt numbers for each of the payments, and (c) the confirmation sheets accomplished by Guivencan herself.[18]The ledgers and receipts were marked and formally offered as Exhibits B to YY, and their derivatives, inclusive.

On his part, Go essentially described for the trial court the various duties of petitioner as Footluckers sales representative. On her part, Guivencan conceded having no personal knowledge

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of the amounts actually received by petitioner from the customersor remitted by petitioner to Footluckers.This means that persons other than Guivencan prepared Exhibits B to YY and their derivatives, inclusive,and that Guivencan based her testimony on the entries found in the receipts supposedly issued by petitioner and in the ledgers held by Footluckers corresponding to each customer, as well as on the unsworn statements of some of the customers. Accordingly, her being the only witness who testified on the entries effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioners misappropriation or conversion through cross-examination by petitioner. The denial of that opportunity rendered theentire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused.

To elucidate why the Prosecutions hearsay evidence was unreliable and untrustworthy, and thus devoid of probative value, reference is made toSection 36 of Rule 130, Rules of Court, a rule that states that a witness can testify only to those facts that she knows of her personal knowledge; that is, which are derived from her own perception, except as otherwise provided in the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft ofpersonal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value not from the credit accorded to her as a witness presently testifying but from the veracity and competency of the extrajudicial source of her information.

In case a witness is permitted to testify based on what she has heard another person say about the facts in dispute, the person from whom the witness derived the information on the facts in dispute is not in court and under oath to be examined and cross-examined. The weight of such testimony thendepends not upon theveracity of the witness but upon the veracity of the other person giving the information to the witness without oath. The information cannot be tested because the declarant is not standing in court as a witness andcannot, therefore, be crossexamined.

It is apparent, too, that a person who relates a hearsay is not obliged to enter into any particular, to answer any question, to solve any difficulties, to reconcile any contradictions, to

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explain any obscurities, to remove any ambiguities; and that she entrenches herself in the simple assertion that she was told so, and leaves the burden entirely upon the dead or absent author.[19] Thus, the rule against hearsay testimony rests mainly on the ground that there was no opportunity to cross-examine the declarant.[20] The testimony may have been given under oath and before a court of justice, but if it is offered against a party who is afforded no opportunity to crossexamine the witness, it is hearsay just the same.[21]

Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of inference, and, therefore, the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies that he heard the accused say that the complainant was a thief, this testimony is admissible not to prove that the complainant was really a thief, but merely to show that the accused uttered those words.[22] This kind of utterance ishearsay in character but is not legal hearsay.[23]The distinction is, therefore, between (a) the fact that the statement was made, to which the hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies.[24]

Section 36, Rule 130 of the Rules of Court is understandably not the only rule that explains why testimony that is hearsay should be excluded from consideration. Excluding hearsay also aims to preserve the right of the opposing party to cross-examine the originaldeclarant claiming to have a direct knowledge of the transaction or occurrence.[25]If hearsay is allowed, the right stands to be denied because the declarant is not in court.[26]It is then to be stressed that the right to crossexamine the adverse partys witness,

being the only means of testing the credibility of witnesses and their testimonies, is essential to the administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a dispute while also safeguardinga partys right to cross-examine her adversarys witness,the Rules of Court offers two solutions. The firstsolution is to require that allthe witnesses

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in a judicial trial or hearing be examined only in courtunder oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes this solution,viz:

Section 1. Examination to be done in open court. - The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1a)

The secondsolution is to require that all witnesses besubject to the cross-examination by the adverse party. Section 6, Rule 132 of the Rules of Courtensuresthis solutionthusly:

Section 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a)

Although the second solution traces its existence to a Constitutional precept relevant to criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which guarantees that: In all criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the witnesses face to face xxx, the rule requiring the cross-examination by the adverse party equally applies to non-criminal proceedings.

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We thus stress that the rule excluding hearsay as evidence is based upon serious concerns about the trustworthiness and reliability of hearsay evidence due to its not being given under oath or solemn affirmation and due to its not being subjected to crossexamination by the opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability the worth of the out-of-court statement depends.[27]

Based on the foregoing considerations, Guivencans testimony as well as Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioners misappropriation or conversion.

III Lack of their proper authentication rendered Exhibits B to YY and their derivatives inadmissible as judicial evidence

Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to YY, and their derivatives, inclusive, despite their being private documents that were not duly authenticated as required by Section 20, Rule 132 of the Rules of Court.

Section 19, Rule 132 of the Rules of Courtdistinguishes between a public document and a private document for the purpose of their presentation in evidence, viz:

Section 19. Classes of documents. For the purpose of their presentation in evidence, documents are either public or private.

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Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments, and

(c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private.

The nature of documents as either public or private determines how the documents may be presented as evidence in court. A public document, by virtue of its official or sovereign character, or because it has been acknowledged before a notary public (except a notarial will) or a competent public official with the formalities required by law, or because it is a public record of a private writing authorized by law, is self-authenticating and requires no further authentication in order to be presented as evidence in court.In contrast, a private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the document is an ancient one within the context of Section 21,[28] Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party;[29](c) when thegenuineness and authenticity of the document

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have been admitted;[30] or (d) when the document is not being offered as genuine.[31]

There is no question that Exhibits B to YY and their derivatives were private documents because private individuals executed or generated them for private or business purposes or uses. Considering that none of the exhibits came under any of the four exceptions, they could not be presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to their authentication in the manner provided in Section20 of Rule 132 of the Rules of Court,viz:

Section 20. Proof of private documents. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

The Prosecutionattempted to have Go authenticate the signature of petitioner in various receipts, to wit: ATTY. ABIERA: Q. Now, these receipts which you mentioned which do not tally with the original receipts, do you have copies of these receipts? A. Yes, I have a copy of these receipts, but its not now in my possession. Q. But when asked to present those receipts before this Honorable Court, can you assure this (Next Page)

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ATTY ABIERA (continuing): Honorable Court that you will be able to present those receipts? A. Yes. Q. You are also familiar with the signature of the accused in this case, Anna Lerima Patula? A. Yes. Q. Why are you familiar with the signature of the accused in this case? A. I used to see her signatures in the payroll and in the receipts also. Q. Okay, I have here a machine copy of a receipt which we would present this,or offer the same as soon as the original receipts can be presented, but for purposes only of your testimony, Im going to point to you a certain signature over this receipt number FLDT96 20441, a receipt from Cirila Askin, kindly go over the signature and tell the Honorable Court whether you are familiar with the signature? A. Yes, that is her signature. INTERPRETER: Witness is pointing to a signature above the printed word collector. (Next Page) ATTY. ABIERA: Q. Is this the only receipt wherein the name, the signature rather, of the accused in this case appears? A. That is not the only one, there are many receipts. ATTY. ABIERA: In order to save time, Your Honor, we will just be presenting the original receipts Your Honor, because its quite voluminous, so we will just forego with the testimony of the witness but we will just present the same using the testimony of another witness, for purposes of identifying the signature of the accused. We will request that this signature which has been identified to by the witness in this case be marked, Your Honor, with the reservation to present the original copy and present the same to offer as our exhibits but for the meantime, this is only for the purposes of recording, Your Honor, which we request the same, the receipt which has just been identified awhile ago be marked as our Exhibit A You Honor. COURT: Mark the receipt as Exhibit A. ATTY. ABIERA: And the signature be bracketed and be marked as Exhibit A-1. (Next Page) COURT: Bracket the signature &mark it as Exh. A-1. What is the number of that receipt?

