G.R. Nos.

112761-65 February 3, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PORFERIO M. PEPITO, accused-appellant.
PUNO, J.:
Accused-appellant PORFERIO PEPITO appeals from the Decision of the
trial court convicting him of Malversation of Public Funds through
Falsification of Official Documents on five (5) counts.
Appellant, as Acting Postmaster of Iligan City, was charged with
misappropriating government funds by manipulating his records and
making it appear that he paid a number of postal money orders although
no such payments were made. Appellant was found short in his cash
accounts, as follows: (a) P23,643.73 for October 1975; 1 (b) P11.07 for
December 1975. 2 (c) P7,283.59 for the month of January 1976; 3 (d)
P30,052.25 for April 1976, and; 4 (e) P42,302.97 for May 1976. 5
Except for the dates and amounts involved, appellant was similarly
charged in five (5) separate Informations 6 as follows:
That sometime during the month of __________, in the City of
Iligan, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Porferio Pepito, Acting Postmaster of
Iligan City, with official station thereat, and as such accountable
officer, responsible for funds collected and received by him by
reason of his position, did then and there willfully, unlawfully and
fraudulently and with grave abuse of confidence, misappropriate,
embezzle and take away government funds in his possession in
the amount __________ of accused employing deceit, false
manifestation and fraudulent misrepresentations, manipulated
his records to make it appear that on the month __________ of
the Money Order Paid by him was __________ although his
payments amounted only to __________ making untruthful
statements in a narration of facts and that by virtue of such
falsification in his record of payments, the said accused
successfully appropriated and converted to his own personal use
and benefit the sum of __________ to the damage and prejudice
of the Bureau of Post, Manila, Philippines, in the aforementioned
amount of __________.
Contrary to and in violation of Article 217 and Article 171 of the
Revised Penal Code.
First, the facts. In a letter, 7 dated August 5, 1976, CESAR L. JUAN,
Regional Director of the Bureau of Posts, Region X, Cagayan de Oro City,
requested the Office of the City Auditor, Iligan City, to audit the accounts of
appellant PORFERIO PEPITO, Acting Postmaster of Iligan City. Earlier, an
audit team from the Office of Regional Director Juan uncovered certain
anomalies regarding appellant's postal money order transactions at the
Iligan City Post Office. However, due to lack of time, the team failed to
determine the exact figure involved in the anomaly. Hence, their request for
assistance from the City Auditor's Office. 8
Iligan City Auditor FRANCISCO APARECE immediately formed an audit
team composed of Assistant City Auditor HONORIO N. PABLICO and
Auditor ROMULO ORBE. 9 They started their audit on August 19, 1976 and
concentrated on the postal money order transactions of appellant. They
examined the cash in appellant's possession and. verified the records of
the postal money orders (PMOs), the payment of these checks, and all
depository funds of said post office in government banks and in the Bureau
of Posts, Manila, covering the period from July 1, 1975 to August 9,
1976. 10

Asst. Auditor Pablico outlined the procedure for payment of postal money
orders, thus: The postmaster pays the postal money order (PMO) upon
presentation to him. The PMO paid cards, evidencing payment of the
PMOs, are then kept by the postmaster as custodian. The postmaster then
prepares a list of the PMOs he paid for a period of fifteen (15) days.
Hence, in a month, the postmaster prepares two (2) lists or records of
payment: one for the first fifteen days of the month, and another list for the
next fifteen days. The PMO paid cards and the lists are then sent to the
central office of the Bureau of Posts in Manila for safekeeping. A copy of
each list is sent to the Regional Office of the Bureau of Posts, another copy
is sent to the City Auditor's Office and the last copy is retained by the
Postmaster himself. 11
The audit team verified the total amount of PMO payments appearing on
the lists or records prepared by appellant. They totalled the daily PMO
payments of appellant and cross-checked them with appellant's entry on
the cash book. These reveal the total money order payments of appellant
for the month. After totalling the PMO payments of the postmaster per
month, the audit team requested the Central Office of the Bureau of Posts
in Manila, through its regional office, to furnish them the PMO paid cards,
evidencing payments of the PMOs during the period covered by their
audit. 12
Upon receipt of the PMO paid cards, the audit team cross-checked the
paid cards with the record of the PMOs allegedly paid by appellant. They
discovered that some PMOs were listed as paid but were not supported by
paid cards. The audit team uncovered these discrepancies for the months
of October and December, 1975 and for the months of January, April and
May, all of 1976. Based on the records, the total PMOs paid by appellant
during the period covered by the audit was P494,720.85, but only
P250,090.60 was supported by PMO paid cards. The balance of two
hundred forty-four thousand six hundred thirty pesos and twenty-five
centavos (P244,630.25) was disallowed in audit for lack of supporting
documents. Hence, the cash shortage in appellant's account. 13Appellant
asked the auditors to double-check their findings but the audit team came
out with the same result.
In a letter 14 dated February 25, 1977, the audit team informed appellant of
the shortage in his cash accounts. They demanded from appellant the
immediate restitution of the missing funds and an explanation why no
criminal and administrative sanctions should be taken against him. 15 No
action was taken by appellant to restore and explain his shortage of funds.
Hence, five (5) criminal Informations for malversation of public funds
through falsification of official documents were filed against him.
After the prosecution formally offered its evidence and rested its case on
December 18, 1978, the continuation of the hearing for the presentation of
the defense evidence was suspended due to the transfer of then Presiding
Judge Leonardo I. Cruz to Angeles City.
It was only after two (2) years, or on August 13, 1982, that continuation of
the trial resumed for the presentation of the defense evidence. However,
on the scheduled date of hearing, appellant, through counsel, filed a
motion to suspend the trial 16 on the ground that he has applied for and was
conditionally granted an amnesty under P.D. 1082 by the 11TH Amnesty
Commission of Marawi City, Lanao del Sur, for said cases. Appellant
prayed that pursuant to Section 6 of P.D. 1082, further proceedings in his
cases be held in abeyance pending final approval of his conditional
amnesty by the President of the Philippines.
The fiscal opposed 17 the motion on the ground that the conditional
amnesty of appellant was spurious for it was issued by a person not duly
authorized for the purpose.
Resolution of this motion was deferred for six (6) years with the
subsequent reorganization of the judiciary and the re-raffling of appellant's
cases. Finally, in an Order, 18 dated September 9, 1988, appellant's motion
to suspend the trial of the cases was set for hearing by the new presiding

Judge Tago M. Bantuas. However, on the date set, appellant's counsel

failed to appear. Judge Bantuas continued with the hearing of appellant's
motion and denied appellant's motion to suspend the trial. The continuation
of the hearing of the cases was set on January 10, 1989. Upon receipt of
the Order and Notice of Hearing, appellant's counsel, Atty. Dimnatang T.
Saro, filed a motion to postpone the hearing due to conflict of
schedule. 19 Hearing was thus reset to February 7,
1989. 20

day of prision mayor to fourteen (14) years and eight (8) months
of reclusion temporal.

Again, a series of motions to defer the hearing was filed at appellant's

instance and granted by the trial court. It was only on January 24, 1992
that the new presiding Judge Maximino Magno-Libre issued an Order
admitting the evidence offered by the prosecution. 21 On July 14, 1992, the
defense commenced to adduce its evidence and presented appellant as its
lone witness.

5. As to Criminal Case No. 276, considering that the amount

subject of malversation is P37,558.30, then the necessary
penalty of reclusion perpetua should also be meted out against
accused.

On the stand, appellant denied there was shortage in his cash accounts.
After he was informed of the missing funds, he asked the audit team to reexamine the records for his cash on hand has always tallied with his
cashbook. His office had been subjected to various regular audit
examinations by different offices, namely: the Bureau of Treasury, the
District Postal Inspector, the Postal Audit Examiners and the Iligan City
Auditor's Office. None of these offices found any irregularity in his
accountabilities. He urged that there must have been some error or
inaccuracy in the conduct of the audit. He further charged that the
malversation cases were filed against him for political reasons for the late
Governor Arsenio Quibranza had a grudge against his son-in-law. 22
Appellant admitted that when he was found short in his cash accounts, he
applied for amnesty under P.D. 1082. When he was informed by then
Presiding Judge Dalisay and Prosecutor Lagcao that he would have to
admit his guilt in his application for amnesty since amnesty presupposes
the commission of a crime, he still proceeded with his application for his
friends in Lanao del Sur assured him that his amnesty would be
immediately processed and approved. His conditional amnesty has been
granted but it is still pending final approval by the President for allegedly
there is someone in Manila who is blocking the grant of his amnesty. 23
After trial, the court rendered judgment 24 on September 8, 1993 finding
appellant guilty of the crime charged. The dispositive portion reads:
WHEREFORE, in accordance with the provisions of Article(s)
217, 171, in relation to Article 48 of the Revised Penal Code, the
Court finds accused guilty on all the five (5) counts he is charged
(with) and is hereby sentenced, to wit:
1. As to Criminal Case No. 277, since the amount
misappropriated is P23,643.73, accused should be penalized
according to the penalty provided in Paragraph No. 4 of Article
217 of the Revised Penal Code which is reclusion
temporal maximum to reclusion perpetua. Since according to
Article 48 of the Revised Penal Code, the penalty for the most
serious crime shall be applied in its maximum period, accused is
meted out a penalty of reclusion perpetua.
2. As to Criminal Case No. 278, considering that the amount
misappropriated was P11.07, according to Article 48 of the
Revised Penal Code, the penalty for the most serious crime shall
be imposed in its maximum period, thus, accused should be
meted out the penalty prescribed in Article 171 and in applying
the provisions of the indeterminate sentence law, accused
should be meted the indeterminate prison terms of six (6)
years prision correctional to twelve (12) years prision mayor.
3. As to Criminal Case No. 274, since the amount malversed was
P7,283.79, accused should be penalized according to Paragraph
No. 3 of Article 217 of the Revised Penal Code and should be
meted out an indeterminate penalty of ten (10) years and one (1)

4. As to Criminal Case No. 275, considering that the amount

misappropriated is P30,052.20, the penalty imposed should be
akin to the penalty prescribed in Criminal Case No. 277
mentioned in Paragraph 1 hereof, which is reclusion perpetua;
and

Finally, accused is also hereby ordered to pay the government

the total sum of P98,549.99, which is the aggregate government
funds actually misappropriated, for restitution in accordance with
Article 104 of the Revised Penal Code.
SO ORDERED.
Hence this appeal where appellant contends that:
I. THE TRIAL COURT ERRED IN DENYING THE ACCUSEDAPPELLANT'S MOTION TO SUSPEND THE PROCEEDINGS
OF THE CASES PENDING FINAL ACTION ON THE
CONDITIONAL AMNESTY GRANTED TO THE APPELLANT;
II THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIMES OF MALVERSATION
OF PUBLIC FUNDS THRU FALSIFICATION OF OFFICIAL
DOCUMENTS; AND
III. THE TRIAL COURT ERRED IN FAILING TO CONSIDER
VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSEDAPPELLANT.
First. Appellant charges that the trial court erred in denying his motion to
suspend the proceedings in these cases pursuant to Section 6 of P.D.
1082. 25 Hence, the proceedings of the trial court are null and void and the
judgment of conviction against him should be vacated.
We do not subscribe to appellant's contention. On the date scheduled for
hearing of his motion, appellant's counsel failed to appear and substantiate
the allegations in his motion. The trial court proceeded with the hearing of
the motion, found no merit thereto and denied the same. Appellant's
counsel received a copy of the Order of denial and was notified of the
continuation of the hearing of said cases. Appellant did not challenge the
correctness of this ruling by way of a petition for certiorari and prohibition
with the Court of Appeals. 26 Instead, he proceeded to adduce evidence in
his defense. After more than fifteen (15) years of trial of his cases,
appellant cannot now impugn the Order of the court denying his motion to
suspend his prosecution. 27
Second. Appellant contends that there was no clear showing that he
misappropriated the missing funds. Allegedly, his office has been regularly
audited by different agencies and none has found him short in his
accountabilities. He insists on the inaccuracy of the audit report of the City
Auditor's Office which examined his cash and accounts.
We find no merit in the contention. It is settled that in cases of malversation
of public funds, the mere failure of a public officer to have duly forthcoming
any public funds or property with which he is chargeable, upon demand by
any duly authorized officer, is prima facie evidence that he has put such
funds or property to personal use. 28 An accountable officer may be
convicted of malversation even in the absence of direct proof of
misappropriation so long as there is evidence of shortage in his accounts

which he is unable to explain. 29 Indeed, to justify conviction for

malversation of public funds, the prosecution has only to prove that the
accused received public funds or property and that he could not account
for them or did not have them in his possession and could not give a
reasonable excuse for the disappearance of the same. 30

LEONOR FORMILLEZA, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN, First Division and PEOPLE OF
THE PHILIPPINES, respondents.
K.V. Faylona & Associates for petitioner.

In the case at bar, all the elements of malversation of public funds are
present, viz: (a) the offender is a public officer, (b) he had custody or
control of the funds or property by reason of the duties of his office, (c)
these funds or property were public funds or property for which he was
accountable, and (d) that he appropriated, took, misappropriated or
consented, or through abandonment or negligence permitted another
person to take them. 31Appellant, as Acting Postmaster of Iligan City has
custody of the funds of his Office. A portion of these funds was used in the
payment of postal money orders (PMOs) presented to him. As evidence of
these payments, the Postmaster accomplishes the PMO paid cards and
makes a list of the PMOs he paid for a given period. These lists and paid
cards are then sent to the Central Office of the Bureau of Post for
safekeeping. An audit of the PMO transactions of appellant, however,
disclosed that some of his PMO payments were not supported by PMO
paid cards.
Appellant's assertion that the audit made by the Office of Iligan City Auditor
was inaccurate remains an unsubstantiated allegation. Although appellant
insisted on this alleged inaccuracy during the trial, he cannot point to the
specific procedure where the auditors erred in examining his
accountabilities. 32 Noticeably, appellant did not present any document to
show that the audit of other government agencies covered also the PMO
transactions of the post office for the same period covered by the audit of
the City Auditor.
Appellant also faults the trial court for considering as an admission of guilt
his application for amnesty under P.D. 1082. Regardless of this
consideration, however, the totality of the prosecution evidence has proved
the guilt of appellant beyond reasonable doubt. The testimonies of the
auditors and the documentary evidence adduced clearly proved appellant's
shortage of funds and his corresponding liability therefor as an accountable
officer. The testimonial and documentary evidence of the prosecution were
not successfully rebutted by the defense.
Finally, appellant contends that the trial court failed to consider in his favor
the mitigating circumstance of voluntary surrender. Allegedly, he voluntarily
surrendered to the court of justice and posted bail for his provisional liberty
before a warrant for his arrest could be issued.
The rule is clear that for the mitigating circumstance of voluntary surrender
to be appreciated, it must be proven that the accused freely placed himself
at the disposal of law enforcing authorities. The records confirm that
appellant was arrested and detained by the INP Station of Marawi City for
the crimes charged upon the issuance of the Order 33 for his arrest on
February 9, 1978. Appellant was only released from custody 34 upon the
approval of his bailbond on March 27, 1978. Under the circumstances,
appellant cannot be credited with the mitigating circumstance of voluntary
surrender.
IN VIEW WHEREOF, the Decision of the trial court convicting appellant
PORFERIO M. PEPITO for five (5) counts of Malversation of Public Funds
Through Falsification of Official Documents is AFFIRMED. Costs against
appellant
SO ORDERED.

The Solicitor General for respondents.

GANCAYCO, J.:
This is a Petition for review of a Decision of the Sandiganbayan.
The records of the case disclose that petitioner Leonor Formilleza has
been with the government service for around 20 years. She was the
personnel supervisor of the regional office of the National Irrigation
Administration (NIA) in Tacloban City, Leyte since October 1, 1982. Her
duties include the processing of the appointment papers of employees.
On the other hand, a certain Mrs. Estrella Mutia was an employee of the
NIA from February, 1978 up to March, 1985. Her appointment was
coterminous with a project of the NIA. On December 31, 1983, her
appointment wag terminated. This notwithstanding, she continued working
for the NIA pursuant to the verbal instructions of the regional director of the
Administration.
Mrs. Mutia testified that she took steps to obtain either a permanent or at
the least a renewed appointment; that when she approached the regional
director about the matter she was advised to see the petitioner who was to
determine the employees to be appointed or promoted; and that the
petitioner refused to attend to her appointment papers unless the latter
were given some money.
On February 27, 1984, Mrs. Mutia reported her problem to the Philippine
Constabulary (PC) authorities in the province. The PC officials told her that
steps were to be taken to entrap the petitioner. The entrapment equipment
consisted of marked paper money bills worth P100.00. The PC officials
concerned were colleagues of the husband of Mrs. Mutia in the PC.
The first attempt to entrap the petitioner was on February 28, 1984. The
plan did not materialize as the petitioner did not show up at the designated
rendezvous at the NIA building canteen.
The second attempt was on February 29,1984, this time with results. That
morning, the petitioner and Mrs. Mutia met in their service bus on their way
to work. The two women supposedly agreed to meet at the canteen later
that morning at 9:00 o'clock. Thereafter, Mrs. Mutia notified the PC
authorities who were to arrange the entrapment. The PC soldiers involved
in the arrangement were Identified as Sergeants Eddie Bonjoc, Efren
Abanes and Ignacio Labong.
Everyone who was to participate in the entrapment was ready. Mrs. Mutia
went to see the petitioner in her office after which the two of them
proceeded to the canteen. Some of their officemates Mrs. Florida Sevilla
and a certain Mrs. Dimaano joined them in the canteen. They occupied
two squareshaped tables joined together. The petitioner sat at the head of
the table with Mrs. Mutia seated at her left, Mrs. Dimaano at her (the
petitioner's) right and Mrs. Sevilla at the right of Mrs. Dimaano. Sergeants
Bonjoc and Labong sat at another table while Sergeant Abanes was alone
in still another table. The latter brought along a camera in order to take
photographs of the entrapment. The marked money was folded altogether.

Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.

***************************************
G.R. No. 75160 March 18, 1988

Mrs. Mutia maintains that after they had finished taking their snacks, she
handed the marked money bills under the table with her right hand to the
petitioner who received the same with her left hand. At that moment,
Sergeant Bonjoc approached the petitioner and held her hand holding the
money bills. Sergeant Abanes brought out his camera and took photo.

graphs of the sequence of events. He was able to take seven

photographs. 1
The petitioner was arrested by the soldiers despite her objections to the
entrapment. She was brought to the PC crime laboratory in the locality
where she was found positive for ultra-violet powder. In the presence of the
corporate counsel of the NW the petitioner denied accepting any bribe
money from Mrs. Mutia.
The case was brought to the Sandiganbayan where it was docketed as
Criminal Case No. 9634. Arraigned on January 1 0, 1985, the petitioner
entered a plea of not guilty and went to trial on May 13, 1985.
In the proceedings before the Sandiganbayan, the prosecution argued that
the entrapment arranged by the PC operatives was n because the
petitioner was asking money from Mrs. Mutia in consideration for having
the appointment papers of the latter facilitated. On the other hand, the
petitioner maintains her innocence that there was no entrapment; the
scenario was but a scheme set up by Mrs. Mutia and her husband's
colleagues in the PC. The petitioner denies having accepted the supposed
bribe money.
The Sandiganbayan relying on the theory of the prosecution observed in a
decision promulgated on July 14, 1986, 2 as follows
Upon consideration of the evidence. We find the p petitions
version credible.
Two days before the entrapment, Mrs. Mutia complained to the
PC authorities about the inaction of the on her appointment
papers due to her failure to give Mm money. She executed a
sworn statement to that effect, ... It was the PC who planned the
entrapment and supplied the marked money. Sgt. Efren Abanes
who dusted the money bills with fluoresence powder and who
was a member of the entrapment team, witnessed the delivery
and receipt of the money by the accused and the complainant
and he saw how the folded money was handed by Mrs. Mutia
with her right hand underneath the table and received by the with
her left hand. That was also how Mrs. Mutia described the
manner she delivered the money to the accused the money
bills were rolled winch she handed to with her right hand
underneath the table. Although Sgt. Abanes had a camera with
him to photograph the entrapment, he could not prematurely
expose the camera to allow a shot of the actual giving of the
money lest the notice his presence and intention and thereby
thwart the operation. But after the money had been delivered
and received, he immediately took out his camera and snapped
pictures, one of them depicting the accused held by Sgt. Bonjoc
and Labong on the left hand ..., and another showing the
accused also held on the left hand by one of the PC men, and
the complainant, Mrs. Mutia, drinking from a glass ...
The fact that Mrs. Mutia's husband is a PC -An himself does not
detract from the credibility of Sgt. Abanes who took part in the
Sgt. Abanes entrapment, took pictures, and testified about the
incident in court. Sets. Abanes Bonjoc and Labong were not the
only public authorities privy to the operation. Capt. Pedro Pates
was the one to whom Mrs. Mutia reported the accused demand
for money; it was he who broached the Idea of entrapping the
accused; and it was Mador Fernando Pace who supplied the
money and caused it to be marked with powder. It is
inconceivable that an these commissioned and noncommissioned officers had lent themselves to take part in an
unholy cabal of falsely incriminating a female government
employee on the mere urging of one of their associates.
Just as unreasonable is the insinuation that Mrs. Mutia had
inveigled the accused to the canteen and resorted to the

insidious machination of planting money in her hand in a

simulated entrapment simply because she thought the accused
was not helping her in her application for appointment to a
regular item.
Mrs. Florida Sevilla's presence on the same table with the
complainant and the accused may be conceded. But her
testimony that she did not see anything that took place between
the complainant and the accused before the PC operative
pounced upon the accused, and the latter angrily asked the
complainant what she was trying to do to her, does not improve
the cause of the defense. As portrayed by the accused, she was
at the head of the rectangular table with the complainant at her
left: Mrs. Dimaano at her right, and Mrs. Sevilla next to Mrs.
Dimaano. Since the money, according to the complainant and
Sgt. Abanes was handed to and received by the accused
underneath the table, it is not surprising that Mrs. Sevilla who
was two seats away from the accused did not see it. 3
The respondent court ruled that the crime committed by the petitioner was
not Direct Bribery as defined in Article 210 of the Revised Penal Code cited
in the Information but Indirect Bribery as defined under Article 211 of the
same code. Citing the case of People v. Abesamis, 4 the respondent court
was of the opinion that she could be convicted for Indirect Bribery under
the Information for Direct Bribery to which she pleaded and entered into
trial inasmuch as it is the allegation of facts rather than the denomination of
the offense by the provincial fiscal that determines the crime charged.
Thus, the respondent court found the petitioner guilty of Indirect Bribery
and sentenced her to four months ofarresto mayor, suspension from public
office, profession or calling, including the right of suffrage, and public
censure.
On August 23, 1986, the petitioner elevated the case to this Court by way
of the instant Petition for Review. The thrust of the Petition is that the
conclusions reached by the Sandiganbayan are not supported by the
evidence. Moreover, the petitioner disputes the applicability and/or
correctness of the ruling of this Court in People v. Abesamis relied upon by
the respondent court.
As instructed by this Court, the Office of the Solicitor General submitted its
Comment on the Petition. In opposing the Petition, the Solicitor General
maintains that only questions of law may be raised in the instant case and
the respondent court did not commit any error of law. The Solicitor General
also stresses therein that the findings of fact made by the Sandiganbayan
are supported by the evidence on record and deserve full faith and credit.
The Solicitor General adds that the question of credibility is addressed
mainly to the trier of facts, in this case, the Sandiganbayan.
The parties submitted subsequent pleadings in support of their stand.
Thereafter, the case was deemed submitted for decision.
We find merit in the Petition.
Presidential Decree No. 1606, as amended, governs the procedure
through which cases originating from the Sandiganbayan are elevated to
this Court. 5 Under Section 7 thereof, the decisions and final orders of the
Sandiganbayan are subject to review on certiorari by the Supreme Court in
accordance with Rule 45 of the Rules of Court. This Court has ruled that
only questions of law may be raised in a petition for certiorari under Rule
45, subject to certain rare exceptions. 6 Simply stated, one way 7 through
which a decision or final order of the Sandiganbayan can be elevated to
the Supreme Court is a Petition for certiorari under Rule 45 and, as a
general rule, only questions of law may be raised therein. The Solicitor
General cites the case of Peaverde v. Sandiganbayan 8 in support of this
view.

Going now to the question of law raised in the instant Petition, We believe
that the ruling in People v. Abesamis, contrary to the contention of the
petitioner, is authority for the view that the allegation of facts, not the
denomination of the offense by the prosecutor, determines the crime
charged. Anent the argument on the correctness of the ruling, the petitioner
had not succeeded in showing any cogent basis for reversing or modifying
the same.
The remaining argument that the judgment of conviction is not supported
by the evidence raises a question of fact inasmuch as the resolution of the
issue would require this Court to sort out and re-examine the evidence
presented in the trial. Invoking the ruling of this Court in Peaverde v.
Sandiganbayan, the Solicitor General moves for the denial of the Petition.
The Solicitor General adds that the credibility of witnesses is a matter
better left to the appreciation of the trial court, in this case, the
Sandiganbayan.
Indeed, the general rule is that only questions of law may be raised in a
petition of this character. The general rule admits exceptions, one of which
is when the findings of fact made by the trial court overlooked certain facts
of substance and value which, if considered, might affect the result of the
case. This observation was made by this court in Peaverde v.
Sandiganbayan, cited by the Solicitor General, to wit

The Sandiganbayan noted that the photographs of the entrapment show

that the petitioner was accosted by the PC soldiers after she accepted the
marked money. Against the evidence of the pro petition that the money was
handed to petitioner by Mrs. Mutia under the table is the assertion of
petitioner that it was when she stood up that Mrs. Mutia suddenly placed
something in her hand which she did not know to be money and when she
saw that it was money she threw it away. 11 An examination of the seven
photographs that were allegedly taken immediately after the passing of the
money shows that the petitioner was standing up when the PC agents
apprehended her. This corroborates petitioner's story. There was no picture
showing petitioner to be seated which should be her position immediately
after the money was handed to her under the table, which should be the
case according to the version of the prosecution. 12 None of the
photographs show the petitioner in the process of appropriating or keeping
the money after it was handed to her. Two of the seven photographs that
were taken outside the canteen appear to be of no relevance to the
operation.
As the petitioner was admittedly handed the money, this explains why she
was positive for ultra-violet powder. It is possible that she intended to keep
the supposed bribe money or may have had no intention to accept the
same. These possibilities exist but We are not certain.

We believe that the exception to the general rule calls for application in this
case.

However, what is revealing is that Mrs. Sevilla and Mrs. Dimaano were
present around the table in the canteen with the petitioner and Mrs. Mutia
when the latter allegedly handed the money to the petitioner. There were
other persons in the premises like the PC agents whose Identities
petitioner possibly did not know. Under the circumstances and in such a
public place it is not probable that petitioner would have the nerve to
accept bribe money from Mrs. Mutia even under the table. If the petitioner
knew and was prepared to accept the money from Mrs. Mutia at the
canteen, the petitioner would not have invited her officemate Mrs. Sevilla to
join them. Mrs. Sevilla stated she did not see the alleged passing of the
money. She could not have seen the money as it was passed on under the
table or when, as petitioner said it was quickly placed in her hand when
she stood up. What Mrs. Sevilla is sure of is that when they were about to
leave the canteen, two (2) men approached petitioner, one of whom took
pictures, and the petitioner shouted at Mrs. Mutia, "What are you trying to
do to me?" 13 The reaction of petitioner is far from one with a guilty
conscience.

The fundamental axiom underlying a criminal prosecution is that before the

accused may be convicted of any crime, his guilt must be proved beyond
reasonable doubt. Thus, if there are substantial facts which were
overlooked by the trial court but which could alter the results of the case in
favor of the accused, then such facts should be carefully taken into
account by the reviewing tribunal.

Moral certainty, not absolute certainty, is needed to support a judgment of

conviction, Moral certainty is a certainty that convinces and satisfies the
reason and conscience of those who are to act upon a given
matter. 14 Without this standard of certainty, it may not be said that the guilt
of the accused in a criminal proceeding has been proved beyond
reasonable doubt.

In the case before Us, there are substantial facts and circumstances Which
appear to be favorable to the accused but which were not carefully
considered by the Sandiganbayan. The failure to do so is most unfortunate
considering that the Sandiganbayan is the first and last recourse of the
accused before her case reaches the Supreme Court where findings of fact
are generally conclusive and binding.

With all these circumstances taken into account altogether, We are left at a
loss as to the guilt of the accused. Overlooked by the Sandiganbayan,
these facts and circumstances make out a good case for the petitioner.

With respect to the allegation that there was error on the part of
respondent Sandiganbayan in concluding that petitioners
conspired in the commission of the offense, suffice it to say that
the basis of its finding was the credibility of witnesses. Pursuant
to Section 7 of Presidential Decree No. 1606, in relation to
Section 2, Rule 45 of the Rules of Court, the findings of fact of
the Sandiganbayan are entitled to great respect and only
questions of laws (sic) may be raised to the Supreme Court.
Besides, well settled is the rule that the findings of (the) trial
court on credibility of witnesses will not be disturbed unless
much findings overlook certain facts of substance and value
which, if considered might affect (the) results of (the) case. 9

The essential ingredient of indirect bribery as defined in Article 211 of the

Revised Penal Code 10 is that the public officer concerned must have
accepted the gift or material consideration. There must be a clear intention
on the part of the public officer to take the gift so offered and consider the
same as his own property from then on, such as putting away the gift for
safekeeping or pocketing the same. Mere physical receipt unaccompanied
by any other sign, circumstance or act to show such acceptance is not
sufficient to lead the court to conclude that the crime of indirect bribery has
been committed. To hold otherwise will encourage unscrupulous individuals
to frame up public officers by simply putting within their physical custody
some gift, money or other property.

Accordingly, the Court holds that the guilt of the petitioner in Criminal Case
No. 9634 has not been proved beyond reasonable doubt. She is, therefore,
entitled to an acquittal.
WHEREFORE, in view of the foregoing, the Decision of the
Sandiganbayan in Criminal Case No. 9634 is hereby SET ASIDE. The
petitioner Leonor Formilleza is hereby ACQUITTED on the basis of
reasonable doubt. We make no pronouncement as to costs. This Decision
is immediately executory.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras,
Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.

Did the petitioner accept the supposed bribe money?

***************************************

G.R. No. L-65952 July 31, 1984

LAURO G. SORIANO, JR., petitioner,
vs.
THE HONORABLE SANDIGANBAYAN AND THE PEOPLE OF THE
PHILIPPINES, respondents.
Dakila F. Castro for petitioner.

WHEREFORE, the Court finds accused Lauro G. Soriano, Jr.,

GUILTY beyond reasonable doubt, as Principal in the
Information, for Violation of Section 3, paragraph (b), of Republic
Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, and hereby sentences him to suffer
the indeterminate penalty of imprisonment ranging from SIX (6)
YEARS and ONE (1) MONTH, as minimum, to NINE (9) YEARS
and ONE (1) DAY, as maximum; to suffer perpetual
disqualification from public office; to suffer loss of all retirement
or gratuity benefits under any law; and, to pay costs.

The Solicitor General for respondents.

ABAD SANTOS, J.:
The principal issue in this petition to review a decision of the
Sandiganbayan is whether or not the preliminary investigation of a criminal
complaint conducted by a Fiscal is a "contract or transaction" so as to bring
it within the ambit of Section 3 (b) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.
The factual background is as follows:
Thomas N. Tan was accused of qualified theft in a complaint lodged with
the City Fiscal of Quezon City. The case was docketed as I.S. No. 82-2964
and assigned for investigation to the petitioner who was then an Assistant
City Fiscal. In the course of the investigation the petitioner demanded
P4,000.00 from Tan as the price for dismissing the case. Tan reported the
demand to the National Bureau of Investigation which set up an
entrapment. Because Tan was hard put to raise the required amount only
P2,000.00 in bills were marked by the NBI which had to supply one-half
thereof. The entrapment succeeded and an information was filed with the
Sandiganbayan in Criminal Case No. 7393 which reads as follows:
The undersigned Tanodbayan Special Prosecutor accuses
LAURO G. SORIANO, for Violation of Section 3, paragraph (b) of
Republic Act 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as follows:
That on or about the 21st day of March 1983, at
Quezon City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, a
public officer, being then and still is an Assistant City
Fiscal of the Quezon City Fiscal's Office, detailed as
the Investigating Fiscal in the case of MARIANNE Z.
LACAMBRA versus THOMAS N. TAN, docketed as
I.S. No. 82-2964, for Qualified Theft, taking advantage
of his official position and with grave abuse of
authority, did then and there wilfully, unlawfully and
feloniously demand and request from Thomas N. Tan
the amount of FOUR THOUSAND PESOS
(P4,000.00) Philippine Currency, and actually received
from said Thomas N. Tan the amount of TWO
THOUSAND PESOS (P2,000.00) Philippine Currency,
in consideration for a favorable resolution by
dismissing the abovementioned case, wherein said
accused has to intervene in his official capacity as
such Investigating Fiscal.
CONTRARY TO LAW.
Manila, Philippines, March 22, 1983.(SGD.)
EDGARDO C. LABELLA
Special Prosecutor
After trial the Sandiganbayan rendered a decision with the following
dispositive portion:

Of the sum of Two Thousand Pesos (P2,000.00) used in the

entrapment operations, and which was fully recovered from the
accused, One Thousand Pesos (P1,000.00) shall be returned to
private complainant Thomas N. Tan, and the other half, to the
National Bureau of Investigation, National Capital Region.
A motion to reconsider the decision was denied by the Sandiganbayan;
hence the instant petition.
The petitioner has raised several legal questions plus one factual question.
The latter is to the effect that the Sandiganbayan convicted him on the
weakness of his defense and not on the strength of the prosecution's
evidence. This claim is not meritorious not only because it is not for Us to
review the factual findings of the court a quo but also because a reading of
its decision shows that it explicitly stated the facts establishing the guilt of
the petitioner and the competence of the witnesses who testified against
him.
As stated above, the principal issue is whether or not the investigation
conducted by the petitioner can be regarded as a "contract or transaction"
within the purview of Sec. 3 (b) of R.A. No. 3019. On this issue the petition
is highly impressed with merit.
The afore-mentioned provision reads as follows:
SEC. 3. Corrupt practices of public officers. In addition to acts
or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
(a) ...
(b) Directly or indirectly requesting or receiving any gift, present,
share, percentage, or benefit, for himself or for any other person,
in connection with any contract or transaction between the
Government and any other party, wherein the public officer in his
official capacity has to intervene under the law.
The petitioner states:
Assuming in gratia argumenti, petitioner's guilt, the facts make
out a case of Direct Bribery defined and penalized under the
provision of Article 210 of the Revised Penal Code and not a
violation of Section 3, subparagraph (b) of Rep. Act 3019, as
amended.
The evidence for the prosecution clearly and undoubtedly
support, if at all the offense of Direct Bribery, which is not the
offense charged and is not likewise included in or is necessarily
included in the offense charged, which is for violation of Section
3, subparagraph (b) of Rep. Act 3019, as amended. The
prosecution showed that: the accused is a public officer; in
consideration of P4,000.00 which was allegedly solicited,
P2,000.00 of which was allegedly received, the petitioner
undertook or promised to dismiss a criminal complaint pending
preliminary investigation before him, which may or may not

constitute a crime; that the act of dismissing the criminal

complaint pending before petitioner was related to the exercise
of the function of his office. Therefore, it is with pristine clarity
that the offense proved, if at all is Direct Bribery. (Petition, p. 5.)
Upon the other hand, the respondents claim:
A reading of the above-quoted provision would show that the
term 'transaction' as used thereof is not limited in its scope or
meaning to a commercial or business transaction but includes all
kinds of transaction, whether commercial, civil or administrative
in nature, pending with the government. This must be so,
otherwise, the Act would have so stated in the "Definition of
Terms", Section 2 thereof. But it did not, perforce leaving no
other interpretation than that the expressed purpose and object
is to embrace all kinds of transaction between the government
and other party wherein the public officer would intervene under
the law. (Comment, p. 8.)
It is obvious that the investigation conducted by the petitioner was not
a contract. Neither was it a transactionbecause this term must be
construed as analogous to the term which precedes it. A transaction, like a
contract, is one which involves some consideration as in credit transactions
and this element (consideration) is absent in the investigation conducted
by the petitioner.
In the light of the foregoing, We agree with the petitioner that it was error
for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A.
No. 3019.
The petitioner also claims that he cannot be convicted of bribery under the
Revised Penal Code because to do so would be violative of as
constitutional right to be informed of the nature and cause of the
accusation against him. Wrong. A reading of the information which has
been reproduced herein clearly makes out a case of bribery so that the
petitioner cannot claim deprivation of the right to be informed.
IN THE LIGHT OF THE FOREGOING, the judgment of the Sandiganbayan
is modified in that the petitioner is deemed guilty of bribery as defined and
penalized by Article 210 of the Revised Penal Code and is hereby
sentenced to suffer an indeterminate penalty of six (6) months of arresto
mayor, as minimum, to two (2) years ofprision correccional as maximum,
and to pay a fine of Two Thousand (P2,000.00) Pesos. The rest of the
judgment is hereby affirmed. Costs against the petitioner.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero,
Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and
Cuevas, JJ., concur.
***************************************
G.R. No. 147333

August 12, 2004

ROSALIA* M. DUGAYON, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION

QUISUMBING, J.:
Petitioner Rosalia Dugayon seeks the review of the Decision1 dated
November 24, 2000 of the Sandiganbayan in Criminal Case No. 20344,

convicting her and her co-accused, Jessie2 Callangan, of violating Section

3(e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act.
The following facts, as summarized by the Sandiganbayan, are
undisputed:3
Sometime in July 1989, the Department of Social Welfare and
Development (DSWD), Region 2, Tuguegarao, Cagayan, embarked on
a P239,4604 project involving the procurement of 19 typewriters. A
Procurement Board was formed, composed of Assistant Regional Director
Rosalia Dugayon as Chairman, Supply Officer Rogelio Hipolito and Carlito
Catabay as authorized canvasser.
The Board prepared the Requisition for Equipment and Supplies (RES) for
the 19 typewriters indicating their specifications. The RES was submitted to
Regional Director Consolacion Arafiles for signature and approval. Upon
approval of the RES, petitioner Dugayon released letters of canvass
(similar to an invitation to bid) addressed to dealers in Tuguegarao and
Manila. From four proposals, San Sebastian Marketing, represented by
Jessie Callangan, won the bid. When State Auditor Judy Singson, resident
auditor of DSWD, Region 2, Tuguegarao, Cagayan, learned about the
opening of the bids, she sent a letter dated July 21, 1989 to Regional
Director Consolacion Arafiles about the deficiencies in the bidding. In her
letter, Auditor Singson observed that the Auditor's Office was not informed
of the opening of the bids, in violation of Section 3915 of the Government
Accounting and Auditing Manual; that the Auditor was not furnished with
copies of bid invitations at least two weeks ahead of the opening date; that
bidder's bonds were not imposed; and that the bidders were not required to
submit or present their License/Accreditation before the opening of the bid
proposals. She recommended that the bidding be cancelled and another
one be conducted.
In a letter dated July 25, 1989, Director Arafiles responded that the opening
of the bids was done in good faith.
Auditor Singson6 sent another letter dated July 28, 1989 advising Director
Arafiles to require the winning bidder to post a performance bond instead,
to ensure the delivery of the equipment since it was already late to impose
a bidder's bond.
Thereafter, the Procurement Board prepared the Purchase Order
specifying the brands and specifications of the 19 typewriters to be
delivered and addressed to San Sebastian Marketing c/o Jessie
Callangan.
San Sebastian made three partial deliveries on August 14, 16 and 21,
1989. Upon delivery, the Inspection and Acceptance Committee headed by
Supply Officer Rogelio Hipolito, inspected and tested the typewriters and
certified in the Reports of Inspection7 that the deliveries were in
accordance with the specifications in the Purchase Order.
Subsequently, Supply Officer Hipolito prepared the voucher for payment
attaching therein the supporting documents including the Reports of
Inspection dated August 14, 16 and 21, 1989. San Sebastian Marketing
was paid with three checks in the amounts of P92,880, P88,560
and P58,050, as evidenced by three official receipts, all dated August 24,
1989.
Upon post-audit, acting on the Inspection Report dated November 15,
1989 by Agapito Malaki, Technical Audit Specialist of the COA, Regional
Office No. 2, Tuguegarao, Cagayan, the Commission on Audit (COA)
disallowed the vouchers/checks. The Inspection Report stated, among
others, that all the 19 typewriters were not brand new, but merely rebuilt
and reconditioned.
In notices dated November 29, 1989, the COA informed petitioner
Dugayon, Director Arafiles, Supply Officer Hipolito and San Sebastian
Marketing of the report.
The petitioner, Arafiles, Hipolito and Callangan were indicted for violation of
Section 3(e) of the Anti-Graft and Corrupt Practices Act before the
Sandiganbayan. Quoted below is the Amended Information dated June 17,
1994:

That for the period July 25 to August 24, 1989 or immediately

prior and subsequent thereto, in Tuguegarao, Cagayan and
within the jurisdiction of this Honorable Court, the accused,
CONSOLACION ARAFILES, ROSALIA DUGAYON, ROGELIO
D. HIPOLITO and JESSEE CALLANGAN, Regional Director,
Asst. Regional Director, Supply Officer III, all of
DECS8 and Supplier, respectively, the said public officers in the
discharge of their duties as such, conspiring and confederating
with one another and with JESSEE CALLANGAN as supplier,
did then and there wilfully, unlawfully, with evident bad faith,
purchase, pay and accept nineteen (19) second-hand rebuilt and
reconditioned typewriters from Jessee Callangan of San
Sebastian Marketing, contrary to the intention to purchase brand
new units of typewriters only, for a total cost of P239,490.00,
when in truth and in fact, the total and actual cost of the said
nineteen (19) units of second-hand, rebuilt and reconditioned
typewriters at the time of purchase was only P141,800.00 or a
difference of P97,690.00 to the damage and prejudice of the
government.
CONTRARY TO LAW.9

(2) THE HONORABLE SANDIGANBAYAN (FIFTH DIVISION) IN

CONVICTING PETITIONER-APPELLANT ROSALIA M.
DUGAYON, FOR THE OFFENSE CHARGED FAILED TO
APPRECIATE THE FACT THAT THE EVIDENCE ADDUCED BY
THE PROSECUTION ARE NOT SUFFICIENT AND ADEQUATE
TO ESTABLISH HER GUILT BEYOND REASONABLE DOUBT.12
In our view, the following issues must be resolved: (1) Was there a
conspiracy to defraud the government? and (2) Is the evidence sufficient to
prove the crime beyond reasonable doubt?
On the first issue, petitioner avers that conspiracy is not presumed and that
the elements of conspiracy, like the physical acts constituting the crime
itself, must be proven beyond reasonable doubt. She notes that the
Sandiganbayan could only point to her having signed the certification
portion of the disbursement vouchers that states,
3. CERTIFIED: Expenses necessary, lawful and incurred under
my direct supervision. Additional in case of contracts, or
purchases of goods or services prices reasonable and not in
excess of the current rates in the locality.

On July 6, 1994, the Sandiganbayan ordered the immediate arrest of the

accused. Except for Hipolito, who remains at-large, all of the accused were
arrested and later released on bail.
After the trial, the Sandiganbayan rendered its assailed Decision on
November 24, 2000, convicting petitioner and Callangan, acquitting
Arafiles and ordering the archiving of the case against Hipolito. The
decretal portion of said decision reads:
WHEREFORE, under the premises, this Court finds accused
ROSALIA M. DUGAYON and JESSEE G. CALLANGAN
"GUILTY" beyond reasonable doubt of Violation of Section 3,
paragraph (e) of R.A. No. 3019, as amended, and are hereby
sentenced to suffer each an indeterminate prison term of Six (6)
years and One (1) day, as minimum, to Nine (9) years and One
(1) day, as maximum; to indemnify the government jointly and
severally, in the amount of Ninety-Seven Thousand Six Hundred
and Ninety Pesos (P97,690.00), with costs; and accused
Dugayon to further suffer perpetual disqualification from public
office.
On the other hand, in view of the above findings, accused
CONSOLACION D. ARAFILES, is hereby ACQUITTED of the
charge. Accordingly, the Clerk of Court of the Fifth Division of this
Court is ordered to release Original Receipt No. 4193001 dated
July 18, 1994, in the amount of P15,000.00 covering her cash
bond, upon proper receipt therefor, subject to the usual auditing
and accounting procedures.
As far as accused ROGELIO D. HIPOLITO is concerned, who is
still at-large up to this time, the case against him is hereby
ordered archived until the Court shall have obtained jurisdiction
over his person. Correspondingly, let an alias warrant of arrest
be issued against him.

(Sgd.) ROSALIA M. DUGAYON

ARD FOR Admin.13

While she admits being the Chairman of the Procurement Board, she
denies being a member of the Inspection and Acceptance Committee. She
argues that, as Assistant Regional Director of the DSWD, she relies
entirely on the recommendations of her subordinates, on the
recommendation of the accountant with respect to the Purchase Order,
and on the signatures and recommendations of four subordinates who
process the documents with respect to the disbursement vouchers. She
likewise denies she conspired with her co-accused. Petitioner submits that
the elements of conspiracy were not established beyond reasonable doubt
and she should be acquitted.14
On the issue of conspiracy, petitioner relies on Magsuci v.
Sandiganbayan,15 which cited Arias v. Sandiganbayan,16 as precedent to
prove the high improbability of her conspiring with her co-accused. She
quotes,
" [the Court] would be setting a bad precedent if a head of
office plagued by all too common problemsdishonest or
negligent subordinates, overwork, multiple assignments or
positions, or plain incompetenceis suddenly swept into a
conspiracy conviction simply because he did not personally
examine every single detail, painstakingly trace every step from
inception, and investigate the motives of every person involved
in a transaction before affixing his signature as the final
approving authority. (Underscoring ours.)
...

SO ORDERED.10
The Sandiganbayan denied the respective motions for reconsideration of
the petitioner and Callangan in itsResolution11 dated February 26, 2001.
Callangan's petition for review on certiorari was denied by the Supreme
Court in a resolution dated August 8, 2001 for his failure to file the same
within the reglementary period.
Here, before us, petitioner Dugayon assigns to the Sandiganbayan the
following errors:
(1) THE HONORABLE SANDIGANBAYAN (FIFTH DIVISION)
GRAVELY ERRED IN HOLDING AND DECLARING ON THE
EXISTENCE OF A CONSPIRACY AMONG PETITIONERAPPELLANT ROSALIA M. DUGAYON, ACCUSED (AT-LARGE)
ROGELIO D. HIPOLITO, AND JESSEE CALLANGAN.

All heads of offices have to rely to a reasonable extent on their

subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations."
...
When, however, that infraction consists in the reliance in good
faith, albeit misplaced, by a head of office on a subordinate upon
whom the primary responsibility rests, absent a clear case of
conspiracy, the Arias doctrine must be held to prevail.
Respondent, on the other hand, insists that petitioner was evidently part of
the conspiracy considering that she certified the disbursement vouchers
when she very well knew that the typewriters were not brand new.
Respondent offers as basis People v. Geronimo17 which cited People v.
Carbonel,18 and quotes,

when the defendants by their acts aimed at the same object, one
performing one part and another performing another part so as
to complete it, with a view to the attainment of the same object,
and their acts, though apparently independent were in fact
concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments,
the court will be justified in concluding that said defendants were
engaged in a conspiracy. . . .
Respondent notes that the Sandiganbayan pointed out that petitioner
certified the disbursement vouchers; she chaired the Procurement Board,
and she signed the report of the Inspection and Acceptance Committee.
On the whole, she had an extensive and active participation in this
transaction for which she cannot disclaim responsibility and liability. She
could not have been unaware that the 19 typewriters were secondhand,
rebuilt and reconditioned.
In the recent case of Alvizo v. Sandiganbayan,19 we said,
Direct proof is not essential to show conspiracy. It need not be
shown that the parties actually came together and agreed in
express terms to enter into and pursue a common design. The
existence of the assent of minds which is involved in a
conspiracy may be, and from the secrecy of the crime, usually
must be, inferred by the court from proof of facts and
circumstances which, taken together, apparently indicate that
they are merely parts of some complete whole. If it is proved that
two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part
so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiments, then a conspiracy
may be inferred though no actual meeting among them to
concert means is proved. Thus, the proof of conspiracy, which is
essentially hatched under cover and out of view of others than
those directly concerned, is perhaps most frequently made by
evidence of a chain of circumstances only.
It is not correct for the petitioner to say that the Sandiganbayan could only
point to her having signed and certified the disbursement vouchers for her
involvement in the conspiracy. Other circumstances point to a finding of
conspiracy. Among them, she was the Chairman of the Procurement Board
and member/signatory of the Inspection and Acceptance Committee.
Moreover, despite patent and glaring defects in the typewriters which could
be determined by a reasonable inspection of the units, petitioner signed
the Reports of Inspection that mentioned only that the delivered typewriters
met the quantity ordered. The report was silent on the quality of the
typewriters. Yet, she hastily signed it, conveniently overlooking the
deficiencies in the transaction.
Petitioner cannot seek refuge in the cases of Magsuci and Arias when she
relied on the recommendations of her subordinates. Petitioner is an
Assistant Regional Director, not the head of office or the final approving
authority on whom the Arias doctrine is applicable. That is the reason why
the Sandiganbayan acquitted Regional Director Arafiles, who was the head
of office.
Moreover, petitioner's denial of her membership in the Inspection and
Acceptance Committee is belied by the records of this case. The records
show she signed the Reports of Inspection as a member/signatory of the
Acceptance Committee. In her testimony, she also admitted inspecting the
three deliveries20 and supervising three subordinates.21
On the sufficiency of the evidence to prove petitioner was guilty beyond
reasonable doubt of graft and corruption, Section 3(e) of Rep. Act No. 3019
(Anti-Graft and Corrupt Practices Act) is pertinent. It provides,
SEC. 3. Corrupt practices of public officers. - In addition to acts
or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
...
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted

benefits, advantage or preference in the discharge of his official,

administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or
other concessions.
The essential elements of this crime are: (1) the accused are public officers
or private persons charged in conspiracy with them; (2) said public officers
commit the prohibited acts during the performance of their official duties or
in relation to their public position; (3) they caused undue injury to any party,
whether the government or a private party; (4) such injury is caused by
giving unwarranted benefits, advantage or preference to such parties; and
(5) the public officers have acted with manifest partiality, evident bad faith
or gross inexcusable negligence.22
Recall that at the time of purchase of the typewriters, the petitioner was
then the Assistant Regional Director of DSWD Region 2, Tuguegarao,
Cagayan. She was Chairman of the Procurement Board and
member/signatory of the Inspection and Acceptance Committee. She
accepted the secondhand typewriters, contrary to the requirement to buy
brand new units, and allowed payment for them at the price of brand new
units. She admitted that the specification for the typewriters should be
brand new.23 The Sandiganbayan found the typewriters that were paid for
were secondhand, rebuilt and reconditioned. These findings of fact are
binding on us.24 We find no reason to reject these findings as these were
based on the Inspection Report of the COA.
Without hesitation we find that this transaction defrauded and caused injury
to the government. The Sandiganbayan reported that based on the Prices
Comparison of Agency Purchase Price Against Re-canvassed Prices on
Re-conditioned Items, the government paid P239,490 for the deliveries
or P97,690 more than the actual cost of P141,800 of the
rebuilt/reconditioned typewriters, giving unwarranted benefits to San
Sebastian Marketing and Jessie Callangan. The amount of P97,690
represents the actual damage suffered by the government in this
anomalous transaction.
In our view, petitioner not only failed in her duty as Chairman of the
Procurement Board and member/signatory of the Inspection and
Acceptance Committee, she also clearly acted with evident bad faith. Bad
faith does not simply connote bad judgment or negligence. It imputes a
dishonest purpose or some moral obliquity and conscious wrongdoing. It
partakes the nature of fraud. It contemplates a state of mind affirmatively
operating with furtive design or with some motive, self-interest or ill will, or
for ulterior purposes.25 Verily, petitioner must answer for her acts and
omissions.
WHEREFORE, the petition is DISMISSED. The assailed Decision dated
November 24, 2000 of the Sandiganbayan is hereby AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna,
JJ., concur.
***************************************
G.R. No. 180363

April 28, 2009

EDGAR Y. TEVES, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and HERMINIO G.
TEVES, Respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution is whether the crime of which petitioner Edgar Y.
Teves was convicted in Teves v. Sandiganbayan1 involved moral turpitude.
The facts of the case are undisputed.

