Criminal law is that branch of municipal law which defines crimes, treats of their nature and provides for

their punishment. It is that branch of public substantive law which defines offenses and prescribes their penalties. It is substantive because it defines the states right to inflict punishment and the liability of the offenders. It is public law because it deals with the relation of the individual with the state. Limitations on the power of Congress to enact penal laws 1. Must be general in application. 2. Must not partake of the nature of an ex post facto law. 3. Must not partake of the nature of a bill of attainder. 4. Must not impose cruel and unusual punishment or excessive fines. Characteristics of Criminal Law 1. Generality of criminal law means that the criminal law of the country governs all persons within the country regardless of their race, belief, sex, or creed. However, it is subject to certain exceptions brought about by international agreement. Ambassadors, chiefs of states and other diplomatic officials are immune from the application of penal laws when they are in the country where they are assigned. Note that consuls are not diplomatic officers. This includes consul-general, viceconsul or any consul in a foreign country, who are therefore, not immune to the operation or application of the penal law of the country where they are assigned. Consuls are subject to the penal laws of the country where they are assigned. It has no reference to territory. Whenever you are asked to explain this, it does not include territory. It refers to persons that may be governed by the penal law. 2. Territoriality means that the penal laws of the country have force and effect only within its territory. It cannot penalize crimes committed outside the same. This is subject to certain exceptions brought about by international agreements and practice. The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere. Terrestrial jurisdiction is the jurisdiction exercised over land. Fluvial jurisdiction is the jurisdiction exercised over maritime and interior waters. Aerial jurisdiction is the jurisdiction exercised over the atmosphere. The Archipelagic Rule All bodies of water comprising the maritime zone and interior waters abounding different islands comprising the Philippine Archipelago are part of the Philippine territory regardless of their breadth, depth, width or dimension. On the fluvial jurisdiction there is presently a departure from the accepted International Law Rule, because the Philippines adopted the Archipelagic Rule. In the International Law Rule, when a strait within a country has a width of more than 6 miles, the center lane in excess of the 3 miles on both sides is considered international waters. Q: If a foreign merchant vessel is in the center lane and a crime was committed there, under the International Law Rule, what law will apply? A: The law of the country where that vessel is registered will apply, because the crime is deemed to have been committed in the high seas. Under the Archipelagic Rule as declared in Article 1, of the Constitution, all waters in the archipelago regardless of breadth width, or dimension are part of our national territory. Under this Rule, there is no more center lane, all these waters, regardless of their dimension or width are part of Philippine territory. So if a foreign merchant vessel is in the center lane and a crime was committed, the crime will be prosecuted before Philippine courts. Three international law theories on aerial jurisdiction (1) The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order. Under this theory, if a crime is committed on board a foreign aircraft at the atmosphere of a country, the law of that country does not govern unless the crime affects the national security. (2) Relative Theory The subjacent state exercises jurisdiction over its atmosphere only to the extent that it can effectively exercise control thereof. The Relative Theory Under this theory, if a crime was committed on an aircraft which is already beyond the control of the subjacent state, the criminal law of that state will not govern anymore. But if the crime is committed in an aircraft within the atmosphere over a subjacent state which exercises control, then its criminal law will govern. (3) Absolute Theory The subjacent state has complete jurisdiction over the atmosphere above it subject only to innocent passage by aircraft of foreign country. Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can establish that it is within the Philippine atmosphere, Philippine criminal law will govern. This is the theory adopted by the Philippines.

3. PROSPECTIVITY This is also called irretrospectivity. Acts or omissions will only be subject to a penal law if they are committed after a penal law had already taken effect. Vice-versa, this act or omission which has been committed before the effectivity of a penal law could not be penalized by such penal law because penal laws operate only prospectively. In some textbooks, an exemption is said to exist when the penal law is favorable to the offender, in which case it would have retroactive application; provided that the offender is not a habitual delinquent and there is no provision in the law against its retroactive application. The exception where a penal law may be given retroactive application is true only with a repealing law. If it is an original penal law, that exception can never operate. What is contemplated by the exception is that there is an original law and there is a repealing law repealing the original law. It is the repealing law that may be given retroactive application to those who violated the original law, if the repealing penal law is more favorable to the offender who violated the original law. If there is only one penal law, it can never be given retroactive effect. Rule of prospectivity also applies to administrative rulings and circulars In Co v. CA, decided on October 28, 1993, it was held that the principle of prospectivity of statutes also applies to administrative rulings and circulars. In this case, Circular No. 4 of the Ministry of Justice, dated December 15, 1981, provides that where the check is issued as part of an arrangement to guarantee or secure the payment of an obligation, whether pre-existing or not, the drawer is not criminally liable for either estafa or violation of BP22. Subsequently, the administrative interpretation of was reversed in Circular No. 12, issued on August 8, 1984, such that the claim that the check was issued as a guarantee or part of an arrangement to secure an obligation or to facilitate collection, is no longer a valid defense for the prosecution of BP22. Hence, it was ruled in Que v. People that a check issued merely to guarantee the performance of an obligation is, nevertheless, covered by BP 22. But consistent with the principle of prospectivity, the new doctrine should not apply to parties who had relied on the old doctrine and acted on the faith thereof. No retrospective effect. Effect of repeal of penal law to liability of offender In some commentaries, there are references as to whether the repeal is express or implied. What affects the criminal liability of an offender is not whether a penal law is expressly or impliedly repealed; it is whether it is absolutely or totally repealed, or relatively or partially repealed. Total or absolute, or partial or relative repeal. -- As to the effect of repeal of penal law to the liability of offender, qualify your answer by saying whether the repeal is absolute or total or whether the repeal is partial or relative only. A repeal is absolute or total when the crime punished under the repealed law has been decriminalized by the repeal. Because of the repeal, the act or omission which used to be a crime is no longer a crime. An example is Republic Act No. 7363, which decriminalized subversion. A repeal is partial or relative when the crime punished under the repealed law continues to be a crime inspite of the repeal. This means that the repeal merely modified the conditions affecting the crime under the repealed law. The modification may be prejudicial or beneficial to the offender. Hence, the following rule: Consequences if repeal of penal law is total or absolute (1) If a case is pending in court involving the violation of the repealed law, the same shall be dismissed, even though the accused may be a habitual delinquent. This is so because all persons accused of a crime are presumed innocent until they are convicted by final judgment. Therefore, the accused shall be acquitted. (2) If a case is already decided and the accused is already serving sentence by final judgment, if the convict is not a habitual delinquent, then he will be entitled to a release unless there is a reservation clause in the penal law that it will not apply to those serving sentence at the time of the repeal. But if there is no reservation, those who are not habitual delinquents even if they are already serving their sentence will receive the benefit of the repealing law. They are entitled to release. This does not mean that if they are not released, they are free to escape. If they escape, they commit the crime of evasion of sentence, even if there is no more legal basis to hold them in the penitentiary. This is so because prisoners are accountabilities of the government; they are not supposed to step out simply because their sentence has already been, or that the law under which they are sentenced has been declared null and void. If they are not discharged from confinement, a petition for habeas corpus should be filed to test the legality of their continued confinement in jail. If the convict, on the other hand, is a habitual delinquent, he will continue serving the sentence in spite of the fact that the law under which he was convicted has already been absolutely repealed. This is so because penal laws should be given retroactive application to favor only those who are not habitual delinquents.

Question & Answer A, a prisoner, learns that he is already overstaying in jail because his jail guard, B, who happens to be a law student advised him that there is no more legal ground for his continued imprisonment, and B told him that he can go. A got out of jail and went home. Was there any crime committed? As far as A, the prisoner who is serving sentence, is concerned, the crime committed is evasion of sentence. As far as B, the jail guard who allowed A to go, is concerned, the crime committed is infidelity in the custody of prisoners. Consequences if repeal of penal law is partial or relative (1) If a case is pending in court involving the violation of the repealed law, and the repealing law is more favorable to the accused, it shall be the one applied to him. So whether he is a habitual delinquent or not, if the case is still pending in court, the repealing law will be the one to apply unless there is a saving clause in the repealing law that it shall not apply to pending causes of action. (2) If a case is already decided and the accused is already serving sentence by final judgment, even if the repealing law is partial or relative, the crime still remains to be a crime. Those who are not habitual delinquents will benefit on the effect of that repeal, so that if the repeal is more lenient to them, it will be the repealing law that will henceforth apply to them. For example, under the original law, the penalty is six years. Under the repealing law, it is four years. Those convicted under the original law will be subjected to the four-year penalty. This retroactive application will not be possible if there is a saving clause that provides that it should not be given retroactive effect. Under Article 22, even if the offender is already convicted and serving sentence, a law which is beneficial shall be applied to him unless he is a habitual delinquent in accordance with Rule 5 of Article 62. Express or implied repeal. Express or implied repeal refers to the manner the repeal is done. Express repeal takes place when a subsequent law contains a provision that such law repeals an earlier enactment. For example, in Republic Act No. 6425 (The Dangerous Drugs Act of 1972), there is an express provision of repeal of Title V of the Revised Penal Code. Implied repeals are not favored. It requires a competent court to declare an implied repeal. An implied repeal will take place when there is a law on a particular subject matter and a subsequent law is passed also on the same subject matter but is inconsistent with the first law, such that the two laws cannot stand together, one of the two laws must give way. It is the earlier that will give way to the later law because the later law expresses the recent legislative sentiment. So you can have an implied repeal when there are two inconsistent laws. When the earlier law does not expressly provide that it is repealing an earlier law, what has taken place here is implied repeal. If the two laws can be reconciled, the court shall always try to avoid an implied repeal. For example, under Article 9, light felonies are those infractions of the law for the commission of which a penalty of arresto mayor or a fine not exceeding P200.00 or both is provided. On the other hand, under Article 26, a fine whether imposed as a single or an alternative penalty, if it exceeds P6,000.00 but is not less than P 200.00, is considered a correctional penalty. These two articles appear to be inconsistent. So to harmonize them, the Supreme Court ruled that if the issue involves the prescription of the crime, that felony will be considered a light felony and, therefore, prescribes within two months. But if the issue involves prescription of the penalty, the fine of P200.00 will be considered correctional and it will prescribe within 10 years. Clearly, the court avoided the collision between the two articles. Consequences if repeal of penal law is express or implied (1) If a penal law is impliedly repealed, the subsequent repeal of the repealing law will revive the original law. So the act or omission which was punished as a crime under the original law will be revived and the same shall again be crimes although during the implied repeal they may not be punishable. (2) If the repeal is express, the repeal of the repealing law will not revive the first law, so the act or omission will no longer be penalized. These effects of repeal do not apply to self-repealing laws or those which have automatic termination. An example is the Rent Control Law which is revived by Congress every two years. When there is a repeal, the repealing law expresses the legislative intention to do away with such law, and, therefore, implies a condonation of the punishment. Such legislative intention does not exist in a self-terminating law because there was no repeal at all. BASIC MAXIMS IN CRIMINAL LAW Doctrine of Pro Reo

Whenever a penal law is to be construed or applied and the law admits of two interpretations one lenient to the offender and one strict to the offender that interpretation which is lenient or favorable to the offender will be adopted. This is in consonance with the fundamental rule that all doubts shall be construed in favor of the accused and consistent with presumption of innocence of the accused. This is peculiar only to criminal law. Question & Answer One boy was accused of parricide and was found guilty. This is punished by reclusion perpetua to death. Assuming you were the judge, would you give the accused the benefit of the Indeterminate Sentence Law (ISLAW)? The ISLAW does not apply when the penalty imposed is life imprisonment of death. Would you consider the penalty imposable or the penalty imposed, taking into consideration the mitigating circumstance of minority? If you will answer "no", then you go against the Doctrine of Pro Reo because you can interpret the ISLAW in a more lenient manner. Taking into account the doctrine, we interpret the ISLAW to mean that the penalty imposable and not the penalty prescribed by law, since it is more favorable for the accused to interpret the law. Nullum crimen, nulla poena sine lege There is no crime when there is no law punishing the same. This is true to civil law countries, but not to common law countries. Because of this maxim, there is no common law crime in the Philippines. No matter how wrongful, evil or bad the act is, if there is no law defining the act, the same is not considered a crime. Common law crimes are wrongful acts which the community/society condemns as contemptible, even though there is no law declaring the act criminal. Not any law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void. Actus non facit reum, nisi mens sit rea The act cannot be criminal where the mind is not criminal. This is true to a felony characterized by dolo, but not a felony resulting from culpa. This maxim is not an absolute one because it is not applied to culpable felonies, or those that result from negligence. Utilitarian Theory or Protective Theory The primary purpose of the punishment under criminal law is the protection of society from actual and potential wrongdoers. The courts, therefore, in exacting retribution for the wronged society, should direct the punishment to potential or actual wrongdoers, since criminal law is directed against acts and omissions which the society does not approve. Consistent with this theory, the mala prohibita principle which punishes an offense regardless of malice or criminal intent, should not be utilized to apply the full harshness of the special law. In Magno v CA, decided on June 26, 1992, the Supreme Court acquitted Magno of violation of Batas Pambansa Blg. 22 when he acted without malice. The wrongdoer is not Magno but the lessor who deposited the checks. He should have returned the checks to Magno when he pulled out the equipment. To convict the accused would defeat the noble objective of the law and the law would be tainted with materialism and opportunism. DEVELOPMENT OF CRIMINAL LAW IN THE PHILIPPINES Code of Kalantiao If you will be asked about the development of criminal law in the Philippines, do not start with the Revised Penal Code. Under the Code of Kalantiao, there were penal provisions. Under this code, if a man would have a relation with a married woman, she is penalized. Adultery is a crime during those days. Even offending religious things, such as gods, are penalized. The Code of Kalantiao has certain penal provisions. The Filipinos have their own set of penology also. Spanish Codigo Penal When the Spanish Colonizers came, the Spanish Codigo Penal was made applicable and extended to the Philippines by Royal Decree of 1870. This was made effective in the Philippines in July 14, 1876. Who is Rafael Del Pan? He drafted a correctional code which was after the Spanish Codigo Penal was extended to the Philippines. But that correctional code was never enacted into law. Instead, a committee was organized headed by then Anacleto Diaz. This committee was the one who drafted the present Revised Penal Code. The present Revised Penal Code When a committee to draft the Revised Penal Code was formed, one of the reference that they took hold of was the correctional code of Del Pan. In fact, many provisions of the Revised Penal Code were no longer from the Spanish Penal Code; they were lifted from the correctional code of Del Pan. So it was him who formulated or paraphrased this provision making it simpler and more

understandable to Filipinos because at that time, there were only a handful who understood Spanish. Code of Crimes by Guevarra During the time of President Manuel Roxas, a code commission was tasked to draft a penal code that will be more in keeping with the custom, traditions, traits as well as beliefs of the Filipinos. During that time, the code committee drafted the so-called Code of Crimes. This too, slept in Congress. It was never enacted into law. Among those who participated in drafting the Code of Crimes was Judge Guellermo Guevarra. Since that Code of Crimes was never enacted as law, he enacted his own code of crimes. But it was the Code of Crimes that that was presented in the Batasan as Cabinet Bill no. 2. Because the code of crimes prepared by Guevarra was more of a moral code than a penal code, there were several oppositions against the code. Proposed Penal Code of the Philippines Through Assemblyman Estelito Mendoza, the UP Law Center formed a committee which drafted the Penal Code of the Philippines. This Penal Code of the Philippines was substituted as Cabinet Bill no. 2 and this has been discussed in the floor of the Batasang Pambansa. So the Code of Crimes now in Congress was not the Code of Crimes during the time of President Roxas. This is a different one. Cabinet Bill No. 2 is the Penal Code of the Philippines drafted by a code committee chosen by the UP Law Center, one of them was Professor Ortega. There were seven members of the code committee. It would have been enacted into law it not for the dissolution of the Batasang Pambansa dissolved. The Congress was planning to revive it so that it can be enacted into law. Special Laws During Martial Law, there are many Presidential Decrees issued aside from the special laws passed by the Philippine Legislature Commission. All these special laws, which are penal in character, are part of our Penal Code. Different philosophies underlying the criminal law system 1. Classical or Juristic Philosophy 2. Positivit or Realistic Philosophy 3. Ecletic or Mixed Philosophy Classical or Juristic Philosophy Best remembered by the maxim An eye for an eye, a tooth for a tooth. [Note: If you want to impress the examiner, use the latin version Oculo pro oculo, dente pro dente.] The purpose of penalty is retribution. The offender is made to suffer for the wrong he has done. There is scant regard for the human element of the crime. The law does not look into why the offender committed the crime. Capital punishment is a product of this kind of this school of thought. Man is regarded as a moral creature who understands right from wrong. So that when he commits a wrong, he must be prepared to accept the punishment therefore. Positivist or Realistic Philosophy The purpose of penalty is reformation. There is great respect for the human element because the offender is regarded as socially sick who needs treatment, not punishment. Cages are like asylums, jails like hospitals. They are there to segregate the offenders from the good members of society. From this philosophy came the jury system, where the penalty is imposed on a case to case basis after examination of the offender by a panel of social scientists which do not include lawyers as the panel would not want the law to influence their consideration. Crimes are regarded as social phenomena which constrain a person to do wrong although not of his own volition. A tendency towards crime is the product of ones environment. There is no such thing as a natural born killer. This philosophy is criticized as being too lenient. Eclectic or Mixed Philosophy This combines both positivist and classical thinking. Crimes that are economic and social and nature should be dealt with in a positivist manner; thus, the law is more compassionate. Heinous crimes should be dealt with in a classical manner; thus, capital punishment. Since the Revised Penal Code was adopted from the Spanish Codigo Penal, which in turn was copied from the French Code of 1810 which is classical in character, it is said that our Code is also classical. This is no longer true because with the American occupation of the Philippines, many provisions of common law have been engrafted into our penal laws. The Revised Penal Code today follows the mixed or eclectic philosophy. For example, intoxication of the offender is considered to mitigate his criminal liability, unless it is intentional or habitual; the age of the offender is considered; and the woman who killed her child to conceal her dishonor has in her favor a mitigating circumstance.

MALA IN SE AND MALA PROHIBITA Violations of the Revised Penal Code are referred to as malum in se, which literally means, that the act is inherently evil or bad or per se wrongful. On the other hand, violations of special laws are generally referred to as malum prohibitum.

Note, however, that not all violations of special laws are mala prohibita. While intentional felonies are always mala in se, it does not follow that prohibited acts done in violation of special laws are always mala prohibita. Even if the crime is punished under a special law, if the act punished is one which is inherently wrong, the same is malum in se, and, therefore, good faith and the lack of criminal intent is a valid defense; unless it is the product of criminal negligence or culpa. Likewise when the special laws requires that the punished act be committed knowingly and willfully, criminal intent is required to be proved before criminal liability may arise. When the act penalized is not inherently wrong, it is wrong only because a law punishes the same. For example, Presidential Decree No. 532 punishes piracy in Philippine waters and the special law punishing brigandage in the highways. These acts are inherently wrong and although they are punished under special law, the acts themselves are mala in se; thus, good faith or lack of criminal intent is a defense. Distinction between crimes punished under the Revised Penal Code and crimes punished under special laws 1. As to moral trait of the offender In crimes punished under the Revised Penal Code, the moral trait of the offender is considered. This is why liability would only arise when there is dolo or culpa in the commission of the punishable act. In crimes punished under special laws, the moral trait of the offender is not considered; it is enough that the prohibited act was voluntarily done. 2. As to use of good faith as defense In crimes punished under the Revised Penal Code, good faith or lack of criminal intent is a valid defense; unless the crime is the result of culpa In crimes punished under special laws, good faith is not a defense 3. As to degree of accomplishment of the crime In crimes punished under the Revised Penal Code, the degree of accomplishment of the crime is taken into account in punishing the offender; thus, there are attempted, frustrated, and consummated stages in the commission of the crime. In crimes punished under special laws, the act gives rise to a crime only when it is consummated; there are no attempted or frustrated stages, unless the special law expressly penalize the mere attempt or frustration of the crime. 4. As to mitigating and aggravating circumstances In crimes punished under the Revised Penal Code, mitigating and aggravating circumstances are taken into account in imposing the penalty since the moral trait of the offender is considered. In crimes punished under special laws, mitigating and aggravating circumstances are not taken into account in imposing the penalty. 5. As to degree of participation In crimes punished under the Revised Penal Code, when there is more than one offender, the degree of participation of each in the commission of the crime is taken into account in imposing the penalty; thus, offenders are classified as principal, accomplice and accessory. In crimes punished under special laws, the degree of participation of the offenders is not considered. All who perpetrated the prohibited act are penalized to the same extent. There is no principal or accomplice or accessory to consider. Questions & Answers 1. Three hijackers accosted the pilot of an airplane. They compelled the pilot to change destination, but before the same could be accomplished, the military was alerted. What was the crime committed? Grave coercion. There is no such thing as attempted hijacking. Under special laws, the penalty is not imposed unless the act is consummated. Crimes committed against the provisions of a special law are penalized only when the pernicious effects, which such law seeks to prevent, arise. 2. A mayor awarded a concession to his daughter. She was also the highest bidder. The award was even endorsed by the municipal council as the most

advantageous to the municipality. The losing bidder challenged the validity of the contract, but the trial court sustained its validity. The case goes to the Sandiganbayan and the mayor gets convicted for violation of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). He appeals alleging his defenses raised in the Sandiganbayan that he did not profit from the transaction, that the contract was advantageous to the municipality, and that he did not act with intent to gain. Rule. Judgment affirmed. The contention of the mayor that he did not profit anything from the transaction, that the contract was advantageous to the municipality, and that he did not act with intent to gain, is not a defense. The crime involved is malum prohibitum. In the case of People v. Sunico, an election registrar was prosecuted for having failed to include in the voters register the name of a certain voter. There is a provision in the election law which proscribes any person from preventing or disenfranchising a voter from casting his vote. In trial, the election registrar raised as good faith as a defense. The trial court convicted him saying that good faith is not a defense in violation of special laws. On appeal, it was held by he Supreme Court that disenfranchising a voter from casting his vote is not wrong because there is a provision of law declaring it as a crime, but because with or without a law, that act is wrong. In other words, it is malum in se. Consequently, good faith is a defense. Since the prosecution failed to prove that the accused acted with malice, he was acquitted. Test to determine if violation of special law is malum prohibitum or malum in se Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as such? If you remove the law, will the act still be wrong? If the wording of the law punishing the crime uses the word willfully, then malice must be proven. Where malice is a factor, good faith is a defense. In violation of special law, the act constituting the crime is a prohibited act. Therefore culpa is not a basis of liability, unless the special law punishes an omission. When given a problem, take note if the crime is a violation of the Revised Penal Code or a special law. <3 <3 <3 Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior. It is also used to refer to the percentage of former prisoners who are rearrested for a similar offense.[1] The term is most frequently used in conjunction with criminal behavior and substance abuse. (Recidivism is a synonym for "relapse", which is more commonly used in medicine and in the disease model of addiction.) For example, scientific literature may refer to the recidivism of sexual offenders, meaning the frequency with which they are detected or apprehended committing additional sexual crimes after being released from prison for similar crimes.[citation needed] Criminal recidivism is highly correlated with psychopathy.[2][3][4] The psychopath is defined by an uninhibited gratification in criminal, sexual, or aggressive impulses and the inability to learn from past mistakes.[2][3][4] Individuals with this disorder gain satisfaction through their antisocial behavior and lack remorse for their actions.[5] To be counted as recidivism, the re-offending requires voluntary disclosure of arrest and conviction,[citation needed] so the real recidivism rate may differ substantially from reported rates. As another example, alcoholic recidivism might refer to the proportion of people who, after successful treatment, report having, or are determined to have, returned to the abuse of alcohol. Reiteracion or Habituality. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for 2 or more crimes to which it attaches a lighter penalty. (Art. 14, Par. 10) In reiteracion (habituality), it is essential that the offender must have been previously punished, i.e., he must have served, partially or totally, the penalty imposed upon him; that the penalty for the crime for which he was previously punished, must be equal or greater than the penalty for the crime for which he is on trial, or that he had previously been punished for 2 or more offenses the penalty for which is lighter than the penalty prescribed for the offenses for which he is on trial. Reiteracion is discretionary on the court. In reiteracion, the offenses are not embraced in the same title of the Code. To be appreciated, it is necessary to present as evidence certified copies of the sentence rendered against the accused, except when the accused pleads guilty to an information alleging reiteracion. (People v. Monterey, Sept. 3, 1996) The word "delinquent" is used in juvenile court, a court that deals with people under the age of 18 (in the USA). When an adult breaks the law we say that person committed a crime. When a juvenile, or a person under the age of 18, breaks the law, we say they committed an act of delinquency or a delinquent act. Habitual delinquency refers to a juvenile who has a habit, or a repeated pattern, of breaking the law. Some states may have specific laws that says if a person is

found to in violation of the law more than "x" amount of times then they are classified as being habitual delinquents. Quasi-recidivism The Revised Penal Code provides for the appropriate penalty in case a person commits another crime during the service of penalty imposed for another previous offense. Article 160 reads: Article 160. Commission of another crime during service of penalty imposed for another previous offense - Penalty. - Besides the provisions of rule 5 of article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of seventy years if he shall have already served out his original sentence, or when he shall complete it after reaching the said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency. Quasi-recidivism exists when the accused, at the time of the commission of the offense, was serving a sentence for a previous conviction. Quasi-recidivism has for its effect the punishment of the accused with the maximum period of the penalty prescribed by law for the new felony, and cannot be offset by an ordinary mitigating circumstance. (People vs. Layson, G.R. No. L-25177, 31 October 1969) RA 9344, Sec 6 SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. Taking a cue from the Court of Appeals, we shall first distinguish between entrapment and instigation. Entrapment is sanctioned by the law as a legitimate method of apprehending criminals. Its purpose is to trap and capture lawbreakers in the execution of their criminal plan. Instigation, on the other hand, involves the inducement of the would-be accused into the commission of the offense. In such a case, the instigators become co-principals themselves.[23] Where the criminal intent originates in the mind of the instigating person and the accused is lured into the commission of the offense charged in order to prosecute him, there is instigation and no conviction may be had. Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, even after a person acted as a decoy for the state, or public officials furnished the accused an opportunity for the commission of the offense, or the accused was aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no instigation and the accused must be convicted. The law in fact tolerates the use of decoys and other artifices to catch a criminal.[24] The distinction between entrapment and instigation has proven to be very relevant in anti-narcotics operations. It has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders.[25] This Court, elaborating on the concept of a buy-bust operation within the context of entrapment and instigation, has said: A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid means of arresting violators of the Dangerous Drugs Law. It is commonly employed by police officers as an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. Its opposite is instigation or inducement, wherein the police or its agent lures the accused into committing the offense in order to prosecute him. Instigation is deemed contrary to public policy and considered an absolutory cause. x x x.[26] Instigation is recognized as a valid defense that can be raised by an accused. To use this as a defense, however, the accused must prove with sufficient evidence that the government induced him to commit the offense.[27] Legaspi claims that she was induced into committing the crime as charged, as she was the one approached by San Andres, who was then looking to buy shabu. We find, however, that Legaspis defense of instigation must fail. It is an established rule that when an accused is charged with the sale of illicit drugs, the following defenses cannot be set up: (1) that facilities for the commission of the crime were intentionally placed in his way; or (2) that the criminal act was done at the solicitation of the decoy or poseur-buyer seeking to expose his criminal act; or

