G.R. No.

L-18924

October 19, 1922

THE
PEOPLE
OF
THE
PHILIPPINE
ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General
Villa-Real
Eduardo Gutierrez Repide for appellee.

for

appellant.

ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of
First Instance of Manila, sustaining the demurrer presented by the defendant to the
information that initiated this case and in which the appellee is accused of having
illegally smoked opium, aboard the merchant vessel Changsa of English nationality
while said vessel was anchored in Manila Bay two and a half miles from the shores
of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so
held and dismissed the case.
The question that presents itself for our consideration is whether such ruling is
erroneous or not; and it will or will not be erroneous according as said court has or
has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over
crime, like the one herein involved, committed aboard merchant vessels anchored
in our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes committed
aboard a foreign merchant vessels should not be prosecuted in the courts of the
country within whose territorial jurisdiction they were committed, unless their
commission affects the peace and security of the territory; and the English rule,
based on the territorial principle and followed in the United States, according to
which, crimes perpetrated under such circumstances are in general triable in the
courts of the country within territory they were committed. Of this two rules, it is
the last one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority in the
Philippines which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.],
116), Chief Justice Marshall said:

. . . When merchant vessels enter for the purposes of trade, it would be

obviously inconvenient and dangerous to society, and would subject the laws
to continual infraction, and the government to degradation, if such individuals
or merchants did not owe temporary and local allegiance, and were not
amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or crime
committed on the high seas or within the territorial waters of any other
country, but when she came within three miles of a line drawn from the
headlands, which embrace the entrance to Manila Bay, she was within
territorial waters, and a new set of principles became applicable. (Wheaton,
International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs.
490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then
subject to the jurisdiction of the territorial sovereign subject to such
limitations as have been conceded by that sovereignty through the proper
political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and
Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which
disturb only the peace of the ship or those on board are to be dealt with
exclusively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the offenders
punished by the proper authorities of the local jurisdiction. It may not be easy
at all times to determine which of the two jurisdictions a particular act of
disorder belongs. Much will undoubtedly depend on the attending
circumstances of the particular case, but all must concede that felonious
homicide is a subject for the local jurisdiction, and that if the proper
authorities are proceeding with the case in the regular way the consul has no
right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the Philippine
Islands, aboard a foreign vessel in transit in any local port, does not, as a
general rule, constitute a crime triable by the courts of the Islands, such
vessels being considered as an extension of its own nationality, the same rule
does not apply when the article, the use of which is prohibited in the Islands,
is landed from the vessels upon Philippine soil; in such a case an open
violation of the laws of the land is committed with respect to which, as it is a
violation of the penal law in force at the place of the commission of the crime,

no court other than that established in the said place has jurisdiction of the
offense, in the absence of an agreement under an international treaty.
As to whether the United States has ever consented by treaty or otherwise to
renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as
England is concerned, to which nation the ship where the crime in question was
committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1,
page 625, Malloy says the following:
There shall be between the territories of the United States of America, and all
the territories of His Britanic Majesty in Europe, a reciprocal liberty of
commerce. The inhabitants of the two countries, respectively, shall have
liberty freely and securely to come with their ships and cargoes to all such
places, ports and rivers, in the territories aforesaid, to which other foreigners
are permitted to come, to enter into the same, and to remain and reside in
any parts of the said territories, respectively; also to hire and occupy houses
and warehouses for the purposes of their commerce; and, generally, the
merchants and traders of each nation respectively shall enjoy the most
complete protection and security for their commerce, but subject always to
the laws and statutes of the two countries, respectively. (Art. 1, Commerce
and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in transit
was held by this court not triable by or courts, because it being the primary object
of our Opium Law to protect the inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere possession in such a ship, without
being used in our territory, does not being about in the said territory those effects
that our statute contemplates avoiding. Hence such a mere possession is not
considered a disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a foreign
merchant ship, is certainly a breach of the public order here established, because it
causes such drug to produce its pernicious effects within our territory. It seriously
contravenes the purpose that our Legislature has in mind in enacting the aforesaid
repressive statute. Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel at
anchor in the port of Manila in open defiance of the local authorities, who are
impotent to lay hands on him, is simply subversive of public order. It requires
no unusual stretch of the imagination to conceive that a foreign ship may
come into the port of Manila and allow or solicit Chinese residents to smoke
opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of
origin for further proceedings in accordance with law, without special findings as to
costs. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.
THE
UNITED
STATES, Plaintiff-Appellee,
CHIU),Defendant-Appellant.
Thos.
D.
Aitken
Attorney-General Villamor for appellee.

vs. LOOK

for

CHAW

( alias LUK

appellant.