Petitioner was a candidate for the position of Representative of the 3rd

legislative district of Negros Oriental during the May 14, 2007 elections. On
March 30, 2007, respondent Herminio G. Teves filed a petition to
disqualify2petitioner on the ground that in Teves v. Sandiganbayan,3 he was
convicted of violating Section 3(h), Republic Act (R.A.) No. 3019, or the
Anti-Graft and Corrupt Practices Act, for possessing pecuniary or financial
interest in a cockpit, which is prohibited under Section 89(2) of the Local
Government Code (LGC) of 1991, and was sentenced to pay a fine of
P10,000.00. Respondent alleged that petitioner is disqualified from running
for public office because he was convicted of a crime involving moral
turpitude which carries the accessory penalty of perpetual disqualification
from public office.4 The case was docketed as SPA No. 07-242 and
assigned to the COMELECs First Division.

INTO CONSIDERATION THE FINDINGS OF THE SUPREME COURT IN

G.R. NO. 154182.

On May 11, 2007, the COMELEC First Division disqualified petitioner from
running for the position of member of House of Representatives and
ordered the cancellation of his Certificate of Candidacy.5

The fact that petitioner lost in the congressional race in the May 14, 2007
elections did not effectively moot the issue of whether he was disqualified
from running for public office on the ground that the crime he was
convicted of involved moral turpitude. It is still a justiciable issue which the
COMELEC should have resolved instead of merely declaring that the
disqualification case has become moot in view of petitioners defeat.

Petitioner filed a motion for reconsideration before the COMELEC en banc

which was denied in its assailed October 9, 2007 Resolution for being
moot, thus:
It appears, however, that [petitioner] lost in the last 14 May 2007
congressional elections for the position of member of the House of
Representatives of the Third district of Negros Oriental thereby rendering
the instant Motion for Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration
dated 28 May 2007 filed by respondent Edgar Y. Teves challenging the
Resolution of this Commission (First Division) promulgated on 11 May
2007 is hereby DENIED for having been rendered moot and academic.

B.
THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT
THAT SUPPORTS THE FINDINGS OF THE FIRST DIVISION OF THE
COMELEC, THAT BASED ON THE "TOTALITY OF FACTS" DOCTRINE,
PETITIONER WAS CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE.7
The petition is impressed with merit.

Further, there is no basis in the COMELECs findings that petitioner is

eligible to run again in the 2010 elections because his disqualification shall
be deemed removed after the expiration of a period of five years from
service of the sentence. Assuming that the elections would be held on May
14, 2010, the records show that it was only on May 24, 2005 when
petitioner paid the fine of P10,000.00 he was sentenced to pay in Teves v.
Sandignbayan.8Such being the reckoning point, thus, the five-year
disqualification period will end only on May 25, 2010. Therefore he would
still be ineligible to run for public office during the May 14, 2010 elections.

SO ORDERED.6

Hence, it behooves the Court to resolve the issue of whether or not

petitioners violation of Section 3(h), R.A. No. 3019 involves moral
turpitude.1avvphi1

Hence, the instant petition based on the following grounds:

Section 12 of the Omnibus Election Code reads:

I.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, WHEN THE COMELEC EN BANC
DEMURRED IN RESOLVING THE MAIN ISSUE RAISED IN
PETITIONERS MOTION FOR RECONSIDERATION, WHETHER
PETITIONER IS DISQUALIFIED TO RUN FOR PUBLIC OFFICE TAKING
INTO CONSIDERATION THE DECISION OF THE SUPREME COURT IN
G.R. NO. 154182.
II.
THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS THE
RESOLUTION THEREOF WILL DETERMINE PETITIONERS
QUALIFICATION TO RUN FOR OTHER PUBLIC POSITIONS IN FUTURE
ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, WHEN THE COMELEC EN BANC IN
EFFECT AFFIRMED THE FINDINGS OF THE FIRST DIVISION WHICH
RULED THAT PETITIONERS CONVICTION FOR VIOLATION OF
SECTION 3(H) OF R.A. 3019 AND THE IMPOSITION OF FINE IS A
CONVICTION FOR A CRIME INVOLVING MORAL TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE SHOULD BE RESOLVED TAKING

Sec. 12. Disqualifications. - Any person who has been declared by

competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion, or for any offense for
which he has been sentenced to a penalty of more than eighteen months,
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon
or granted amnesty.lawphil.net
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified. (Emphasis supplied)
Moral turpitude has been defined as everything which is done contrary to
justice, modesty, or good morals; an act of baseness, vileness or depravity
in the private and social duties which a man owes his fellowmen, or to
society in general.9
Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:
Sec. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes or

takes part in his official capacity, or in which he is prohibited by the

Constitution or by any law from having any interest.
The essential elements of the violation of said provision are as follows: 1)
The accused is a public officer; 2) he has a direct or indirect financial or
pecuniary interest in any business, contract or transaction; 3) he either: a)
intervenes or takes part in his official capacity in connection with such
interest, or b) is prohibited from having such interest by the Constitution or
by law.10
Thus, there are two modes by which a public officer who has a direct or
indirect financial or pecuniary interest in any business, contract, or
transaction may violate Section 3(h) of R.A. 3019. The first mode is when
the public officer intervenes or takes part in his official capacity in
connection with his financial or pecuniary interest in any business,
contract, or transaction. The second mode is when he is prohibited from
having such an interest by the Constitution or by law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under the second
mode for having pecuniary or financial interest in a cockpit which is
prohibited under Sec. 89(2) of the Local Government Code of 1991. The
Court held therein:
However, the evidence for the prosecution has established that petitioner
Edgar Teves, then mayor of Valencia, Negros Oriental, owned the cockpit
in question. In his sworn application for registration of cockpit filed on 26
September 1983 with the Philippine Gamefowl Commission, Cubao,
Quezon City, as well as in his renewal application dated 6 January 1989 he
stated that he is the owner and manager of the said cockpit. Absent any
evidence that he divested himself of his ownership over the cockpit, his
ownership thereof is rightly to be presumed because a thing once proved
to exist continues as long as is usual with things of that nature. His affidavit
dated 27 September 1990 declaring that effective January 1990 he "turned
over the management of the cockpit to Mrs. Teresita Z. Teves for the
reason that [he] could no longer devote a full time as manager of the said
entity due to other work pressure" is not sufficient proof that he divested
himself of his ownership over the cockpit. Only the management of the
cockpit was transferred to Teresita Teves effective January 1990. Being the
owner of the cockpit, his interest over it was direct.
Even if the ownership of petitioner Edgar Teves over the cockpit were
transferred to his wife, still he would have a direct interest thereon
because, as correctly held by respondent Sandiganbayan, they remained
married to each other from 1983 up to 1992, and as such their property
relation can be presumed to be that of conjugal partnership of gains in the
absence of evidence to the contrary. Article 160 of the Civil Code provides
that all property of the marriage is presumed to belong to the conjugal
partnership unless it be proved that it pertains exclusively to the husband
or to the wife. And Section 143 of the Civil Code declares all the property of
the conjugal partnership of gains to be owned in common by the husband
and wife. Hence, his interest in the Valencia Cockpit is direct and is,
therefore, prohibited under Section 89(2) of the LGC of 1991, which reads:
Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be
unlawful for any local government official or employee, directly or indirectly,
to:
xxxx
(2) Hold such interests in any cockpit or other games licensed by a local
government unit. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Section
3(h) of the Anti-Graft Law, which is possession of a prohibited interest. 13
However, conviction under the second mode does not automatically mean
that the same involved moral turpitude. A determination of all surrounding

circumstances of the violation of the statute must be considered. Besides,

moral turpitude does not include such acts as are not of themselves
immoral but whose illegality lies in their being positively prohibited, as in
the instant case.
Thus, in Dela Torre v. Commission on Elections,14 the Court clarified that:
Not every criminal act, however, involves moral turpitude. It is for this
reason that "as to what crime involves moral turpitude, is for the Supreme
Court to determine." In resolving the foregoing question, the Court is
guided by one of the general rules that crimes mala in se involve moral
turpitude, while crimes mala prohibita do not, the rationale of which was set
forth in "Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself, regardless of the
fact that it is punishable by law or not. It must not be merely mala prohibita,
but the act itself must be inherently immoral. The doing of the act itself, and
not its prohibition by statute fixes the moral turpitude. Moral turpitude does
not, however, include such acts as are not of themselves immoral but
whose illegality lies in their being positively prohibited."
This guideline nonetheless proved short of providing a clear-cut solution,
for in "International Rice Research Institute v. NLRC, the Court admitted
that it cannot always be ascertained whether moral turpitude does or does
not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely
involve moral turpitude and there are crimes which involve moral turpitude
and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the statute.
(Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the circumstances
surrounding petitioners conviction and found that the same does not
involve moral turpitude.
First, there is neither merit nor factual basis in COMELECs finding that
petitioner used his official capacity in connection with his interest in the
cockpit and that he hid the same by transferring the management to his
wife, in violation of the trust reposed on him by the people.
The COMELEC, in justifying its conclusion that petitioners conviction
involved moral turpitude, misunderstood or misapplied our ruling in Teves
v. Sandiganbayan. According to the COMELEC:
In the present case, while the crime for which [petitioner] was convicted
may per se not involve moral turpitude, still the totality of facts evinces [his]
moral turpitude. The prohibition was intended to avoid any conflict of
interest or any instance wherein the public official would favor his own
interest at the expense of the public interest. The [petitioner] knew of the
prohibition but he attempted to circumvent the same by holding out that the
Valencia Cockpit and Recreation Center is to be owned by a certain Daniel
Teves. Later on, he would aver that he already divested himself of any
interest of the cockpit in favor of his wife. But the Supreme Court saw
through the ruse and declared that what he divested was only the
management of the cockpit but not the ownership. And even if the
ownership is transferred to his wife, the respondent would nevertheless
have an interest thereon because it would still belong to the conjugal
partnership of gains, of which the [petitioner] is the other half.
[Petitioner] therefore maintained ownership of the cockpit by deceit. He has
the duty to divest himself but he did not and instead employed means to
hide his interests. He knew that it was prohibited he nevertheless
concealed his interest thereon. The facts that he hid his interest denotes
his malicious intent to favor self-interest at the expense of the public. Only
a man with a malevolent, decadent, corrupt and selfish motive would cling
on and conceal his interest, the acquisition of which is prohibited. This
plainly shows his moral depravity and proclivity to put primacy on his self

interest over that of his fellowmen. Being a public official, his act is also a
betrayal of the trust reposed on him by the people. Clearly, the totality of
his acts is contrary to the accepted rules of right and duty, honesty and
good morals. The crime, as committed by the [petitioner], plainly involves
moral turpitude.15
On the contrary, the Courts ruling states:
The Sandiganbayan found that the charge against Mayor Teves for causing
the issuance of the business permit or license to operate the Valencia
Cockpit and Recreation Center is "not well-founded." This it based, and
rightly so, on the additional finding that only the Sangguniang Bayan could
have issued a permit to operate the Valencia Cockpit in the year 1992.
Indeed, under Section 447(3) of the LGC of 1991, which took effect on 1
January 1992, it is the Sangguniang Bayan that has the authority to issue a
license for the establishment, operation, and maintenance of cockpits.
Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the municipal
mayor was the presiding officer of the Sangguniang Bayan, under the LGC
of 1991, the mayor is not so anymore and is not even a member of the
Sangguniang Bayan. Hence, Mayor Teves could not have intervened or
taken part in his official capacity in the issuance of a cockpit license during
the material time, as alleged in the information, because he was not a
member of the Sangguniang Bayan.16
Thus, petitioner, as then Mayor of Valencia, did not use his influence,
authority or power to gain such pecuniary or financial interest in the
cockpit. Neither did he intentionally hide his interest in the subject cockpit
by transferring the management thereof to his wife considering that the
said transfer occurred before the effectivity of the present LGC prohibiting
possession of such interest.
As aptly observed in Teves v. Sandiganbayan:
As early as 1983, Edgar Teves was already the owner of the Valencia
Cockpit. Since then until 31 December 1991, possession by a local official
of pecuniary interest in a cockpit was not yet prohibited. It was before the
effectivity of the LGC of 1991, or on January 1990, that he transferred the
management of the cockpit to his wife Teresita. In accordance therewith it
was Teresita who thereafter applied for the renewal of the cockpit
registration. Thus, in her sworn applications for renewal of the registration
of the cockpit in question dated 28 January 1990 and 18 February 1991,
she stated that she is the Owner/Licensee and Operator/Manager of the
said cockpit. In her renewal application dated 6 January 1992, she referred
to herself as the Owner/Licensee of the cockpit. Likewise in the separate
Lists of Duly Licensed Personnel for Calendar Years 1991 and 1992, which
she submitted on 22 February 1991 and 17 February 1992, respectively, in
compliance with the requirement of the Philippine Gamefowl Commission
for the renewal of the cockpit registration, she signed her name as
Operator/Licensee.17 (Emphasis supplied)
Second, while possession of business and pecuniary interest in a cockpit
licensed by the local government unit is expressly prohibited by the present
LGC, however, its illegality does not mean that violation thereof necessarily
involves moral turpitude or makes such possession of interest inherently
immoral. Under the old LGC, mere possession by a public officer of
pecuniary interest in a cockpit was not among the prohibitions. Thus, in
Teves v. Sandiganbayan, the Court took judicial notice of the fact that:
x x x under the old LGC, mere possession of pecuniary interest in a cockpit
was not among the prohibitions enumerated in Section 41 thereof. Such
possession became unlawful or prohibited only upon the advent of the
LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves
stands charged with an offense in connection with his prohibited interest
committed on or about 4 February 1992, shortly after the maiden
appearance of the prohibition. Presumably, he was not yet very much
aware of the prohibition. Although ignorance thereof would not excuse him
from criminal liability, such would justify the imposition of the lighter penalty

of a fine of P10,000 under Section 514 of the LGC of 1991.18 (Italics

supplied)
The downgrading of the indeterminate penalty of imprisonment of nine
years and twenty-one days as minimum to twelve years as maximum to a
lighter penalty of a fine of P10,000.00 is a recognition that petitioners
violation was not intentionally done contrary to justice, modesty, or good
morals but due to his lack of awareness or ignorance of the prohibition.
Lastly, it may be argued that having an interest in a cockpit is detrimental to
public morality as it tends to bring forth idlers and gamblers, hence,
violation of Section 89(2) of the LGC involves moral turpitude.
Suffice it to state that cockfighting, or sabong in the local parlance, has a
long and storied tradition in our culture and was prevalent even during the
Spanish occupation.19 While it is a form of gambling, the morality thereof or
the wisdom in legalizing it is not a justiciable issue. In Magtajas v. Pryce
Properties Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue. Gambling is not illegal
per se. While it is generally considered inimical to the interests of the
people, there is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning it at all. It is left to
Congress to deal with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horseracing. In making such choices, Congress has consulted its own wisdom,
which this Court has no authority to review, much less reverse. Well has it
been said that courts do no sit to resolve the merits of conflicting theories.
That is the prerogative of the political departments. It is settled that
questions regarding the wisdom, morality, or practicability of statutes are
not addressed to the judiciary but may be resolved only by the legislative
and executive departments, to which the function belongs in our scheme of
government. That function is exclusive. Whichever way these branches
decide, they are answerable only to their own conscience and the
constituents who will ultimately judge their acts, and not to the courts of
justice.
WHEREFORE, the petition is GRANTED. The assailed Resolutions of the
Commission on Elections dated May 11, 2007 and October 9, 2007
disqualifying petitioner Edgar Y. Teves from running for the position of
Representative of the 3rd District of Negros Oriental, are REVERSED and
SET ASIDE and a new one is entered declaring that the crime committed
by petitioner (violation of Section 3(h) of R.A. 3019) did not involve moral
turpitude.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
***************************************
G.R. No. 121768 July 21, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO CASTILLO, JR., accused-appellant.

FRANCISCO, J.:
This is a case of parricide more tragic in that it involves the cold-blooded
murder of a father by his only son.

On November 6, 1993 between the hours of 7:30 and 8:30 in the evening,
the appellant DOMINGO CASTILLO, JR., nicknamed "Boyet", was in the D
& G Restaurant in Norzagaray, Bulacan drinking beer with the victim, his
father, Domingo Castillo, Sr. 1 After some two hours of drinking, a group of
noisy customers arrived. Wary of the trouble that these customers may
cause and aware of his son's propensity to get into fights, the victim urged
the former to go home with him. 2 The appellant and the victim then
boarded a blue pick-up truck with plate number CBE 591. 3 The appellant
drove the vehicle in the direction of their home in Angat, Bulacan with the
victim in the passenger's seat. During the trip home, an argument ensued
between the appellant and the victim who were both a bit drunk
already 4 because the former kept insisting that he should or could go back
to the restaurant while the latter prevented him from doing so. 5 Upon
nearing their house, the appellant abruptly stopped the pick-up and the
victim alighted therefrom. 6 Holding a bottle of beer in his right hand, the
victim raised both of his hands, stood in front of the pick-up and said, "sige
kung gusto mo sagasaan mo ako, hindi ka makakaalis" (go ahead, run
over me if you want to leave). 7 The appellant slowly drove the pick-up
forward threatening to run over the victim. At this juncture, the victim
exclaimed, "papatayin mo ba ako?" (are you going to kill me?). 8 After the
victim uttered these words, the appellant backed-up almost hitting an
owner type jeep parked at the side of the road and on board which were
four (4) people conversing with each other, including prosecution
eyewitness, Ma. Cecilia Mariano. Then at high speed, the appellant drove
the pick-up forward hitting the victim in the process. Not satisfied with what
he had done, the appellant put the vehicle in reverse thereby running over
the victim a second time. The appellant then alighted from the vehicle and
walked towards their house. 9
At the precise moment of the perpetration of the crime, another witness,
Arthur Agaran who worked at the recapping shop of the victim was in the
latter's residence. 10 He was changing his clothes and preparing to work
overtime in the recapping shop located in the premises of the victim's
residence. 11 Agaran saw the pick-up truck being driven by the appellant
and noticed that it moved forward and backward four (4) times 12 about
twenty (20) to thirty (30) meters from the house. 13 When he and another
worker went outside to find out
what had happened, they saw the victim's body bloodied and sprawled on
the ground. 14 They rushed the victim to the Dolorosa Hospital at
Norzagaray, Bulacan where the victim expired shortly thereafter. 15
The appellant was not immediately prosecuted for the death of his father
which he was able to pass off as an accident. But when his older sister,
Leslie C. Padilla, arrived from the United States to attend her father's wake
and funeral, she made inquiries about the circumstances surrounding his
death and was given different versions of the incident, some of which
insinuated that her father did not meet his demise accidentally. 16 Later, a
suspicion of foul play moved her to engage the services of the National
Bureau of Investigation (NBI) for a formal investigation into the
matter. 17 The results thereof confirmed Padilla's suspicion and led to the
filing of an information for parricide against appellant. 18 After trial, Branch
14 of the Regional Trial Court of Bulacan found the appellant guilty beyond
reasonable doubt of the crime of parricide and sentenced him to suffer the
penalty of reclusion perpetua and to pay the other heirs of the victim TWO
HUNDRED FIFTY THOUSAND PESOS (P250,000.00) as actual
damages. 19
We affirm the judgment of conviction.
The prosecution has successfully established the elements of parricide: (1)
the death of the deceased; (2) that he or she was killed by the accused;
and (3) that the deceased was a legitimate ascendant or descendant, or
the legitimate spouse of the accused. 20 The only question left to be
answered by this Court is whether or not the parricide was committed thru
reckless imprudence as claimed by the appellant. The appellant does not
dispute the fact that he had indeed ran over his father with the pick-up
truck he was driving on that fateful night in November, 1993. He claims,
however, that there was no intention on his part to kill his father, and that

he had accidentally stepped on the gas pedal forcefully, causing the

vehicle to travel, at a fast speed. 21
The appellant's asseveration is not worthy of credence. In convicting the
appellant, the trial court relied heavily on the testimonies of the prosecution
witnesses, Mariano and Agaran. We find no reason to do otherwise,
applying the fundamental rule in criminal cases that in the matter of
credibility of witnesses, the appellate court gives great weight and highest
degree of respect to the findings of the trial court as they are in a better
position to examine real evidence as well as to observe the demeanor of
the witnesses. 22 The details of the incident as narrated by Mariano and
Agaran bespeak of a crime committed with full intent. And we have held
that a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence. 23 What qualifies an act as one of reckless
or simple negligence or imprudence is the lack of malice or criminal intent
in the execution thereof. 24Otherwise stated, in criminal negligence, the
injury caused to another should be unintentional, it being simply the
incident of another act done without malice 25 but with lack of foresight,
carelessness, or negligence, and which has harmed society or an
individual. 26
On direct examination, Mariano testified as follows:
Q: While you were there infront (sic) of your house, do you recall
of any unusual incident that happened?
A: Yes, sir there was.
Q: Tell us about that unusual incident?
A: While we were conversing at that time, all of a sudden there
was a colored blue pick up (sic) that was rushing towards our
place in very fast speed (humaharurot).
Q: With whom were you conversing at that time?
A: My two (2) friends and one of my sister (sic), sir.
Q: What is the name of your sister?
A: Ma. Lucila G. Mariano, sir.
Q: From where did that pick up van come from (sic)?
A: It came from behind our back, sir.
xxx xxx xxx
Q: What happened after you saw that pick up (sic) colored blue
speeding in that street?
A: All of a sudden it stopped, sir.
Q: In your sketch, will you please draw a square or a rectangular
figure to indicate the position of that van when it stopped?
AT THIS JUNCTURE, THE WITNESS IS INDICATING THE SAME.
Q: After that pick up (sic) stopped, what happened next?
A: It stopped there, sir.
Q: How about you, what did you do when the pick up stopped?

A: We were looking at it. We did not mind it.

Q: Will you please indicate where the old man proceed (sic)?

Q: After that, did you notice anything unusual that happened

around the premises.

AT THIS JUNCTURE, THE WITNESS IS DOING THE SAME.

A: Yes, sir.

Q: When you saw the old man hit by that pick up (sic), did you
do anything?

Q: Tell us about that unusual incident?

A: I was just shocked, sir.

A: An old man alighted, sir.

Q: And what happened to the pick up (sic) after it hit the old
man?

Q: From where did that old man alight?

A: From the pick up (sic), sir.
COURT:
Q: The blue pick up (sic)?
A: Yes, your honor.

A: After it hit the old man, I noticed that it moved backwards

again and then the headlight was on at that time and I saw the
old man lying sprawled on the road, sir.
Q: And what did you do after you saw the old man lying sprawled
on the street?
A: I just say (sic) to my companion, "Hoy, nasagasaan yong
matanda" then all of us were shocked and we noticed that the
driver of that pick up (sic) was (sic) alighted, sir.

FISCAL:
Q: From what side of the pick up (sic) did he alight, from the left
or from the right side?
A: From the right side, sir.
Q: After that old man had alighted, what happened?

Q: Were you able to recognize the driver of that pick up who

alighted from that vehicle?
A: I did not recognize, I just recall that he was wearing white
shorts, sir.
xxx xxx xxx

A: I noticed that the pick up (sic) colored blue thru the headlight
seems to be moving trying to intimidate the old man then I heard
the old man saying "papatayin mo ba ako" and at that time, he
was holding a bottle of beer, sir.

Q: After that driver wearing white shorts alighted from that pick
up (sic), where did he proceed?

Q: In this sketch, will you please draw the position of that old
man?

Q: When you said that he walk (sic), are you saying that the
driver left his vehicle in the middle of the street?

AT THIS JUNCTURE, THE WITNESS IS DOING THE SAME.

A: Yes, sir he left the pick up (sic). 27 (Emphasis supplied.)

Q: After the old man uttered those words, what happened?

A: I just saw that the pick up made a back up (sic) almost hitting
us, sir.
Q: Then, what did the driver of that pick up (sic) do afterwards
after backing up rather?
A: All of a sudden, the pick up (sic) ran very fast and hit the old
man, sir.
Q: You said that, that vehicle backed up and then it proceeded
very fast hitting the old man in the process, is that correct?
A: Yes, sir.
Q: Did the old man change his position after he uttered
"papatayin mo ba ako?" up to the time that he was hit by that
pick up van?
A: Yes, sir.

A: He walked towards the town proper walking, sir.

The records are bereft of any evidence that the appellant had tried to avoid
hitting the victim who positioned himself in front of the pick-up. On the
contrary, Mariano's testimony is to the effect that prior to actually hitting the
victim, the appellant was "intimidating" him by moving the pick-up forward,
thus prompting the victim to exclaim, "papatayin mo ba ako?". Worse, the
appellant backed-up to gain momentum, then accelerated at a very fast
speed knowing fully well that the vehicle would definitely hit the victim who
was still standing in front of the same.
The appellant's actuations subsequent thereto also serve to refute his
allegation that he did not intend to kill his father. Surely, the appellant must
have felt the impact upon hitting the victim. The normal reaction of any
person who had accidentally ran over another would be to immediately
alight from the vehicle and render aid to the victim. But as if to ensure the
victim's death, the appellant instead backed-up, thereby running over the
victim again. This explains why, as testified to by Agaran, he saw the
imprint of tiremarks on the victim's feet. 28 Even more indicative that this
was a cold-blooded killing and not an accident as appellant would have us
believe is his deliberate failure to promptly summon help for his father.
Mariano categorically testified that after the appellant had ran over the
victim, he alighted from the pick-up and walked in the direction of the town.
The appellant's claim that he shouted for help and called the workers in the
recapping shop to bring his father to the hospital is obviously a
fabrication.29 Agaran recounted that after the incident, the appellant walked

towards their house and while passing in front of the recapping shop,
merely looked at him and the other workers thereat. 30 A man who had not
intended to harm his own father would not walk but more likely run in
search of help. Aware of the fact that his father's life is precariously
hanging in the balance, the normal reaction of a child is to waste no time in
trying to save his life. The appellant, on the other hand, did not even lift a
finger to help his own father whose life he had so brutally taken away. It
was Agaran and the other workers who, on their own accord, brought the
victim to the hospital. In the light of the foregoing circumstances, we
therefore find it difficult to believe that the appellant did not act with malice.
Worth reiterating here is the rule that evidence, to be believed, must not
only proceed from the mouth of a credible witness, but it must be credible
in itself such as the common experience and observation of mankind
can approve as probable under the circumstances. 31
Ironically, it is the appellant's testimony that finally clinches his conviction.
His testimony reveals that a certain degree of enmity and resentment
characterized his relationship with his parents. The appellant was the only
son of well to do parents. He had never held a day's job in his entire life,
and although already a family man himself, he continued to rely solely on
his parents' support. That he was a "little spoiled" 32 is beyond doubt. The
appellant admitted that during the previous years, he and his parents had
some differences. 33 As a matter of fact, several days prior to the incident,
his father who wanted him to look for a job had a "heart to heart talk" with
him, and asked him, "ganito ka na lang ba?" (will you never
change?). 34 Finally, it was the appellant himself who told the court that the
incident was preceded by an argument between him and his father who
was determined to prevent him from returning to the restaurant. 35 But what
exactly motivated the appellant to commit so heinous a crime continues to
be beyond the comprehension of this court. There is, however, no need to
delve into the same as the facts proven during trial speak eloquently of the
commission of a crime and the identity of the author thereof. 36
Anent the award of actual damages, we delete the same as none had been
proven in court. The appellant should, however, be made to pay the other
heirs of the victim the amount of FIFTY THOUSAND PESOS (P50,000.00)
by way of moral damages.
WHEREFORE, the assailed decision finding the appellant guilty beyond
reasonable doubt of the crime of parricide is hereby AFFIRMED with the
modification that he is sentenced to suffer the penalty of reclusion
perpetua and to pay the other heirs of the victim the amount FIFTY
THOUSAND PESOS (P50,000.00) as moral damages.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Paganiban, JJ., concur.
***************************************
G.R. No. 137347

March 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

That on or about the 26th day of September 1998, in Quezon

City, Philippines, the said accused, with intent to kill, by means of
treachery and taking advantage of superior strength, did then
and there, wilfully, unlawfully and feloniously attack, assault and
employ personal violence upon the person of VINCENT
JOROJORO, JR. y MORADAS, a minor, eleven (11) years of
age, by then and there, shooting him with a gun, hitting him on
the head, thereby inflicting upon him serious and mortal wound
which was the direct and immediate cause of his death, to the
damage and prejudice of the heirs of the said offended party.
CONTRARY TO LAW.2
Upon arraignment on October 20, 1998, the appellant, with the assistance
of counsel, pleaded not guilty. Thereafter, trial ensued.
Case for the Prosecution3
Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and
Felicisima Jorojoro. The family lived at Sitio Militar, Barangay Bahay Toro,
Project 8, Quezon City. Vincent, nicknamed "Hataw," was a grade three
pupil whose education was sponsored by the Spouses Petinato, an
American couple, through an educational foundation.4
The appellant was an officer of the Philippine National Police detailed in
the Traffic Management Group (TMG) based in Camp Crame, Quezon City,
but was on detached service with the Motorcycle Unit of the Metropolitan
Manila Development Authority (MMDA).
At about 2:30 p.m. of September 26, 1998, Vincent asked permission from
his mother Felicisima if he could play outside. She agreed.5 Together with
his playmate Whilcon "Buddha" Rodriguez, Vincent played with his kite on
top of the roof of an abandoned carinderia beside the road in Sitio Militar,
Barangay Bahay Toro. Beside thiscarinderia was a basketball court, where
fourteen-year-old Ricardo Salvo and his three friends, nicknamed L.A.,
Nono and Puti, were playing backan, a game of basketball.
Ricardo heard the familiar sound of a motorcycle coming from the main
road across the basketball court. He was nonplussed when he looked at
the person driving the motorcycle and recognized the appellant. Ricardo
knew that the appellant abhorred children playing on the roof of
the carinderia and berated them for it. His friend Ong-ong had previously
been scolded by the appellant for playing on the roof.
Ricardo called on Vincent and Whilcon to come down from the roof. When
the appellant saw Vincent and Whilcon, the former stopped his motorcycle
and shouted at them, "Putang inang mga batang ito, hindi kayo magsibaba
d'yan!" After hearing the shouts of the appellant, Whilcon immediately
jumped down from the roof.6 Vincent, meanwhile, was lying on his stomach
on the roof flying his kite. When he heard the appellant's shouts, Vincent
stood up and looked at the latter. Vincent turned his back, ready to get
down from the roof. Suddenly, the appellant pointed his .45 caliber
pistol7 towards the direction of Vincent and fired a shot. Vincent was hit on
the left parietal area. He fell from the roof, lying prostrate near the canal
beside the abandoned carinderia and the basketball court.8
Whilcon rushed to help Vincent up but was shocked when he saw blood on
the latter's head. Whilcon retreated and left his friend.9 The appellant
approached Vincent and carried the latter's hapless body in a waiting
tricycle and brought him to the Quezon City General Hospital. Vincent was
pronounced dead on arrival.

DECISION

Meantime, word reached Vincent's parents that their son was shot and
brought to the hospital. They rushed to the hospital, only to see their son's
already lifeless body. The appellant was nowhere to be found.

For automatic review is the Decision1 of the Regional Trial Court of Quezon
City, Branch 95, convicting appellant PO3 Ferdinand Fallorina y Fernando
of murder for the killing of eleven-year-old Vincent Jorojoro, Jr. while the
latter was flying his kite on top of a roof. The court a quo sentenced the
appellant to suffer the death penalty.

Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National

Bureau of Investigation (NBI) conducted an autopsy where he made the
following findings:

CALLEJO, SR., J.:

The accusatory portion of the Information charging the appellant with

murder reads:

Cyanosis, lips and nailbeds.

Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral
aspect.

Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall,

right side.
Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with
irregular edges, abrasion collar widest postero-inferiorly, located
at the head, left parietal area, 9.0 cms. above and 8.0 cms.
behind the left external auditory meatus, directed forward
upward and from left to right, involving the scalp, fracturing the
left parietal bone (punched-in), lacerating the left and right
cerebral hemispheres of the brain, fracturing the right parietal
bone (punched-out), lacerating the scalp, making an Exit wound,
3.3 x 1.0 cms., stellate with everted and irregular edges, 12.0
cms. above and 2.0 cms. in front of the right external auditory
meatus.
Intracranial hemorrhage, subdural and subarachnoid, extensive,
bilateral.
Scalp hematoma, fronto-parietal areas, bilateral.
Visceral organs, congested.
Stomach, one-fourth (1/4) filled with partially digested food
particles.
CAUSE OF DEATH: GUNSHOT WOUND, HEAD.10
Dr. Baluyot testified that the victim died from a single gunshot wound in the
head. The bullet entered the left upper back portion of the head (above the
level of the left ear)11 and exited to the right side.12 Dr. Baluyot signed
Vincent's certificate of death.13
At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P.
Aquino proceeded to the scene of the shooting but failed to find the victim
and the appellant. They proceeded to the Quezon City General Hospital
where they heard that the victim had died. They returned to the crime
scene and recovered an empty shell from a .45 caliber gun.14
On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA
Motorcycle Unit to which the appellant was assigned on detached service,
reported to the Sangandaan Police Station that the appellant had not
reported for duty.15 At 2:10 p.m. of September 29, 1998, Police Senior
Superintendent Alfonso Nalangan, the Regional Director of the PNP-TMG,
NCR, surrendered the appellant to the Sangandaan Police Station together
with his .45 caliber pistol bearing Serial No. AOC-38701.16
Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the
Department of Justice where he was enrolled under its Witness Protection
Program. He gave his sworn statement to NBI Special Agent Roberto
Divinagracia on September 29, 1998.17 On the same date, P/Insp. Abelardo
Aquino wrote the Chief of the PNP Crime Laboratory Examination Unit
requesting for the ballistic examination of the .45 caliber pistol with Serial
No. AOC-38701 and the empty shell of a .45 caliber gun found at the
scene of the shooting.18 Before noon on September 30, 1998, Divinagracia
arrived at the station and turned over two witnesses, Raymond Castro and
Ricardo Salvo. He also turned over the witnesses' sworn statements.19 On
October 2, 1998, on orders of the police station commander,20 Pajarillo took
pictures of the crime scene, including the carinderia and the roof with a
bullet hole as part of the office filing.21 He did not inform the prosecution
that he took such pictures, nor did he furnish it with copies thereof.
However, the appellant's counsel learned of the existence of the said
pictures.
On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification
Report No. FAIB-124-98 stating that:
FINDINGS:
Microscopic examination and comparison of the specimen
marked "FAP" revealed the same individual characteristics with
cartridge cases fired from the above-mentioned firearm.
CONCLUSION:

The specimen marked "FAP" was fired from the abovementioned caliber .45 Thompson Auto Ordnance pistol with
serial number AOC-38701.22
Vincent's family suffered mental anguish as a result of his death. As
evidenced by receipts, they spent P49,174 for the funeral.23
Case for the Appellant
The appellant denied shooting Vincent. He testified that at about 1:30 p.m.
of September 26, 1998, Macario Ortiz, a resident of Sitio San Jose,
Quezon City, asked for police assistance; Macario's brother-in-law was
drunk and armed with a knife, and was creating trouble in their house. The
appellant's house was located along a narrow alley (eskinita) perpendicular
to the main road. It was 200 meters away from Macario's
house.24 Responding to the call, the appellant took his .45 service revolver,
cocked it, put the safety lock in place and tucked the gun at his right
waistline. He brought out his motorcycle from the garage and slowly
negotiated the bumpy alley leading to the main road. Macario, who was
waiting for him at the main road, called his attention to his revolver which
was about to fall off from his waist. The appellant got distracted and
brought his motorcycle to the right side of the road, near the abandoned
carinderia where he stopped. As he stepped his right foot on the ground to
keep himself from falling, the appellant lost his balance and slipped to the
right. At this point, the revolver fell to the ground near his foot and suddenly
went off. Bystanders shouted, "Ano yon, ano yon, mukhang may
tinamaan." He picked up his gun and examined it. He put the safety latch
back on and tucked it at his right waistline. He then told Macario to wait for
a while to check if somebody was really hit. He went near the
abandoned carinderia and saw Vincent sprawled to the ground. He picked
up the bloodied child, boarded him on a tricycle on queue and instructed its
driver, Boy Candaje, to bring the boy to the hospital.25 On board the tricycle
were Jeffrey Dalansay and Milbert Doring.
The appellant rode his motorcycle and proceeded to his mother's house in
Caloocan City but did not inform her of the incident. He then called his
superior officer, Major Isidro Suyo, at the Base 103, located at Roces
Avenue, Quezon City. The appellant informed Major Suyo that he met an
accident; that his gun fell and fired; and, that the bullet accidentally hit a
child. He also told his superior that he might not be able to report for work
that day and the following day. He assured his superior that he would
surrender later. He then went to Valenzuela City to the house of his friend
PO3 Angelito Lam, who was a motorcycle unit cop. The appellant stayed
there for three days. He also visited friends during that time.
On September 29, 1998, he went to the office of Major Suyo and
surrendered his .45 caliber pistol. Major Suyo accompanied and turned
over the appellant to the commanding officer at Camp Crame, Quezon
City. The appellant was subjected to a neuro and drug test. He stated that
the results of the drug test were negative. The appellant was then referred
to the Sangandaan Police Station for investigation.26 The pictures27 of the
crime scene were given to him by Barangay Tanod Johnny Yaket, shown in
one of the pictures pointing to a bullet hole. The appellant's testimony was
corroborated in pari materia by Macario Ortiz.
Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that
at 1:30 p.m. of September 26, 1998, he was playing basketball at
Barangay Bahay Toro, at the basketball court along the road beside the
chapel. With him were Ricardo, Puti and Nono. Vincent was on the rooftop
of the carinderia with Whilcon. While Puti was shooting the ball, an
explosion ensued. He and Ricardo ran beside the chapel near the
basketball court. He looked back towards the basketball court and saw the
appellant, about 15 meters away from the canal, holding the prostrate and
bloodied Vincent. He did not see the appellant shoot Vincent. He did not
report what he saw to the police authorities. He was ordered by his father
to testify for the appellant. He also testified that his mother was related to
Daniel, the appellant's brother.
On January 19, 1999, the trial court rendered judgment convicting the
appellant of murder, qualified by treachery and aggravated by abuse of
public position. The trial court did not appreciate in favor of the appellant
the mitigating circumstance of voluntary surrender. The decretal portion of
the decision reads:
WHEREFORE, judgment is hereby rendered finding the accused
PO3 Ferdinand Fallorina y Fernando GUILTY beyond
reasonable doubt of the crime of Murder defined in and

penalized by Article 248 of the Revised Penal Code, as amended

by Republic Act No. 7659, and in view of the presence of the
aggravating circumstance of taking advantage by the accused of
his public position (par. 1, Art. 14, Revised Penal Code), is
hereby sentenced to suffer the penalty of DEATH.

pictures, to testify on the matter. The appellant failed to prove that any slug
was found on the rooftop or under the roof which came from the appellant's
.45 caliber pistol. According to the Solicitor General, the pictures relied
upon by the appellant cannot overcome the positive and straightforward
testimony of the young eyewitness Ricardo Salvo.

The accused is hereby ordered to indemnify the heirs of the late

Vincent Jorojoro, Jr. the amounts of P49,174.00, as actual
damages; P50,000.00, as moral damages; P25,000.00, as
exemplary damages; and, P50,000.00, as death indemnity.

We agree with the Office of the Solicitor General. Whether or not the
appellant is exempt from criminal liability is a factual issue. The appellant
was burdened to prove, with clear and convincing evidence, his affirmative
defense that the victim's death was caused by his gun accidentally going
off, the bullet hitting the victim without his fault or intention of causing it;
hence, is exempt from criminal liability under Article 12, paragraph 4 of the
Revised Penal Code which reads

The accused is to pay the costs.

The .45 caliber pistol, service firearm (Exh. "R") of the accused,
shall remain under the custody of the Court and shall be
disposed of in accordance with the existing rules and regulations
upon the finality of this decision.28
The appellant assigned the following errors for resolution:
1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING
DUE CREDENCE TO RELEVANT PHYSICAL EVIDENCE,
WHICH IF CONSIDERED COULD HAVE ALTERED THE
CONCLUSIONS ARRIVED AT BY THE COURT AND THE
OUTCOME OF THE CASE.
2. THE COURT A QUO SERIOUSLY ERRED BY
OVERSTEPPING THE LINE OF JUDGING AND ADVOCACY,
AND GOING INTO THE REALM OF SPECULATION, PATENTLY
DEMONSTRATING BIAS AND PARTIALITY.
3. THE COURT A QUO ERRED IN GIVING UNDUE
CREDENCE TO THE TESTIMONY OF RICARDO SALVO,
ALLEGED PROSECUTION EYEWITNESS, WHOSE
TESTIMONY IS WANTING IN PROBABILITY, AS IT IS
CONTRARY TO THE COMMON EXPERIENCE OF MANKIND.
4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY
APPRECIATING EXCULPATORY AND INCULPATORY FACTS
AND CIRCUMSTANCES WHICH SHOULD HAVE BEEN
CONSIDERED IN FAVOR OF THE ACCUSED.
5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE
THE MITIGATING CIRCUMSTANCE OF VOLUNTARY
SURRENDER IN FAVOR OF THE ACCUSED.
6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING
THE AGGRAVATING CIRCUMSTANCE OF TAKING
ADVANTAGE OF HIS POSITION BY ACCUSED.29
The appellant asserts that the trial court failed to appreciate in his favor the
physical evidence, viz., the hole found on the rooftop of
the carinderia where Vincent was when he was shot. The appellant
contends that the picture30taken on October 2, 1998 by no less than SPO2
Felix Pajarillo, one of the principal witnesses of the prosecution, and the
pictures31 showing Barangay Tanod Yaket pointing to a hole on the roof
buttress the defense of the appellant that the shooting was accidental. The
appellant maintains that his service revolver fell to the ground, hit a hard
object, and as the barrel of the gun was pointed to an oblique direction, it
fired, hitting the victim who was on the rooftop. The bullet hit the back
portion of the victim's head, before exiting and hitting the rooftop. The
appellant posits that the pictures belie Ricardo's testimony that he
deliberately shot the victim, and, instead, complements Dr. Baluyot's
testimony that the gunshot wound came from somewhere behind the
victim, somewhere lower than the point of entrance. The appellant invokes
P/Insp. Mario Prado's testimony that if a gun hits the ground in an oblique
position, the gun will fire and the bullet will exit in the same position as the
gun, that is, also in an oblique position.
The Office of the Solicitor General, for its part, asserts that the contention
of the appellant is based on speculations and surmises, the factual basis
for his conclusion not having been proven by competent and credible
evidence. There is no evidence on record that the hole shown in the
pictures32 was caused by a bullet from a .45 caliber pistol. The appellant
did not present Barangay Tanod Johnny Yaket, who was shown in the

The following are exempt from criminal liability:

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.
The basis for the exemption is the complete absence of intent and
negligence on the part of the accused. For the accused to be guilty of a
felony, it must be committed either with criminal intent or with fault or
negligence.33
The elements of this exempting circumstance are (1) a person is
performing a lawful act; (2) with due care; (3) he causes an injury to
another by mere accident; and (4) without any fault or intention of causing
it.34 An accident is an occurrence that "happens outside the sway of our
will, and although it comes about through some act of our will, lies beyond
the bounds of humanly foreseeable consequences." If the consequences
are plainly foreseeable, it will be a case of negligence.
In Jarco Marketing Corporation v. Court of Appeals,35 this Court held that
an accident is a fortuitive circumstance, event or happening; an event
happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstance is unusual
or unexpected by the person to whom it happens. Negligence, on the other
hand, is the failure to observe, for the protection of the interest of another
person, that degree of care, precaution and vigilance which the
circumstances justly demand without which such other person suffers
injury. Accident and negligence are intrinsically contradictory; one cannot
exist with the other.36 In criminal negligence, the injury caused to another
should be unintentional, it being simply the incident of another act
performed without malice.37 The appellant must rely on the strength of his
evidence and not on the weakness of that of the prosecution because by
admitting having caused the death of the victim, he can no longer be
acquitted.
In this case, the appellant failed to prove, with clear and convincing
evidence, his defense.
First. The appellant appended to his counter-affidavit in the Office of the
Quezon City Prosecutor the pictures showing the hole on the roof of
the carinderia38 to prove that he shot the victim accidentally. However,
when the investigating prosecutor propounded clarificatory questions on
the appellant relating to the pictures, the latter refused to answer. This can
be gleaned from the resolution of the investigating prosecutor, thus:
Classificatory questions were propounded on the respondent but
were refused to be answered. This certainly led the undersigned
to cast doubt on respondent's allegations. The defenses set forth
by the respondent are evidentiary in character and best
appreciated in a full-blown trial; and that the same is not
sufficient to overcome probable cause.39
Second. The appellant did not see what part of the gun hit the
victim.40 There is no evidence showing that the gun hit a hard object when
it fell to the ground, what part of the gun hit the ground and the position of
the gun when it fell from the appellant's waist.
Third. In answer to the clarificatory questions of the court, the appellant
testified that the chamber of his pistol was loaded with bullets and was

cocked when he placed it on his right waistline.41 He also testified that the
gun's safety lock was on. He was asked if the gun would fire if the hammer
is moved backward with the safety lock in place, and the appellant
admitted that even if he pulled hard on the trigger, the gun would not fire:
Q

Is this your service firearm?

Yes, Your Honor.

Q
So the chamber might have been loaded when you went
out of the house?
A

Yes, Your Honor.

Q
What about the hammer, how was the hammer at that time
when you tucked the gun in your waistline?
A

The hammer was cocked like this.

COURT:
Can you not stipulate that the hammer is moved backwards near
the safety grip.
ATTY. AND PROS. SINTAY:

(witness did as instructed)

A

It will not, Your Honor.

COURT: (to the parties)

Q
Can you not admit that at this position, the accused pulled
the trigger, the hammer did not move forward?
PROS. SINTAY AND ATTY. PRINCIPE:
Admitted, Your Honor.
COURT: (to the witness)
Q
And therefore at this position, even if I pull the trigger
many times, a bullet will not come out from the muzzle of the gun
because the hammer is on a safety locked (sic)?
A

Yes, Your Honor.

Even if I pushed it very hard, it will not fire the gun?

Yes, Your Honor.

ATTY. PEREZ:

Q
Alright, I will ask you again a question. If the hammer of
the gun is like this and therefore it is open but it is on a safety
lock, there is space between the safety grip which is found below
the hammer, there is a space, is it not?

Yes, Your Honor.

Yes, Your Honor.

COURT: (to the witness)

That even if I pushed the safety grip forward, like this.

Q
You are a policeman, if there is a bullet inside the barrel of
the gun and then the hammer is moved backwards and therefore
it is open, that means that if you pull the trigger, the bullet will fire
because the hammer will move forward and then hit the base of
the bullet?

The Court gave the gun to the accused for him to demonstrate.

Admitted, Your Honor.

Yes, Your Honor.

Therefore, the gun was cocked when you came out?

Yes, Your Honor.

Q
You did not place the safety lock before you went out of
your house?
A

You push it forward in order to push the hammer. Hard if you

want but do not remove the safety lock.
(witness did as instructed)
The witness tried to push the safety grip and it does not touch
the hammer even if the hammer is cocked.42
Fourth. The trial court was witness as the appellant's counsel himself
proved that the defense proffered by the appellant was incredible. This can
be gleaned from the decision of the trial court:

I safety (sic) it, sir.

Q
So when you boarded the motorcycle, the gun was on a
safety lock?
A

(to the witness)

Yes, Your Honor.

Q
Will you please place the safety lock of that gun, point it
upwards.
(witness did as instructed)
It is now on a safety locked (sic)?
A

Yes, Your Honor.

Pull the trigger if the hammer will move forward?

3. More importantly, and which the Court considers it as

providential, when the counsel of the accused was holding the
gun in a cocked position and the safety lock put in place, the gun
accidentally dropped on the cemented floor of the courtroom and
the gun did not fire and neither was the safety lock moved to its
unlock position to cause the hammer of the gun to move forward.
The safety lock of the gun remained in the same position as it
was when it dropped on the floor.43
Fifth. After the shooting, the appellant refused to surrender himself and his
service firearm. He hid from the investigating police officers and concealed
himself in the house of his friend SPO3 Angelito Lam in Valenzuela City,
and transferred from one house to another for three days to prevent his
arrest:
Q
So did you surrender that afternoon of September 26,
1998?
A

No, Your Honor.

I thought you were surrendering to Major Suyo?

A
I was but I was not able to surrender to Major Suyo, Your
Honor.
Q

Why, you were already able to talk to Major Suyo?

A
Because at that time I was already confused and did not
know what to do, Your Honor.

Did you cause to blotter the shooting incident of Vincent?

I was not able to do that, sir.

Q
You did not even talk to the Bgy. Officials in Bgy. Bahay
Toro?
A

No sir, because I already brought the child to the hospital.44

ATTY. PRINCIPE: (to the witness)

The conduct of the appellant after the shooting belies his claim that the
death of the victim was accidental and that he was not negligent.

Q
What is your relation with PO3 Angelito Lam of
Valenzuela?

We agree with the encompassing disquisitions of the trial court in its

decision on this matter:

Just my co-motorcycle unit cop in the TMG, sir.

Q
Did I hear you right that you slept at the residence of PO3
Lam for three days?
A

Yes, sir.

Q
Why instead of going home to your residence at Bahay
Toro?
A

Because I am worried, sir.

COURT: (to the witness)

Q
So what did you do for three days in the house of PO3
Lam?
A
During daytime, I go to my friends, other friends and in the
evening, I go back to the house of PO3 Lam, Your Honor.
Q
So if you were able to visit your friends on September 27
or 28, 1998 and then returned to the house of PO3 Lam in the
evening, why did you not go to Major Suyo or to your 103 Base?
A
Your Honor, during those days I am really calling Major
Suyo.
Q
Why did you not go to your office at Camp Crame, Quezon
City?
A

At that time, I did not have money, Your Honor.

Q
What is the connection of you having money to that of
informing your officer that you will surrender?

The coup de grace against the claim of the accused, a

policeman, that the victim was accidentally shot was his failure to
surrender himself and his gun immediately after the incident. As
a police officer, it is hard to believe that he would choose to flee
and keep himself out of sight for about three (3) days if he
indeed was not at fault. It is beyond human comprehension that
a policeman, who professes innocence would come out into the
open only three (3) days from the incident and claim that the
victim was accidentally shot. Human behavior dictates,
especially when the accused is a policeman, that when one is
innocent of some acts or when one is in the performance of a
lawful act but causes injury to another without fault or
negligence, he would, at the first moment, surrender to the
authorities and give an account of the accident. His failure to do
so would invite suspicion and whatever account or statement he
would give later on becomes doubtful.
For the accused, therefore, to claim that Vincent was
accidentally shot is odious, if not, an insult to human intelligence;
it is incredible and unbelievable, and more of a fantasy than a
reality. It was a deliberate and intentional act, contrary to
accused's claim, that it happened outside the sway of his will.45
It is a well-entrenched rule that findings of facts of the trial court, its
calibration of the testimonies of the witnesses, its assessment of the
credibility of the said witnesses and the probative weight of their
testimonies are accorded high respect, if not conclusive effect by the
appellate court, as the trial judge was in a better position to observe the
demeanor and conduct of the witnesses as they testified.46 We have
carefully reviewed the records of the case and found no reason to deviate
from the findings of the trial court.
The testimony of prosecution witness Ricardo Salvo deserves credence.
He testified in a positive and straightforward manner, which testimony had
the earmarks of truth and sincerity. Even as he was subjected to a grueling
cross-examination by the appellant's counsel, he never wavered in his
testimony. He positively identified the appellant as the assailant and
narrated in detail how the latter deliberately aimed his gun and shot the
victim. The relevant portions of his testimony are quoted:

A
What I know, Your Honor, is that if I do that I will already be
detained and that I will have no money to spend.

Q:
While playing basketball with Nono, LA and Puti, do you
remember of any unusual incident which took place?

ATTY. PRINCIPE: (to the witness)

A:

Yes, sir.