(3) that police authorities feigning complicity in the act were present and apparently assisted in its commission. [28] The foregoing are especially true in that class of cases where the offense is the kind that is habitually committed, and the solicitation merely furnished evidence of a course of conduct. Mere deception by the police officer will not shield the perpetrator, if the offense was committed by him free from the influence or the instigation of the police officer.[29] In the case at bar, the police officers, after receiving a report of drug trafficking from their confidential informant, immediately set-up a buy-bust operation to test the veracity of the report and to arrest the malefactor if the report proved to be true. The prosecution evidence positively showed that Legaspi agreed to sell ?200.00 worth of shabu to San Andres, who was then posing as a buyer. Legaspi was never forced, coerced, or induced to source the prohibited drug for San Andres. In fact, San Andres did not even have to ask her if she could sell him shabu. Legaspi was merely informed that he was also a scorer; and as soon as she learned that he was looking to buy, she immediately asked him how much he needed. Under the circumstances, the police officers were not only authorized but were under an obligation to arrest Legaspi even without an arrest warrant as the crime was committed in their presence.[30] The RTC was correct in upholding the testimonies of the prosecution witnesses and in applying the presumption of regularity in the performance of duty by the police officers, especially since Legaspi failed to impute on them any motive to falsely testify against her.[31] Unless there is clear and convincing evidence that the members of the buy-bust operation team were inspired by improper motive or did not properly perform their duty, their testimonies on the operation deserve full faith and credit.[32] Furthermore, when Legaspi testified in court, her defense was one of denial and not instigation. While instigation is a positive defense, it partakes of the nature of a confession and avoidance.[33] In instigation, the crime is actually performed by the accused, except that the intent originates from the mind of the inducer.[34] Thus, it is incompatible with the defense of denial, where the theory is that the accused did not commit the offense at all. Instigation and denial, therefore, cannot be present concurrently. Besides, this Court has consistently held that: [B]are denials are weak forms of defenses, especially in this case where the accused-appellants testimony was not substantiated by clear and convincing evidence. The uncorroborated denial by the accused-appellant cannot prevail over the testimonies of the arresting officer and the poseur-buyer, who both testified on affirmative matters. Furthermore, there is no indication that the arresting team and the other prosecution witnesses were actuated by improper motives, prevaricating just to cause damnation to him. Thus, their affirmative statements proving accusedappellants culpability must be respected and must perforce prevail.[35] x x x." <3 <3 <3 ART. 17. PRINCIPALS I. There are three kinds of principals depending on the nature of their participation in the commission of the crime. However, irrespective of what type of principal they belong, their penalty will be the same. They are the following: A. Principal by Direct Participation B. Principal by Indespensable Cooperation C. Principal by Inducement A. BY DIRECT PARTICIPATION (PDP) I. INTRODUCTION : A. This refers to those who actually and directly take part in the execution of the act. In all crimes there must always be those who actually perform the act which brings about the crime. They may be only one person or more. Whenever there are two or more involved in a crime, it becomes necessary to find out those who actually executed the act so that all may be held equally liable. B. To hold two or more persons as principals by direct participation, it must be shown that there exists a conspiracy between and among them. This is not the conspiracy punished as a crime but the conspiracy as a mode or manner of incurring criminally or that legal relationship whereby, in the eyes of the law, it may be said that the act of any one is the act of all. II. For conspiracy to exist, there be an intentional felony, not a culpable felony, and it must be proved that all those to be considered as PDPs performed the following: A. ( Unity of Intention) They participated, agreed, or concurred in the criminal design, intent or purposes or resolution. 1. This participation may be prior to the actual execution of the acts which produced the crime ( Anterior Conspiracy ) or it may be at the very moment the acts are actually being executed and carried out ( Instant Conspiracy). 2. Hence it is not necessary to prove that before the commission of the crime, the several accused actually came and met together to plan or discuss the commission of the crime. 3. Spontaneous agreement or active cooperation by all perpetrators at the moment of the commission of the crime is sufficient to create a joint criminal responsibility ( Sim Jr. vs. CA, 428 SCRA 459)

B. (Unity of Action ). All participated in the execution or carrying out of the common intent, design, purpose or objective by acts intended to bring about the common objective. 1. Each must have performed an act, no matter how small or insignificant so long as it was intended to contribute to the realization of the crime conspired upon. This requires that the principal by direct participation must be at the crime scene, except in the following instances: a). When he is the mastermind b). When he orchestrates or directs the actions of the others from some other place c). His participation or contribution was already accomplished prior to the actual carrying out of the crime conspired such: his role was to conduct surveillance or to obtain data or information about the place or the victims; to purchase the tools or weapons, or the get away vehicle, or to find a safe house d). His role/participation is to be executed simultaneously but elsewhere, such as by crating a diversion or in setting up a blocking force e). His role/participation is after the execution of the main acts such as guarding the victim; looking for a buyer of the loot; laundering the proceeds of the crime III. Participation in both ( Intention and Action) is necessary because: A. Mere knowledge, acquiescence or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime, with a view to the furtherance of the criminal design and purpose. Conspiracy transcends companionship B. He who commits the same or similar acts on the victim but is a stranger to the conspiracy is separately liable. Simultaneous acts by several persons do not automatically give rise to conspiracy. C. Examples: 1. X joined in the planning of the crime but was unable to join his companions on the day of the crime because he was hospitalized. He is not liable. 2. X is the common enemy of A and B who are strangers to one another. Both A and B chanced upon X. A stabbed X while B shot him. A and B will have individual liabilities. D. Exception: When a person joins a conspiracy after its formation, he thereby adopts the previous acts of the conspirators which are admissible against him. This is under the Principle of Conspiracy by Adoption. IV. Proof of Conspiracy A. Direct proof of conspiracy is not necessary. The existence thereof maybe inferred under the Doctrine of Implied Conspiracy which directs that if two or more persons: (i). Aimed by their acts towards the accomplishment of the same unlawful object (ii). Each doing a part so that their acts, though apparently independent, were in fact connected and cooperative (iii). Indicating a closeness of personal association and a concurrence of sentiment (iv).A conspiracy maybe inferred though no actual meeting among them to concert is proved. V. Effect of Conspiracy. There will be a joint or common or collective criminal liability, otherwise each will be liable only to the extent of the act done by him. VI. For what crime will the co-conspirators be liable? A. For the crime actually committed if it was the crime agreed upon B. For any other crime even if not agreed upon, provided it was the direct, natural, logical consequence of, or related to, or was necessary to effect, the crime agreed upon. Otherwise only the person who committed the different crime will be held liable.

VII. When is a co-conspirator freed from liability? A. Only if he has performed an overt act either to: 1. Disassociate or detach himself from the plan 2. Prevent the commission of the second or different or related crime B. Likewise, if for any reason not attributable to the law enforcement agents, he was not able to proceed to the crime scene and/or execute an act to help realize the common objective, then he can not be held liable as a co-conspirator. Thus he is not liable if he got sick, overslept, or forgot about it, but not when law agents took him into custody to prevent him from doing his part of the agreement. Thus in Robbery with Homicide, all who conspired in the robbery will be liable for the homicide unless one of the conspirators proved he tried to prevent the homicide. B. PRINCIPALS BY INDUCEMENT (PI) I. Concept: Those who induce (PDP) to commit a crime either by: (a) force (b). inducement II. The use of force involves the application of either: A. Active force or material force upon the person of the PDP, resulting to serious bodily injury, to such a degree that the PDP is left with no choice but to do as ordered or

B. Instilling fear of the commission or infliction of an equal or greater injury or evil either to the PDP or the latters family or even to a third person. The PDP may set up the use of force as an exempting circumstance. III. Inducement connotes that there was an agreement or conspiracy between the PI and the PDP. The inducement assumes several forms such as the following: A. By the giving of a price, promise or reward. This must be made with the intention of procuring the commission of the crime and not as an expression of appreciation. The same must be the sole reason for the commission of the crime. This also serves as an aggravating circumstance which will affect both the giver and the recipient. B. By giving Words of Command. 1. The utterer must have an ascendancy or influence over the PDP, or is one entitled to obedience from the PDP 2. The words must be so direct, so efficacious, so powerful and persistently made, as to amount to physical or moral force 3. Must be made directly with the intention of procuring the commission of the crime and is therefore the determining cause and it thus precedes the crime 4. They do not include thoughtless or imprudent utterances. Mere advises, counsel or suggestions or exhortations. C. By the use of Inciting Words. These are words uttered while a crime is going on by one who is present and are directed to a participant in the crime, such as the words sige pa, kick him, kill him, bugbugin mo. The following must however be considered 1. Whether the words were uttered by one with moral ascendancy over the accused and to whom obedience is due from the accused 2. Whether the utterances were the result of the excitement generated by the situation or that the utterer was caught up in his own excitement or emotion, or whether the uttrerer was coolly and deliberately uttering such words with the intention that they be acted upon 3. Whether the crime would be committed anyway even without the utterances, or if such utterances were the moving cause of the crime D. By earnest and persistent solicitation or cajoling amounting to moral force by one with authority or influence over the accused C. PRINCIPALS BY INDISPENSABLE COOPERATION ( PIC) I. Refers to those who cooperate in the commission of the offense by another act without which it would not have been accomplished. There must be a community of design or common purpose between the PIC and the PDP, but not a conspiracy. The PIC knows or is aware of the intention or purpose of the PDP and he cooperates or concurs in its realization by performing an act without which the offense would not have been accomplished. II. The cooperation may be: A. By moral cooperation such as (i) providing technical advise, expertise on how to execute the crime such as on how to avoid security arrangements (ii) revealing the combination numbers of a bank vault, or the location of warning devices (iii) revealing the whereabouts of a victim: B. By Physical external acts such as: 1. Providing the weapon or tools, or the key to open the building 2. Providing the mode of transportation to enable the accused to reach the place of the scene of the crime 3. Dragging he victim to the place of execution 4. Leaving open the doors, giving the key to open the building 5. Holding on to a victim to preventing him victim from resisting or drawing a weapon 6. Holding back a person from going to the assistance of a victim C. Through Negligent Acts such as 1. The bank employee who failed to ascertain the identity of the presenter of a check and who initials it 2. The guarantor who failed to ascertain the identity of the holder of a check presented for encashment 3. A security guard whose laxity enabled a killer to enter the compound and kill an occupant therein ART. 18. ACCOMPLICES I. Concept: Those persons who, not being included in article 17, cooperate in the execution of the offense by previous or simultaneous acts They are also referred to as the Accessories Before the Fact. II. There is no conspiracy between the accomplice and the PDP but there is community of design between them i.e the accomplice knows and is aware of the intent, purpose or design of the PDP. He then concurs, or approves of the intent of the PDP by cooperating in the accomplishment of the purpose through an assistance given the PDP. III. The cooperation of the accomplice is not indispensable in that the crime would still be accomplished even without his cooperation. His cooperation or assistance may facilitate or make easier the commission the crime but the crime would still be accomplished anyway. The acts of the accomplice must however be related to the acts of the PDP but they merely show that the accomplice agrees, approves or concurs with what the PDP intends to do or what he has done.

IV. The cooperation may be in the following forms: A. Moral as in word of encouragement or advises B. Through external acts which are either previous or simultaneous to the execution of the criminal acts, such as : 1. Giving of additional weapons or ammunition or a faster mode of transportation, or food to the accused 2. Blocking, or tripping a person who intends to assist the victim 3. Throwing stones, spitting, kicking, or delivering a blow, at the victim 4. Continuing to choke the victim after seeing that a deadly or fatal blow had been inflicted on the victim Note: The act of the accomplice should not be more fatal or more deadly or mortal than that delivered by the PDP Example: (PP. vs. Cual, Mach 9, 2000). X and the victim Y were fighting and grappling for the possession of a steel pipe. B arrived and hacked at Y who ran away. X stood by while B pursued Y and killed him. Is X an accomplice? V. Distinction between an Accomplice and a Principal By Indispensable Cooperation. A. The acts of an accomplice are not indispensable to the consummation of the offense in that the crime would still be consumated even without his cooperation, whereas the cooperation of the PIC is one without which the offense would not have been accomplished B. There is no conspiracy between the accomplice and the PDP but which exist between the PIC and the PDP C. Example: PP. vs. Roland Garcia: Jan. 15, 2002 FACTS: In a case of kidnapping for ransom, the police arrested the accused who received the money from the wife of the victim. They learned the victim was kept in a house. The police proceeded to the house where they surprised X and Y who were seated and who tried to enter a room to get guns. The two were not among the four who actually kidnapped the victim. The victim was found in a room handcuffed and blindfolded. QUESTION: What is the criminal liability of X and Y? HELD: At the time X and Y were caught, the victim had already been rendered immobile, his eyes blindfolded and his hands handcuffed. He could not have gone elsewhere and escaped. It is clear X and Y were merely guarding the house for purpose of either helping the other accused in facilitating the successful denoument of the crime or repelling any attempt to rescue the victim. They thus cooperated in the execution of the offense by previous and/or simultaneous acts by means of which they aided or facilitated the execution of the crime but without indispensable act for its accomplishment. They are merely accomplices. A co-conspirator us distinguished from an accomplice, thus: Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principal reached the decision and only then do they agree to cooperate in its execution. Conspirators decided that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether te crime should be committed; they merely assent tot eh plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense. Further, the crime could have been accomplished even without the participation of X and Y. In some exceptional cases, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of he crime wasof minor character. NOTE: Had it been that the victim as not immobilized and could still escape, then X and Y would be considered as principals as they would still be considered as detaining and preventing the escape f the victim. ART. 19 ACCESSORIES I. Introduction: A. They are referred to as the Accessories Proper or the Accessories- After- theFact. This is because their participation in the crime comes only after the crime has been committed by others. It is only then that they enter into the picture. B. Requirement of Scienter: All 3 kinds of accessories require that they must have knowledge of the commission of the crime otherwise they are not liable even if they did an act described in Article 19. II. The First Kind: By profiting themselves or assisting the offender profit by the effects of the crime. A. The effects of the crime includes the property taken as well as the price, promise or reward given as the determining cause of the crime. B. Profiting themselves include any act of dealing with the property including accepting as a gift, donation, security or purchasing it a lower price. The transaction involving the property however must be mutual and voluntary with whosoever the accessory dealt with otherwise he is liable as the principal in theft or robbery.

Example: X pick-pocketed the money stolen by Z from another. X is not an accessory even if he profited himself but is liable for theft. Or if X poked a gun at Z and took the money, he would be liable for robbery. If Z dropped some of the money he stole which X picked up, X is liable for theft not as an accessory. C. Assisting the offender profit includes acts of looking for a buyer, though no commission is received, or of secreting it away or joining in its disposal. D. Relation to Pres. Decree No. 1612 or The Anti Fencing Law 1. If the crimes involve theft or robbery, the acts may be punished as FENCING i.e. the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, etc. or in any manner deal in any article, item, object, or anything of value which he knows or should be known to him, to have been derived from the proceeds of robbery or theft 2. The knowledge (scienter) may be actual or constructive 3. The venue is where the property is found 4. The prior conviction of the thief/robber is not required to convict the fence. But it be proved the property came from robbery/theft, not any other offense such as estafa, malversation, kidnapping. 5. An accessory cannot again be prosecuted for fencing and vise-versa E. If the property was the proceeds of Highway Robbery or Piracy, the dealer is not liable as an accessory but for Violation of P.D. 532 for the crime of Aiding/Abetting Brigands or Pirates

paragraph C if the principal has not yet been placed under the jurisdiction of the authorities. C. Once the principal is later tried but the case against the accessory has not yet been terminated, the trial against the accessory must be suspended to await the out come of the trial against the principal. However the two cases maybe consolidated and tried jointly, if proper. VI. If the principal is acquitted, should the accessory be also acquitted? A. If the principal was acquitted by reason of a justifying circumstance, then the accessory must also be acquitted. B. If the principal was acquitted due to an exempting circumstance, the accessory may still be convicted. C. If the ground is that the guilt was not proven beyond reasonable doubt, the accessory may still be convicted if his acts fall under either paragraph (a) or (b) VII. If the principal dies, may the accessory still be prosecuted? A. Yes, if the act is under either paragraph (a) or (b) B. But if his act falls under paragraph there are two views on the matter. The first view holds that he cannot be prosecuted for in legal contemplation there was no principal whom he assisted. The second view holds that the accessory may still be prosecuted because the death merely extinguished the liability of the principal but the crime remains and the participation of the accessory in it may still be proved. ART. 20. ACCESSORIES EXCEPT FROM CRIMINAL LIABILITY 1. Who are exempt: A. Those who are accessories under paragraph (b) and (c) if the principal is a relative. This is in recognition of the ties of blood and is an absolutory cause. The relatives are the same as those under Article 15 (Relatives by consanguinity within the 4th civil degree are excluded) Note: A person is not liable for defending his blood relatives within the 4th civil degree. But he is liable if he helps them escape or if he destroys the evidence against them. B. Those under paragraph (a) are not exempt because it is presumed what motivated them is greed, rather than ties of blood. C. Accessories to a light offense ---Art. 1. This Code shall take effect on January 1, 1932. Art. 2. Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago including its atmosphere, its interior waters and Maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship; 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or (Some of these crimes are bribery, fraud against national treasury, malversation of public funds or property, and illegal use of public funds; e.g., A judge who accepts a bribe while in Japan.) 5. Should commit any crimes against the national security and the law of nations, defined in Title One of Book Two of this Code. (These crimes include treason, espionage, piracy, mutiny, and violation of neutrality) Rules as to crimes committed aboard foreign merchant vessels: French Rule Such crimes are not triable in the courts of that country, unless their commission affects the peace and security of the territory or the safety of the state is endangered. English Rule Such crimes are triable in that country, unless they merely affect things within the vessel or they refer to the internal management thereof. (This is applicable in the Philippines) two situations where the foreign country may not apply its criminal law even if a crime was committed on board a vessel within its territorial waters and these are: (1)When the crime is committed in a war vessel of a foreign country, because war vessels are part of the sovereignty of the country to whose naval force they belong; (2)When the foreign country in whose territorial waters the crime was committed adopts the French Rule, which applies only to merchant vessels, except when the crime committed affects the national security or public order of such foreign country. Requirements of an offense committed while on a Philippine Ship or Airship Registered with the Philippine Bureau of Customs Ship must be in the high seas or the airship must be in international airspace.