ARELLANO, C.J. :chanrobles virtual law library

This case is a separate part of Case No. 5887 and bears No. 5889 on the general
docket of this court, and No. 377 on the docket of the Court of First Instance of
Cebu.chanroblesvirtualawlibrary chanrobles virtual law library
The complaint in this case states:
That, on or about the 18th of August, 1909, within the boundaries of the
municipality of Cebu of this province and judicial district, the said Look Chaw
(alias Luk Chiu) did, without having obtained authorization from the Collector of
Internal Revenue and without being authorized in any manner and traffic in the
same.
C.J. Milliron, an internal-revenue agent, testified that Vicente Base took to the
governor of Cebu a can of opium containing 200 grammes of the said drug, in order
to show him that the accused had sold opium to Base, and the governor called the
witness in order that he might take part in this case. After the accused was arrested,
he confessed before the witness and the provincial fiscal that he had sold to Vicente
Base thirty cans of opium on the 15th of August, 1909, but that he had received the
price thereof, and that the money which was found in a box of his on board the
British steamship Erroll, P1,500 in amount, was obtained in Manila and was seized
by the captain of the vessel. According to the accused, he had purchased in
Hongkong 137 cans of opium for the purpose of introducing it as contraband into
Mexico, the destination of the vessel, but that as the latter changed its route
touching
first
at
Manila,
the
opium
arrived
at
Cebu.chanroblesvirtualawlibrary chanrobles virtual law library
Vicente Base testified that he had negotiated with the accused with respect to the
sale of the three sacks of opium which were seized while in the latter's possession
an were the subject matter of the previous cause; that these three sacks were not
taken ashore, because the accused would not permit this to be done without

previous delivery of the whole price of P1,000, of which witness had only paid P533;
that
he
therefore
only
took
one
can
from
one
of
the
said
sacks.chanroblesvirtualawlibrary chanrobles virtual law library
The Court of First Instance of Cebu sentenced the accused to one year's
imprisonment and the payment of a fine of P2,000, with additional subsidiary
imprisonment in case of insolvency, not to exceed one-third of the principal penalty,
and to the payment of the costs of the trial. It was ordered in the judgment that the
exhibits connected with the case should be confiscated, and that, in case of an
appeal, and even after the sentence had been served, the defendant should not be
released from custody, but delivered to the customs authorities for the purpose of
the
enforcement
of
the
existing
immigration
laws.chanroblesvirtualawlibrarychanrobles virtual law library
The defendant appealed and has alleged before this court that he can not punished
in accordance with section 15 of Act No. 1761, under which the complaint was
drawn.chanroblesvirtualawlibrary chanrobles virtual law library
This said section 15 reads thus:
( a) No person shall import, cook, or prepare opium, or engage in the business of
purchasing or selling opium or of dealing or trafficking therein, unless he shall first
have secured from the Collector of Internal Revenue a license to transact such
business and shall have paid the license tax prescribed by this Act. . . .
To make an isolated sale, says the appellant, is not to engage in the business of
selling. To negotiate the sale of opium does not mean clandestinely to sell opium
once.chanroblesvirtualawlibrary chanrobles virtual law library
In our opinion, the act defined in section 15 is distinct from that penalized in section
5; the act referred to in the latter is any act of sale, while that concerned in the
former relates to the business of selling, in an habitual, professional manner, as one
of an undertaking or occupation, without license.
SEC. 5. ( a) It shall be unlawful to sell, transfer, give, or deliver opium to any person
except to a duly licensed and practicing physician, pharmacist, or second-class
pharmacist, or a duly licensed dispensator of opium, or duly registered confirmed
user of opium in a licensed opium dispensary for consumption therein only, and in
accordance with the provisions of this Act: . . .chanroblesvirtualawlibrary chanrobles
virtual law library
( b) Any person violating the provisions of the preceding subsection shall be
punished by a fine not exceeding one thousand pesos, or by imprisonment for a