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ATTY. ABIERA: Receipt No. 20441 dated August 4, 1996 the statement that: received from Cirila Askin.[32] xxx

As the excerpts indicate, Gos attempt at authentication of the signature of petitioner on the receipt with serial number FLDT96 No. 20441 (a document that was marked as Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1) immediately fizzled out after the Prosecution admitted that the document was a meremachinecopy, not the original. Thereafter, as if to soften its failed attempt, the Prosecution expressly promised to produce at a later date the originalsof the receipt with serial number FLDT96 No. 20441 and other receipts. But that promise was not even true, because almost in the same breath the Prosecution offered to authenticate the signature of petitioner on the receiptsthrougha different witness (though then still unnamed). As matters turned out in the end, the effort to have Go authenticate both themachinecopy of the receiptwith serial number FLDT96 No. 20441 and the signature of petitioner on that receipt was wasteful because the machine copy was inexplicablyforgotten and was no longer evenincluded in the Prosecutions Offer of Documentary Evidence.

It is true that the original of the receipt bearing serial number FLDT96 No. 20441was subsequentlypresented as Exhibit Bthrough Guivencan. However,the Prosecution did not establishthat the signature appearing on Exhibit B was the same signature that Go had earliersought to identify to be the signature of petitioner (Exhibit A-1) on the machine copy (Exhibit A). This is borne out by the fact that the Prosecution abandoned Exhibit A as the marking nomenclature for the machine copyof the receipt bearing serial number FLDT96 No. 20441 for all intents and purposes of this case, and used the same nomenclature to referinstead toan entirely differentdocument entitled List of Customers covered by ANA LERIMA PATULA w/difference in Records as per Audit duly verified March 16-20, 1997.

In her case, Guivencans identification of petitioners signature on two receipts based alone on the fact that the signatures contained the legible family name of Patula was ineffectual, and

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exposed yet another deep flaw infecting the documentary evidence against petitioner. Apparently, Guivencan could not honestly identify petitioners signature on the receipts either because she lacked familiarity with such signature, or because she had not seen petitioner affix her signature on the receipts, as the following excerpts from her testimony bear out:

ATTY. ZERNA to witness: Q. There are two (2) receipts attached here in the confirmation sheet, will you go over these Miss witness? This was the last payment which is fully paid by the customer. The other receipt is the one showing her payment prior to the last payment.

A.

COURT: Q. A. Q. A. Where did you get those two (2) receipts? From the customer. And who issued those receipts? The saleswoman, Miss Patula.

ATTY. ZERNA: We pray, Your Honor, that this receipt identified be marked as Exhibit B-3, receipt number 20441.

(Next Page)

COURT: Mark it. ATTY. ZERNA: The signature of the collector be marked as Q. By the way, there is a signature above the name of the collector, are your familiar with that signature? (shown to witness)

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A. Q. A. Q. A. Q. A.

Yes. Whose signature is that? Miss Patula. How do you know? It can be recognized because of the word Patula. Are you familiar with her signature? Yes.

ATTY. ZERNA: We pray that the signature be bracketed and marked as Exhibit B-3-a COURT: Mark it. ATTY. ZERNA: The other receipt number 20045 be marked as Exhibit B-4 and the signature as Exhibit B-4-a. COURT: Mark it.[33]

xxx

ATTY. ZERNA: Q. Ms. Witness, here is a receipt colored white, number 26603 issued to one Divina Cadilig. Will you please identify this receipt if this is the receipt of your office? A.Yes. Q.There is a signature over the portion for the collector. Whose signature is this?

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A.Ms. Patula. Q.How do you know that this is her signature? A.Because we can read the Patula.[34]

We also have similar impressions of lack of proper authentication as to the ledgers the Prosecution presented to prove the discrepancies between the amountspetitioner hadallegedly received from the customers and the amounts she had actually remitted to Footluckers. Guivencanexclusively relied on the entries of the unauthenticated ledgersto support her audit report on petitioners supposed misappropriation or conversion, revealing her lack of independent knowledge of the veracity of the entries, as the following excerpts of her testimony show:

ATTY. ZERNA to witness: Q. What is your basis of saying that your office records showed that this Cecilia Askin has an account of P10,791.75?

ATTY. DIEZ: The question answers itself, You Honor, what is the basis, office record. COURT: Let the witness answer. WITNESS: A. I made the basis on our ledger in the office. I just copied that and showed it to the customers for confirmation.

ATTY. ZERNA to witness: Q. What about the receipts?

COURT:

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Make a follow-up question and what was the result when you copied that amount in the ledger and you had it confirmed by the customers, what was the result when you had it confirmed by the customers? WITNESS: A. She has no more balance but in our office she has still a balance of P10,971.75.

ATTY. ZERNA to witness: Q. Do you have a-whats the basis of saying that the balance of this customer is still P10,971.75

(Next Page)

ATTY. ZERNA (continuing): [i]n your office? COURT: That was already answered paero, the office has a ledger. Q. A. Now, did you bring the ledger with you? No, Maam.[35]

(Continuation of the Direct Examination of Karen Guivencan on August 13, 2002)

ATTY. ZERNA to witness: Q. Okay, You said there are discrepancies between the original and the duplicate, will you please enlighten the Honorable Court on that discrepancy which you said?

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A.

Like in this case of Cirila Askin, she has already fully paid. Her ledger shows a zero balance she has fully paid while in the original

(Next page)

WITNESS (continuing): [r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-one Pesos and Seventy-five Centavos (10,791.75). COURT: Q. A. What about the duplicate receipt, how much is indicated there? The customer has no duplicate copy because it was already forwarded to the Manila Office. What then is your basis in the entries in the ledger showing that it has already a zero balance? This is the copy of the customer while in the office, in the original receipt she has still a balance. xxx ATTY. ZERNA: The confirmation sheet ---

Q.

A.

COURT: The confirmation sheet was the one you referred to as the receipt in your earlier testimony? Is that what you referred to as the receipts, the original receipts? A. This is what I copied from the ledger.

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Q.

So where was that(sic) original receipt which you said showed that that particular customer still has a balance of Ten Thousand something? The receipt is no longer here. You mean the entry of that receipt was already entered in the ledger?

A. Q.

A.

Yes.[36]

In the face of the palpable flaws infecting the Prosecutions evidence, it should come as no surprise that petitioners counsel interposed timely objections. Yet, the RTC mysteriously overruled the objections and allowedthe Prosecutionto present the unauthenticated ledgers, as follows:

(Continuation of the Direct Examination of Witness Karen Guivencan on September 11, 2002)

ATTY. ZERNA:

CONTINUATION OF DIRECT-EXAMINATION

Ms. Witness, last time around you were showing us several ledgers. Where is it now? It is here. Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is her account in your office?

A Q

ATTY. DIEZ:

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Your Honor please before the witness will proceed to answer the question, let me interpose our objection on the ground that this ledger has not been duly identified to by the person who made the same. This witness will be testifying on hearsay matters because the supposed ledger was not identified to by the person who made the same. COURT: Those ledgers were already presented in the last hearing. I think they were already duly identified by this witness. As a matter of fact, it was she who brought them to court

(Next Page)

COURT (cont.): because these were the ledgers on file in their office. ATTY. DIEZ That is correct, Your Honor, but the person who made the entries is not this witness, Your Honor. How do we know that the entries there is (sic) correct on the receipts submitted to their office. COURT: Precisely, she brought along the receipts also to support that. Let the witness answer. WITNESS: A Its the office clerk in-charge.

COURT: The one who prepared the ledger is the office clerk. ATTY. ZERNA: She is an auditor, Your Honor. She has been qualified and she is the auditor of Footluckers.