III. The Second Act: By concealing or destroying the body of the crime or the effects or instruments in order to prevent its discovery. A. To conceal or destroy the body of the crime includes all manner of interfering with, or altering the original conditions of the crime scene, or of anything therein which may be considered as evidence, prior to a completion of the evidence gathering by the law enforcers. Examples: 1. Changing the position of the body of the victim 2. Placing a weapon or removing one or replacing a weapon 3. Throwing pieces of evidence as cigarettes butts 4. Washing off the blood stains or cleaning the crime scene 5. Placing a suicide note 6. Making unnecessary foot prints B. The object or purpose must be to prevent the authorities from discovering what truly transpired such as the number and identity of the assailants; how the crime was committed, and all matters related to the solution of the crime and prosecution of the offenders. 1. Thus one who help moved the body not knowing the reason why is not an accessory 2. One who acted out of curiosity or who moved the body for fear of reprisal or of being blamed as the killer is not an accessory IV. The Third Act: By harboring, concealing or assisting in the escape of the principal. A. There are two kinds of accessories under this mode: 1. A Public Officer- he must abuse his public function and the crime by the principal maybe any crime. If there was no abuse then he will be considered as a private person. Example: The Mayor hides a suspect in his office to prevent identification or provides a false alibi for him 2. A Private Person- the principal must be guilty of treason, parricide, murder, attempt on the life of the chief executive, or is habitually guilty of some other crime. B. Meaning of the term guilty. For purposes of charging a person as an accessory, the term does not mean a judicial pronouncement of guilt but means probably guilty of. But where the court later finds that the crime committed by the principal is not any of the enumerated offenses, then the private person who assisted him escape is not an accessory. C. The acts include (i) giving of material help such as food, money or clothing (ii) providing shelter, a safe house or hideaway (iii) providing a mode of transportation (iv) providing disguises, false identification papers, as well as by (v) refusing to cooperate with the authorities or to identify the principal or (vi) giving disinformation or false data D. Under Pres. Decree No. 1829, the same act maybe punished as Obstruction of Justice - the crime committed by any person who assist in the escape of a person who committed any crime. V. May the Accessory be tried and declared guilty ahead of the principal? A. As a rule the answer is no because of the principle that the liability of the Accessory is Subordinate to that of the Principal. There must first be a person convicted as a principal before there can be an accessory. B. However, the accessory maybe prosecuted ahead of the principal even if the principal has not yet been identified or arrested or has surrendered if: First; the act of the accessory is under either paragraph (a) or (b) or Second; even under

Under international law rule, a vessel which is not registered in accordance with the laws of any country is considered a pirate vessel and piracy is a crime against humanity in general, such that wherever the pirates may go, they can be prosecuted. US v. Bull A crime which occurred on board of a foreign vessel, which began when the ship was in a foreign territory and continued when it entered into Philippine waters, is considered a continuing crime. Hence within the jurisdiction of the local courts. As a general rule, the Revised Penal Code governs only when the crime committed pertains to the exercise of the public officials functions, those having to do with the discharge of their duties in a foreign country. The functions contemplated are those, which are, under the law, to be performed by the public officer in the Foreign Service of the Philippine government in a foreign country. Exception: The Revised Penal Code governs if the crime was committed within the Philippine Embassy or within the embassy grounds in a foreign country. This is because embassy grounds are considered an extension of sovereignty. Paragraph 5 of Article 2, use the phrase as defined in Title One of Book Two of this Code. This is a very important part of the exception, because Title I of Book 2 (crimes against national security) does not include rebellion. Art 3. Acts and omissions punishable by law are felonies. Acts an overt or external act Omission failure to perform a duty required by law. Example of an omission: failure to render assistance to anyone who is in danger of dying or is in an uninhabited place or is wounded abandonment. Felonies acts and omissions punishable by the Revised Penal Code Crime - acts and omissions punishable by any law What requisites must concur before a felony may be committed? There must be (1) an act or omission; (2) punishable by the Revised Penal Code; and (3) the act is performed or the omission incurred by means of dolo or culpa. How felonies are committed: by means of deceit (dolo) There is deceit when the act is performed with deliberate intent. Requisites: -freedom -intelligence -intent Examples: murder, treason, and robbery Criminal intent is not necessary in these cases: (1)When the crime is the product of culpa or negligence, reckless imprudence, lack of foresight or lack of skill; (2)When the crime is a prohibited act under a special law or what is called malum prohibitum. In criminal law, intent is categorized into two: (1)General criminal intent; and (2)Specific criminal intent. General criminal intent is presumed from the mere doing of a wrong act. This does not require proof. The burden is upon the wrong doer to prove that he acted without such criminal intent. Specific criminal intent is not presumed because it is an ingredient or element of a crime, like intent to kill in the crimes of attempted or frustrated homicide/parricide/murder. The prosecution has the burden of proving the same. Distinction between intent and discernment Intent is the determination to do a certain thing, an aim or purpose of the mind. It is the design to resolve or determination by which a person acts. discernment is the mental capacity to tell right from wrong. It relates to the moral significance that a person ascribes to his act and relates to the intelligence as an element of dolo, distinct from intent. Distinction between intent and motive Intent is demonstrated by the use of a particular means to bring about a desired result it is not a state of mind or a reason for committing a crime.

motive implies motion. It is the moving power which impels one to do an act. When there is motive in the commission of a crime, it always comes before the intent. But a crime may be committed without motive. If the crime is intentional, it cannot be committed without intent. Intent is manifested by the instrument used by the offender. The specific criminal intent becomes material if the crime is to be distinguished from the attempted or frustrated stage. by means of fault (culpa) There is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Imprudence deficiency of action; e.g. A was driving a truck along a road. He hit B because it was raining reckless imprudence. Negligence - deficiency of perception; failure to foresee impending danger, usually involves lack of foresight Requisites: Freedom Intelligence Imprudence, negligence, lack of skill or foresight Lack of intent The concept of criminal negligence is the inexcusable lack of precaution on the part of the person performing or failing to perform an act. If the danger impending from that situation is clearly manifest, you have a case of reckless imprudence. But if the danger that would result from such imprudence is not clear, not manifest nor immediate you have only a case of simple negligence. Mistake of fact is a misapprehension of fact on the part of the person who caused injury to another. He is not criminally liable. a. Requisites: that the act done would have been lawful had the facts been as the accused believed them to be; intention of the accused is lawful; mistake must be without fault of carelessness. Example: United States v. Ah Chong. Ah Chong being afraid of bad elements, locked himself in his room by placing a chair against the door. After having gone to bed, he was awakened by somebody who was trying to open the door. He asked the identity of the person, but he did not receive a response. Fearing that this intruder was a robber, he leaped out of bed and said that he will kill the intruder should he attempt to enter. At that moment, the chair struck him. Believing that he was attacked, he seized a knife and fatally wounded the intruder. Mistake of fact would be relevant only when the felony would have been intentional or through dolo, but not when the felony is a result of culpa. When the felony is a product of culpa, do not discuss mistake of fact. Art. 4. Criminal liability shall be incurred: 1. By any person committing a felony, although the wrongful act done be different from that which he intended. Article 4, paragraph 1 presupposes that the act done is the proximate cause of the resulting felony. It must be the direct, natural, and logical consequence of the felonious act. Causes which produce a different result: Mistake in identity of the victim injuring one person who is mistaken for another (this is a complex crime under Art. 48) e.g., A intended to shoot B, but he instead shot C because he (A) mistook C for B. In error in personae, the intended victim was not at the scene of the crime. It was the actual victim upon whom the blow was directed, but he was not really the intended victim. How does error in personae affect criminal liability of the offender? Error in personae is mitigating if the crime committed is different from that which was intended. If the crime committed is the same as that which was intended, error in personae does not affect the criminal liability of the offender. In mistake of identity, if the crime committed was the same as the crime intended, but on a different victim, error in persona does not affect the criminal liability of the offender. But if the crime committed was different from the crime intended, Article 49 will apply and the penalty for the lesser crime will be applied. In a way, mistake in identity is a mitigating circumstance where Article 49 applies. Where the crime intended is more serious than the crime committed, the error in persona is not a mitigating circumstance Mistake in blow hitting somebody other than the target due to lack of skill or fortuitous instances (this is a complex crime under Art. 48) e.g., B and C were walking together. A wanted to shoot B, but he instead injured C. In aberratio ictus, a person directed the blow at an intended victim, but because of poor aim, that blow landed on somebody else. In aberratio ictus, the intended victim as well as the actual victim are both at the scene of the crime.

aberratio ictus, generally gives rise to a complex crime. This being so, the penalty for the more serious crime is imposed in the maximum period. Injurious result is greater than that intended causing injury graver than intended or expected (this is a mitigating circumstance due to lack of intent to commit so grave a wrong under Art. 13) e.g., A wanted to injure B. However, B died. praeter intentionem is mitigating, particularly covered by paragraph 3 of Article 13. In order however, that the situation may qualify as praeter intentionem, there must be a notable disparity between the means employed and the resulting felony In all these instances the offender can still be held criminally liable, since he is motivated by criminal intent. Requisites: the felony was intentionally committed the felony is the proximate cause of the wrong done Doctrine of Proximate Cause such adequate and efficient cause as, in the natural order of events, and under the particular circumstances surrounding the case, which would necessarily produce the event. Requisites: the direct, natural, and logical cause produces the injury or damage unbroken by any sufficient intervening cause without which the result would not have occurred Proximate Cause is negated by: Active force, distinct act, or fact absolutely foreign from the felonious act of the accused, which serves as a sufficient intervening cause. Resulting injury or damage is due to the intentional act of the victim. proximate cause does not require that the offender needs to actually touch the body of the offended party. It is enough that the offender generated in the mind of the offended party the belief that made him risk himself. Requisite for Presumption blow was cause of the death Where there has been an injury inflicted sufficient to produce death followed by the demise of the person, the presumption arises that the injury was the cause of the death. Provided: victim was in normal health death ensued within a reasonable time The one who caused the proximate cause is the one liable. The one who caused the immediate cause is also liable, but merely contributory or sometimes totally not liable. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Requisites: (IMPOSSIBLE CRIME) Act would have been an offense against persons or property Act is not an actual violation of another provision of the Code or of a special penal law There was criminal intent Accomplishment was inherently impossible; or inadequate or ineffectual means were employed. Notes: Offender must believe that he can consummate the intended crime, a man stabbing another who he knew was already dead cannot be liable for an impossible crime. The law intends to punish the criminal intent. There is no attempted or frustrated impossible crime. Felonies against persons: parricide, murder, homicide, infanticide, physical injuries, etc. Felonies against property: robbery, theft, usurpation, swindling, etc. Inherent impossibility: A thought that B was just sleeping. B was already dead. A shot B. A is liable. If A knew that B is dead and he still shot him, then A is not liable. When we say inherent impossibility, this means that under any and all circumstances, the crime could not have materialized. If the crime could have materialized under a different set of facts, employing the same mean or the same act, it is not an impossible crime; it would be an attempted felony. Employment of inadequate means: A used poison to kill B. However, B survived because A used small quantities of poison frustrated murder. Ineffectual means: A aimed his gun at B. When he fired the gun, no bullet came out because the gun was empty. A is liable. Whenever you are confronted with a problem where the facts suggest that an impossible crime was committed, be careful about the question asked. If the question asked is: Is an impossible crime committed?, then you judge that question on the basis of the facts. If really the facts constitute an impossible crime, then you suggest than an impossible crime is committed, then you state the reason for the inherent impossibility.

If the question asked is Is he liable for an impossible crime?, this is a catching question. Even though the facts constitute an impossible crime, if the act done by the offender constitutes some other crimes under the Revised Penal Code, he will not be liable for an impossible crime. He will be prosecuted for the crime constituted so far by the act done by him. this idea of an impossible crime is a one of last resort, just to teach the offender a lesson because of his criminal perversity. If he could be taught of the same lesson by charging him with some other crime constituted by his act, then that will be the proper way. If you want to play safe, you state there that although an impossible crime is constituted, yet it is a principle of criminal law that he will only be penalized for an impossible crime if he cannot be punished under some other provision of the Revised Penal Code. Art 5. Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made subject of legislation. In the same way the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. When a person is charged in court, and the court finds that there is no law applicable, the court will acquit the accused and the judge will give his opinion that the said act should be punished. Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and illegal possession of firearms or drugs. There can be no executive clemency for these crimes. Art. 6. Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Development of a crime Internal acts intent and plans; usually not punishable External acts Preparatory Acts acts tending toward the crime Acts of Execution acts directly connected the crime Stages of Commission of a Crime Attempt Frustrated Consummated Overt acts of execution are started Not all acts of execution are present Due to reasons other than the spontaneous desistance of the perpetrator All acts of execution are present Crime sought to be committed is not achieved Due to intervening causes independent of the will of the perpetrator All the acts of execution are present The result sought is achieved Stages of a Crime does not apply in: Offenses punishable by Special Penal Laws, unless the otherwise is provided for. Formal crimes (e.g., slander, adultery, etc.) Impossible Crimes Crimes consummated by mere attempt. Examples: attempt to flee to an enemy country, treason, corruption of minors. Felonies by omission Crimes committed by mere agreement. Examples:betting in sports (endings in basketball), corruption of public officers. Desistance Desistance on the part of the offender negates criminal liability in the attempted stage. Desistance is true only in the attempted stage of the felony. If under the definition of the felony, the act done is already in the frustrated stage, no amount of desistance will negate criminal liability.

The spontaneous desistance of the offender negates only the attempted stage but not necessarily all criminal liability. Even though there was desistance on the part of the offender, if the desistance was made when acts done by him already resulted to a felony, that offender will still be criminally liable for the felony brought about his act In deciding whether a felony is attempted or frustrated or consummated, there are three criteria involved: (1)The manner of committing the crime; (2)The elements of the crime; and (3)The nature of the crime itself. Applications: A put poison in Bs food. B threw away his food. A is liable attempted murder.[1] A stole Bs car, but he returned it. A is liable (consummated) theft. A aimed his gun at B. C held As hand and prevented him from shooting B attempted murder. A inflicted a mortal wound on B. B managed to survive frustrated murder. A intended to kill B by shooting him. A missed attempted murder. A doused Bs house with kerosene. But before he could light the match, he was caught attempted arson. A cause a blaze, but did not burn the house of B frustrated arson. Bs house was set on fire by A (consummated) arson. A tried to rape B. B managed to escape. There was no penetration attempted rape. A got hold of Bs painting. A was caught before he could leave Bs house frustrated robbery.[2] The attempted stage is said to be within the subjective phase of execution of a felony. On the subjective phase, it is that point in time when the offender begins the commission of an overt act until that point where he loses control of the commission of the crime already. If he has reached that point where he can no longer control the ensuing consequence, the crime has already passed the subjective phase and, therefore, it is no longer attempted. The moment the execution of the crime has already gone to that point where the felony should follow as a consequence, it is either already frustrated or consummated. If the felony does not follow as a consequence, it is already frustrated. If the felony follows as a consequence, it is consummated. although the offender may not have done the act to bring about the felony as a consequence, if he could have continued committing those acts but he himself did not proceed because he believed that he had done enough to consummate the crime, Supreme Court said the subjective phase has passed NOTES ON ARSON; The weight of the authority is that the crime of arson cannot be committed in the frustrated stage. The reason is because we can hardly determine whether the offender has performed all the acts of execution that would result in arson, as a consequence, unless a part of the premises has started to burn. On the other hand, the moment a particle or a molecule of the premises has blackened, in law, arson is consummated. This is because consummated arson does not require that the whole of the premises be burned. It is enough that any part of the premises, no matter how small, has begun to burn. ESTAFA VS. THEFT In estafa, the offender receives the property; he does not take it. But in receiving the property, the recipient may be committing theft, not estafa, if what was transferred to him was only the physical or material possession of the object. It can only be estafa if what was transferred to him is not only material or physical possession but juridical possession as well. When you are discussing estafa, do not talk about intent to gain. In the same manner that when you are discussing the crime of theft, do not talk of damage. Nature of the crime itself n crimes involving the taking of human life parricide, homicide, and murder in the definition of the frustrated stage, it is indispensable that the victim be mortally wounded. Under the definition of the frustrated stage, to consider the offender as having performed all the acts of execution, the acts already done by him must produce or be capable of producing a felony as a consequence. The general rule is that there must be a fatal injury inflicted, because it is only then that death will follow. If the wound is not mortal, the crime is only attempted. The reason is that the wound inflicted is not capable of bringing about the desired felony of parricide, murder or homicide as a consequence; it cannot be said that the offender has performed all the acts of execution which would produce parricide, homicide or murder as a result. An exception to the general rule is the so-called subjective phase. The Supreme Court has decided cases which applied the subjective standard that when the

offender himself believed that he had performed all the acts of execution, even though no mortal wound was inflicted, the act is already in the frustrated stage. The common notion is that when there is conspiracy involved, the participants are punished as principals. This notion is no longer absolute. In the case of People v. Nierra, the Supreme Court ruled that even though there was conspiracy, if a co-conspirator merely cooperated in the commission of the crime with insignificant or minimal acts, such that even without his cooperation, the crime could be carried out as well, such co-conspirator should be punished as an accomplice only. Art. 7. Light felonies are punishable only when they have been consummated with the exception of those committed against persons or property. Examples of light felonies: slight physical injuries; theft; alteration of boundary marks; malicious mischief; and intriguing against honor. In commission of crimes against properties and persons, every stage of execution is punishable but only the principals and accomplices are liable for light felonies, accessories are not. Art. 8. Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefore. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. Conspiracy is punishable in the following cases: treason, rebellion or insurrection, sedition, and monopolies and combinations in restraint of trade. Conspiracy to commit a crime is not to be confused with conspiracy as a means of committing a crime. In both cases there is an agreement but mere conspiracy to commit a crime is not punished EXCEPT in treason, rebellion, or sedition. Even then, if the treason is actually committed, the conspiracy will be considered as a means of committing it and the accused will all be charged for treason and not for conspiracy to commit treason. Conspiracy and Proposal to Commit a Crime Conspiracy Proposal Elements Agreement among 2 or more persons to commit a crime They decide to commit it A person has decided to commit a crime He proposes its commission to another Crimes Conspiracy to commit sedition Conspiracy to commit rebellion Conspiracy to commit treason Proposal to commit treason Proposal to commit rebellion Mere conspiracy in combination in restraint of trade (Art. 186), and brigandage (Art. 306). Two ways for conspiracy to exist: (1)There is an agreement. (2)The participants acted in concert or simultaneously which is indicative of a meeting of the minds towards a common criminal goal or criminal objective. When several offenders act in a synchronized, coordinated manner, the fact that their acts complimented each other is indicative of the meeting of the minds. There is an implied agreement. Two kinds of conspiracy: (1)Conspiracy as a crime; and (2)Conspiracy as a manner of incurring criminal liability When conspiracy itself is a crime, no overt act is necessary to bring about the criminal liability. The mere conspiracy is the crime itself. This is only true when the law expressly punishes the mere conspiracy; otherwise, the conspiracy does not bring about the commission of the crime because conspiracy is not an overt act but a mere preparatory act. Treason, rebellion, sedition, and coup detat are the only crimes where the conspiracy and proposal to commit to them are punishable. When the conspiracy is only a basis of incurring criminal liability, there must be an overt act done before the co-conspirators become criminally liable. For as long as none of the conspirators has committed an overt act, there is no crime yet. But when one of them commits any overt act, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime.

As a general rule, if there has been a conspiracy to commit a crime in a particular place, anyone who did not appear shall be presumed to have desisted. The exception to this is if such person who did not appear was the mastermind. For as long as none of the conspirators has committed an overt act, there is no crime yet. But when one of them commits any overt act, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime As a general rule, if there has been a conspiracy to commit a crime in a particular place, anyone who did not appear shall be presumed to have desisted. The exception to this is if such person who did not appear was the mastermind. When the conspiracy itself is a crime, this cannot be inferred or deduced because there is no overt act. All that there is the agreement. On the other hand, if the co-conspirator or any of them would execute an overt act, the crime would no longer be the conspiracy but the overt act itself. conspiracy as a crime, must have a clear and convincing evidence of its existence. Every crime must be proved beyond reasonable doubt. it must be established by positive and conclusive evidence, not by conjectures or speculations. When the conspiracy is just a basis of incurring criminal liability, however, the same may be deduced or inferred from the acts of several offenders in carrying out the commission of the crime. The existence of a conspiracy may be reasonably inferred from the acts of the offenders when such acts disclose or show a common pursuit of the criminal objective. mere knowledge, acquiescence to, or approval of the act, without cooperation or at least, agreement to cooperate, is not enough to constitute a conspiracy. There must be an intentional participation in the crime with a view to further the common felonious objective. When several persons who do not know each other simultaneously attack the victim, the act of one is the act of all, regardless of the degree of injury inflicted by any one of them. All will be liable for the consequences. A conspiracy is possible even when participants are not known to each other. Do not think that participants are always known to each other. Conspiracy is a matter of substance which must be alleged in the information, otherwise, the court will not consider the same. Proposal is true only up to the point where the party to whom the proposal was made has not yet accepted the proposal. Once the proposal was accepted, a conspiracy arises. Proposal is unilateral, one party makes a proposition to the other; conspiracy is bilateral, it requires two parties. SEDITION; Proposal to commit sedition is not a crime. But if Union B accepts the proposal, there will be conspiracy to commit sedition which is a crime under the Revised Penal Code. Composite crimes Composite crimes are crimes which, in substance, consist of more than one crime but in the eyes of the law, there is only one crime. For example, the crimes of robbery with homicide, robbery with rape, robbery with physical injuries. In case the crime committed is a composite crime, the conspirator will be liable for all the acts committed during the commission of the crime agreed upon. This is because, in the eyes of the law, all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime. As a general rule, when there is conspiracy, the rule is that the act of one is the act of all. This principle applies only to the crime agreed upon. The exception is if any of the co-conspirator would commit a crime not agreed upon. This happens when the crime agreed upon and the crime committed by one of the co-conspirators are distinct crimes. Exception to the exception: In acts constituting a single indivisible offense, even though the co-conspirator performed different acts bringing about the composite crime, all will be liable for such crime. They can only evade responsibility for any other crime outside of that agreed upon if it is proved that the particular conspirator had tried to prevent the commission of such other act. Art. 9. Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their are afflictive, in accordance with Article 25 of this Code. Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the above-mentioned article.

Light felonies are those infractions of law for the commission of which he penalty of arresto mayor or a fine not exceeding 200 pesos, or both is provided. Capital punishment death penalty. Penalties (imprisonment): Grave six years and one day to reclusion perpetua (life); Less grave one month and one day to six years; Light arresto menor (one day to 30 days). CLASSIFICATION OF FELONIES This question was asked in the bar examination: How do you classify felonies or how are felonies classified? What the examiner had in mind was Articles 3, 6 and 9. Do not write the classification of felonies under Book 2 of the Revised Penal Code. That was not what the examiner had in mind because the question does not require the candidate to classify but also to define. Therefore, the examiner was after the classifications under Articles 3, 6 and 9. Felonies are classified as follows: (1)According to the manner of their commission Under Article 3, they are classified as, intentional felonies or those committed with deliberate intent; and culpable felonies or those resulting from negligence, reckless imprudence, lack of foresight or lack of skill. (2)According to the stages of their execution Under Article 6., felonies are classified as attempted felony when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance; frustrated felony when the offender commences the commission of a felony as a consequence but which would produce the felony as a consequence but which nevertheless do not produce the felony by reason of causes independent of the perpetrator; and, consummated felony when all the elements necessary for its execution are present. (3)According to their gravity Under Article 9, felonies are classified as grave felonies or those to which attaches the capital punishment or penalties which in any of their periods are afflictive; less grave felonies or those to which the law punishes with penalties which in their maximum period was correccional; and light felonies or those infractions of law for the commission of which the penalty is arresto menor. Why is it necessary to determine whether the crime is grave, less grave or light? To determine whether these felonies can be complexed or not, and to determine the prescription of the crime and the prescription of the penalty. In other words, these are felonies classified according to their gravity, stages and the penalty attached to them. Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Article 25 of the Revised Penal Code. Do not omit the phrase In accordance with Article 25 because there is also a classification of penalties under Article 26 that was not applied. If the penalty is fine and exactly P200.00, it is only considered a light felony under Article 9. If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is considered a correctional penalty under Article 26. If the penalty is exactly P200.00, apply Article 26. It is considered as correctional penalty and it prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made to suffer the fine. This classification of felony according to gravity is important with respect to the question of prescription of crimes. In the case of light felonies, crimes prescribe in two months. If the crime is correctional, it prescribes in ten years, except arresto mayor, which prescribes in five years. Art. 10. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. For Special Laws: Penalties should be imprisonment, and not reclusion perpetua, etc. Offenses that are attempted or frustrated are not punishable, unless otherwise stated. Plea of guilty is not mitigating for offenses punishable by special laws. No minimum, medium, and maximum periods for penalties. No penalty for an accessory or accomplice, unless otherwise stated. Provisions of RPC applicable to special laws:

Art. 16 Participation of Accomplices Art. 22 Retroactivity of Penal laws if favorable to the accused Art. 45 Confiscation of instruments used in the crime SUPPLETORY APPLICATION OF THE REVISED PENAL CODE In Article 10, there is a reservation provision of the Revised Penal Code may be applied suppletorily to special laws. You will only apply the provisions of the Revised Penal Code as a supplement to the special law, or simply correlate the violated special law, if needed to avoid an injustice. If no justice would result, do not give suppletorily application of the Revised Penal Code to that of special law. For example, a special law punishes a certain act as a crime. The special law is silent as to the civil liability of one who violates the same. Here is a person who violated the special law and he was prosecuted. His violation caused damage or injury to a private party. May the court pronounce that he is civilly liable to the offended party, considering that the special law is silent on this point? Yes, because Article 100 of the Revised Penal Code may be given suppletory application to prevent an injustice from being done to the offended party. Article 100 states that every person criminally liable for a felony is also civilly liable. That article shall be applied suppletory to avoid an injustice that would be caused to the private offended party, if he would not be indemnified for the damages or injuries sustained by him. In People v. Rodriguez, it was held that the use of arms is an element of rebellion, so a rebel cannot be further prosecuted for possession of firearms. A violation of a special law can never absorb a crime punishable under the Revised Penal Code, because violations of the Revised Penal Code are more serious than a violation of a special law. But a crime in the Revised Penal Code can absorb a crime punishable by a special law if it is a necessary ingredient of the crime in the Revised Penal Code In the crime of sedition, the use of firearms is not an ingredient of the crime. Hence, two prosecutions can be had: (1) sedition; and (2) illegal possession of firearms. But do not think that when a crime is punished outside of the Revised Penal Code, it is already a special law. For example, the crime of cattle-rustling is not a mala prohibitum but a modification of the crime theft of large cattle. So Presidential Decree No. 533, punishing cattle-rustling, is not a special law. It can absorb the crime of murder. If in the course of cattle rustling, murder was committed, the offender cannot be prosecuted for murder. Murder would be a qualifying circumstance in the crime of qualified cattle rustling. This was the ruling in People v. Martinada. The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic Act No. 7659, which adopted the scale of penalties in the Revised Penal Code, means that mitigating and aggravating circumstances can now be considered in imposing penalties. Presidential Decree No. 6425 does not expressly prohibit the suppletory application of the Revised Penal Code. The stages of the commission of felonies will also apply since suppletory application is now allowed. Circumstances affecting criminal liability There are five circumstances affecting criminal liability: (1)Justifying circumstances; (2)Exempting circumstances; (3)Mitigating circumstances; (4)Aggravating circumstances; and (5)Alternative circumstances. There are two others which are found elsewhere in the provisions of the Revised Penal Code: (1)Absolutory cause; and (2)Extenuating circumstances. In justifying and exempting circumstances, there is no criminal liability. When an accused invokes them, he in effect admits the commission of a crime but tries to avoid the liability thereof. The burden is upon him to establish beyond reasonable doubt the required conditions to justify or exempt his acts from criminal liability. What is shifted is only the burden of evidence, not the burden of proof. Justifying circumstances contemplate intentional acts and, hence, are incompatible with dolo. Exempting circumstances may be invoked in culpable felonies. Absolutory cause The effect of this is to absolve the offender from criminal liability, although not from civil liability. It has the same effect as an exempting circumstance, but you do not call it as such in order not to confuse it with the circumstances under Article 12.