period not exceeding one year, or both such fine and imprisonment, in the
discretion of the court: . . .
The crime concerned in this case, according to this section 5, is compromised within
the language of the complaint which charges the act of selling opium without the
authorization
of
the
Collector
of
Internal
Revenue.chanroblesvirtualawlibrary chanrobles virtual law library
The other ground of the appeal is that the confession of the accused were taken into
account for the purpose of his conviction. The trial court pronounced its sentence
after considering that "sufficient proof has been furnished by the evidence,' and the
evidence did not consist solely in the confession that the accused, on the day and at
the place mentioned in the complaint, contracted with Vicente Base for the sale of
the opium, the subject matter of the present prosecution; and as this finding does
not appear to be erroneous nor contrary to the conclusions reached from the
evidence, it is accepted by this court in order that thereby the judgment appealed
from
may
be
dully
affirmed,
as
we
do
affirm
the
same.chanroblesvirtualawlibrary chanrobles virtual law library
This disposes of the appeal; but, in the opinion of this court, the defense of double
jeopardy alleged by the accused in first instance, with exception to the order
disallowing it, can not but be taken into consideration, although in this instance, on
appeal, that defense was not reproduced with the allegation that its disallowance
was an error committed by the lower court in its judgment. This point appears to
involve a question of jurisdiction.chanroblesvirtualawlibrarychanrobles virtual law
library
Before separating the two causes, as related at the beginning of this decision, there
was but one single complaint and there would have been only one trial for the
possession of opium and for the sale of opium. But the defendant's counsel set up a
demurrer, arguing that the complaint was defective inasmuch as it charged two
distinct crimes, for according to the defense, it was alleged to be one crime to
possess opium and another different crime to sell opium; and the court deferred to
this pretension and ordered the filing of two complaints, one for the possession of
opium and another for the sale of opium; that for the possession of opium was the
one first tried by the lower court.chanroblesvirtualawlibrary chanrobles virtual law
library
In answering the second complaint for the sale of opium, the defendant alleged that
he had already been in jeopardy.
The defendant was convicted yesterday," said his attorney, "for the violation of law
committed, of possessing opium, and has already been sentenced by this court to
five year's imprisonment and in addition to pay a fine of ten thousand pesos.

According to the principles of penal law, when a crime has been committed which is
necessary in order to commit another, the delinquent, of course, can not be
punished for the two crimes, but must suffer for the crime for which the greater
penalty was provided.
The court rejected this allegation: first, because the prosecution of two crimes
instead of one was brought about by the defense itself; and second, because, in the
opinion of the trial judge, if the defendant had first been convicted for selling opium,
he certainly would have been in jeopardy in the cause prosecuted for possessing
opium, for the reason that really one can not sell opium without possessing it, while,
if the terms are inverted, the same result does not follow, because one may posses
opium without selling it, and consequently in the present cause the allegation of
double jeopardy is an admissible.chanroblesvirtualawlibrary chanrobles virtual law
library
True it is, we assert, that it is one crime to possess opium, punished by section 31 of
the Act, and another, to sell opium, penalized by section 5 of the same Act before
cited.chanroblesvirtualawlibrary chanrobles virtual law library
And it is also true that when one single act constitutes two or more crimes, or when
one of them is a necessary means for the commission of the other, only the penalty
corresponding to the more serious crime shall be imposed, in its maximum degree,
and thus, he who smokes opium in a pipe, by one single act lays himself liable to
three penalties of the law, one of them, merely for the fact of possessing opium,
another, for the mere possession of a pipe in which opium is smoked, and the other,
for the act of smoking opium; but the penalties corresponding to these three crimes
ought not to be imposed upon the defendant in this case, and only the penalty for
the most serious of these crimes.chanroblesvirtualawlibrary chanrobles virtual law
library
But the illegal possession of 137 cans of opium and the illegal sale of 30 cans of
opium, which are two acts confessed by the accused, are not one act which
constitutes two crimes, nor a crime which is a necessary means for the commission
of another. They are two isolated acts, punishable, each of them, in themselves.
Only in the event where all the amount of the opium possessed and seized be in its
totality the same as that which was possessed with the sole purpose of being
delivered as the matter or subject of a sale previously agree upon, could it be said,
in the opinion of this court, that the possession of the opium was a necessary
means to effect the delivery by reason of the sale, and that the sale agreed upon
was the sole reason for the possession of the opium seized. The possession of the
quantity contained in the pipe can not be considered as a different crime from that
of smoking opium in a pipe, nor the possession of the pipe, as a crime different from
that of smoking opium in a pipe. But if the person surprised in smoking opium in a
pipe was also surprised in the possession of the thirty cans sold by the accused, it