Q
Mr. Witness, from the time of the incident up to Sept. 29,
1998, you did not even visit your family in Barangay Bahay Toro?

Q:

What was that unusual incident?

A:

When Vincent was shot, sir.

Q:

Who shot Vincent?

A:

Ferdinand Fallorina, sir.

No, sir.

COURT: (to the witness)

Q

Did you send somebody to visit your family?

No, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q:

And in what place that Vincent was shot by Fallorina?

A:

He was at the roof of the karinderia, sir.

Q:

Was there any companion of Vincent?

A:

Yes, sir.

Can the prosecution and the accused stipulate that the distance
pointed to by the witness is more or less 7 meters.

ATTY. PRINCIPE: (to the witness)

Q:
What was the position of Vincent at that time that you saw
him and Fallorina shot him?
A:

Q:
How about the distance of Fallorina from Vincent, can you
tell that?

"Nakatalikod po siya."
COURT: (to the witness)

Q:
You included in this Exhibit O your drawing the figure of a
certain Jeffrey and you and his tricycle? Why did you include this
drawing?
A:
Because it was in the tricycle where Vincent was boarded
to and brought to the hospital.

Can you point a distance between Fallorina and the boy at that
time the body (sic) was shot?
COURT:
10 meters more or less?

(Witness referring to Exhibit O-11)

Q:

And who was the driver of that tricycle?

Q:
How long have you known Ferdinand Fallorina before the
incident?

A:

It was Jeffrey who drove the tricycle, sir.

A:

More or less two years, sir.

Q:

Why do you know him?

Q:
You also drew here a motorcycle already marked as
Exhibit O-7. Why did you include the motorcycle?
A:
Because Fallorina was riding on that motorcycle at that
time.

A:
I usually see him in that place at Sitio Militar, especially on
Sundays, sir.

COURT: (to the witness)

Q:
So when Ferdinand Fallorina shot the boy, the motorcycle
was moving?
A:

It was stationary, your Honor.

Q:
Did you see where he came from, I am referring to
Fallorina before you saw him shot the boy?

A:

He came from their house, Your Honor.

Q:

What was his attire, I am referring to Ferdinand Fallorina?

A:

He was wearing white shirt and blue pants, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q:
At that time that Fallorina shot the victim, was Buddha still
there?
A:

He ran, sir. He jumped in this place, sir.

(Witness is pointing to a place near the canal already marked as

Exhibit O-14).
Q:
Now from the witness stand that you are now seated. Can
you tell the Court how far where (sic) you from Fallorina at that
time of the shooting?
COURT:

Q:

How many shots did you hear?

A:

Only one, sir.

Q:

Do you recognize the gun used by Fallorina?

A:

Yes, sir.

Q:

What was that gun?

A:

.45 cal., sir.

Q:

Are you familiar with .45 cal.?

A:

No, sir.

Q:

Why do you know that it was .45 cal.?

A:
sir.

Because that kind of gun, I usually see that in the movies,

Q:
Ricardo, you said that you have known Fallorina for two
(2) years and you saw him shot Vincent on September 26, 1998
at around 2:30 in the afternoon. Please look around the
courtroom now and point at the person of PO3 Ferdinand
Fallorina?
CT. INTERPRETER:
Witness is pointing to a male person the one seated at the back
of the lady and wearing a yellow shirt and maong pants and
when asked of his name, he stated his name as Ferdinand
Fallorina.

ATTY. PRINCIPE: (to the witness)

Q:
Can you tell to the Court whether you heard utterances at
that time that he shot the victim?

A:

Yes, sir.

Q:

What was that?

A:
"Putang inang mga batang ito, hindi kayo magsisibaba
diyan!"

Q:
After Fallorina shot Vincent Jorojoro, you saw Vincent
Jorojoro falling from the roof, what about Fallorina, what did he
do?
A:
He was still on board his motorcycle and then he went at
the back of the karinderia where Vincent fell, Your Honor.
Q:
And after he went at the back of the karinderia and looked
at Vincent Jorojoro, what did he do?
A:

He carried Vincent, Your Honor.

Q:

And after carrying Vincent, what did he do?

A:

He boarded Vincent in the tricycle.

Q:

What about the gun, what did he do with the gun?

A:

I do not know anymore.47

The appellant even uttered invectives at the victim and Whilcon before he
shot the victim. In fine, his act was deliberate and intentional.
It bears stressing that of the eyewitnesses listed in the Information as
witnesses for the prosecution, only Ricardo Salvo remained steadfast after
he was brought under the Witness Protection Program of the Department
of Justice. He explained that the reason why he testified for the
prosecution, despite the fact that the appellant was a policeman, was
because he pitied the victim's mother who was always crying, 48 unable to
obtain justice for her son. We find no ill motive why Ricardo would falsely
testify against the appellant. It was only his purest intention of ferreting out
the truth in this incident and that justice be done to the victim.49 Hence, the
testimony of Ricardo is entitled to full faith and credence.
The Crime Committed by the Appellant
We agree with the trial court that the appellant committed murder under
Article 248 of the Revised Penal Code qualified by treachery. As the trial
court correctly pointed out, Vincent was shot intentionally while his back
was turned against the appellant. The little boy was merely flying his kite
and was ready to get down from the roof when the appellant fired a shot
directed at him. The essence of treachery is the sudden and unexpected
attack on an unsuspecting victim without the slightest provocation on his
part.50 Nonetheless, Vincent was an eleven-year-old boy. He could not
possibly put up a defense against the appellant, a police officer who was
armed with a gun. It is not so much as to put emphasis on the age of the
victim, rather it is more of a description of the young victim's state of
helplessness.51 Minor children, who by reason of their tender years, cannot
be expected to put up a defense. When an adult person illegally attacks a
child, treachery exists.52 The abuse of superior strength as alleged in the
Information is already absorbed by treachery and need not be considered
as a separate aggravating circumstance.53

We, however, note that the trial court appreciated the aggravating
circumstance of abuse of public position in this case. We reverse the trial
court on this score.
There is no dispute that the appellant is a policeman and that he used his
service firearm, the .45 caliber pistol, in shooting the victim. However, there
is no evidence on record that the appellant took advantage of his position
as a policeman when he shot the victim.54 The shooting occurred only
when the appellant saw the victim on the rooftop playing with his kite. The
trial court erred in appreciating abuse of public position against the
appellant.
The trial court did not, however, err in ruling that the appellant is not
entitled to the mitigating circumstance of voluntary surrender. Surrender is
said to be voluntary when it is done by the accused spontaneously and
made in such a manner that it shows the intent of the accused to surrender
unconditionally to the authorities, either because he acknowledges his guilt
or he wishes to save them the trouble and expense necessarily incurred in
his search and capture.55
In this case, the appellant deliberately evaded arrest, hid in the house of
PO3 Lam in Valenzuela City, and even moved from one house to another
for three days. The appellant was a policeman who swore to obey the law.
He made it difficult for his brother-officers to arrest him and terminate their
investigation. It was only after the lapse of three days that the appellant
gave himself up and surrendered his service firearm.
Under Article 248 of the Revised Penal Code, the penalty for murder is
reclusion perpetua to death. Since there is no modifying circumstance in
the commission of the crime, the appellant should be sentenced to suffer
the penalty of reclusion perpetua, conformably to Article 63 of the Revised
Penal Code.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Quezon City, Branch 95, is AFFIRMED WITH MODIFICATION.
The appellant PO3 Ferdinand Fallorina y Fernando is found guilty beyond
reasonable doubt of the crime of murder under Article 248 of the Revised
Penal Code and, there being no modifying circumstances in the
commission of the crime, is hereby sentenced to suffer the penalty
of reclusion perpetua. He is also ordered to pay the heirs of the victim
Vincent Jorojoro, Jr. the amount of P49,174 as actual damages; P50,000
as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary
damages.
SO ORDERED.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and
Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., on official leave.
***************************************
G.R. No. 147932

January 25, 2006

LAILA G. DE OCAMPO, Petitioner,

vs.
THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B.
DACARRA, and ERLINDA P. ORAYAN,Respondents.
DECISION
CARPIO, J.:
The Case
This petition for certiorari1 assails the Resolutions dated 15 September
2000 and 19 April 2001 of the Secretary of the Department of Justice
("DOJ Secretary") in I.C. No. 99-6254.2 The DOJ Secretary3 denied Laila
G. De Ocampos ("petitioner") petition for review of the investigating
prosecutors finding of probable cause against her for homicide4 in relation

to Section 10(a), Article VI of Republic Act No. 7610 ("RA 7610")5 and for
violation of the same provision of RA 7610. The DOJ Secretary6 also
denied petitioners motion for reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena
B. Dacarra ("Magdalena") executed before the Womens Desk of the CPD
Police Station in Batasan Hills, Quezon City on 10 December 1999.
Magdalena stated that on 4 December 1999, her nine-year-old son Ronald
complained of dizziness upon arriving home at about six in the evening.
Ronald then vomited, prompting Magdalena to ask what happened. Ronald
replied that petitioner, who was Ronalds teacher, banged his head against
that of his classmate Lorendo Orayan ("Lorendo"). Magdalena inspected
Ronalds head and saw a woundless contusion. Due to Ronalds continued
vomiting, Magdalena brought him to a quack doctor (arbularyo) on 5
December 1999. The following morning, Magdalena brought Ronald to the
East Avenue Medical Center where he underwent an x-ray. The attending
physician informed Magdalena that Ronalds head had a fracture. Blood
oozed out of Ronalds nose before he died on 9 December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged
his head against Ronalds.
During the inquest proceedings on 14 December 1999, Assistant Quezon
City Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as
follows:
Evidence warrants the release of the respondent for further investigation of
the charges against her. The case is not proper for inquest as the incident
complained of happened on December 4, 1999. Further, we find the
evidence insufficient to support the charge for homicide against the
respondent. There is no concrete evidence to show proof that the alleged
banging of the heads of the two minor victims could be the actual and
proximate cause of the death of minor Ronald Dacarra y Baluton. Besides,
the police report submitted by the respondent in this case states that said
victim bears stitches or sutures on the head due to a vehicular accident.
There is no certainty, therefore, that respondents alleged wrongdoing
contributed or caused the death of said victim.7
Subsequently, the case was referred to Assistant Quezon City Prosecutor
Lorna F. Catris-Chua Cheng ("investigating prosecutor") for preliminary
investigation. She scheduled the first hearing on 6 January 2000.
Respondent Erlinda P. Orayan ("Erlinda"), Lorendos mother, attended the
hearing of 6 January 2000 and alleged that petitioner offered
her P100,000, which she initially accepted, for her and her sons nonappearance at the preliminary investigation. Erlinda presented the money
to the investigating prosecutor.
On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging
incident, and Melanie Lugales, who claimed to be another victim of
petitioners alleged cruel deeds, filed their sworn statements with the Office
of the Quezon City Prosecutor.
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner
invoked the disposition of the inquest prosecutor finding insufficient
evidence to support the charges against her. Petitioner assailed the
omission in Magdalenas sworn statement about Ronalds head injury due
to a vehicular accident in November 1997. Petitioner pointed out the
absence of damage or injury on Lorendo as borne out by his medical
certificate. Petitioner contended that the head-banging incident was not the
proximate cause of Ronalds death, but the failed medical attention or
medical negligence. Petitioner also alleged that Jennilyn Quirong and
Melanie Lugales have immature perception. Petitioner further asserted that
the causes of death stated in Ronalds Death Certificate are hearsay and
inadmissible in the preliminary investigation.

Ronalds Death Certificate shows the immediate cause of his death as

"Cardio Pulmonary Arrest," the underlying cause as "Cerebral Edema," and
other significant conditions contributing to death as "Electrolyte imbalance
and vomiting." The Autopsy Report, obtained by the investigating
prosecutor from the PNP Crime Laboratory in Camp Crame, states the
cause of death as "Intracranial hemorrhage secondary to traumatic injury
of the head."
The investigating prosecutor issued a Resolution finding probable cause
against petitioner for the offenses charged. The dispositive portion of the
Resolution reads:
WHEREFORE, in view of the foregoing, it is respectfully recommended
that [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of
R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail
recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A.
7610 provides that:
"For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, par. 2 and 263, par. 1 Act No.
3815, as amended, the Revised Penal Code, for the crimes of
murder, homicide, other intentional mutilation and serious physical injuries,
respectively, shall be reclusion perpetua when the victim isunder twelve
(12) years of age."
Bail recommended: No bail recommended Homicide, in relation to Art. VI,
Sec. 10, R.A. 7610; and Twenty Thousand pesos (P20,000.00) Viol. of
Sec. 10(a) of R.A. 76108
Consequently, petitioner filed a petition for review with the DOJ.
In her appeal to the DOJ, petitioner contended that the investigating
prosecutor showed bias in favor of complainants Magdalena and Erlinda
("complainants") for not conducting a clarificatory hearing and unilaterally
procuring the autopsy report. Petitioner argued that the investigating
prosecutor erred in concluding that her alleged act of banging Ronald and
Lorendos heads was the cause of Ronalds injury and that such was an
act of child abuse. Petitioner also alleged that it is the Office of the
Ombudsman which has jurisdiction over the case, and not the Quezon City
Prosecutors Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for review. The DOJ Secretary held
that there was no bias in complainants favor when the investigating
prosecutor did not conduct a clarificatory hearing and unilaterally procured
the autopsy report as nothing precluded her from doing so.
The DOJ Secretary upheld the investigating prosecutors finding that
Ronalds injury was the direct and natural result of petitioners act of
banging Ronald and Lorendos heads. The DOJ Secretary stated that
petitioner never denied such act, making her responsible for all its
consequences even if the immediate cause of Ronalds death was
allegedly the failed medical attention or medical negligence. The DOJ
Secretary held that assuming there was failure of medical attention or
medical negligence, these inefficient intervening causes did not break the
relation of the felony committed and the resulting injury.
The DOJ Secretary rejected petitioners claim that she is innocent as held
by the inquest prosecutor. The inquest prosecutor did not dismiss the case.
She merely recommended petitioners release for further investigation
since the case was not proper for inquest and the evidence was then
insufficient.

The DOJ Secretary further stated that the omission in Magdalenas sworn
statement about Ronalds head injury due to a vehicular accident in
November 1997 and the absence of any injury on Lorendo are
inconsequential.
Moreover, the DOJ Secretary ruled that whether the statements of the
causes of death in the death certificate and autopsy report are hearsay,
and whether Jennilyn Quirong and Melanie Lugales have immature
perception, are evidentiary matters which should be determined during
trial. The DOJ Secretary also sustained the investigating prosecutors
conclusion that the banging of Ronald and Lorendos heads is an act of
child abuse.
Petitioner filed a motion for reconsideration9 which the DOJ Secretary
denied in his Resolution dated 19 April 2001.10
Hence, this petition.
The Issues
Petitioner raises the following issues:
1. Whether petitioner was denied due process during the
preliminary investigation; and
2. Whether there is probable cause against petitioner for
homicide under Article 249 of the Revised Penal Code in relation
to Section 10(a), Article VI of RA 7610 and for violation of
Section 10(a), Article VI of RA 7610.
The Ruling of the Court
The petition lacks merit.
Before resolving the substantive issues in this case, the Court will address
the procedural issue raised by the Office of the Solicitor General
("OSG").11 The OSG contends that instead of Rule 65, Rule 43 is
applicable to the present case. Thus, the OSG argues that the petition
should be dismissed outright for being filed with this Court, instead of with
the Court of Appeals, under a wrong mode of appeal. On the other hand,
assuming Rule 65 applies, the OSG points out that the petition
for certiorari should be filed with the Court of Appeals.
Based on Memorandum Circular No. 58,12 the resolution of the DOJ
Secretary is appealable administratively to the Office of the President since
the offenses charged in this case are punishable by reclusion
perpetua.13 From the Office of the President, the aggrieved party may file
an appeal with the Court of Appeals pursuant to Rule 43.14
Even assuming that the DOJ Secretary committed grave abuse of
discretion in rendering the assailed Resolutions amounting to lack or
excess of jurisdiction, petitioner should have filed the instant petition
for certiorari with the Court of Appeals. Hence, on the issue alone of the
propriety of the remedy sought by petitioner, this petition forcertiorari must
fail. However, considering the gravity of the offenses charged and the need
to expedite the disposition of this case, the Court will relax the rules and
finally resolve this case in the interest of substantial justice.
Whether petitioner was denied
due process during the preliminary investigation
Absence of a clarificatory hearing
The Court rejects petitioners contention that she was denied due process
when the investigating prosecutor did not conduct a clarificatory hearing. A
clarificatory hearing is not indispensable during preliminary investigation.

Rather than being mandatory, a clarificatory hearing is optional on the part

of the investigating officer as evidenced by the use of the term "may" in
Section 3(e) of Rule 112. This provision states:
(e) If the investigating officer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory questions to the
parties or their witnesses, during which the parties shall be afforded an
opportunity to be present but without the right to examine or crossexamine. xxx15 (emphasis supplied)
The use of the word "may" in a statute commonly denotes that it is
directory in nature. The term "may" is generally permissive only and
operates to confer discretion.16 Under Section 3(e) of Rule 112, it is within
the discretion of the investigation officer whether to set the case for further
hearings to clarify some matters.
In this case, the investigating prosecutor no longer conducted hearings
after petitioner submitted her counter-affidavit. This simply means that at
that point the investigating prosecutor believed that there were no more
matters for clarification. It is only in petitioners mind that some "crucial
points" still exist and need clarification. In any event, petitioner can raise
these "important" matters during the trial proper.
Petitioner was not deprived of due process since both parties were
accorded equal rights in arguing their case and presenting their respective
evidence during the preliminary investigation. Due process is merely an
opportunity to be heard.17 Petitioner cannot successfully invoke denial of
due process since she was given the opportunity of a hearing.18 She even
submitted her counter-affidavit to the investigating prosecutor on 18
January 2000.
Preliminary investigation is merely inquisitorial. It is not a trial of the case
on the merits.19 Its sole purpose is to determine whether a crime has been
committed and whether the respondent is probably guilty of the crime.20 It
is not the occasion for the full and exhaustive display of the parties
evidence.21 Hence, if the investigating prosecutor is already satisfied that
he can reasonably determine the existence of probable cause based on
the parties evidence thus presented, he may terminate the proceedings
and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the right to examine evidence
submitted by complainants when the investigating prosecutor unilaterally
obtained a copy of the autopsy report from the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring
the investigating prosecutor to notify the parties before securing a copy of
the autopsy report. The autopsy report, which states the causes of
Ronalds death, can either absolve or condemn the petitioner.
Unfortunately for petitioner, the investigating prosecutor found that the
autopsy report bolstered complainants allegations.
Moreover, there is nothing to support petitioners claim that the
investigating prosecutor was biased in favor of complainants. There are
other pieces of evidence aside from the autopsy report upon which the
investigating prosecutor based her finding of probable cause. The autopsy
report is not the sole piece of evidence against petitioner. The sworn
statement of the other victim, Lorendo, and the eyewitness account of
Jennilyn Quirong, substantiate the charges against petitioner. Petitioners
failure to deny the occurrence of the head-banging incident also
strengthened complainants allegations.
Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the
investigating prosecutor should not go beyond the evidence presented by

complainants in resolving the case. This provision applies if the respondent

cannot be subpoenaed or if subpoenaed fails to submit her counteraffidavit within the prescribed period. Such is not the case here where
petitioner filed her counter-affidavit and both parties presented their
respective evidence.
Whether there is probable cause
for the offenses charged against petitioner
Existence of probable cause
Petitioner challenges the finding of probable cause against her for the
offenses charged arguing that the head-banging incident was not the
proximate cause of Ronalds death. Petitioner insists that efficient
intervening events caused Ronalds death.
We do not agree. There is probable cause for the offenses charged against
petitioner. Probable cause is the existence of such facts and circumstances
as would excite the belief in a reasonable mind that a crime has been
committed and the respondent is probably guilty of the crime.23
In the present case, Ronald, a nine-year-old student, died five days after
his teacher, petitioner in this case, allegedly banged his head against that
of his classmate Lorendo. There is nothing in the records showing
petitioners specific denial of the occurrence of such act. Petitioner simply
stated that "the head-banging incident happened but [she] did not
perpetrate it."24 In effect, petitioner admits the occurrence of the headbanging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the
consultation with a quack doctor, and (b) the three-day confinement in the
East Avenue Medical Center, are not sufficient to break the relation of the
felony committed and the resulting injury. Were it not for the head-banging
incident, Ronald might not have needed medical assistance in the first
place.
These circumstances which allegedly intervened causing Ronalds death
are evidentiary matters which should be threshed out during the trial. The
following are also matters better left for the trial court to appreciate: (a) the
contents of the death certificate and autopsy report, (b) the medical
records of Ronalds accident in November 1997, (c) the perception of
witnesses Jennilyn Quirong and Melanie Lugales, and (d) the alleged lack
of medical assistance or medical negligence which caused Ronalds death.
To repeat, what is determined during preliminary investigation is only
probable cause, not proof beyond reasonable doubt.25 As implied by the
words themselves, "probable cause" is concerned with probability, not
absolute or moral certainty.26
Asserting her innocence, petitioner continues to invoke the disposition of
the inquest prosecutor finding insufficient evidence for the charges against
her. As correctly ruled by the DOJ Secretary, the inquest prosecutor did not
dismiss the case but merely recommended it for further investigation since
it was not proper for inquest and the evidence was then insufficient.
Moreover, petitioners active participation in the preliminary investigation
without questioning the propriety of such proceedings indicates petitioners
agreement with the recommendation of the inquest prosecutor for the
further investigation of the case.
Charges of Homicide and Child Abuse
Petitioners single act of allegedly banging the heads of her students had
two distinct victims, namely Ronald and Lorendo. Therefore, petitioner has
to face prosecution for cruelty to each victim. For Ronalds death, petitioner
is being charged with homicide under Article 249 of the Revised Penal
Code27 in relation to Section 10(a), Article VI of RA 7610 punishable
by reclusion perpetua.28 However, this does not mean that petitioner is
being charged with the distinct offenses of homicide and child abuse for

Ronalds death. On the other hand, for her cruelty to Lorendo, petitioner is
being charged with violation of Section 10(a), Article VI of RA 7610
punishable by prision mayor in its minimum period.
Contrary to petitioners contention, Section 10(a), Article VI of RA 7610 is
clear. This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the childs
development including those covered by Article 59 of Presidential Decree
No. 603, as amended, but not covered by the Revised Penal Code, as
amended, shall suffer the penalty of prision mayor in its minimum period.
Ambiguity is a condition of admitting two or more meanings, of being
understood in more than one way, or of referring to two or more things at
the same time. A statute is ambiguous if it is susceptible to more than one
interpretation.29 In the present case, petitioner fails to show convincingly
the ambiguity in Section 10(a), Article VI of RA 7610.
Section 3(b), Article VI of RA 7610 defines "child abuse" as the
maltreatment, whether habitual or not, of the child which includes physical
abuse and cruelty. Petitioners alleged banging of the heads of Ronald and
Lorendo is clearly an act of cruelty.
In a petition for certiorari like this case, the primordial issue is whether the
DOJ Secretary acted with grave abuse of discretion amounting to lack or
excess of jurisdiction. The Court rules that the DOJ Secretary did not
commit grave abuse of discretion in finding that there is probable cause to
charge petitioner of the crimes of homicide and child abuse. The Court
further rules that the investigating prosecutor did not act with grave abuse
of discretion in securing motu proprio the autopsy report and in not calling
for a clarificatory hearing. This ruling does not diminish in any way the
constitutional right of petitioner to be presumed innocent until the contrary
is proven.
WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions
of the Secretary of Justice dated 15 September 2000 and 19 April 2001 in
I.C. No. 99-6254. No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
***************************************
G.R. Nos. 132875-76

November 16, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO G. JALOSJOS, accused-appellant.
YNARES-SANTIAGO, J.:
This Court has declared that the state policy on the heinous offense of rape
is clear and unmistakable. Under certain circumstances, some of them
present in this case, the offender may be sentenced to a long period of
confinement, or he may suffer death. The crime is an assault on human
dignity. No legal system worthy of the name can afford to ignore the
traumatic consequences for the unfortunate victim and grievous injury to
the peace and good order of the community.1
Rape is particularly odious, one which figuratively scrapes the bottom of
the barrel of moral depravity, when committed against a minor.2

In view of the intrinsic nature of the crime of rape where only two persons
are usually involved, the testimony of the complainant is always scrutinized
with extreme caution.3
In the present case, there are certain particulars which impelled the court
to devote an even more painstaking and meticulous examination of the
facts on record and a similarly conscientious evaluation of the arguments
of the parties. The victim of rape in this case is a minor below twelve (12)
years of age. As narrated by her, the details of the rape are mesmerically
sordid and repulsive. The victim was peddled for commercial sex by her
own guardian whom she treated as a foster father. Because the
complainant was a willing victim, the acts of rape were preceded by several
acts of lasciviousness on distinctly separate occasions. The accused is
also a most unlikely rapist. He is a member of Congress. Inspite of his
having been charged and convicted by the trial court for statutory rape, his
constituents liked him so much that they knowingly re-elected him to his
congressional office, the duties of which he could not perform.
Statutory rape committed by a distinguished Congressman on an eleven
(11) year old commercial sex worker is bound to attract widespread media
and public attention. In the words of accused-appellant, "he has been
demonized in the press most unfairly, his image transmogrified into that of
a dastardly, ogre, out to get his slimy hands on innocent and nave girls to
satiate his lustful desires."4 This Court, therefore, punctiliously considered
accused-appellants claim that he suffered "invidiously discriminatory
treatment." Regarding the above allegation, the Court has ascertained that
the extensive publicity generated by the case did not result in a mistrial; the
records show that the accused had ample and free opportunity to adduce
his defenses.
This is an appeal from the decision5 of the Regional Trial Court of Makati,
Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting
accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and
in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and
96-1993, for six (6) counts of acts of lasciviousness defined and penalized
under Article 336 of the Revised Penal Code, in relation to Section 5(b) of
Republic Act No. 7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 961995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was
acquitted of the charges of acts of lasciviousness for failure of the
prosecution to prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory
rape; and twelve (12) for acts of lasciviousness defined and penalized
under Article 336 of the Revised Penal Code, in relation to Section 5(b) of
Republic Act No. 7610, were filed against accused-appellant. The
accusatory portion of said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended
party, eleven (11) year old minor ROSILYN DELANTAR, accuses
ROMEO JALOSJOS of the crime of RAPE defined and
penalized under Art. 335 (3) of the Revised Penal Code,
committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers,
Makati City, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there willfully, unlawfully
and feloniously have carnal knowledge with (sic) eleven year old
minor Rosilyn Delantar against her will, with damage and
prejudice.
CONTRARY TO LAW.6
In Criminal Case No. 96-1986:

The undersigned, upon prior sworn complaint by the offended

party, eleven (11) year old minor ROSILYN DELANTAR, accuses
ROMEO JALOSJOS of the crime of RAPE defined and
penalized under Art. 335 (3) of the Revised Penal Code,
committed as follows:
That on or about June 20, 1996 at Room No. 1702,
Ritz Towers, Makati City, and within the jurisdiction of
this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have
carnal knowledge with (sic) eleven year old minor
Rosilyn Delantar against her will, with damage and
prejudice.
CONTRARY TO LAW.7
For acts of lasciviousness, the informations8 under which accusedappellant was convicted were identical except for the different dates of
commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20,
1996; June 21, 1996; and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended
party, eleven (11)-year old minor ROSILYN DELANTAR accuses
ROMEO JALOSJOS of the crime of ACTS OF
LASCIVIOUSNESS in relation to Section 5 (b), Article III of
Republic Act No. 7610, otherwise known as the Special
Protection of Children against Abuse, Exploitation and
Discrimination Act, committed as follows:
That in the evening of June 14, 1996, or thereabout, in
Room No. 1702, Ritz Towers, Makati City, MetroManila and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd design,
did then and there wilfully, unlawfully and feloniously
kiss, caress and fondle said complainant's face, lips,
neck, breasts, whole body, and vagina, suck her
nipples and insert his finger and then his tongue into
her vagina, place himself on top of her, then insert his
penis in between her thighs until ejaculation, and other
similar lascivious conduct against her will, to her
damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added
averments that on the different dates, the accused gave the complainant
P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to
enter a plea. Hence, the trial court entered a plea of not guilty for him. At
the trial, the prosecution presented eight (8) main witnesses and seven (7)
rebuttal witnesses as well as documentary evidences marked as Exhibits A
to EEEE, inclusive of submarkings. The defense, on the other hand
presented twenty-six (26) witnesses. Its documentary evidence consists of
Exhibits 1 to 153, inclusive of submarkings. The records of the case are
extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the
victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight
black hair and almond-shaped black eyes. She grew up in a two-storey
apartment in Pasay City under the care of Simplicio Delantar, whom she
treated as her own father. Simplicio was a fifty-six year old homosexual
whose ostensible source of income was sellinglongganiza and tocino and
accepting boarders at his house. On the side, he was also engaged in the
skin trade as a pimp.

Rosilyn never got to see her mother, though she had known a younger
brother, Shandro, who was also under the care of Simplicio. At a very
young age of 5, fair and smooth-complexioned Rosilyn was exposed by
Simplicio to his illicit activities. She and her brother would tag along with
Simplicio whenever he delivered prostitutes to his clients. When she turned
9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national
known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by
Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in
February 1996 at his office located near Robinsons Galleria. Rosilyn and
Simplicio were brought there and introduced by a talent manager by the
name of Eduardo Suarez. Accused-appellant promised to help Rosilyn
become an actress. When he saw Rosilyn, accused-appellant asked how
old she was. Simplicio answered, "10. She is going to be 11 on May 11."
Accused-appellant inquired if Rosilyn knows how to sing. Simplicio told
Rosilyn to sing, so she sang the song, "Tell Me You Love Me." Accusedappellant then asked if Rosilyn has nice legs and then raised her skirt up to
the mid-thighs. He asked if she was already menstruating, and Simplicio
said yes. Accused-appellant further inquired if Rosilyn already had breasts.
When nobody answered, accused-appellant cupped Rosilyns left breast.
Thereafter, accused-appellant assured them that he would help Rosilyn
become an actress as he was one of the producers of the TV programs,
"Valiente" and "Eat Bulaga."
Simplicio and Suarez then discussed the execution of a contract for
Rosilyns movie career. Accused-appellant, on the other hand, said that he
would adopt Rosilyn and that the latter would have to live with him in his
condominium at the Ritz Towers. Before Simplicio and Rosilyn went home,
accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium
unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant
and Simplicio discussed the contract and his plan to finance Rosilyns
studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn,
Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at Ritz
Towers to discuss her acting career. Accused-appellant referred the
preparation of Rosilyns contract to his lawyer, who was also present. After
the meeting, Simplicio and Rosilyn left. As they were walking towards the
elevator, accused-appellant approached them and gave Rosilyn
P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn
returned to accused-appellants condominium unit at Ritz Towers. When
accused-appellant came out of his bedroom, Simplicio told Rosilyn to go
inside the bedroom, while he and accused-appellant stayed outside. After a
while, accused-appellant entered the bedroom and found Rosilyn watching
television. He walked towards Rosilyn and kissed her on the lips, then left
the room again. Simplicio came in and bid her goodbye. Rosilyn told
Simplicio that accused-appellant kissed her to which Simplicio replied,
"Halik lang naman."
Rosilyn was left alone in the bedroom watching television. After some time,
accused-appellant came in and entered the bathroom. He came out clad in
a long white T-shirt on which was printed the word, "Dakak." In his hand
was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to
change her clothes. Rosilyn protested and told accused-appellant that she
can do it herself, but accused-appellant answered, "Daddy mo naman
ako." Accused-appellant then took off Rosilyns blouse and skirt. When he
was about to take off her panties, Rosilyn said, "Huwag po." Again,
accused-appellant told her, "After all, I am your Daddy." Accused-appellant
then removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accusedappellant turned off the lamp and the television. He turned to Rosilyn and
kissed her lips. He then raised her shirt, touched her breasts and inserted

his finger into her vagina. Rosilyn felt pain and cried out, "Tama na po."
Accused-appellant stopped. He continued to kiss her lips and fondle her
breasts. Later, accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom
she found bent over and kissing her. He told her to get up, took her hand
and led her to the bathroom. He removed Rosilyns shirt and gave her a
bath. While accused-appellant rubbed soap all over Rosilyns body, he
caressed her breasts and inserted his finger into her vagina. After that, he
rinsed her body, dried her with a towel and applied lotion on her arms and
legs. Then, he dried her hair and told her to dress up. Rosilyn put on her
clothes and went out of the bathroom, while accused-appellant took a
shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom
watching television. When accused-appellant entered the room, he knelt in
front of her, removed her panties and placed her legs on his shoulders.
Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn
P10,000.00 and told his housemaid to take her shopping at Shoemart.
When she returned to the Ritz Towers, Simplicio was waiting for her. The
two of them went home. Rosilyn narrated to Simplicio what accusedappellant did to her, and pleaded for him not to bring her back to the Ritz
Towers. Simplicio told her that everything was alright as long as accusedappellant does not have sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again
brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant
removed Rosilyns clothes and dressed her with the same long T-shirt.
They watched television for a while, then accused-appellant sat beside
Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her
shirt above her breasts, and inserted his finger into her vagina. Then,
accused-appellant removed his own clothes, placed his penis between
Rosilyns thighs and made thrusting motions until he ejaculated on her
thighs. Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and
bathed her. Again, he rubbed soap all over her body, washed her hair, and
thereafter rinsed her body and dried her hair. While accused-appellant was
bathing Rosilyn, he asked her to fondle his penis while he caressed her
breasts and inserted his finger into her vagina. After their shower, accusedappellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just
wait for Simplicio in the condominium unit. On their way home, Simplicio
told Rosilyn that if accused-appellant tries to insert his penis into her
vagina, she should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz
Towers. They found accused-appellant sitting on the bed in his bedroom.
Simplicio told Rosilyn to approach accused-appellant, then he left.
Accused-appellant took off Rosilyns clothes and dressed her with a long Tshirt on which was printed a picture of accused-appellant and a woman,
with the caption, "Cong. Jalosjos with his Toy." They watched television for
a while, then accused-appellant lay beside Rosilyn and kissed her on the
lips. He raised her shirt and parted her legs. He positioned himself
between the spread legs of Rosilyn, took off his own shirt, held his penis,
and poked and pressed the same against Rosilyns vagina. This caused
Rosilyn pain inside her sex organ. Thereafter, accused-appellant fondled
her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accusedappellant was no longer around but she found P5,000.00 on the table.
Earlier that morning, she had felt somebody touching her private parts but
she was still too sleepy to find out who it was. Rosilyn took a bath, then
went off to school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21,
1996, at about 9:00 oclock in the evening in his bedroom at the Ritz
Towers. Accused-appellant stripped her naked and again put on her the
long shirt he wanted her to wear. After watching television for a while,

accused-appellant knelt beside Rosilyn, raised her shirt, caressed her

breasts and inserted his finger into her vagina. Then, he clipped his penis
between Rosilyns thighs, and made thrusting motions until he ejaculated.
Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant
who was kissing her and fondling her sex organ. She, however, ignored
him and went back to sleep. When she woke up, she found the P5,000.00
which accused-appellant left and gave the same to Simplicio Delantar,
when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit,
accused-appellant took photographs of Rosilyn. He asked her to pose with
her T-shirt pulled down thereby exposing her breasts. He also took her
photographs with her T-shirt rolled up to the pelvis but without showing her
pubis, and finally, while straddled on a chair facing the backrest, showing
her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled
her breasts and inserted his finger into her vagina. The following morning,
she woke up and found the P5,000.00 left by accused-appellant on the
table. She recalled that earlier that morning, she felt somebody caressing
her breasts and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz
Towers. Rosilyn had to wait for accused-appellant, who arrived between
12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to
what he was wearing. While sitting on the bed, accused-appellant kissed
her lips and inserted his tongue into her mouth. He then fondled her
breasts and inserted his finger into her vagina, causing her to cry in pain.
Accused-appellant stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he soaped
her body, he fondled her breasts and inserted his finger in her vagina.
Rosilyn felt pain and shoved his hand away. After bathing her, accusedappellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As
soon as Simplicio arrived, Rosilyn gave her the money and then they left
for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers.
Accused-appellant was waiting in his bedroom. He took off Rosilyns
clothes, including her panties, and dressed her with a long T-shirt similar to
what he was wearing. After watching television, accused-appellant kissed
Rosilyn on the lips, inserted his tongue in her mouth and fondled her
breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and
placed a pillow under her back. He inserted his finger in her vagina and
mounted himself between her legs with his hands rested on her sides. After
that, he lifted his shirt, then pointed and pressed his penis against her
vagina. Accused-appellant made thrusting motions, which caused Rosilyn
pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her
sex organ, but she did not wake up. When she woke up later, she found
P5,000.00 on the table, and she gave this to Simplicio when he came to
fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at
around 7:00 p.m. Accused-appellant was about to leave, so he told them to
come back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie
Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay
City Police, where she executed a sworn statement against Simplicio
Delantar. Rosilyn was thereafter taken to the custody of the Department of
Social Welfare and Development (DSWD). The National Bureau of
Investigation (NBI) conducted an investigation, which eventually led to the
filing of criminal charges against accused-appellant.

On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at

Camp Crame. The examination yielded the following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject.
Breasts are conical with pinkish brown areola and nipples from
which no secretions could be pressed out. Abdomen is flat and
soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full,
convex and coaptated with the pinkish brown labia minora
presenting in between. On separating the same disclosed an
elastic, fleshy type hymen, with shallow healed laceration at 3
o'clock position and deep healed laceration at 8 o'clock position.
External vaginal orifice offers moderate resistance to the
introduction of the examining index finger and the virgin sized
vaginal speculum. Vaginal canal is narrow with prominent
rugosities. Cervix is firm and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of
violence.9
During the trial, accused-appellant raised the defense of denial and alibi.
He claimed that it was his brother, Dominador "Jun" Jalosjos, whom
Rosilyn had met, once at accused-appellants Dakak office and twice at the
Ritz Towers. Accused-appellant insisted that he was in the province on the
dates Rosilyn claimed to have been sexually abused. He attributed the
filing of the charges against him to a small group of blackmailers who
wanted to extort money from him, and to his political opponents,
particularly Ex-Congressman Artemio Adaza, who are allegedly determined
to destroy his political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was
on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He
stayed in Dipolog until June 18, 1996. He submitted in evidence airline
ticket no. 10792424,10 showing that he was on board Flight PR 165; the
said flights passengers manifest,11 where the name JALOSJOS/RM/MR
appears; and photographs showing accused-appellants constituents
welcoming his arrival and showing accused-appellant talking with former
Mayor Hermanico Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the
9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met
Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after
talking to his representatives, he proceeded to his residence known as
"Barangay House" in Taguinon, Dapitan, near Dakak Beach resort, and
spent the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San
Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30
p.m. Then, together with some friends, he visited the Rizal Shrine and the
Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the "Barangay
House" in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide
consultation with his political leaders at the Blue Room of Dakak, which
lasted till the afternoon. In the evening, he went home and slept in the
"Barangay House."

On July 1, 1996, he attended the whole day celebration of Dipolog Day. He

spent the night in the "Barangay House."
On July 2, 1996, he attended the inauguration of the reception hall of
Dakak Beach Resort. The blessing ceremony was officiated by Assistant
Parish Priest Adelmo Laput.

4.a. suffer in each of the cases an indeterminate

prison term of from eight (8) years, eight (8) months
and one (1) day of prision mayor in its medium period,
as maximum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal in its medium
period, as maximum;

On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering
District of Dapitan City. After the mass, he visited the Jamboree site in
Barangay Taguilon, Dapitan City.

4.b. indemnify the victim, MA ROSILYN DELANTAR, in

the amount of TWENTY THOUSAND (P20,000.00) as
moral damages for each of the cases;

He further contended that after his arrival in Dipolog on June 28, 1996,
there was never an instance when he went to Manila until July 9, 1996,
when he attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00
a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown
by a private plane to Dipolog, where he stayed until the President of the
Philippines arrived.
To buttress the theory of the defense, Dominador "Jun" Jalosjos testified
that he was the one, and not accused-appellant, whom Rosilyn met on
three occasions. These occurred once during the first week of May 1996,
at accused-appellants Dakak office where Rosilyn and Simplicio Delantar
were introduced to him by Eduardo Suarez, and twice at the Ritz Towers
when he interviewed Rosilyn, and later when Rosilyn and Simplicio
followed up the proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances
were limited to interviewing her and assessing her singing and modeling
potentials. His testimony made no mention of any sexual encounter with
Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion
of which reads:
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution
has proven beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, as principal in the two (2)
counts of statutory rape defined and penalized under Article 335
of the Revised Penal Code. He is hereby declared CONVICTED
in each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of
these cases.
2b. indemnify the victim, MA. ROSILYN DELANTAR, in
the amount of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990,
96-1992 and 96-1993, the prosecution has proven beyond
reasonable doubt the guilt of the accused, ROMEO JALOSJOS y
GARCIA, as principal in six (6) counts of acts of lasciviousness
defined under Article 336 of the Revised Penal Code and
penalized under Section 5 (b) of R.A. 7610 otherwise known as
the Child Abuse Law. He is hereby declared CONVICTED in
each of these cases;
4. Accordingly he is sentenced to:

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996,

96-1997 and 96-1998, the prosecution has failed to prove
beyond reasonable doubt the guilt of the accused, ROMEO
JALOSJOS y GARCIA, in six (6) counts of acts of
lasciviousness. Therefore, on the ground of reasonable doubt,
the accused in these cases is hereby ACQUITTED.
SO ORDERED.12
Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE
ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE
COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF
INCONSISTENCIES AND UNTRUTHS.
B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE
PRIVATE COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY
THE ACCUSED-APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE
PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS
OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS
COMMITTED AGAINST THE PRIVATE COMPLAINANT.13
In this jurisdiction, the testimony of the private complainant in rape cases is
scrutinized with utmost caution. The constitutional presumption of
innocence requires no less than moral certainty beyond any scintilla of
doubt. This applies with more vigor in rape cases where the evidence for
the prosecution must stand or fall on its own merits and is not allowed to
draw strength from the weakness of the evidence of the defense. As an
inevitable consequence, it is the rape victim herself that is actually put on
trial. The case at bar is no exception. Bent on destroying the veracity of
private complainants testimony, the errors assigned by accused-appellant,
particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 961991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of

lasciviousness. According to him, the fact that the trial court sustained his
defense of alibi in the said cases only shows that Rosilyn concocted her
stories and the rest of her testimony ought not to be believed. Stated
differently, accused-appellant urges the application of the doctrine of
"falsus in uno falsus in omnibus" (false in part, false in everything).14
The contention is without merit. Falsus in uno falsus in omnibus is not an
absolute rule of law and is in fact rarely applied in modern
jurisprudence.15 Thus, in People v. Yanson-Dumancas,16 citing People v. Li
Bun Juan,17 this Court held that:
... In this connection it must be borne in mind that the
principle falsus in uno falsus in omnibus is not an absolute one,
and that it is perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve it with respect
to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 32223223, the following was quoted with approval by the Court of
Appeals from 1 Moore on Facts, p. 23:
"18. Testimony may be partly credited and partly
rejected. --- Trier of facts are not bound to believe all
that any witness has said; they may accept some
portions of his testimony and reject other portions,
according to what seems to them, upon other facts
and circumstances to be the truth Even when
witnesses are found to have deliberately falsified in
some material particulars, the jury are not required to
reject the whole of their uncorroborated testimony, but
may credit such portions as they deem worthy of
belief." (p. 945)18
Being in the best position to discriminate between the truth and the
falsehood, the trial court's assignment of values and weight on the
testimony of Rosilyn should be given credence. Significantly, it should be
borne in mind that the issue at hand hinges on credibility, the assessment
of which, as oft-repeated, is best made by the trial court because of its
untrammeled opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the
trial court stated:
Guided by the foregoing principles, this court found no reason
why it should not believe Rosilyn when she claimed she was
raped. Testimonies of rape victims especially those who are
young and immature deserve full credence (People v. Liquiran,
228 SCRA 62 (1993) considering that "no woman would concoct
a story of defloration, allow an examination of her private parts
and thereafter allow herself to be perverted in a public trial if she
was not motivated solely by the desire to have the culprit
apprehended and punished." (People v. Buyok, 235 SCRA 622
[1996]).
When asked to describe what had been done to her, Rosilyn was
able to narrate spontaneously in detail how she was sexually
abused. Her testimony in this regard was firm, candid, clear and
straightforward, and it remained to be so even during the intense
and rigid cross-examination made by the defense counsel.19
Accused-appellant next argues that Rosilyns direct and redirect
testimonies were rehearsed and lacking in candidness. He points to the
supposed hesitant and even idiotic answers of Rosilyn on cross and recross examinations. He added that she was trained to give answers such
as, "Ano po?", "Parang po," "Medyo po," and "Sa tingin ko po."
Accused-appellants arguments are far from persuasive. A reading of the
pertinent transcript of stenographic notes reveals that Rosilyn was in fact
firm and consistent on the fact of rape and lascivious conduct committed
on her by accused-appellant. She answered in clear, simple and natural

words customary of children of her age. The above phrases quoted by

accused-appellant as uttered by Rosilyn are, as correctly pointed out by
the Solicitor General, typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the
witness stand, may have given some ambiguous answers, they refer
merely to minor and peripheral details which do not in any way detract from
her firm and straightforward declaration that she had been molested and
subjected to lascivious conduct by accused-appellant. Moreover, it should
be borne in mind that even the most candid witness oftentimes makes
mistakes and confused statements. At times, far from eroding the
effectiveness of the evidence, such lapses could, indeed, constitute signs
of veracity.20
Then, too, accused-appellant capitalizes on the alleged absence of any
allegation of rape in the five (5) sworn statements executed by Rosilyn as
well as in the interviews and case study conducted by the representatives
of the DSWD. In particular, accused-appellant points to the following
documents:
(1) Sworn statements dated August 22 and 26, 1996, executed
before SPO5 Milagros A. Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996,
executed before NBI Agents Cynthia L. Mariano and Supervising
NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August
30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that "rape" is a technical term, the precise and accurate
definition of which could not have been understood by Rosilyn. Indeed,
without the assistance of a lawyer, who could explain to her the intricacies
of rape, she expectedly could not distinguish in her affidavits and
consequently disclose with proficient exactitude the act or acts of accusedappellant that under the contemplation of law constitute the crime of rape.
This is especially true in the present case where there was no exhaustive
and clear-cut evidence of full and complete penetration of the victims
vagina. It may well be that Rosilyn thought, as any layman would probably
do, that there must be the fullest penetration of the victims vagina to
qualify a sexual act to rape.
In People v. Campuhan,21 we ruled that rape is consummated "by the
slightest penetration of the female organ,i.e., touching of either labia of the
pudendum by the penis." There need not be full and complete penetration
of the victims vagina for rape to be consummated. There being no showing
that the foregoing technicalities of rape was fully explained to Rosilyn on all
those occasions that she was interviewed by the police, the NBI agents
and DSWD social workers, she could not therefore be expected to
intelligibly declare that accused-appellants act of pressing his sex organ
against her labia without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited
plus the courts mention of the jurisprudence on this issue, to wit:
Q:
You said that when Congressman Jalosjos inserted his
finger into your vagina, your back was rested on a pillow and
your legs were spread wide apart, what else did he do?
A:
He lifted his shirt, and held his penis; and again "idinikitdikit niya ang ari niya sa ari ko." (Italics supplied)
Q:
And, after doing that: "Idinikit-dikit niya yong ari niya sa ari
ko"; what else did he do?

A:
After that, "Itinutok niya po yong ari niya at idiniin-diin niya
ang ari niya sa ari ko." (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be
committed even without full penetration of the male organ into
the vagina of the woman. It is enough that there be proof of the
entrance of the male organ within the labia of the pudendum of
the female organ. (People vs. Mangalino, 182 SCRA 329;
People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA
393). "Penetration of the penis by entry into the lips of the female
organ suffices to warrant a conviction." (People vs. Galimba,
G.R. No. 111563-64, February 20, 1996 citing People vs.
Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn
that the accused pressed against ("idiniin") and pointed to
("itinutok") Rosilyns vagina his sexual organ on two (2)
occasions, two (2) acts of rape were consummated.22
Moreover, it must be borne in mind that Rosilyns purpose in executing the
affidavits on August 22 and 26, 1996 before the Pasay City Police was to
charge Simplicio Delantar, not accused-appellant. As aptly pointed out by
the trial court, it is preposterous to expect Rosilyn to make an exhaustive
narration of the sexual abuse of accused-appellant when he was not the
object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and
19, 1996, concerned mainly the identification of pictures. There was thus
no occasion for her to narrate the details of her sexual encounter with
accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state
that said meetings with Rosilyn were specially focused on the emotional
and psychological repercussions of the sexual abuse on Rosilyn, and had
nothing to do with the legal actions being prepared as a consequence
thereof. Thus, the documents pertaining to said interviews and studies
cannot be relied upon to reveal every minute aspect of the sexual
molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns
testimony, if at all they existed, cannot diminish the probative value of
Rosilyns declarations on the witness stand. The consistent ruling of this
Court is that, if there is an inconsistency between the affidavit of a witness
and her testimonies given in open court, the latter commands greater
weight than the former.23
In the third assigned error, accused-appellant attempts to impress upon
this Court that Rosilyn gave the name Congressman Romeo Jalosjos as
her abuser only because that was the name given to her by the person to
whom she was introduced. That same name, accused-appellant claims,
was merely picked up by Rosilyn from the name plate, plaque, and memo
pad she saw on accused-appellants office desk. Accused-appellant
presented his brother, Dominador "Jun" Jalosjos, in an attempt to cast
doubt on his culpability. It was Dominador "Jun" Jalosjos who allegedly met
and interviewed Rosilyn at the Dakak office. In advancement of this theory,
accused-appellant cites the fact that out of a total of 16 pictures presented
to Rosilyn for identification, she picked up only 4, which depict Dominador
"Jun" Jalosjos. In the same vein, accused-appellant claims that the
resulting cartographic sketch from the facial characteristics given by
Rosilyn to the cartographer, resembles the facial appearance of Dominador
"Jun" Jalosjos. Accused-appellant also points out that Rosilyn failed to give
his correct age or state that he has a mole on his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that
Rosilyn positively and unhesitatingly identified accused-appellant at the
courtroom. Such identification during the trial cannot be diminished by the
fact that in her sworn statement, Rosilyn referred to accused-appellant as
her abuser based on the name she heard from the person to whom she

was introduced and on the name she saw and read in accused-appellants
office. Verily, a persons identity does not depend solely on his name, but
also on his physical features. Thus, a victim of a crime can still identify the
culprit even without knowing his name. Similarly, the Court, in People v.
Vasquez,24ruled that:
It matters little that the eyewitness initially recognized accusedappellant only by face [the witness] acted like any ordinary
person in making inquiries to find out the name that matched
[appellants] face. Significantly, in open court, he unequivocally
identified accused-appellant as their assailant.
Even in the case of People v. Timon,25 relied upon by accused-appellant to
discredit his identification, this Court said that even assuming that the outof-court identification of accused-appellant was defective, their subsequent
identification in court cured any flaw that may have initially attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out
of the 16 pictures shown to her does not foreclose the credibility of her
unqualified identification of accused-appellant in open court. The same
holds true with the subject cartographic sketch which, incidentally,
resembles accused-appellant. As noted by the trial court, accusedappellant and his brother Dominador Jalosjos have a striking similarity in
facial features. Naturally, if the sketch looks like Dominador, it logically
follows that the same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accusedappellant and to state that he has a mole on the lower right jaw, cannot
affect the veracity of accused-appellants identification. At a young age,
Rosilyn cannot be expected to give the accurate age of a 56 year-old
person. As to accused-appellants mole, the Solicitor General is correct in
contending that said mole is not so distinctive as to capture Rosilyns
attention and memory. When she was asked to give additional information
about accused-appellant, Rosilyn described him as having a "prominent
belly." This, to our mind, is indeed a more distinguishing feature that would
naturally catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words "idinikit,"
"itinutok," and "idiniin-diin," which Rosilyn used to describe what accusedappellant did to her vagina with his genitals, do not constitute
consummated rape. In addition, the defense argued that Rosilyn did not
actually see accused-appellants penis in the supposed sexual contact. In
fact, they stressed that Rosilyn declared that accused-appellants semen
spilled in her thighs and not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v.
Campuhan, argued that, assuming that his penis touched or brushed
Rosilyns external genitals, the same is not enough to establish the crime
of rape.
True, in People v. Campuhan,26 we explained that the phrase, "the mere
touching of the external genitalia by the penis capable of consummating
the sexual act is sufficient to constitute carnal knowledge," means that the
act of touching should be understood here as inherently part of the entry of
the penis into the labia of the female organ and not mere touching alone of
the mons pubis or the pudendum. We further elucidated that:
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area, e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence
that becomes hairy after puberty, and is instantly visible within
the surface. The next layer is the labia majora or the outer lips of
the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered
with hair follicles and is pigmented, while the inner surface is a
thin skin which does not have any hairs but has many
sebaceous glands. Directly beneath the labia majora is the labia

minora. Jurisprudence dictates that the labia majora must be

entered for rape to be consummated, and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing
of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can only
be attempted rape, if not acts of lasciviousness.27
In the present case, there is sufficient proof to establish that the acts of
accused-appellant went beyond "strafing of the citadel of passion" or
"shelling of the castle of orgasmic potency," as depicted in
the Campuhan case, and progressed into "bombardment of the drawbridge
[which] is invasion enough,"28 there being, in a manner of speaking, a
conquest of the fortress of ignition. When the accused-appellant brutely
mounted between Rosilyns wide-spread legs, unfetteredly touching,
poking and pressing his penis against her vagina, which in her position
would then be naturally wide open and ready for copulation, it would
require no fertile imagination to belie the hypocrisy claimed by accusedappellant that his penis or that of someone who looked like him, would
under the circumstances merely touch or brush the external genital of
Rosilyn. The inevitable contact between accused-appellants penis, and at
the very least, the labia of the pudendum of Rosilyn, was confirmed when
she felt pain inside her vagina when the "idiniin" part of accused appellants
sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:

May I respectfully move that the word: "idinikit-dikit niya ang ari
niya sa ari ko," be incorporated?
Q.
And while he was doing that; according to you, "idinikitdikit niya ang ari niya sa ari mo;" what did you feel?
A.