Article 20 provides that the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by affinity within the same degrees with the exception of accessories who profited themselves or assisting the offender to profit by the effects of the crime. Then, Article 89 provides how criminal liability is extinguished: Death of the convict as to the personal penalties, and as to pecuniary penalties, liability therefor is extinguished if death occurs before final judgment; Service of the sentence; Amnesty; Absolute pardon; Prescription of the crime; Prescription of the penalty; and Marriage of the offended woman as provided in Article 344. Under Article 247, a legally married person who kills or inflicts physical injuries upon his or her spouse whom he surprised having sexual intercourse with his or her paramour or mistress in not criminally liable. Under Article 219, discovering secrets through seizure of correspondence of the ward by their guardian is not penalized. Under Article 332, in the case of theft, swindling and malicious mischief, there is no criminal liability but only civil liability, when the offender and the offended party are related as spouse, ascendant, descendant, brother and sister-in-law living together or where in case the widowed spouse and the property involved is that of the deceased spouse, before such property had passed on to the possession of third parties. Under Article 344, in cases of seduction, abduction, acts of lasciviousness, and rape, the marriage of the offended party shall extinguish the criminal action. Absolutory cause has the effect of an exempting circumstance and they are predicated on lack of voluntariness like instigation. Instigation is associated with criminal intent. Do not consider culpa in connection with instigation. If the crime is culpable, do not talk of instigation. In instigation, the crime is committed with dolo. It is confused with entrapment. Entrapment is not an absolutory cause. Entrapment does not exempt the offender or mitigate his criminal liability. But instigation absolves the offender from criminal liability because in instigation, the offender simply acts as a tool of the law enforcers and, therefore, he is acting without criminal intent because without the instigation, he would not have done the criminal act which he did upon instigation of the law enforcers. Difference between instigation and entrapment In instigation, the criminal plan or design exists in the mind of the law enforcer with whom the person instigated cooperated so it is said that the person instigated is acting only as a mere instrument or tool of the law enforcer in the performance of his duties. On the other hand, in entrapment, a criminal design is already in the mind of the person entrapped. It did not emanate from the mind of the law enforcer entrapping him. Entrapment involves only ways and means which are laid down or resorted to facilitate the apprehension of the culprit. The element which makes instigation an absolutory cause is the lack of criminal intent as an element of voluntariness. If the instigator is a law enforcer, the person instigated cannot be criminally liable, because it is the law enforcer who planted that criminal mind in him to commit the crime, without which he would not have been a criminal. If the instigator is not a law enforcer, both will be criminally liable, you cannot have a case of instigation. In instigation, the private citizen only cooperates with the law enforcer to a point when the private citizen upon instigation of the law enforcer incriminates himself. It would be contrary to public policy to prosecute a citizen who only cooperated with the law enforcer. The private citizen believes that he is a law enforcer and that is why when the law enforcer tells him, he believes that it is a civil duty to cooperate. If the person instigated does not know that the person is instigating him is a law enforcer or he knows him to be not a law enforcer, this is not a case of instigation. This is a case of inducement, both will be criminally liable. In entrapment, the person entrapped should not know that the person trying to entrap him was a law enforcer. The idea is incompatible with each other because in entrapment, the person entrapped is actually committing a crime. The officer who entrapped him only lays down ways and means to have evidence of the commission of the crime, but even without those ways and means, the person entrapped is actually engaged in a violation of the law.

Instigation absolves the person instigated from criminal liability. This is based on the rule that a person cannot be a criminal if his mind is not criminal. On the other hand, entrapment is not an absolutory cause. It is not even mitigating. In case of somnambulism or one who acts while sleeping, the person involved is definitely acting without freedom and without sufficient intelligence, because he is asleep. He is moving like a robot, unaware of what he is doing. So the element of voluntariness which is necessary in dolo and culpa is not present. Somnambulism is an absolutory cause. If element of voluntariness is absent, there is no criminal liability, although there is civil liability, and if the circumstance is not among those enumerated in Article 12, refer to the circumstance as an absolutory cause. Mistake of fact is an absolutory cause. The offender is acting without criminal intent. So in mistake of fact, it is necessary that had the facts been true as the accused believed them to be, this act is justified. If not, there is criminal liability, because there is no mistake of fact anymore. The offender must believe he is performing a lawful act. Extenuating circumstances The effect of this is to mitigate the criminal liability of the offender. In other words, this has the same effect as mitigating circumstances, only you do not call it mitigating because this is not found in Article 13. Illustrations: An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents is concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance. The concealment of honor by mother in the crime of infanticide is an extenuating circumstance but not in the case of parricide when the age of the victim is three days old and above. In the crime of adultery on the part of a married woman abandoned by her husband, at the time she was abandoned by her husband, is it necessary for her to seek the company of another man. Abandonment by the husband does not justify the act of the woman. It only extenuates or reduces criminal liability. When the effect of the circumstance is to lower the penalty there is an extenuating circumstance. A kleptomaniac is one who cannot resist the temptation of stealing things which appeal to his desire. This is not exempting. One who is a kleptomaniac and who would steal objects of his desire is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will power without, however, depriving him of the consciousness of his act. So this is an extenuating circumstance. The effect is to mitigate the criminal liability. Distinctions between justifying circumstances and exempting circumstances In justifying circumstances (1)The circumstance affects the act, not the actor; (2)The act complained of is considered to have been done within the bounds of law; hence, it is legitimate and lawful in the eyes of the law; (3)Since the act is considered lawful, there is no crime, and because there is no crime, there is no criminal; (4)Since there is no crime or criminal, there is no criminal liability as well as civil liability. In exempting circumstances (1)The circumstances affect the actor, not the act; (2)The act complained of is actually wrongful, but the actor acted without voluntariness. He is a mere tool or instrument of the crime; (3)Since the act complained of is actually wrongful, there is a crime. But because the actor acted without voluntariness, there is absence of dolo or culpa. There is no criminal; (4)Since there is a crime committed but there is no criminal, there is civil liability for the wrong done. But there is no criminal liability. However, in paragraphs 4 and 7 of Article 12, there is neither criminal nor civil liability. When you apply for justifying or exempting circumstances, it is confession and avoidance and burden of proof shifts to the accused and he can no longer rely on weakness of prosecutions evidence. [1]The difference between murder and homicide will be discussed in Criminal Law II. These crimes are found in Articles 248 and 249, Book II of the Revised Penal Code. [2] The difference between theft and robbery will be discussed in Criminal Law II. These crimes are found in Title Ten, Chapters One and Three, Book II of the Revised Penal Code.

Chapter Two JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY Art. 11. Justifying circumstances. The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. 2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the revocation was given by the person attacked, that the one making defense had no part therein. 3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this Art. are present and that the person defending be not induced by revenge, resentment, or other evil motive. 4. Any person who, in order to avoid an evil or injury, does not act which causes damage to another, provided that the following requisites are present; First. That the evil sought to be avoided actually exists; Second. That the injury feared be greater than that done to avoid it; Third. That there be no other practical and less harmful means of preventing it. 5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. 6. Any person who acts in obedience to an order issued by a superior for some lawful purpose. Art. 12. Circumstances which exempt from criminal liability. the following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. 2. A person under nine years of age. 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformably with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institution or person mentioned in said Art. 80. 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. 5. Any person who act under the compulsion of irresistible force. 6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. 7. Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause. Chapter Three CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY Art. 13. Mitigating circumstances. The following are mitigating circumstances; 1. Those mentioned in the preceding chapter, when all the requisites necessary to justify or to exempt from criminal liability in the respective cases are not attendant. 2. That the offender is under eighteen year of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80. 3. That the offender had no intention to commit so grave a wrong as that committed. 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act. 5. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same degrees. 6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.

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; 8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense, or communications with his fellow beings. 9. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts. Chan Robles virtual law library 10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned.Lawcenter.ph Chapter Four CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY Art. 14. Aggravating circumstances. The following are aggravating circumstances: 1. That advantage be taken by the offender of his public position. 2. That the crime be committed in contempt or with insult to the public authorities. 3. That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if the latter has not given provocation. 4. That the act be committed with abuse of confidence or obvious ungratefulness. 5. That the crime be committed in the palace of the Chief Executive or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship. 6. That the crime be committed in the night time, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. 8. That the crime be committed with the aid of armed men or persons who insure or afford impunity. 9. That the accused is a recidivist. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code. 10. That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. 11. That the crime be committed in consideration of a price, reward, or promise. 12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. 13. That the act be committed with evidence premeditation. 14. That the craft, fraud or disguise be employed. 15. That advantage be taken of superior strength, or means be employed to weaken the defense. 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. 18. That the crime be committed after an unlawful entry. There is an unlawful entry when an entrance of a crime a wall, roof, floor, door, or window be broken. 20. That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means. (As amended by RA 5438). 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commissions. Chapter Five ALTERNATIVE CIRCUMSTANCES Art. 15. Their concept. Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender. The alternative circumstance of relationship shall be taken into consideration when the offended party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender. The intoxication of the offender shall be taken into consideration as a mitigating circumstances when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said

felony but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.Lawcenter.ph Title Two PERSONS CRIMINALLY LIABLE FOR FELONIES Art. 16. Who are criminally liable. The following are criminally liable for grave and less grave felonies: 1. Principals. 2. Accomplices. 3. Accessories. The following are criminally liable for light felonies: 1. Principals 2. Accomplices. Art. 17. Principals. The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it; 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished. Art. 18. Accomplices. Accomplices are those persons who, not being included in Art. 17, cooperate in the execution of the offense by previous or simultaneous acts. Art. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Art. 20. Accessories who are exempt from criminal liability. The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article. Title Three PENALTIES Chapter One PENALTIES IN GENERAL Art. 21. Penalties that may be imposed. No felony shall be punishable by any penalty not prescribed by law prior to its commission.Lawcenter.ph Art. 22. Retroactive effect of penal laws. Penal Laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. Art. 23. Effect of pardon by the offended party. A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. Art. 24. Measures of prevention or safety which are nor considered penalties. The following shall not be considered as penalties: 1. The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. 2. The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. 3. Suspension from the employment of public office during the trial or in order to institute proceedings.

4. Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates. 5. Deprivation of rights and the reparations which the civil laws may establish in penal form.Lawcenter.ph Chapter Two CLASSIFICATION OF PENALTIES Art. 25. Penalties which may be imposed. The penalties which may be imposed according to this Code, and their different classes, are those included in the following: Scale Principal Penalties Capital punishment: Death. Afflictive penalties: Reclusion perpetua, Reclusion temporal, Perpetual or temporary absolute disqualification, Perpetual or temporary special disqualification, Prision mayor. Correctional penalties: Prision correccional, Arresto mayor, Suspension, Destierro. Light penalties: Arresto menor, Public censure. Penalties common to the three preceding classes: Fine, and Bond to keep the peace. Accessory Penalties Perpetual or temporary absolute disqualification, Perpetual or temporary special disqualification, Suspension from public office, the right to vote and be voted for, the profession or calling. Civil interdiction, Indemnification, Forfeiture or confiscation of instruments and proceeds of the offense, Payment of costs. Art. 26. When afflictive, correctional, or light penalty. A fine, whether imposed as a single of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it less than 200 pesos. Chapter Three DURATION AND EFFECTS OF PENALTIES Section One. Duration of PenaltiesLawcenter.ph Art. 27. Reclusion perpetua. Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon. Reclusion temporal. The penalty of reclusion temporal shall be from twelve years and one day to twenty years. Prision mayor and temporary disqualification. The duration of the penalties of prision mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the principal penalty. Prision correccional, suspension, and destierro. The duration of the penalties of prision correccional, suspension and destierro shall be from six months and one day to six years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty.

Arresto mayor. The duration of the penalty of arresto mayor shall be from one month and one day to six months. Arresto menor. The duration of the penalty of arresto menor shall be from one day to thirty days. Bond to keep the peace. The bond to keep the peace shall be required to cover such period of time as the court may determine. Art. 28. Computation of penalties. If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final. If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. The duration of the other penalties shall be computed only from the day on which the defendant commences to serve his sentence. Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: 1. When they are recidivists or have been convicted previously twice or more times of any crime; and 2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970).Lawcenter.ph Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). Section Two. Effects of the penalties according to their respective nature Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. Art. 31. Effect of the penalties of perpetual or temporary special disqualification. The penalties of perpetual or temporal special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected; 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence.

The person suspended from holding public office shall not hold another having similar functions during the period of his suspension. Art. 34. Civil interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. Art. 35. Effects of bond to keep the peace. It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking. The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony. Art. 36. Pardon; its effect. A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. Art. 37. Cost; What are included. Costs shall include fees and indemnities in the course of the judicial proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule. Art. 38. Pecuniary liabilities; Order of payment. In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: 1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The cost of the proceedings. Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit. 4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists.chan robles virtual law library 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969). Section Three. Penalties in which other accessory penalties are inherent Art. 40. Death; Its accessory penalties. The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date sentence, unless such accessory penalties have been expressly remitted in the pardon. Art. 41. Reclusion perpetua and reclusion temporal; Their accessory penalties. The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Art. 42. Prision mayor; Its accessory penalties. The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. Art. 43. Prision correccional; Its accessory penalties. The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. Art. 44. Arresto; Its accessory penalties. The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence. Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. Chapter Four APPLICATION OF PENALTIES Section One. Rules for the application of penalties to the persons criminally liable and for the graduation of the same. Art. 46. Penalty to be imposed upon principals in general. The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony. Art. 47. In what cases the death penalty shall not be imposed. The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except in the following cases: 1. When the guilty person be more than seventy years of age. 2. When upon appeal or revision of the case by the Supreme court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty. For the imposition of said penalty or for the confirmation of a judgment of the inferior court imposing the death sentence, the Supreme Court shall render its decision per curiam, which shall be signed by all justices of said court, unless some member or members thereof shall have been disqualified from taking part in the consideration of the case, in which even the unanimous vote and signature of only the remaining justices shall be required. Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. 2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period. 3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period. Art. 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony. --CASES United States vs. Ah Chong GR No. L-5272 Facts:The defendant was employed as a cook at Fort McKinley, Rizal and at the same place, Pascual Gualberto, deceased was employed as houseboy. Both

persons stayed in the Officers quarters No. 27 and they occupied a small room together. The door room has not been furnished by a lock and the door has been kept fastened by placing a chair against the door. On August 14, 1908, the defendant was awakened by someone who was trying to force open the door. He woke up and asked who was there but no answer was received. The door was forced opened and the defendant has inflicted a deadly blow by a kitchen knife to the one who opened the door forcibly. It turned out that he stabbed his roommate and pascual was wounded. His wound was then taken care of and he was conveyed to the military hospital where he died the following day. Ah Sing insisted that he mistook the identity of Pascual as a robber because he forced to open the door. The Kitchen knife that the appellant used was under his pillow as there were repeated robberies in fort mckinley and had it for his personal protection. The defendant was arrested and was charged with a crime of assassination. He was found guilty by the trial and was sentenced to six years and one day. Issue:Whether or not the defendant can be held criminally responsible by reason of mistake of fact Ruling:The defendant may have struck a fatal blow to Pascual, however he defended himself from the imminent danger which he believed threatened his life and property. The defendant firmly believed that the one forcing to open his door was a thief, from whose assault he was in imminent peril, both of his life and property. The defendant acted in good faith, without malice or criminal intent, in the belief that he was no more than exercising his legitimate right of self-defense. He has been wholly exempted from criminal liability on account of his act and that he cannot be guilty of negligence or recklessness or even carelessness in falling into mistake as to the facts, or in the means adopted by him. Sentence imposed by trial court has been reversed and the defendant has been acquitted of the crime which he is charged. -Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5272 March 19, 1910 THE UNITED STATES, plaintiff-appellee, vs. AH CHONG, defendant-appellant. Gibb & Gale, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct: The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room. On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded,

he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber. Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law. At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense. Article 8 of the Penal Code provides that The following are not delinquent and are therefore exempt from criminal liability: xxx xxx xxx 4 He who acts in defense of his person or rights, provided there are the following attendant circumstances: (1) Illegal aggression. (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. The question then squarely presents it self, 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 or fact was not due to negligence or bad faith. In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.) The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law. Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit. The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.) Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.) And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language: It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime. And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence." And to the same effect in its sentence of December 30, 1896, it made use of the following language: . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court. That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.) But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.) 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." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted. 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 believe them he is legally guiltless of the 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 was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.) The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily." Parson, C.J., in the Massachusetts court, once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.) In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.) To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar. QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-inlaw, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room,

and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered. Johnson Moreland and Elliott, JJ., concur. Arellano, C.J., and Mapa, J., dissent. Separate Opinions TORRES, J., dissenting: The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless

negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive. By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from. <3 <3 <3 The People of the Philippines, plaintiff-appellee, vs. Antonio Z. Oanis and Alberto Galanta, defendant-appellants. July 27, 1943 Moran, J: Facts:Chief of Police Antonio Oanis and Corporal Alberto Galanta were instructed by the Constabulary Provincial Inspector to arrest the escaped convict, Anselmo Balagtas, with bailarina named Irene, and if overpowered, to get him dead or alive. Upon arrival at the place where Irene could be found, Oanis approached and asked Brigada Mallare where Irene's room was. Brigada indicated the room and said that Irene was sleeping with her paramour. Oanis and Galanta then went to the room and upon seeing a man sleeping with his back towards the door, they simultaneously fired at him. Shocked by the entire scene, Irene fainted. It turned out later that the man shot and killed was not Balagtas but an innocent man named Serapio Tecson, Irene's paramour. Issue:Whether or not Oanis and Galanta can be held responsible for Tecson's death. Held:Yes Ratio:No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention. A peace officer cannot claim exemption from criminal liability if he uses unnecessary or unreasonable force in making an arrest. Through impatience of desire to take chances, Oanis and Galanta have exceeded in the fulfillment of their duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. -Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47722 July 27, 1943 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the

party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her crossexamination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest 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 (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a

person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur. Separate Opinions PARAS, J., dissenting: Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson. Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed. In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger. The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life. In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488). It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended; but said article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious. The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself to be bound and that the said defendants did not have lawful instructions from superior authorities to capture Almasan dead or alive. The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio. HONTIVEROS, J., dissenting: According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or does something which places his captors in danger of imminent attack. Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately. The decision of the majority, in recognition of the special circumstances of this case which favored the accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870. Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying circumstances and circumstances exempting from liability which are the subject matter of this article are the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed within its scope. The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of 1870 which is the source of Article 69 of our Code says: Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa legitima o insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no menor de nueve aos; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la ley no exige multiples condiciones. It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required by the law to justify the same or exempt from criminal liability. The word "conditions" should not be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance may be taken into account: (a) That the offender acted in the performance of his duty or in the lawful exercise of a right; and (b) That the injury or offense committed be the necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is evident that these two requisites concur in the present case if we consider the intimate connection between the order given to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both found him with Irene, and the statement made by Capt. Monsod after the shooting. If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets exhibits F and O, the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused Galanta to have

substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he should be declared criminally responsible for said death. <3 <3 <3 SECOND DIVISION [G.R. No. 116918. June 19, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONFILO MARTINEZ y DE LA ROSA, JOHN DOE and PETER DOE, accused. BONFILO MARTINEZ y DELA ROSA, accused-appellant. DECISION REGALADO, J.: In an information filed before Branch 121 of the Regional Trial Court of Caloocan City on March 8, 1994, accused-appellant Bonfilo Martinez and two other unidentified persons were charged with the special complex crime of robbery with rape allegedly committed as follows: That on or about the 28th of December, 1991 in Kalookan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with (sic) one another, with intent of gain and by means of violence and intimidation employed upon the persons of MICHAEL BUENVINIDA Y SOLMAYOR, POL BONGGAT, SHERWIN SOLMAYOR, JONATHAN BONGGAT, JUNIOR SOLMAYOR, GLORIA SOLMAYOR and GLORIVIC BANDAYANON Y QUIAJO while the aforesaid persons were inside the house of ERNESTO BUENVINIDA viewing television program, said accused, all armed with guns of unknown caliber, tied the hands of the occupants of the house, did then and there wilfully, unlawfully and feloniously take, rob and carry away the following articles belonging to ERNESTO BUENVINIDA, to wit: 1. Radio Cassette Recorder worth P3,000.00 2. Assorted imported perfumes 30,000.00 3. Assorted imported canned goods 5,000.00 4. Cash money amounting to 8,000.00 5. Cash money in U.S. Dollar $1,000.00 that in the course of said robbery, said accused, with the use of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with one GLORIVIC BANDAYON Y QUIAJO, against the latters will and without her consent.[1] Although the two Does remained unknown and at large, appellant was arrested on March 3, l994 for soliciting funds for a fictitious volleyball competition.[2] After his arrest, he was confined at the Bagong Silang Sub-station detention cell for an hour and was later transferred to the Caloocan City Jail.[3] Appellant entered a plea of not guilty during his arraignment in Criminal Case No. C-46704 (94) on March 21, 1994.[4] As collated from the transcripts of the testimonies of prosecution eyewitnesses Glorivic Bandayanon[5] and Michael Buenvinida,[6] the indicated coverage of which yield the particular facts hereunder narrated, the circumstances attendant to the crime charged are detailed in the paragraphs that follow. Michael Buenvinida, Michelle Buenvinida, Gloria Solmayor, Sherwin Solmayor, Junior (JR) Solmayor, Paul Bonggat, Jonathan Bonggat and Glorivic Bandayanon were in Ernesto and Cornelia Buenvinidas house situated at Lot 25, Block 20, Wallnut St., Rainbow Village, Caloocan City when the crime was committed on December 28, 1991. Michael and Michelle are the children of Ernesto and Cornelia. Gloria is a sisterin-law of Cornelia who was in the house for a visit, while Sherwin, Junior, Paul and Jonathan are Cornelias nephews. Glorivic is a friend of Cornelia who volunteered to look after the latters children while she is in Sweden. Ernesto was at the office at the time of the commission of the crime. While the occupants of the house were watching a television show in the living room at around 6:30 P.M., Michael noticed a man wearing short pants and holding a handgun jump over the low fence of their house. The man entered the house through its unlocked front door and introduced himself to the surprised group as a policeman. The intruder then told them that Michaels father got

involved in a stabbing incident in the local basketball court. As if on cue, two men followed the first man in entering the house and promptly thereafter covered their faces with handkerchiefs. These two were wearing long pants and also carried handguns. The first man who entered the house did not cover his face. With guns pointed at them, the occupants of the house were brought to the masters bedroom where they were tied and detained by the three intruders. Later, one of the armed men, identified by Michael as herein appellant, untied Michael and ordered him to pull out the plugs of the appliances in the house, such as the television set, the V.H.S. player and the radio cassette recorder. Appellant and the other masked man then began to search the house for valuables in the living room and in the kitchen. Meanwhile, the first man remained in the masters bedroom and found cash money, in pesos and dollars, and bottles of perfume. The men then placed in a big bag the radio cassette player, canned goods, money and perfumes that they had found inside the house. Thereafter, the first intruder, whom Glorivic referred to as the mastermind of the group, returned to the masters bedroom and asked the terrified group for jewelries. Unable to get any jewelry, he brought Glorivic to the childrens (Michael and Michelles) bedroom opposite the masters bedroom. Upon entering the room, the man turned on the lights there. In the meanwhile, his two masked companions continued looking around the house for other valuables. Inside the bedroom, the ostensible leader of the gang untied Glorivic and ordered her to search the room for jewelries. After Glorivic failed to find any, the man directed her to remove her clothes and pointed his gun at Glorivics head. Despite her pleas and cries, the man removed the shirt, long pants and underwear of Glorivic while keeping the gun leveled at her. Shortly after, the man put the gun on top of the ironing board beside the bed, then pushed Glorivic towards the bed and lay on top of her. Glorivics resistance proved to be futile as the man was able to violate her chastity. Before the first man could leave the room, another member of the group entered and pushed Glorivic again to the bed when she was just about to put on her dress. Upon entering the room, the second mans cloth cover tied around his face fell and hang around his neck. After threatening to kill her, the man put a pillow on her face, forcibly spread Glorivics legs and has sexual congress with her. Glorivic would later point to appellant during the trial as this second man. After the second man was through, the third man came in. While Glorivic was still sitting on the bed and crying, the third man took the bed sheet and covered her face with it. Just like what his companions did before him, the third man had sexual intercourse with Glorivic through force and intimidation, but not without first removing the handkerchief tied over his face. Michael was able to see the three malefactors enter and leave the room one after the other as the door of the masters bedroom was left open. He was also able to hear Glorivic crying and her implorations to her tormentors in the opposite room. After the consummation of the odious act, the third man told Glorivic to dress up. Glorivic felt blood flowing down her thighs as she put on her clothes. Thereafter, the third man tied her up and brought her back to the company of the other occupants of the house. Michael saw Glorivic with disheveled hair and wearing her pants turned inside out, with blood on the lower parts. The felons left after intimating to the group by way of a threat that they were going to explode a hand grenade. Around five minutes later, after ascertaining that the culprits had left, Michael and the others untied each other. Thereafter, they went to the house of his fathers friend located two blocks away and, from there, they proceeded to the Urduja police detachment. Glorivic met appellant again on March 7, 1994. Policemen came to her place of work and asked her to come with them as they had a person in custody whom they suspected to be herein appellant. At the Caloocan City Jail, Glorivic was made to face eight detainees. She was able to readily recognize appellant among the group because of the mole on his right cheek. Before she picked him out from the other men, she carefully saw to it that the one she pointed out was really appellant. On the part of Michael, he stated that he was fetched by policemen on March 7, 1994 at his school to make an identification at the Dagat-Dagatan police station. Appellant was with six other inmates when they arrived at the station. Michael pointed to appellant as one of the robbers who entered their house, after readily remembering that he was the one who ordered him to unplug the appliances. Michael could never be mistaken in appellants identity because he could not forget the prominent mole and its location on appellants right cheek. Testifying at the trial,[7] appellant denied any participation in the robbery with rape committed in the Buenvinida residence. Appellant claimed that it was only