could not properly be inferred that the possession of these thirty cans, which in
itself is a crime, was a necessary means for the commission of the other crime of
smoking opium in a pipe, and that the person in whose possession the thirty cans
were seized, possessed the same solely and exclusively for the purpose of smoking
opium in a pipe. It might very well have been that he had acquired the drug for the
purpose of inhaling, injecting, chewing, swallowing, or other uses, and that only by
chance did it occur to him to try to smoke it in a pipe, on the very occasion when he
was surprised, this being the evident fact of the commission of the crime which can
not, in its essence, include the existence of thirty cans, not then contained in the
pipe, each can certainly being susceptible of other various uses, every one of which
might
by
its
nature
constitute
a
different
crime.chanroblesvirtualawlibrary chanrobles virtual law library
We consider this doctrine equally applicable to crimes which are evils by their very
nature, as well as to those which are merely malum quia prohibitum; because it not
only aims at a more or less strict application of a penal precept which, undoubtedly,
in the practice of this court, usually tends toward the lesser severity and,
occasionally, the greatest benignity when the second class, or conventional crimes,
are concerned, but also because that doctrine is the logical result of the process of
the intelligence in the derivation of consequences from the principles constitute of
the nature of things.chanroblesvirtualawlibrary chanrobles virtual law library
Thus it is that we find the institution of this cause, and its separation from the
previous one, to be founded on law and juridical principles, and the judgment
appealed from, to be in accordance with right and equity, except with regard to the
amount of the penalty, which we reduce, in harmony with the provisions of section 5
aforementioned, to six months' imprisonment and a fine of P1,000 Philippine
currency.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, with the understanding that the imprisonment and the fine imposed shall
be, respectively, six months and P1,000 Philippine Currency, we affirm, as to all the
rest, the judgment appealed from, with the costs of this instance against the
appellant. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library
G.R. No. L-13005

October 10, 1917

THE
UNITED
vs.
AH SING, defendant-appellant.
Antonio
Sanz
Acting Attorney-General Paredes for appellee.

STATES, plaintiff-appellee,

for

appellant.

MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu finding the
defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and
sentencing him to two years imprisonment, to pay a fine of P300 or to suffer
subsidiary imprisonment in case of insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of China employed
as a fireman on the steamshipShun Chang. The Shun Chang is a foreign steamer
which arrived at the port of Cebu on April 25, 1917, after a voyage direct from the
port of Saigon. The defendant bought eight cans of opium in Saigon, brought them
on board the steamship Shun Chang, and had them in his possession during the trip
from Saigon to Cebu. When the steamer anchored in the port of Cebu on April 25,
1917, the authorities on making a search found the eight cans of opium above
mentioned hidden in the ashes below the boiler of the steamer's engine. The
defendant confessed that he was the owner of this opium, and that he had
purchased it in Saigon. He did not confess, however, as to his purpose in buying the
opium. He did not say that it was his intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or indirect, to show that the intention of
the accused was to import illegally this opium into the Philippine Islands, was
introduced.
Has the crime of illegal importation of opium into the Philippine Islands been
proven?
Two decisions of this Court are cited in the judgment of the trial court, but with the
intimation that there exists inconsistently between the doctrines laid down in the
two cases. However, neither decision is directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion
handed down by the Chief Justice, it is found
That, although the mere possession of a thing of prohibited use in these
Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on
account of such vessel being considered as an extension of its own
nationality, the same rule does no apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium,
is landed from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the crime, only the
court established in the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty.1awphil.net