I was afraid and then, I cried.

Q.
Will you tell the Court why you felt afraid and why you
cried?
A.
Because I was afraid he might insert his penis into my
vagina.
Q.
And, for how long did Congressman Jalosjos perform that
act, which according to you, "idinikit-dikit niya yong ari niya sa ari
ko?"
COURT:
Place the Tagalog words, into the records.
A.

Sandali lang po yon.

Q.
What part of your vagina, or "ari" was being touched by
the ari or penis?

PROS. ZUNO:

xxx

Q.
And, after kissing your lips; after kissing you in your lips,
what else did he do?

Q.
You said that you felt I withdraw that question. How did
you know that Congressman Jalosjos was doing, "idinikit-dikit
niya yung ari niya sa ari ko?"

A.

xxx

xxx

After that, he was lifting my shirt.

A.

Q.
Now, while he was lifting your shirt, what was your
position; will you tell the court?

Because I could feel it, sir.

A.

I was lying, sir.

Q.
Now, you said you could feel it. What part of the vagina
in what part of your vagina was Congressman Jalosjos,
according to you, "idinikit-dikit niya yong ari niya sa ari mo?"

Q.

Lying on what?

A.

A.

On the bed, sir.

Q.

And, after lifting your shirt, what else did he do?

Q.
In front of your vagina? O.K.; will you tell the Court the
position? Will you describe the position of Congressman Jalosjos
when he was doing that. "Idinikit-dikit niya sa ari ko?"

A.

He spread my legs sir.

A.

Q.

And, after spreading your legs apart; what did he do?

FISCAL ZUNO:

A.

After that, he lifted his shirt and held his penis.

Q.

Q.

And while he was holding his penis; what did he do?

xxx

A.

He pressed it in my vagina.

A.
He was holding me like this with his one hand; and was
holding his penis while his other hand, or his free hand was on
the bed.

ATTY. FERNANDEZ:
May we request that the vernacular be used?
A.

Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.

PROS. ZUNO:

xxx

In front of my vagina, sir.

Ide-demonstrate ko po ba?

Can you demonstrate?

xxx

xxx

PROS. ZUNO:

xxx

xxx

Now, according to you, you dont know how to say it;

or what was done to you. Now, will you tell the Court
how can you describe what was done to you?
A.
After he "dinikit-dikit niya yong ari niya sa ari ko; itinutok
naman niya ito."
Q.

O.K. you said "itinutok niya ito;" what else did he do?

PROS. ZUNO:
She is now trying to describe.

A.
xxx

Inside my ari po. (Sa loob po ng ari ko.)

xxx

xxx

PROS. ZUNO:
Q.

And then, after that, what else did he do

A.

After that, he touched my breast, sir.

Q.

And, after touching your breast, what did he do?

A.
And after that I felt that he was (witness demonstrating to
the court, with her index finger, rubbing against her open left
palm)

COURT:
Translate.
A.

Q.
Now, what did you feel, when according to you; as I would
quote: "parang idinidiin niya?"
A.

Q.

And after doing that, what else did he do?

A.

After that, he instructed me to go to sleep.

He seems to be "parang idinidiin po niya."

Masakit po.

Q.
And, just to make it clear in Tagalog: Ano itong idinidiin
niya?

xxx
A.
sir.

xxx

xxx

I put down my clothes and then, I cried myself to sleep,

Q.
Why did you cry? Will you tell the court, why did you cried
after putting down your clothes?

COURT:
Q.

Sabi mo itinutok. Nakita mo bang itinutok?

A.
ko.)

A.

I saw him na nakaganuon po sa ano niya.

xxx

PROS. ZUNO:
Q.
O.K., clarify. You said "nakaganuon siya" what do you
mean by "nakaganuon siya?"
A.
He was holding his penis, and then, that was the one
which he itinutok sa ari ko.
PROS. ZUNO:
Q.
And, when you said "idinidiin po niya;" to which you are
referring? What is this "idinidiin niya?"
A.

Idinidiin niya ang ari niya sa ari ko.

Q.
And what did you feel when you said: he was "idinidiin
niya ang ari niya sa ari ko?"

xxx

Even the July 20, 1996 encounter between Rosilyn and accused-appellant
would not tax the sketchy visualization of the nave and uninitiated to
conclude that there was indeed penile invasion by accused-appellant of
Rosilyns labia. On that occasion, accused-appellant was similarly
ensconced between the parted legs of Rosilyn, except that, this time,
Rosilyn was conveniently rested on, and elevated with a pillow on her back
while accused-appellant was touching, poking and pressing his penis
against her vagina. Topped with the thrusting motions employed by
accused-appellant, the resulting pain felt by Rosilyn in her sex organ was
no doubt a consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is
as follows:
PROS. ZUNO:
xxx

xxx

Masakit po.
Q.
The moment when Cong. Jalosjos inserted his finger into
your vagina, what was your position?

COURT:
The answer is "masakit po."
Proceed.

INTERPRETER:
The witness is asking he (sic) she has to
demonstrate?

PROS. ZUNO:
FISCAL ZUNO:
Q.

x x x.

(Emphasis supplied.)29

xxx
A.

Because I felt pity for myself. (Naaawa po ako sa sarili

Where did you feel the pain?

Q.

Ipaliwanag mo lang?

A.
My back was rested on a pillow and my legs were spread
apart.
Q.
You said that when Congressman Jalosjos inserted his
finger into your vagina, your back was rested on a pillow and
your legs were spread wide apart, what else did he do?
A.
He lifted his shirt, and held his penis; and again "idinikitdikit niya ang ari niya sa ari ko."
Q.
And what did you feel when he was doing that which
according to you and I would quote in Tagalog: "idinikit-dikit niya
yong ari niya sa ari ko?"
A.

I was afraid sir.

Q.
And, after doing that: "idinikit-dikit niya yong ari niya sa ari
ko," what else did he do?
A.
After that, "itinutok niya po yong ari niya at idiniin-diin niya
ang ari niya sa ari ko."
Q.
You said: "Congressman Jalosjos itinutok niya yong ari
niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko;" Now,
while he was doing that act, what was the position of
Congressman Jalosjos?
A.
His two (2) hands were on my side and since my legs
were spread apart; he was in-between them, and doing an
upward and downward movement.
(Witness demonstrated a pushing, or pumping movement)
Q.
For how long did Congressman Jalosjos perform that act,
pushing or pumping movement while his penis, or "ang ari niya
ay nakatutok at idinidiin-diin yong ari niya sa ari mo?"
A.

I dont know.

Q.
And what did you feel when Congressman Jalosjos was
making that movement, pushing, or pumping?
A.

I felt pain and then I cried.

Q.

Where did you feel the pain?

A.

Inside my vagina, sir.

xxx

xxx

x x x.30

inconvenient, if not difficult, for the accused-appellant to attempt

penetration. On the other hand, the ease with which accused-appellant
herein perpetrated the sexual abuse, not to mention the absence of time
constraint, totally distinguishes the instant case from Campuhan. Here, the
victim was passive and even submissive to the lecherous acts of accusedappellant. Thus, even assuming that his penis then was flaccid, his act of
holding, guiding and assisting his penis with his one hand, while touching,
poking and pressing the same against Rosilyn's vagina, would surely result
in even the slightest contact between the labia of the pudendum and
accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the
circumstances of the alleged sexual assault at bar, the defense argued that
it is highly improbable and contrary to human experience that accusedappellant exercised a Spartan-like discipline and restrained himself from
fully consummating the sexual act when there was in fact no reason for
him not to do so. In the same light, the defense likewise branded as
unnatural the testimony of Rosilyn that accused-appellant contented
himself with rubbing his penis clipped between her thighs until he reached
orgasm and desisted from fully penetrating her, when Rosilyn was then
entirely at his disposal.
The defense seems to forget that there is no standard form of behavior
when it comes to gratifying ones basic sexual instinct. The human sexual
perversity is far too intricate for the defense to prescribe certain forms of
conduct. Even the word "perverse" is not entirely precise, as what may be
perverse to one may not be to another. Using a child of tender years who
could even pass as ones granddaughter, to unleash what others would call
downright bestial lust, may be utterly nauseating and repulsive to some,
but may peculiarly be a festive celebration of salacious fantasies to others.
For all we know, accused-appellant may have found a distinct and
complete sexual gratification in such kind of libidinous stunts and
maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period
penetrated Rosilyn for fear of perpetrating his name through a child from
the womb of a minor; or because of his previous agreement with his
"suking bugaw," Simplicio Delantar, that there would be no penetration,
otherwise the latter would demand a higher price. This may be the reason
why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is
bad if accused-appellant inserts his penis into her sex organ, while at the
same time ordering her to call him if accused-appellant would penetrate
her. Such instance of penile invasion would prompt Simplicio to demand a
higher price, which is, after all, as the Solicitor General calls it, the
peculiarity of prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant
ejaculated on her thighs and not in her vagina, only proves that there was
no rape. It should be noted that this portion of Rosilyns testimony refers to
the June 15 and 21, 1996 charges of acts of lasciviousness, and not the
rape charges. In any event, granting that it occurred during the twin
instances of rape on June 18 and July 20, 1996, the ejaculation on the
victims thighs would not preclude the fact of rape.

The childs narration of the rape sequence is revealing. The act of "idinikitdikit niya" was followed by "itinutok niya xxx at idiniin-diin niya." The
"idiniin-diin niya" was succeeded by "Masakit po." Pain inside her "ari" is
indicative of consummated penetration.

There is no truth to the contention of the defense that Rosilyn did not see
the penis of accused-appellant. As can be gleaned from the above-quoted
portions of the transcripts, Rosilyn unequivocally testified that accusedappellant held his penis then poked her vagina with it. And even if she did
not actually see accused-appellants penis go inside her, surely she could
have felt whether it was his penis or just his finger.

The environmental circumstances displayed by the graphic narration of

what took place at the appellants room from June 14 to June 16 and June
21 to June 22, 1996 are consistent with the complainants testimony which
shows that rape was legally consummated.

We now come to the issue of whether or not Rosilyn was below twelve (12)
years of age at the time the rape complained of occurred. To bolster the
declaration of Rosilyn that she was then eleven years old, the prosecution
presented the following documents:

In the case of People v. Campuhan, the victim put up a resistance --- by

putting her legs close together --- which, although futile, somehow made it

(1) Rosilyns birth certificate showing her birthday as May 11,

1985;31

(2) Rosilyns baptismal certificate showing her birthday as May

11, 1985;32
(3) Master List of Live Births stating that Ma. Rosilyn Delantar
was born on May 11, 1985 to Librada Telen as the mother;33
(4) Marked pages of the Cord Dressing Room Book;34
(5) Summary of the Cord Dressing Book, showing her birthday
as May 11, 1985 and her parents (Librada Telen and Simplicio
Delantar) patient file number (39-10-71);35
(6) Record of admission showing her parents patient number
(39-10-71) and confinement at the Jose Fabella Memorial
Hospital from May 5-14, 1985.36
It is settled that in cases of statutory rape, the age of the victim may be
proved by the presentation of her birth certificate. In the case at bar,
accused-appellant contends that the birth certificate of Rosilyn should not
have been considered by the trial court because said birth certificate has
already been ordered cancelled and expunged from the records by the
Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 9781893, dated April 11, 1997.37 However, it appears that the said decision
has been annulled and set aside by the Court of Appeals on June 10,
1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was
appealed to this Court by petition for review, docketed as G.R. No. 140305.
Pending the final outcome of that case, the decision of the Court of
Appeals is presumed valid and can be invoked as prima facie basis for
holding that Rosilyn was indeed eleven years old at the time she was
abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is
sufficient and ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age.
In People v. Liban,38 we ruled that the birth certificate, or in lieu thereof, any
other documentary evidence that can help establish the age of the victim,
such as the baptismal certificate, school records, and documents of similar
nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal
certificates of Rosilyn are inadmissible to prove her age, the Master List of
Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial
Hospital where Rosilyn was born are sufficient evidence to prove that her
date of birth was May 11, 1985. These documents are considered entries
in official records, admissible as prima facie evidence of their contents and
corroborative of Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in
the performance of his duty by a public officer of the Philippines,
or by a person in the performance of a duty especially enjoined
by law, are prima facie evidence of the facts therein stated.
In Africa v. Caltex, et al., (Phil), Inc., et al.,39 the Court laid down the
requisites for the application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another
person specially enjoined by law to do so;
(b) That it was made by the public officer in the performance of
his duties or by such other person in the performance of a duty
specially enjoined by law; and

(c) That the public office or the other person had sufficient
knowledge of the facts by him stated, which must have been
acquired by him personally or through official information.
In order for a book to classify as an official register and admissible in
evidence, it is not necessary that it be required by an express statute to be
kept, nor that the nature of the office should render the book indispensable;
it is sufficient that it be directed by the proper authority to be kept. Thus,
official registers, though not required by law, kept as convenient and
appropriate modes of discharging official duties, are admissible.40
Entries in public or official books or records may be proved by the
production of the books or records themselves or by a copy certified by the
legal keeper thereof.41 It is not necessary to show that the person making
the entry is unavailable by reason of death, absence, etc., in order that the
entry may be admissible in evidence, for his being excused from appearing
in court in order that public business be not deranged, is one of the
reasons for this exception to the hearsay rule.42
Corollary thereto, Presidential Decree No. 651, as amended by P.D. No.
766,43 mandates hospitals to report and register with the local civil registrar
the fact of birth, among others, of babies born under their care. Said
Decree imposes a penalty of a fine of not less that P500.00 nor more than
P1,000.00 or imprisonment of not less than three (3) months nor more than
six (6) months, or both, in the discretion of the court, in case of failure to
make the necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with
Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing
Room Book where the fact of birth, name of the mother and other related
entries are initially recorded, as well as the Master List of Live Births of the
hospital, are considered entries in official record, being indispensable to
and appropriate modes of recording the births of children preparatory to
registration of said entries with the local civil registrar, in compliance with a
duty specifically mandated by law.
It matters not that the person presented to testify on these hospital records
was not the person who actually made those entries way back in 1985, but
Amelita Avenante, the records custodian of the hospital in 1995. To
reiterate, these records may be proved by the presentation of the record
itself or by a certified copy or the legal keeper thereof. Proof of the
unavailability of the person who made those entries is not a requisite for
their admissibility. What is important is that the entries testified to by
Avenante were gathered from the records of the hospital which were
accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live
Births of the hospital are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth and
baptismal certificates of Rosilyn. They establish independent and material
facts prepared by unbiased and disinterested persons under environmental
circumstances apart from those that may have attended the preparation of
the birth and baptismal certificates. Hence, these hospital records, to
reiterate, are sufficient to support the testimony of Rosilyn as to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the
birth certificate of Rosilyn are false and that he merely made them up,
particularly her date of birth, was correctly disregarded by the trial court. It
should be noted that the criminal charges for child abuse filed by Rosilyn
against him was the direct cause of his incarceration. This raises a
possibility that Simplicio falsely testified in the present case, to get even
with Rosilyn.

Likewise, the trial court correctly disregarded the testimonies of Gloria

Binay and Angelito Intruzo because the defense failed to prove that they
were knowledgeable as to the circumstances of Rosilyns birth. Their
testimonies consist mainly of observations tending to show that Rosilyns
appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June
29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 961995, 96-1996, and 96-1997, respectively), the trial court acquitted
accused-appellant on the ground of reasonable doubt as the defense was
able to prove that accused-appellant was not in Manila but either in
Dipolog or Dapitan City at the time the lascivious acts were supposedly
committed. The evidence of the defense established that accusedappellant flew to Dipolog on June 28, 1996, and stayed there until July 9,
1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of
lasciviousness allegedly committed both in the early mornings of June 19
and July 21, 1996, Rosilyn merely testified that she felt somebody touching
her private part but failed to identify the person who was performing those
lecherous acts as she was too sleepy to wake up. Hence, accusedappellant was likewise acquitted in these cases on the ground of
reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the
morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18,
and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July
20, 1996, accused-appellant failed to account for his whereabouts. A
careful review of the pertinent transcript of stenographic notes reveals that
accused-appellant did not give any testimony as to where he was at the
time these crimes were committed. Clearly, therefore, the trial court
correctly disregarded his unsubstantiated defense of denial, which cannot
prevail over his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning
of June 16, 1996, accused-appellant claimed that it was impossible for him
to have committed the same because he flew to Dipolog on that day. The
records disclose, however, that accused-appellants flight was at 9:40 a.m.
The possibility, therefore, of accused-appellants having performed the
lascivious acts on the victim before he went off to the airport is not at all
precluded. For his failure to prove the physical impossibility of his presence
at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse
of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether
male or female, who for money or profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period
to reclusion perpetua shall be imposed upon the following:
xxx

xxx

xxx

(b) Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subjected to other
sexual abuse; Provided, That when the victim is under twelve
(12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraphs 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That the
penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium
period; x x x . (Emphasis supplied.)

In People v. Optana,44 the Court, citing the case of People v.

Larin,45 explained the elements of the offense of violation of Section 5 (b) of
R.A. 7610, or the Child Abuse Law, as follows:
1. The accused commits the act of sexual intercourse or
lascivious conduct.
2. The said act is performed with a child exploited in prostitution
or subjected other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
A child is deemed exploited in prostitution or subjected to other
sexual abuse, when the child indulges in sexual intercourse or
lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult,
syndicate or group. Under RA 7610, children are "persons below
eighteen years of age or those unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of their age or mental
disability or condition."
"Lascivious conduct" is defined under Article XIII, Section 32 of the
Implementing Rules and Regulation of R.A. 7610, as follows:
[T]he intentional touching, either directly or through clothing, of
the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of
any person, whether of the same or opposite sex, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.
In the case at bar, accused-appellants acts of kissing Rosilyn on the lips,
fondling her breast, inserting his finger into her vagina and placing his
penis between her thighs, all constitute lascivious conduct intended to
arouse or gratify his sexual desire. Hence, the trial court correctly convicted
accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child
Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990,
96-1992, and 96-1993, charging him with the above-described lascivious
acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse
Law, where the victim is below 12 years of age, is reclusion temporal in its
medium period.
The records show that on at least nine (9) separate occasions, the
accused-appellant inserted his finger into the complainants vagina. These
insertions took place in 1996. A year later, Congress enacted Republic Act
No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it
indicates state policy on rape. The Revised Penal Code is now amended to
read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who have carnal knowledge of a woman under any
of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or
otherwise unconscious;
c) By means of fraudulent machination or grave abuse
of authority; and

d) When the offended party is under twelve (12) years

of age or is demented, even though none of the
circumstances mentioned above be present.
2. By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of sexual
assault by inserting his penis into another persons mouth or anal
orifice or any instrument or object, into the genital or anal orifice
of another person. (Emphasis supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law of
1997 now classifies the crime as an offense against persons. Any public
prosecutor, not necessarily the victim or her parents, can prosecute the
case.
The penalties for the crime of rape in the light of various circumstances,
which are now set forth and contained in Article 266-B of the Revised
Penal Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance,
the trial court correctly imposed on accused-appellant the maximum
penalty of fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal, which is within the medium period of reclusion
temporal medium, pursuant to our ruling in Dulla v. Court of
Appeals.46 Notwithstanding that R.A. 7610 is a special law, accusedappellant may enjoy a minimum term of the indeterminate sentence to be
taken within the range of the penalty next lower to that prescribed by the
Code.47However, the trial court erroneously fixed the minimum term of the
indeterminate sentence at eight (8) years, eight (8) months and one (1) day
of prision mayor in its medium period. In the aforesaid case of Dulla,48 we
held that the penalty next lower in degree to reclusion temporal medium is
reclusion temporal minimum, the range of which is from twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months. Hence, for
violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall
suffer the indeterminate sentence of twelve years (12) and one (1) day
of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996,
statutory rape was penalized under Section 11 of R.A. 7659, which
amended Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:

In the case at bar, the prosecution established beyond reasonable doubt

that accused-appellant had carnal knowledge of Rosilyn. Moreover, the
prosecution successfully proved that Rosilyn was only eleven years of age
at the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual
advances of accused-appellant, was of no moment. The fact that accusedappellant had sexual congress with eleven year-old Rosilyn is sufficient to
hold him liable for statutory rape, and sentenced to suffer the penalty
of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages
awarded by the trial court for each count of acts of lasciviousness under
Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to
P50,000.00.50On the other hand, the award of the amount of P50,000.00 as
moral damages for each count of statutory rape was correct.
In People v. Lor,51 citing the cases of People v. Victor,52 and People v.
Gementiza,53 we held that the indemnity authorized by our criminal law as
civil indemnity ex delicto for the offended party, in the amount authorized
by the prevailing judicial policy and aside from other proven actual
damages, is itself equivalent to actual or compensatory damages in civil
law. Said civil indemnity is mandatory upon finding of the fact of rape; it is
distinct from and should not be denominated as moral damages which are
based on different jural foundations and assessed by the court in the
exercise of sound judicial discretion.54 Hence, accused-appellant should be
ordered to pay the offended party another P50,000.00 as civil indemnity for
each count of rape and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch
62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellant
Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory
rape, and sentencing him to suffer the penalty of reclusion perpetua for
each count, is AFFIRMED. Likewise, the appealed Decision of the
Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987,
96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding accusedappellant guilty beyond reasonable doubt of acts of lasciviousness in six
counts, is AFFIRMED with MODIFICATIONS. As modified, accusedappellant is sentenced to suffer, for each count of acts of lasciviousness,
the indeterminate penalty of twelve years (12) and one (1) day ofreclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal as maximum. Further, accused-appellant is
ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of
P50,000.00 as civil indemnity for each count of statutory rape and acts of
lasciviousness. Finally, the award of moral damages for each count of acts
of lasciviousness is increased to P50,000.00.
SO ORDERED.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion
perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve years
of age consummates the crime of statutory rape regardless of her consent
to the act or lack of it. The law presumes that a woman of tender age does
not possess discernment and is incapable of giving intelligent consent to
the sexual act. Thus, it was held that carnal knowledge of a child below
twelve years old even if she is engaged in prostitution is still considered
statutory rape. The application of force and intimidation or the deprivation
of reason of the victim becomes irrelevant. The absence of struggle or
outcry of the victim or even her passive submission to the sexual act will
not mitigate nor absolve the accused from liability.49

Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,

Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., SandovalGutierrez, and Carpio, JJ., concur.
***************************************
A.M. No. RTJ-06-1982
December 14, 2007
(Formerly A.M. No. 05-12-757-RTC)
SHERLITA O. TAN, complainant,
vs.
JUDGE REXEL M. PACURIBOT, Regional Trial Court, Branch 27,
Gingoog City, respondent.
x---------------------x
A.M. No. RTJ-06-1983
December 14, 2007
(Formerly A.M. No. 05-12-757-RTC)

JOHANNA M. VILLAFRANCA, complainant,

vs.
JUDGE REXEL M. PACURIBOT, Regional Trial Court, Branch 27,
Gingoog City, respondent.
x---------------------x
ANONYMOUS LETTER-WRITERS, complainant,
vs.
JUDGE REXEL M. PACURIBOT, Regional Trial Court, Branch 27,
Gingoog City, respondent.
DECISION
PER CURIAM, J.:
These consolidated-complaints filed against Executive Judge Rexel M.
Pacuribot (Judge Pacuribot) of the Regional Trial Court (RTC) of Gingoog
City, Branch 27, consist of the following:
1. Affidavit-Complaint1 dated 4 December 2005 filed by Sherlita O. Tan
(Ms. Tan), Court Stenographer of RTC, Branch 27, Gingoog City, and
affidavit-complaint2 dated 20 December 2005 filed by Johanna M.
Villafranca (Ms. Villafranca), Clerk II, Gingoog City Parole and Probation
Office, charging Judge Pacuribot with sexual harassment;

On 8 October 2007, Investigating Justice Dy Liacco Flores submitted her

Report8 with the following findings:
Tans story
Ms. Tans nightmare as an underling of respondent judge started
on 20 October 2004 a Wednesday. Having officially filed a halfday leave, she went to Cagayan de Oro City to attend a wedding
ceremony at six oclock in the evening at Pryce Plaza Hotel. She
stood as one of the principal sponsors to a couple named
Kimberly Castillon and Thomas Elliot. At around 8:00 oclock in
the evening, while relishing the "gala" portion during the wedding
reception (when the newly weds dance and guests pin peso bills
on their attire), she received from [Judge Pacuribot] a call
through her mobile phone, asking when is she going back to
Gingoog City. She said she intends to go back right after the
wedding reception. [Judge Pacuribot] offered to bring her to
Agora Bus Terminal but she politely refused the offer saying that
she will just take a taxi in going there. Taking her answer as
declining his offer, he ordered her to come out, displaying short
temper, saying he was already waiting outside the hotel. To hint
at urgency, he told her that he just slipped out from the Masonic
Meeting he was attending and will immediately return to it right
after he will have shuttled her there. Aware that he has the
tendency to humiliate anyone in public when he is angry, she
decided to abruptly leave the wedding reception and comply.
xxxx

2. Letter3 dated 4 April 2005 from "concerned citizens," asking for the relief
of Judge Pacuribot on the grounds that he has been terrorizing and
harassing most of the employees, both casual and contractual, of the Hall
of Justice of Gingoog City; and
3. An undated letter4 from "concerned citizens" also asking the Office of the
Court Administrator (OCA) to investigate the illicit relationship of Judge
Pacuribot and a certain Sheryl Gamulo. They informed the OCA that Sheryl
Gamulo bore two acknowledged children of Judge Pacuribot, the eldest of
whom named Rexell Pacuribot was born on 15 October 2004, and the
second child was born on 2 September 2005, both at Maternity Hospital,
Cagayan de Oro City.
On 14 December 2005, OCA issued a Memorandum5 recommending that:
1. The complaint of Ms. Sherlita Tan be referred to the
Committee on Decorum and Investigation of the Regional Trial
Court of Gingoog City for investigation;
2. the complaint of Ms. Johanna M. Villafrancia be docketed as a
regular administrative matter
3. Judge Pacuribot be required to comment on the complaint of
Ms. Villafranca; and
4. Judge Pacurribot be suspended immediately until further
orders from this Court.6
On 7 March 2006, we issued a resolution amending Section 8 of A.M. No.
03-03-13-SC, approving all the other recommendations of OCA and
suspending Judge Pacuribot, thus:
With respect to all the other recommendations of the OCA,
finding them to be in accord with existing laws, the same are
hereby APPROVED. In particular, Judge Rexel Pacuribot is
immediately SUSPENDED until further notice from this Court. He
is likewise DIRECTED to comment on the complaints of
Mesdames Tan and Villafranca within ten days. The complaint,
however, of Ms. Sherlita Tan should be docketed as a regular
administrative matter to be consolidated with that of Ms.
Johanna M. Villafrancas for proper disposition in line with the
foregoing discussions.7
On 25 October 2006, the court referred the case to Justice Teresita DyLiacco Flores of the Court of Appeals, Cagayan De Oro City Station, for
investigation, report and recommendation within 90 days from notice
thereof.

Coming out into the lobby of the hotel, Ms. Tan saw respondent
judge [Judge Pacuribot] inside his car, alone. When she came
near, he opened the car door for her and she took her seat.
Then, angrily he asked: "What took you so long?" She kept
mum. She saw in between their seats his clutch bag with his
short firearm. That sight frightened her although she was
consoled by the thought that she would soon get rid of him at the
bus terminal. Pryce Plaza Hotel to the bus terminal would be
about twenty (20) minutes ride, traffic considered.
Unfortunately, [Judge Pacuribot] had other ideas. Along the way
to the bus terminal, he drove in to what looked like a compound.
She unexpectedly saw that his car entered a small garage, and
when it stopped, the roll down shutter quickly locked up from
behind. She was brought not to the bus terminal but to a motel
whose name she came to recognize only after the incident as
the City Lodge Motel in Carmen, Cagayan de Oro City. She felt
deceived. Knowing the implications, she protested: "Why did you
bring me here, sir? Didnt I tell you that I will just take a taxicab to
the Agora Terminal?" He rudely told her: "Shut up! As if you are
still a virgin!" Respondent judge [Judge Pacuribot] then directed
her to get down the car. Timorously, she obeyed. As soon as she
went down his car, she looked for a possible exit and found
none. All she saw was a door which opened. He ushered her into
the room, walking closely from behind her. He locked the door.
Ms. Tan, scared and confused, walked to the comfort room,
where she pretended to relieve herself. There, she again looked
for a possible exit. Again, she found none. After a short while,
she heard [Judge Pacuribot] asking: "What are you doing there?
Whats taking you so long?" Remembering, that he has a gun,
she came out of the comfort room. To her dismay, she found him
nude in bed and fear overcame her more.
[Judge Pacuribot] ordered Ms. Tan to undress. Her reluctance
made her move slowly. He let out more impatience asking:
"Whats taking you so long to undress? Excite me!" She refused
at first, but he became furious. At that moment too, she saw his
gun on what seemed to her was headboard of the bed.
Frightened, she undressed, retaining her bra and panty. He
asked her to kiss him and she obeyed half-heartedly. While she
was kissing his neck, he expressed dissatisfaction by asking:
"You dont know how to kiss! How do you do it with Ramon? Get
into sex right away without any preliminaries?" Ramon is her
husband. She was quiet.
[Judge Pacuribot] ordered her to lie down on the bed. She
yielded out of fear. He pulled her bra and panty, kissed her neck

and lips, and sucked her tongue and breasts. Minutes after, he
inserted his penis to her vagina. While he did a push and pull
motion, she was complaining: "You are so rude, Sir! We work in
the same office yet you disgrace me!" He told her angrily: "Shut
up! Concentrate! See! Its softening...." She recalled that he tried
several times to stiffen his penis but he seemingly has some
erection problem. At his attempt for coitus, she felt the
penetration was just slight. Later, he was getting exhausted and
was breathing hard. He would rest each time he failed to have
full enjoyment. While he rested, she would ask him to let her go,
but angrily he refused. Instead, he would forcibly ride on top of
her again and make more attempts at coitus until he finally gave
up. He said to her: "It wont stiffen because I have been
forbidden to eat many kinds of food such as meat which gives
energy."
After a while, Ms. Tan saw [Judge Pacuribot] got up from bed,
took his gun, and peeped through the window of the motel. This
time, she once again implored him, "Sir, Ill just take a taxi to
Agora." He answered: "Ill bring you there." At the time, she was
so confused that she cannot recall whether he made payment in
the motel. She could not concentrate anymore.
The two left the motel in his car. However, instead of conducting
her to the bus terminal, again [Judge Pacuribot] brought Ms. Tan
to another place . . . this time to Discovery Hotel adjacent to
Limketkai Center, Cagayan de Oro City. When she protested, he
told her that it would be safer for her to sleep there instead of
traveling alone. It was around 10 oclock in the evening. Still
unrelieved of her fright which Ms. Tan calls "shock," or "rattled,"
she failed to ask for help, nor did she think of escaping. She was
not even able to call her husband. She was even wondering
whether anyone will help her if the judge will do anything to her.
After he partially settled the rooms bill, he warned her not to
leave until his return the following morning saying he was
returning to the Masonic Conference. After he left, she asked a
bellboy if she could leave, but the bellboy told her that she
should first settle the hotel bill before she can check out.
Unfortunately, she had no money enough to pay the balance of
the hotel bill. Meantime, through his cell phone, he kept calling
her that night and threatening her to watch out in the office if she
would disobey. She was crying in the hotel. She was terrified of
what he will do to her and her family, and what reaction her
husband would make once he learns of what happened to her.
She was scared that her husband might kill [Judge Pacuribot]
and her husband would be harmed in turn.
At around 7 a.m. of the following morning, [Judge Pacuribot]
arrived. He came panting and rested in bed while Ms. Tan just
stood by. She saw him put his gun near the bed. She recounted
the events that happened after, as follows:
Q: What did he do, if any?
A: He ordered me again saying: "Make Love to me!"
Q: What was your reaction, if any?
A: I refused.

A: I was disgusted with what I was doing and with him.

Q: What was his reaction, if any?
A: He angrily told me: "You dont know how to make love! How
do you do it with Ramon? You simply have sex without foreplay?
Kayati ba sab?"
Q: What was your reaction, if any?
A: I felt helpless and kept quiet.
Q: What happened next, if any?
A: He ordered me saying: "Suck it!"
Q: What did he want you to suck on him?
A: His penis.
Q: What did you do, if any?
A: I refused.
Q: What was his reaction, if any?
A: He got angry, pulled my hair and pushed my face to his penis
saying: "suck it! Let it in till deep your throat! Let my penis reach
your throat!"
Q: What did you do, if any?
A: I gasped for breath so that when I opened my mouth, his
penis entered my mouth.
Q: What happened next, if any?
A: He tightened his hold on me so I was forced to suck his penis
afraid that he might break my neck.
Q: What happened next, if any?
A: His penis reached my throat and I felt nauseated so I ran to
the bathroom and vomited.
Q: What happened next, if any?
A: I stayed in the bathroom for a while because I was not feeling
well.
Q: What was his reaction, if any?

Q: What was his reaction, if any?

A: He angrily ordered me to go to him and lie beside him and I

obeyed.

A: He angrily shouted at me: "My goodness! Why are you so

slow? As if you are a virgin!"

Q: What happened next, if any?

Q: What did you feel, if any?

A: He rode on top of me again and tried to insert his penis into

my vagina.

A: I was terrified of him.

Q: What happened next, if any?

Q: What did you do, if any?

A: His penis could hardly stiffen.

A: I was forced to go near him, kissed his neck, but [I] stopped.

Q: What was his reaction, if any?

Q: Why did you stop?

A: He got angry saying: "It cant enter! Your vaginas too small.

or reply to his text messages will have an adverse effect on her

performance rating.

Q: What did he do next, if any?

A: He spread my two (2) legs wide apart and tried to insert his
penis but it did not stiffen.
Q: What happened next, if any?
A: He pulled my head towards him by pulling my hair.
Q: What was your reaction, if any?
A: I told him: "Dont pull my hair, sir! Its very painful! What a
sadist you are!"
Q: What was his reaction, if any?
A: He just kissed my lips, neck, sucked my nipple and mashed
my breast by saying: "This is the breast of a lustful woman" while
continuing to suck my neck and breast.
Q: What happened next, if any?
A: He said: "Im going to plant lots of kiss marks here to let the
people know that you passed through my hands."

The situation got worse for Ms. Tan when respondent judge
[ Judge Pacuribot] indicated his interest in renting a room in her
house which she used as her home office. Ms. Tans house is
near the Police Station and the courthouse. Initially, she candidly
told him that the said room is not for rent. She even refused him
in the presence of her officemates who cannot comprehend why
she should not allow him to rent the room considering that it
would be an additional income for her. At that time, they were
unaware what she was going through.
Ms. Tan brought her commercial calendar to their office. It has
her picture. Having seen it, [Judge Pacuribot], in the presence of
Ms. Tan, instructed Placido Abellana, the court aide, to mount
her calendar at the door of his chamber, saying: "Whoever
removes the calendar would take a scolding from me. Dont
remove Shirleys calendar. I like that hot babes." Then, pointing
to her picture, he added: "Thats my idol, the hot babes Kikay!"
As he was still trying to persuade her then to let him rent a room
in her house, he said in jest to Placido Abellana: "If I rent the
room, I will call Shirly she will massage me and step on my
back and I will feel good because Shirley is sexy."
With the pressure on her to rent him a room being kept, Ms. Tan
eventually yielded, but she erected a wall between his rented
room and her house, and provided for him a separate ingress
and egress. Nonetheless, when her husband is not around, she
would find him knocking on her window and ordering her to go to
his room.

Q: What was he referring to as "here"?

A: My neck.
Q: What was your reaction, if any?
A: I cried.
Q: What happened after that, if any?
A: He rested while I went crying to the bathroom, washed my
body then dressed up.
Ms. Tan again pleaded for [Judge Pacuribot] to let her go. This
time, [Judge Pacuribot] assented, but he offered to bring her to
the bus terminal. Traumatized, she refused the offer. She told
him that she will just take a taxi and will have breakfast at the
Ororama. Still he insisted to shuttle her there. Thus, at about
past 8:00 oclock in the morning, he left her at Ororama Cogon,
Cagayan de Oro City.
Ms. Tan did not report to the office the next working day, that was
22 October 2004 a Friday. She absented herself from her work
because she still had noticeable number of kiss marks on her
neck. She only reported on Monday and covered her kiss marks
with her hair. At the office, [Judge Pacuribot] told her not to file
anymore her leave for October 20 and 21, 2004 while bragging,
"Ako na gud ni, kinsay magbuot nako?" (It is me, who will prevail
against me?)
Ms. Tan told no one of her traumatic experience and carried on
as if nothing happened. But from then on, [Judge Pacuribots]
advances on her went on unabated even in the office. Whenever
she would go inside his chamber, at times, he would grab her
blouse, mash her breast, and kiss her neck saying that she
smells so sweet. At times, he would touch the crotch of her pants
or pull the string of her panty. On 13 October 2005, he did the
same indignities to her in the presence of Placido Abellana, the
court aide, and the latter just pretended to see nothing by turning
his back. Every time she would resist and/or evade his sexual
advances, he would shame her before her officemates at a later
time. He also told her to send him text messages of endearment.
She was warned that her failure to comply, or to receive his call,

Ms. Tan claims that if [Judge Pacuribot] could not have his way
with her because she resists, he would scold her in his chamber
and would also humiliate her in the presence of her officemates.
She would also receive threats from him as regards her
performance rating. In fact, her "Very Satisfactory" rating in the
previous years of her service went down to "Satisfactory" for the
period of January to June 2005, the first and only time that she
was given such a rating.
Because of the very oppressive ways of [Judge Pacuribot], Ms.
Tan eventually suffered from what doctors call "chronic fatigue
syndrome" and was hospitalized in December 2005. Dr. Virgilio
Lim of Lipunan Hospital of Gingoog City treated her. Dr. Lim
testified that emotional stresses of a patient could lead to chronic
fatigue syndrome.
Ms. Tans helplessness against the sexual abuses and advances
of her judge was gnawing on her. She found it revolting. She
finally mustered enough courage to come out in the open to free
herself. She executed an Affidavit Complaint sworn before a
woman Clerk of Court of Cagayan de Oro City on 06 December
2005. She flew to Manila and went to the Supreme Court on 08
December 2005 to file her administrative case against her
superior. In February 2006, she filed criminal charges of rape,
acts of lasciviousness and sexual harassments against [Judge
Pacuribot] before the City Prosecutor of Gingoog City. At the
onset, no lawyer in Gingoog City would even want to accept her
case. The criminal cases were dismissed for lack of jurisdiction.
She re-filed the case with the Prosecutors Office of Cagayan de
Oro City. They were also dismissed.
Villafrancas Story
Ms. Villafranca first met respondent judge [Judge Pacuribot]
sometime in November 2004 at the lobby near the Probation
Office at the Hall of Justice of Gingoog City where she holds
office. When [Judge Pacuribot] passed by, she was then talking
to a certain Dondi Palugna, her childhood friend who at that time
was [Judge Pacuribots] driver. Short introductions followed.
On 18 December 2004, Ms. Villafranca received a call through
her cell phone from [Judge Pacuribot]. To Ms. Villafranca, the call
was unexpected. After their talk, he asked her if he could call
again for chitchat. She answered "Ok lang." She asked him how

he got her mobile number. He said he got it from Dondi Palugna.

Later, she began to receive text messages from him, telling her
how beautiful and sexy she is, how the mini skirt suited her, etc.
She courteously acknowledged his praises and said "thank you"
to him. Then, he started inviting her for dinner. Knowing him to
be married and the fact that she is married, she declined these
invitations citing an inoffensive excuse which is her evening
teaching sessions at Bukidnon State College, Gingoog City. But
she found him persistent. One time, he took offense at her
refusal, saying "Why dont you come with me? I AM A JUDGE!
Why should you refuse me? Why do you go with Dondi and not
with me when I AM A JUDGE?" At another instance, he even
asked her why she goes with Dondi Pallugna, a drug addict, and
not him a judge. Although scared of his outbursts, which by
reputation he was known, she politely explained to him that his
driver Dondi Pallugna was her childhood friend. Still, she had to
dodge his persistence.
In avoidance, Ms. Villafranca requested for a transfer to
Probation Office, Cagayan de Oro City. This was in February
2005. She was asked to make a written request which she failed
to file due to heavy work load. At that time, the Regional Office of
the Probation Office for Region X was about to hold a Timestral
Conference. Venue of the Conference was Gingoog City and so
the host office for that conference was the Gingoog City Parole
Office where Ms. Villafranca works. She was assigned to take
charge of the hotel accommodations of participants in the
conference. For that reason, she was too busy attending to her
assigned task that she failed to prepare the written request.
Accordingly, nothing materialized out of her intended transfer.

farther, he honked his horn, entered a garage which then

immediately closed as soon as his car entered. It was late for her
to realize that he brought her to a motel in Butuan City. She
became numbed with fear. He alighted from the car carrying his
gun, and opened the door on her side. She asked him: "Why are
you taking me here? You told me we were going to a restaurant."
He ignored her. He told her to get out of the car. Sensing she
was uncooperative because she would not get down, he
grabbed her from the car. She tried to resist but she was
numbed with fear. She wanted to get away but she could not
seem to move. He pushed her in the room. She attempted to go
out of the room but he locked the door and blocked it with his
body. She pleaded to him to let her go because her children and
family are looking for her. Then, [Judge Pacuribot] grabbed Ms.
Villafranca by her shoulders and tried to kiss her. She evaded by
backing out from him and turning her face away. As she
continued to back away from him, she fell on the bed while he
immediately laid on top of her. She felt his hands groping all over
her body, as he tried to kiss her. She kept on pleading to him to
let her go; that she wants to go home because her kids are
looking for her. He lifted her blouse, unbuttoned and unzipped
her pants while she was pushing him away. But he was too
strong and big for her. She tried to get up when he took off his
pants and brief, but he was fast and was soon on top of her. As
he pinned her down on the bed, she could hardly move and
found him too heavy. All along she was trembling in fear and was
crying while pleading to him for mercy. But he could not be
dissuaded. On cross examination, [Judge Pacuribots] counsel
asked her some details on this incident, as follows:
Atty. Kho:

Although calls of [Judge Pacuribots] were unwanted, but Ms.

Villafranca wanted to be polite to him for two (2) reasons: his
status as a judge and his reputation, in the Hall of Justice, as
"terror" which caused most people to fear him. So, she took his
calls politely, gave him respect, and when she had to turn down
his call, she had to do it courteously like: "Ok, sir, I still have work
to do, I cannot talk long."
In the last week of February 2005, Ms. Villafranca got a call from
[Judge Pacuribot] who was fuming mad because she refused his
dinner invitations. Scared, she finally relented. It was scheduled
on 22 February 2005 which turned out to be her worst
nightmare.
February 22, 2005 came. [Judge Pacuribot] asked Ms.
Villafranca to choose a restaurant. She singled out The Mansion
in Gingoog City for good reasons. The Mansion is owned by her
relative. On that account, she thought that in the place she will
be safe. She planned to invite one of her relatives in that
restaurant during the dinner. By arrangement, she was to be
picked up at 7 p.m. at the school gate.
A few minutes past 7 p.m., on the appointed date, [Judge
Pacuribot], driving his car, fetched Ms. Villafranca. He opened
the car door to her and she took her seat. While she was talking
to him, she saw him brought out his clutch bag, took out his gun,
cocked it and put it in between them. Frightened that it may blow
off anytime, she voiced out her fears of guns. He quickly replied
that guns are for the safety of judges who are prone to
ambushes.
Noticing that [Judge Pacuribot] was driving towards the opposite
direction of The Mansion, she told him they are driving the wrong
way. But she was told that they are going to Butuan City as he
knew a great dining place there. While driving with his left hand,
[Judge Pacuribot] would hold his gun with his right hand and put
it down every now and then when he had to change gear. This
scared her even more and she started shaking in fear. She
observed that he was over speeding and would honk his horn
furiously so the other drivers would allow him to overtake. She
started having frightening thoughts like imagining being killed if
she resists and be left along the road. She feared for her life,
and of her children.
After about an hour, Ms. Villafranca noticed that [Judge
Pacuribot] turned right from the national highway, and a little

Q: You said you were brought to Butuan City in a motel. Do you

remember the name of the motel?
A: No, I dont.
Q: Could you remember the size of the room that you were in on
that day which you claim on February 22, 2004?
A: Im sorry, Attorney, everything seems to be so blurred during
that time. All I could really remember was asking him to take me
home because it was not agreed that I go with him in a motel but
in a restaurant at Mansion by the sea at Gingoog City.
Q: So you dont remember really anything else?
A: I remember what happened to me.
Q: Why, what happened to you?
A: When he forced himself to me.
Q: When you say he forced himself to you, what do you mean?
A: When he was on top of me and he was kissing me. God, I can
feel and I can remember how heavily he was breathing in my
face and he was kissing me all over and he was trying to position
himself inside of me. Those are what I can remember and I kept
on telling him: "No! I want to go home to my children." I wanted
to go home because my family will be looking for me. What? Did
he listen to me? No, he kept on telling me I am emancipated.
Nobody will look for me.
Q: What were you wearing at that time on February 22?
A: I was wearing pants and a blouse.
Q: Were you undressed at that time?
A: I am sorry?
Q: Were you undressed?

A: Undressed? He undressed me.

was far too wise to accept excuses. Her constant fear made her
succumb to his blackmails.

Q: He undressed you?

Q: Nothing left?

[Judge Pacuribot] was always demanding that Ms. Villafranca

send him text messages and letters expressing nonsense, a
matter she could not understand then. She thought it was only to
feed his ego. On cross examination, [Judge Pacuribots] counsel
asked why she complied with these orders. She answered:

(No reply).

Atty. Kho:

Ms. Villafranca felt that her legs were being parted as [Judge
Pacuribot] tried to insert his penis into her vagina, but she could
sense he had difficulty with erection. She felt penetration was
slight. She recalled that he tried penetration more than three
times, but was unsuccessful. She felt his heavy breathing while
he planted vile kisses on her neck and chest. Her repeated pleas
for mercy had not done her any good. Not long after, he rolled
over with her and she found herself on top of him. He grabbed
her hair and pushed down her face to his penis, and forced her
to do oral sex on him instead. She resisted, but he insisted
saying that it was what he wanted, otherwise she would be put to
harm. She took it to mean that he will kill her if she refuses him.
Scared, she relented and had oral sex on him. She felt shamed
as she sucked his limp penis. She was disgusted with him, with
herself and the very act itself. Still not having an erection, he
released his grip on her. While she was physically and
emotionally exhausted, she continued crying for mercy, but
[Judge Pacuribot] was boasting that nobody in his right mind
would refuse his demands as he could easily cause damage to
anybodys honor if he wanted to.

Q: In your affidavit, do you remember having said that the

respondent is forcing you to send to him text messages?

A: Yes.

Ms. Villafranca then got up, and put on her underwear and pants.
[Judge Pacuribot] also got up and took his cell phone. She pulled
the sheets to cover herself because her blouse was on the
opposite side of the bed. However, he pulled the sheets from her
and pushed her to the bed half naked. She braced herself with
her arms so that the she would not be pinned down on the bed
again. But to her surprise, he took a picture of her, using his cell
phone. She was petrified. He then looked at the picture
commenting that it was no good because she was not smiling,
so he ordered her to smile as he will take another picture of her.
Although she defied him, yet he did take another picture of her.
She the hurriedly put on her blouse while he dressed up, fixed
himself and tucked his shirt and his gun.
After [Judge Pacuribot] settled the bill, he led her out of the
room. Ms. Villafranca shrugged him off. At the garage, she was
ushered to the front seat of the car. She was dying to go home.
He drove back to Gingoog City. On their way back, she turned
her back on him, closed her eyes, covered her face with hand,
and pretended to be asleep. Later, he informed her of their
approach to Gingoog City. She asked him to drop her off at the
old Caltex gasoline station along the national highway. From
there, she hailed a motorela, went home, took a long bath to
wash his marks of her. At about 11 p.m., she fetched her children
from her fathers house. When asked where she had been, she
gave her father a lame excuse that she went out with her friends.
Ms. Villafranca reported to work the next day. There had been
some phone calls in their office. Like any other office, whoever
has the convenience to answer at the time would pick up the
phone. [Judge Pacuribot] had called twice their office already
and when her officemates answer the phone, he would just hang
the line. When the phone rung again, she picked it up. It was
[Judge Pacuribot] on the other end. After recognizing her voice,
he belittled her yelling: "Prostitute! Devil! Animal! Why dont you
pick up the phone?" She was consumed with fear, and meekly
told him that she was just busy. Days passed as he continued to
threaten her with the publication of her half naked picture. She
tried to pacify him sensing that he could make real his threats.
Being married to an overseas worker with two kids, she was so
scared of figuring in a scandal. Her fright of him was
burdensome. He would send her text messages telling her of
sweet nothings, but every time she would ignore them, he would
burst in anger and would renew his threats. At times, she made
excuses, like having no cell phone load, but he would insist that
she should secure a load, otherwise he would shame her. He

A: Yes.
Q: And you complied with the sending of these text messages?
A: Yes, because one day when I was not able to text he called
me and he screamed at me over the phone and then he said:
"Burikat, animal ka, yawa ka, imo gibuhat dili ko nimo i-ignore.
This will be the last timena imo ko i-ignore sa text or sa tawag
nako. Otherwise, you will pay for it."
Atty. Ignes translating:
"You whore, you devil, you animal, dont you dare! This
will be the last time you will ignore me in my call,
otherwise you will pay for it."
Atty. Kho:
Q: Why did you allow him to do that to you?
A: Because he constantly tells me that he will develop that
picture, he will show that to my mother-in-law and then he will
destroy me and he will create scandal in Gingoog City.
Q: Is it not that you are well-connected? Your grandmother is the
mayor. Did you not report it to her?
A: My husband is not around, Attorney.
Q: And?
A: And what? How would I explain to them that I was there? How
he took my picture? How am I going to? I dont know. I just
wanted to protect my family from any shame, from any scandal.
And he knew that it would be his hold to me. And he knew that I
would be very careful with the name that my family had, that is
why he is constantly threatening me with such same arguments,
you know. "Ikaw and madaot ani. Imo ning kuan tana."
Atty. Ignes:
"You will be destroyed because of this."
Atty. Kho:
Q: So, you admit that you sent him a lot of text messages?
A: I did not deny it in my affidavit. I had it in my affidavit, that
there were text messages and forced notes written for him.
[Judge Pacuribot] also asked her to send him cards with
amorous messages. On these, she was also grilled on cross
examination. It went as follows:
Atty. Kho:

Q: You mean you often wrote some notes?