on March 7, 1994 that he first met Glorivic Bandayanon and insisted that he does not know Michael Buenvinida. He claimed that he was in his house in Wawa, Paraaque together with his wife and children the whole day of December 28, 1991. He moved to Bagong Silang, Caloocan City in 1993 after he was able to find work as a mason under his brother who lives in the same district. On cross-examination, appellant denied having visited his brother at Bagong Silang from 1991 to 1992. However, upon further questioning by the public prosecutor, appellant admitted that he made several visits to his brother in 1991. Moreover, he explained that it usually took him three hours to travel to Caloocan City from Paraaque by public utility bus. Giving credence to the testimonies of the witnesses of the prosecution and rejecting appellants defense of alibi, the trial court[8] found appellant guilty of the composite crime of robbery with rape. Although the proper imposable penalty is death,[9] considering the lower courts finding of two aggravating circumstances of nocturnidad and use of a deadly weapon, appellant was sentenced to reclusion perpetua in observance of the then constitutional prohibition against the imposition of capital punishment. With regard to his civil liabilities, appellant was ordered to indemnify Ernesto Buenvinida in the sum of P73,000.00 as the value of his stolen and unrecovered personal properties, and to pay Glorivic Bandaya P30,000.00 by way of moral damages, plus the costs of suit.[10] In this present appellate review, appellant inceptively faults the lower court for convicting him despite the supposedly undependable and untrustworthy identification made by the eyewitnesses. He claims that Glorivic Bandayanon and Michael Buenvinida could have been mistaken in their identification[11]because (l) of the long interval of time before they were able to confront him; (2) his face was covered with a handkerchief as they themselves narrated in court; and (3) they could have been so gravely terrified by the criminal act as to have their mental faculties impaired. When an accused assails the identification made by witnesses, he is in effect attacking the credibility of those witnesses who referred to him as the perpetrator of the crime alleged to have been committed.[12] The case then turns on the question of credibility. It has long been a well-entrenched rule of evidence and procedure that the issue of credibility of witnesses is almost invariably within the exclusive province of a trial court to determine, under the principle that the findings of trial courts deserve respect from appellate tribunals.[13] The foregoing rule notwithstanding, we expended considerable time and effort to thoroughly examine the records and objectively assay the evidence before us, considering the gravity of the offense charged. However, we find no compelling reasons to overturn the lower courts conclusion on the accuracy and correctness of the witnesses identification of appellant as one of the persons who robbed the house of the Buenvinidas and raped Glorivic. The testimonies of the principal witnesses for the prosecution were not only consistent with and corroborative of each other. The transcripts of stenographic notes which we have conscientiously reviewed, further reveal that their narrations before the lower court were delivered in a clear, coherent and unequivocal manner. There was no perceptible hesitation or uncertainty on the part of Glorivic and Michael when they unerringly identified appellant during the trial. The unhurried, studious and deliberate manner in which appellant was identified by them in court added strength to their credibility[14] and immeasurably fortified the case of the prosecution. The records also show that the memory of these witnesses were not in any way affected by the passage of two years and three months since the tragedy. Glorivic categorically stated on the witness stand that the lapse of those years did not impair her memory and she could still identify those who raped her.[15] Michael asserted that he could still positively identify appellant because of the latters mole, as well as the several opportunities of the former to take a good look at appellants face during the robbery,[16] and the same is true with Glorivic. Appellants mole on his right cheek provided a distinctive mark for recollection and which, coupled with the emotional atmosphere during the incident, would be perpetually etched in the minds of the witnesses. It is the most natural reaction for victims of criminal violence to strive to ascertain the appearance of their assailants and observe the manner in which the crime was committed. Most often, the face and body movements of the assailants create a lasting impression on the victims minds which cannot be easily erased from their memory.[17] While appellant claims that his face was covered during the commission of the crime, there were providential points in time when the two witnesses were able to freely see his face and scan his facial features closely to as to enable them to identify him later on. Although appellant placed a pillow on her face. Glorivic declared that when the latter two offenders raped her, their faces were no longer covered. In the case of

appellant, the handkerchief on his face fell upon his entering the room and he left it that way while he raped Glorivic.[18] And when the latter two transgressors entered the house, their faces were then exposed and it was only when they were already inside the house that they covered their faces with handkerchiefs.[19] These circumstances gave Michael and Glorivic sufficient time and unimpeded opportunity to recognize and identify appellant. There is no evidence to show that the two eyewitnesses were so petrified with fear as to result in subnormal sensory functions on their part. Contrarily, in a recently decided case, we held that fear for ones life may even cause the witness to be more observant of his surroundings.[20] The ample opportunity to observe and the compelling reason to identify the wrongdoer are invaluable physiognonomical and psychological factors for accuracy in such identification. The records do not disclose any improper motive on the part of the witnesses to falsely point to appellant as one of the robber-rapists. Appellant even admitted that he did not know Glorivic and Michael prior to the commission of the crime. It is doctrinally settled that in the absence of evidence showing that the prosecution witnesses were actuated by improper motive, their identification of the accused as the assailant should be given full faith and credit.[21] Where conditions of visibility are favorable, as those obtaining in the Buenvinida residence when the crimes were committed, and the witnesses do not appear to be biased, their assertions as to the identity of the malefactor should be accepted as trustworthy.[22] For his second assignment of error, appellant contends that the lower court should not have ordered him to pay the value of the unrecovered personalties to Ernesto Buenvinida, damages to Glorivic Bandayanon, and the costs of suit because he is not criminally liable as shown by the failure of the witnesses to properly identify him. We find speciosity in this second contention of appellant because such argument flows from the premise that he is not guilty. As the trial court found, and with which we resolutely agree as already explained, appellant is culpable beyond reasonable doubt for the special complex crime of robbery with rape committed in the early evening of December 28, l99l at Caloocan City. However, we deem worthy of elucidation the matter of the value of the items established to have been stolen from the house of the Buenvinidas. Incidentally, appellant claims in his brief that the amounts alleged in the information as the bases of his civil liability for robbery were just concocted and founded on speculation and conjectures.[23] To prove the value of the burglarized properties, the prosecution presented an affidavit executed by Ernesto Buenvinida[24] on March 7, 1994, containing a list of the stolen movables and with their corresponding values, as now found in the information. This affidavit was identified and marked as Exhibit H[25] for the prosecution during the testimony of SPO4 Abner Castro,[26] the police officer who conducted an investigation of the incident on December 28, 1991. In addition to testifying on the arrest and investigation of appellant, Castro repeated in open court the respective values of the personal properties as explained to him by Ernesto Buenvinida and how he helped Ernesto in the preparation thereof.[27] The same was formally offered in evidence[28] to prove, among others, the facts and amounts contained therein and as testified to by witness Castro. Although objected to by appellant as self-serving,[29] the lower court admitted said document for the purpose for which it was offered and as part of the testimony of said witness.[30] It may be theorized, and in fact appellant in effect so postulates, that the prosecution has failed to prove the value of the stolen properties and, for lack of evidence thereon, the civil liability therefor as adjudged by the court below may not be sustained. It is true that the evidence presented thereon consisted of the testimony of the investigator, Abner Castro, who based his evaluation on the report to him by Ernesto Buenvinida. These are legal aspects worth discussing for future guidance. While it is claimed that hearsay testimony was involved, it is actually and not necessarily so. The rule that hearsay evidence has no probative value does not apply here, since SPO4 Abner Castro was presented as a witness and testified on two occasions, during which he explained how the value of the stolen properties was arrived at for purposes of the criminal prosecution. During his testimony on his investigation report and the affidavit of Ernesto Buenvinida on the amounts involved, appellant had all the opportunity to cross-examine him on the correctness thereof; and it was this opportunity to cross-examine which negates the claim that the matters testified to by the witness are hearsay. And, said documents having been admitted as part of testimony of the policeman, they shall accordingly be given the same weight as that to which his testimony may be entitled. Again, even under the rule on opinions of ordinary witnesses, the value of the stolen items was established. It is a standing doctrine that the opinion of a witness is admissible in evidence on ordinary matters known to all men of common perception, such as the value of ordinary household articles.[31] Here,

the witness is not just an ordinary witness, but virtually an expert, since his work as an investigator of crimes against property has given him both the exposure to and experience in fixing the current value of such ordinary articles subject of the crime at bar. Incidentally, it is significant that appellant never dared to crossexamine on the points involved, which opportunity to cross-examine takes the testimony of Castro out of the hearsay rule, while the lack of objection to the value placed by Castro bolsters his testimony under the cited exception to the opinion rule. Also not to be overlooked is the fact that the trial court has the power to take judicial notice, in this case of the value of the stolen goods, because these are matter of public knowledge or are capable of unquestionable demonstration.[32] The lower court may, as it obviously did, take such judicial notice motu proprio.[33] Judicial cognizance, which is based on considerations of expediency and convenience, displace evidence since, being equivalent to proof, it fulfills the object which the evidence is intended to achieve.[34] Surely, matters like the value of the appliances, canned goods and perfume (especially since the trial court was presided by a lady judge) are undeniably within public knowledge and easily capable of unquestionable demonstration. Finally, as a matter of law and not on the excuse that after all appellant cannot satisfy his civil liability, the real value of the asported properties would nonetheless be irrelevant to the criminal liability of appellant. Insofar as the component crime of robbery is concerned, the same was committed through violence against or intimidation of persons, and not through force upon things, hence the value of the property subject of the crime is immaterial.[35] The special complex crime of robbery with rape has, therefore, been committed by the felonious acts of appellant and his cohorts, with all acts of rape on that occasion being integrated in one composite crime. The value of the objects of the apoderamiento relates only to the civil aspect, which we have already resolved. One final complementary disposition is called for. Victim Glorivic Bandayanon was subjected by appellant and his co-conspirators to multiple rape, and under humiliating circumstances equivalent to augmented ignominy since she was abused by the three accused successively and virtually in the presence of one after the other. The award of P30,000.00 for moral damages made by the court below should accordingly be amended. WHEREFORE, the appealed judgment of the trial court is hereby AFFIRMED in full, with the sole MODIFICATION that the damages awarded to the offended party, Glorivic Bandayanon, is hereby increased to P50,000.00. SO ORDERED. Romero, Puno, Mendoza, and Torres, Jr., JJ., concur. <3 <3 <3 THIRD DIVISION [G.R. No. 135204. April 14, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. NARCISO RAMOS y MATIAS, RAMON SAN ROQUE y DELA CRUZ, EULALIA SAN ROQUE DE FRANCISCO y DELA CRUZ alias LALING, WILLIAM RAMOS alias WILFREDO RAMOS, (provisionally dismissed), and three (3) other John Does, accused. EULALIA SAN ROQUE DE FRANCISCO y DELA CRUZ alias LALING, appellant. DECISION SANDOVAL-GUTIERREZ, J.: Appeal by Eulalia San Roque de Francisco y dela Cruz from the Decision<!--[if !supportFootnotes]-->[1]<!--[endif]--> dated April 24, 1998 of the Regional Trial Court, Branch 122, Caloocan City, in Criminal Case No. C-46010, declaring her guilty beyond reasonable doubt of the crime of murder and sentencing her to suffer the penalty of reclusion perpetua. She was also adjudged to pay the heirs of the victim, P50,000.00 as civil indemnity. The Information<!--[if !supportFootnotes]-->[2]<!--[endif]--> dated December 14, 1993 filed against appellant and her co-accused Narciso Ramos y Matias alias Narcing, Ramon San Roque y dela Cruz, Wilfredo Ramos and three (3) other John Does is quoted as follows: That on or about the 11th day of February 1993 in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above named accused, with deliberate intent to kill, conspiring together and mutually helping one another, with treachery, evident premeditation and abuse of superior strength, did then and there willfully, unlawfully and feloniously tie up on a santol tree, stab, shoot and burn one WILLIAM LOMIDA, resulting to the death of the latter. CONTRARY TO LAW. Upon arraignment on December 15, 1994, appellant, assisted by counsel, pleaded not guilty to the crime charged. The case against Wilfredo Ramos was provisionally dismissed. The other accused, Narciso Ramos and Ramon San Roque, have remained at large.

During the trial, the prosecution presented the following witnesses: Bernie Ambal, Saturnino Rivera, Mariano Lomida and NBI Special Investigator Laurence M. Nidera. Their testimonies, woven together, established the following facts: On February 11, 1993 at around 7:00 oclock in the evening, Bernie Ambal was standing outside his store at 168 De Paro St., Caloocan City. Narciso Ramos, Ramon San Roque and three (3) others passed by. They proceeded to the house of William Lomida and appellant, who were then live-in partners. Narciso and Ramon stood by the door, while one of their companions, holding an armalite, positioned himself behind Narciso. Their other companion, armed with a pistol, stayed on the street, and the third one, also armed with a pistol, went to the backyard. At a distance of ten (10) meters away, Ambal saw Narciso pulling out his .45 caliber pistol and knocking at the door. Appellant then opened the door and Ramon went inside. Soon thereafter, William and appellant, accompanied by Narciso, Ramon, and three (3) others left the house. As they were passing by the store, Ramon stopped and borrowed Ambals jacket. At that instance, William suddenly held his arm and whispered, Samahan mo naman ako, baka kung ano ang gawin sa akin ng mga ito, tutal barkada mo naman si Ramon. But Ambal was scared and hesitant. William then requested him to look for Saturnino Rivera. The group headed to Narcisos house, about kilometer away from Ambals store. Unknown to them, Ambal trailed behind. Hiding himself behind a tree fifteen meters away, Ambal saw one of their companions poking his armalite at William. Then, they tied William to a santol tree. He was pleading to appellant, but she simply turned her back. Ramon stabbed William twice at the stomach with a 29 bladed knife. Then Narciso shot William five to seven times with his .45 caliber pistol. When William was already dead, Ramon and Wilfredo Ramos untied his body and brought it to a dumpsite (of used tires) twenty five meters away. There they placed Williams body atop a pile of rubber tires. Ramon poured gasoline on his body and set it on fire. Appellant and the others were closely watching. After thirty minutes, appellant and the men left. Ambal immediately reported the incident to Saturnino Rivera. They proceeded to the dumpsite where they saw the charred body. According to Ambal, Ramon, appellant and Narcisos sister are brother and sisters. Saturnino Rivera declared on the witness stand that he considered William his best friend. William and appellant frequently quarreled and sometimes, he maltreated her. Saturnino corroborated Ambals testimony that they went to the scene of the crime and saw the charred body of William; and that they reported the gruesome incident to the NBI. Mariano Lomida testified that on February 19, 1993, or eight days after the incident, appellant suddenly arrived in Atimonan, Quezon looking for William. She told Mariano that William left their house on February 9, 1993 without her knowledge. She borrowed P3,000.00 from him (Mariano) with a promise to pay on March 27, 1993. But since then, he never saw her again. Mariano further testified that due to the death of his son, he suffered wounded feelings. Special Investigator Laurence M. Nidera of the NBI Anti-Organized Crime Division conducted the investigation. He took the statements of Bernie Ambal, Saturnino Rivera and Mariano Lomida. Upon the arrest of appellant and Narciso Ramos by the Capital Command (CAPCOM) of the Philippine National Police, they were turned over to the NBI. After the prosecution rested its case, appellant filed a demurrer to evidence but was denied. Meanwhile, appellant jumped bail. On the basis of the evidence presented by the prosecution, the case was submitted for decision. On April 24, 1998, the trial court rendered a Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered, finding the accused Eulalia San Roque de Francisco y dela Cruz alias Laling GUILTY beyond reasonable doubt of the crime of murder as charged in the Information and hereby sentences her to suffer the penalty of reclusion perpetua with accessory penalties as provided by the law and to indemnify the heirs of the victim in the sum of P50,000.00. SO ORDERED.<!--[if !supportFootnotes]-->[3]<!--[endif]--> Appellant appeared during the promulgation of the Decision. In her brief, appellant raised the following assignments of error: ITHE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED EULALIA SAN ROQUE DE FRANCISCO Y DELA CRUZ alias LALING CONSPIRED AND CONFEDERATED WITH HER CO-ACCUSED IN PERPETRATING THE CRIME OF MURDER, WHEN THE FACT OF SUCH CONSPIRACY HAS NOT BEEN SATISFACTORILY PROVEN TO EXIST BEYOND REASONABLE DOUBT DURING THE TRIAL OF THE CASE.

IITHE TRIAL COURT ERRED IN DECIDING THE CASE AGAINST THE ACCUSED-APPELLANT DESPITE THE WEAK EVIDENCE OF THE PROSECUTION, CONSIDERING THAT THE PROSECUTION HAS FAILED TO PROVE ALL THE NECESSARY ELEMENTS OF THE CRIME AND THE CORPUS DELICTI. IIITHE TRIAL COURT ERRED IN HOLDING THE ACCUSED GUILTY OF THE CRIME OF MURDER BY THE MERE FACT THAT SHE FAILED TO APPEAR AFTER THE CASE WAS REVIVED SUCH FAILURE HAVING BEEN APPRECIATED BY THE TRIAL COURT AS A CLEAR INDICATION OF HER GUILT. IVTHE TRIAL COURT COMMITTED AN ERROR IN FINDING THE ACCUSED GUILTY OF THE CRIME OF MURDER ON THE BASIS ALONE OF THE TESTIMONY OF THE SOLE WITNESS IN THIS CASE, WITHOUT BEING SUPPORTED THEREBY BY CONVINCING EVIDENCE. We shall discuss the above assignments of error jointly. Article 248 of the Revised Penal Code, as amended, provides: ART. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal,<!--[if !supportFootnotes]-->[4]<!--[endif]--> in its maximum period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aim of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. In convicting the appellant of murder, the trial court gave full faith and credence to the testimony of prosecution lone eyewitness, Bernie Ambal. An extract from his testimony is quoted hereunder: DIRECT EXAMINATION BY PROS. MANAQUIL: xxx Q And in the evening of that date, could you recall at about 7:00 in the evening of February 11, 1993, if there was any unusual incident that happened? A Yes, sir. Q Will you please tell us what was that unusual incident all about that you observed and noticed? A Narciso Ramos, Ramon San Roque and three men of Narciso Ramos got the victim and Eulalia San Roque was also with the group. Court: Q Who was taken? A The victim, your Honor. Q What is the name of the victim? A William Lomida was taken by these people. Pros. Mananquil: Q From where the accused picked up by these people? A Lomida was taken from the house where Eulalia San Roque and William Lomida were living. Q William Lomida is the victim in this case. Now, how is he related to Eulalia San Roque? A They are not married. They are live-in partners. Q Now, how far from the store where this house of William Lomida and Eulalia San Roque is located? A More or less, ten meters away. Q Is it located in front of the store, on the left side or at the back of the store? A The house of Eulalia is alongside of our house. Q What part of your store where you were at the time you saw these people picked up Lomida? A I was outside the store standing. Q After the accused picked up the victim, what happened or where did they go? A William Lomida, the victim, was brought to the house of Narciso Ramos. xxx Court: xxx Q So the persons whom you saw got Lomida were Narciso Ramos, Ramon San Roque, William Ramos alias Wilfredo Ramos and three men of Narciso Ramos and Eulalia San Roque? A Yes, your Honor.

xxx Pros. Mananquil: Q Now, you said that the accused brought William Lomida to the house of Narciso Ramos. How far is this house of Narciso Ramos located in relation to the store, your store? A About half kilometer away. xxx Q Now, when the victim was brought to the house of Narciso Ramos, what happened next? A The victim was tied to a santol tree. Q Where is this santol tree where the victim Lomida was tied? How far is this from the house of Narciso Ramos? Court: Q Who tied the victim? A Ramon San Roque, Wilfredo Ramos and the three others unidentified men. Pros. Mananquil: Q After the accused tied William Lomida on a santol tree, what happened next? A Ramon San Roque stabbed William Lomida. Q And with what kind of weapon was used by Ramon San Roque? A A bladed 29. Q How long? A I cannot say how long, sir. Q How many times did you see Ramon San Roque stabbed the victim with the 29? A About two times, sir. Q And did you see if Lomida was hit with that two stab thrust? A He was stabbed on the stomach. Pros. Mananquil: Q What happened after Ramon San Roque stabbed the victim? A The victim, William Lomida nangisay and then Narciso Ramos came near the victim and shot him. Q How many times? A About 5 to 7 shots. Q And did you see if the victim was hit? A It seems that the shots were directed to his face because he was bloodied all over his face. Q With what kind of firearm, if you remember? A When the investigator showed me some guns, I noticed that the one gun that Narciso Ramos used was a .45 caliber. Q Was it magazine or revolver? A Magazine type. Q After Narciso Ramos shot the victim 7 times on the head, what happened next? A When the group made sure that the victim was dead already, they untied him and brought the body where there was a pile of tires, piles of pieces of rubber tires. Q By the way, at the time when the victim was shot by Narciso Ramos and stabbed by Ramon San Roque, where was Willy Ramos, Narciso Ramos and Eulalia San Roque? A They were just there standing and afterwards, turned their back around. xxx Prosecutor: Q How far was Eulalia San Roque from Lomida when Lomida was shot by Narciso Ramos and stabbed by Ramon San Roque? A This place up to that wall. Distance of about 8 meters. Q And what was Eulalia doing at the time when the victim was stabbed and shot? A She turned her back and face the kitchen of the house of Narciso Ramos. Q Did she not try to intervene, this Eulalia, being the live-in partner of William Lomida or did not exert effort to pacify? xxx Prosecutor: Q Just turning her back, what else that she did, being live-in partner of William Lomida? A She did not do anything anymore. Q After the victim was stabbed and shot, he was untied from the santol tree. Who untied him? A It was Ramon San Roque, Willy Ramos and the three others. Q Willy refers to Wilfredo Ramos? A Yes, sir. Q Where was Eulalia at the time? A She was still there standing. Q Now, you said after the victim was untied from the santol tree, he was brought to where pieces of rubber tires were piled, recycled, how far is this from the santol tree where the victim was tied? A About 25 meters. Q Now, after the accused brought the victim to the piles of recycled tires, what happened next? A Ramos San Roque got a can and poured something on the body of the victim and then, lighted it up. Q What happened to the body of the victim, William Lomida? A The body was burned.