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COURT: I think, I remember in the last setting also, she testified where those entries were taken. So, you answer the query of counsel. xxx

ATTY. DIEZ: Your Honor please, to avoid delay, may I interpose a continuing objection to the questions profounded(sic) on those ledgers on the ground that, as I have said, it is hearsay.

COURT: Okey(sic). Let the continuing objection be noted.

(To Witness) The clerk who allegedly was the one who prepared the entries on those ledgers, is she still connected with Footluckers?

She is no longer connected now, Your Honor,

COURT: Alright proceed.

(Next Page)

ATTY. ZERNA: Your Honor, these are entries in the normal course of business. So, exempt from the hearsay rule.

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COURT: Okey(sic), proceed.[37]

The mystery shrouding the RTCs soft treatment of the Prosecutions flawed presentation was avoidable simply by the RTC adhering to the instructions of the rules earlier quoted, as well as withSection 22 of Rule 132 of the Rules of Court,which contains instructions on how to prove the genuineness of a handwriting in a judicial proceeding, as follows:

Section 22. How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (Emphases supplied)

If it is already clear that Go and Guivencan had not themselves seen the execution or signing of the documents,the Prosecution surely did not authenticate ExhibitsB to YY and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft of probative value as evidence. That was the onlyfair and just result, as the Court held in Malayan Insurance Co., Inc. v. Philippine Nails and Wires Corporation:[38]

On the first issue, petitioner Malayan Insurance Co., Inc., contends that Jeanne Kings testimony was hearsay because she had no personal knowledge of the execution of the documents supporting respondents cause of action, such as the sales contract, invoice, packing list, bill of lading, SGS Report, and the Marine Cargo Policy. Petitioner avers that even though King was personally assigned to handle and monitor the importation of Philippine Nails and Wires Corporation,

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herein respondent, this cannot be equated with personal knowledge of the facts which gave rise to respondents cause of action. Further, petitioner asserts, even though she personally prepared the summary of weight of steel billets received by respondent, she did not have personal knowledge of the weight of steel billets actually shipped and delivered.

At the outset, we must stress that respondents cause of action is founded on breach of insurance contract covering cargo consisting of imported steel billets. To hold petitioner liable, respondent has to prove, first, its importation of 10,053.400 metric tons of steel billets valued at P67,156,300.00, and second, the actual steel billets delivered to and received by the importer, namely the respondent. Witness Jeanne King, who was assigned to handle respondents importations, including their insurance coverage, has personal knowledge of the volume of steel billets being imported, and therefore competent to testify thereon. Her testimony is not hearsay, as this doctrine is defined in Section 36, Rule 130 of the Rules of Court.However, she is not qualified to testify on the shortage in the delivery of the imported steel billets. She did not have personal knowledge of the actual steel billets received. Even though she prepared the summary of the received steel billets, she based the summary only on the receipts prepared by other persons. Her testimony on steel billets received was hearsay. It has no probative value even if not objected to at the trial.

On the second issue, petitioner avers that King failed to properly authenticate respondents documentary evidence. Under Section 20, Rule 132, Rules of Court, before a private document is admitted in evidence, it must be authenticated either by the person who executed it, the person before whom its execution was acknowledged, any person who was present and saw it executed, or who after its execution, saw it and recognized the signatures, or the person to whom the parties to the instruments had previously confessed execution thereof. In this case, respondent admits that King was none of the aforementioned persons. She merely made the summary of the weight of steel billets based on the unauthenticated bill of lading and the SGS report. Thus, the summary of steel billets actually received had no proven real basis, and Kings testimony on this point could not be taken at face value.

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xxx Under the rules on evidence, documents are either public or private. Private documents are those that do not fall under any of the enumerations in Section 19, Rule 132 of the Rules of Court.Section 20of the same law, in turn, provides that before any private document is received in evidence, its due execution and authenticity must be proved either by anyone who saw the document executed or written, or by evidence of the genuineness of the signature or handwriting of the maker. Here, respondents documentary exhibits are private documents. They are not among those enumerated in Section 19, thus, their due execution and authenticity need to be proved before they can be admitted in evidence.With the exception concerning the summary of the weight of the steel billets imported, respondent presented no supporting evidence concerning their authenticity. Consequently, they cannot be utilized to prove less of the insured cargo and/or the short delivery of the imported steel billets. In sum, we find no sufficient competent evidence to prove petitioners liability.

That the Prosecutions evidence was left uncontested because petitioner decided not to subject Guivencan to cross-examination, and did not tender her contrary evidencewas inconsequential. Although the trial court had overruled the seasonable objections to Guivencans testimony bypetitioners counsel due to the hearsay character, it could not be denied thathearsay evidence, whether objected to or not, had no probative value. [39]Verily, the flaws of the Prosecutions evidence were fundamental and substantive, not merely technical and procedural, and were defects that the adverse partys waiver of her cross-examination or failure to rebutcould not set right or cure. Nor did the trial courts overruling of petitioners objections imbue the flawed evidence with any virtue and value.

Curiously, the RTC excepted the entries in the ledgers from the application of the hearsay rule by also terselystating that the ledgers were prepared in the regular course of business.[40]Seemingly, the RTC applied Section 43, Rule 130 of the Rules of Court, to wit:

Section 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.

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This was another grave error of the RTC.The terse yet sweeping mannerof justifying the application of Section 43 was unacceptable due to the need to show the concurrence of the several requisites before entries in the course of business could be excepted from the hearsay rule. The requisites are as follows:

(a) The person who made the entry must be dead or unable to testify;

(b) The entries were made at or near the time of the transactions to which they refer;

(c) The entrant was in a position to know the facts stated in the entries;

(d) The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral, or religious;

(e) The entries were made in the ordinary or regular course of business or duty. [41]

The Court has to acquit petitioner for failure of the State to establish her guilt beyond reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge must rigidly test the States evidence of guilt in order to ensure that such evidence adhered to the basic rules of admissibility before pronouncing an accused guilty of the crime charged upon such evidence. The failure of the judge to do so herein nullified the guarantee of due of process of law in favor of the accused, who had no obligation to prove her innocence. Heracquittal should follow.

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IV No reliable evidence on damage

Conformably with finding the evidence of guilt unreliable, the Court declares that the disposition by the RTC ordering petitioner to indemnify Footluckers in the amount of P131,286.92 with interest of 12% per annum until fully paid was not yet shown to be factually founded. Yet, she cannot now be absolved of civil liability on that basis. Heracquittal has to bedeclared as without prejudice to the filing of a civil action against her for the recovery of any amount that she may still owe to Footluckers.

WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision convicting ANNA LERIMA PATULAof estafa as charged, and ACQUITS her for failure of the Prosecution to prove her guilt beyond reasonable doubt, without prejudice to a civil action brought against her for

the recoveryof any amount still owing in favor of Footluckers Chain of Stores, Inc.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN Associate Justice

WE CONCUR:

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RENATO C. CORONA Chief Justice Chairperson

TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

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RENATO C. CORONA Chief Justice

[1] [2]