Justice Flores:

A: Yes. I may even have some drafts there wherein he even

edited it.

Q: When you said that the judge would even call you to his
chamber to sign cards, what kinds of cards?

Q: What kind of notes were they?

A: Greeting cards, Your Honor.

A: Love notes and there was a time he made me write a letter to

my mother-in-law which the very next day I was posting myself at
the Post Office awaiting for that letter to come so that I could
intercept it.

Atty. Kho:
Q: Hallmark?
A: I dont recall. I would just easily sign them, do whatever he
wanted and then after he is done touching me I would ask myself
to leave.

xxxx
Q: Also attached to the Comment of respondent are some notes
already marked as Annex 9. Could you go over some of these
notes and tell us if this is your handwriting? Annexes 9 and 9B.
A: I will not deny that I wrote these letters but they were under
his supervision just like the ones he made to my mother-in-law
and to my husband.
Q: You mean to say you were writing the letters?
A: Yes. He will dictate to me what to do, what to say.

Q: So, you also sent him lots of greeting cards?

A: I did not send your client. He gave it to himself.
Q: I am going to show you one last card. Tell me, is this one of
the cards that you said you signed? Im going to give this to you.
For submission.
A: Yes.
Q: This is one of the cards that you signed?

xxxx
Q: So you were acting like a stenographer who writes down his
dictation?

A: One of those cards that I signed.

xxxx

A: I did not act like a stenographer who wrote down his dictation.
But I acted like a victim who is under threat by some
Q: The words here in Annexes 9-A and 9-B, you mean to say all
of these are his words, the respondent?
A: As I said Attorney, yes, under his dictation, under his
supervision. Do you know what is this?

A: It has no significance with me because your client dictated it

to me.
Q: So, it was dictated only.

Atty. Kho:
No. Do not ask me a question. You are not allowed to
do that.
Witness (continuing)
While I was doing those writing, I felt that all my limbs
were so tired. I felt so heavy writing those letters.
Atty. Kho:
Q: So you admit sending the respondent a lot more letters that
the ones Ive presented you?
A: I admit that I wrote those letters under his supervision, yes.
Q: All of the letters that you sent were all under his supervision?
A: As I said, yes, under his supervision. There were times that he
would even call me to his chamber to have some cards signed.
Q: So, aside from notes, you also sent him cards?
A: Yes, I recall signing them because he would ask me to do so.
xxxx

Q: Miss Witness, the handwriting on this card now marked as

Exhibit 6, on the second line of the handwriting are the words
"Love you, Bi." Could you tell us what is the meaning of the word
"Bi", if you know?

A: As I said, he dictated words to me.

Ms. Villafrancas resistance would always be met with a threat to
divulge the incident in the motel. Although she yielded to these
promptings of sending him text messages or cards or notes, she
never understood why [Judge Pacuribot] behaved so. It was late
in the day when enlightenment came to her that all his orders to
her to send him amorous text messages, letters and cards were
not to feed his ego but to prepare for his defense even while she
was as submissive as a lamb. In his Comment to the
administrative charge against him, he cited the text messages,
letters and cards he induced her to send to him to deflect her
charges of rape and unprofessional conduct and prove them
untrue. He cited them in his Comment as her manifestation of
"fatal attraction" to him.
xxxx
There had been occasions when [Judge Pacuribot] summoned
Ms. Villfranca to his chambers on the pretext of discussing
probation matters, but once inside his chamber, he would lock
the door, grab her, kiss her, put kiss marks on her neck and
chest. He would pull her hair and push her down to his crotch
and demand that she performs oral sex on him. Her
overpowering fear of him and the scandal he can inflict on her
family made her yield to him. When she would disobey him he
would call her cell phone with lots of insults like calling her
"burikat" or with his threats.

Also, [Judge Pacuribot] demanded food from Ms. Villafranca

which the latter had to bring to his room in Ms. Tans house. Her
fear of dire consequences of her resistance absorbed her. When
demanded to bring food, she would comply out of fear. In her
words, "Yes, I went because he would put me under pressure
and under fire." She went not only because of his constant threat
of making public his cell phone picture of her, half naked, but
also because of "his added threat that he is going to tell my
mother-in-law; that he is going to destroy me; that I am nobody;
that my family is no good and he would call me burikat, burikat
(whore). He would call me that name yawa ka, animal ka.
Sumunod ka nako." She was angst-ridden with the set up. She
was fearful that somebody might see her in his rented room or
on her way to it or back. She was made to go there about eight
(8) times. All these instances, she saw him display his gun. She
found him too selfish and an ingrate. Once, on his demand to
bring food, she brought him only pansit and lumpia which was no
longer crisp. Unappreciative, he furiously stabbed his plate with
fork, breaking it and carped that she served him food which is
not fit for a judge, and suited only to her seaman husband. He
also made her eat with him on occasions which she abhorred so
much because according to her "he ate like a pig eating fast
with shoulders hunched, elbows on the table, mouth noisily
chewing the food."
When grilled on those eight (8) times, the following exchanges
between [Judge Pacuribots] counsel and Ms. Villafranca took
place:

abuses, but she was more afraid of causing scandal to her

family.
In April 2005, after having dinner with [Judge Pacuribot] in his
rented room, Ms. Villafranca was pulled by her hair and was
asked, "[w]ho owns you now?" She answered in fear "you." He
looked very pleased. Then, he told her to leave her husband and
promised to help her file a marriage annulment complaint in
Gingoog City. She did not say a word. He went on top of her and
pulled her hair demanding for an answer. Terrified, she said
"opo". Then, she was forced to have sex with him.
[Judge Pacuribot] wanted to destroy the relationship Ms.
Villafranca has with her husband and his family. He forced her to
write a letter, asking for a break up of marriage from her husband
which [Judge Pacuribot] edited. He also ordered her to write to
her mother-in-law with whom she had some difficulty in their inlaw relationship, to say she wanted a marriage break-up. She
told him she does "not need to write letters to her mother-in-law.
What for?" But he insisted. Her hands felt heavy writing them, in
fact it took her three drafts to write as shown in Exhibits "B", "C"
and "D" of Ms. Villafranca. Discontented with her drafts, he took
away the last from her, edited it, and told her he will mail it to her
mother-in-law. Thinking he will make good of his threat, the
following day she posted herself outside the Gingoog City Post
Office for a long time and waited for the mailing of said letter so
that she can intercept it. No one came. She instructed the postal
clerk that if there is a letter intended for her mother-in-law, she
should not give it to her mother-in-law but to her instead.

Atty. Kho:
Q: In all of these times, 8 times which you said, you did not care
to offer any resistance?
A: I had offered a lot of resistance, Attorney, but your client would
make it a point that I should not refuse him.
Q: You tried to resist?
A: I had evaded him many times, many times but he would
always point out that I should not refuse him, otherwise he will
destroy me and he did eventually when I finally had the courage
to put up with him, you know.
(The witness is crying at the witness stand)
Q: During those 8 times which you said you went to the room of
respondent at Sherlita Tans place which is near the police
station and the LTO, was there a time that you shouted?
A: I could not shout, Im scared.
Q: You were scared of what?
A: Scared of your client.
Q: Of the person?
A: Yes and how intimidating he could be and how evil he could
be.
After eating, Ms. Villafranca would be ordered to take off her
clothes; then, [Judge Pacuribot] would lay on top of her for his
sexual pleasures. But penetration would be slight because, as
usual, he had difficulty with erection. As a consequence, he
would push her down to his organ and order her to do oral sex
on him. She detested his routine of putting kiss marks on her
neck and chest which he intentionally used so that, as he told
her, people would know that he owned her. At times, she left his
rented room wearing a hooded jacket in order o hide her face
fearful that certain people might recognize her along the way.
There were times she also left his room without underwear
because he would not give it to her. She hated his sexual

Meantime, Ms. Villafrancas morbid fear of [Judge Pacuribot], his

threat to mire her and her family in scandal and her guilt toward
her family had been sucking her into a vortex of emotional and
physical collapse. She bore the immense pain of yielding to him.
She seemingly could not withstand the humiliation for being
involved in forced sordid incidents with [Judge Pacuribot] whom
she detested.
On 9 May 2005, seemingly depressed for her accumulated
frustrations for not being able to see her way out of her
predicament, Ms. Villafranca, sent a text message to her
husband who was then working aboard a foreign vessel. Her text
message went this way: "Whatever will happen to me, you take
care of the kids." He asked: "Whats wrong?" She answered: "I
cannot fully disclose to you everything but in due time I will.
Whatever happens to me, just take care of the kids and that I
love them." Her disturbing message constrained her husband to
pre-terminate his employment contract and rushed home to
Gingoog City on 15 May 2005. She then personally told [Judge
Pacuribot] to stop calling her or asking for food, but he grabbed
her hair, twisted her head and planted a kiss mark on her neck,
telling her that it would send a message to her husband that he,
not her husband, owned her. Still, she was not prepared to make
her revelations to her husband.
In the third week of May 2005, Ms. Villafranca was persistently
instigated by [Judge Pacuribot] to file an annulment case against
her husband. Later, he asked her to sign what Ms. Villafranca
calls a "ridiculous document" he drafted wherein it purported to
show that she and her husband agreed that each of them may
freely cohabit with a third person. She signed it in the face of his
threats. Worse, he asked her to ask her husband to sign the
same document.
On 25 May 2005, at the Hall of Justice in Gingoog City, Ms.
Villafranca was summoned to [Judge Pacuribots] chamber.
Once inside, he slapped her for not filing her petition for
annulment of marriage and hit her head with clenched fist. Then,
he planted on her neck kiss marks which he said he wanted her
husband to see. Indeed, when her husband found her with kiss
marks, she suffered from her husbands beating.
Citing her husbands beating her, Ms. Villafranca pleaded to
[Judge Pacuribot] to stop molesting her. He countered with an
unusual suggestion File a rape case against him. When she
refused, the threat of the dire consequences of her refusal came

again. She still kept from her husband what she was going
through.
But [JudgePacuribot] seized another incident to destroy her
more. On 15 June 2005, he reported in writing to the superiors of
Ms. Villafranca superiors in local office and superiors in Manila
alleging her negligence allegedly committed on 6 June 2005 in
forgetting to shut off the air-con unit in their Probation Office. Her
local superior in the Probation Office referred to her the letter of
[Judge Pacuribot]. She prepared an explanation which her local
superior used as letter to the judge. Thinking that because she
authored that letter, the explanation there covered already her
side, she did not write nor see the judge anymore. This further
infuriated him.
xxxx
In July 2006, Ms. Villafrancas request for transfer was granted
and she started working in Cagayan de Oro City on 17 July
2006. The transfer of assignment resulted in her constant
separation from her nine (9) year old son and four (4) year old
daughter, plus the great inconvenience of a 2 hours bus ride
from Gingoog City one way, and transportation expenses. She
would usually go home to Gingoog City to be with her family and
children on weekends, or every now and then, and sometimes
late at night.
After her transfer to the Probation Office in Cagayan de Oro City
on 17 July 2006, Ms. Villafranca was able to tell her husband
what she went through. Before that, she just could not find the
courage to tell him because she was scared. When she was
twitted on cross examination on how so long that she was
scared, she said:
Atty. Kho:
Q: So, what you told him at that time was that you were scared?
A: Attorney, I was walking in fear most of those times and even
up to now when I came home I am walking in fear. I dont know if
Im safe. I dont know if the next day I will be dead. I dont know.
Those were the times when I asked my husband to accompany
me because Im always scared all the time. Even if I just go out
of the gate ask my husband to accompany me.
(At this juncture, witness is sobbing)
Ms. Villafranca decided to fight back with this administrative
charge. She subscribed her Affidavit-Complaint before State
Prosecutor Roberto A. Escaro on 13 December 2005. In Ms.
Villafrancas Complaint she prayed that [Judge Pacuribot] be
found guilty of gross violation of the Judicial Code Of
Professional Responsibility (Code of Judicial Conduct) for being
totally unfit to stay in the Judiciary and she prayed that he be
ordered immediately dismissed from service. She also prayed
that [Judge Pacuribot] be immediately ordered to cease and
desist from causing any further assault on her person, in her
personal and professional capacity.
On the same day, Ms. Villafranca submitted her AffidavitComplaint to the Office of the Court Administrator. [Judge
Pacuribot] filed his Comment. Among others, he cited that Ms.
Villafranca was "fatally attracted to him" and that he refused to
reciprocate because "he is a judge and happily married," and for
the reason that Ms. Villafrancas "misdirected adoration is
atrociously immoral." Ms. Villafranca filed a Rejoinder refuting
point by point the defenses of [Judge Pacuribot] and calling them
lies. Ms. Villafranca said his defenses are presumptuous and
revolting because in the Hall of Justice, female personnel
"invariably veer away from his path in trepidation." She asserts
that [Judge Pacuribots] extramarital indiscretions are well
known, if not well documented, in Gingoog City, that it is
common knowledge that his mistress Sheryl Gamulo, whom
[Judge Pacuribot] housed in Motomull St., Gingoog City, gave
birth to two (2) children by [Judge Pacuribot] on 16 October 2004
and 02 September 2005 at the Maternity Hospital, Cagayan de

Oro City; that the eldest child was baptized in Opol, Misamis
Oriental with Atty. Wilfredo Bibera, his clerk of Court, and Dondi
Pallugna, his driver, as baptismal sponsors. Ms. Villafranca
claims therein that respondent judge is also known to have sired
a daughter in Ozamiz City now about ten (10) years old whose
picture has been circulated in the Hall of Justice and that [Judge
Pacuribots] immorality most probably inflicted on victimized
women is a sick source of scandal and gossip in the city.
To be able to put behind her harrowing experience, Ms.
Villafranca applied for leave of absence with their office to work
abroad knowing that [Judge Pacuribots] order in People v.
Anude and his letter to her superiors have effectively made her
lose that desired promotion. Eventually she left the country on 2
October 2006 for Dubai, UAE to work and forget her past even if
her leave of absence in their office was not yet approved. On 18
March 2007, she returned to testify in this case after struggling
against employment restrictions and financial constraints, she
not having been half a year yet abroad. On 22 March 2007,
when asked on the witness stand when she will leave again for
Dubai, she said: "I want to leave the country as much as
possible and stay out of here. I dont want to be reminded of
what happened to me." At the time she testified in March 2007 in
this case, her leave of absence in the Probation Office was not
yet granted.
In his Comment,9 Judge Pacuribot denied the charges of Ms. Tan and
Villafranca for "lack of factual and legal bases"; and opposed the
allegations on the ground that the same were motivated by revenge and
were part of a comprehensive and sinister plan to drive him out of service.
Judge Pacuribot made total denial of Ms. Tans charges against him and
claimed that the alleged incidents on 20 and 21 October 2004 were "big
lie[s], a fraud, a hoax and deception." He insisted that he could not have
committed the acts complained of by Ms. Tan because in his first five
months in office, he was busy planning what to do and how to quickly
dispose of the almost 500 cases he inherited, including the new ones
raffled to him.
In particular, Judge Pacuribot denied the alleged rape incidents on 20-21
October 2004 in Cagayan de Oro City, and interposed the defense of alibi.
He contended that he was in faraway Gingoog City, which is 120
kilometers away from Cagayan de Oro City. He stated that on Mondays, he
reports for his duties in Gingoog City, and goes home to Cagayan de Oro
City only on Fridays. He maintained that on 20 October 2004, a
Wednesday, at 7:00 p.m., he went out of his chambers with his court aide
Placido Abellana, Jr., and his security officer SPO1 Ronald Espejon. They
proceeded to Garahe Sugbahan Grill for dinner. After dinner, Espejon and
Abellana escorted him back to his boarding house. Abellana left him at
9:00 p.m. while Espejon went home at about 11:00 p.m.
Judge Pacuribot admitted that he did not hold trial on 21 October 2004, a
Thursday, because the scheduled settings were all cancelled that day
which cancellation was made a week before. He averred that on the same
day, he was writing decisions in his chambers. In the evening, he asked
Abellana to buy food and they ate supper with Espejon. Abellana left him
about 8:00 p.m. while Espejon left at about 10:00 p.m.
He, thus, concluded that it was impossible for him to be with Ms. Tan on 20
and 21 October 2004, a Wednesday and a Thursday, respectively. He
argued that no proof existed to show his physical presence in Cagayan de
Oro City on those dates; hence, the presumption of his continuing physical
presence in his station during the inclusive period alluded to ran in his
favor.
Judge Pacuribot also cited several factors which made Ms. Tans
allegations unbelievable:
1. Ms. Tans behavior was not reflective of a rape victim. Ms. Tan did not
immediately report the incident to the authorities. As a 43-year-old lady
who is no longer nave and having assisted as stenographer in countless
rape cases, she should know how important it is to immediately report the
incident.
2. Judge Pacuribot pointed to Ms. Tans admission that she did not put up a
struggle when he allegedly brought her to City Lodge Motel and Discovery

Hotel. Had she wanted to catch the attention of employees, she could have
done so. He also stressed that what Ms. Tan called a headboard where he
allegedly put his gun in the motel room was merely less than one inch in
width, too narrow for a .45 cal. gun to rest.
3. On 25 November 2004, a month and three days after the alleged rape,
Ms. Tan invited all her officemates, including him, to her birthday party held
at her home, where she sang and danced. She displayed her dancing skills
then. She even taught him how to dance the swing. Again, during the
Courts Christmas Party in December 2004, she socialized with her fellow
workers, including him, and even performed the "kikay dance" during the
program.
4. On 1 Septemeber 2005, all the staff of Judge Pacuribot, including Ms.
Tan, attended his birthday party at his house in Cagayan de Oro City,
where she merrily danced with dance instructors and posed with Judge
Pacuribots wife.
5. On May 2006, five months after she filed the administrative charge
against Judge Pacuribot, Ms. Tan joined the Search for Mrs. Gingoog City
Contest as one of the candidates and she paraded in the gymnasium, all
smiles, while attired in an elegant gown.
6. Judge Pacuribot alleged that Ms. Tan and her husband were publicly
known to be putting up a faade that all was well with them, although they
constantly quarreled and had been sleeping in separate rooms already.
Judge Pacuribot disputed Ms. Tans version of how he became the lessee
of a room at Ms. Tans house. He claimed that in January 2005, she came
to know that he was looking for a new boarding house and she offered two
small rooms at her house available for rent. He chose the one facing the
Police Station of Gingoog City, which he claimed to be only about five
meters more or less from the room he rented. He paid an advance rental
ofP5,000.00.
Judge Pacuribot denied sexually harassing Ms. Tan. In refuting her claim
that he sexually harassed her in his chambers, he countered that this could
not have happened as his court aide, Placido Abellana, was always in his
chamber with him. If Abellana was out on an errand, his security officer,
SPO1 Ronald Espejon, temporarily took over. There had never been any
moment in his chambers that he was without companion. There was
always either his court aide or his security officer with him. Even when he
had visitors, his court aide was still in his chambers to maintain
transparency and avoid unwarranted talk. Once in a while, his branch clerk
of court, Atty. Willfredo Bibera, Jr., would go to his chambers to confer with
him regarding cases. Sometimes, too, his security officer Espejon would
take his blood pressure in his chambers. Under these circumstances,
Judge Pacuribot argued that no sexual harassment could have occurred.
He also called attention to the fact that Ms. Tans affidavit and testimony
presented the dates of the alleged sexual harassments as follows:

27 October 2004

06 January 2005

03 November 2004

08 August 2005

25 November 2004

03 October 2005

08 December 2004

04 October 2005

09 December 2004

11 October 2005

05 January 2005

13 October 200510

The 6 January 2005 alleged incidents were followed only on 8 August

2005, thus, belying Ms. Tans claim that the sexual harassments were done
regularly. Also, Ms. Tans allegation that he sexually harassed her on 25
November 2005 was incredible, because on that date she was on her
birthday leave, and was busy preparing the dishes she was going to serve
them during her party. He emphasized that the criminal complaints for
rape, acts of lasciviousness and sexual harassments filed by Ms. Tan
against him with the City Prosecutors Office in Gingoog City and Cagayan
de Oro City were all dismissed.
Judge Pacuribot explained that these administrative and criminal charges
filed against him by Tan and Villafranca were part and parcel of a grand
plot hatched by Ronnie Waniwan, a radio commentator, to oust him from
office. He claimed that Waniwan was then facing four counts of libel in his
sala. The City Prosecutor recommendedP50,000.00 bail for each. When
Waniwan filed a motion to reduce bail bond, respondent denied it for
several reasons, i.e., (1) there was a previous conviction, (2) he was not
from Gingoog City, and (3) when a warrant for his arrest was issued, he
went into hiding instead of surrendering. Waniwan filed a motion for
respondent to inhibit himself, which the latter denied. As a consequence,
Waniwan spent 13 days in jail for failure to put up a bail bond. Judge
Pacuribot learned that Waniwan had contacted the NPA for Judge
Pacuribots "liquidation" as revealed in the affidavits of two captured NPA
sparrow unit members. He discovered that Waniwan with Mesdames Tan
and Villafranca plotted and conspired to destroy him after his personal talk
with other media men including Jonas Bustamante, Jerry Orcullo and
Jessie Mongcal.
Judge Pacuribot believed that Ms. Tan succumbed to the egging of
Waniwan to jump the gun on him. Ms. Tan knew that her job was in danger
because of her growing inefficiency, a subject of his several warnings,
since her inefficiency would essentially affect the performance of his court,
a scenario which he abhorred, having been a consistent performer in the
disposal of cases during his days as labor arbiter. In fact, he considered
Ms. Tan the most inefficient among the four stenographers he had. She
was allegedly lazy, inarticulate in the English language, and flawed in
spelling, which hampered her effectiveness in preparing transcriptions.
Worse, due to her moonlighting as manager of the Tan-Hoegee Internet
Caf, she would usually go home during office hours to catch some sleep.
He believed that his good relationship with her soured when he asked Ms.
Tan to be more focused on the job; that he was going to move to a new
house; and when he did not let her borrow P200,000.00, or at least be a
guarantor of her loan.
Anent the written charges of Ms. Villafranca, Judge Pacuribot specifically
denied all material allegations therein for being untrue. In particular, he
denied the alleged rape incident on 22 February 2005 in Butuan City. He
asserted that he never went out alone at night in Gingoog City, knowing the
place to be dangerous, and the fact that PNP confirmed to him that he was
in the list of those slated for "liquidation" by the NPA. Hence, he insisted
that he neither invited Ms. Villafranca for dinner, nor did he travel from
Gingoog City to Butuan City during night time.
Judge Pacuribot claimed that on 22 February 2005, at 5:00 oclock more or
less in the afternoon, he asked a certain Fil Sumaylo to buy and cook a big
fish and ten pieces of small octopus because they would have dinner at the
latters house. At about 6:30 p.m., respondent went with his security officer
Espejon and court aide Abellana to Sumaylos house. His branch clerk of
court, Atty. Bibera, was also there. After dinner, Espejon and Abellana
escorted him back to his boarding house at about 11:00 p.m. Abellana left
ahead, while Espejon left at about 11:30 p.m.
Also, Judge Pacuribot gave several reasons why he would not venture at
all to go to Butuan City alone. He said he was security conscious,
considering that he handled drug cases and other high-profile cases. He
had also received NPA threats on his life. He claimed that Butuan City was
about 80 kilometers from Gingoog City and he would not go there and risk
his life for a woman he barely knew.
In denying Ms. Villafrancas allegations of sexual harassment and acts of
lasciviousness, Judge Pacuribot pointed out that the acts of grabbing,
kissing and performing oral sex in his chambers could not have happened
as his court aide, Abellana, who is the uncle of Ms. Villafranca, was always
present in his chambers, aside from the fact that his chamber was just
beside the room of the staff.

Judge Pacuribot contended that Ms. Villafrancas charges were

improbable. He assessed her to be a very intelligent woman with a strong
personality. Ms. Villafranca is well connected, because she is a recognized
illegitimate daughter of a certain Polkem Motomull, a one-time member of
the Provincial Board of Misamis Oriental and nephew of Mrs. Ruthie
Guingona, incumbent City Mayor of Gingoog City. A sister of her father is
the Assistant City Auditor of Gingoog City, while Judge Pacuribots
predecessor, Judge Potenciano de los Reyes, is her fathers first cousin-inlaw. RTC Judge Downey Valdevilla of Cagayan de Oro City is also her
uncle; and even Judge Pacuribots court aide, Abellana, is her fathers first
cousin. Considering the big family of Ms. Villafranca, anyone will think, not
just twice, but several times, before doing anything against her. Ms.
Villafranca will not just allow herself to be raped and beaten by a stranger
like him in Gingoog City. He found out that, as indicated in the police blotter
of Gingoog City, Ms. Villafranca reported that she was raped and mauled
by Mr. Ricky Lee Villfranca, her husband, who carted away important
belongings at about 2:00 a.m. of 26 May 2005. He claimed that if Ms.
Villafranca could report her husband to the police for said offense, then she
should have reported him also to the police if her allegations were true.

NPAs named Marvin Lumod and Rico Roselem marked as

Exhibits "22" and "23" respectively. Unfortunately, these two (2)
affidavits will not help [Judge Pacuribot]. Marvin E. Lumods
Affidavit is dated 20 June 2006 while Rico A. Roselems Affidavit
is dated 19 June 2006. The incident in Butuan City occurred on
22 February 2005. The reason, therefore, in not wanting to go
out at night without company on 22 February 2005 was still
absent. [Judge Pacuribots] alibi that he was in Gingoog City on
22 February 2005 is backed up by the testimonies of SPO1
Ronald Espejon and Placido Abellana. But these two are his
loyals aside from the fact that Abellana, as his court aide, is also
one whose employment is under control and supervision of
[Judge Pacuribot]. Thus, on that account, their testimony must
be taken with grain of salt. Their testimony cannot discredit the
straightforward testimony of Ms. Villafranca on how [Judge
Pacuribot] deceived her twice on the purpose and on the
place. He invited her for dinner but ravished her instead. They
agreed on The Mansion in Gingoog City for the dinner, yet drove
her to a Butuan City motel.

Judge Pacuribot denied calling Ms. Villafranca through her cellphone. On

the contrary, it was she who was calling him. She also sent him adoring or
alluring text messages including seductive notes and poems. He claimed
that being a happily married man, he ignored the flirtatious and seductive
advances of Ms. Villafranca, to her consternation and bewilderment. He
claimed that her adulation of him came to an abrupt end and
metamorphosed into an intense hatred and dislike after he issued the 6
June 2005 Order in Criminal Case No. 2004-2879 entitled, "People v.
Anunde" pointing out her incompetence, inexperience and unprofessional
attitude toward her work. He opined that the charges of Ms. Villafranca are
typical under the adage, "Hell hath no fury than a woman scorned."

[Judge Pacuribot] asks: Why did Ms. Villafranca not report to the
authorities that he sexually assaulted her, if true, when she even
reported to the police that her husband raped her on 26 May
2005? [Judge Pacuribot], to prove that Ms. Villafranca reported
to the Police, presented Annex "3", a certified copy of an entry in
the Police Blotter of Gingoog City. [Judge Pacuribot] should have
noted that in that certified copy, it is shown that it was his
security officer, SPO1 Ronald Espejon, not Ms. Villafranca, who
had the report entered in the police blotter. The certification did
not say that Ms. Villafranca appeared at all in the Police Station
and had the incident blottered. All that Ms. Villafranca did was to
ask Espejon for assistance because he was beaten by her
husband.

Judge Pacuribot further complained that Ms. Villafranca would follow up

cases of her relatives in his sala.
After weighing the evidences and arguments of all the parties, Investigating
Justice Dy-Liacco Flores found:
FATHERHOOD UNPROVEN
On the Anonymous Letters about [Judge Pacuribots] illegitimate
fatherhood, the Investigator finds the claim unsupported by any
documentary evidence. Although the certification of the hospitals
administrative officer proves correct the claim in the anonymous
letter as to (1) the hospital; (2) the identity of the mother; (3) the
number of children delivered; and (4) the date of birth of the two
children, but it did not shed light on the identity of the childrens
father. In this case, the certificates of birth of the two (2) children
mentioned in the anonymous letter showing [Judge Pacuribots]
fatherhood would be the best evidence adequate to prove the
claim. With no-record-of-birth-certifications issued by the local
civil city registrar and the office of the Civil Registrar General, no
finding of guilt can be made.
RAPE AND SEXUAL HARASSMENTS PROVEN BEYOND REASONBLE
DOUBT
Ms. Villafrancas story of rape and repeated sexual harassments
is credible. [Judge Pacuribots] defense of denial and alibi failed
to overcome complainants evidence.
On the rape in Butuan City motel, [Judge Pacuribot] insists on
the improbability of his presence at the scene of the crime
because he alleges that he does not go out at night in Gingoog
City without company for two (2) reasons that he is security
conscious and that there is an NPA threat on his person.
Firstly, [Judge Pacuribots] being security conscious is no proof
of improbability in going to Butuan City. So many criminals are
security conscious yet they go out alone at night to commit a
crime. Hence, his being security conscious could not have
deterred him to go out.
Secondly, his claim of an NPA threat on his person is suspect.
He claims that he learned he was marked for NPA liquidation
when he was given a copy of the affidavits of two (2) captured

[Judge Pacuribot] claims that the administrative charge is Ms.

Villafrancas reprisal against him. He claims that Ms. Villafranca
appears to be "fatally attracted to him" and that he "remains
steadfast in his refusal to reciprocate he atrociously immoral and
misdirected adoration to him." He claims the administrative
charge is proof of the fury of a woman scorned. On the "fatal
attraction" [Judge Pacuribot] cited the text messages, notes and
cards he claims Ms. Villfranca sent him. Ms. Villaffranca
explained how he has always demanded of her to send him
those, the reason for which she could not fathom then. He would
even have cards in his chamber and then summon her to sign
them. When she resists, he would let out a barge of insults and
threats. [Judge Pacuribots] possession of those letters, cards,
and text messages was adequately explained by Ms. Villafranca.
[Judge Pacuribots] theory of Ms. Villafrancas "fatal attraction"
and "misdirected adoration" of him is funny. He never disputed
the testimony of the two (2) complainants that [Judge Pacuribot]
is reputed in the Hall of Justice as "terror", that he is fond of
humiliating people in public, using excoriating language on his
victim, that female employees avoid him and veer away from him
when they meet in the Hall of Justice. He also failed to
specifically deny the claim of Ms. Villafranca that he housed his
mistress, Sheryl Gamulo, in Motomul St., Gingoog City. He also
failed to specifically deny her claim that he sired a ten (10) year
old daughter in Ozamis City. Will all the dark side of his character
publicly known, hardly would a twenty-nine (29) year-old, very
pretty married woman who [Judge Pacuribot] claims is very
intelligent fall for such character. Thus, [Judge Pacuribots] claim
of Ms. Villafrancas "fatal attraction" and "misdirected adoration"
of him becomes incredible.
[Judge Pacuribot] asks why did Ms. Villafranca allow herself to
be raped and victimized over a prolonged period of time when
there were people capable of helping or protecting her
considering her illustrious, although illegitimate, lineage? Further,
if he committed sexual abuses on Ms. Villafranca at his rented
room which was very near the police station, why did she not
shout or report to the police?
The fact that Ms. Villafranca is well connected in Gingoog City
was actually not a boon but a bane. It was on that account that
she wanted to protect at all costs their family from any scandal.
[Judge Pacuribot] capitalized on it with his constant threat that

he will bring scandal to them by making public her half naked

picture taken in the motel. Her wanting to protect her family from
shame cowed her into silence and submission. Her testimony
demonstrates that. It reads:
Atty. Kho:
Q: A cellphone picture that is what you are afraid of?
A: No, also his added threats that he is going to tell my motherin-law, that he is going to destroy me, that I am nobody, that my
family is no good, and that he would call me "burikat, burikat." He
would call me that name. "Yawa ka. Animal ka. Sumunod ka
nako."
(Atty. Ignes Div. Clerk of Court interpreting:)
"Burikat" means a whore. "You lewd devil, and you
have to follow me."
xxxx
Q: Why did you allow him to do that to you?
A: Because he constantly tells me that he will develop that
picture, he will show that to my mother-in-law and then he will
destroy me and he will create a scandal in Gingoog City.
Q: Is it not that you are well-connected?
A: My husband is not around, Attorney.
Q: And?
A: And what? How could I explain to them that I was there? How
he took my picture? How am I going to? I dont know. I just
wanted to protect my family from my shame, from any scandal.
And he knew that it would be his hold to me. And he knew that I
would be very careful with the name that my family had, that is
why he is constantly threatening me with such same argument,
you know: "Ikaw and madaot ani. Ino ning huan tanan."
(Atty. Ignes:)
"You will be destroyed because of this."
Ms. Villafranca said she was scared of [Judge Pacuribots]
person and "how intimidating he could be and how evil he could
be." She feared him because when she resists him he would tell
her "madaot ka ani." (You will be destroyed because of this.) So
she had to yield to him because she knew he could do what he
threatens to do to destroy her. She points to the Order dated 6
June 2005 in People v. Anude of how indeed he had destroyed
her.
[Judge Pacuribot] claims in his Comment and Consolidated
Memorandum that Ms. Villafranca is a very intelligent girl and
with strong personality, reasons why it is improbable to make her
a victim of rape and sexual harassments. And yet, when he
issued the Anude Order, he made her look like she is an
irredeemable incompetent who "cannot spell", who "uses high
falutin words in her Post Sentence Investigation Report which
she herself may not have understood," whose sentence
construction is horrendous," "her proper noun is written with
small letter" and that "her adjectives or adverbs do not fit the
things or persons described." [Judge Pacuribot] engages in
double talk.
In the three paged Anude Order, [Judge Pacuribot] tried to
show that Ms. Villafrancas incompetence is toxically mixed with
acute haughtiness because Ms. Villafranca refuses to consult the
judge or see him or refused to come to him even when

summoned repeatedly. [Judge Pacuribot] should not gripe. He

summoned Ms. Villafranca to his chamber on 25 May 2005.
Once inside, [Judge Pacuribot] slapped her for not filing her
petition for annulment of marriage and her head with his
clenched fist. He planted on her neck kiss marks which he said
he wanted her husband to see. When Ms. Villafrancas husband
saw them later, he beat her. At 2:00 am of 26 May 2005, SPO1
Ronald Espejon claims that Ms. Villafranca called him for
assistance. It was the start of Ms. Villafrancas growing defiance
to [Judge Pacuribot], a fact that roiled him to point of issuing
the Anude Order eleven (11) days later.
[Judge Pacuribot] also belittled Ms. Villafranca repeatedly in said
Order by referring to here as "MERE Clerk II/understudy
Johanna M. Villafranca of Gingoog City Parole and Probation
Office," calling her "visibly inexperienced mere clerk," "very raw,"
and that her report was atrocious. He ordered her Post Sentence
Investigation Report returned "OFFICIALLY" to the superior of
Ms. Villafranca for proper corrections. [Judge Pacuribot] stated
therein that Ms. Villafranca cannot be located in her office as she
is always absent per information in her office. He stated that she
should not be allowed to practice making post sentence
investigation in preparation for a desired promotion.
The Anude Order is the classic proof of how Ms. Villafrancas
disobedience to [Judge Pacuribot] ended up in her destruction
"Madaut ka ani." The Order destroyed her person and her
career. Therein, he has beaten Ms. Villafrancas career to a pulp.
Any superior of Ms. Villafranca who will read the Anude Order
will block any desire of Ms. Villafranca for promotion which the
latter was aiming for at the time. She rued with tears how
the Anude Order displaced her from her job.
[Judge Pacuribots] repeated harping in said Order about Ms.
Villafrancas failure to consult him and to come to him even when
summoned, rendered more believable Ms. Villafrancas claim
that [Judge Pacuribot] would summon her to his chamber on the
pretext of official matters and thereafter subject her to his
lasciviousness conduct.
[Judge Pacuribots] claim that Ms. Villafranca was part of Ms.
Waniwans conspiracy was unproven. All the Sun Star pictures of
Ms. Tans filing of the criminal complaint before the City
Prosecutors Office did not show at any instance the face of Ms.
Villafranca. Also, she made it clear in her testimony that
sometime in February 2006, when Ms. Tan filed her criminal
complaint with the Office of the City Prosecutor, two other media
men called her up to see if they can get a copy of her AffidavitComplaint. But she refused to prevent the public from knowing
what she went through.
Indubitably, Ms. Villafrancas testimony and the anguish that
came with it can only come from a very sad experience. Even on
the very delicate matters where [Judge Pacuribot] had stripped
her mercilessly of her dignity and womanhood, Ms. Villafranca
was frank and straightforward, proof of how outraged she was
when [Judge Pacuribot] had raped her and had sexually
harassed her repeatedly.
Her spontaneity in answering the cross examination questions,
the anguish she revealed in court, her very natural and coherent
way of telling how she was ravished and abused repeatedly as
an underling leaves no room to doubt her testimony and the
things she said under oath in her Affidavit Complaint, her
Rejoinder, and her Sworn Statement. Her tears could only be the
clues to her righteous indignation against the indignities she
suffered from [Judge Pacuribot]. Indeed, the conviction to reveal
the truth must have been so strong that she had to come back to
the country hurdling employment restrictions and the difficulty of
not having saved enough yet for her trip back just to testify in this
case.
[Judge Pacuribots] claim that her administrative charge is a
fabrication is unacceptable against the avalanche of Ms.
Villafrancas evidence. The Investigator cannot find any valid
reason to sustain [Judge Pacuribots] denial and alibi as a
defense.

[Judge Pacuribot] is guilty beyond reasonable doubt of the

charge of rape in Butuan City and guilty of multiple sexual
harassment committed inside respondent judges chamber and
in his rented room in Gingoog City. His claim that Ms.
Villafrancas charge is a fabrication is unacceptable considering
the avalanche of evidence against him.
While [Judge Pacuribot] committed physical assault on Ms.
Villafranca on 25 May 2005 when after summoning her to his
chamber, he slapped her for not filing the petition to annul her
marriage and hit her head with his clenched fist, the same is
deemed absorbed by the offense of sexual harassment
considering that brute force and intimidation had always been
used by [Judge Pacuribot] to commit said offenses.
On the eight (8) occasions that [Judge Pacuribot] had carnal
knowledge of Ms. Villafranca in his rented room while [Judge
Pacuribots] gun was always displayed on the table, implying the
commission of rape, the same are treated as sexual
harassments only for Ms. Villafrancas failure to state when they
were committed and to provide details on those occasions.
Ms. Tans agony started with [Judge Pacuribots] deception. He
made her believe he will bring her in his car to the bus terminal
from Pryce Plaza Hotel, only to surprise her after riding with him
by bringing her to the City Lodge Motel to ravish her. Again, while
about to leave City Lodge Motel, he deceived her again by telling
her that he will bring her now to the bus terminal, only to bring
her to the Discovery Hotel, so that he can ravish her some more
later. Aside from deception, [Judge Pacuribot] uses extravagantly
another tool intimidation. Immediately after Ms. Tan settled
herself on the front seat on that infelicitous night of 20 October
2004, he immediately had his bag between them, the bag Ms.
Tan knows contains [Judge Pacuribots] gun. Also, he used on
her an uncouth language in a loud voice, an irrational temper, a
fake message of urgency to rattle Ms. Tan and make her jump to
obedience without thinking. By the time Ms. Tan realized [Judge
Pacuribots] repulsive intentions, it was too late to fight back
because she had been trapped in the motel.
His repeated intimidating warnings on Ms. Tan that she could
harm her if she disobeys were indeed proven true. On 24
November 2004, Ms. Tan was severely and publicly scolded
before her office mates, a fact that was affirmed by Atty. Wilfredo
Bibera. Her performance rating from "Very Satisfactory" slipped
down to "Satisfactory" in 2005.
[Judge Pacuribot] uses force and cruelty on his hapless victims.
When he ordered her to do oral sex on him and she refused, he
pulled her hair and pushed her face to his penis with an order:
"Suck it. Let it in till deep your throat. Let my penis reach your
throat." He tightened his hold on her that she was frightened he
might break her neck. In pain, she had to plead: "Dont pull my
hair, sir. Its very painful. What a sadist you are." While he was
sucking her nipple and mashing her breasts, he was telling her:
"This is the breast of a lustful woman." While he was planting vile
kisses on her neck to produce "chiquinini" on her, he told her: "I
am going to plant lots of kiss marks here to let the people know
that you passed through my hands." Upon hearing it, Ms. Tan
cried. Indeed, [Judge Pacuribot] is a sadist beyond description
capable of declaring his unconcealed intention to parade her to
the public as his victim.
At the trial, when issues would touch on her tender feelings
towards her family or when it would recall [Judge Pacuribots]
cruelty that crushed her respectability or the delicateness of her
womanhood, she would invariably sob on the witness stand. The
way he ravished her and sexually harassed her showed how
irrationally lewd or unbearably cruel he was.
Even when Ms. Tan was already abused, still the thought that he
is her superior had never been lost to her. Ms. Tan has always
addressed him "Sir."
"Why did you bring me here, Sir? Didnt I tell you I will
just take a taxi to Agora Terminal?

"Dont pull my hair, Sir. It is very painful. What a sadist

you are."
"You are so rude, Sir, we work in the same office yet
you disgrace me."
"Sir, I just take a taxi to Agora."
[Judge Pacuribots] moral ascendancy over Ms. Tan was an
undeniable factor to her blind submission to his depravity.
[Judge Pacuribot] pointed to Ms. Tans inefficiency, her not being
a happily married woman, that her husband is a wife beater and
a violent man, that she is in financial straits who even run to him
for help. It is precisely these weaknesses, personal problems,
and economic difficulties which added to Ms. Tans inability to
fight back and made her so submissive. She was the ideal prey.
As she was made to admit during her cross examination, she is
the lone breadwinner in the family with two (2) children to
support.
[Judge Pacuribot] challenges Ms. Tans claim of rape and
repeated sexual harassments by arguing, to wit:
"Why did she not refuse to go with respondent when
he allegedly fetch her at Pryce Plaza Hotel on 20
October 2004 and instead go voluntarily with him?"
"At the Discovery Hotel, if indeed she stayed and slept
there all by herself, why did she not escape or call for
help and instead wait for respondent to arrive the next
morning? So that he can sexually assault her again?
Or why did she fail to ask for help from any of the hotel
staff or from anybody while in the Discovery Hotel?"
"If she immediately reported to the police authorities
the maltreatment of her son by her husband, why did
she not complain of the alleged incidents of sexual
harassments and acts of lasciviousness she
experienced from the respondent?"
Despite her claims of having been subjected to rape, sexual
harassment and acts of lasciviousness, why did she gleefully
socialize with respondent during their Christmas party and
respondents birthday celebration?"
Ms. Tan had only two (2) options
"Lose her job by promptly fighting back at [Judge
Pacuribot]; or
"Keep her job tolerating him with muffled defiance.
Ms. Tan had correctly assessed the far reaches of his influence.
When she was looking for a lawyer to help her file the
administrative charge, no lawyer in Gingoog City would like to
accept her case. She had to look for one in Cagayan de Oro
City. She was thus correct to wonder while she was in Discovery
Hotel whether anyone there would come her aid if [Judge
Pacuribot] will start harming her.

Ms. Tan as a victim cannot be put in the same footing as other

rape victims where the offender holds no control on the victims
survival and has no moral ascendancy over her. Fighting back
immediately against the offender is a rational move. In the case
at bench, [Judge Pacuribots] moral ascendancy and influence
over her was a given. It was that together with his flair to
humiliate people and his blackmails which made her succumb to
his sexual abuses. Ms. Tan values her job; in fact, she
consciously keeps track of her performance ratings. An underling
who believes that her immediate superior wields control over her
continued employment or sudden separation from service will
cower in fear to the point of tolerating the indignities committed
on her. As [Judge Pacuribot] impressed on her, looking for a new
job at her age is not easy.
At the time that [Judge Pacuribot] was taking advantage of Ms.
Tan, [Judge Pacuribots] proverbial explosives temper and short
fuse were being put to good use to terrorize her with remarkable
frequency. That dark spot in his character which has been
brought up front in other peoples consciousness in the months
following his arrival in the Hall of Justice as a "terror" is enough
intimidation. To Ms. Tan, to "submit now and complain later" is a
good, albeit temporary, shelter against immediate public
humiliation or job separation. Thus, Ms. Tans failure to report to
the police is understandable.
Also, [Judge Pacuribot] seems to have a masterful skill on how
to exploit his victims weaknesses. Ms. Tan is a stenographer, a
position she has difficulty coping with because as [Judge
Pacuribot] noted, her spelling, her grammar and her knowledge
of the English language are not at par with the demands of her
job. He has warned her of her "inefficiency" and of staying late in
the evening as manager of the internet caf. He pointed to her
joining without prior SC permission a trip to Hongkong on a
weekend in a packaged tour for stenographers in Cagayan de
Oro City. Thus, with such faults and difficulties, she is the ideal
prey. Her fear of losing a source of livelihood has made her
behave submissive to him.
[Judge Pacuribots] alibi that on October 20 and 21, 2004, he
was in Gingoog City and it was impossible for him to be in
Cagayan de Oro City on those days does not impress. It fails to
establish the impossibility of his presence at the scene of the
crime. With the convenience of his car, [Judge Pacuribot] could
travel and be in different places, one after another in a short
time. After all, the incidents on October 20 and 21, 2004 were all
beyond office hours.
To support [Judge Pacuribots] claim that he was present on
those days in Gingoog City, he presented his Certificate of
Service for the month which shows that he was only on leave on
October 4 to 7, 2004.
Noteworthy is the testimony of Ms. Tan stating that when she
met [Judge Pacuribot] on Monday in their office after the rape
incident, the latter told her not to file anymore her leave for
October 20 and 21, 2004 and bragging, "Ako na gud ni, kinsay
magbuot nako?" (It is me, who will prevail against me). If he can
forego the filing of application for leave for his subordinates,
much more is there reason for him not to submit an application
for leave for his own absence reason why his Certificate of
Service for the month of October is not reliable.
On 21 October 2004 a Thursday, all schedule of hearing were
cancelled and [Judge Pacuribot] said that they were cancelled
the week before. Was the cancellation the week before due to
the fact that [Judge Pacuribot] received the notice of their
Masonic Conference scheduled on October 20 in Cagayan de
Oro City? It was [Judge Pacuribot] who informed Ms. Tan of that
Masonic Conference that evening of October 20. Ms. Tan could
not just have invented that idea of a Masonic Conference. That is
the reason why the cancellation of hearing on October 21 casts
doubt on [Judge Pacuribots] alibi.
Mere denial cannot prevail over the positive testimony of a
witness. A mere denial, like alibi, is a self-serving negative
evidence, which cannot be accorded greater evidentiary weight

than the declaration of credible witnesses who testify on

affirmative matters. As between a categorical testimony that
rings of truth on one hand, and a bare denial on the other, the
former is generally held to prevail.
[Judge Pacuribot] cites Ms. Tans merry behavior during the
Christmas Party and his Birthday Party in Cagayan de Oro City
as hardly the behavior of a rape victim or a victim or repeated
sexual harassments. Normally, such a victim is expected to
behave with animosity and grievance toward the offender.
Unfortunately for her, she cannot afford to display such animosity
and grievance unless it is at the cost of her job. If she cannot
defy his demands when he victimizes her, shouldnt her
economic realities prompt her to win her war with friendship?
[Judge Pacuribot] should be reminded that in sexual
harassments under Section 3 of RA No. 7877, an offense is
committed regardless of whether the demand, request or
requirement for submission is accepted by the subject of said
act.
Ms. Tans testimony was clear, frank and consistent. Her candid
and clear-cut account of how respondent judge had been
deceitful and intimidating in his dealings with her that evening
has inspired belief. And throughout her testimony, she
succeeded in revealing how [Judge Pacuribot] took full
advantage of his moral ascendancy over her as his underling,
destroying whatever resistance she could put up by belittling her,
outwitting her and insulting her to reduce her to submission.
There is no standard reaction of a victim in a rape incident. In
fact, not every victim of rape can be expected to act in conformity
with the expectations of anyone who has not been subjected to
the same danger at any time. The workings of a human mind
placed under emotional stress are unpredictable; people react
differently.
Investigator, thus, finds [Judge Pacuribot] guilty beyond
reasonable doubt of the charges of rape committed on October
20 and 21, 2004 in Cagayan de Oro City, and guilty of sexual
harassments committed in respondent judges chamber in RTC,
Branch 27, Hall of Justice, Gingoog City against Ms. Sherlita O.
Tan.
One can see in these two cases a common strategy used by
[Judge Pacuribot] in achieving his vile purposes. He used deceit
on Ms. Tan. He used deceit on Ms. Villafranca. He used
intimidation on Ms. Tan and he used it on Ms. Villafranca. He
makes use of a substantial blackmail against both.
In the case of People v. Fernandez, the Supreme Court had
occasion to instruct us on the effects of intimidation, thus:
Physical resistance need not be established in rape when
threats and intimidation are employed, and the victim submits
herself to her attackers because of fear. Besides, physical
resistance is not the sole test to determine whether a woman
involuntarily succumbed to the lust of an accused. Rape victims
show no uniform reaction. Some may offer strong resistance
while others may be too intimidated to offer any resistance at all.
The use of a weapon, by itself, is strongly suggestive of force or
at least intimidation, and threatening the victim with a gun is
sufficient to bring her into submission. Thus, the law does not
impose upon the private complainant the burden of proving
resistance.
[Judge Pacuribot] computed nine (9) months, twenty-one (21)
days as interval from the time Ms. Villafranca claimed she was
raped on 22 February 2005 to 13 December 2005 when she filed
the complaint. Ms. Tan also filed her administratively charge only
thirteen (13) months of being his superiors prey. Did delay cast
doubt on the truthfulness of their claim?
In the case of People v. Aguero, Jr., where there was a two (2)
years delay in the filing of the complaint for rape, the Supreme
Court said:

As to the alleged two-year delay in the filing of the complaint,

suffice it to say, that complainants failure to promptly report the
incident does not sufficiently detract from her credibility and
cannot be taken against her. It has been held that a rape victims
delay or hesitation in reporting the crime does not destroy the
truth of the complaint and is not an indication of deceit as it is
common for a rape victim to prefer silence for fear for her
aggressor and lack of courage to face the public stigma of
having been sexually abused.
In the case of People v. Espinosa, where the criminal complaint
was filed about one and a half years from commission of the
offense, the Supreme Court said:
x x x Delay in reavealing the commission of rape is not an
indication of a fabricated charge. Many victims of rape never
complain or file criminal charges against the rapist, for they
prefer to silently bear the ignominy and pain, rather than reveal
their shame to the world or risk the offenders making good on
his threats. This is understandable, considering the inbred
modesty of Filipinas and their aversion to the public disclosure of
matters affecting their honor.
Delay in the filing of the charges does not necessarily undermine
the credibility of witnesses.
The Supreme Court has deemed delay as justified when there is
fear of reprisal, social humiliation, familial considerations and
economic reasons. In the case of Ms. Tan, her tormentor is her
superior who constantly dangles his influence and power over
her and her job. As regards Ms. Villafranca, the threat to destroy
her, her family and her familys good name was ever present;
thus, haunting her emotionally and psychologically. The delay in
reporting the rape cases committed by [Judge Pacuribot] has
been justified.
On the repeated sexual harassments and violence committed
separately on the persons of Ms. Tan and Ms. Villafranca within
the chamber of [Judge Pacuribot], the latter deems them
improbable because of the situation in his chamber. He points
out that outside his chamber is the staff room and there is a
glassed window that divides them. Ms. Villafranca cited the
incident on 13 October 2005 where [Judge Pacuribot] did
lascivious acts on her inside the chamber in the presence of
Placido Abellana, the court aide, and the latters just turned his
back and pretended to see nothing.
In the case of People v. Lavador, the rapist-appellant argued that
rape was impossible due to the presence of the victims son on
her side. The Supreme Court said:
Nor can we accept the argument that the rape was improbable
due to the presence of Nonilunas sons by her side. This Court
has repeatedly declared that lust is no respecter of time and
place and rape can be committed even in places where people
congregate: in parks, along the roadside, within the school
premises, inside the house where there are several occupants
and even in the same room where other members of the family
are sleeping. x x x.