Q At the time when this Ramon San Roque poured something on the body of the victim and then lighted the same, where were Wilfredo Ramos, Eulalia San Roque and Narciso Ramos and the other unidentified persons? A There were They were there in front of the burning body. Q How long did the fire last? A It took a long time, about more than one hour. Q After one hour, what happened next? A They left the place. The group left the place. Court: Q What happened to the tires? A The tires also burned. Q And where was the body of Lomida in relation to the tires? A The body of the victim was almost burned and when we went back to the place, the shape of the charred was still there. The same of human body.<! --[if !supportFootnotes]-->[5]<!--[endif]--> The foregoing testimony clearly shows that Ambal, being then present at the locus of the crime, was able to identify the appellant and the other accused as the persons who killed William. Ambal narrated the incidents leading to the victim's death with clarity and lucidity that they could not have been fabricated or concocted. The records show that throughout the trial, he remained steadfast in his testimony. There is thus no doubt in our minds that this lone eyewitness is credible. While his testimony is uncorroborated, still it sustains the conviction of appellant. In People vs. Toyco,<!--[if !supportFootnotes]-->[6]<!--[endif]--> we held: It is axiomatic that truth is established not by the number of witnesses but by the quality of their testimonies. The testimony of a single witness if positive and credible is sufficient to support a conviction even in charge of murder. We are not persuaded by appellants contention that the prosecution failed to adduce sufficient evidence to establish the existence of conspiracy among the accused. She vigorously contends that she did not participate in the killing of the victim. In determining the existence of conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim.<!--[if !supportFootnotes]-->[7]<!-[endif]--> The presence of conspiracy among the accused can be proven by their conduct before, during or after the commission of the crime showing that they acted in unison with each other, evincing a common purpose or design. There must be a showing that appellant cooperated in the commission of the offense, either morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent of supplying aid in the perpetration of the crime in an efficacious way. In such case, the act of one becomes the act of all, and each of the accused will thereby be deemed equally guilty of the crime committed.<!--[if !supportFootnotes]-->[8]<!--[endif]--> The series of events in this case convincingly show that appellant and her coaccused acted in unison and cooperated with each other in killing William Lomida. Appellant was the one who opened the door and allowed the other accused to enter the house. She joined them in bringing the victim to the residence of Narciso Ramos, her brother-in-law. While her co-accused dragged the helpless victim, tied him to a santol tree, stabbed him twice by a bladed knife, and shot him 5 to 7 times, appellant merely watched intensely. She even turned her back as the lifeless body of the victim was being burned. And after attaining their purpose, she fled with the other accused. The above circumstances clearly show the common purpose and concerted efforts on the part of appellant and her co-accused. We agree with the trial court in concluding that their acts were indications of a criminal conspiracy to commit the crime of murder. The only remaining question is whether the crime was attended by aggravating circumstances. The killing of the victim was attended by treachery. Treachery exists when the offender commits a crime against persons, employing means, methods or forms in the execution thereof which tend directly and specifically to insure its execution, without risk to himself arising from any defense or retaliatory act which the victim might make.<! --[if !supportFootnotes]-->[9]<!--[endif]--> Here, appellant and her co-accused tied William to a santol tree before they stabbed and shot him to death, thus, insuring the execution of the crime without risk to themselves. Obviously, he could not retaliate. This aggravating circumstance qualifies the crime to murder. However, we cannot sustain the trial courts appreciation of the aggravating circumstance of superior strength as this is absorbed in treachery.<!--[if !supportFootnotes]-->[10]<!--[endif]--> It bears stressing that this crime of murder was committed on February 11, 1993.<!--[if !supportFootnotes]-->[11]<!--[endif]--> The law applicable is Article 248 of the Revised Penal Code then penalizing murder with reclusion temporal in its maximum period to death. Under Article 64 (1) of the Revised Penal Code, 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, and there are neither aggravating nor mitigating circumstances that attended the commission of the crime, the penalty prescribed by law in its medium period shall be imposed. The range of the imposable penalty, i.e., reclusion temporal in its maximum period to death, is 17 years, 4 months and 1 day to death. Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstance that attended the commission of the crime, the maximum period is the medium of the imposable penalty, which is reclusion perpetua. The minimum period is one degree lower, or prision mayor in its maximum period to reclusion temporal in its medium period, the range of which is 10 years and 1 day to 17 years and 4 months. The minimum period of the penalty imposable is anywhere within this range, or 10 years and 1 day. Hence, appellant should be sentenced to 10 years and 1 day of prision mayor, as minimum, to reclusion perpetua, as maximum. Regarding damages, the trial court correctly awarded P50,000.00 as civil indemnity to the victims heirs. When death occurs as a result of a crime, appellant should be ordered to pay the heirs of the victim P50,000.00 as civil indemnity, without need of any evidence or proof of damages.<!--[if !supportFootnotes]-->[12]<!--[endif]--> We likewise award temperate damages, in lieu of actual damages. Here, the prosecution failed to present any proof of the expenses incurred by the victims heirs. However, as they actually incurred funeral expenses, we award P25,000.00 by way of temperate damages.<!--[if !supportFootnotes]-->[13]<!-[endif]--> Anent moral damages, we award the victims heirs the amount of P50,000.00.<! -[if !supportFootnotes]-->[14]<!--[endif]--> For verily, moral damages are not intended to enrich the victims heirs; rather they are awarded to allow them to obtain means for diversion that could serve to alleviate their moral and psychological sufferings.<!--[if !supportFootnotes]-->[15]<!--[endif]--> Mariano Lomida, victims father, equivocally described how he suffered untold wounded feelings for the loss of his son. We also award the victims heirs P25,000.00 as exemplary damages. This is pursuant to our ruling in People vs. Catubig<!--[if !supportFootnotes]-->[16]<!-[endif]--> that if a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified. WHEREFORE, the assailed Decision dated April 24, 1998 of the Regional Trial Court, Branch 122, Caloocan City, in Criminal Case No. C-46010, is hereby AFFIRMED with MODIFICATION in the sense that appellant EULALIA SAN ROQUE DE FRANCISCO is sentenced to suffer the penalty of 10 years and 1 day of prision mayor, as minimum, to reclusion perpetua, as maximum. She is ordered to pay the victims heirs (a) P50,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P50,000.00 as moral damages and (d) P25,000.00 as exemplary damages. Costs de oficio. SO ORDERED. Vitug, (Chairman), Corona and Carpio-Morales, JJ., concur. <3 <3 <3 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 93028 July 29, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MARTIN SIMON y SUNGA, respondent. The Solicitor General for plaintiff-appellee. Ricardo M.Sampang for accused-appellant. REGALADO, J.: Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana. 1 Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he pleaded not guilty. He voluntarily waived his right to a pre-trial conference, 3 after which trial on the merits ensued and was duly concluded. I-The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the police unit at Camp Olivas, San Fernando,

Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities and barangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the investigator. 4 Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from appellant. 5 Sgt. Domingo Pejoro, for his part, declared that although he was part of the buybust team, he was stationed farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel. 6 Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7 Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-intestinal pain, his physical condition remained normal. 8 As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at around 4:30 p.m., he was watching television with the members of his family in their house when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days. 9 Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body. 11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the Government. 12 Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13 At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently from his possession, 14 the latter not being in any way connected with the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. 15 In view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal possession of the other two tea bags which separate offense is not charged herein. 16 To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills. After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that they are presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, 23 confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime had been fully proved with certainty and conclusiveness. 25 Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26 Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. 27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations. 28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows: Q: Is it the standard operating procedure of your unit that in conducting such operation you do not anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the persons taking hold of the object? A: We were not able to put powder on these denominations because we are lacking that kind of material in our office since that item can be purchased only in Manila and only few are producing that, sir. xxx xxx xxx Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of NICA? A: Our office is only adjacent to those offices but we cannot make a request for that powder because they, themselves, are using that in their own work, sir. 29 The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." 30 The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification can be supplied by other species of evidence. Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police authorities. 31 These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. 33 However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, 35 hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction 37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts to support his explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and coercion. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but

must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 44 The evidence on record is bereft of any support for appellant's allegation of maltreatment. Two doctors, one for the prosecution 45 and the other for the defense, 46 testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. 48 Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the same to his brother who went to see him at the camp after his arrest and during his detention there. 49 Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite the opportunity to do so 50 and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. II-The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect: Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows: xxx xxx xxx Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. xxx xxx xxx Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xxx xxx 5. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code. Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. 54 The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification. 55 Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has

applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. 56 2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, 57 we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum period. 58 Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction. 59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to death. 60 Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. Originally, those special laws, just as was the conventional practice in the United States but differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time laws like the Indeterminate Sentence Law 61 were passed during the American regime. Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance, Commonwealth Act No. 303 62 penalizing non-payment of salaries and wages with the periodicity prescribed therein, provided: Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act, shall prima facie be considered a fraud committed by such employer against his employee or laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein provided. 63 Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700 (AntiSubversion Act) where the penalties ranged from arresto mayor to death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involve prision mayor, reclusion temporal, reclusion perpetua or death. Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with violence against or intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed. With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or

applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have suppletory effect to the penalties under the former Republic Act No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied legislation, which could never have been the intendment of Congress. In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.) More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement: . . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be "supplementary" to special laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the provisions of the Code . . . . The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the Court in the application of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which distill the "deep legal thought and centuries of experience in the administration of criminal laws." (Emphasis ours.) 66 Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result in absurdities as will now be explained. While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the

aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. 69 We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable

under the law, 70 and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71 The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor of the accused. 72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. 73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot. ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof. SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Bellosillo, J., is on leave. Separate Opinions DAVIDE, JR., J., concurring and dissenting: I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the dangerous drugs involved, would be prision correccional. I-The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A. No. 4203) also provides that: if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the

maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely hard to justify. I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be that whose minimum should not be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional. II-The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order to depreciate the seriousness of drug offenses. Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or

more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed. I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal Code, which reads: Art. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. 2. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed, but always in the proper period. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. Feliciano and Quiason, JJ., concur. # Separate Opinions DAVIDE, JR., J., concurring and dissenting: I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the dangerous drugs involved, would be prision correccional. I-The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A. No. 4203) also provides that:

if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely hard to justify. I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be that whose minimum should not be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional. II-The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order to depreciate the seriousness of drug offenses.

Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed. I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal Code, which reads: Art. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. 2. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed, but always in the proper period. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. Feliciano and Quiason, JJ., concur. <3 <3 <3 --Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 15, 1912 G.R. No. L-7037 THE UNITED STATES, plaintiff-appellee,vs.JOSE LAUREL, ET AL., defendantsappellants. OBrien and DeWitt for appellants. Attorney-General Villamor for appellee. Torres, J.: This appeal was raised by the four above-named defendants, from the judgment of conviction, found on page 117 of the record, rendered by the Honorable Mariano Cui. The facts in this case are as follows: On the night of December 26, 1909, while the girl Concepcion Lat was walking along the street, on her way from the house of Exequiel Castillo, situated in the pueblo of Tanauan, Province of Batangas, accompanied by several young people, she was approached by Jose Laurel who suddenly kissed her and immediately thereafter ran off in the direction of his house, pursued by the girls companions, among whom was the master of the house above mentioned, Exequiel Castillo; but they did not overtake him.

On the second night after the occurrence just related, that is, on the 28th, while Exequiel Castillo and Jose Laurel, together with Domingo Panganiban and several others of the defendants, were at an entertainment held on an upper floor of the parochial building of the said pueblo and attended by many residents of the town, it is alleged that the said Castillo and Laurel were invited by Panganiban, the former through his brother, Roque Castillo, and the latter, directly, to come out into the yard, which they did, accompanied by Panganiban and the other defendants referred to. After the exchange of a few words and explanations concerning the kiss given the girl Lat on the night of the 26th of that month, a quarrel arose between the said Jose Laurel and Exequiel Castillo, in which Domingo Panganiban, Vicente Garcia, and Conrado Laurel took part, and as a result of the quarrel Exequiel Castillo was seriously wounded. He succeeded in reaching a drug store near by where he received first aid treatment; Jose Laurel also received two slight wounds on the head. Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo early in the morning of the following day, stated that his examination of the latters injuries disclosed a wound in the left side of the chest, on a level with the fourth rib, from 3 to 4 centimeters in depth, reaching into the lung; another wound in the back of the left arm and in the conduit through which the ulnar nerve passes, from 10 to 11 centimeters in length, penetrating to the bone and injuring the nerves and arteries of the said region, especially the ulnar nerve, which was served; a contusion on the right temple, accompanied by ecchymosis and hemorrhage of the tissues of the eye; and, finally, another contusion in the back of the abdomen near the left cavity, which by reaction injured the stomach and the right cavity. According to the opinion of the physician above named, the wound in the left side of the breast was serious on account of its having fully penetrated the lungs and caused the patient to spit blood, as noticed the day after he was wounded, and there must have been a hemmorhage of the lung, an important vital vascular organ; by reason of this hemorrhage or general infection the patient would have died, had it not been for the timely medical aid rendered him. The wound on the back of the left arm was also of a serious nature, as the ulnar nerve was cut, with the result that the title and ring fingers of the patients left hand have been rendered permanently useless. With respect to the contusion on the right temple, it could have been serious, according to the kind of blows received, and the contusion on the back of the abdomen was diagnosed as serious also, on account of its having caused an injury as a result of which the wounded man complained of severe pains in the stomach and left spleen. The said physician stated that he had attended the patient fourteen consecutive days; that the contusion on the abdomen was cured in four or five days, and that on the right temple in ten or twelve days, although this latter injury was accompanied by a considerable ecchymosis which might not disappear for about three months, the time required for the absorption of the coagulated blood; that the stitches in the wound of the left arm were taken out after twelve days, and when witness ceased to attend the patient, this wound was healing up and for its complete cure would require eight or more days time; and that the wound in the breast, for the reason that it had already healed internally and the danger of infection had disappeared, was healing, although still more time would be required for its complete cure, the patient being able to continue the treatment himself, which in fact he did. In view of the strikingly contradictory evidence adduced by the prosecution and by the defense, and in order to decide what were the true facts of the case we shall proceed to recite the testimony of the party who was seriously wounded and of his witnesses, and afterwards, that of his alleged assailants and of their witnesses, in order to determine the nature of the crime, the circumstances that concurred therein and, in turn, the responsibility of the criminal or criminals. Exequiel Castillo testified that while he, together with Primitivo Gonzalez, was in the hall of the parochial building of Tanauan, attending an entertainment on the night of December 28, 1909, he was approached by his brother, Roque Castillo, who told him, on the part of Domingo Panganiban, that Jose Laurel desired to speak with him and was awaiting him on the ground floor of the said building, to give him an explanation with regard to his (Laurels) having kissed Concepcion Lat on the night of the 26th in the street and in the presence of the witness and other young people; that the witness, Exequiel Castillo, therefore, left the parochial building, accompanied by his brother Roque and Primitivo Gonzalez, and met Sofronio Velasco, Gaudencio Garcia, and Alfonso Torres, at the street door; that after he had waited there for half an hour, Jose laurel, Conrado Laurel, Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise came down out of the building and Jose Laurel approached him and immediately took him aside, away from the door of the building and the others; that Laurel then said to him that, before making any explanations relative to the said offense against the girl Concepcion Lat, he would ask him whether it was true that he (the witness, Castillo) had in his possession some letters addressed by Laurel to the said girl, to which the witness replied that as a gentleman he was not obliged to answer the question; that thereupon Jose Laurel suddenly struck him a blow in the left side of the breast with a knife, whereupon the witness, feeling that he was wounded, struck in turn with the cane he was carrying at his assailant, who dodged and immediately started to run; thereupon witness received another knife thrust in the left arm followed by a blow in the left side from a fist and witness, upon turning, saw Vicente Garcia and Domingo Panganiban in the act of again assaulting him; just then he was struck a blow with a cane on his right temple and, on turning, saw behind him Conrado Laurel carrying a stick, and just at the

moment Primitivo Gonzalez and several policemen approached him calling of peace; his assailants then left him and witness went to the neighboring drug store where he received first aid treatment. Witness further testified that he had been courting the girl Concepcion Lat for a month; that, because his sweetheart had been kissed by Jose Laurel, he felt a little resentment against the latter, and that since then he had no opportunity to speak with his assailant until the said night of the attack. Roque Castillo, a witness for the prosecution, testified that, at the request of Domingo Panganiban, he had suggested to his brother, Exequiel Castillo, that the latter should go down to the door of the ground floor of the parochial building, where Jose Laurel was waiting for him, so that the latter might make explanations to him with regard to what had taken place on the night prior to the 26th of December; that Exequiel, who was in the hall beside Primitivo Gonzalez, immediately upon receiving the notice sent him in Laurels name, got up and went down with Gonzalez and the witness, though the latter remained at the foot of the stairs in conversation with Virginio de Villa, whom he found there; that, after a little while, witness saw Jose Laurel, Jose Garcia, Domingo Panganiban, Vicente Garcia, and Conrado Laurel come down from the said building, and, on observing something bulging from the back of the latters waist he asked him what made that bulge, to which Laurel replied that it meant peace; witness thereupon said to him that if he really desired peace, as witness also did, he might deliver to the latter the revolver he was carrying, and to prove that he would not make bad use of the weapon, Laurel might take the cartridges out and deliver the revolver to witness. This he did, the witness received the revolver without the cartridges, and his fears thus allayed, the witness returned to the upper floor to the entertainment; but that, at the end of about half an hour, he heard a hubbub among the people who said that there was a quarrel, and witness, suspecting that his brother Exequiel had met with some treachery, ran down out of the house; on reaching the ground floor he met Primitivo Gonzalez, who had blood stains on his arms; that Gonzalez then informed him that Exequiel was badly wounded; that he found his said brother in Arsenio Gonzalez drug store; and that his brother was no longer able to speak but made known that he wanted to be shriven. Witness added that on that same night he delivered the revolver to his father, Sixto Castillo, who corroborated this statement. The other witness, Primitivo Gonzalez, corroborated the testimony given by the preceding witness, Roque Castillo, and testified that, while he was that night attending the entertainment at the parochial building of Tanauan, in company with Exequiel Castillo, the latter received notice from his (Castillos) brother, through Domingo Panganiban, to the effect that Jose Laurel desired to speak with him concerning what occurred on the night of December 26; that thereupon Exequiel, the latters brother, Roque and the witness all went down out of the house, though Roque stopped on the main stairway while witness and Exequiel went on until they came to the main door of the ground floor where they met Alfonso Torres and Gaudencio Garcia; that, after a while, Jose Laurel, Conrado Laurel, Vicente Garcia, Jose Garcia Aquino, and Domingo Panganiban came up; that when Jose Laurel met Exequiel Castillo he caught the latter by the hand and the two separated themselves from the rest and retired to a certain distance, although Vicente and Jose Garcia, Conrado Laurel, and Alfonso Torres placed themselves the nearest to the first two, Jose Laurel and Exequiel Castillo; that at this juncture witness, who was about 6 or 7 meters away from the two men last named, observed that Jose Laurel, who had his hand in his pocket while he was talking with Exequiel, immediately drew out a handkerchief and therewith struck Exequiel a blow on the breast; that the latter forthwith hit his assailant, Laurel, with a cane which he was carrying; that Laurel, upon receiving a blow, stepped back, while Exequiel pursued him and continued to strike him; that thereupon Vicente Garcia stabbed Exequiel, who had his back turned toward him and Conrado Laurel struck the said Exequiel a blow on the head with a cane; that when witness approached the spot where the fight was going on, several policemen appeared there and called out for peace; and that he did not notice what Jose Garcia Aquino and Alfonso Torres did. Lucio Villa, a policeman, testified that on the hearing the commotion, he went to the scene of it and met Jose Laurel who was coming away, walking at an ordinary gait and carrying a bloody pocketknife in his hand; that witness therefore arrested him, took the weapon from him and conducted him to the municipal building; and that the sergeant and another policemen, the latter being the witnesss companion, took charge of the other disturbers. The defendant, Jose Laurel, testified that early in the evening of the 28th of December he went to the parochial building, in company with Diosdado Siansance and several young people, among them his cousin Baltazara Rocamora, for the purpose of attending an entertainment which was to be held there; that, while sitting in the front row of chairs, for there were as yet but few people, and while the director of the college was delivering a discourse, he was approached by Domingo Panganiban who told him that Exequiel Castillo wished to speak with him, to which witness replied that he should wait a while and Panganiban thereupon went away; that, a short time afterwards, he was also approached by Alfredo Yatco who gave him a similar message, and soon afterwards Felipe Almeda came up and told him that Exequiel Castillo was waiting for him on the ground floor of the house; this being the third summons addressed to him, he arose and went down to ascertain what the said Exequiel wanted; that, when he stepped outside of the street door, he saw several

persons there, among them, Exequiel Castillo; the latter, upon seeing witness, suggested that they separate from the rest and talk in a place a short distance away; that thereupon Exequiel asked witness why he kissed his, Exequiels sweetheart, and on Laurels replying that he had done so because she was very fickle and prodigal of her use of the word yes on all occasions, Exequiel said to him that he ought not to act that way and immediately struck him a blow on the head with a cane or club, which assault made witness dizzy and caused him to fall to the ground in a sitting posture; that, as witness feared that his aggressor would continue to assault him, he took hold of the pocketknife which he was carrying in his pocket and therewith defended himself; that he did not know whether he wounded Exequiel with the said weapon, for, when witness arose, he noticed that he, the latter, had a wound in the right parietal region and a contusion in the left; that witness was thereupon arrested by the policemen, Lucio Villa, and was unable to state whether he dropped the pocketknife he carried or whether it was picked up by the said officer; that it took more than a week to cure his injuries; that he had been courting the girl Concepcion Lat for a year, but that in October, 1909, his courtship ended and Exequiel Castillo then began to court her; and that, as witness believed that the said girl would not marry him, nor Exequiel, he kissed her in the street, on the night of December 26, 1909, and immediately thereafter ran toward his house. Baltazara Rocamora stated that, while she was with Jose Laurel on the night of December 28, 1909, attending an entertainment in the parochial building of Tanauan, the latter was successively called by Domingo Panganiban, Alfredo Yatco, and Felipe Almeda, the last named saying: Go along, old fellow; you are friends now. Casimiro Tapia testified that, on the morning following the alleged crime, he visited Jose Laurel in the jail, and found him suffering from the bruises or contusions; that to cure them, he gave him one application of tincture of arnica to apply to his injuries, which were not serious. Benito Valencia also testified that, while the entertainment, he saw Domingo Panganiban approach Jose Laurel and tell him that Exequiel Castillo was waiting for him downstairs to talk to him; that Laurel refused to go, as he wished to be present at the entertainment, and that Panganiban then went away; that, soon afterwards, witness also went down, intending to return home, and, when he had been on the ground floor of the parochial building for fifteen minutes, he saw, among the many people who were there, Exequiel Castillo and Jose Laurel who were talking apart from a group of persons among whom he recognized Roque Castillo, Primitivo Gonzalez and Conrado Laurel; that soon after this, witness saw Exequiel Castillo strike Jose Laurel a blow with a cane and the latter stagger and start to run, pursued by the former, the aggressor; that at this juncture, Conrado Laurel approached Exequiel and, in turn, struck him from behind; and that the police presently intervened in the fight, and witness left the place where it occurred. The defendant Domingo Panganiban testified that, while he was at the entertainment that night, he noticed that it threatened to rain, and therefore left the house to get his horse, which he had left tied to a post near the door; that, on reaching the ground floor, the brothers Roque and Exequiel Castillo, asked him to do them the favor to call Jose Laurel, because they wished to talk to the latter, witness noticing that the said brothers were then provided with canes; that he called Jose Laurel, but the latter said that he did not wish to go down, because he was listening to the discourse which was then being delivered, and witness therefore went down to report the answer to the said brothers; that while he was at the door of the parochial building waiting for the drizzle to cease, Jose Laurel and Felipe Almeda came up to where he was, and just then Exequiel Castillo approached the former, Laurel, and they both drew aside, about 2 brazas away, to talk; that soon afterwards, witness saw Exequiel Castillo deal Jose Laurel two blows in succession and the latter stagger and start to run, pursued by his assailant; the latter was met by several persons who crowded about in an aimless manner, among whom witness recognized Roque Castillo and Conrado Laurel; and that he did not see Primitivo Gonzalez nor Gaudencio Garcia at the place where the fight occurred, although he remained where he was until a policeman was called. Conrado Laurel, a cousin of Jose Laurel, testified that, on the night of December 28, 1909, he was in the parochial building for the purpose of attending the entertainment; that he was then carrying a revolver, which had neither cartridges nor firing pin, for the purpose of returning it to its owner, who was a Constabulary telegraph operator on duty in the pueblo of Tanauan; that the latter, having been informed by a gunsmith that the said revolver could not be fixed, requested witness, when they met each other in the cockpit the previous afternoon, to return the weapon to him during the entertainment; that, on leaving the said building to retire to his house and change his clothes, he met Roque Castillo, his cousin and confidential friend, on the ground floor of the parochial building or convent and the latter, seeing that witness was carrying a revolver, insisted on borrowing it, notwithstanding that witness told him that it was unserviceable; that, after he had changed his clothes, he left his house to return to the parochial building, and near the main door of said building he found Exequiel Castillo and Jose Laurel talking by themselves; that a few moment afterwards, he saw Exequiel strike Jose two blows with a cane that nearly caused him to fall at full length on the ground, and that Jose immediately got up and started to run, pursued by his assailant, Exequiel; that witness, on seeing this, gave the latter in turn a blow on the head with a cane, to stop him from pursuing Jose, witness