Rollo, p. 22. TSN, September 15, 2000; March 7 and 30, 2001. [3] TSN, April 4, 2002; August 13, 2002; September 11, 2002; September 12, 2002; and November 20, 2002. [4] TSN, September 11, 2002, pp. 3-7 [5] Rollo, p. 23-27. [6] Id., p. 27. [7] Id., p. 40. [8] Id., p. 43. [9] Id., pp. 45-46. [10] Id., p. 10. [11] People v. Manalili, G. R. No. 121671, August 14, 1998, 294 SCRA 220, 252; People v. Ortega, Jr., GR No. 116736, July 24, 1997, 276 SCRA 166, 187; People v. Guevarra, G.R. No. 66437, December 4, 1989, 179 SCRA 740, 751; Matilde, Jr. v. Jabson, No. L-38392, December 29, 1975, 68 SCRA 456, 261; United States v. Campo, No. 7321, 23 Phil. 368, 371-372 (1912). [12] Barrameda v. Court of Appeals, G.R. No. 96428, September 2, 1999, 313 SCRA 477, 484. [13] Rollo, pp. 41-42 (bold emphasis supplied). [14] Andaya v. People, G.R. No. 168486, June 27, 2006, 493 SCRA 539, 556-557. [15] People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578, 592. [16] Section 14, (2), Article III (Bill of Rights). [17] People v. Arapok, G.R. No. 134974, December 8, 2000, 347 SCRA 479, 498. [18] Supra, at note 1. [19] 5 Moran, Comments on the Rules of Court, 1963 Edition, pp. 267-268; citing Coleman v. Southwick, 9 Johnson (N.Y.), 45, 50, 6 Am. Dec. 253. [20] Id., citing Minea v. St. Louis Corp., 179 Mo. A., 705, 716, 162 S.W. 741. [21] Id., p. 268. [22] Wigmore, Sec. 1766; Tracys Handbook, 62 Ed., pp. 220-221. [23] Id. [24] 20 Am Jur 404. [25] People v. Pagkaliwagan, 76 Phil. 457, 460 (1946). [26] Donnelly v. United States, 228 US 243. [27] Gulam v. Santos,G.R. No. 151458, August 31, 2006, 500 SCRA 463, 473. [28] Section 21. When evidence of authenticity of private document not necessary. - Where a private document is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22 a)

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[29]

Section 8, Rule 8, Rules of Court, which states: Section 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)
[30]

Section 4, Rule 129, Rules of Court, which provides: Section 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) [31] Section 20, Rule 132, Rules of Court. [32] TSN, September 15, 2000, pp. 13-16. [33] TSN, August 13, 2002, pp. 15-16. [34] TSN, September 11, 2002, p. 9. [35] TSN, April 4, 2002, pp. 20-21. [36] TSN, August 13, 2002, pp. 10-14. [37] TSN, September 11, 2002, pp. 3-7 [38] G.R. No. 138084, April 10, 2002, 380 SCRA 374, 378-379. [39] Id., citing Eugenio v. Court of Appeals, G.R. No. 103737, December 15, 1994, 239 SCRA 207, 220. [40] Rollo, p. 42. [41] II Regalado, Remedial Law Compendium, Ninth Edition, p. 652.

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FIRST DIVISION

WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND JOVENCIO PERECHE, SR., Petitioners,

G.R. No. 184800 Present: PUNO, C.J., Chairperson, CARPIO MORALES, LEONARDO-DE CASTRO, BERSAMIN, and VILLARAMA, JR., JJ.

- versus -

REGIONAL TRIAL COURT OF Promulgated: MAKATI, BRANCH 149, and JESSIE JOHN P. GIMENEZ, Respondents. May 5, 2010 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: Via a petition for Certiorari and Prohibition, petitioners Wonina M. Bonifacio, et al. assail the issuances of Branch 149 of the Regional Trial Court (RTC) of Makati (public respondent) Order[1] of April 22, 2008 which denied their motion to quash the Amended Information indicting them for libel, and Joint Resolution[2] of August 12, 2008 denying reconsideration of the first issuance. Private respondent Jessie John P. Gimenez[3] (Gimenez) filed on October 18, 2005, on behalf of the Yuchengco Family (in particular, former Ambassador Alfonso Yuchengco and Helen Y. Dee (Helen) and of the Malayan Insurance Co., Inc. (Malayan),[4] a criminal complaint,[5] before the Makati City Prosecutors Office, for thirteen (13) counts of libel under Article 355 in relation to Article 353 of the Revised Penal Code (RPC) against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova Santos, who are officers of Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina Bonifacio, Elvira Cruz, Cornelio Zafra, Vicente Ortueste, Victoria Gomez Jacinto, Jurencio Pereche, Ricardo Loyares and Peter Suchianco, who are trustees of PEPCI, Trennie Monsod, a member of PEPCI (collectively, the accused), and a certain John Doe, the administrator of the website www.pepcoalition.com. PEPCI appears to have been formed by a large group of disgruntled planholders of Pacific Plans, Inc. (PPI) a wholly owned subsidiary of Great Pacific Life Assurance Corporation, also

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owned by the Yuchengco Group of Companies (YGC) who had previously purchased traditional pre-need educational plans but were unable to collect thereon or avail of the benefits thereunder after PPI, due to liquidity concerns, filed for corporate rehabilitation with prayer for suspension of payments before the Makati RTC. Decrying PPIs refusal/inability to honor its obligations under the educational pre-need plans, PEPCI sought to provide a forum by which the planholders could seek redress for their pecuniary loss under their policies by maintaining a website on the internet under the address of www.pepcoalition.com. Gimenez alleged that PEPCI also owned, controlled and moderated on the internet a [6] blogspot under the website address www.pacificnoplan.blogspot.com, as well as a yahoo egroup[7] at no2pep2010@yahoogroups.com. These websites are easily accessible to the public or by anyone logged on to the internet. Gimenez further alleged that upon accessing the above-stated websites in Makati on various dates from August 25 to October 2, 2005, he was appalled to read numerous articles [numbering 13], maliciously and recklessly caused to be published by [the accused] containing highly derogatory statements and false accusations, relentlessly attacking the Yuchengco Family, YGC, and particularly, Malayan.[8] He cited an article which was posted/published on www.pepcoalition.com on August 25, 2005 which stated: Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong pagbagsak ng negotiation because it was done prematurely since we had not file any criminal aspect of our case. What is worse is that Yuchengcos benefited much from the nego. x x x . That is the fact na talagang hindi dapat pagtiwalaan ang mga Yuchengcos. LETS MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN COURT, BSP AND AMLC AND WHEREVER. Pumunta tayong muli sa senado, congreso, RCBC Plaza, and other venues to air our grievances and call for boycott ng YGC. Let us start within ourselves. Alisin natin ang mga investments and deposits natin sa lahat ng YGC and I mean lahat and again convince friends to do the same. Yung mga nanonood lang noon ay dapat makisali na talaga ngayon specially those who joined only after knowing that there was a negotiation for amicable settlements.

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FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE READY FOR IT BECAUSE THEY HAD SUCCESSFULLY LULL US AND THE NEXT TIME THEY WILL TRY TO KILL US NA. x x x [9] (emphasis in the original) By Resolution of May 5, 2006,[10] the Makati City Prosecutors Office, finding probable cause to indict the accused, filed thirteen (13) separate Informations[11]charging them with libel. The accusatory portion of one Information, docketed as Criminal Case No. 06-876, which was raffled off to public respondent reads: That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of Parents Enabling Parents Coalition and as such trustees they hold the legal title to the website www.pepcoalition.com which is of general circulation, and publication to the public conspiring, confederating and mutually helping with one another together with John Does, did then and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further purpose exposing the complainant to public hatred and contempt published an article imputing a vice or defect to the complainant and caused to be composed, posted and published in the said website www.pepcoalition.com and injurious and defamatory article as follows: Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong pagbagsak ng negotiation. x x x x x x xxx For sure may tactics pa silang nakabasta sa atin. Let us be ready for it because they had successfully lull us and the next time they will try to kill us na. x x x A copy of the full text of the foregoing article as published/posted in www.pepcoalition.com is attached as Annex F of the complaint. That the keyword and password to be used in order to post and publish the above defamatory article are known to the accused as trustees holding legal title to the above-cited website and that the accused are the ones