"The investigating judge correctly disregarded the respondents

imputation of ill motive on the part of complainant. No married
woman would cry sexual assault, subject herself and her
family to public scrutiny and humiliation, and strain her
marriage in order to perpetuate a falsehood.
Indeed, it is against human nature for a married woman to
fabricate a story that would not only expose herself to a lifetime
of dishonor, but destry her family as well. Besides, there is no
sufficient evidence of any ill-motive imputable to Mesdames Tan
and Villafranca to narrate anything other than their respective
desire to tell the truth and seek redress for the wrong inflicted on
each of them. For the kind of reputation [Judge Pacuribot] has in
the Hall of Justice and by his behavior where he projects himself
as full of influence and power, these two women will be the last
to even cross the path of respondent judge without just cause.
Thus, the presumption applies that, one will not act and
prevaricate "and cause damnation to one who brought him no
harm or injury.
[Judge Pacuribots] theory that all these charges are part of the
sinister plan to oust [Judge Pacuribot] from office at the
instigation of Ms. Waniwan is far fetched.
On 8 December 205, or earlier, when Ms. Tan filed her
complaint, there was no Mr. Waniwan to speak of. Mr. Waniwan
only materialized in February 2006 when she filed the same
charges against [Judge Pacuribot] before the City Prosecutor of
Gingoog City. Media men at the slightest clue of a "scoop" hound
without let up those who could be sources of information. When
the media men became nosey, it was already in February 2006
when Ms. Tan filed the case in the Prosecutors Office. By then,
the filing of the administrative charge of Ms. Tan and Ms.
Villafranca was fait accompli. In the case of Ms. Villafranca, the
Waniwan theory is patently absurd. Two media men were eager
in February 2006 to take hold of Ms. Villafrancas affidavit but
she refused them staunchly. It is incredible that two (2) married
women would prevaricate against a person who has power and
control over their jobs at the mere urging of Mr. Waniwan is
irrelevant. In People v. Mortales, the Supreme Court, speaking
through now Chief Justice Renato Puno, appositely said:
No married woman would subject herself to public scrutiny and
humiliation to foist a false charge of rape. Neither would she take
the risk of being alienated from her husband and her family. The
fact that the victim resolved to face the ordeal and relate in
public what many similarly situated would have kept secret
evinces that she did so to obtain justice. Her willingness and
courage to face the authorities as well as to submit to medical
examination are mute but eloquent confirmation of her sincere
resolve.
Finally, it may be true there are minor and trivial discrepancies in
Ms. Tans testimony, but they neither impair the integrity of the
victims evidence as a whole nor reflect negatively on the
witness honesty. Such inconsistencies, which might have been
caused by the natural fickleness of memory, even tend to
strengthen, rather than weaken the credibility of the witness, for
they shake off the suspicion of a rehearsed testimony.

[Judge Pacuribots] defense of "improbability" cannot, therefore,

be accepted.

In sum, [Judge Pacuribot] should be made administratively liable

for the charges against him in A.M. Nos. RTJ-06-1982 and RTJ06-1983.

[Judge Pacuribot] declares that the charges against him are

complainants tools of revenge against him. He cites his Order in
People v. Anude and his letter reporting Ms. Villafrancas
negligence as reasons from Ms. Villafrancas anger and
resentment. Against Ms. Tan, he cites his warning against her
inefficiency as stenographer, her moonlighting in her internet
cafhis refusal to grant her a loan of P200,000.00 or being her
guarantor.

Blacks Law Dictionary defines integrity to mean "soundness or

moral principle and character." It is said to be synonymous with
"probity," "honesty," and "uprightness." The evidence adduced
indubitably show that [Judge Pacuribot] lacks the honesty in
dealing with his two subordinates herein. Not only did he fail to
live up to the high moral standard expected of a member of the
Judiciary but he has transgressed the norms of morality
expected of every person.

In the case of Simbajon v. Esteban, the Supreme Court in

believing the testimony of the complainant saying:

[Judge Pacuribots] offenses in raping his victims and sexually

harassing them were committed with aggravation. He knew they
were married but instead of helping strengthen or protect their
marriage, he tried his best to destroy their marital bonds.

Indeed, [Judge Pacuribots] reprehensible acts amount to gross

misconduct, and immorality the depravity of which is quite rare.
They undoubtedly violated the Code of Judicial Conduct. They
are classified as severe charges under Section 8, Rule 140 of
the Rules of Court.

be proven beyond reasonable doubt. To borrow

from Reyes v. Mangino:
Inasmuch as what is imputed against
respondent Judge connotes a misconduct
so grave that, if proven, would entail
dismissal from the bench, the quantum of
proof required should be more than
substantial.

Under Section 22 of the same Rules, any of the following

sanctions may be imposed if the respondent is guilty of a serious
charge:
1. Dismissal from the service, forfeiture of all or part of the
benefits as the Court may determine, and disqualification from
reinstatement or appointment to any public office, including
government owned or controlled corporations. Provided,
however, That the forfeiture of benefits shall in no case include
accrued leave credits;
2. Suspension from office without salary and other benefits for
more that three (3) but not exceeding six (6) months; or
3. A fine of more than P20,000.00 but not exceeding P40,000.00.
In Simbajon v. Esteban, the respondent Judge Esteban, for his
sexual advances on one of his female subordinates which
consisted of "grabbing her, kissing her all over her face,
embracing her and touching her right breast" was preventively
suspended for the duration of the investigation until further notice
AND was subsequently dismissed from service with forfeiture of
all retirement benefits except leave credits and with prejudice to
reemployment in any branch or instrumentality of the
government, including government owned or controlled
corporations.
Herein [Judge Pacuribots] conduct is far worse that those of
Judge Esteban. [Judge Pacuribots] acts indubitably went far
beyond the bounds of decency and morality. He raped and
repeatedly sexually assaulted, not only one, but two female,
married subordinates. He did not only violate his victims
womanhood and their dignities as persons but he aimed to
weaken, then eventually destroy two families. By such act,
[Judge Pacuribot] disgraced his noble office, as well as the
judiciary, in the eyes of the public. He has shown himself
unworthy of the judicial robe.
When the fading sobs of two tearful women finally died down
and their copious tears dried in the numerous hankies that
absorbed them what emerges is a figure that unmistakably
exudes the abominable torpedo of marital bonds, a practicing
deceiver and a merciless pervert whose face is unrecognizable
as he is hooded with a judicial robe that helps conceal his dark
side. His family, wife and children may have all been innocently
kept away from knowing this dark side and to spare them from
the afflictive and crushing humiliation of having a husband and
father of such a character, may the foregoing description be a
"for your eyes only" to the members of the highest court and the
court administrator.
Thus, Investigating Justice Dy-Liacco Flores recommended:
This finding is made with full awareness of the recent Supreme
Court ruling on quantum of evidence required in the cases at
bench. In the 7 August 2007 case of Alquizar v. Carpio, et al., the
Supreme Court pronounced that:
x x x. In administrative or disciplinary proceedings, the
burden of proving the allegations in the complaint rests
on the complainant. While substantial evidence would
ordinarily suffice to support a finding of guilt, the rule is
a bit different where the proceedings involve judges
charged with grave offense. Administrative
proceedings against judges are, by nature, highly
penal in character and are to be governed by the rules
applicable to criminal cases. The quantum of proof
required to support the administrative charges or to
establish the ground/s for the removal of a judicial
officer should thus be more than substantial; they must

It is doctrinal that the requirement of proof beyond reasonable

doubt in criminal law does not mean such a degree of proof as to
exclude the possibility of error and produce absolute certainty.
Only moral certainty is required or that degree of proof which
produces conviction in an unprejudiced mind. The evidence
adduced here overwhelmingly established moral certainty that
respondent judge raped and sexually harassed complainant
Mesdames Tan and Villafranca on separate and repeated
occasions.
xxxx
Having found [Judge Pacuribot] guilty beyond reasonable doubt
of the offenses of rape and repeated sexual harassments, the
penalty of dismissal from service with forfeiture of retirement
benefits except accrued leave credits is hereby recommended.11
We agree in the recommendation of the Investigating Justice.
We have reviewed the record of this case and are thereby satisfied that the
findings and recommendations of the Investigating Justice are in truth
adequately supported by the evidence and are in accord with applicable
legal principles. We therefore resolve to adopt such findings and
recommendations relative to the administrative liability of the respondent
judge for grave misconduct and immorality.
The integrity of the Judiciary rests not only upon the fact that it is able to
administer justice, but also upon the perception and confidence of the
community that the people who run the system have administered justice.
At times, the strict manner by which we apply the law may, in fact, do
justice but may not necessarily create confidence among the people that
justice, indeed, has been served. Hence, in order to create such
confidence, the people who run the judiciary, particularly judges and
justices, must not only be proficient in both the substantive and procedural
aspects of the law, but more importantly, they must possess the highest
integrity, probity, and unquestionable moral uprightness, both in their public
and in their private lives. Only then can the people be reassured that the
wheels of justice in this country run with fairness and equity, thus creating
confidence in the judicial system.
With the avowed objective of promoting confidence in the Judiciary, the
Code of Judicial Conduct has the following provisions:
Canon I
Rule 1.01: A Judge should be the embodiment of competence,
integrity and independence.
Canon II
Rule 2.00: A Judge should avoid impropriety and the appearance
of impropriety in all activities.
Rule 2.01: A judge should so behave at all times as to promote
public confidence in the integrity and impartiality of the judiciary.
We have repeatedly reminded members of the Judiciary to so conduct
themselves as to be beyond reproach and suspicion, and to be free from
any appearance of impropriety in their personal behavior, not only in the
discharge of their official duties but also in their everyday lives. For no
position exacts a greater demand on the moral righteousness and
uprightness of an individual than a seat in the Judiciary. Judges are
mandated to maintain good moral character and are at all times expected
to observe irreproachable behavior so as not to outrage public decency.

We have adhered to and set forth the exacting standards of morality and
decency, which every member of the judiciary must observe.12 A magistrate
is judged not only by his official acts but also by his private morals, to the
extent that such private morals are externalized.13 He should not only
possess proficiency in law but should likewise possess moral integrity for
the people look up to him as a virtuous and upright man.
We explained the rationale for requiring judges to possess impeccable
moral integrity, thus:
The personal and official actuations of every member of the
Bench must be beyond reproach and above suspicion. The faith
and confidence of the public in the administration of justice
cannot be maintained if a judge who dispenses it is not equipped
with the cardinal judicial virtue of moral integrity, and if he
obtusely continues to commit an affront to public decency. In
fact, moral integrity is more than a virtue; it is a necessity in the
judiciary.14
We also stressed in Castillo v. Calanog, Jr.15 that:
The code of Judicial Ethics mandates that the conduct of a judge
must be free of [even] a whiff of impropriety not only with respect
to his performance of his judicial duties, but also to his behavior
outside his sala and as a private individual. There is no
dichotomy of morality: a public official is also judged by his
private morals. The Code dictates that a judge, in order to
promote public confidence in the integrity and impartiality of the
judiciary, must behave with propriety at all times. As we have
very recently explained, a judges official life can not simply be
detached or separated from his personal experience. Thus:
Being the subject of constant public scrutiny, a judge
should freely and willingly accept restrictions on
conduct that might be viewed as burdensome by the
ordinary citizen.
A judge should personify integrity and exemplify
honest public service. The personal behavior of a
judge, both in the performance of official duties and in
private life should be above suspicion."
Judge Pacuribot miserably failed to measure up to these exacting
standards. He behaved in a manner unbecoming a judge and model of
moral uprightness. He betrayed the people's high expectations and
diminished the esteem in which they hold the Judiciary in general.
It is well settled that in administrative proceedings, the complainant has the
burden of proving by substantial evidence the allegations in his complaint.
Substantial evidence is that amount of relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.16 In the cases at
bar, the complainants Ms. Tan and Ms. Villafranca were able to adequately
substantiate their allegations.
We find totally unacceptable the temerity of Judge Pacuribot in subjecting
the complainants, both his subordinates, to his unwelcome sexual
advances and acts of lasciviousness. Over long periods of time, he
persistently solicited sexual favors from Ms.Tan and Ms. Villafranca. When
they refused, he made their working conditions so unbearable that Ms. Tan
was eventually forced to transfer to another office and Ms. Villafranca to
seek employment abroad. Certainly, no judge has a right to solicit sexual
favors from any court employee, even from a woman of loose
morals.17 Judge Pacuribots conduct indubitably bears the marks of
impropriety and immorality. Not only do his actions fall short of the exacting
standards for members of the judiciary; they stand no chance of satisfying
the standards of decency even of society at large. His severely abusive
and outrageous acts, which are an affront to women, unmistakably
constitute sexual harassment because they necessarily "x x x result in an
intimidating, hostile, or offensive environment for the employee[s]."18
We need not detail again all the lewd and lustful acts committed by Judge
Pacuribot in order to conclude that he is indeed unworthy to remain in
office. The narration of the Investigating Justice was sufficiently thorough
and complete. The audacity under which the sexual violation of the
complainants were committed and the seeming impunity with which they
were perpetrated by Judge Pacuribot shock our sense of morality. All roads

lead us to the conclusion that Judge Pacuribot has failed to behave in a

manner that will promote confidence in the Judiciary. His actuations, if
condoned, would damage the integrity of the Judiciary, fomenting distrust
in the system. Hence, his acts deserve no less than the severest form of
disciplinary sanction -- dismissal from the service.
On his part, Judge Pacuribot put up the defense of denial, attributing ill
feelings and bad motives to Ms. Tan and Ms. Villafranca.
Already beyond cavil is the evidentiary rule that mere denial does not
overturn the relative weight and probative value of an affirmative assertion.
Denial is inherently a weak defense. To be believed, it must be buttressed
by strong evidence of non-culpability; otherwise, such denial is purely selfserving and is with no evidentiary value. Like the defense of alibi, denial
crumbles in the light of positive declarations.19 Denial cannot prevail over
the positive identification of the accused by the witnesses who had no ill
motive to testify falsely. Moreover, in the case at bar, there is utter lack of
basis to sustain the purported ill motives attributed by Judge Pacuribot to
the complainants. The Investigating Justice correctly disregarded Judge
Pacuribots imputation. No married woman would cry sexual assault,
subject herself and her family to public scrutiny and humiliation, and strain
her marriage in order to perpetrate a falsehood.20 The only plausible and
satisfactory explanation for us is that the charges against respondent are
true.
Judge Pacuribot and his witnesses failed to overcome the evidence
presented by the complainants.
Let it be remembered that respondent has moral ascendancy and authority
over complainants, who are mere employees of the court of which he is an
officer. His actuations are aggravated by the fact that complainants are his
subordinates over whom he exercises control and supervision, he being
the executive judge. He took advantage of his position and power in order
to carry out his lustful and lascivious desires. Instead of acting in loco
parentis over his subordinate employees, he was even the one who preyed
on them, taking advantage of his superior position.21
In sum, we concur with the Investigating Justice in holding that
complainants were able to muster the requisite quantum of evidence to
prove their charges against Judge Pacuribot. By having sexual intercourse
with Ms Tan and Ms. Villafranca, his subordinates, respondent violated the
trust reposed on his high office and completely failed to live up to the noble
ideals and strict standards of morality required of members of the Judiciary.
Having tarnished the image of the Judiciary, we hold, without any
hesitation, that Judge Pacuribot be meted out the severest form of
disciplinary sanction - dismissal from the service for the charges of sexual
harassment against him.
We, however, find the complaints of the Anonymous Letter Writers without
merit. Beyond the bare allegations that Judge Pacuribot maintained an
illicit relationship with a certain Sheryl Gamulo and fathered two children
with her, there is nothing in the records that would indicate that he, indeed,
committed the crime charged. We have stressed time and again that
allegations must be proven by sufficient evidence. Mere allegation is not
evidence and is not equivalent to proof.22 The letter dated 4 April 2005 from
"concerned citizens" asking for the relief of Judge Pacuribot on the grounds
that he has been terrorizing and harassing most of the employees has
been rendered moot by the disposition of these cases.
All those who don the judicial robe must always instill in their minds the
exhortation that "[T]he administration of justice is a mission. Judges, from
the lowest to the highest levels are the gems in the vast government
bureaucracy, beacon lights looked upon as the embodiments of all that is
right, just and proper, the ultimate weapons against injustice and
oppression. The Judiciary hemorrhages every time a Judge himself
transgresses the very law he is sworn to uphold and defend at all costs.
This should not come to pass."23
WHEREFORE, Judge Rexel M. Pacuribot is hereby DISMISSED from the
service for gross misconduct and immorality prejudicial to the best interests
of the service, with forfeiture of all retirement benefits and with prejudice to
re-employment in any branch of the government, including governmentowned and controlled corporations, except the money value of accrued
earned leave credits. Respondent judge is hereby ORDERED to cease
and desist immediately from rendering any order or decision; or from

continuing any proceedings, in any case whatsoever, effective upon receipt

of a copy of this Decision. Lastly, respondent judge
is REQUIRED to SHOW CAUSE why he should not be disbarred as a
member of the Philippine Bar.
Let a copy of this Decision be furnished the Department of Justice for
appropriate action.
This Decision is immediately executory. The Office of the Court
Administrator shall see to it that a copy of this resolution be immediately
served on respondent.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur.
***************************************
G.R. No. 122485 February 1, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LARRY MAHINAY Y AMPARADO, accused-appellant.

PER CURIAM:
A violation of the dignity, purity and privacy of a child who is still innocent
and unexposed to the ways of worldly pleasures is a harrowing experience
that destroys not only her future but of the youth population as well, who in
the teachings of our national hero, are considered the hope of the
fatherland. Once again, the Court is confronted by another tragic
desecration of human dignity, committed no less upon a child, who at the
salad age of a few days past 12 years, has yet to knock on the portals of
womanhood, and met her untimely death as a result of the "intrinsically evil
act" of non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity is
neither an excuse nor does there exist any other rational justification other
than lust. But those who lust ought not to last.
The Court quotes with approval from the People's Brief, the facts narrating
the horrible experience and the tragic demise of a young and innocent
child in the bloody hands of appellant, as such facts are ably supported by
evidence on record: 1*
Appellant Larry Mahinay started working as houseboy with Maria
Isip on November 20, 1953. His task was to take care of Isip's
house which was under construction adjacent to her old
residence situated inside a compound at No. 4165 Dian Street,
Gen. T. de Leon, Valenzuela, Metro Manila. But he stayed and
slept in an apartment also owned by Isip, located 10 meters
away from the unfinished house (TSN, September 6, 1995, pp.
5-10).
The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor
in Dian Street. She used to pass by Isip's house on her way to
school and play inside the compound yard, catching maya birds
together with other children. While they were playing, appellant
was always around washing his clothes. Inside the compound
yard was a septic tank (TSN, August 22, 1995, pp. 29-31;
September 6, 1995, pp.17; 20-22).
On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio
Rivera in a drinking spree. Around 10 o'clock in the morning,
appellant, who was already drunk, left Gregorio Rivera and

asked permission from Isip to go out with his friends (TSN,

September 6, 1995; pp. 9-11).
Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a
store fronting the compound, saw Ma.Victoria on that same day
three to four times catching birds inside Isip's unfinished house
around 4 o'clock in the afternoon. The unfinished house was
about 8 meters away from Rivera's store (TSN, September 18,
1995, pp. 9-11).
On the other hand, Sgt. Roberto Suni, also a resident of Dian
Street, went to his in-law's house between 6 to 7 o'clock p.m. to
call his office regarding changes on the trip of President Fidel V.
Ramos. The house of his in-laws was near the house of Isip. On
his way to his in-law's house, Sgt. Suni met appellant along Dian
Street. That same evening, between 8 to 9 o'clock p.m., he saw
Ma. Victoria standing in front of the gate of the unfinished house
(TSN, September 27, 1995, pp. 3-7; 14-17).
Later, at 9 o'clock in the evening, appellant showed up at
Norgina Rivera's store to buy lugaw. Norgina Rivera informed
appellant that there was none left of it. She notice that appellant
appeared to be uneasy and in deep thought. His hair was
disarrayed; he was drunk and was walking in a dazed manner.
She asked why he looked so worried but he did not answer.
Then he left and walked back to the compound (TSN,
September 18, 1995, pp. 4-8; 12-14).
Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria,
was missing. She last saw her daughter wearing a pair of white
shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty
white panty, white lady sando and blue rubber slippers (TSN,
August 23, 1995, pp. 22, 33).
Isip testified that appellant failed to show up for supper that
night. On the following day, June 26, 1995, at 2 o'clock in the
morning, appellant boarded a passenger jeepney driven by
Fernando Trinidad at the talipapa. Appellant alighted at the top of
the bridge of the North Expressway and had thereafter
disappeared (TSN, September 20, 1995, pp. 4-9; September 27,
l995; pp. 14-17).
That same morning, around 7:30, a certain Boy found the dead
body of Ma. Victoria inside the septic tank. Boy immediately
reported what he saw to the victim's parents, Eduardo and Elvira
Chan (TSN, September 6, 1995, p. 13).
With the help of the Valenzuela Police, the lifeless body of Ma.
Victoria was retrieved from the septic tank. She was wearing a
printed blouse without underwear. Her face bore bruises. Results
of the autopsy revealed the following findings:
Cyanosis, lips and nailbeds,
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,
Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the
left eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm.
neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0
cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left,
posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm.
subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0
cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm
elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm, forearms, left,
posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect,

0.8 x 0.9 cm. thighs; right antero-lateral aspect, upper 33rd , 12.0
x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0 cm. and left
antero-lower 3rd, 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 X
1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal
aspect 2.2 x 1.0 cm.

extra-judicial confession wherein he narrated in detail how he

raped and killed the victim. Also, when appellant came face to
face with the victim's mother and aunt, he confided to them that
he was not alone in raping and killing the victim. He pointed to
Zaldy and Boyet as his co-conspirators (TSN, August 14,1995,
pp. 13-21).

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.

Hemorrhage, interstitial, underneath nailmarks, neck,
subepicardial, subpleural petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.
Tracheo-bronchial tree, congested.
Other visceral organs, congested.
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH - Asphyxia by Manual Strangulation;
Traumatic Head Injury, Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at 4:00
and 8:00 o'clock position corresponding to the face of a watch
edges congested with blood clots. (TSN, August 18, 1995; p. 4;
Record, p. 126).
Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold
Alabastro were informed by Isip that her houseboy, appellant
Larry Mahinay, was missing. According to her, it was unlikely for
appellant to just disappear from the apartment since whenever
he would go out, he would normally return on the same day or
early morning of the following day (TSN, September 6, 1995, pp.
6-11-27).
SPO1 Nacis and SPO1 Alabastro were also informed that a
townmate of appellant was working in apancit factory at
Barangay Reparo, Caloocan City. They proceeded to said place.
The owner of the factory confirmed to them that appellant used
to work at the factory but she did not know his present
whereabouts. Appellant's townmate, on the other hand, informed
them that appellant could possibly be found on 8th Street, Grace
Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).
The policemen returned to the scene of the crime. At the second
floor of the house under construction, they retrieved from one of
the rooms a pair of dirty white short pants, a brown belt and a
yellow hair ribbon which was identified by Elvira Chan to belong
to her daughter, Ma. Victoria. They also found inside another
room a pair of blue slippers which Isip identified as that of
appellant. Also found in the yard, three armslength away from
the septic tank were an underwear, a leather wallet, a pair of
dirty long pants and a pliers positively identified by Isip as
appellant's belongings. These items were brought to the police
station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp.
3-8; August 23, 1995, pp. 21-25).
A police report was subsequently prepared including a referral
slip addressed to the office of the Valenzuela Prosecutor. The
next day, SPO1 Virgilio Villano retrieved the victim's underwear
from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).
After a series of follow-up operations, appellant was finally
arrested in Barangay Obario Matala, Ibaan, Batangas. He was
brought to the Valenzuela Police Station. On July 7, 1995, with
the assistance of Atty. Restituto Viernes, appellant executed an

Thus, on July 10, 1995, appellant was charged with rape with homicide in
an Information which reads: 2
That on or about the 26th day of June 1995 in Valenzuela, Metro
Manila and within the jurisdiction of this Honorable Court the
above-named accused, by means of force and intimidation
employed upon the person of MARIA VICTORIA CHAN y
CABALLERO, age 12 years old, did then and there wilfully,
unlawfully and feloniously lie with and have sexual intercourse
with said MARIA VICTORIA CHAN Y CABALLERO against her
will and without her consent; that on the occasion of said sexual
assault, the above-named accused, choke and strangle said
MARIA VICTORIA CHAN Y CABALLERO as a result of which,
said victim died.
Contrary to law. 3
to which he pleaded not guilty. After trial, the lower court rendered a
decision convicting appellant of the crime charged, sentenced him to suffer
the penalty of death and to pay a total of P73,000.00 to the victim's heirs.
The dispositive portion of the trial court's decision states:
WHEREFORE, finding accused Larry Mahinay y Amparado
guilty beyond reasonable doubt of the crime charged, he is
hereby sentenced to death by electricution (sic). He is likewise
condemned to indemnify the heirs of the victim, Ma. Victoria
Chan the amount of P50,000.00 and to pay the further sum of
P23,000.00 for the funeral, burial and wake of the victim.
Let the complete records of the case be immediately forwarded
to the Honorable Supreme Court for the automatic review in
accordance to Article 47 of the Revised Penal Code as amended
by Section 22 of Republic Act No. 7659.
SO ORDERED. 4
Upon automatic review by the Court en banc pursuant to Article 47 of the
Revised Penal Code. (RPC), as amended, 5 appellant insists that the
circumstantial evidence presented by the prosecution against him is
insufficient to prove his guilt beyond reasonable doubt. In his testimony
summarized by the trial court, appellant offered his version of what
transpired as follows:
(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen.
T. de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera
and a certain Totoy in a drinking spree. Gregorio Rivera is the
brother of Maria Isip, appellant's employer. After consuming
three cases of red horse beer, he was summoned by Isip to
clean the jeepney. He finished cleaning the jeepney at 12 o'clock
noon. Then he had lunch and took a bath. Later, he asked
permission from Isip to go out with his friends to see a movie. He
also asked for a cash advance of P300.00 (TSN, October 16,
1995, pp. 4-5-5).
At 2 o'clock in the afternoon, appellant, instead of going out with
his friend, opted to rejoin Gregorio Rivera and Totoy for another
drinking session. They consumed one case of red horse beer.
Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at
Gregorio Rivera's house. They went to Zaldy's house and bought
a bottle of gin. They finished drinking gin around 8 o'clock p.m.

After consuming the bottle of gin, they went out and bought
another bottle of gin from a nearby store. It was already 9 o'clock
in the evening. While they were at the store, appellant and Zaldy
met Boyet. After giving the bottle of gin to Zaldy and Boyet,
appellant left (TSN, October 16, 1995, pp. 6-7).
On his way home, appellant passed by Norgina Rivera's store to
buy lugaw. Norgina Rivera informed him that there was none left
of it. He left the store and proceeded to Isip's apartment. But
because it was already closed, he decided to sleep at the
second floor of Isip's unfinished house. Around 10 o'clock p.m.,
Zaldy and Boyet arrived carrying a cadaver. The two placed the
body inside the room where appellant was sleeping. As appellant
stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed
him to rape the dead body of the child or they would kill him. He,
however, refused to follow. Then, he was asked by Zaldy and
Boyet to assist them in bringing the dead body downstairs. He
obliged and helped dump the body into the septic tank.
Thereupon, Zaldy and Boyet warned him that should they ever
see him again, they would kill him. At 4 o'clock the following
morning, he left the compound and proceeded first to Navotas
and later to Batangas (TSN, October 16, 1995, pp. 4-13).
Subsequently, appellant was apprehended by the police officers
in Ibaan, Batangas. The police officers allegedly brought him to a
big house somewhere in Manila. There, appellant heard the
police officer's plan to salvage him if he would not admit that he
was the one who raped and killed the victim. Scared, he
executed an extra-judicial confession. He claimed that he was
assisted by Atty. Restituto Viernes only when he was forced to
sign the extra-judicial confession (TSN, October 16, 1995, pp. 911). 6
This being a death penalty case, the Court exercises the greatest
circumspection in the review thereof since "there can be no stake higher
and no penalty more severe . . . than the termination of a human life." 7 For
life, once taken is like virginity, which once defiled can never be restored. In
order therefore, that appellant's guilty mind be satisfied, the Court states
the reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellant's
proffered excuse are sufficient to sustain his conviction beyond reasonable
doubt, notwithstanding the absence of any direct evidence relative to the
commission of the crime for which he was prosecuted. Absence of direct
proof does not necessarily absolve him from any liability because under
the Rules on evidence 8 and pursuant to settled jurisprudence, 9 conviction
may be had on circumstantial evidence provided that the following
requisites concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are
proven; and
3. the combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support
a conviction, all circumstances must be consistent with each
other, consistent with the hypothesis that the accused is guilty,
and at the same time inconsistent with the hypothesis that he is
innocent and with every other rational hypothesis except that of
guilt. 10 Facts and circumstances consistent with guilt and
inconsistent with innocence, constitute evidence which, in weight
and probative force, may surpass even direct evidence in its
effect upon the court. 11

In the case at bench, the trial court gave credence to several circumstantial
evidence, which upon thorough review of the Court is more than enough to
prove appellant's guilt beyond the shadow of reasonable doubt. These
circumstantial evidence are as follows:
FIRST Prosecution witness Norgina Rivera, sister-in-law of
Maria Isip, owner of the unfinished big house where the crime
happened and the septic tank where the body of Maria Victoria
Chan was found in the morning of June 26, 1995 is located,
categorically testified that at about 9:00 in the evening on June
25, 1995, accused Larry Mahinay was in her store located in
front portion of the compound of her sister-in-law Maria Isip
where the unfinished big house is situated buying rice noodle
(lugaw). That she noticed the accused's hair was disarranged,
drunk and walking in sigsagging manner. That the accused
appeared uneasy and seems to be thinking deeply. That the
accused did not reply to her queries why he looked worried but
went inside the compound.
SECOND Prosecution witness Sgt. Roberto C. Suni,
categorically testified that on June 25, 1995 between 6:00 and
7:00 in the evening, on his way to his in-laws house, he met
accused Larry Mahinay walking on the road leading to his inlaw's residence which is about 50 to 75 meters away to the
unfinished big house of Maria Isip. That he also saw victim Maria
Victoria Chan standing at the gate of the unfinished big house of
Maria Isip between 8:00 and 9:00 in the same evening.
THIRD Prosecution witness Maria Isip, owner of the
unfinished big house where victim's body was found inside the
septic tank, testified that accused Larry Mahinay is her houseboy
since November 20, 1993. That in the morning of June 25, 1995,
a Sunday, Larry Mahinay asked permission from her to leave.
That after finishing some work she asked him to do accused
Larry Mahinay left. That it is customary on the part of Larry
Mahinay to return in the afternoon of the same day or sometimes
in the next morning. That accused Larry Mahinay did not return
until he was arrested in Batangas on July 7, 1995.
FOURTH Prosecution witness Fernando Trinidad, a
passenger jeepney driver plying the route Karuhatan-Ugong and
vice versa which include Dian St., Gen. T. de Leon, Valenzuela,
Metro Manila, pinpointed the accused Larry Mahinay as one of
the passengers who boarded his passenger jeepney on June 26,
1995 at 2:00 early morning and alighted on top of the overpass
of the North Expressway.
FIFTH Personal belongings of the victim was found in the
unfinished big house of Maria Isip where accused Larry Mahinay
slept on the night of the incident. This is a clear indication that
the victim was raped and killed in the said premises.
There is no showing that the testimonies of the prosecution
witnesses (sic) fabricated or there was any reason for them to
testify falsely against the accused. The absence of any evidence
as to the existence of improper motive sustain the conclusion
that no such improper motive exists and that the testimonies of
the witnesses, therefore, should be given full faith and credit.
(People vs. Retubado, 58585 January 20, 1988 162 SCRA 276,.
284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).
SIXTH Accused Larry Mahinay during the custodial
investigation and after having been informed of his constitutional
rights with the assistance of Atty. Restituto Viernes of the Public
Attorney's Office voluntarily gave his statement admitting the
commission of the crime. Said confession of accused Larry
Mahinay given with the assistance of Atty. Restituto Viernes is
believed to have been freely and voluntarily given. That accused

did not complain to the proper authorities of any maltreatment on

his person (People vs. delos Santos L-3398 May 29, 1984;150
SCRA 311). He did not even informed the Inquest Prosecutor
when he sworn to the truth of his statement on July 8, 1995 that
he was forced, coersed or was promised of reward or leniency.
That his confession abound with details know only to him. The
Court noted that a lawyer from the Public Attorneys Office Atty.
Restituto Viernes and as testified by said Atty. Viernes he
informed and explained to the accused his constitutional rights
and was present all throughout the giving of the testimony. That
he signed the statement given by the accused. Lawyer from the
Public Attorneys Office is expected to be watchful and vigilant to
notice any irregularity in the manner of the investigation and the
physical conditions of the accused. The post mortem findings
shows that the cause of death Asphyxia by manual strangulation;
Traumatic Head injury Contributory substantiate. Consistent with
the testimony of the accused that he pushed the victim and the
latter's head hit the table and the victim lost consciousness.
Pagpasok niya sa kuwarto, hinawakan ko siya sa
kamay tapos tinulak ko siya, tapos tumama iyong ulo
niya sa mesa. Ayon na, nakatulog siya tapos ni-rape
ko na siya.
There is no clear proof of maltreatment and/or tortured in giving
the statement. There were no medical certificate submitted by
the accused to sustain his claim that he was mauled by the
police officers.
There being no evidence presented to show that said
confession were obtained as a result of violence,
torture, maltreatment, intimidation, threat or promise of
reward or leniency nor that the investigating officer
could have been motivated to concoct facts narrated in
said affidavit; the confession of the accused is held to
be true, correct and freely or voluntarily given. (People
v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA
431, People v. Baluran 52 SCRA 71, People v. Pingol
35 SCRA 73.)
SEVENTH Accused Larry Mahinay testified in open Court that
he was notable to enter the apartment where he is sleeping
because it was already closed and he proceeded to the second
floor of the unfinished house and slept. He said while sleeping
Zaldy and Boyet arrived carrying the cadaver of the victim and
dumped it inside his room. That at the point of a knife, the two
ordered him to have sex with the dead body but he refused. That
the two asked him to assist them in dumping the dead body of
the victim in the septic tank downstairs. (Tsn pp. 8-9 October 16,
1995). This is unbelievable and unnatural. Accused Larry
Mahinay is staying in the apartment and not in the unfinished
house. That he slept in the said unfinished house only that night
of June 25, 1995 because the apartment where he was staying
was already closed. The Court is at a loss how would Zaldy and
Boyet knew he (Larry Mahinay) was in the second floor of the
unfinished house.
Furthermore, if the child is already dead when brought by Zaldy
and Boyet in the room at the second floor of the unfinished
house where accused Larry Mahinay was sleeping, why will
Boyet and Zaldy still brought the cadaver upstairs only to be
disposed/dump later in the septic tank located in the ground
floor. Boyet and Zaldy can easily disposed and dumped the body
in the septic tank by themselves.
It is likewise strange that the dead body of the child was taken to
the room where accused Larry Mahinay was sleeping only to
force the latter to have sex with the dead body of the child.

We have no test to the truth of human testimony

except it's conformity to aver knowledge observation
and experience. Whatever is repugnant to these
belongs to the miraculous. (People vs. Santos L-385
Nov. 16, 1979)
EIGHT If the accused did not commit the crime and was only
forced to disposed/dumpted the body of the victim in the septic
tank, he could have apprise Col. Maganto, a high ranking police
officer or the lady reporter who interviewed him. His failure and
omission to reveal the same is unnatural. An innocent person will
at once naturally and emphatically repel an accusation of crime
as a matter of preservation and self-defense and as a precaution
against prejudicing himself. A person's silence therefore,
particularly when it is persistent will justify an inference that he is
not innocent. (People vs. Pilones, L-32754-5 July 21, 1978).
NINTH The circumstance of flight of the accused strongly
indicate his consciousness of guilt. He left the crime scene on
the early morning after the incident and did not return until he
was arrested in Batangas on July 7, 1995. 12
Guided by the three principles in the review of rape cases, to
wit: 13
1). An accusation for rape can be made with facility; it
is difficult to prove but more difficult for the person
accused, though innocent, to disprove;
2). In view of the intrinsic nature of the crime of rape,
where only two persons are usually involved, the
testimony of the complainant is scrutinized with
extreme caution; and
3). The evidence of the prosecution stands or falls on
its own merits and cannot be allowed to draw strength
from the weakness of the defense.
the foregoing circumstantial evidence clearly establishes the felony of rape
with homicide defined and penalized under Section 335 of the Revised
Penal Code, as amended by Section 11, R.A. 7659, which provides:
When and how rape is committed - Rape is committed by having
carnal knowledge of a woman under any of the following
circumstances.
1.) By using force or intimidation;
2.) When the woman is deprived of reason or
otherwise unconscious: and
3.) When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with use of a deadly
weapon or by two or more persons, the penalty shall
be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has
become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty
shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is

committed the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:

A: The hymen was tall-thick with complete laceration at 4:00

o'clock and 8:00 o'clock position and that the edges were
congested.
Q: Now, what might have caused the laceration?

1.) When the victim is under eighteen (18) years of

age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law
spouse of the parent of the victim.

A: Under normal circumstances this might have (sic) caused by a

penetration of an organ.

2.) When the victim is under the custody of the police

or military authorities.

A: Adult male organ, sir.

3.) When the rape is committed in full view of the

husband, parent, any of the children or other relatives
within the third degree of consanguinity.
4.) When the victim is a religious or a child below
seven (7) years old.
5.) When the offender knows that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS)
disease.
6.) When committed by any member of the Armed
Forces of the Philippines or Philippine National Police
or any law enforcement agency
7.) When by reason or on the occasion of the rape, the
victim has suffered permanent physical mutilation. 14
At the time of the commission of this heinous act, rape was still considered
a crime against chastity, 15 although under the Anti-Rape Law of 1997 (R.A.
No. 8353), rape has since been re-classified as a crime against persons
under Articles 266-A and 266-B, and thus, may be prosecuted even without
a complaint filed by the offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual
congress with a woman by force and without consent. 16 (Under the new
law, rape may be committed even by a woman and the victim may even be
a
man.) 17 If the woman is under 12 years of age, proof of force and consent
becomes immaterial 18 not only because force is not an element of statutory
rape, 19 but the absence of a free consent is presumed when the woman is
below such age. Conviction will therefore lie, provided sexual intercourse is
proven. But if the woman is 12 years of age or over at the time she was
violated, as in this case, not only the first element of sexual intercourse
must be proven but also the other element that the perpetrator's evil acts
with the offended party was done through force, violence, intimidation or
threat needs to be established. Both elements are present in this case.
Based on the evidence on record, sexual intercourse with the victim was
adequately proven. This is shown from the testimony of the medical doctor
who conducted post mortem examination on the child's body:
Q: And after that what other parts or the victim did you examine?

Q: So, the laceration was caused by the penetration of a male

organ?

Q: You are very sure of that, Mr. Witness?

A: I am very sure of that. 20
Besides, as may be gleaned from his extrajudicial confession, appellant
himself admitted that he had sexual congress with the unconscious child.
15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung
malaking bahay na ginagawa, tapos dumating yung batang
babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay
tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa.
Ayon na, nakakatulog na siya tapos ni rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi mo?
S: Itong short na ito, (pointing to a dirty white short placed atop
this investigator's table. Subject evidence were part of evidences
recovered at the crime scene).
17. T: Bakit mo naman ni rape yung batang babae?
S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa
ko.
18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?
S: Red Horse po at saka GIN.
19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape
yung batang babae?.
S: Sa kuwarto ko po sa itaas.
20. T: Kailan ito at anong oras nangyari?
S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na
matandaan kung anong petsa, basta araw ng Linggo.
21. T: Saan lugar ito nangyari?

A: Then I examined the genitalia of the victim.

S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M.

Q: And what did you find out after you examined the genitalia of
the victim?

22. T: Alam mo ba ang pangalan ng batang babae na ni rape

mo?
S: Hindi ko po alam.

23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng

batang babae na iyong ni rape at pinatay ay si MA. VICTORIA
CHAN? Matatandaan mo ha ito?

S: Buhay pa po.

S: Oho.

S: Tinulak ko nga po siya sa terrace. 21

24. T: Nung ma-rape mo, nakaraos ka ba?

S: Naka-isa po.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng
"NAKARAOS", maaari bang ipaliwanag mo ito?
S: Nilabasan po ako ng tamod.
26 T: Nung nakaraos ka, nasaan parte na katawan ng batang
babae yung iyong ari?
S: Nakapasok po doon sa ari nung babae.
27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa
ang sumunod mong ginawa?
S: Natulak ko siya sa terrace.
28. T: Ano ang nangyari kay MA. VICTORIA matapos mong
itulak sa terrace?
S: Inilagay ko po sa poso-negra.
29. T: Saan makikita yung poso negra na sinasabi mo?

36. T: Papaano mo siya pinatay?

In proving sexual intercourse, it is not full or deep penetration of the

victim's vagina; rather the slightest penetration of the male organ into the
female sex organ is enough to consummate the sexual intercourse. 22 The
mere touching by the male's organ or instrument of sex of the labia of the
pudendum of the woman's private parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim, force
was indeed employed upon her to satisfy carnal lust. Moreover, from
appellant's own account, he pushed the victim causing the latter to hit her
head on the table and fell unconscious. It was at that instance that he
ravished her and satisfied his salacious and prurient desires. Considering
that the victim, at the time of her penile invasion, was unconscious, it could
safely be concluded that she had not given free and voluntary consent to
her defilement, whether before or during the sexual act.
Another thing that militates against appellant is his extra judicial
confession, which he, however, claims was executed in violation of his
constitutional right to counsel. But his contention is belied by the records
as well as the testimony of the lawyer who assisted, warned and explained
to him his constitutionally guaranteed pre-interrogatory and custodial
rights. As testified to by the assisting lawyer:
Q Will you please inform the Court what was that call about?
A We went to the station, police investigation together with
Atty. Froilan Zapanta and we were told by Police Officer
Alabastro that one Larry Mahinay would like to confess of the
crime of, I think, rape with homicide.

S: Doon din sa malaking bahay ni ATE MARIA.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa
poso-negra?
S: Doon ko lang po inilagay.

Q And upon reaching the investigation room of Valenzuela

PNP who were the other person present?
A Police Officer Alabastro, sir, Police Officer Nacis and other
investigator inside the investigation room and the parents of the
child who was allegedly raped.

31. T: Bakit nga doon mo inilagay siya?

S: Natatakot po ako.

Q And when you reached the investigation room do you

notice whether the accused already there?

32. T: Kanino ka natatakot?

A The accused was already there.

S: Natatakot po ako sa ginawa kong masama, natatakot ako sa

mga pulis.

Q Was he alone?
A He was alone, sir.

33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa

poso-negra?
S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na
siya sa poso-negra.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka
kasama?

Q So, when you were already infront of SPO1 Arnold

Alabastro and the other PNP Officers, what did they tell you, if
any?
A They told us together with Atty. Zapanta that this Larry
Mahinay would like to confess of the crime charged, sir.
Q By the way, who was that Atty. Zapanta?

S: Nag-iisa lang po ako.

A Our immediate Superior of the Public Attorney's Office.
35. T: Noong mga oras o sandaling gahasain mo si MA.
VICTORIA CHAN, buhay pa ba siya o patay na?

Q Was he also present at the start of the question and answer

period to the accused?

A No more, sir, he already went to our office. I was left alone.

A These were the same signatures signed in my presence, sir.

Q But he saw the accused, Larry Mahinay?

Q The signature of whom?

A Yes, sir.

A The signature of Larry Mahinay, sir.

Q Now, when Atty. Zapanta left at what time did the question
and answer period start?

ATTY. PRINCIPE:

A If I am not mistaken at around 4:05 of July 7, 1995 in the

afternoon, sir.

May we request, Your Honor, that the two (2) signatures

identified by my compaero be encircled and marked as Exhibit
A-1 and A-2.

Q And when this question and answer period started, what

was the first thing that you did as assisting lawyer to the
accused?

Q After you said that you apprised the accused of his

constitutional right explaining to him in Filipino, in local dialect,
what was the respond of the accused?

A First, I tried to explain to him his right, sir, under the

constitution.

A Larry Mahinay said that we will proceed with his statement.

Q What was the reply?

Q What are those right?

A He said "Opo".
A That he has the right to remain silent. That he has the right
of a counsel of his own choice and that if he has no counsel a
lawyer will be appointed to him and that he has the right to
refuse to answer any question that would incriminate him.

Q Did you ask him of his educational attainment?

Q Now, after enumerating these constitutional rights of

accused Larry Mahinay, do you recall whether this constitutional
right enumerated by you were reduced in writing?

Q In your presence?

A It was the Police Officer who asked him.

A In my presence, sir.
A Yes, sir, and it was also explained to him one by one by
Police Officer Alabastro.
Q I show to you this constitutional right which you said were
reduced into writing, will you be able to recognize the same?
A Yes, sir.

Q And when he said or when he replied "Opo" so the question

started?
A Yes, sir.
Q I noticed in this Exhibit A that there is also a waiver of
rights, were you present also when he signed this waiver?

Q Will you please go over this and tell the Court whether that
is the same document you mentioned?

A Yes, sir, I was also present.

A Yes, sir, these were the said rights reduced into writing.

Q Did you explain to him the meaning of this waiver?

ATTY. PRINCIPE:

A I had also explained to him, sir.

May we request, Your Honor, that this document be marked as

our Exhibit A. proper.

Q In Filipino?
A In Tagalog, sir.

Q Do you recall after reducing into writing this constitutional

right of the accused whether you asked him to sign to
acknowledge or to conform?

Q And there is also a signature after the waiver in Filipino over

the typewritten name Larry Mahinay, "Nagsasalaysay", whose
signature is that?

A I was the one who asked him, sir. It was Police Officer
Alabastro.

A This is also signed in my presence.

Q But you were present?

Q Why are you sure that this is his signature?

A I was then present when he signed.

A He signed in my presence, sir.

Q There is a signature in this constitutional right after the

enumeration, before and after there are two (2) signatures, will
you please recognize the two (2) signatures?

Q And below immediately are the two (2) signatures. The first
one is when Larry Mahinay subscribed and sworn to, there is a
signature here, do you recognize this signature?

A This is my signature, sir.

Q And immediately after your first signature is a Certification
that you have personally examined the accused Larry Mahinay
and testified that he voluntary executed the Extra Judicial
Confession, do you recognize the signature?
A This is also my signature, sir. 23 (emphasis supplied).
Appellant's defense that two other persons brought to him the dead body of
the victim and forced him to rape the cadaver is too unbelievable. In the
words of Vice-Chancellor Van Fleet of New Jersey, 24
Evidence to be believed 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. We have no test or the truth
of human testimony, except its conformity to our knowledge,
observation and experience. Whatever is repugnant to these
belongs to the miraculous, and is outside of judicial cognizance.
Ultimately, all the foregoing boils down to the issue of credibility of
witnesses. Settled is the rule that the findings of facts and assessment of
credibility of witnesses is a matter best left to the trial court because of its
unique position of having observed that elusive and incommunicable
evidence of the witnesses' deportment on the stand while testifying, which
opportunity is denied to the appellate courts. 25 In this case, the trial court's
findings, conclusions and evaluation of the testimony of witnesses is
received on appeal with the highest respect, 26 the same being supported
by substantial evidence on record. There was no showing that the court a
quo had overlooked or disregarded relevant facts and circumstances which
when considered would have affected the outcome of this case 27 or justify
a departure from the assessments and findings of the court below. The
absence of any improper or ill-motive on the part of the principal witnesses
for the prosecution all the more strengthens the conclusion that no such
motive exists. 28 Neither was any wrong motive attributed to the police
officers who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court is
correct. Under Article 335 of the Revised Penal Code (RPC), as amended
by R.A. 7659 "when by reason or on occasion of the rape, a homicide is
committed, the penalty shall be death." This special complex crime is
treated by law in the same degree as qualified rape - that is, when any of
the 7 (now 10) "attendant circumstances" enumerated in the law is alleged
and proven, in which instances, the penalty is death. In cases where any of
those circumstances is proven though not alleged, the penalty cannot be
death except if the circumstance proven can be properly appreciated as an
aggravating circumstance under Articles 14 and 15 of the RPC which will
affect the imposition of the proper penalty in accordance with Article 53 of
the RPC However, if any of those circumstances proven but not alleged
cannot be considered as an aggravating circumstance under Articles 14
and 15, the same cannot affect the imposition of the penalty because
Article 63 of the RPC in mentioning aggravating circumstances refers to
those defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10
circumstances is alleged in the information/complaint, it may be treated as
a qualifying circumstance. But if it is not so alleged, it may be considered
as an aggravating circumstance, in which case the only penalty is death subject to the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by
law for the crime of "rape with homicide", the court has no option but to
apply the same "regardless of any mitigating or aggravating circumstance
that may have attended the commission of the crime" 29 in accordance with
Article 63 of the RPC, as amended. 30 This case of rape with homicide
carries with it penalty of death which is mandatorily imposed by law within
the import of Article 47 of the RPC, as amended, which provides:

The death penalty shall be imposed in all cases in

which it must be imposed under existing
laws,except when the guilty person is below eighteen
(18) years of age at the time of the commission of the
crime or is more than seventy years of age or when
upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not
obtained for the imposition of the death penalty, in
which cases the penalty shall be reclusion perpetua.
(emphasis supplied).
In an apparent but futile attempt to escape the imposition of the death
penalty, appellant tried to alter his date of birth to show that he was only 17
years and a few months old at the time he committed the rape and thus,
covered by the proscription on the imposition of death if the guilty person is
below eighteen (18) years at the time of the commission of the
crime. 31 Again, the record rebuffs appellant on this point considering that
he was proven to be already more than 20 years of age when he did the
heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil
indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by present amended law, the civil indemnity
for the victim shall be not less than seventy-five thousand pesos
(P75,000.00). 32 In addition to such indemnity, she can also recover moral
damages pursuant to Article 2219 of the Civil Code 33 in such amount as
the court deems just, without the necessity for pleading or proof of the
basis thereof. 34 Civil indemnity is different from the award of moral and
exemplary damages. 35 The requirement of proof of mental and physical
suffering provided in Article 2217 of the Civil Code is dispensed with
because it is "recognized that the victim's injury is inherently concomitant
with and necessarily resulting from the odious crime of rape to warrant per
se the award of moral damages". 36 Thus, it was held that a conviction for
rape carries with it the award of moral damages to the victim without need
for pleading or proof of the basis thereof. 37
Exemplary damages can also be awarded if the commission of the crime
was attended by one or more aggravating circumstances pursuant to
Article 2230 of the Civil Code 38 after proof that the offended party is
entitled to moral, temperate and compensatory damages. 39 Under the
circumstances of this case, appellant is liable to the victim's heirs for the
amount of P75,000.00 as civil indemnity and P50,000.00 as moral
damages.
Lastly, considering the heavy penalty of death and in order to ensure that
the evidence against an accused were obtained through lawful means, the
Court, as guardian of the rights of the people lays down the procedure,
guidelines and duties which the arresting, detaining, inviting, or
investigating officer or his companions must do and observe at the time of
making an arrest and again at and during the time of the custodial
interrogation 40 in accordance with the Constitution, jurisprudence and
Republic Act No. 7438: 41 It is high-time to educate our law-enforcement
agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court must
update in the light of new legal developments:
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to
and understood by said person;
2. He must be warned that he has a right to remain silent and
that anystatement he makes may be used as evidence against
him;

3. He must be informed that he has the right to be assisted at all

times and have the presence of an independent and competent
lawyer, preferably of his own choice;

of this case be forthwith forwarded to the Office of the President for

possible exercise of the pardoning power.
SO ORDERED.