fearing that the pursuer, should he overtake the pursued, would kill him; that, after witness struck Exequiel Castillo with the cane, the police intervened and arrested them; and that, among those arrested, he saw Panganiban and Vicente Garcia, and, at the place of the disturbance, Roque Castillo and Primitivo Gonzalez. Vicente Garcia denied having taken part in the fight. He testified that he also was attending the entertainment and, feeling warm, went down out of the parochial building; that, upon so doing, he saw Domingo Panganiban and Jose Laurel, but was not present at the fight, and only observed, on leaving the building, that there was a commotion; then he heard a policeman had arrested Jose Laurel. Well-written briefs were filed in first instance, both by the prosecution and by the defense; but, notwithstanding the large number of persons who must have been eyewitnesses to what occurred, it is certain that the prosecution was only able to present the witness, Primitivo Gonzalez, a relative of Exequiel Castillo, to testify as to how and by whom the assault was begun. Each one of the combatants, Exequiel Castillo and Jose Laurel accused the other of having commenced the assault. Castillo testified that Laurel, after the exchange of few words between them, suddenly and without warning stabbed him with a knife, while Laurel swore that, after a short conversation Castillo struck him two blows with a cane, on which account, in order to defend himself, he seized a pocketknife he carried in his pocket. In view, therefore, of these manifest contradictions, and in order to determine the liability of the defendant, Jose Laurel, who, it is proved, inflicted the serious wound on Exequiel Castillo, it is necessary to decide which of the two was the assailant. Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the street and in the presence of Exequiel Castillo, the girls suitor, and of others who were accompanying her, the first query that naturally arises in the examination of the evidence and the circumstances connected with the occurrence, is: Who provoked the encounter between Laurel and Castillo, and the interview between the same, and who invited the other, on the night of December 28, 1909, to come down from the parochial building of Tanauan, to the lower floor and outside the entrance of the same? Even on this concrete point the evidence is contradictory, for, while the witnesses of Exequiel Castillo swore that the latter was invited by Jose Laurel, those of the latter testified, in turn, that Laurel was invited three consecutive times by three different messengers in the name and on the part of the said Castillo. In the presence of this marked contradiction, and being compelled to inquire into the truth of the matter, we are forced to think that the person who would consider himself aggrieved at the kiss given the girl Concepcion Lat, in the street and in the presence of several witnesses, would undoubtedly be Exequiel Castillo, the suitor of the girl, and it would appear to be a reasonable conclusion that he himself, highly offended at the boldness of Jose Laurel, was the person who wished to demand explanation of the offense. Upon this premise, and having weighed and considered as a whole the testimony, circumstantial evidence, and other merits of the present case, the conviction is acquired, by the force of probability, that the invitation, given through the medium of several individuals, came from the man who was offended by the incident of the kiss, and that it was the perpetrator of the offense who was invited to come down from the parochial building to the ground floor thereof to make explanations regarding the insult to the girl Lat, the real suitor of whom was at the time the said Exequiel Castillo. All this is not mere conjecture; it is logically derived from the above related facts. Both Jose and Exequiel were attending the entertainment that night in the upper story of the parochial building. Exequiel was the first who went below, with his cousin, Primitivo Gonzalez, knowing the Laurel remained in the hall above, and he it was who waited for nearly half an hour on the ground floor of the said building for the said Jose Laurel to come down. The latter was notified three times, and successively, in the name and on the part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo Yatco and finally by Felipe Almedathree summonses which were necessary before Jose Laurel could be induced, after the lapse of nearly half an hour, to come down. Meanwhile, for that space of time, Exequiel Castillo was awaiting him, undoubtedly for the purpose of demanding explanations concerning the offensive act committed against his sweetheart. The natural course and the rigorous logic of the facts can not be arbitrarily be rejected, unless it be shown that other entirely anomalous facts occurred. If, in the natural order of things, the person who was deeply offended by the insult was the one who believed he had a right to demand explanations of the perpetrator of that insult, it is quite probable that the aggrieved party was the one who, through the instrumentality of several persons, invited the insulter to come down from the upper story of the parochial building, where he was, and make the explanations which he believed he had a right to exact; and if this be so, Exequiel Castillo, seriously affected and offended by the insult to his sweetheart, Concepcion Lat, must be held to be the one who brought about the encounter gave the invitation and provoked the occurrence, as shown by his conduct in

immediately going down to the entrance door of the said building and in resignedly waiting, for half an hour, for Jose Laurel to come down. Moreover, if the latter had provoked the encounter or interview had on the ground floor of the building, it is not understood why he delayed in going down, nor why it became necessary to call him three times, in such manner that Exequiel Castillo had to wait for him below for half an hour, when it is natural and logical to suppose that the provoking party or the one interested in receiving explanations would be precisely the one who would have hastened to be in waiting at the place of the appointment; he would not have been slow or indisposed to go down, as was the case with Jose Laurel. If, as is true, the latter was the one who insulted the girl Concepcion Lat an insult which must deeply have affected the mind of Exequiel Castillo, the girls suitor at the time it is not possible to conceive, as claimed by the prosecution, how and why it should be Jose Laurel who should seek explanations from Exequiel Castillo. It was natural and much more likely that it should have been the latter who had an interest in demanding explanations from the man who insulted his sweetheart. In view of the behavior of the men a few moments before the occurrence, we are of the opinion that Castillo was the first to go down to the entrance door of the parochial building, knowing that Jose Laurel was in the hall, and, notwithstanding the state of his mind, he had the patience to wait for the said Laurel who, it appears, was very reluctant to go down and it was necessary to call him three times before he finally did so, at the end of half an hour. After considering these occurrences which took place before the crime, the query of course arises as to which of the two was the first to assault the other, for each lays the blame upon his opponent for the commencement of the assault. Exequiel Castillo testified that after he had replied to Jose Laurel that he, the witness, was not obliged to say whether he had in his possession several letters addressed by laurel to the girl Concepcion Lat, Laurel immediately stabbed him in the breast with a knife; while Jose Laurel swore that, upon his answering the question put to him by Castillo as to why the witness had kissed his sweetheart, saying that it was because she was very fickle and prodigal of the word yes on all occasions, Exequiel said to him in reply that he ought not to act in that manner, and immediately struck him a couple of blows on the head with a club, wherefore, in order to defend himself, he drew the knife he was carrying in his pocket. Were the statements made by Exequiel Castillo satisfactorily proven at the trial, it is unquestionable that Jose Laurel would be liable as the author of the punishable act under prosecution; but, in view of the antecedents aforerelated, the conclusions reached from the evidence, and the other merits of the case, the conclusion is certain that the assault was commenced by Exequiel Castillo, who struck Jose Laurel two blows with a cane, slightly injuring him in two places on the head, and the assaulted man, in self-defense, wounded his assailant with a pocketknife; therefore, Jose Laurel committed no crime and is exempt from all responsibility, as the infliction of the wounds attended by the three requisites specified in paragraph 4, article 8 of the Penal Code. From the evidence, then, produced at the trial, it is concluded that it was Exequiel Castillo who, through the mediation of several others, invited Laurel to come down from the upper story of the parochial building, and that it was he, therefore, who provoked the affray aforementioned, and, also, it was he who unlawfully assaulted Jose Laurel, by striking the latter two blows with a cane inasmuch as it is not likely that after having received a dangerous wound in the left breast, he would have been able to strike his alleged assailant two successive blows and much less pursue him. It is very probable that he received the said wounds after he had assaulted Jose Laurel with the cane, and Laurel, on his part, in defending himself from the assault, employed rational means by using the knife that he carried in his pocket. For all the foregoing reasons, Jose Laurel must be acquitted and held to be exempt from responsibility on the ground of self-defense. The case falls within paragraph 4 of article 8 of the Penal Code, inasmuch as the defensive act executed by him was attended by the three requisites of illegal aggression on the part of Exequiel Castillo, there being a lack of sufficient provocation on the part of Laurel, who, as we have said, did not provoke the occurrence complained of, nor did he direct that Exequiel Castillo be invited to come down from the parochial building and arrange the interview in which Castillo alone was interested, and, finally, because Laurel, in defending himself with a pocketknife against the assault made upon him with a cane, which may also be a deadly weapon, employed reasonable means to prevent or repel the same. Under the foregoing reasoning, the other accused, Conrado Laurel and Vicente Garcia, who likewise, were convicted as principals of the crime under prosecution, are comprised within the provisions of paragraph 5 of the said article 8 of the Penal Code, which are as follows: He who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters, or of his relatives by affinity in the same degrees and those by consanguinity within the fourth civil degree, provided the first and second circumstances mentioned in the

foregoing number are attendant, and provided that in case the party attacked first gave provocation, the defender took no part therein. Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in the trial record to have been proven without contradiction whatsoever, did not provoke the trouble, nor did they take any part in the invitation extended to Jose Laurel in the name of and for Exequiel Castillo; in assisting in the fight between Castillo and Laurel, they acted in defense of their cousin, Jose Laurel, when they saw that the latter was assaulted, twice struck and even pursued by the assailant, Castillo; consequently Conrado Laurel and Vicente Garcia have not transgressed the law and they are exempt from all responsibility, for all the requisites of paragraph 4 of the aforecited article attended the acts performed by them, as there was illegal aggression on the part of the wounded man, Exequiel Castillo, reasonable necessity of the means employed to prevent or repel the said aggression on the part of the aforementioned Conrado Laurel and Vicente Garcia, who acted in defense of their cousin, Jose Laurel, illegally assaulted by Exequiel Castillo, neither of the said codefendants having provoked the alleged crime. With regard to Domingo Panganiban, the only act of which he was accused by the wounded man, Exequiel Castillo, was that he struck the latter a blow on the left side with his fist, while Castillo was pursuing Laurel. Domingo Panganiban denied that he took part in the quarrel and stated that he kept at a distance from the combatants, until he was arrested by a policeman. His testimony appears to be corroborated by that of Primitivo Gonzalez, a witness for the prosecution and relative of Exequiel Castillo, for Gonzalez positively declared that Panganiban was beside him during the occurrence of the fight and when the others surrounded the said Exequiel Castillo; it is, therefore, neither probable nor possible that Panganiban engaged in the affray, and so he contracted no responsibility whatever. Exequiel Castillos wounds were very serious, but, in view of the fact that conclusive proof was adduced at the trial, of the attendance of the requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, in favor of those who inflicted the said wounds, it is proper to apply to this case the provision contained in the next to the last paragraph of rule 51 of the provisional law for the application of the said code. With respect to the classification of the crime we believe that there is no need for us to concern ourselves therewith in this decision, in view of the findings of fact and of law made by the court below upon the question of the liability of the defendants. By reason, therefore, of all the foregoing, we are of opinion that, with a reversal of the judgment appealed from, we should acquit, as we do hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, and Domingo Panganiban. They have committed no crime, and we exempt them from all responsibility. The costs of both instances shall be de oficio, and the bond given in behalf of the defendants shall immediately be canceled. Johnson, Carson, Moreland and Trent, JJ., concur. <3 <3 <3 THIRD DIVISION [G.R. No. 120988. August 11, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSEMARIE DE LA CRUZ y NIEVA, accused-appellant. DECISION MELO Accused-appellant Rosemarie de la Cruz was caught holding a seven-year old schoolgirl by the hand and leading her out of the school grounds. Charged with kidnapping and serious illegal detention of a minor, she was convicted, and accordingly sentenced to suffer the penalty of no less than reclusion perpetua. Accused-appellant contends that her guilt has not been established by proof beyond reasonable doubt and that the entire case is nothing but an overreaction to the situation. The Information charged: That on or about September 27, 1994, in the City of Manila, Philippines, the said accused, being then a private individual and without authority of law, did then and there willfully, unlawfully and feloniously kidnap, detain or in any manner deprive one WHIAZEL SORIANO y CRUZ, seven years of age, of her liberty, against her will and consent. Contrary to law. (p. 5, Rollo) The case was docketed as Criminal Case No. 94-139168 before the Regional Trial Court of the National Capital Judicial Region (Branch 35, Manila). After accused-appellant entered a plea of not guilty, trial commenced. The testimony of the principal witnesses for the prosecution may be summarized in the following manner:

Cecilia Caparos, a neighbor of Whiazel Soriano, the victim, testified that on September 27, 1994, at around 11:30 oclock in the morning, she was waiting for her two children inside the compound of the Aurora A. Quezon Elementary School when she saw Whiazel held on the hand and being led away by a woman later identified as accused-appellant. Knowing that Whiazel was enrolled in the afternoon class, she went after them and asked accused-appellant where she was going with Whiazel. Accused-appellant answered that she asked Whiazel to bring her to Rowena Soriano, the childs mother. Cecilia then turned to Whiazel and asked her why she was with accused-appellant. Whiazel answered that accused-appellant requested her to look for the latters child. Cecilia grew suspicious because of the inconsistent answers, Whiazels terrified look, and the scratches on the childs face. She told accused-appellant that she will bring accused-appellant to a teacher because she did not trust accused-appellant. Accused-appellant was surprised and reasoned out, but just the same agreed to go to a teacher (pp. 3-9, 11-13, tsn, April 3, 1995). The victim, Whiazel Soriano (sometimes referred to in the record as Reazel or Rhiazel), at the time of the incident, was a Grade 1 pupil at the Aurora A. Quezon Elementary School in Malate, Manila. She testified that she voluntarily went with accused-appellant after being asked for help in looking for the school dentist. Whiazel also mentioned that accused-appellant asked for her assistance in looking for accused-appellants child in a place far away from school. She was neither threatened nor hurt in any way by accused-appellant. She was not led out of the school; in fact they never got out of the school compound. When Cecilia Caparos saw them, Whiazel told accused-appellant that she wanted to go. Accused-appellant refused, and held Whiazels hand. Whiazel did not try to escape. She did not even cry; well, not until they went to a teacher (pp. 3-9, tsn, April 7, 1995). For the defense, Eufemia Magpantay, guidance teacher at Aurora A. Quezon Elementary School, testified that on September 27, 1994, at around noontime, accused-appellant, Whiazel, her teacher Mrs. Rioganes, and Cecilia Caparos went to her office. The incident was related to her. Asked what she was doing with Whiazel, accused-appellant said she wanted the childs help in looking for the school dentist. Accused-appellant reiterated this before the assistant principal to whom they all later went. This witness testified that the school allows patients who are not connected with the school to consult at the clinic. Further, she also mentioned that the students of the Aurora A. Quezon Elementary School, the same being a public school, come mostly from low to average income families (pp. 4-9, tsn, April 28, 1995). Accused-appellants mother-in-law, Gorgonia Nieva, testified that on the day prior to the incident, accused-appellant had asked her to look for Dr. Luisa Medina, a dentist. Accused-appellants daughter was then sick. Her inquiries showed that the dentist no longer had her clinic at her house; instead she may be found at the Aurora A. Quezon Elementary School. Thus, the next day, she went with accused-appellant to Manila to look for the dentist. They parted ways when they arrived at the school at around 11 oclock in the morning (pp. 3-12, tsn, April 24, 1995). Accused-appellant testified that when she got to the school, she asked a guard where the clinic was. The guard gave her directions, and told her to pass through the same gate on her way out. When she got to the clinic, no one was there so she left. On her way out, a girl, later identified as Whiazel, walked with her at arms length (nakasabay). She did not hold the child; she did not look at the child; they did not talk; not even smiles were exchanged. Before she could get out of the school, a woman (Cecilia Caparos) called her; hurled invectives at her, and accused her of kidnapping Whiazel. Accused-appellant got mad but nevertheless offered no resistance when Caparos dragged her and brought her to the office of the guidance counselor. There, Caparos repeated her charges against accused-appellant, which accusations the latter denied. Whiazel was asked by the guidance counselor if accused-appellant was really going to kidnap her; she answered no. Very much the same things were said later at the principals office ( pp. 2-8, tsn, April 21, 1995). At the request of the principal, five policemen later came and brought accused-appellant to Station No. 5 of the Western Police District (pp. 14-15, Rollo). Lending credence to the testimony of the prosecution witnesses, the trial court rendered the appealed decision finding accused-appellant guilty beyond reasonable doubt of the crime of kidnapping and serious illegal detention of a minor, as: It has been established with moral certainty that with neither legal reason nor just cause, the accused took hold of the child Whiazel by the hand, and led her towards the gate of the school compound against her will, evidently to bring her out of the school perimeter. But before they could actually exit through that gate, the child saw a neighbor (obviously Cecilia Caparos) and told the accused that she wanted to go to her neighbor. The accused, however, refused and did not agree to let the child go and continued to hold her, for which reason, she was not able to get away from the accused . . . That the accused did not employ any physical force on Whiazel Soriano in detaining and restraining her freedom provides no significant consequence to

relieve the former from the resultant effects of her consummated criminal act, for it cannot be denied that she had exerted sufficient moral intimidation on the child which effectively controlled and influenced her will . . . At such tender age and immature mind she can easily be awed and cowed by a person such as the accused. (pp. 24-26, Ibid.) Accordingly, accused-appellant was sentenced to suffer the penalty of reclusion perpetua, and to pay the victim, through her parents, P50,000 as moral damages (p.26, Ibid.). Accused-appellant interposed the instant appeal, contending that her act of holding the child by the hand and leading her out of the school premises cannot be considered an act of kidnapping without leaving room for reasonable doubt. Accused-appellant points out that Whiazel did not categorically state that accused-appellant tried to kidnap her. On the contrary, the child testified that she voluntarily went with accused-appellant and that she was neither forced nor intimidated into accompanying accused-appellant. Also, it is said, accusedappellants excuse for going to Whiazels school to look for Dr. Medina is buttressed by the fact that she had a tooth extracted in jail sometime in November 1994; and that contrary to Whiazels statement, the guidance teacher, Eufemia Magpantay, testified that even persons not connected with the school are allowed to consult Dr. Medina at the schools dental clinic. Accusedappellant thus contends that she had a valid reason for being at the school premises, as indeed, she did not run away and instead faced her accuser. All these circumstances, accused-appellant submits, constitute reasonable doubt as to her guilt which, therefore, necessitate her acquittal (pp. 4-8, AccusedAppellants Brief; pp. 53-57, Rollo). The People, through the Office of the Solicitor General, argue that Whiazel was deprived of her liberty, no matter how short a time, the moment accusedappellant, a person unknown to Whiazel, prevented her from going over to her neighbor, Cecilia Caparos. Under the circumstances, considering that she is of such tender age, deprivation of liberty was consummated even in the absence of force or threats upon the victim. (pp. 6-7, Plaintiff-Appellees Brief). In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latters liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the crime of kidnapping in this case are those when accused-appellant held the victims hand and refused to let go when the victim asked to go over to her neighbor, who by then already saw what was happening. This happened for only a very brief span of time and the evidentiary record shows that there were a good number of people present at that time, that a guard was stationed at the gate, and that there was at least a teacher nearby. The child could have just as easily shouted for help. While it does not take much to scare the wits out of a small child like Whiazel, under the attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let go, the victim had gone with accused-appellant voluntarily. Without any further act reinforcing the inference that the victim may have been denied her liberty, even taking cognizance of her minority, the Court hesitates to find that kidnapping in the case at bar was consummated. While it is a well-entrenched rule that factual findings of trial courts, especially when they concern the appreciation of testimony of witnesses, are accorded great respect, by exception, when the judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]). To our mind, the felony committed is kidnapping and serious illegal detention of a minor in the attempted stage only. The attempted phase of a felony is defined as when the offender commences the commission of a felony, directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance (Article 6, Revised Penal Code). The overt act must be an external one which has direct connection with the felony, it being necessary to prove that said beginning of execution, if carried to its complete termination following its natural course without being frustrated by external obstacles nor by the voluntary desistance of the offender, will logically and necessarily ripen to a concrete offense (Padilla. Criminal Law: Revised Penal Code Annotated, vol. I, 1987 ed., p. 141 citing People vs. Lamahang, 61 Phil 703). In the case at bar, accused-appellant already commenced her criminal scheme by taking hold of Whiazel by the hand and leading her out of the school premises. As mentioned earlier, these do not sufficiently establish that kidnapping had been consummated. However, considering other attendant facts and circumstances, it does reveal that accused-appellant had less than noble intentions with the victim. Firstly, the child was led to believe that accusedappellant wanted to see the dentist. It is not clear, however, that there really was a Dr. Medina employed by the school as dentist. Not even the guidance counselor who testified for the defense made any specific mention of the doctor. Secondly, if accused-appellant wanted to see the dentist, why was she on her way out? If it is true she had already gone to the clinic and found no one there

and that she then decided to leave, what else was she doing with the child? Thirdly, accused-appellant did not simply ask for directions; she wanted the victim to accompany her. That seems suspicious enough. And of all people, why ask a seven-year old? Fortunately, the further progress and completion of accused-appellants felonious design was thwarted by the timely intervention of Cecilia Caparos, the victims neighbor. The Court thus holds that the felony committed by accused-appellant in the case at bar is not kidnapping and serious illegal detention of a minor in the consummated stage, but rather in its attempted stage. Nevertheless, we believe that the trial court erred in granting moral damages in the amount of P50,000 despite the absence of any evidence on record that the victim suffered sleepless nights, serious anxiety, fright, or similar injury. All that the record reveals is that the victim cried when they were at the guidance counselors office, nothing more. Inasmuch as moral damages are granted not to enrich, but rather to compensate the victim for the injury suffered (Bautista vs. Mangaldan Rural Bank, Inc., 230 SCRA 16 [1994]), proof of moral suffering must be introduced, failing in which, such an award is not proper (People vs. Manero, Jr. et. al., 218 SCRA 85 [1993]). Since the crime is only in its attempted stage, the penalty imposable under Article 267 of the Revised Penal Code, as amended by R.A. 7659, which is reclusion perpetua to death, has to be lowered by two degrees (Article 51, Revised Penal Code). Two degrees lower from reclusion perpetua to death would be prision mayor, which has to be imposed in its medium period in the absence of any mitigating or aggravating circumstance (Article 64, Revised Penal Code). Applying further the Indeterminate Sentence Law, the imposable penalty would range from prision correccional, as the minimum, to prision mayor in its medium period, as the maximum. WHEREFORE, premises considered, the appealed decision is MODIFIED in that accused-appellant is found guilty beyond reasonable doubt of attempted kidnapping and serious illegal detention. Accordingly, accused-appellant is sentenced to suffer an indeterminate penalty of two (2) years and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. The award for moral damages in the amount of P50,000 is hereby DELETED. SO ORDERED. Narvasa, C.J., (Chairman), Davide, Jr.,Francisco, and Panganiban, JJ., concur. <3 <3 <3 Republic of the Philippines SUPREME COURT Manila EN BANC C.A. No. 384 February 21, 1946 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. AVELINA JAURIGUE, appellant. Jose Ma. Recto for appellant. Assistant Solicitor General Enriquez and Solicitor Palma for appellee.. DE JOYA, J.: Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her. From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944, claimed (1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should be completely absolved of all criminal responsibility; (2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities; and (3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of having been committed in a sacred place. The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts: That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of

Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay. On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection. On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control himself. In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day. At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights. Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous acts and conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written statements were taken, and which were presented as a part of the evidence for the prosecution. The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has existed in all civilized communities. A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they are the future wives

and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice have entertained and upheld this view. On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That country is Switzerland. In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173). The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). . As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344). And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249). In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391).. In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above.. According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared completely exempt from criminal liability.. But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor

(People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86). Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123). The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not where. The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error to a certain degree. In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950).. The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four months, and one day of prision correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered.. Ozaeta, Perfecto, and Bengzon, JJ., concur. Separate Opinions HILADO, J., concurring: In past dissenting and concurring opinions my view regarding the validity or nullity of judicial proceedings in the Japanese-sponsored courts which functioned in the Philippines during the Japanese occupation has been consistent. I am not abandoning it. But in deference to the majority who sustain the opposite view, and because no party litigant herein has raised the question, I have taken part in the consideration of this case on the merits. And, voting on the merits, I concur in the foregoing decision penned by Justice De Joya. <3 <3 <3 EN BANC [G.R. No. 141087. March 31, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. ABRAHAM AGSALOG @ PANTO and JOVITO SIBLAS y OBAA @ BITONG, appellants. DECISION CARPIO MORALES, J.: On automatic review is the decision of the Regional Trial Court of Urdaneta City, Branch 46, finding appellants Abraham Agsalog and Jovito Siblas guilty beyond reasonable doubt of murder for killing Eduardo Marzan y Teoso (the victim) and sentencing them to death. The following facts are not disputed. At about 2:00 p.m. of October 4, 1997, while the victim and his uncle Tony Opia (Tony) were drinking at the Jessica Mae Videoke located at the San Quintin public market, San Quintin, Pangasinan, a misunderstanding arose between the

victim and appellant Siblas who was occupying a table outside the videoke, adjacent to the stall of appellant Agsalog who was then inside.<!--[if !supportFootnotes]-->[1]<!--[endif]--> The misunderstanding resulted in the victim slapping appellant Siblas. The escalation of the misunderstanding was prevented, however, when Tony pacified the two. The victim and Tony soon left the premises. Also on the same day, October 4, 1997, at about 4:30 p.m., as the victim and his distant cousin-neighbor Edwin Opia (Edwin) were conversing at the terrace of the latters house in Calomboyan, San Quintin, appellants, on board a tricycle<! -[if !supportFootnotes]-->[2]<!--[endif]--> driven by Francisco Aquino, Jr. (Aquino) arrived. Upon entering the gate of the house, appellants summoned the victim<!-[if !supportFootnotes]-->[3]<!--[endif]--> who obliged. An exchange of words later ensued between the victim and appellants which resulted in appellant Agsalog stabbing the victim who died as a result thereof. The postmortem examination conducted by Dr. Rosalina O. Victorio of the Office of the Municipal Health Officer showed that the victim sustained two stab wounds one at the upper middle portion of his abdomen, and the other at the upper portion of his chest which penetrated the right auricle of his heart.<!--[if !supportFootnotes]-->[4]<!--[endif]--> It also showed that the victim had abrasions on the forehead, left eyelid and left cheek<!--[if !supportFootnotes]-->[5]<!-[endif]--> which Dr. Victorio surmised came about as a result of the victims fall after the stabbing.<!--[if !supportFootnotes]-->[6]<!--[endif]--> The doctor concluded that the cause of the victims death was acute hemorrhage due to a stab wound on the right auricle of the heart.<!--[if !supportFootnotes]-->[7]<!-[endif]--> The records show that the day after the stabbing of the victim or on October 6, 1997, Ulyses Soto (Soto),<!--[if !supportFootnotes]-->[8]<!--[endif]--> Edwin<!--[if !supportFootnotes]-->[9]<!--[endif]--> and Aquino<!--[if !supportFootnotes]->[10]<!--[endif]--> gave their respective sworn statements before the local police authorities on what they witnessed, the substance of which statements Soto and Edwin were later to echo at the witness stand. Hence, appellants indictment for murder under an Information<!--[if !supportFootnotes]-->[11]<!--[endif]--> alleging: xxx That on or about the 4th day of October 1997, in the afternoon, at Brgy. Calomboyan, municipality of San Quintin, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, armed with a bladed weapon (balisong), with treachery and evident premeditation, conspiring, confederating and helping one another, did then and there willfully, unlawfully and feloniously attack, assault and stab one EDUARDO MARZAN y TEOSO twice on his body which caused his immediate death, to the damage and prejudice of the heirs of said EDUARDO MARZAN y TEOSO. xxx From the account of prosecution witnesses including eyewitness Edwin, and another eyewitness Soto who was across the road where the stabbing occurred, the following are gathered: After the victim heeded the call of appellants to talk with them outside the gate of the house, the three walked towards the gate, with the victim sandwiched by appellant Siblas who was at the victims right side and appellant Agsalog who was at the victims left side. As Edwin sensed that there was something unusual,<!--[if !supportFootnotes]-->[12]<!--[endif]--> he followed the three, he trailing behind by about 3 meters. While appellants and the victim were conversing as they walked, the victim placed his right<!--[if !supportFootnotes]-->[13]<!--[endif]--> hand on the left shoulder of appellant Siblas and uttered Pasensiya kan pare.<!--[if !supportFootnotes]-->[14]<!--[endif]--> At that instant appellant Agsalog took a step forward, tapped the hand of the victim as he faced him, uttered Di na kami met la [ka]babainen<!--[if !supportFootnotes]-->[15]<!--[endif]--> and simultaneously drew an already open balisong and stabbed the victim at his belly and then at his chest while appellant Siblas, with both hands, held the right wrist and right elbow of the victim. Realizing what had befallen the victim, Edwin picked up a stone upon which appellant Agsalog warned You will be next if you do that,<! --[if !supportFootnotes]-->[16]<!--[endif]--> drawing the former to throw the stone away. Appellant Agsalog invoked self defense. Appellant Siblas denied the existence of a conspiracy. As related in their brief, appellants gave the following version, quoted verbatim: [O]n or about 1:00 oclock in the afternoon of October 4, 1997, Agsalog was in his stall with Siblas infront of the Jessica Mae Videoke. Agsalog heard loud noise coming from the Jessica Mae Videoke. When he went out of his stall, he saw Nola Matsumoto [owner of the videoke-bar] in-between Siblas and [the victim] trying to prevent further troubles from erupting. After that incident, Tony Opia

stood up and told [the victim] Vulva of your mother, you just slapped people, let us go home. After the lapse of 10 minutes, [the victim] with his brother, Jun Marzan returned to the Jessica Mae Videoke. Jun Marzan asked Nola who was at fault and she replied, your brother is at fault. Then the two (2) brothers left the place. But before leaving, [the victim] told Siblas that he would return, which he did after about 3 minutes. [The victim], on his return, shook his hands with Siblas, to settle their differences, and as a gesture of reconciliation, [the victim] invited both Siblas and Agsalog to their house for drinks as he is butchering a goat. Agsalog and Siblas accepted the invitation to go there after school hours. Then Agsalog and Siblas, after a few minutes, proceeded to the San Quintin National High School to resume their duties as teachers. At about 4:30 in the afternoon of the same day, Agsalog and Siblas riding in a tricycle driven by one Aquino arrived at the house of Ex-Brgy. Chairman Juan Opia [father of Edwin Opia] at Brgy. Calonboyan, San Quintin, Pangasinan. Agsalog saw [the victim] sitting alone at the terrace of the house of Opia. Agsalog, then asked [the victim] Bok where is the pulutan? I will get the drinks. [The victim] stood up and retorted Vulva of your mother, you could easily be baited. Agsalog thought that [the victim] is only joking, so he said to [the victim], Bring the pulutan out and we will get the drinks. [The victim] instead replied, Vulva of you mother, you look like pulutan. Agsalog said, Bok, you do not even respect us. Then [the victim] came down from the terrace and tried to grab Agsalog which the latter warded off. Both Agsalog and Siblas went out of the yard towards the tricycle to leave but [the victim] followed them. Then, [the victim] pushed Siblas and Agsalog, saying, Vulva of your mother, are you going to fight me? At this stage, [the victim] was drawing a balisong from his waist and when he was about to thrust his balisong into Agsalogs body, Agsalog also drew a knife and swung his arm, hitting [the victims] body once. But still [the victim] grabbed Agsalog by the shoulder but Agsalog pushed him with his left arm. [The victim], then turned and went into the yard of Opia. Agsalog saw Edwin Opia came out of the house and picked some stones, going near them, Agsalog told Edwin, Dont go near-Dont go near (warning to us). x x x (Emphasis and italics in the original; underscoring supplied) Brushing aside appellants version, the trial court, by Decision of October 7, 1999, found them guilty beyond reasonable doubt of murder, the dispositive portion of which is quoted verbatim: WHEREFORE, JUDGMENT of CONVICTION beyond reasonable doubt is hereby rendered against Abraham Agsalog and Jovito Siblas of the crime of aggravated Murder and the Court sentences AGSALOG and SIBLAS to suffer the penalty of DEATH to be implemented in the manner as provided for by law; to pay the heirs of the victim, jointly and solidarily, the amount of P200,000.00 as actual damages; P75,000.00 as moral damages and P30,000.00 as exemplary damages and attorneys fees in the amount of P10,000.00 and all accessory penalties of the law. The Branch Clerk of Court is hereby ordered to prepare the mittimus and to transmit the entire records of this case to the Hon. Supreme Court of the Philippines for automatic review fifteen days from date of promulgation. The Jail Warden, BJMP, is hereby ordered to transmit the living body of accused Agsalog and Siblas to the National Bilibid Prisons, Muntinlupa City, fifteen (15) days from receipt of this Decision.<!--[if !supportFootnotes]-->[17]<!--[endif]--> (Underscoring supplied) Hence, this automatic review, appellants ascribing to the trial court the following assignment of errors: I-GRANTING WITHOUT ADMITTING THAT THE PROSECUTIONS CASE IS CREDIBLE, THE LOWER COURT GRAVELY ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS CONSPIRED IN KILLING THE VICTIM AS WELL AS IN APPRECIATING AGAINST THEM THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION. II-THE TRIAL COURT GRAVELY ERRED IN FAILING TO CONSIDER THE AUTOPSY REPORT AND SWORN STATEMENT OF ANOTHER ALLEGED EYEWITNESS WHICH, IF CONSIDERED, WOULD HAVE BEEN FAVORABLE TO ACCUSED-APPELLANTS. III-THE TRIAL COURT GRAVELY ERRED IN NOT APPRECIATING IN FAVOR OF ACCUSED-APPELLANTS THE JUSTIFYING CIRCUMSTANCE OF SELFDEFENSE.<!--[if !supportFootnotes]-->[18]<!--[endif]--> Appellant Agsalog having admitted stabbing the victim, the third assignment of error shall first be considered. For the justifying circumstance of self-defense to be appreciated, the following circumstances must concur. 1. Unlawful aggression 2. Reasonable necessity of the means employed to prevent or repel it. 3. Lack of sufficient provocation on the part of the person defending himself.<!--[if !supportFootnotes]-->[19]<!--[endif]-->

Unlawful aggression is present when peril to ones life, limb or right is either actual or imminent.<!--[if !supportFootnotes]-->[20]<!--[endif]--> Appellant Agsalog claims that as reflected in their above-quoted version in their brief, there was unlawful aggression on the part of the victim that as appellants were out of the yard towards the tricycle to leave, the victim followed and pushed them, challenged them to a fight, after saying vulva of your mother, and thereafter drew a balisong which he was about to thrust at him (appellant Agsalog). Appellant Siblas following testimony, quoted verbatim, does not corroborate such claim of aggression on the victims part, however, he (appellant Siblas) having merely witnessed the victim holding the shoulder of appellant Agsalog which the latter warded off, followed by the two pushing each other. ATTY. SANSANO, JR (counsel for both appellants): xxx Q When your co-accused Abraham Agsalog entered the yard, what happened next? A Eduardo Marzan met him. (Siblas answering) Q What [did] Abraham Agsalog do when he went there? A He told us, Vulva of your mother. You could easily be baited. Q What prompted Marzan said those words? A I do not know why he said that, sir. Q What did Abraham Agsalog answer, if any? A How come, Bok. Q What was the reply of Marzan, if any, to what Agsalog said? A When it comes to cocktails (pulutan) you are so fast. Q What did Agsalog answer, if any? A How come, Bok, you get it and we eat now. Q After the reply of Agsalog, what did Marzan do? A Vulva of your mother, he said. Q What did you do with that Marzan told you and Agsalog? A After a while, Agsalog made an invitation. Q What was that invitation? A He said, If that is the thing, lets go home. Q What did Marzan do when you were invited by Agsalog to go home? A When Agsalog turn, Marzan held the right shoulder of Agsalog. Q What [did] Marzan do when he held that shoulder of Agsalog? A When I am talking to you, do not turn your back. Q What did Agsalog do? A Agsalog warded his hand, sir. Q When Agsalog warded the hand of Marzan, what did Marzan do? A He continued to hold, sir. Q What did Agsalog told with what Marzan did to him? A He warded it, sir. Q What happened next? A I went out first and then Agsalog followed, sir. Q What happened between Agsalog and Marzan when you went ahead? A On the street they pushed each other, sir. Q What happened when they pushed each other? A Marzan told him, You are liar. Q To whom he addressed that? A To Agsalog, sir. Q What did Agsalog do? A Marzan pushed Agsalog and they pushed each other. Q And what did Agsalog do when he was pushed by Marzan? A Things happened fast, sir. When I walk, I did not see the other things and the last thing that I saw when I look back, I saw Marzan going back. Q How about Agsalog, where was he when you saw Marzan? A He was on the street, sir. Q Did you come to know what happened to Marzan? A About his stabbing, sir. Q Where were you anyway when Agsalog, your co-accused, stabbed Marzan? A Maybe 3 to 4 meters away from them. Q In relation to Marzan, where were you at the time of the stabbing? A The same distance, sir. Q At what particular direction to the place of Marzan? A From right side of Eduardo Marzan, sir. Q How about this witness Edwin Opia, do you know where he was at that time? A Yes, sir. Q Where was he at the time? A Maybe he was 2 to 3 meters to the left, sir. Q What was he doing there at the time? A He was in possession of a stone, sir. Q What did he do when he was in possession of a stone? A He was holding two stones, sir. Q He did nothing on those two stones? A He was only in possession of those stones, sir. Q This witness Edwin Opia testified in court that when your co-accused Agsalog stabbed the victim you were holding the right hand of Marzan. What can you say about this? A That is not true, sir. x x x<!--[if !supportFootnotes]-->[21]<!--[endif]--> (Emphasis and underscoring supplied)

Even assuming, however, that the victim indeed held the shoulder of appellant Agsalog, albeit the prosecution claimed it was appellant Siblas right shoulder which the victim held, that could not have constituted actual or imminent peril to appellant Agsalogs life, limb or right, especially in light of appellant Siblas testimony that after that stage of the incident, the victim and appellant Agsalog pushed each other. It is unthinkable for appellant Siblas to have missed witnessing the alleged attempt of the victim to stab appellant Agsalog if indeed there was such an attempt. Absent thus any corroboration by independent and competent evidence of appellant Agsalogs claim of unlawful aggression on the part of the victim, it is extremely doubtful, hence, it cannot prosper.<!--[if !supportFootnotes]-->[22]<!-[endif]--> There being no unlawful aggression, there is no self-defense, complete or incomplete.<!--[if !supportFootnotes]-->[23]<!--[endif]--> That the stabbing could not have been carried out in self-defense draws reinforcement from the failure of appellant Agsalog, a high school teacher at that, to report the incident to police authorities. In fact, when he was arrested on October 6, 1997, at 9:00 p.m., he refused to sign.<! --[if !supportFootnotes]->[24]<!--[endif]--> In their second assignment of error, appellants fault the trial court for failure to consider the implications of the findings in the autopsy report, and the sworn statement of Aquino wherein he stated, as follows, quoted verbatim: xxx No. 67 Q: What other things happened if any? A: Abraham Agsalog and Mr. Siblas entered the yard of Mr. Juan Opia wherein Eduardo Marzan is sitting threat and Abraham Agsalog and Mr. Siblas called Eduardo Marzan and they talked to each other. Not long after, they traded words at the top of their voice and I notice that they were fighting. Then I saw Abraham Agsalog and Mr. Siblas ran towards the East direction being chased by Edwin Opia and Ronald Opia but Abraham Agsalog who was holding a fan knife (balisong) aimed to Ronald Opia and caution[ed] them not to intervene. x x x (Underscoring supplied) With respect to the autopsy report, appellants contend that the fatal (second) stab wound which hit the right auricle of the victims heart was not inflicted by appellant Agsalog. Thus they explain: The Autopsy Report (Exh. G, G-1 and G-2) indicated that there were two (2) stab wounds, one which was inflicted medially on the upper middle portion of the abdomen, just above the navel that pierced the upper lobe of the lung, The other was directed downwards at the upper portion of the chest penetrating the right auricle of the heart and is the cause of death. The thrust through the abdomen, which is medially inflicted, is assumed that the knife is held level with the hand. On the other hand, the knife thrust through the chest, as it is on the downward stroke is assumed that the knife is held perpendicular to the hand. At the heat of the moment, it is not conceivable that the wielder of the knife changed the stance and grasp of the knife of the second thrust. The knife thrust inflicted on the abdomen is admitted by the accused Agsalog, but he claimed only one thrust. As for the knife thrust through the chest, Agsalog denied ever inflicting it. The deceased is taller by 4 5 inches than Agsalog, the knife thrust medially on the abdomen with the knife held level to the hand is expected for a smaller person. But a knife thrust on a downward stroke on the upper portion of a taller person is impossible to be inflicted by a smaller assailant. The fatal stab is not done by Agsalog.<!--[if !supportFootnotes]-->[25]<!--[endif]--> (Underscoring supplied) The claim that appellant Agsalog inflicted only the wound on the victims abdomen does not persuade, given Edwins and Sotos positive claims in their respective sworn statements and at the witness stand that said appellant twice stabbed the victim. That the wound of the victim on his chest was on a downward stroke need not rule out its infliction by a smaller person facing him. It is possible that that wound on the chest was inflicted while the victim stooped in pain after being stabbed in the abdomen, or that appellant Agsalog raised his hand to insure that he would reach and stab the chest of the already wounded taller victim. Whatever it was, the fact remains that Edwin and Soto categorically declared that appellant Agsalog twice stabbed the victim. With respect to the sworn statement of Aquino,<!--[if !supportFootnotes]-->[26]<!-[endif]--> appellants contend that the same shows that the incident [which] was preceded by a fight and culminated in a spur of the moment stabbing was an act of self-defense and negates and likewise belies the testimony of Edwin Opia [that he (Edwin) was with the deceased at the terrace when appellants arrived] and provides a doubtful ground to convict accused-appellants of murder. There is nothing in Aquinos statement, however, from which to infer that there was unlawful aggression on the victims part such that self defens e may be considered. Neither is there a declaration that the victim was alone at the terrace when appellants arrived.

At all events, appellants bewail the non-presentation by the prosecution of the doctor (who prepared the Autopsy Report) and of Aquino, thus denying them, so they claim, the opportunity to propound questions upon them. The non-presentation by the prosecution of the doctor and Aquino as witnesses during the trial was the prerogative of the prosecution. If appellants wanted to question the two, nothing prevented them from presenting them as their own witnesses, but they did not. In denying that conspiracy existed and that treachery and evident premeditation attended the stabbing, appellants proffer as follows, quoted verbatim: Assuming sans admitting that Edwin Opias testimony is credible, Siblas, while holding Marzans hands, could not have expected Agsalog to stab Marzan. It bears to stress that barely three (3) hours before the incident, at the Jessica Mae Karaoke Bar, Marzan slapped Siblas in the face. Siblas could only have thought that Marzan would do the same thing again to him when without warning, Marzan put his right hand on his shoulder. Marzan was very much taller and stouter than either of the two (2) accused-appellants. As such, under the circumstances, it was but natural for Siblas react and to hold Marzan;s right hand to prevent impending harm. When Agsalog saw them, he could have perceived that Marzan intended to harm his friend such that he went on his way to stab Marzan. But on all indications, Siblas never knew nor acquiesced to Agsalogs design. It can thus be said that accused-appellants never consciously adopted the means, methods or forms by which Agsalog killed the victim. The stabbing of the victim cannot be considered as sudden and unexpected to the point of incapacitating him to repel or escape it. In fact, the victim sustained only two (2) stab wounds. Had accused-appellants indeed have a preconceived plan to kill Marzan, the latter would have suffered more stab wounds. The crime was impulsively done at the spur of the moment. It should be borne in mind that the prosecution miserably failed to prove that accused-appellants hatched a conspiracy beforehand to kill Marzan. Their meeting was only casual and at the very least, the attack was done impulsively. Such being the case, the killing of the victim is not at all treacherous . . . <!--[if !supportFootnotes]-->[27]<!--[endif]-> On the assailed finding that there was conspiracy between appellants, anchored on appellant Siblas holding, at the time appellant Agsalog attacked the victim, of the right elbow and wrist of the victim who admittedly was very much bigger than them: As the prosecution claims that the victim placed his right hand on the left shoulder of appellant Siblas (the defense claims it was the shoulder of appellant Agsalog which the victim held), and the stabbing was sudden and swift, appellant Siblas holding of the victims elbow and wrist may not necessarily have meant to restrain the victim in order to insure that he would not put up a fight or defense. The holding of the victims right wrist and elbow by appellant Siblas could have been done in the course of the removal thereof from Siblas shoulder. At any rate, there is no showing that had not appellant Siblas held the victims wrist and elbow, appellant Agsalog would not have succeeded in stabbing the victim. Conspiracy, which requires the same quantum of proof to prove the guilt of an accused, was thus not clearly established. That conspiracy was not proven to have existed does not of course necessarily free appellant Siblas from liability. If appellant Siblas holding of the victims elbow and wrist constituted a crime in and by itself, then he should be held criminally liable. Appellant Siblas aforesaid act, under the proven circumstance, did not, however, amount to criminal offense giving rise to his individual culpability therefor. As for the qualifying circumstance of evident premeditation, for it to be appreciated, the following requisites should be proven: (1) the time when the offender determined to commit the crime, (2) an overt act manifestly indicating that the culprit had clung to his determination, and (3) a sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act.<!--[if !supportFootnotes]-->[28]<!--[endif]--> While the victim slapped appellant Siblas hours before the stabbing and it is thus not improbable for appellants to have hatched a plan to avenge the same, still, the circumstances as presented by the prosecution fail to show evident premeditation, which must be based upon external acts and not presumed from mere lapse of time.<!--[if !supportFootnotes]-->[29]<!--[endif]--> In the case of People v. Peralta:<!--[if !supportFootnotes]-->[30]<!--[endif]--> The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor and without the slightest provocation on the part of the victim. The elements of treachery are: (1) the means of execution employed gives the person no opportunity to defend himself or retaliate; and (2) the means of execution were deliberately or consciously adopted. It does not follow that a sudden and unexpected attack is tainted with treachery for it could have been that the same was done on impulse, as a reaction to an actual or imagined provocation offered

by the victim. Provocation of the appellant by the victim negates the presence of treachery even if the attack may have been sudden and unexpected. (Citations omitted) The testimony of prosecution eyewitness Edwin that when appellants arrived at his yard and called for the victim, appellant Agsalog sounded like he was mad, must surely have put the victim on guard, given the fact that a few hours before he slapped appellant Siblas. There is thus reasonable doubt on whether treachery and evident premeditation attended the commission of the crime. The crime committed was then only homicide. As regards the damages awarded by the trial court, the amount of P200,000.00 for actual damages appears to have been partly based on the claim of Virgilio Padilla,<!--[if !supportFootnotes]-->[31]<!--[endif]--> the victims brother-in-law, that the total amount of P157,000.00 was incurred for burial expenses. Jurisprudence dictates that the award of actual damages must, however, be duly substantiated by receipts.<!--[if !supportFootnotes]-->[32]<!--[endif]--> An examination of the records shows that the alleged burial expenses was not duly receipted. It must thus be disallowed. The heirs of the victim are, however, entitled to an award of civil indemnity in the amount of P50,000.00 which needs no proof other than the victims death.<! --[if !supportFootnotes]-->[33]<!--[endif]--> As to the award by the trial court of P75,000.00 as moral damages, consistent with prevailing jurisprudence,<!--[if !supportFootnotes]-->[34]<!--[endif]--> the crime committed being homicide, the amount must be reduced to P50,000.00. Finally, the award of P10,000.00 as attorneys fees must be deleted in view of the failure of the trial court to explicitly state in the body of its decision the legal basis therefor. The power of courts to grant damages and attorneys fees demands factual, legal and equitable justification; its basis cannot be left to speculation or conjecture.<!--[if !supportFootnotes]-->[35]<!--[endif]--> WHEREFORE, the appealed decision of the Regional Trial Court of Urdaneta City, Pangasinan, Branch 46 is hereby MODIFIED. Appellant Abraham Agsalog is found GUILTY beyond reasonable doubt of HOMICIDE as defined under Article 249 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty of Six (6) Years and One (1) Day of prision mayor as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal as maximum, with the accessory penalties provided by law; and he is ordered to pay the heirs of the victim, Eduardo Marzan, the amount of P50,000.00 civil indemnity and another P50,000.00 as moral damages. Appellant Jovito Siblas Y Obaa @ Bitong is hereby ACQUITTED of the charge and is hereby ordered immediately RELEASED from confinement, unless he is being lawfully held in custody for another cause. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Vitug J., on official leave. Ynares-Santiago, J., see dissenting opinion Sandoval-Gutierrez, J., maintains there was conspiracy between appellants, and joins J. Ynares-Santiagos dissenting opinion.