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responsible for the posting and publication of the defamatory articles that the article in question was posted and published with the object of the discrediting and ridiculing the complainant before the public. CONTRARY TO LAW.[12]

Several of the accused appealed the Makati City Prosecutors Resolution by a petition for review to the Secretary of Justice who, by Resolution of June 20, 2007,[13] reversed the finding of probable cause and accordingly directed the withdrawal of the Informations for libel filed in court. The Justice Secretary opined that the crime of internet libel was non-existent, hence, the accused could not be charged with libel under Article 353 of the RPC.[14] Petitioners, as co-accused,[15] thereupon filed on June 6, 2006, before the public respondent, a Motion to Quash[16] the Information in Criminal Case No. 06-876 on the grounds that it failed to vest jurisdiction on the Makati RTC; the acts complained of in the Information are not punishable by law since internet libel is not covered by Article 353 of the RPC; and the Information is fatally defective for failure to designate the offense charged and the acts or omissions complained of as constituting the offense of libel. Citing Macasaet v. People,[17] petitioners maintained that the Information failed to allege a particular place within the trial courts jurisdiction where the subject article was printed and first published or that the offended parties resided in Makati at the time the alleged defamatory material was printed and first published. By Order of October 3, 2006,[18] the public respondent, albeit finding that probable cause existed, quashed the Information, citing Agustin v. Pamintuan.[19] It found that the Information lacked any allegations that the offended parties were actually residing in Makati at the time of the commission of the offense as in fact they listed their address in the complaint-affidavit at Yuchengco Tower in Binondo, Manila; or that the alleged libelous article was printed and first published in Makati. The prosecution moved to reconsider the quashal of the Information,[20] insisting that the Information sufficiently conferred jurisdiction on the public respondent. It cited Banal III v. Panganiban[21] which held that the Information need not allege verbatim that the libelous publication was printed and first published in the appropriate venue. And it pointed out that

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Malayan has an office in Makati of which Helen is a resident. Moreover, the prosecution alleged that even assuming that the Information was deficient, it merely needed a formal amendment. Petitioners opposed the prosecutions motion for reconsideration, contending, inter alia, that since venue is jurisdictional in criminal cases, any defect in an information for libel pertaining to jurisdiction is not a mere matter of form that may be cured by amendment.[22] By Order of March 8, 2007,[23] the public respondent granted the prosecutions motion for reconsideration and accordingly ordered the public prosecutor to amend the Information to cure the defect of want of venue.

The prosecution thereupon moved to admit the Amended Information dated March 20, 2007, the accusatory portion of which reads:
[24]

That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of Parents Enabling Parents Coalition and as such trustees they hold the legal title to the website www.pepcoalition.com which is of general circulation, and publication to the public conspiring, confederating together with John Does, whose true names, identities and present whereabouts are still unknown and all of them mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further purpose exposing the complainant to public hatred and contempt published an article imputing a vice or defect to the complainant and caused to be composed, posted and published in the said website www.pepcoalition.com, a website accessible in Makati City, an injurious and defamatory article, which was first published and accessed by the private complainant in Makati City, as follows: x x x x (emphasis and underscoring in the original; italics supplied)

Petitioners moved to quash the Amended Information[25] which, they alleged, still failed to vest jurisdiction upon the public respondent because it failed to allege that the libelous articles were printed and first published by the accused in Makati; and the prosecution erroneously laid the venue of the case in the place where the offended party accessed the internet-published article.

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By the assailed Order of April 22, 2008, the public respondent, applying Banal III, found the Amended Information to be sufficient in form. Petitioners motion for reconsideration[26] having been denied by the public respondent by Joint Resolution of August 12, 2008, they filed the present petition for Certiorari and Prohibition faulting the public respondent for: 1. NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION ARE NOT PUNISHABLE BY LAW; 2. ADMITTING AN AMENDED INFORMATION WHOSE JURISDICTIONAL ALLEGATIONS CONTINUES TO BE DEFICIENT; and

3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION FOR THE PURPOSE OF CURING JURISDICTIONAL DEFECTS IS ILLEGAL.[27]

With the filing of Gimenezs Comment[28] to the petition, the issues are: (1) whether petitioners violated the rule on hierarchy of courts to thus render the petition dismissible; and (2) whether grave abuse of discretion attended the public respondents admission of the Amended Information. The established policy of strict observance of the judicial hierarchy of courts,[29] as a rule, requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.[30] A regard for judicial hierarchy clearly indicates that petitions for the issuance of extraordinary writs against first level courts should be filed in the RTC and those against the latter should be filed in the Court of Appeals.[31] The rule is not iron-clad, however, as it admits of certain exceptions. Thus, a strict application of the rule is unnecessary when cases brought before the appellate courts do not involve factual but purely legal questions.[32] In the present case, the substantive issue calls for the Courts exercise of its discretionary authority, by way of exception, in order to abbreviate the review process as petitioners raise a pure question of law involving jurisdiction in criminal complaints for libel under Article 360 of the RPC whether the Amended Information is sufficient to sustain a charge for written defamation in light

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of the requirements under Article 360 of the RPC, as amended by Republic Act (RA) No. 4363, reading: Art. 360. Persons responsible.Any person who shall publish, exhibit or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal action and civil action for damages in cases of written defamations, as provided for in this chapter shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published x x x. (emphasis and underscoring supplied)

Venue is jurisdictional in criminal actions such that the place where the crime was committed determines not only the venue of the action but constitutes an essential element of jurisdiction.[33] This principle acquires even greater import in libel cases, given that Article 360, as amended, specifically provides for the possible venues for the institution of the criminal and civil aspects of such cases. In Macasaet,[34] the Court reiterated its earlier pronouncements in Agbayani v. Sayo[35] which laid out the rules on venue in libel cases, viz: For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit: In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to

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whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. (emphasis and underscoring supplied)

It becomes clear that the venue of libel cases where the complainant is a private individual is limited to only either of two places, namely: 1) where the complainant actually resides at the time of the commission of the offense; or 2) where the alleged defamatory article was printed and first published. The Amended Information in the present case opted to lay the venue by availing of the second. Thus, it stated that the offending article was first published and accessed by the private complainant inMakati City. In other words, it considered the phrase to be equivalent to the requisite allegation of printing and first publication. The insufficiency of the allegations in the Amended Information to vest jurisdiction in Makati becomes pronounced upon an examination of the rationale for the amendment to Article 360 by RA No. 4363. Chavez v. Court of Appeals[36] explained the nature of these changes: Agbayani supplies a comprehensive restatement of the rules of venue in actions for criminal libel, following the amendment by Rep. Act No. 4363 of the Revised Penal Code: Article 360 in its original form provided that the venue of the criminal and civil actions for written defamations is the province wherein the libel was published, displayed or exhibited, regardless of the place where the same was written, printed or composed. Article 360 originally did not specify the public officers and the courts that may conduct the preliminary investigation of complaints for libel. Before article 360 was amended, the rule was that a criminal action for libel may be instituted in any jurisdiction where the libelous article was published or circulated, irrespective of where it was written or printed (People v. Borja, 43 Phil. 618). Under that rule, the criminal action is transitory and the injured party has a choice of venue. Experience had shown that under that old rule the offended party could harass the accused in a libel case by laying the venue of the criminal action in a remote or distant place.

261

Thus, in connection with an article published in the Daily Mirror and the Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and Joaquin Roces were charged with libel in the justice of the peace court of San Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil. 933). To forestall such harassment, Republic Act No. 4363 was enacted. It lays down specific rules as to the venue of the criminal action so as to prevent the offended party in written defamation cases from inconveniencing the accused by means of out-of-town libel suits, meaning complaints filed in remote municipal courts (Explanatory Note for the bill which became Republic Act No. 4363, Congressional Record of May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311). x x x x (emphasis and underscoring supplied)

Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge. If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published, as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass. The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenezs premise of equating his first access to the defamatory article on petitioners website inMakati with printing and first publication would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the websites author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website.