4. He must be informed that if he has no lawyer or cannot afford

the services of a lawyer, one will be provided for him; and that a
lawyer may also be engaged by any person in his behalf, or may
be appointed by the court upon petition of the person arrested or
one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must
be informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;
6. The person arrested must be informed that, at any time, he
has the right to communicate or confer by the most expedient
means - telephone, radio, letter or messenger - with his lawyer
(either retained or appointed), any member of his immediate
family, or any medical doctor, priest or minister chosen by him or
by any one from his immediate family or by his counsel, or be
visited by/confer with duly accredited national or international
non-government organization. It shall be the responsibility of the
officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said
rights provided it is made voluntarily, knowingly and intelligently
and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer,
he must be informed that it must be done in writing AND in the
presence of counsel, otherwise, he must be warned that the
waiver is void even if he insist on his waiver and chooses to
speak;
9. That the person arrested must be informed that he may
indicate in any manner at any time or stage of the process that
he does not wish to be questioned with warning that once he
makes such indication, the police may not interrogate him if the
same had not yet commenced, or the interrogation must ceased
if it has already begun;
10. The person arrested must be informed that his initial waiver
of his right to remain silent, the right to counsel or any of his
rights does not bar him from invoking it at any time during the
process, regardless of whether he may have answered some
questions or volunteered some statements;
11. He must also be informed that any statement or evidence, as
the case may be, obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.
Four members of the Court although maintaining their adherence to the
separate opinions expressed in People v. Echegaray 42 that R.A. No. 7659,
insofar as it prescribes the death penalty, is unconstitutional
nevertheless submit to the ruling of the Court, by a majority vote, that the
law is constitutional and that the death penalty should accordingly be
imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED except for
the award of civil indemnity for the heinous rape which is INCREASED to
P75,000.00, PLUS P50,000.00 moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article
83 of the Revised Penal Code, upon finality of this decision, let the records

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,

Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena
and Gonzaga-Reyes, JJ., concur.
***************************************
G.R. No. 182748

December 13, 2011

ARNEL COLINARES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all
that it takes; b) what distinguishes frustrated homicide from attempted
homicide; and c) when an accused who appeals may still apply for
probation on remand of the case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel
Colinares (Arnel) with frustrated homicide before the Regional Trial Court
(RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the
evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy
cigarettes at a nearby store. On their way, Jesus took a leak by the
roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind
and struck Rufino twice on the head with a huge stone, about 15 inches
in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he
saw Rufino lying by the roadside. Ananias tried to help but someone struck
him with something hard on the right temple, knocking him out. He later
learned that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he
happened to be smoking outside his house. He sought the help of a
barangay tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino
suffered two lacerated wounds on the forehead, along the hairline area.
The doctor testified that these injuries were serious and potentially fatal but
Rufino chose to go home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel
claimed self-defense. He testified that he was on his way home that
evening when he met Rufino, Jesus, and Ananias who were all quite drunk.
Arnel asked Rufino where he supposed the Mayor of Tigaon was but,
rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias
then boxed Arnel several times on the back. Rufino tried to stab Arnel but
missed. The latter picked up a stone and, defending himself, struck Rufino
on the head with it. When Ananias saw this, he charged towards Arnel and
tried to stab him with a gaff. Arnel was able to avoid the attack and hit
Ananias with the same stone. Arnel then fled and hid in his sisters house.
On September 4, 2000, he voluntarily surrendered at the Tigaon Municipal
Police Station.

Diomedes testified that he, Rufino, Jesus, and Ananias attended a prewedding party on the night of the incident. His three companions were all
drunk. On his way home, Diomedes saw the three engaged in heated
argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond
reasonable doubt of frustrated homicide and sentenced him to suffer
imprisonment from two years and four months of prision correccional, as
minimum, to six years and one day of prision mayor, as maximum. Since
the maximum probationable imprisonment under the law was only up to six
years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide
with the consequent reduction of the penalty imposed on him. The CA
entirely affirmed the RTC decision but deleted the award for lost income in
the absence of evidence to support it.3 Not satisfied, Arnel comes to this
Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and
the Solicitor General to submit their respective positions on whether or not,
assuming Arnel committed only the lesser crime of attempted homicide
with its imposable penalty of imprisonment of four months of arresto mayor,
as minimum, to two years and four months of prision correccional, as
maximum, he could still apply for probation upon remand of the case to the
trial court.
Both complied with Arnel taking the position that he should be entitled to
apply for probation in case the Court metes out a new penalty on him that
makes his offense probationable. The language and spirit of the probation
law warrants such a stand. The Solicitor General, on the other hand,
argues that under the Probation Law no application for probation can be
entertained once the accused has perfected his appeal from the judgment
of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck
Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel
is guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower
offense and a reduced probationable penalty, whether or not he
may still apply for probation on remand of the case to the trial
court.

reasonably necessary to prevent or repel the unlawful aggression; and (3)

that the person defending himself did not act with sufficient provocation.5
If the victim did not commit unlawful aggression against the accused, the
latter has nothing to prevent or repel and the other two requisites of selfdefense would have no basis for being appreciated. Unlawful aggression
contemplates an actual, sudden, and unexpected attack or an imminent
danger of such attack. A mere threatening or intimidating attitude is not
enough. The victim must attack the accused with actual physical force or
with a weapon.6
Here, the lower courts found that Arnel failed to prove the element of
unlawful aggression. He alone testified that Jesus and Ananias rained fist
blows on him and that Rufino and Ananias tried to stab him. No one
corroborated Arnels testimony that it was Rufino who started it. Arnels
only other witness, Diomedes, merely testified that he saw those involved
having a heated argument in the middle of the street. Arnel did not submit
any medical certificate to prove his point that he suffered injuries in the
hands of Rufino and his companions.7
In contrast, the three witnessesJesus, Paciano, and Ananiastestified
that Arnel was the aggressor. Although their versions were mottled with
inconsistencies, these do not detract from their core story. The witnesses
were one in what Arnel did and when and how he did it. Compared to
Arnels testimony, the prosecutions version is more believable and
consistent with reality, hence deserving credence.8
Two. But given that Arnel, the accused, was indeed the aggressor, would
he be liable for frustrated homicide when the wounds he inflicted on
Rufino, his victim, were not fatal and could not have resulted in death as in
fact it did not?
The main element of attempted or frustrated homicide is the accuseds
intent to take his victims life. The prosecution has to prove this clearly and
convincingly to exclude every possible doubt regarding homicidal
intent.9And the intent to kill is often inferred from, among other things, the
means the offender used and the nature, location, and number of wounds
he inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The blow was so
forceful that it knocked Rufino out. Considering the great size of his
weapon, the impact it produced, and the location of the wounds that Arnel
inflicted on his victim, the Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not
frustrated, homicide. In Palaganas v. People,11 we ruled that when the
accused intended to kill his victim, as shown by his use of a deadly
weapon and the wounds he inflicted, but the victim did not die because of
timely medical assistance, the crime is frustrated murder or frustrated
homicide. If the victims wounds are not fatal, the crime is only attempted
murder or attempted homicide.

The Courts Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and
that he merely acted in self-defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing
that he was legally justified in killing the victim or inflicting injury to him. The
accused must establish the elements of self-defense by clear and
convincing evidence. When successful, the otherwise felonious deed would
be excused, mainly predicated on the lack of criminal intent of the
accused.4
In homicide, whether consummated, frustrated, or attempted, self-defense
requires (1) that the person whom the offender killed or injured committed
unlawful aggression; (2) that the offender employed means that is

Thus, the prosecution must establish with certainty the nature, extent,
depth, and severity of the victims wounds. While Dr. Belleza testified that
"head injuries are always very serious,"12 he could not categorically say
that Rufinos wounds in this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds
actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent from becoming
fatal. But on that case the patient preferred to go home at that time.

Q: The findings also indicated in the medical certificate only refers to

the length of the wound not the depth of the wound?
A: When you say lacerated wound, the entire length of the layer of
scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is broken up
the label of the frontal lo[b]e, we always call it lacerated wound, but in
that kind of wound, we did not measure the depth.13
Indeed, Rufino had two lacerations on his forehead but there was no
indication that his skull incurred fracture or that he bled internally as a
result of the pounding of his head. The wounds were not so deep, they
merely required suturing, and were estimated to heal in seven or eight
days. Dr. Belleza further testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give
antibiotics and antit[e]tanus the problem the contusion that
occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the
wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them
would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on record to
support the prosecutions claim that Rufino would have died without timely
medical intervention. Thus, the Court finds Arnel liable only for attempted
homicide and entitled to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation,
he having appealed from the judgment of the RTC convicting him for
frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted
homicide and holds that the maximum of the penalty imposed on him
should be lowered to imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as
maximum. With this new penalty, it would be but fair to allow him the right
to apply for probation upon remand of the case to the RTC.

Some in the Court disagrees. They contend that probation is a mere

privilege granted by the state only to qualified convicted offenders. Section
4 of the probation law (PD 968) provides: "That no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction."15 Since Arnel appealed his conviction for
frustrated homicide, he should be deemed permanently disqualified from
applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not
that Arnel has the right to such privilege; he certainly does not have. What
he has is the right to apply for that privilege. The Court finds that his
maximum jail term should only be 2 years and 4 months. If the Court
allows him to apply for probation because of the lowered penalty, it is still
up to the trial judge to decide whether or not to grant him the privilege of
probation, taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals
"from the judgment of conviction" is disqualified from availing himself of the
benefits of probation. But, as it happens, two judgments of conviction have
been meted out to Arnel: one, a conviction for frustrated homicide by the
regional trial court, now set aside; and,two, a conviction for attempted
homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it will
apply the probation law on Arnel based on the trial courts annulled
judgment against him. He will not be entitled to probation because of the
severe penalty that such judgment imposed on him. More, the Supreme
Courts judgment of conviction for a lesser offense and a lighter penalty will
also have to bend over to the trial courts judgmenteven if this has been
found in error. And, worse, Arnel will now also be made to pay for the trial
courts erroneous judgment with the forfeiture of his right to apply for
probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to
apply for probation would dilute the ruling of this Court in Francisco v. Court
of Appeals16 that the probation law requires that an accused must not have
appealed his conviction before he can avail himself of probation. But there
is a huge difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the
accused guilty of grave oral defamation and sentenced him to a prison
term of one year and one day to one year and eight months of prision
correccional, a clearly probationable penalty. Probation was his to ask! Still,
he chose to appeal, seeking an acquittal, hence clearly waiving his right to
apply for probation. When the acquittal did not come, he wanted probation.
The Court would not of course let him. It served him right that he wanted to
save his cake and eat it too. He certainly could not have both appeal and
probation.
The Probation Law, said the Court in Francisco, requires that an accused
must not have appealed his conviction before he can avail himself of
probation. This requirement "outlaws the element of speculation on the part
of the accusedto wager on the result of his appealthat when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he now applies for
probation as an escape hatch thus rendering nugatory the appellate
courts affirmance of his conviction."17
Here, however, Arnel did not appeal from a judgment that would have
allowed him to apply for probation. He did not have a choice between
appeal and probation. He was not in a position to say, "By taking this
appeal, I choose not to apply for probation." The stiff penalty that the trial
court imposed on him denied him that choice. Thus, a ruling that would
allow Arnel to now seek probation under this Courts greatly diminished
penalty will not dilute the sound ruling in Francisco. It remains that those
who will appeal from judgments of conviction, when they have the option to
try for probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the
penalty imposed on him. He claimed that the evidence at best warranted
his conviction only for attempted, not frustrated, homicide, which crime
called for a probationable penalty. In a way, therefore, Arnel sought from
the beginning to bring down the penalty to the level where the law would
allow him to apply for probation.
In a real sense, the Courts finding that Arnel was guilty, not of frustrated
homicide, but only of attempted homicide, is an original conviction that for
the first time imposes on him a probationable penalty. Had the RTC done
him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months
maximum.lavvphil This would have afforded Arnel the right to apply for
probation.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of probation is
one of liberality towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory provisions.18 As Justice
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only
where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but to
achieve its beneficent purpose.19
One of those who dissent from this decision points out that allowing Arnel
to apply for probation after he appealed from the trial courts judgment of
conviction would not be consistent with the provision of Section 2 that the
probation law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel who appeals
from a judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years. How can the Court
expect him to feel penitent over a crime, which as the Court now finds, he
did not commit? He only committed attempted homicide with its maximum
penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation under the
reduced penalty, it would be sending him straight behind bars. It would be
robbing him of the chance to instead undergo reformation as a penitent
offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and
imposed on Arnel the correct penalty of two years and four months
maximum, he would have had the right to apply for probation. No one
could say with certainty that he would have availed himself of the right had
the RTC done right by him. The idea may not even have crossed his mind
precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny
Arnel the right to apply for probation when the new penalty that the Court
imposes on him is, unlike the one erroneously imposed by the trial court,
subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES
the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR
29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt
of attempted homicide, and SENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to two years and
four months of prision correccional, as maximum, and to pay Rufino P.
Buena the amount of P20,000.00 as moral damages, without prejudice to
petitioner applying for probation within 15 days from notice that the record
of the case has been remanded for execution to the Regional Trial Court of
San Jose, Camarines Sur, in Criminal Case T-2213.

SO ORDERED.
ROBERTO A. ABAD
Associate Justice
***************************************
G.R. No. 182239

March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of
alibi cannot prevail over the victims positive identification of the accused
as the perpetrator of the crime.1 For it to prosper, the court must be
convinced that there was physical impossibility on the part of the accused
to have been at the locus criminis at the time of the commission of the
crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction
has become final and executory only after his disqualification from availing
of the benefits of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with
Republic Act No. 9344, otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the
Juvenile Justice and Welfare Council under the Department of Justice,
Appropriating Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto
seeks before this Court the reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court
and docketed as Criminal Case No. 1679-13-141[1],6 appellant was
accused of the crime of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 oclock in the
evening more or less, at barangay xxx, municipality of xxx, province of xxx
and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto], with
lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of
minority, the victim being only five years old.7
On 15 July 2003, appellant entered a plea of not guilty.8 During pretrial,9 the defense admitted the existence of the following documents: (1)
birth certificate of AAA, showing that she was born on 3 December 1997;
(2) police blotter entry on the rape incident; and (3) medical certificate,
upon presentation of the original or upon identification thereof by the
physician.
Trial ensued with the prosecution and the defense presenting witnesses to
prove their respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki
[Julito]12 may be summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFFs
house is along the road. That of appellant lies at the back approximately 80
meters from FFF. To access the road, appellant has to pass by FFFs
house, the frequency of which the latter describes to be "every minute

[and] every hour." Also, appellant often visits FFF because they were close
friends. He bore no grudge against appellant prior to the incident. 13

4. Hematoma over the upper anterior chest wall, midclavicular

line

AAA likewise knows appellant well. She usually calls him kuya. She sees
him all the time playing at the basketball court near her house, fetching
water, and passing by her house on his way to the road. She and appellant
used to be friends until the incident.14

5. Abrasion over the posterior trunk, paravertebral area

At about past 6 oclock in the evening of 28 January 2003, FFF sent his
eight-year-old daughter CCC to the store of Rudy Hatague to buy
cigarettes. AAA followed CCC. When CCC returned without AAA, FFF was
not alarmed. He thought she was watching television at the house of her
aunt Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle
of Tanduay Rum.16 At the store, he saw appellant place AAA on his
lap.17 He was wearing sleeveless shirt and a pair of short pants.18 All of
them left the store at the same time.19 Julito proceeded to the house of Rita
to watch television, while appellant, who held the hand of AAA, went
towards the direction of the "lower area or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of
short pants21 when he held her hand while on the road near the
store.22 They walked towards the rice field near the house of spouses
Alejandro and Gloria Perocho [the Perochos].23 There he made her lie
down on harrowed ground, removed her panty and boxed her on the
chest.24 Already half-naked from waist down,25 he mounted her, and, while
her legs were pushed apart, pushed his penis into her vagina and made a
push and pull movement.26 She felt pain and cried.27Afterwards, appellant
left and proceeded to the Perochos.28 She, in turn, went straight home
crying.29

6. Genital and peri-anal area soiled with debris and whitish

mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 oclock and 9 oclock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to
another examination at the provincial hospital on the following day. Dr.
Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except
No. 6 and 7 there is no bleeding in this time of examination. (sic)59
Evidence for the Defense

FFF heard AAA crying and calling his name from downstairs.30 She was
without slippers.31 He found her face greasy.32 There was mud on her head
and blood was oozing from the back of her head.33 He checked for any
injury and found on her neck a contusion that was already turning
black.34 She had no underwear on and he saw white substance and mud
on her vagina.35 AAA told him that appellant brought her from the store36 to
the grassy area at the back of the house of the Perochos;37 that he threw
away her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos.39

Interposing the defense of alibi, appellant gave a different version of the

story. To corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt
Gloria took the witness stand to affirm that he was at the Perochos at the
time of the commission of the crime.60 Luzvilla even went further to state
that she actually saw Julito, not appellant, pick up AAA on the road.61 In
addition, Antonia Perocho [Antonia], sister-in-law of appellants aunt,
Gloria,62testified on the behavior of Julito after the rape incident was
revealed.63

True enough, FFF found appellant at the house of the Perochos.40 He

asked the appellant what he did to AAA.41Appellant replied that he was
asked to buy rum at the store and that AAA followed him.42 FFF went home
to check on his daughter,43 afterwhich, he went back to appellant, asked
again,44 and boxed him.45

Appellant claimed that he lives with his aunt, not with his parents whose
house stands at the back of FFFs house.64 He denied that there was a
need to pass by the house of FFF in order to access the road or to fetch
water.65 He, however, admitted that he occasionally worked for FFF,66 and
whenever he was asked to buy something from the store, AAA always
approached him.67

Meanwhile, at around 7:45 in the evening of even date, Julito was still
watching television at the house of Rita.46AAA and her mother MMM
arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked
what happened to her, to which she replied that appellant raped
her.49 Julito left and found appellant at the Perochos.50 Julito asked
appellant, "Bads, did you really rape the child, the daughter of [MMM]?" but
the latter ignored his question.51 Appellants aunt, Gloria, told appellant that
the policemen were coming to which the appellant responded, "Wait a
minute because I will wash the dirt of my elbow (sic) and my
knees."52 Julito did found the elbows and knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to
have the incident blottered.54 FFF also had AAA undergo a physical check
up at the municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural
Health Physician, issued a medical certificate56 dated 29 January 2003. It
reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area

At about 8 oclock in the morning of 28 January 2003, appellant went to the

Perochos to attend a birthday party. At 6:08 in the evening, while the
visitors, including appellant and his uncle Alejandro Perocho [Alejandro],
were gathered together in a drinking session, appellants uncle sent him to
the store to buy Tanduay Rum. Since the store is only about 20 meters
from the house, he was able to return after three (3) minutes. He was
certain of the time because he had a watch .68
Appellants aunt, Gloria, the lady of the house, confirmed that he was in her
house attending the birthday party; and that appellant went out between 6
and 7 in the evening to buy a bottle of Tanduay from the store. She recalled
that appellant was back around five (5) minutes later. She also observed
that appellants white shorts and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant
at the kitchen having a drink with his uncle Alejandro and the rest of the
visitors.71 She went out to relieve herself at the side of the tree beside the
road next to the house of the Perochos.72 From where she was, she saw
Julito, who was wearing black short pants and black T-shirt, carry
AAA.73 AAAs face was covered and she was wiggling.74 This did not alarm
her because she thought it was just a game.75 Meanwhile, appellant was
still in the kitchen when she returned.76 Around three (3) minutes later,
Luzvilla saw Julito, now in a white T-shirt,77 running towards the house of
Rita.78 AAA was slowly following behind.79 Luzvilla followed them.80 Just
outside the house, Julito embraced AAA and asked what the appellant did
to her.81 The child did not answer.82

Luzvilla also followed FFF to the Perochos. She witnessed the punching
incident and testified that appellant was twice boxed by FFF. According to
her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF
came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellants uncle Alejandro, a barangay
councilor, and another Civilian Voluntary Organization (CVO) member
admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 oclock in the evening, she was
watching the television along with other people at the house of Rita.
Around 7:10, Julito, who was wearing only a pair of black short pants
without a shirt on, entered the house drunk. He paced back and forth. After
10 minutes, AAA came in crying. Julito tightly embraced AAA and asked
her what happened. AAA did not answer. Upon Antonias advice, Julito
released her and went out of the house.84
Appellant further testified that at past 7 oclock in the evening, FFF arrived,
pointed a finger at him, brandished a bolo, and accused him of molesting
AAA. FFF left but returned at around 8 oclock in the evening. This time, he
boxed appellant and asked again why he molested his daughter.85

In the determination of the innocence or guilt of a person accused of rape,

we consider the three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove
but more difficult for the accused, though innocent, to disprove; (2) in view
of the intrinsic nature of the crime of rape in which only two persons are
usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall
on its own merits, and cannot be allowed to draw strength from the
weakness of the evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim
may be sufficient to convict the accused.98 More so, when the testimony is
supported by the medico-legal findings of the examining physician. 99
Further, the defense of alibi cannot prevail over the victims positive
identification of the perpetrator of the crime,100 except when it is established
that it was physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.101
I

On 26 March 2004, the Regional Trial Court rendered its decision,86 the
dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond
reasonable doubt of rape committed upon a 5-year old girl, the court
sentences him to death and orders him to pay [AAA] P75,000.000 as rape
indemnity and P50,000.00 as moral damages. With costs87
The defense moved to reopen trial for reception of newly discovered
evidence stating that appellant was apparently born on 1 March 1985 and
that he was only seventeen (17) years old when the crime was committed
on 28 January 2003.88 The trial court appreciated the evidence and
reduced the penalty from death to reclusion perpetua.89 Thus:

A man commits rape by having carnal knowledge of a child under twelve

(12) years of age even in the absence of any of the following
circumstances: (a) through force, threat or intimidation; (b) when the
offended party is deprived of reason or otherwise unconscious; or (c) by
means of fraudulent machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of
the acts culminating in the insertion of appellants organ into the vagina of
five-year-old AAA and the medical findings of the physicians sufficiently
proved such fact.
AAA testified:

WHEREFORE, the judgment of the court imposing the death penalty upon
the accused is amended in order to consider the privileged mitigating
circumstance of minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals
for its disposition in view of the ruling inPeople v. Mateo and the Internal
Rules of the Supreme Court allowing an intermediate review by the Court
of Appeals of cases where the penalty imposed is death, reclusion
perpetua, or life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the
trial court with the following MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from
six (6) years and one (1) day to twelve (12) years of prision mayor, as
minimum, to seventeen (17) and four (4) months of reclusion temporal, as
maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in
the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P25,000.00 as exemplary damages and to pay the costs.91
On 19 November 2007, the Court of Appeals gave due course to the
appellants Notice of Appeal.92 This Court required the parties to
simultaneously file their respective supplemental briefs.93 Both parties
manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94

PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty
and boxed you, what else did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your
legs positioned?
A They were apart.
Q Who pushed them apart?

Before the Court of Appeals, appellant argued that "THE COURT A QUO
GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF RAPE"95 by invoking the
principle that "if the inculpatory facts and circumstances are capable of two
or more reasonable explanations, one of which is consistent with the
innocence of the accused and the other with his guilt, then the evidence
does not pass the test of moral certainty and will not suffice to support a
conviction."96
Our Ruling
We sustain the judgment of conviction.

A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.

Q Where did he push his penis?

A To my vagina.
Q Was it painful?
A Yes.

xxx His and his witness attempt to throw the court off the track by imputing
the crime to someone else is xxx a vain exercise in view of the private
complainants positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito
Apiki, the supposed real culprit, asked him "What is this incident, Pare?",
thus corroborating the latters testimony that he confronted accused after
hearing of the incident from the child."115
On the other hand, we cannot agree with the appellant that the trial court
erred in finding his denial and alibi weak despite the presentation of
witnesses to corroborate his testimony. Glaring inconsistencies were all
over their respective testimonies that even destroyed the credibility of the
appellants very testimony.

Q What was painful?

A My vagina.

Appellant testified that it was his uncle Alejandro Perocho who sent him to
store to buy Tanduay; that he gave the bottle to his uncle; and that they
had already been drinking long before he bought Tanduay at the store.

Q Did you cry?

A Yes.103
The straightforward and consistent answers to the questions, which were
phrased and re-phrased in order to test that AAA well understood the
information elicited from her, said it all she had been raped. When a
woman, more so a minor, says so, she says in effect all that is essential to
show that rape was committed.104 Significantly, youth and immaturity are
normally badges of truth and honesty.105
Further, the medical findings and the testimony of Dr. Micabalo106 revealed
that the hymenal lacerations at 5 oclock and 9 oclock positions could have
been caused by the penetration of an object; that the redness of the
introitus could have been "the result of the repeated battering of the
object;" and that such object could have been an erect male organ.107
The credible testimony of AAA corroborated by the physicians finding of
penetration conclusively established the essential requisite of carnal
knowledge.108
II
The real identity of the assailant and the whereabouts of the appellant at
the time of the commission of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA,
and that appellant was elsewhere when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could
readily identify her assailant, especially when he is not a stranger to her,
considering that she could have a good look at him during the commission
of the crime.110 AAA had known appellant all her life. Moreover, appellant
and AAA even walked together from the road near the store to the situs
criminus111 that it would be impossible for the child not to recognize the
man who held her hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the
unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was
accused, whom she called "kuya" and who used to play basketball and
fetch water near their house, and who was wearing a sleeveless shirt and
shorts at the time he raped her, was convincing and persuasive. The
defense attempted to impute the crime to someone else one Julito Apiki,
but the child, on rebuttal, was steadfast and did not equivocate, asserting
that it was accused who is younger, and not Julito, who is older, who
molested her.112
In a long line of cases, this Court has consistently ruled that the
determination by the trial court of the credibility of the witnesses deserves
full weight and respect considering that it has "the opportunity to observe
the witnesses manner of testifying, their furtive glances, calmness, sighs
and the scant or full realization of their oath,"113 unless it is shown that
material facts and circumstances have been "ignored, overlooked,
misconstrued, or misinterpreted."114
Further, as correctly observed by the trial court:

This was contradicted by the testimony of his aunt Gloria, wife of his uncle
Alejandro. On cross-examination, she revealed that her husband was not
around before, during, and after the rape incident because he was then at
work.116 He arrived from work only after FFF came to their house for the
second time and boxed appellant.117 It was actually the fish vendor, not her
husband, who asked appellant to buy Tanduay.118 Further, the drinking
session started only after the appellants errand to the store.119
Neither was the testimony of Luzvilla credible enough to deserve
consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking
session. This is contrary to Glorias statement that her husband was at
work.
Luzvillas testimony is likewise inconsistent with that of sur-rebuttal witness
Antonia Perocho. Antonia recalled that Julito arrived without a shirt on. This
belied Luzvillas claim that Julito wore a white shirt on his way to the house
of Rita. In addition, while both the prosecution, as testified to by AAA and
Julito, and the defense, as testified to by Gloria, were consistent in saying
that appellant wore a sleeveless shirt, Luzvillas recollection differ in that
Julito wore a T-shirt (colored black and later changed to white), and, thus, a
short-sleeved shirt.
Also, contrary to Luzvillas story that she saw AAA walking towards Ritas
house three (3) minutes after she returned to the Perochos at 6:38 in the
evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In
this respect, we find the trial courts appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home,
crying, to tell her father that Hermie had raped her. She did not first drop
into the house of Lita Lingkay to cry among strangers who were watching
TV, as Luzvilla Balucan would have the court believe. When the child was
seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it
was only later, after she had been brought there by her mother Brenda so
that Lita Lingkay could take a look at her just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is
credible, the same having been offered preferably by disinterested
witnesses. The defense failed thuswise. Its witnesses cannot qualify as
such, "they being related or were one way or another linked to each
other."121
Even assuming for the sake of argument that we consider the
corroborations on his whereabouts, still, the defense of alibi cannot
prosper.
We reiterate, time and again, that the court must be convinced that it would
be physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between
the situs criminis and the location of the accused when the crime was
committed. He must demonstrate that he was so far away and could not
have been physically present at the scene of the crime and its immediate
vicinity when the crime was committed.123

In People v. Paraiso,124 the distance of two thousand meters from the place
of the commission of the crime was considered not physically impossible to
reach in less than an hour even by foot.125 Inasmuch as it would take the
accused not more than five minutes to rape the victim, this Court
disregarded the testimony of the defense witness attesting that the
accused was fast asleep when she left to gather bamboo trees and
returned several hours after. She could have merely presumed that the
accused slept all throughout.126
In People v. Antivola,127 the testimonies of relatives and friends
corroborating that of the appellant that he was in their company at the time
of the commission of the crime were likewise disregarded by this Court in
the following manner:
Ruben Nicolas, the appellants part-time employer, and Marites Capalad,
the appellants sister-in-law and co-worker, in unison, vouched for the
appellants physical presence in the fishpond at the time Rachel was
raped. It is, however, an established fact that the appellants house
where the rape occurred, was a stones throw away from the
fishpond. Their claim that the appellant never left their sight the entire
afternoon of December 4, 1997 is unacceptable. It was impossible for
Marites to have kept an eye on the appellant for almost four hours, since
she testified that she, too, was very much occupied with her task of
counting and recording the fishes being harvested. Likewise, Mr. Nicolas,
who, admittedly was 50 meters away from the fishpond, could not have
focused his entire attention solely on the appellant. It is, therefore, not
farfetched that the appellant easily sneaked out unnoticed, and along
the way inveigled the victim, brought her inside his house and
ravished her, then returned to the fishpond as if he never
left.128 (Emphasis supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that
appellant never left their sight, save from the 5-minute errand to the store,
is contrary to ordinary human experience. Moreover, considering that the
farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the
road near the store next to the Perochos down the farmland and
consummate the crime. As correctly pointed out by the Court of Appeals,
appellant could have committed the rape after buying the bottle of Tanduay
and immediately returned to his uncles house.129 Unfortunately, the
testimonies of his corroborating witnesses even bolstered the fact that he
was within the immediate vicinity of the scene of the crime.130

Discernment is that mental capacity of a minor to fully appreciate the

consequences of his unlawful act.135 Such capacity may be known and
should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case.136
xxx The surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong.137 Such circumstance includes
the gruesome nature of the crime and the minors cunning and
shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing
an isolated and dark place to perpetrate the crime, to prevent detection[;]
and (2) boxing the victim xxx, to weaken her defense" are indicative of then
seventeen (17) year-old appellants mental capacity to fully understand the
consequences of his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December
1997. Considering that she was only five (5) years old when appellant
defiled her on 28 January 2003, the law prescribing the death penalty
when rape is committed against a child below seven (7) years
old141 applies.
The following, however, calls for the reduction of the penalty: (1) the
prohibition against the imposition of the penalty of death in accordance
with Republic Act No. 9346;142 and (2) the privileged mitigating
circumstance of minority of the appellant, which has the effect of reducing
the penalty one degree lower than that prescribed by law, pursuant to
Article 68 of the Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the
graduation of penalties provided in Article 71 of the Revised Penal
Code.145 Consequently, in its appreciation of the privileged mitigating
circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the
indeterminate penalty of six (6) years and one (1) day to twelve (12) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, in its medium period, as maximum.146
We differ.

Clearly, the defense failed to prove that it was physically impossible for
appellant to have been at the time and place of the commission of the
crime.
All considered, we find that the prosecution has sufficiently established the
guilt of the appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals
correctly considered Republic Act No. 9344(Juvenile Justice and Welfare
Act of 2006) despite the commission of the crime three (3) years before it
was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated
in People v. Sarcia:131

In a more recent case,147 the Court En Banc, through the Honorable Justice
Teresita J. Leonardo-de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor
under 18 years, the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period. However, for purposes of
determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be
reckoned with. Thus, the proper imposable penalty for the accusedappellant is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:

132

[Sec. 68 of Republic Act No. 9344] allows the retroactive application of

the Act to those who have been convicted and are serving sentence at the
time of the effectivity of this said Act, and who were below the age of 18
years at the time of the commission of the offense. With more reason, the
Act should apply to this case wherein the conviction by the lower
court is still under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years
but below eighteen (18) years of age from criminal liability, unless the child
is found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed.134
We determine discernment in this wise:

The litmus test xxx in the determination of the civil indemnity is the heinous
character of the crime committed, which would have warranted the
imposition of the death penalty, regardless of whether the penalty actually
imposed is reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he
committed the crime has no bearing on the gravity and extent of injury
suffered by the victim and her family.150 The respective awards of civil
indemnity and moral damages in the amount of P75,000.00 each are,
therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance
of minority which effectively lowered the penalty by one degree, we affirm
the damages awarded by the Court of Appeals in the amount

of P75,000.00 as civil indemnity and P75,000.00 as moral damages. And,

consistent with prevailing jurisprudence,152 the amount of exemplary
damages should be increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after
the Lapse of the Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in
conflict with the law notwithstanding that he/she has reached the age of
majority at the time the judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is
under eighteen (18) years of age at the time of the commission of the
offense is found guilty of the offense charged, the court shall determine
and ascertain any civil liability which may have resulted from the offense
committed. However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile
is already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August
2006, the Court of Appeals held that, consistent with Article 192 of
Presidential Decree No. 603, as amended,154 the aforestated provision
does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision
in Sarcia,156 overturning the ruling inGubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense
committed by the child in conflict with the law, unlike P.D. No. 603 and A.M.
No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that
the benefit of suspended sentence would not apply to a child in conflict
with the law if, among others, he/she has been convicted of an offense
punishable by death, reclusion perpetua or life imprisonment. In construing
Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of
statutory construction that when the law does not distinguish, we should
not distinguish. Since R.A. No. 9344 does not distinguish between a minor
who has been convicted of a capital offense and another who has been
convicted of a lesser offense, the Court should also not distinguish and
should apply the automatic suspension of sentence to a child in conflict
with the law who has been found guilty of a heinous crime.157
The legislative intent reflected in the Senate deliberations158 on Senate Bill
No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005)
further strengthened the new position of this Court to cover heinous crimes
in the application of the provision on the automatic suspension of sentence
of a child in conflict with the law. The pertinent portion of the deliberation
reads:
If a mature minor, maybe 16 years old to below 18 years old is charged,
accused with, or may have committed a serious offense, and may have
acted with discernment, then the child could be recommended by the
Department of Social Welfare and Development (DSWD), by the Local
Council for the Protection of Children (LCPC), or by [Senator Miriam
Defensor-Santiagos] proposed Office of Juvenile Welfare and Restoration
to go through a judicial proceeding; but the welfare, best interests, and
restoration of the child should still be a primordial or primary consideration.
Even in heinous crimes, the intention should still be the childs restoration,
rehabilitation and reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule
on Children in Conflict with the Law,which reflected the same position.160
These developments notwithstanding, we find that the benefits of a
suspended sentence can no longer apply to appellant. The suspension of
sentence lasts only until the child in conflict with the law reaches the
maximum age of twenty-one (21) years.161 Section 40162 of the law and
Section 48163 of the Rule are clear on the matter. Unfortunately, appellant is
now twenty-five (25) years old.

Be that as it may, to give meaning to the legislative intent of the Act, the
promotion of the welfare of a child in conflict with the law should extend
even to one who has exceeded the age limit of twenty-one (21) years, so
long as he/she committed the crime when he/she was still a child. The
offender shall be entitled to the right to restoration, rehabilitation and
reintegration in accordance with the Act in order that he/she is given the
chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is
that the offender committed the offense when he/she was still of tender
age.
Thus, appellant may be confined in an agricultural camp or any other
training facility in accordance with Sec. 51 of Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and
Other Training Facilities. A child in conflict with the law may, after
conviction and upon order of the court, be made to serve his/her sentence,
in lieu of confinement in a regular penal institution, in an agricultural camp
and other training facilities that may be established, maintained,
supervised and controlled by the BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to
the court of origin to effect appellants confinement in an agricultrual camp
or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals
in CA-G.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty
beyond reasonable doubt of qualified rape is AFFIRMED with the
followingMODIFICATIONS: (1) the death penalty imposed on the appellant
is reduced to reclusion perpetua; and (2) appellant is ordered to pay the
victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to
the court of origin for its appropriate action in accordance with Section 51
of Republic Act No. 9344.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
***************************************
G.R. No. 183094

September 22, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
REYNALDO BARDE, Accused-Appellant.
DECISION
PEREZ, J.:
On appeal is the Decision1 dated 24 September 2007 of the Court of
Appeals in CA-G.R. CR-H.C. No. 01245, which affirmed with modifications,
the Decision2 dated 29 January 2005 of the Regional Trial Court (RTC) of
Legazpi City, 5th Judicial Region, Branch 1, in Criminal Case No. 8661,
finding herein appellant Reynaldo Barde (appellant) guilty beyond
reasonable doubt of the complex crime of multiple murder with multiple
frustrated murder. The appellate court, however, increased the penalty
imposed upon the appellant by the court a quo from reclusion perpetua to
the ultimate penalty of death, being the maximum penalty prescribed by
law, for the crime of murder. In view, however, of the subsequent passage
of Republic Act No. 93463 prohibiting the imposition of the death penalty,
the appellate court reduced the penalty to reclusion perpetua. The
appellate court further increased the amount of moral and temperate
damages awarded by the court a quo to the heirs of each of the deceased
victims from P30,000.00 to P50,000.00 and from P5,000.00 to P25,000.00,
respectively. The heirs of each of the deceased victims were also awarded
exemplary damages of P25,000.00. With respect to the surviving victims,
Purisima Dado (Purisima) and Ligaya Dado (Ligaya), the appellate court
similarly increased the temperate damages awarded to them by the court a
quo from P5,000.00 to P25,000.00 each. They were also awarded
exemplary damages of P25,000.00 each.

On the other hand, appellants co-accused and brother, Jimmy Barde

(Jimmy), was acquitted for failure of the prosecution to prove conspiracy
and for insufficiency of evidence to prove his guilt for the crime charged.
No civil liability has been adjudged against him as there was no
preponderance of evidence to prove the same.
Appellant and Jimmy were charged in an Information4 dated 13 August
1999 with the complex crime of multiple murder and multiple frustrated
murder, the accusatory portion of which reads:
That on or about the 15th day of April, 1999 at more or less 12:30 oclock
in the morning, at Sitio Santo Nio, Barangay Liguan, Municipality of RapuRapu, Province of Albay, Philippines and within the jurisdiction of this
Honorable Court, the above-named [appellant and Jimmy], conspiring and
confederating and acting in concert to achieve a common purpose, willfully,
unlawfully and feloniously, with intent to kill and committed with the
qualifying circumstances of treachery (alevosia), evident premeditation,
and by means of explosion, did then and there roll and explode a hand
grenade (M26-A1 Fragmentation grenade) inside the dance area which
exploded and resulted to the instantaneous deaths of the following
persons, to wit:
1. FRANCISCO BIAGO, JR. alias Tikboy5
2. ROGER SISO6
3. NICANOR OLOROSO
4. MARGIE BAADERA
5. VICTOR BAADERA
6. BIENVENIDO BAADERA
7. DIOSDADO BAADERA7
8. WILLIAM BUTIAL
9. MARYJANE BECHAYDA
10. RICHARD BLANSA8
11. EFREN YASUL9
12. JOSE BOMBALES10
13. DEONY BALIDOY11

8. RODOLFO GALANG, JR.

9. PURISIMA DAO

15

46. RODELITA BA

47. SANTIAGO BA

10. MELCHOR BALIDOY

48. LEVI MAGALO

11. ABUNDIO BARCENILLA

49. JUANITO CA

12. LOURDES BALIDOY

50. ARELFA BETC

13. JULIO ROMANGAYA

51. EDITHA BELC

14. FRANDY SANGCAP

52. JANET BOMBA

15. LOLIT BERSABE

53. MARILOU BET

16. DONDON BERSABE

54. MARIFE BETC

17. FERMIN BARNEDO, JR.

55. ROSEMARIE B

18. THERESA BAJARO

56. ALEXANDER B

19. ANTONIO ECAL

57. VICTOR BALL

20. FLORENCIA ECAL

58. LUIS OLOROS

21. MA. NETOS ECAL

59. DOMINGO SIS

22. VENUS ECAL

60. DOMINGO MIC

23. NELIZ MORALINA

61. JENIFER OLO

24. NORMA BAJARO

62. CATALINO AR

25. ALEX BAADERA

63. VIOLETA BUE

26. ALADIN MORALINA

64. TIRSO BARBE

27. PEDRO BIAS, JR.

65. NELLY BUEMI

28. ROMEO MORALINA

66. RODOLFO BO

29. PABLITO FORMENTO

67. BIENVENIDO

30. ANGELES BOMBALES

68. BERNARDINO

31. SARDONINA BERSABE

69. MYLEN CERIL

32. DOLORES BAADERA

70. DIONY BALIDO

33. CATALINO BARRAMEDA

71. PO3 SAMUEL

34. ABIGAEL BROSO

72. LITO BERMAS

35. NILDA YASOL

73. JOSEPHINE B

36. ESPERANZA BARDE

74. ROGER BELA

37. RYAN BALUTE

75. ADELA VERGA

38. ROBERTO BETITO

76. VINCENT BER

14. DAISY OLOROZO12

15. ROLLY BELGA13
This single act of exploding the hand grenade (M26-A1 Fragmentation
grenade) by the above-named [appellant and Jimmy] also caused and
resulted in the injuries and wounding on the different and various parts of
the bodies of at least seventy six (76) persons, namely, to wit:

2. MARGARITA YASOL
3. SANTOS BAADERA, JR.
4. LEA BAADERA
5. LIGAYA DADO14
6. VIRGILIO BAADERA
7. MANUEL BAADERA

these wounds and injuries caused being fatal and mortal; and thus the
above-named [appellant and Jimmy] have already performed all the acts of
execution which would have produced the crime of Multiple Murder but
which nevertheless did not produce it by reason of causes independent of
the will of the [appellant and Jimmy], that is, the able and timely medical
assistance given to these victims which prevented their deaths, to the
damage and prejudice of the legal heirs of those who died herein and also
those who suffered injuries on the various parts of their
bodies.16 [Emphasis supplied].

39. WILLIAM BALUTE, JR.

Upon arraignment,17 appellant and Jimmy, assisted by counsels de oficio,
pleaded NOT GUILTY to the crime charged. Thereafter, trial on the merits
40. JESUS CAO
ensued.
41. BIENVENIDO CAO
42. VICTOR BORJAL As culled from the records and testimonies of prosecution witnesses, the
facts of this case are as follows:
43. VIRGILIO BALINGBING
On 14 April 1999, at around 9:00 p.m., Elmer Oloroso (Elmer), one of the
44. ALEJANDRO BALUTE
prosecution witnesses and first cousin of appellant and Jimmy, was at a
dancing place18 at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay, to attend a
45. GIL BINAMIRA, JR.
dance held in connection with the feast day celebration thereat. The
dancing place, which was more or less ten (10) meters long and eight (8)

meters wide, was enclosed by bamboo fence and properly equipped with
long benches. It was well-lighted by the fluorescent lights surrounding it
and an oscillating light located at the center thereof. While sitting on the
bench inside the dancing place, near the front gate thereof, Elmer saw
appellant and Jimmy outside holding flashlights and focusing the same
toward the people inside.19
At around 11:00 p.m., Jimmy entered the dancing place and approached
the person sitting beside Elmer. The latter overheard Jimmy telling the
person beside him to go out and look for their companions. Not long after,
Jimmy went out of the dancing place and it was the last time Elmer saw
him on that particular day.20
Then, at around 12:00 midnight, which was already 15 April 1999, Elmer
spotted appellant, who was wearing maong pants and maong jacket with a
belt bag tied around his waist, entered the dancing place and walked
towards the people who were dancing. At that time, Jimmy was no longer
there. Elmer, who was only more or less three (3) meters away from the
appellant, saw the latter get a rounded object from his belt bag, which he
believed to be a hand grenade as he has previously seen one from military
men when he was in Manila. Later, appellant pulled something from that
rounded object, rolled it to the ground towards the center of the dancing
place where the people were dancing, and left immediately. Five seconds
thereafter, the rounded object exploded. At that moment, appellant was
already one-half meter away from the gate of the dancing place. 21
The lights went off, people scampered away, and many died and were
seriously injured as a result of the said explosion. Elmer went out of the
dancing place, together with the crowd, through the destroyed bamboo
fence. Realizing his brothers and sisters might still be inside the dancing
place, Elmer went back, together with the people carrying flashlights and
torches, to look for his siblings. There he saw the lifeless body of his
brother, Nicanor Oloroso (Nicanor). His other brother, Luis Oloroso (Luis),
on the other hand, was seriously injured. Elmers two other siblings, Jenny
and Edwin, both surnamed Oloroso, was slightly injured. Elmer
immediately brought Luis at Bicol Regional Training and Teaching Hospital
(BRTTH), Albay Provincial Hospital, where the latter was confined for
almost three months.22
The second prosecution witness, Antonio Barcelona (Antonio),
corroborated Elmers testimony on material points. Antonio first met
appellant on 20 March 1999 as the latters brother, Rafael Barde (Rafael),
invited him to their house to attend a dance in Mancao, Rapu-Rapu, Albay.
There they had a little conversation and appellant told Antonio that he
would not enter any dancing place without creating any trouble. On 14 April
1999 at around 9:30 p.m., Antonio again met appellant at the dancing
place at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay. While Antonio was
inside the dancing place, appellant saw him and summoned him to go out.
Then, Antonio and appellant, who was then with his brothers, Jimmy and
Joel, both surnamed Barde, conversed about their work.23Suddenly,
appellant uttered, "Diyan lang kamo, dai kamo maghale sa Tokawan na
iyan, to kong may ribok man, yaon kami sa likod lang."24 Appellant told
Antonio that he would just be behind him and his companions because
there might be a trouble. Thereafter, Antonio went inside the dancing
place. 25
At about 11:30 p.m., the dance was declared open to all. At this juncture,
appellant and his two brothers went inside the dancing place. Jimmy then
approached Antonio. Then, at around 12:30 a.m. of 15 April 1999, Antonio
noticed appellant walking slowly towards the crowd inside the dancing
place with his hands partly hidden inside his maong jacket with an eagle
figure at the back thereof. Suddenly, appellant stopped, looked around, got
something from his waist line, rolled it to the ground towards the crowd and
hastily left. Antonio confirmed that what was rolled to the ground by
appellant was a grenade because after more or less four seconds that
thing exploded. Appellant was already in front of the gate of the dancing
place when the explosion occurred. Antonio was not injured as he was
more or less four (4) meters away from the place where the explosion
occurred. Darkness followed after the explosion as the lights went off.
People bustled. Many died and were injured.26
Other prosecution witnesses, Alexander Basallote (Alexander) and Nilda
Yasol (Nilda) - the Barangay Captain of Liguan, Rapu-Rapu, Albay, also
corroborated the testimonies of Elmer and Antonio.
The prosecution likewise presented Senior Police Officer 2 Hipolito
Talagtag (SPO2 Talagtag),27 who was assigned at R-4 Division, Explosive

and Ordinance Disposal, Police Regional Office 5 at Camp Simeon Ola,

Legazpi City. On 15 April 1999, SPO2 Talagtag received a call from
Colonel Delos Santos (Col. Delos Santos), Chief of R-4 Division, Supply of
RECOM 5, informing him about the explosion incident happened in a
dancing place at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay, and asking
assistance from them. In response thereto, a team was organized
composed of members from the Crime Laboratory, IID Investigators, CIS
Investigating Agents and the Explosive Ordinance Team. Thereafter, the
team proceeded to the scene of the crime. They reached the place at more
or less 11:00 a.m. of 16 April 1999. The team found a crater inside the
dancing place that served as their lead in determining the kind of explosive
used. In the course of their investigation, they interviewed people living
nearby who told them that the explosion was loud. Later, SPO2 Talagtag
placed a magnet in the crater inside the dancing place and recovered
several shrapnels similar to those that can be found in an M26-A1
fragmentation grenade. By reason thereof, SPO2 Talagtag concluded that
the explosion was caused by an M26-A1 fragmentation grenade.
Thereafter, the recovered shrapnels were turned over to the crime
laboratory at Camp Simeon Ola, Legazpi City, for examination. 281avvphi1
Engineer Ma. Julieta Razonable (Engr. Razonable), Police Senior
Inspector and Forensic Chemical Officer assigned at Camp Simeon Ola,
Legazpi City, received the specimen, i.e., the shrapnels recovered at the
scene of the crime, for physical examination. Her examination yielded
positive result, meaning, the specimen submitted to her were part of a
hand grenade fragmentation, M26-A1.29 This result was subsequently
reduced into writing as evidenced by Physical Identification Report No. PI601-A-99 dated 16 April 1999.30
In his defense, appellant vehemently denied the charge against him and
offered a different version of the incident.
Appellant asseverated that at around 7:00 p.m. on 14 April 1999 he was at
home in Mancao, Rapu-Rapu, Albay, organizing the plates, spoons, forks
and other kitchen utensils that they were about to bring to the house of
Teodora Arsenue (Teodora) at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay,
in connection with the feast day celebration in the said place. Then, at
around 7:30 p.m., the appellant, together with his mother Gloria Barde
(Gloria) and brothers Jimmy, Joel, Rafael, Jovito, Jr., all surnamed Barde,
proceeded to the house of Teodora and reached the same before 9:00 p.m.
Teodora offered them food. After eating, they acceded to the suggestion of
Jovito, Jr., to go to the dancing place also located at Sitio Sto. Nio,
Liguan, Rapu-Rapu, Albay, only a ten minute-walk away from the house of
Teodora.31
Upon reaching the dancing place, they stayed outside as they had no
tickets. At around 11:30 p.m., through the help of William Gutchal
(William),32 appellant and his brothers Joel and Jimmy, both surnamed
Barde, were able to enter the dancing place while his mother and other
brothers remained outside. They immediately proceeded to the left side of
the dancing place near the baffles of the sound system and stood behind
the benches as the same were already occupied. The three of them
remained in that place until the explosion occurred inside the dancing
place, which was more or less twenty-five (25) meters away from them.
The people dancing in the area of the explosion died and some were
injured.33
Appellant claimed that he had no idea how the explosion started because
at that time he and his brother Jimmy were talking to Roger Springael
(Roger), who was standing outside the bamboo fence surrounding the
dancing place, as the latter was interested in buying a fighting cock from
him. His other brother, Joel, was also with them, but he was sleeping. In
the course of their conversation, he suddenly heard an explosion. All lights
went off and there was a total blackout inside the dancing place. People
were then pushing each other in order to get out. Appellant was able to go
out and run towards a lighted place nearby. When the people carrying
torches came, appellant went back to the dancing place to look for his
mother and brothers. It was already 2:00 a.m. of 15 April 1999, when he
saw his mother and brothers. They went home afterwards. When they
reached their house, appellant and his father went to the house of his
injured cousin to inform the latters family of what happened.34
The following day, or on 16 April 1999, appellant and Jimmy were invited
by Police Officer, Efren Cardeo (Cardeo), at Camp Simeon Ola, Legazpi
City, to be utilized as witnesses to the explosion incident happened on 15
April 1999. They refused the invitation as they did not actually witness the
explosion. But, Cardeo insisted. On 17 April 1999, appellant and Jimmy

went with Cardeo at Camp Simeon Ola, Legazpi City. Thereafter, they did
not see Cardeo anymore.35

she saw Eddie outside the dancing place and it was appellant and Jimmy,
whom she saw sitting inside the dancing place at the far end of the fence.44

While appellant was at Camp Simeon Ola, Legazpi City, he was brought in
one of the offices there and was told to be a witness to the explosion
incident happened at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay. Shortly
thereafter, the investigator showed him a typewritten document and was
ordered to sign the same but, he refused because he did not understand
its contents. Appellant maintained that he was even promised money and
work should he sign it and testify but, once again, he refused. Due to his
incessant refusal, he was ordered to go out. There he saw Jimmy who told
him that he was also made to sign a certain document but, he also
refused.36

Finding the defense of appellant and Jimmy unmeritorious vis-a-vis the

evidence proffered by the prosecution, the trial court rendered its Decision
on 29 January 2005 finding appellant guilty of the complex crime of
multiple murder with multiple frustrated murder and imposing upon him the
penalty of reclusion perpetua. He was also ordered to pay the legal heirs of
each of the deceased victims the amount of P50,000.00 as civil
indemnity,P30,000.00 as moral damages, and P5,000.00 as temperate
damages, as well as each of the surviving victims, Purisima and Ligaya,
the amount of P20,000.00 as moral damages and P5,000.00 as
temperate/actual damages. Jimmy, on the other hand, was acquitted of the
crime charged for the prosecutions failure to prove conspiracy and for
insufficiency of evidence. No civil liability was adjudged against him there
being no preponderance of evidence to prove the same.45

Between 10:00 p.m. to 11:00 p.m. of 17 April 1999, appellant and Jimmy
were awakened but the latter continued sleeping. As such, it was only
appellant who was brought in another room and was made to drink wine by
persons in civilian clothes. When appellant declined, he was then accused
as the person responsible for the explosion incident. Appellant, however,
strongly denied the accusation. At this instance, appellant was kicked and
boxed and was ordered to admit the accusation but he refused to admit it.
Appellant was subsequently brought inside a detention cell. When he met
Jimmy, the latter told him that he was also tortured.37
The next day, or on 18 April 1999, appellant and Jimmy were brought at the
office of a certain General Navarro and they were ordered to stand up with
more than 30 people. Later, Antonio arrived. Appellant avowed that a
certain person in civilian clothes instructed Antonio to point at them as the
perpetrators of the explosion incident, which Antonio did. When they were
pinpointed as the authors of the crime, they neither reacted nor denied the
accusations. Afterwards, appellant and Jimmy were brought back inside
their detention cell.38
Appellant similarly denied having met Antonio on 20 March 1999 at a
dance in Mancao, Rapu-Rapu, Albay. Appellant likewise denied having told
Antonio that whenever he enters a dance hall he would always create
trouble. Appellant maintained that he saw Antonio for the first time when
the latter pinpointed him and Jimmy at the office of a certain General
Navarro. The second time was when Antonio testified in court. Appellant,
however, confirmed that Elmer is his first cousin and he did not know any
reason why he would accuse him with such a grave offense. 39
Other defense witnesses, Roger, Jimmy and Gloria corroborated
appellants testimony.
Wilfredo Echague (Wilfredo), a radio broadcaster at Radio Filipino, DWRL,
since 19 February 1991, testified that on 11 August 2001 while conducting
series of interviews in relation to the explosion incident that happened on
15 April 1999 at Sitio Sto. Nio, Liguan, Rapu-Rapu, Albay, he met Violeta
Buemia (Violeta) at the latters residence in Cabangan, Villa Hermosa,
Rapu-Rapu, Albay, who claimed personal knowledge about the explosion
incident. Wilfredos interview on Violeta was recorded by the former. On 17
August 2001, he accompanied Violeta to the National Bureau of
Investigation (NBI), Legazpi City, where she executed her sworn statement
before Atty. Raymundo D. Sarga, Jr. (Atty. Sarga), Head Agent of NBI,
Legazpi City.40
Violeta affirmed that Wilfredo had interviewed her regarding the explosion
incident and he had also accompanied her in executing her sworn
statement before the NBI, Legazpi City.41 During her testimony, she
disclosed that at around 10:00 p.m. of 14 April 1999, she and her daughter
entered the dancing place at Sto. Nio, Liguan, Rapu-Rapu, Albay. Her
daughter sat down while she stood near the gate. At round 12:00 a.m.,
which was already 15 April 1999, she went out to urinate. In a distance of
more or less two (2) meters, she saw Eddie Oloroso (Eddie) standing
outside the dancing place and then throw something inside that hit the wire
beside a fluorescent bulb causing some sparks. The place became very
bright and she confirmed that it was really Eddie who threw that something.
Eddie then ran away. The thing exploded when it fell on the ground. The
place became dark thereafter. She was hit by the flying pebbles coming
from the explosion. She then looked for her daughter and was able to find
her. Many died and seriously injured in the said explosion incident. 42
Violeta also explained that it took her more than two years after the
incident happened to come out and testify because she was afraid. Her
conscience, however, kept bothering her so she decided to divulge what
she knew about the incident.43 Later in her testimony, Violeta admitted that

Aggrieved, appellant moved for the reconsideration of the aforesaid RTC

Decision but it was denied in an Order46dated 15 June 2005 for lack of
merit.
Accordingly, appellant elevated the 29 January 2005 RTC Decision to the
Court of Appeals with the lone assignment of error, thus:
THE TRIAL COURT GRAVELY ERRED IN FINDING [APPELLANT]
GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF THE
PROSECUTION TO ESTABLISH HIS GUILT BEYOND REASONABLE
DOUBT.47
On 24 September 2007, the Court of Appeals rendered its Decision,
disposing:
WHEREFORE, the Appeal is Denied. The Decision dated [29 January
2005] of the [RTC] of Lega[z]pi City, Branch 1, in Criminal Case No. 8661,
is AFFIRMED with MODIFICATION in that:
1. The [appellant] shall suffer the penalty of Death. However, in
view of the subsequent passage of R.A. No. 9346, which was
approved on [24 June 2006], which repealed R.A. No.
817748 and R.A. No. 7659,49 the penalty of Death is REDUCED
to RECLUSION PERPETUA.
2. The [appellant] is hereby ordered to indemnify the heirs of the
deceased the amount of P50,000.00, as moral
damages, P25,000.00, as temperate damages
and P25,000.00 as exemplary damages. [Appellant] is also
ordered to pay each Purisima Dado and Ligaya Dado temperate
damages in the amount of P25,000.00 and exemplary damages
in the amount of P25,000.00.50 [Emphasis supplied].
Appellant moved for the reconsideration of the aforesaid Court of Appeals
Decision, but to no avail.51
Unable to accept his conviction, appellant appeals to this Court reiterating
the same assignment of error he raised before the Court of Appeals, to wit:
the trial court gravely erred in finding appellant guilty of the crime charged
despite failure of the prosecution to establish his guilt beyond reasonable
doubt.
Appellant asserts that his guilt was not proven beyond reasonable doubt
because the evidence presented by the prosecution was not sufficient to
overcome his constitutionally enshrined right to be presumed innocent. He
casts doubts on the credibility of prosecution witness Elmer because his
statements were replete with inconsistencies. According to appellant,
Elmer, at first, declared that after the explosion, lights went off and he saw
appellant leave the dancing place but Elmer later stated that immediately
after appellant threw the grenade, the latter went out and upon reaching
the gate, the explosion occurred. These inconsistent statements of Elmer
allegedly created doubts as to what actually transpired and who the real
culprit was. Appellant then claims that there is a possibility that Elmer is a
rehearsed witness as such inconsistencies relate to material points.
Appellants contentions are not well-founded, thus, his conviction must
stand.