262

For the Court to hold that the Amended Information sufficiently vested jurisdiction in the courts of Makati simply because the defamatory article was accessedtherein would open the floodgates to the libel suit being filed in all other locations where the pepcoalition website is likewise accessed or capable of being accessed. Respecting the contention that the venue requirements imposed by Article 360, as amended, are unduly oppressive, the Courts pronouncements in Chavez[37] are instructive: For us to grant the present petition, it would be necessary to abandon the Agbayani rule providing that a private person must file the complaint for libel either in the place of printing and first publication, or at the complainants place of residence. We would also have to abandon the subsequent cases that reiterate this rule in Agbayani, such as Soriano, Agustin, and Macasaet. There is no convincing reason to resort to such a radical action. These limitations imposed on libel actions filed by private persons are hardly onerous, especially as they still allow such persons to file the civil or criminal complaint in their respective places of residence, in which situation there is no need to embark on a quest to determine with precision where the libelous matter was printed and first published. (Emphasis and underscoring supplied.)

IN FINE, the public respondent committed grave abuse of discretion in denying petitioners motion to quash the Amended Information. WHEREFORE, the petition is GRANTED. The assailed Order of April 22, 2008 and the Joint Resolution of August 12, 2008 are hereby SET ASIDE. The Regional Trial Court of Makati City, Br. 149 is hereby DIRECTED TO QUASH the Amended Information in Criminal Case No. 06-876 and DISMISS the case.

SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

263

REYNATO S. PUNO Chief Justice Chairperson

TERESITA J. LEONARDO-DE CASTRO Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

264

[1] [2] [3]

[4]

[5] [6]

[7]

[8] [9] [10] [11] [12] [13] [14]

[15]

[16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30]

Issued by Presiding Judge Cesar Untalan; rollo, pp. 51-52. Id. at 71-72. President of the Philippine Integrated Advertising Agency, Inc. (PIAA), the advertising arm of the Yuchengco Group of Companies (YGC), tasked with preserving the image and good name of the YGC as well as the name and reputation of the Yuchengco Family. A domestic corporation with offices in Binondo, Manila and belonging to the YGC engaged in the non-life insurance protection business which includes fire, marine, motorcar, miscellaneous casualty and personal accident, and surety. Rollo, pp. 269-293. A blog is a type of website usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order and many blogs provide commentary or news on a particular subject; vide http://en.wikipedia.org/wiki/Blog (visited: March 24, 2010). The term Groups refers to an Internet communication tool which is a hybrid between an electronic mailing list and a threaded internet forum where messages can be posted and read by e-mail or on the Group homepage, like a web forum. Members can choose whether to receive individual, daily digest or Special Delivery e-mails, or they can choose to read Group posts on the Groups web site. Groups can be created with public or member-only access; videhttp://en.wikipedia.org/wiki/Yahoo_Groups (visited: March 24, 2010). Rollo, p. 274. Id. at 352. Signed by 1st Assistant City Prosecutor Romulo Nanola, id. at 98-108. Criminal Case Nos. 06-873 885, id. at 467-503. Id. at 119-121. Issued by Justice Secretary Raul M. Gonzalez, id. at 110-118. The Yuchengcos motion for reconsideration of the Justice Secretarys aforesaid resolution has yet to be resolved. The RTC granted the motion of the accused to post bail on recognizance by Order of May 31, 2006. Rollo, pp. 122-155. G.R. No. 156747, February 23, 2005, 452 SCRA 255. Issued by Presiding Judge Cesar Untalan, rollo, pp. 156-163. G. R. No. 164938, August 22, 2005, 467 SCRA 601. Rollo, pp. 590-605. G. R. No. 167474, November 15, 2005, 475 SCRA 164. Rollo, pp. 610-624. Id. at 179-180. Id. at 181-183. Id. at 184-206. Vide Motion for Reconsideration with Prayer to Cancel Arraignment, id. at 53-70. Id. at 17. Id. at 216-268. Pacoy v. Cajigal, G.R. No. 157472, 28 September 2007, 534 SCRA 338, 346. Sarsaba v. Vda. de Te, G.R. No. 175910, July 30, 2009, 594 SCRA 410.

265

[31]

[32] [33]

[34] [35] [36] [37]

Miaque v. Patag, G.R. Nos. 170609-13, January 30, 2009, 577 SCRA 394, 397 citing Chavez v. National Housing Authority, G.R. No. 164527, 15 August 2007, 530 SCRA 235, 285 citing People v. Cuaresma, G.R. No. 133250, 9 July 2002, 384 SCRA 152. Chua v. Ang, G.R. No. 156164, September 4, 2009, 598 SCRA 229, 239. Macasaet v. People, supra note 17 at 271; Lopez, et al. v. The City Judge, et al., G.R. No. L25795, October 29, 1966, 18 SCRA 616. Vide Macasaet v. People, supra note 17 at 273-274. G.R. No. L-47880, April 30, 1979, 89 SCRA 699. G.R. No. 125813, February 6, 2007, 514 SCRA 279, 285-286. Vide note 36 at 291-292.

266

Republic of the Philippines Supreme Court Manila

THIRD DIVISION

CECILIA U. LEGRAMA, Petitioner,

G.R. No. 178626 Present: PERALTA, J., Acting Chairperson,* ABAD, VILLARAMA, JR.,** MENDOZA, and PERLAS-BERNABE, JJ. Promulgated:

- versus -

SANDIGANBAYAN and PEOPLE OF THEPHILIPPINES, Respondents.

June 13, 2012 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PERALTA, J.: This is a petition for review on certiorari assailing the Decision[1] dated January 30, 2007 of the Sandiganbayan in Criminal Case No. 25204 finding petitioner guilty of the crime of Malversation of Public Funds, and the Resolution[2] dated May 30, 2007 denying petitioners motion for reconsideration.

The factual and procedural antecedents are as follows: On September 5, 1996, the Office of the Provincial Auditor of the Commission on Audit (COA) for the Province of Zambales issued PAO Office No. 96-09[3]directing an Audit Team composed of State Auditor 1 Virginia D. Bulalacao, State Auditor 1 Teresita Cayabyab and Auditing Examiner II Lourdes Castillo, to conduct an examination of the cash and account of petitioner Cecilia Legrama, the Municipal Treasurer of the Municipality of San Antonio, Zambales.

267

After the audit, the COA prepared a Special Cash Examination Report on the Cash and Accounts of Ms. Cecilia U. Legrama[4] dated October 1, 1996. The report contained the findings that petitioners cash accountability was short of P289,022.75 and that there was an unaccounted Internal Revenue Allotment (IRA) in the amount of P863,878.00, thereby showing a total shortage in the amount of P1,152,900.75. Included in the shortage is the amount of P709,462.80, representing the total amount of various sales invoices, chits, vales, and disbursement vouchers,[5] which were disallowed in the audit for lack of supporting documents. From the total amount of the shortage, petitioner was able to restitute the initial amount of P60,000.00,[6]

Consequently, petitioner and Romeo D. Lonzanida (Lonzanida), the Municipal Mayor of San Antonio, Zambales at the time the audit was conducted, were charged in an Information [7] dated December 15, 1998 with the crime of Malversation of Public Funds. The accusatory portion of which reads: That on or about October 1, 1996 and for sometime prior or subsequent thereto, in the Municipality of San Antonio, Province of Zambales, Philippines and within the jurisdiction of this Honorable tribunal, the above named accused ROMEO D. LONZANIDA, being then Municipal Mayor of San Antonio, Zambales, in connivance and conspiracy with co-accused CECILIA U. LEGRAMA, being then Municipal Treasurer of San Antonio, Zambales, who, as such, is accountable for public funds received and/or entrusted to her by reason of her office, both, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, did then and there, wilfully, unlawfully, feloniously and with grave abuse of confidence, take, misappropriate and convert to their personal use and benefit, the amount of P1,152,900.75[8] from such public funds, to the damage of the government, in the aforesaid amount. CONTRARY TO LAW.