Primarily, it has been jurisprudentially acknowledged that when the issues

revolve on matters of credibility of witnesses, the findings of fact of the trial
court, its calibration of the testimonies of the witnesses, and its
assessment of the probative weight thereof, as well as its conclusions
anchored on said findings, are accorded high respect, if not conclusive
effect. This is because the trial court has the unique opportunity to observe
the demeanor of witnesses and is in the best position to discern whether
they are telling the truth.52 In this case, it is notable that the Court of
Appeals affirmed the factual findings of the trial court, according credence
and great weight to the testimonies of the prosecution witnesses. Settled is
the rule that when the trial court's findings have been affirmed by the
appellate court, said findings are generally conclusive and binding upon
this Court,53 unless the trial court had overlooked, disregarded,
misunderstood, or misapplied some fact or circumstance of weight and
significance which if considered would have altered the result of the
case.54 None of these circumstances is attendant in this case. This Court,
thus, finds no cogent reason to deviate from the factual findings arrived at
by the trial court as affirmed by the Court of Appeals.
Prosecution witnesses, Elmer and Antonio, actually witnessed the
explosion incident. Both of them narrated in detail the events that
transpired prior, during and after the explosion. They had a vivid
recollection of how appellant entered the dancing place, walked towards
the people who were dancing, got a rounded object from the belt bag tied
on his waist, pulled something from it, rolled it to the ground towards the
people who were dancing and left the place rapidly. Immediately thereafter,
the explosion occurred. The trial court characterized their testimonies as
candid, spontaneous and straightforward that despite rigid crossexamination their testimonies on who and how the crime was committed
remained unshaken and undisturbed.55
With certainty, these prosecution witnesses positively identified appellant
as the person who rolled a rounded object, which was later confirmed as
an M26-A1 fragmentation grenade, towards the people who were dancing,
the explosion killing and causing injuries to many. The identity of appellant
was clear to the prosecution witnesses because the dancing place where
the explosion occurred was well lighted. Besides, Elmer and Antonio knew
the appellant well. Elmer is appellants first cousin. Antonio met appellant
prior to the explosion incident at a dance in Mancao, Rapu-Rapu, Albay,
where they engaged in some conversations. Given these circumstances,
the prosecution witnesses could not have been mistaken as to appellants
identity.
The records were also wanting in evidence that would show that these
witnesses were impelled by improper motive to impute such a grave
offense against the appellant. Even appellant himself admitted that he did
not know any reason why Elmer would accuse him with such an offense
with pernicious consequences on his life and liberty, considering the fact
that they are relatives.
It bears stressing that Elmers brother, Nicanor, died, his other brother,
Luis, was seriously injured and almost died and his two other siblings were
also injured because of the explosion. Elmer had more than enough
reason to identify the appellant.56 Indeed, his relationship to the victims
cannot be taken against him and it does not automatically impair his
credibility and render his testimony less worthy of credence since that no
improper motive can be ascribed to him for testifying.57 It would be
unnatural for a relative who is interested in seeking justice for the victims to
testify against an innocent person and allow the guilty one to go
unpunished.58 Rather, his inherent desire to bring to justice those whom he
personally knew committed a crime against his close relative makes his
identification of the appellant all the more credible.59
In comparison with the clear and straightforward testimony of prosecution
witnesses, all that appellant could muster is the defense of denial and alibi.
It is well-entrenched that alibi and denial are inherently weak and have
always been viewed with disfavor by the courts due to the facility with
which they can be concocted. They warrant the least credibility or none at
all and cannot prevail over the positive identification of the appellant by the
prosecution witnesses.60 For alibi to prosper, it is not enough to prove that
appellant was somewhere else when the crime was committed; he must
also demonstrate that it was physically impossible for him to have been at
the scene of the crime at the time of its commission. Unless substantiated
by clear and convincing proof, such defense is negative, self-serving, and
undeserving of any weight in law.61 Denial, like alibi, as an exonerating
justification is inherently weak and if uncorroborated regresses to blatant
impotence. Like alibi, it also constitutes self-serving negative evidence

which cannot be accorded greater evidentiary weight than the declaration

of credible witnesses who testify on affirmative matters.62
In this case, appellant himself and all his witnesses admitted that appellant
was at the scene of the crime until the explosion occurred. With that, the
defense ultimately failed to meet the necessary requisites for the proper
invocation of alibi as a defense.
Appellants defense of denial cannot also be given any considerable weight
as it was unsubstantiated. The testimony of Violeta pointing at Eddie as the
real culprit is intended to bolster appellants defense of denial. However, it
cannot be given credence. Her testimony was given only after more than
two years from the time the incident happened, and she failed to offer any
convincing evidence to justify such delay. Records do not show that there
was any threat on Violetas life that might have prevented from coming out
to testify. She herself admitted that after the explosion incident she did not
see Eddie anymore. Eddie then could not have possibly threatened her.
She could freely testify on what she knew about the explosion incident had
she wanted to. Her alleged fear is unfounded. It cannot justify her long
delay in disclosing it before the court a quo. Moreover, if she was, indeed,
afraid, she would not have allowed herself to be interviewed by a radio
broadcaster and would not have divulged to him all that she knew about
the incident. Instead of directly disclosing it to the proper authorities, she
had chosen to tell it first to a radio broadcaster. Further, the only reason
she gave the court for her silence of more than two years was that she
began to be bothered by her conscience as she recently kept on dreaming
of those who died in the explosion incident especially during "All Souls
Day." Violeta, in other words, cannot rely on the doctrine that delay of
witnesses in revealing what they know about a crime is attributable to their
natural reticence against involvement therein.63
More telling is Violetas categorical admission that Eddie was outside the
dancing place and it was appellant whom she saw inside the dancing place
prior to the explosion incident. With this testimony, Violeta made appellants
defense of denial even weaker.
In light of the categorical and positive identification of the appellant by
prosecution witnesses, without any showing of ill-motive on the part of the
latter testifying on the matter, appellant's defense of bare denial and alibi
cannot prosper.64
As regards the alleged inconsistencies on Elmers narration of events, this
Court considers the same trivial, inconsequential and do not affect the
credibility of the statement that it was appellant who rolled the hand
grenade towards the people dancing inside the dancing place, the
explosion killing and injuring scores of victims. Furthermore, the alleged
inconsistencies pointed to by appellant have been properly clarified in the
course of Elmers testimony. As the Court of Appeals stated in its Decision,
thus:
Records reveal that during the direct examination, Elmer testified that
immediately after the [appellant] rolled the grenade, he went out and when
he was about to reach the gate the grenade exploded, while on crossexamination, Elmer testified that he saw [appellant] leave the [dancing
place] after the explosion. However, when the trial court and [appellants
counsel] asked him about the inconsistency, Elmer clarified and confirmed
that [appellant] left the dance place before the explosion.65
Inconsistencies in the testimonies of witnesses which refer to minor and
insignificant details do not destroy their credibility. They, instead, manifest
truthfulness and candor and erase any suspicion of rehearsed testimony.66
All told, this Court affirms the findings of the trial court and the appellate
court that, indeed, appellant was the author of the explosion incident that
happened on 15 April 1999 inside the dancing place at Sitio Sto. Nio,
Liguan, Rapu-Rapu, Albay, which took away the lives and caused injuries
to the people thereat.
As to the crime committed. The trial court and the appellate court convicted
appellant of the complex crime of multiple murder with multiple frustrated
murder. This Court believes, however, that appellant should only be
convicted of the complex crime of multiple murder with double attempted
murder.
Appellants act of detonating a hand grenade, particularly an M26-A1
fragmentation grenade, inside the dancing place at Sitio Sto. Nio, Liguan,

Rapu-Rapu, Albay, resulted in the death of 15 people, namely: Francisco

Biago, Jr., Roger Siso, Nicanor Oloroso, Margie Baadera, Victor
Baadera, Bienvenido Baadera, Diosdado Baadera, William Butial,
Maryjane Bechayda, Richard Blansa, Efren Yasul, Jose Bombales, Deony
Balidoy, Daisy Olorozo and Rolly Belga. The fact of death of these
deceased victims was evidenced by their respective certificates of death
and testimonies of their respective relatives. The defense similarly admitted
that these victims died as a result of the explosion incident.
Article 248 of the Revised Penal Code 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 perpetua to death if committed with any of the following
attendant circumstances:
1. With treachery, taking advantage of superior strength, with the
aid of armed men, or employing means to weaken the defense
or of means or persons to insure or afford impunity.
xxxx
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. [Emphasis
supplied].
From the afore-quoted provision of law, the killing of the aforesaid
deceased victims with the use of explosive, i.e., hand grenade particularly
M26-A1 fragmentation grenade, certainly qualifies the crime to murder.
Treachery, which was alleged in the Information, also attended the
commission of the crime. Time and again, this Court, in a plethora of
cases, has consistently held that there is treachery when the offender
commits any of the crimes against persons, employing means, methods or
forms in the execution thereof, which tend directly and specially to ensure
its execution without risk to himself arising from the defense that the
offended party might make. There are two (2) conditions that must concur
for treachery to exist, to wit: (a) the employment of means of execution
gave the person attacked no opportunity to defend himself or to retaliate;
and (b) the means or method of execution was deliberately and
consciously adopted.67 "The essence of treachery is that the attack is
deliberate and without warning, done in a swift and unexpected manner,
affording the hapless, unarmed and unsuspecting victim no chance to
resist or escape."68
As elucidated by the trial court in its Decision:
The victims were completely unaware of the danger forthcoming to them
as they were in the midst of enjoying a dance. The [appellant] who caused
the rolling of the hand grenade was at a complete advantage knowing that
no risk to his life was involved as he can immediately fled [and] run away
from the scene of the crime before any explosion could occur. There was
no defense so to speak of that may came from the victims because they
were completely unaware of the danger about to happen in their midst
resulting as it did to deaths and injuries to many people among the crowd
dancing. The act of rolling the hand grenade is unpardonable. It is a
treacherous heinous act of the highest order. The victims can do nothing
but to cry to high heavens for vengeance.
xxxx
As supported by the evidence adduced at the trial, [it] is fully convinced
that the crime charge was committed under a cloak of treachery, and there
is no doubt about it. The attacker suddenly came armed with a live
fragmentation grenade, removed its pin and threw it towards the crowd
who were enjoying a dance, unsuspecting of any danger that larks in their
midst, thereby depriving them of any real opportunity to defend
themselves. The attacker has employed a swift and unexpected attack to
insure its execution without risk to himself x x x.69
As the killing, in this case, is perpetrated with both treachery and by means
of explosives, the latter shall be considered as a qualifying circumstance
since it is the principal mode of attack. Reason dictates that this attendant

circumstance should qualify the offense while treachery will be considered

merely as a generic aggravating circumstance.70
The Information also alleged that evident premeditation attended the
commission of the crime. For evident premeditation to be appreciated, the
prosecution must prove the following elements: (1) the time when the
accused decided to commit the crime; (2) an overt act showing that the
accused clung to their determination to commit the crime; and (3) the lapse
of a period of time between the decision and the execution of the crime
sufficient to allow the accused to reflect upon the consequences of the
act.71 However, none of these elements could be gathered from the
evidence on record.
Appellants act of detonating a hand grenade, particularly M26-A1
fragmentation grenade, inside the dancing place at Sitio Sto. Nio, Liguan,
Rapu-Rapu, Albay, likewise resulted in the wounding of several persons.
But, out of the 76 injured victims named in the Information, only Purisima
and Ligaya, both surnamed Dado, appeared personally in court to testify
on the injuries and damages sustained by them by reason thereof.
Purisima affirmed that after the explosion she was brought to the hospital
because she suffered punctured wounds on her legs and forehead by
reason thereof. Also, she was not able to walk for two (2) weeks. She was
not confined though.72 She was issued medical certificate73 dated 23 April
1999 in relation thereto stating that her injuries will incapacitate her or will
require medical assistance for one to two weeks. Her testimony, as well as
her medical certificate, however, never mentioned that the wounds or
injuries sustained by her were fatal or mortal and had it not for the timely
medical assistance accorded to her she would have died. In the same way,
Ligaya stated that because of the explosion she suffered blasting injuries
on her chest and right forearm. She was confined and treated for five days
at BRTTH, Legazpi City,74 as evidenced by her medical certificate75 dated
26 April 1999. There was also no mention that her injuries and wounds
were mortal or fatal.
Despite the fact that the injuries sustained by Purisima and Ligaya were
not mortal or fatal, it does not necessarily follow that the crimes committed
against them were simply less serious physical injuries,76 because
appellant was motivated by the same intent to kill when he detonated the
explosive device inside the dancing place.77 Since the injuries inflicted
upon them were not fatal and there was no showing that they would have
died if not for the timely medical assistance accorded to them, the crime
committed against them is merely attempted murder.
As this Court has previously stated, the rest of the injured victims named in
the Information failed to testify. Though their medical certificates were
attached in the records, they were not marked as exhibits and were not
formally offered as evidence by the prosecution. Consequently, this Court
cannot consider the same to hold that the crime committed as to them is
frustrated murder and to grant damages in their favor. This Court has held
in People v. Franco,78 thus:
We thus reiterate the rule that the court shall consider no evidence which
has not been formally offered. So fundamental is this injunction that
litigants alike are corollarily enjoined to formally offer any evidence which
they desire the court to consider. Mr. Chief Justice Moran explained the
rationale behind the rule in this wise:
The offer is necessary because it is the duty of a judge to rest his findings
of facts and his judgment only and strictly upon the evidence offered by the
parties to the suit.79 [Emphasis supplied].
Without the testimonies of the other injured victims or their medical
certificates, the court will have no basis to hold that appellant committed
the crime of frustrated murder as to them.
Given the foregoing, it is clear that this case falls under the first clause of
Article 4880 of the Revised Penal Code because by a single act, that of
detonating an explosive device inside the dancing place, appellant
committed two grave felonies, namely, (1) murder as to the 15 persons
named in the Information; and (2) attempted murder as to Purisima and
Ligaya.
Therefore, this Court holds appellant guilty beyond reasonable doubt of the
complex crime of multiple murder with double attempted murder.

As to penalty. Article 48 of the Revised Penal Code explicitly states:

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.
[Emphasis supplied].
A complex crime is committed when a single act constitutes two or more
grave or less grave felonies. Appellants single act of detonating an
explosive device may quantitatively constitute a cluster of several separate
and distinct offenses, yet these component criminal offenses should be
considered only as a single crime in law on which a single penalty is
imposed because the offender was impelled by a single criminal impulse
which shows his lesser degree of perversity.81 Thus, applying the aforesaid
provision of law, the maximum penalty for the most serious crime, which is
murder, is death. Pursuant, however, to Republic Act No. 9346 which
prohibits the imposition of the death penalty, the appellate court properly
reduced the penalty of death, which it previously imposed upon the
appellant, to reclusion perpetua.
As to damages. Article 2206 of the Civil Code provides that when death
occurs as a result of a crime, the heirs of the deceased are entitled to be
indemnified for the death of the victim without need of any evidence or
proof thereof.82 Moral damages like civil indemnity, is also mandatory upon
the finding of the fact of murder.83 To conform with recent jurisprudence on
heinous crimes where the proper imposable penalty is death, if not for
Republic Act No. 9346, the award of civil indemnity and moral damages to
the heirs of each of the deceased victims are both increased to P75,000.00
each.84
It is settled that exemplary damages may be awarded in criminal cases as
part of civil liability if the crime was committed with one or more
aggravating circumstances.85 In this case, the generic aggravating
circumstance of treachery attended the commission of the crime. The
award of exemplary damages, therefore, is in order. To conform to current
jurisprudence, this Court likewise increased the award of exemplary
damages given by the appellate court to the heirs of each of the deceased
victims to P30,000.00 each.86
Actual damages cannot be awarded for failure to present the receipts
covering the expenditures for the wake, coffin, burial and other expenses
for the death of the victims. In lieu thereof, temperate damages may be
recovered where it has been shown that the victims family suffered some
pecuniary loss but the amount thereof cannot be proved with certainty as
provided for under Article 2224 of the Civil Code.87 This Court finds the
award of P25,000.00 each to the heirs of each of the deceased victims
proper.
The surviving victims, Purisima and Ligaya, are also entitled to moral,
temperate and exemplary damages.
Ordinary human experience and common sense dictate that the wounds
inflicted upon the surviving victims, Purisima and Ligaya would naturally
cause physical suffering, fright, serious anxiety, moral shock, and similar
injuries. It is only justifiable to grant them moral damages in the amount
of P40,000.00 each in conformity with this Courts ruling in People v.
Mokammad.88
This Court affirms the appellate courts award of P25,000.00 as temperate
damages to each of the surviving victims, Purisima and Ligaya. It is
beyond doubt that these two surviving victims were hospitalized and spent
money for their medication. However, Purisima failed to present any receipt
for her hospitalization and medication. Nevertheless, it could not be denied
that she suffered pecuniary loss; thus, it is only prudent to
award P25,000.00 to her as temperate damages.89 Ligaya, on the other
hand, presented receipts for her hospitalization and medication but the
receipts were less than P25,000.00. In People v. Magdaraog90 citing
People v. Andres, Jr.,91when actual damages proven by receipts during the
trial amount to less than P25,000.00 as in this case, the award of
temperate damages for P25,000.00 is justified in lieu of actual damages of
a lesser amount.
Finally, the award of exemplary damages is also in order considering that
the crime was attended by the qualifying circumstance of treachery.92 The

award of exemplary damages to Purisima and Ligaya is increased

to P30,000.00 to conform to current jurisprudence.
WHEREFORE, premises considered, the Decision of the Court of Appeals
in CA-G.R. CR-H.C. No. 01245 dated 24 September 2007 is hereby
AFFIRMED with MODIFICATIONS. Appellant is found guilty of the complex
crime of multiple murder with double attempted murder. In view, however,
of Republic Act No. 9346 prohibiting the imposition of the death penalty,
appellant is hereby sentenced to suffer the penalty of reclusion perpetua
without the benefit of parole. The award of civil indemnity, moral and
exemplary damages to the heirs of each of the deceased victims are
hereby increased to P75,000.00, P75,000.00, and P30,000.00,
respectively. The surviving victims, Purisima and Ligaya, are also awarded
moral damages of P40,000.00 each. The award of exemplary damages to
these surviving victims is likewise increased to P30,000.00 each.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
***************************************
G.R. No. 182793

July 5, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
DIONISIO CALONGE y VERANA, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
For review is the Decision1 dated November 29, 2007 of the Court of
Appeals (CA) in CA-G.R. CR.-H.C. No. 01516 which affirmed with
modification the Joint Decision2 dated August 10, 2005 of the Regional Trial
Court of Bayombong, Nueva Vizcaya, Branch 27 in Criminal Case Nos.
4077-4080 finding the above-named accused-appellant guilty beyond
reasonable doubt of parricide and frustrated parricide.
The facts as culled from the records:
Rosita A. Calonge was appellants legitimate wife, with whom he had three
(3) children, namely: Melody, Dony Rose and Kimberly whose respective
ages at the time of the incident were nine (9), seven (7) and six (6)
years.3The family lived in a four (4) by five (5) meters house at a farm land
near the house of Rositas parents at Barangay Cabuluan, Villaverde,
Nueva Vizcaya.
On December 1, 2001 at around 6:00 oclock in the morning, the Villaverde
Police Station received a radio call from the barangay captain of Cabuluan
that a massacre took place in their locality. By 7:30 a.m., the responding
team led by PO3 Alfelmer Balut arrived at the area. Rositas bloodied body
was found lying on the ground about fifteen (15) meters away from their
house. Her right hand was loosely clasping a knife. Lying on his back near
the stairs was appellant who was also wounded but still conscious. Beside
him were a bolo and a flashlight, both stained with blood. While the
windows of the house were locked with a piece of tie wire, the door was
already opened, its metal lock was found three (3) to five (5) meters from
the door and seven (7) to ten (10) meters from the body of Rosita. Inside
the two (2) "bedrooms" of the house separated only by a curtain, they
found the lifeless bodies of the two (2) young girls, Kimberly and Dony
Rose. The other child, Melody, was also bloodied but alive and conscious.
They brought Melody to the Veterans Regional Hospital where she was
treated and confined for seventeen (17) days.4
Police investigators found no signs of struggle or forcible entry as the
things inside the house were not disarranged. Photographs of the three (3)
dead victims (Rosita, Dony Rose and Kimberly) were also taken at the

crime scene. When interviewed by the policemen, Melodys grandmother,

Ana O. Amlag, said that Melody told her it was their father (appellant) who
attacked her, her mother and her sisters. Melodys grandparents said they
knew it was appellant because they had heard Rosita shouting that
appellant will kill them. On the other hand, when appellant was asked what
happened and who attacked him, he answered he does not know.
Appellant asked to be treated also and they brought him to the hospital.5

acts of execution which should have produced the crime of Parricide as a

consequence, but nevertheless did not produce it by reason of causes
independent of the will of the accused, that is, the timely medical
attendance given which prevented the victims death, but nevertheless
resulted to her damage and prejudice.

While still in the hospital, Melody, assisted by her first cousin Ana Fe
Huang, gave her statement to the police. She identified her father, who had
a quarrel with her mother the previous night, as the one (1) who hacked
her and also fatally stabbed her mother and two (2) sisters.6

When arraigned, appellant pleaded not guilty. During the trial, the
prosecution presented as witnesses PO3 Alfelmer Balut, Dr. Telesforo A.
Ragpa (Municipal Health Officer), Lourdes Amlag, Dr. Lirio Marie RonduenAdriatico and Melody A. Calonge.

On January 17, 2002, appellant was charged with parricide and frustrated
parricide under the following Informations:

The sole witness for the defense was appellant who gave a different
version of the incident. According to appellant, he came home on the night
of November 30, 2001 at around 6:00 oclock. After taking coffee, he took
supper with his family. At about 8:30 p.m., he put Kimberly to sleep while
his wife together with Dony Rose was in the kitchen preparing for their food
the following morning because they will go to church. He could not
remember what time he fell asleep but when he woke up in the morning,
he was no longer in their house but in a hospital. Only then he realized that
he was wounded on the chest and neck. He tried to inquire from people in
the hospital what happened but no voice came out of his mouth. He does
not know who caused his injuries as he could not recall anything that
transpired from the time he slept until the morning of December 1, 2001.
Appellant denied that he and his wife quarrelled the previous night. What
he knows is that his wife had a quarrel with spouses Manong Sante and
Manang Paula, as the latter who is the sister of his wife did not want them
to stay in the place.11 On cross-examination, appellant claimed that the
doors of the house were still open at that time because somebody else
was still using the kitchen. He denied that he sharpened his bolo that same
night, as in fact all his carpentry tools were placed in their kitchen. As to his
flashlight, appellant insisted it was his wife who was using it that night but
he admitted that it was already placed very near the door where he had put
Kimberly to sleep. He actually placed his bolo, flashlight and those other
items in a shelf just four (4) meters away from where he slept.12

Criminal Case No. 4077

That on December 01, 2001 in the morning, at Barangay Cabuluan,
Municipality of Villaverde, Province of Nueva Vizcaya, Philippines and
within the jurisdiction of the Honorable Court, the above-named accused,
with intent to kill, evident premeditation, treachery and superior strength,
did then and there willfully, unlawfully and feloniously, with the use of a
bladed/pointed object, stab ROSITA CALONGE y AMLAG, legal wife of the
accused, thus inflicting upon the latter mortal wound which caused her
instantaneous death, to the damage and prejudice of her heirs.
CONTRARY TO LAW.7
Criminal Case No. 4078
That on December 01, 2001 in the morning, at Barangay Cabuluan,
Municipality of Villaverde, Province of Nueva Vizcaya, Philippines and
within the jurisdiction of the Honorable Court, the above-named accused,
with intent to kill, evident premeditation, treachery and superior strength,
did then and there willfully, unlawfully and feloniously, with the use of a
bladed/pointed object, hack KIMBERLY CALONGE y AMLAG, 06 years
old, daughter of the accused, thus inflicting upon the latter mortal wounds
which caused her instantaneous death, to the damage and prejudice of her
heirs.

CONTRARY TO LAW.10

On August 18, 2005, the trial court promulgated its Joint Decision dated
August 10, 2005 convicting appellant of the crimes charged, the fallo of
which reads:

CONTRARY TO LAW.9

WHEREFORE, finding the accused Dionisio Calonge y Verana GUILTY

beyond reasonable doubt of three counts of parricide and one count of
frustrated parricide, he is hereby sentenced as follows: (1) for the killing of
Kimberly Calonge and Dony Rose Calonge, the said accused is hereby
sentenced to suffer death penalty by lethal injection for each case; to pay
the heirs of the said victims, the sums of P75,000.00 for each case as civil
indemnity and P50,000.00 as moral damages; and to pay the heirs actual
damages in the sum of P21,255.00 for the death of Kimberly, Dony Rose
and Rosita A. Calonge; (2) for the killing of Rosita Calonge, the said
accused is hereby sentenced to suffer the penalty of reclusion perpetua;
and to pay the heirs of Rosita the sum of P50,000.00 as civil indemnity and
the sum of P50,000.00 as moral damages; (3) for the crime of frustrated
parricide for wounding Melody Calonge, he is hereby sentenced to suffer
the penalty of 8 years and 1 day of prision mayor as the minimum term to
20 years of [reclusion temporal13] as the maximum term; to pay the victim
moral damages in the sum of P25,000.00; exemplary damages in the sum
of P20,000.00 and P11,015.00 as actual damages.

Criminal Case No. 4080

SO ORDERED.14

That on December 01, 2001 in the morning, at Barangay Cabuluan,

Municipality of Villaverde, Province of Nueva Vizcaya, Philippines and
within the jurisdiction of the Honorable Court, the above-named accused,
with intent to kill, evident premeditation, treachery and superior strength,
did then and there willfully, unlawfully and feloniously, with the use of a
bladed object, hack Melody Calonge y Amlag, 09 years old, daughter of the
accused, thus inflicting upon the latter fatal wounds and performing all the

On appeal, the CA affirmed the trial courts judgment but modified the
death penalty imposed on appellant in Criminal Case Nos. 4078 and 4079
(parricide committed against Kimberly and Dony Rose) by reducing it to
reclusion perpetua.15 Appellant filed a notice of appeal16 and accordingly
the records of the case were elevated to this Court.

CONTRARY TO LAW.8
Criminal Case No. 4079
That on December 01, 2001 in the morning, at Barangay Cabuluan,
Municipality of Villaverde, Province of Nueva Vizcaya, Philippines and
within the jurisdiction of the Honorable Court, the above-named accused,
with intent to kill, evident premeditation, treachery and superior strength,
did then and there willfully, unlawfully and feloniously, with the use of a
bladed/pointed object, stab DONY ROSE CALONGE y AMLAG, 07 years
old, daughter of the accused, thus inflicting upon the latter mortal wounds
which caused her instantaneous death, to the damage and prejudice of her
heirs.

On August 11, 2008, the Court resolved to require the parties to file their
respective supplemental briefs, if they so desired.17 In a Manifestation
dated October 29, 2008, the Public Attorneys Office, representing the
appellant, informed the Court that it would no longer file a supplemental
brief; it was adopting its main brief on record.18 The Office of the Solicitor
General, representing the People, likewise omitted to submit a
supplemental brief.19
Appellant seeks the reversal of his conviction by the RTC and CA on the
following grounds:
I.
THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT
AND CREDENCE TO THE TESTIMONY OF PROSECUTION
WITNESS MELODY CALONGE DESPITE ITS EVIDENT
CONTRADICTIONS AND APPARENT UNREALITY.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE
GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME
CHARGED HAS BEEN PROVEN BEYOND REASONABLE
DOUBT.20
Appellant contends that the trial court overlooked the following
inconsistencies and contradictions in the testimony of Melody: (1) the
alleged misunderstanding between her parents prior to December 1, 2001,
which she first denied but changed it during a subsequent hearing when
she claimed her parents had a quarrel before the stabbing incident
occurred, (2) the time of such quarrel for which she gave three (3) different
answers (8:00 to 9:00 p.m. of November 30, 2001; 2:00 early morning of
December 1, 2001; and 6:00 to 7:00 p.m. of November 30, 2001), and (3)
whether it was Melody or her mother who was first hacked by her father.
These inconsistent statements of the alleged eyewitness engender doubt
as to their reliability and veracity.
Appellant further argues that Melodys identification of appellant as the
perpetrator of the crimes remained uncorroborated. The failure to present
such other alleged witnesses (her grandparents) was not satisfactorily
explained by the prosecution. He assails Melodys testimony as highly
incredible. While Melody claimed that she saw appellant hacked and
stabbed her sisters, the fact is that, during that time, according to her, she
was sleeping together with her mother in another room inside their house.
Moreover, it was impossible for Melody to have seen that the person who
killed her mother and two (2) sisters was appellant when in fact, according
to her, there was no light inside their room when the incident happened.
Clearly, the prosecution failed to discharge its burden of proving the identity
of the offender.
We disagree.
It is plain that the errors imputed to the trial court are factual and chiefly
assail its evaluation of the credibility of witnesses. The doctrinal rule is that
findings of fact made by the trial court, which had the opportunity to directly
observe the witnesses and to determine the probative value of the other
testimonies are entitled to great weight and respect because the trial court
is in a better position to assess the same, an opportunity not equally open
to the appellate court.21 We find no cogent reason to deviate from the
findings and conclusions of the RTC and CA in this case.
It was established from prosecution evidence that the lone survivor Melody
saw appellant using his bolo and knife, struck at her mother who was able
to evade it and run outside the house. Appellant then turned to Melody, and
hacked her three (3) times before stabbing Dony Rose and Kimberly who
were both still sleeping. After finishing off his family, appellant inflicted his
lone superficial wound before lying down on the floor, apparently to avoid

suspicion that he was himself the culprit and create an impression that a
trespasser had attacked all of them in the night. Melody vividly recounted
to the court what she had witnessed while pretending to be still asleep
even after she was hacked by appellant.
Melodys account was corroborated by the findings of prosecution
witnesses Dr. Ragpa (who conducted the autopsy on the bodies of the
three [3] victims) and Dr. Ronduen-Adriatico (who examined and treated
Melody). Dr. Ragpa testified that Rosita sustained only a single stab wound
on the chest. He explained that the width of such wound, 2 inches, was
caused by a single upward thrust and pulling out of the bladed instrument.
The six (6)-inch deep wound hit the lower tip of the heart and resected the
pulmonary vessels. For Rosita, the cause of death was hypovolemic shock
due to resected pulmonary blood vessels. As for Kimberly, she sustained a
hacking wound on the left axilla (armpit), probably inflicted in a lying
position, which cut the head of the left humerus and resecting the axillary
blood vessels. Kimberly also died from hypovolemic shock due to
injured/resected left axillary blood vessels. Dony Rose had one (1) incised
wound and one (1) stab wound on her chest, which penetrated the left
ventricle of the heart. She likewise died of hypovolemic shock due to
penetrating stab wound on the chest.22 On the other hand, Dr. RonduenAdriatico testified that Melody sustained five (5) wounds and had three (3)
amputations of the three (3) digits of her right hand. She found the wounds
located at the left side of the head, lower lip, left side of the neck, left
shoulder, chest and the third, fourth and fifth fingers. Although the only fatal
wound is that at the left side of the neck, the combination of all wounds
would have caused the death of Melody had there been no timely medical
assistance rendered on the patient. The neck wound was a fatal injury
(victim could have died in less than six [6] hours) because of its proximity
to large blood vessels such as carotid and tubular vessels.231avvphi1
We hold that the trial court did not err in finding Melodys testimony clear
and unequivocal, despite her answers not being as complete as would be
desired, considering her age and difficulty of translating the questions to
her in the Ifugao dialect. Her account of the incident was consistent with
the physical evidence, particularly the findings of Dr. Ragpa and Dr.
Ronduen-Adriatico on the injuries sustained and cause of death of the
victims as a result of the carnage wrought upon their family by appellant.
The inconsistencies mentioned by appellant relate only to minor details
and not to the fact of the fatal stabbing of his wife and two (2) children in
his own hands. We have consistently ruled that not all inconsistencies in
the witnesses testimony affect their credibility. Inconsistencies on minor
details and collateral matters do not affect the substance of their
declaration, their veracity, or the weight of their testimonies. Thus, although
there may be inconsistencies on the testimonies of witnesses on minor
details, they do not impair credibility where there is consistency in relating
the principal occurrence and positive identification of the
assailants.24 Discrepancies referring only to minor details and collateral
matters not to the central fact of the crime do not affect the veracity or
detract from the essential credibility of a witness as long as it is coherent
and intrinsically believable on the whole.25
It must be further stressed that during her testimony, Melody had to be
assisted by an interpreter as she responded to the questions in the Ifugao
dialect. Besides, ample margin of error and understanding should be
accorded to young witnesses who, much more than adults, would be
gripped with tension due to the novelty of the experience of testifying
before a court.26 Despite the language barrier, Melody remained categorical
and steadfast in declaring that it was her very own father, appellant, who
hacked her, her mother and her younger sisters using his bolo and knife in
the early morning of December 1, 2001 at their house. Thus, she testified
during the direct examination:
PROS. TURINGAN:
Q. Do you recall of any incident at that evening that is relevant to
this case involving the killing of your sister Dony Rose, Kimberly,
your mother and the fact that you were wounded?

A. Yes, there was sir.

Q. What was that incident that you recall Melody?

A. This one, sir. (Witness showing to the Court the three fingers
that were cut from the middle finger up to the small finger of the
left arm and also below the shoulder of the left arm).

A. He hacked us, sir.

Q. Where else, Melody?

Q. Who hacked you?

A. (Witness showing to the Court the scar located at the left side
of her lower lip and also at the back of her left ear).

A. My papa, sir.
COURT:
Q. Do you know the full name of your papa or nickname?
A. Yes, sir I know.
Q. What is the full name of your papa?
A. Dionisio Calonge, sir.
xxxx
PROS. TURINGAN:

Q. After your father Melody hacked you, what happened next?

A. My mother, sir.
COURT:
Q. What was done to your mother?
A. He stabbed her, sir.
PROS. TURINGAN:
Q. And after he stabbed your mother, what did your father do
next Melody?

Q. What did your father use in hacking you Melody?

A. He returned back and used the bolo in hacking me three

times, sir.

A. The knife and the bolo, sir.

Q. After that, what happened next Melody?

xxxx

A. Next, sir my father used the bolo in stabbing my sisters

armpit and used in hacking her abdomen.

PROS. TURINGAN:
These bolo and knife, how are they related to the bolo and knife
used by your father in hacking you, your sister and your mother?

Q. Which of these bolo and knife did he use in hacking and

stabbing your sister?
ATTY. TABAGO:

A. He stabbed and then he hacked, sir.

Who? Sister?
Q. By the way, these bolo and knife, do you know who own these
bolo and knife?

A. Both, sir.

A. Yes, sir.

COURT:

Q. Who own these bolo and knife Melody?

Q. Are you saying that your father was holding two weapons at
the same time?

A. My father sir.
A. Yes, sir.
Q. How are these knife and bolo related to the bolo and knife
used by your father in hacking your sister, yourself and your
mother?
A. He used that bolo in hacking and stabbing my mother
and my sister, sir.
Q. Who was hacked first by your father Melody?
A. I, sir.
Q. After hacking [you] Melody. . .By the way, what part of your
body was hacked by your father?

Alright, go ahead.
PROS. TURINGAN:
Q. After that what did your father do?
A. He pretended to stab his body, his neck and his
abdomen, sir.
Q. What did your father use in stabbing and wounding himself?
A. The bolo, sir.
Q. You are referring to this Exh. "G"?

A. Yes, sir.27 [Emphasis supplied.]

Q. What was that Melody?

CONTINUATION OF DIRECT

A. Flashlight, sir.

BY PROS. TURINGAN:

Q. Can you identify that flashlight it (sic) [if] you can see it
Melody?

Q. When was that again when your mother and your sisters were
hacked and stabbed by your father?
A. December 1, 2001, sir.
Q. In the early morning of December 1, 2001 were there other
persons in your house aside from you, your father, mother and
your sisters?

A. Yes, sir.
Q. There is here a flashlight marked as Exhibit "I". Can you
please examine this flashlight and tell the Honorable Court if it is
the same flashlight you mentioned?
A. Yes, sir.

A. None, sir.

Q. Who owns this flashlight Melody?

Q. The weapons used by your father in hacking and stabbing

you, your mother and your sisters, if you can see them could you
be able to identify them?

A. My father, sir.

A. Yes, sir.

Q. Could you please tell the Court how this flashlight was being
held by your father?

Q. There are here a bolo and a knife Melody, can you please
examine these bolo and knife and tell the Court if these are the
same weapons used by your father in hacking and stabbing you,
your mother and your sisters?
A. Yes, sir.
Q. Who owns these bolo and knife Melody?
A. My father, sir.28
As to appellants assertion that Melody could not have seen her
father stab her two (2) sisters who slept on the other room since
it was still dark inside the house, Melody (during crossexamination29) had described their "rooms" as not actually
separated by walls. She could thus see her two (2) sisters and
appellant from where she was sleeping.30 The policemen who
investigated the crime scene also found that the partition was
just a curtain.31 Melody slept beside her mother while her sisters
were beside their father on the other "room."32 And while indeed
it was still dark when appellant started hacking his wife and
daughters, Melody had sufficient illumination provided by the
flashlight used by appellant. This was mentioned by Melody in
the later part of her direct examination:
Q. Please tell the Court how you were able to see your father
hacked and stabbed you, your mother and sisters?
A. (No answer yet)
COURT:
Q. x x x Why dont you start with where was she at the time the
hacking and stabbing took place?
PROSECUTOR:
We withdraw that, your Honor. Aside from these bolo and knife
Melody, was your father holding any other things?
A. Yes, sir.

x x x x33

A. He put in his head the flashlight, sir.

Q. Can you demonstrate how he placed in his head Melody?
A. (Witness demonstrating how he placed the flashlight at the left
side of her head with the use of a rubber tied on the
flashlight).34 [emphasis supplied.]
On cross-examination, Melody fixed the time of the incident at 4:00 in the
morning when she woke up to prepare food. However, she went back to
bed because she knew that appellant was already awake. Her mother and
sisters were still asleep. Appellant then started hacking, first her mother,
who evaded the blow and was able to run outside to seek help from her
grandmother and aunt. Returning to Melody, appellant hit her three (3)
times before following her mother outside.35 At this point, Melody also
recalled that her parents quarrelled on the night of November 30, 2001.
Before they went to sleep, she saw her father sharpening his bolo. When
she asked appellant what he was doing, he replied that he will kill Uncle
Santy and his family. Melody said that she pretended to be still asleep
when she woke up the next morning because she had seen appellant
placed that bolo under his pillow. As to the exact time the quarrel took
place, it can be gleaned from the transcript of stenographic notes that
Melody initially could not estimate with reference to the night before they
slept, but she eventually declared that her parents quarrelled from 6:00
oclock until 7:00 oclock in the evening of November 30, 2001.36
Parricide is committed when: (1) a person is killed; (2) the deceased is
killed by the accused; (3) the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate other ascendant or other
descendant, or the legitimate spouse of accused.37 The key element in
parricide is the relationship of the offender with the victim.38 All the
elements of the crime were clearly and sufficiently proved by the
prosecution.
Even granting arguendo that Melody did not see the actual stabbing of her
mother and two (2) sisters, the attendant circumstances point to no one
else but the appellant as the perpetrator. Direct evidence of the actual
killing is not indispensable for convicting an accused when circumstantial
evidence can sufficiently establish his guilt. The oft-repeated rule has been
that circumstantial evidence is adequate for conviction if there is more than
one circumstance, the facts from which the inferences are derived have
been proven and the combination of all circumstances is such as to

produce a conviction beyond reasonable doubt.39 While no general rule can

be laid down as to the quantity of circumstantial evidence which will suffice
in a given case, all the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent, and with
every other rational hypothesis except that of guilt. The circumstances
proved should constitute an unbroken chain which leads to only one fair
and reasonable conclusion that the accused, to the exclusion of all others,
is the guilty person.40
As correctly found by the CA, the following circumstances taken together
established without doubt that it was appellant who inflicted fatal wounds
on Rosita, Melody, Dony Rose and Kimberly inside their house early
morning of December 1, 2001: (1) after having a quarrel with Rosita the
previous night, appellant was seen by Melody sharpening his bolo which
he later hid under his pillow; (2) the bolo, knife and flashlight used in the
hacking of the victims belong to appellant, and which were found in his
possession when policemen arrived at the scene; (3) the medical findings
showed that the victims injuries were caused by sharp and bladed
instruments; (4) there were no sign of forcible entry as the things inside the
house were not disarranged; (5) the only persons inside the house were
appellant, Rosita and their three children who slept in adjacent rooms
separated only by a curtain; (6) the only house near appellants house was
that of his parents-in-law; (7) Rosita was heard by her relatives shouting for
help before their bodies were discovered; (8) appellant sustained only
superficial wounds and was found conscious by the policemen; (9)
appellant could not explain or say anything about how and when he and
the victims were injured; and (10) Melody saw her father initially strike at
her mother before the latter ran outside the house, and then stab her also
five (5) times.
Appellant simply raises the defense of denial, which is inherently weak and
cannot prevail over the positive identification41 made by Melody that he was
the one (1) who hacked her, her mother and her sisters. Moreover, an
affirmative testimony is far stronger than a negative testimony especially
when it comes from the mouth of a credible witness,42 as in this case, the
child of the assailant who survived his murderous rampage.
Under Article 246 of the Revised Penal Code, as amended by Section 5 of
Republic Act (R.A.) No. 7659, the penalty for parricide is composed of two
(2) indivisible penalties, reclusion perpetua to death.
In the killing of Dony Rose and Kimberly, the trial court was correct in
appreciating the aggravating circumstance of treachery. There is treachery
when the attack is so sudden and unexpected that the victim had no
opportunity either to avert the attack or to defend himself.43 Indeed, nothing
can be more sudden and unexpected than when a father stabs to death his
two (2) young daughters while they were sound asleep and totally
defenseless. Thus, for the parricide committed against both Dony Rose
and Kimberly, appellant was properly meted the death penalty in Criminal
Case Nos. 4079 and 4078. Since the killings were committed in 2001, the
trial court was correct in imposing upon appellant the supreme penalty of
death. In view, however, of the passage and effectivity of R.A. No. 9346 on
June 24, 2006, proscribing the imposition of the capital punishment, the CA
correctly modified the imposable penalty on appellant to reclusion
perpetua, without eligibility for parole, in line with Sections 2 and 3 of the
said law.44
SEC. 2. In lieu of the death penalty, the following shall be imposed:
(a) the penalty of reclusion perpetua, when the law violated
makes use of the nomenclature of the penalties of the Revised
Penal Code; or
(b) the penalty of life imprisonment, when the law violated does
not make use of the nomenclature of the penalties of the
Revised Penal Code.

SEC. 3. Persons convicted of offenses punished with reclusion perpetua or

whose sentences will be reduced to reclusion perpetua, by reason of this
Act, shall not be eligible for parole under Act No. 4103, otherwise known as
the Indeterminate Sentence Law, as amended. (Underscoring supplied.)
As to the killing of Rosita, neither treachery nor evident premeditation was
present considering that she was able to parry the first thrust of appellant
and ran away outside the house, and there is no evidence proving that
appellant determined to commit the crime even as Melody recounted that
she saw his father sharpening his bolo before they slept the previous night.
Evident premeditation needs proof of the time when the intent to commit
the crime is engendered in the mind of the accused, the motive which
gives rise to it, and the means which are beforehand selected to carry out
that intent. All such facts and antecedents which make notorious the preexisting design to accomplish the criminal purpose must be proven to the
satisfaction of the court.45 There is paucity of evidence as to the time,
motive and the means chosen by appellant to carry out the intent to kill his
entire family. There being no aggravating or mitigating circumstance, the
trial court was correct in sentencing appellant to the lower penalty of
reclusion perpetua46 in Criminal Case No. 4077.
On the civil indemnity awarded by the trial court in the amount
of P75,000.00 each and another P50,000.00 each as moral damages, for
the deaths of Dony Rose and Kimberly, the Court sustains the same.
Likewise, the heirs of Rosita are entitled to civil indemnity of P50,000.00
and another P50,000.00 as moral damages.
With regard to the frustrated felony, Article 250 of the Revised Penal Code,
as amended, provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The
courts, in view of the facts of the case, may impose upon the person guilty
of the frustrated crime of parricide, murder or homicide, defined and
penalized in the preceding articles, a penalty lower by one degree than that
which should be imposed under the provisions of Article 50.
The courts, considering the facts of the case, may likewise reduce by one
degree the penalty which under Article 51 should be imposed for an
attempt to commit any of such crimes.
We therefore find the penalty imposed by the trial court proper and correct
for this offense.
The trial court awarded Melody moral damages in the amount
of P25,000.00, and another P20,000.00 as exemplary damages which are
justified under Articles 2219 (1) and 2229 of the Civil Code. Further, under
Article 2230 of the New Civil Code, exemplary damages are awarded to
serve as a deterrent to serious wrongdoings, as vindication of undue
suffering and wanton invasion of the rights of an injured person, and as
punishment for those guilty of outrageous conduct.47
Melody is likewise entitled to the sum of P11,025.00 as cost of her
treatment and hospitalization. Anent actual or compensatory damages, it
bears stressing that only substantiated and proven expenses or those
which appear to have been genuinely incurred in connection with the
death, wake or burial of the victim will be recognized by the
courts.48 Prosecution witness Lourdes Amlag testified that the family
incurred expenses in connection with the funeral, wake and burial,
totalling P21,255.00, as shown in the itemized list submitted to the trial
court.49
WHEREFORE, premises considered, the Decision dated November 29,
2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01516 is hereby
AFFIRMED.
With costs against accused-appellant.

SO ORDERED.

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MARTIN S. VILLARAMA, JR.

Associate Justice

Estrada v Sandi

148560

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Nov 19,2001