Both petitioner and Lonzanida voluntarily surrendered and posted their respective cash bonds.

Upon arraignment, petitioner and Lonzanida pleaded not guilty to the offense charged; hence, trial on the merits ensued.

268

To establish its case, the prosecution presented the testimony of the Audit Team leader, Virginia D. Bulalacao. On the other hand, the defense presented both the testimonies of petitioner and Lonzanida. After the parties have submitted their respective pleadings and evidence, the Sandiganbayan rendered a Decision[9] acquitting Lonzanida. However, the tribunal concluded that petitioner malversed the total amount of P1,131,595.05 and found her guilty of the crime of Malversation of Public Funds and sentenced her accordingly the dispositive portion of the Decision reads:

WHEREFORE, premises considered, for failure of the prosecution to prove his guilt beyond reasonable doubt, accused ROMEO D. LONZANIDA, is hereby acquitted of the instant crime charged. The Hold Departure Order issued against him is hereby ordered lifted. The cash bond which he posted to obtain his provisional liberty is hereby ordered returned to him subject to the usual auditing and accounting procedures. Accused CECILIA U. LEGRAMA is hereby declared guilty beyond reasonable doubt of the crime of Malversation of Public Funds. The amount involved in the instant case is more than Php22,000.00. Hence, pursuant to the provisions of Article 217 of the Revised Penal Code, the penalty to be imposed is reclusion temporal in its maximum period to reclusion perpetua. Considering the absence of any aggravating circumstance and the presence of two mitigating circumstances, viz., accused Legramas voluntary surrender and partial restitution of the amount involved in the instant case, and being entitled to the provisions of the Indeterminate Sentence Law, she is hereby sentenced to suffer an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional, as minimum, to 10 years and 1 day of prision mayor, as maximum. Further, she is ordered to pay the amount of Php299,204.65, representing the balance of her incurred shortage after deducting therein the restituted amount of Php832,390.40 and the Php200.00 covered by an Official Receipt dated August 18, 1996 issued in the name of the Municipality of San Antonio (Exhibit 22). She is also ordered to pay a fine equal to the amount malversed which is Php1,131,595.05 and likewise suffer the penalty of perpetual special disqualification and to pay costs. SO ORDERED.[10]

269

In convicting petitioner of the crime charged against her, the Sandiganbayan concluded that the prosecution established all the elements of the crime of malversation of public funds. Although petitioner was able to restitute the total amount of P832,390.40,[11] petitioner failed to properly explain or justify the shortage in her accountability. However, the same conclusion against petitioners co-accused was not arrived at by the court, considering that there was no evidence presented to prove that he conspired with the petitioner in committing the crime charged. Reconsideration,[12] but

Petitioner

filed

Motion

for

it

was

denied

in

the

Resolution[13] dated May 30, 2007.

Hence, the petition assigning the following errors: I. THE HONORABLE SANDIGANBAYAN ERRED AND GRAVELY ABUSED ITS DISCRETION IN CONVICTING THE ACCUSED CECILIA U. LEGRAMA BEYOND REASONABLE DOUBT OF THE CRIME OF MALVERSATION AND IN DIRECTING THE ACCUSED TO PAY THE AMOUNT OF PHP299,204.65 AND A FINE EQUAL TO THE AMOUNT MALVERSED WHICH IS PHP1,131,595.05. II. THE HONORABLE SANDIGANBAYAN ERRED AND GRAVELY ABUSED ITS DISCRETION IN CONVICTING THE ACCUSED CECILIA U. LEGRAMA BEYOND REASONABLE DOUBT OF THE CRIME OF MALVERSATION IN NOT FINDING THAT SHE SUCCEEDED TO OVERTHROW THE PRIMA FACIE EVIDENCE OF CONVERSION/MISAPPROPRIATION UNDER ARTICLE 217 OF THE REVISED PENAL CODE AND IN REJECTING HER EXPLANATION AS REGARDS THE VOUCHERS AND VALE.[14]

Petitioner argues that the Sandiganbayan failed to consider the testimonial and documentary exhibits presented to support her claim that she did not appropriate or misappropriate for her use and benefit the subject fund nor did she allow her co-accused to use the said fund without the proper acknowledgment such as receipts, vales or sign chits. Petitioner maintains that she has satisfactorily explained the shortage on the basis of the documentary evidence submitted.

270

As for her failure to make the necessary liquidation of the amount involved, petitioner posits that this is not attributable to her, considering that before she could make the proper liquidation, she was already relieved from duty and was prevented by the COA team from entering her office. On its part, respondent maintains that petitioners failure to account for the shortage after she was demanded to do so is prima facie proof that she converted the missing funds to her personal use. It insists that the prosecution has sufficiently adduced evidence showing that all the elements of the crime of Malversation of public funds are present in the instant case and that it was proper for the Sandiganbayan to convict her of the crime charged.

The petition is bereft of merit.

Malversation of public funds is defined and penalized in Article 217 of the Revised Penal Code, which reads: Art. 217. Malversation of public funds or property; Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall, otherwise, be guilty of the misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed 200 pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos. 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

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In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facieevidence that he has put such missing funds or property to personal use.

Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property.[15] The essential elements common to all acts of malversation under Article 217 of the Revised Penal Code are: (a) (b) (c) (d) That the offender be a public officer; That he had the custody or control of funds or property by reason of the duties of his office; That those funds or property were public funds or property for which he was accountable; and That he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them.

More importantly, in malversation of public funds, the prosecution is burdened to prove beyond reasonable doubt, either by direct or circumstantial evidence, that the public officer appropriated, misappropriated or consented, or through abandonment or negligence, permitted another person to take public property or public funds under his custody. Absent such evidence, the public officer cannot be held criminally liable for malversation. Mere absence of funds is not sufficient proof of conversion; neither is the mere failure of the public officer to turn over the funds at any given time sufficient to make even the prima facie case. In fine, conversion must be proved. However, an accountable officer may be convicted of malversation even in the absence of direct proof of misappropriation so long as there is evidence of shortage in his account which he is unable to explain.[16]

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Under Article 217, a presumption was installed that upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property with which said officer is accountable should be prima facie evidence that he had put such missing funds or properties to personal use. When these circumstances are present, a presumption of law arises that there was malversation of public funds or properties as decreed by Article 217.[17] To be sure, this presumption is disputable and rebuttable by evidence showing that the public officer had fully accounted for the alleged cash shortage.

In the case at bar, after the government auditors discovered the shortage and informed petitioner of the same,[18] petitioner failed to properly explain or justify the shortage that was subject to her accountability. Petitioner denied that she put the amount involved to personal use and presented various sales invoice, chits, vale forms, and disbursement voucher to prove her claim.[19] Petitioner even went further by testifying that the total amount of P681,000.00 appearing in a disbursement voucher[20]were cash advances given to the mayor during the height of the Mt. Pinatubo eruption. However, the date when the eruption occurred was way before the period subject of the audit. As aptly found by the court a quo: This Court takes judicial notice that the Mt. Pinatubo erupted in June 1991, and has not erupted again up to the present. As stated earlier, the COA audit conducted on the account of accused Legrama covers the financial transactions of the municipality from June 24, 1996 to September 4, 1996. Therefore, the said cash advances, which accused Legrama confirmed were given to accused Lonzanida during the height of the Mt. Pinatubo eruption, which occurred five years before the subject audit, are not expenses of the municipality during the period of audit covered in the instant case. As it is, it has been disallowed by the COA for lack of necessary supporting papers. Even if the said disbursement voucher had been completely accomplished, and granting that all the necessary supporting documents had been attached thereto, it would nonetheless be disallowed because it covers a transaction which is not subject of the audit.[21] xxxx In her defense, accused Legrama testified that except for the expenses she incurred for her official travels, she did not put the amount involved in the instant case to personal use. As proof of her claim, she produced and painstakingly identified in open court each and every sales invoice, chit, vale and the disbursement voucher which are likewise the evidence of the prosecution marked as Exhibits B-3 to B-3NN (Exhibits 1 to 1-NN) and in addition, presented various sales

273

invoice, chit and vale form marked as Exhibits 3 to 72, all in the total amount of Php1,169,099.22, an amount more than what is involved in the instant indictment.[22] To reiterate, the subject of the audit from which the instant case stemmed from are financial transactions of the municipality from June 24, 1996 to September 4, 1996. Therefore, official receipts, chits or vales, even if they are in the name of the municipality, but nonetheless issued to it for transactions as far back as the year 1991 are immaterial to the instant case. It is sad and even deplorable that accused Legrama, in an attempt to extricate herself from liability, tried to deceive this Court in this manner. Having obtained a degree in Bachelor of Science Major in Accounting and being the municipal treasurer for eight (8) years, accused Legrama is presumed to be aware that she knowingly attempted to deceive this Court.[23]

Undoubtedly, all the elements of the crime are present in the case at bar. First, it is undisputed that petitioner was the municipal treasurer at the time material to this case. Second, it is the inherent function of petitioner, being the municipal treasurer, to take custody of and exercise proper management of the local governments funds.Third, the parties have stipulated during the pre-trial of the case that petitioner received the subject amount as public funds[24] and that petitioner is accountable for the same.[25] Fourth, petitioner failed to rebut the prima facie presumption that she has put such missing funds to her personal use.

Verily, in the crime of malversation of public funds, all that is necessary for conviction is proof that the accountable officer had received the public funds and that he failed to account for the said funds upon demand without offering sufficient explanation why there was a shortage. In fine, petitioners failure to present competent and credible evidence that would exculpate her and rebut the prima facie presumption of malversation clearly warranted a verdict of conviction.

As for the appropriate penalty, since the amount involved is more than P22,000.00, pursuant to the provisions of Article 217 of the Revised Penal Code, the penalty to be imposed is reclusion temporal in its maximum period to reclusion perpetua.

However, as aptly concluded by the Sandiganbayan, petitioner enjoys the mitigating circumstances of voluntary surrender and restitution. Although restitution is akin to voluntary surrender,[26] as provided for in paragraph 7[27] of Article 13, in relation to paragraph 10[28] of the

274

same Article of the Revised Penal Code, restitution should be treated as a separate mitigating circumstance in favor of the accused when the two circumstances are present in a case, which is similar to instances where voluntary surrender and plea of guilty are both present even though the two mitigating circumstances are treated in the same paragraph 7, Article 13 of the Revised Penal Code.[29] Considering that restitution is also tantamount to an admission of guilt on the part of the accused, it was proper for the Sandiganbayan to have considered it as a separate mitigating circumstance in favor of petitioner.

Taking into consideration the absence of any aggravating circumstance and the presence of two mitigating circumstance, i.e., petitioners voluntary surrender and partial restitution of the amount malversed,[30] the prescribed penalty is reduced to prision mayor in its maximum period to reclusion temporal in its medium period, which has a range of ten (10) years and one (1) day to seventeen (17) years and four (4) months. In accordance with paragraph 1, Article 64 of the Revised Penal Code[31] and considering that there are no other mitigating circumstance present, the maximum term should now be the medium period of prision mayor maximum toreclusion temporal medium, which is reclusion temporal minimum and applying the Indeterminate Sentence Law, the minimum term should be anywhere within the period of prision correccional maximum to prision mayor medium. Hence, the penalty imposed needs modification. Accordingly, petitioner is sentenced to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to twelve (12) years, five (5) months and eleven (11) days of reclusion temporal, as maximum.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated January 30, 2007 and the Resolution dated May 30, is 2007 of the Sandiganbayan to suffer the

are AFFIRMED with MODIFICATION. Petitioner

hereby

sentenced

indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional, as minimum term, to twelve (12) years, five (5) months and eleven (11) days of reclusion temporal, as maximum term. SO ORDERED.

275

DIOSDADO M. PERALTA Associate Justice

WE CONCUR:

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE CATRAL MENDOZA Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

DIOSDADO M. PERALTA Associate Justice Third Division, Acting Chairperson

CERTIFICATION

276

I certify that the conclusion in the above Division had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTIONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Per Special Order No. 228 dated June 6, 2012. Designated as Acting Member in lieu of Associate Justice Presbitero J. Velasco, Jr. per Special Order No. 1229 dated June 6, 2012. [1] Penned by Associate Justice Ma. Cristina G. Cortez-Estrada, with Associate Justices Roland B. Jurado and Teresita V. Diaz-Baldos, concurring; rollo, pp. 20-62. [2] Id. at 64-66. [3] Records, Vol. I, p. 252. [4] Id. at 140-250. [5] Id. at 190-230. [6] Id. at 248. [7] Id. at 1-2. [8] See rollo, p. 21. [9] Id. at 20-63. [10] Id. at 61-62. [11] Id. at 31. [12] Records, Vol. II, pp. 463-472. [13] Rollo, pp. 64-66. [14] Id. at 8-9. [15] Pondevida v. Sandiganbayan, G.R. Nos. 160929-31, August 16, 2005, 467 SCRA 219, 241-242. [16] Id. at 242-243. [17] Wa-acon v. People, G.R. No. 164575, December 6, 2006, 510 SCRA 429, 437. [18] Records, Vol. I, pp. 250-251. [19] Id. at 190-230. [20] Id. at 230. [21] Rollo, pp. 56-57. [22] Id. at 58. [23] Id. at 59. [24] Records, Vol. I, p. 57. [25] Section 340 of the Local Government Code reads: SECTION 340. Persons Accountable for Local Government Funds. Any officer of the local government unit whose duty permits or requires the possession or custody of local government funds shall be accountable and responsible for the safekeeping thereof in conformity with the provisions of this Title. Other local officers who, though not accountable by the nature of their
**

277

duties, may likewise be similarly held accountable and responsible for local government funds through their participation in the use or application thereof. [26] Navarro v. Meneses III, CBD Adm. Case No. 313, January 30, 1998, 285 SCRA 586, 594. [27] Art 13. Mitigating circumstances. The following are mitigating circumstances: xxxx 7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. [28] Art 13. Mitigating circumstances. The following are mitigating circumstances: xxxx 10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned. [29] Supra note 27. [30] See Perez v. People, G.R. No. 164763, February 12, 2008, 544 SCRA 532, 566; also Duero v. People, G.R. No. 162212, January 30, 2007, 513 SCRA 389. [31] Article 64. Rules for the application of penalties which contain three periods. - In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of articles 76 and 77, the courts shall observe for the application of the penalty the following rules, according to whether there are or are no mitigating or aggravating circumstances: 1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. x x x x.