A marked difference between the facts in the Look Chaw case and the facts in the
present instance is readily observable. In the Look Chaw case, the charge case the
illegal possession and sale of opium in the present case the charge as illegal
importation of opium; in the Look Chaw case the foreign vessel was in transit in
the present case the foreign vessel was not in transit; in the Look Chaw case the
opium was landed from the vessel upon Philippine soil in the present case of
United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which
resolution turned, was that in a prosecution based on the illegal importation of
opium or other prohibited drug, the Government must prove, or offer evidence
sufficient to raise a presumption, that the vessel from which the drug is discharged
came into Philippine waters from a foreign country with the drug on board. In the
Jose case, the defendants were acquitted because it was not proved that the opium
was imported from a foreign country; in the present case there is no question but
what the opium came from Saigon to Cebu. However, in the opinion in the Jose
case, we find the following which may be obiter dicta, but which at least is
interesting as showing the view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying it
anchored in Subic Bay. It was not necessary that the opium discharged or that
it be taken from the ship. It was sufficient that the opium was brought into
the waters of the Philippine Islands on a boat destined for a Philippine port
and which subsequently anchored in a port of the Philippine Islands with
intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just quoted, we
return to an examination of the applicable provisions of the law. It is to be noted
that section 4 of Act No. 2381 begins, "Any person who shall unlawfully import or
bring any prohibited drug into the Philippine Islands." "Import" and "bring" are
synonymous terms. The Federal Courts of the United States have held that the mere
act of going into a port, without breaking bulk, is prima facie evidence of
importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is
not the making entry of goods at the custom house, but merely the bringing them
into port; and the importation is complete before entry of the Custom House. (U.
S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.)
As applied to the Opium Law, we expressly hold that any person unlawfully imports
or brings any prohibited drug into the Philippine Islands, when the prohibited drug is
found under this person's control on a vessel which has come direct from a foreign
country and is within the jurisdictional limits of the Philippine Islands. In such case, a
person is guilty of illegal importation of the drug unless contrary circumstances
exist or the defense proves otherwise. Applied to the facts herein, it would be
absurb to think that the accused was merely carrying opium back and forth between
Saigon and Cebu for the mere pleasure of so doing. It would likewise be impossible
to conceive that the accused needed so large an amount of opium for his personal
use. No better explanation being possible, the logical deduction is that the

defendant intended this opium to be brought into the Philippine Islands. We

accordingly find that there was illegal importation of opium from a foreign country
into the Philippine Islands. To anticipate any possible misunderstanding, let it be
said that these statements do not relate to foreign vessels in transit, a situation not
present.
The defendant and appellant, having been proved guilty beyond a reasonable doubt
as charged and the sentence of the trial court being within the limits provided by
law, it results that the judgment must be affirmed with the costs of this instance
against the appellant. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
Adm. Case No. 3086 February 23, 1988
ALEXANDER
PADILLA, complainant,
vs.
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court
of Pasay City Branch 113,respondent.
RESOLUTION

PER CURIAM:
This is an administrative complaint, dated August 6, 1987, filed by the then
Commissioner of Customs, Alexander Padilla, against respondent Baltazar R. Dizon,
RTC Judge, Branch 115, Pasay City, for rendering a manifestly erroneous decision
due, at the very least, to gross incompetence and gross ignorance of the law, in
Criminal Case No. 86- 10126-P, entitled "People of the Philippines vs. Lo Chi Fai",
acquitting said accused of the offense charged, i.e., smuggling of foreign currency
out of the country.
Required by the Court to answer the complaint, the respondent judge filed an
Answer, dated October 6, 1987, reciting his "commendable record as a fearless
prosecutor" since his appointment as Assistant City Fiscal of Manila on December 4,
1962, until his appointment eventually as RTC Judge on February 18, 1983; that at in
the reorganization of the judiciary after the February 26, 1986 revolution, he was
reappointed to his present position; that his length of service as prosecutor and
judge is "tangible proof that would negate the allegations of the petitioner" (should
be complainant), whereas the latter did not last long in the service for reasons only
known to him; that the decision involved in the complaint was promulgated by
respondent on September 29, 1986, but the complaint against him was filed only on
August 6, 1987, a clear indication of malice and ill-will of the complainant to subject
respondent to harassment, humiliation and vindictiveness; that his decision, of
which he submits a copy (Annex A) as part of his Answer, is based on "fundamental
principles and the foundation of rights and justice" and that if there are mistakes or

errors in the questioned decision, they are committed in good faith. Accordingly,
respondent prays for the dismissal of the petition (should be complaint).
The issue before the Court is whether or not the respondent judge is guilty of gross
incompetence or gross ignorance of the law in rendering the decision in question. A
judge can not be held to account or answer, criminally, civilly or administratively,
for an erroneous decision rendered by him in good faith.
The case in which the respondent rendered a decision of acquittal involved a tourist,
Lo Chi Fai, who was caught by a Customs guard at the Manila International Airport
while attempting to smuggle foreign currency and foreign exchange instruments out
of the country. Lo Chi Fai, was apprehended by a customs guard and two PAFSECOM
officers on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines
bound for Hongkong. At the time of his apprehension, he was found carrying with
him foreign currency and foreign exchange instruments (380 pieces) amounting to
US$ 355,349.57, in various currency denominations, to wit: Japanese Yen, Swiss
Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar,
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and Hongkong
Dollar, without any authority as provided by law. At the time the accused was
apprehended, he was able to exhibit two currency declarations which he was
supposed to have accomplished upon his arrival in Manila in previous trips, namely,
CB Currency Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and
Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, dated June 29,
1986 for Japanese Yen 6,600,000.00.
An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of
Sec. 6, Central Bank Circular No. 960, as follows:
That on or about the 9th day of July, 1986, in the City of Pasay, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, Mr. LO CHI FAI, did then and there wilfully,
unlawfully and feloniously attempt to take out of the Philippines
through the Manila International Airport the following foreign
currencies in cash and in checks:

Japanese Yen

Y 32,800,000.00

Swiss Franc

SW. FR 6,9000.00

Australian Dollar

A$ 17,425.00

Singapore Dollar

S$ 9,945.00

Deutsche Marck

DM 18,595.00

Canadian Dollar

CS 13,330.00

Hongkong Dollar

HK$ 15,630.00

HFL Guilder

HFL 430.00

French Franc

F/6,860.00

US Dollar

US$ 73,950.00

English Pound

5,318.00

Malaysian Dollar

M$. 14,760.00

(in checks)

Australian Dollar

A$ 7,750.00

British Pound

700.00

US Dollar

US$ 17,630.00

Canadian Dollar

C$ 990.00

without authority from the Central Bank.

Contrary to Law.
The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently
raffled to Branch 113, presided by herein respondent Judge Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central Bank provides as follows:
Sec. 6. Export, import of foreign exchange; exceptions. No person
shall take out or transmit or attempt to take out or transmit foreign
exchange in any form, out of the Philippines directly, through other
persons, through the mails or through international carriers except
when specifically authorized by the Central Bank or allowed under
existing international agreements or Central Bank regulations.
Tourists and non-resident visitors may take out or send out from the
Philippine foreign exchange in amounts not exceeding such amounts of
foreign exchange brought in by them. For purposes of establishing the
amount of foreign exchange brought in or out of the Philippines,
tourists and non-resident temporary visitors bringing with them more
than US$3,000.00 or its equivalent in other foreign currencies shall
declare their foreign exchange in the form prescribed by the Central
Bank at points of entries upon arrival in the Philippines.
The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:
Section 1. Blackmarketing of Foreign Exchange . That any person
who shall engage in the trading or purchase and sale of foreign
currency in violation of existing laws or rules and regulations of the
Central Bank shall be guilty of the crime of blackmarketing of foreign
exchange and shall suffer the penalty of reclusion temporal, (minimum
of 12 years and I day and maximum of 20 years) and a fine of no less
than fifty thousand (P50,000.00) Pesos.
At the trial, the accused tried to establish that he was a businessman from Kowloon,
Hongkong, engaged in the garment business, in which he had invested 4 to 5
million Hongkong Dollars; that he had come to the Philippines 9 to 1 0 times,
although the only dates he could remember were April 2, 1986, May 4, 1986, June
28,1986, and July 8, 1986; that the reason for his coming to the Philippines was to

invest in business in the Philippines and also to play in the casino; that he had a
group of business associates who decided to invest in business with him, namely:
Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan,
who had their own businesses in Japan and Hongkong; that when he came to the
Philippines on April 2,1986, he brought US$50,000.00 and 8,500,000.00 Japanese
Yen which he tried to declare but the Central Bank representative refused to accept
his declaration, until he could get a confirmation as to the source of the money, for
which reason he contacted his bank in Hongkong and a telex was sent to him on
April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00
Japanese Yen when he arrived on May 4,1986 which he declared (Exh. 1). Again, he
declared 8,600,000.00 Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He
also testified that his business associates, as per their agreement to invest in some
business with him in the Philippines, started putting their money for this purpose in
a common fund, hence, every time anyone of them came to the Philippines, they
would declare the money they were bringing in, and all declarations were handed to
and kept by him; these currency declarations were presented at the trial as exhibits
for the defense. When asked by the court why he did not present all of these
declarations when he was apprehended at the airport, his answer was that he was
not asked to present the declaration papers of his associates, and besides, he does
not understand English and he was not told to do so. He also testified on crossexamination that the reason he was going back to Hongkong bringing with him all
the money intended to be invested in the Philippines was because of the fear of his
group that the "revolution" taking place in Manila might become widespread. It was
because of this fear that he was urged by his associates to come to Manila on July 8,
1986 to bring the money out of the Philippines.
The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is whether or not the
accused wilfully violated Section 6 of Circular No. 960. The fact that the
accused had in his possession the foreign currencies when he was
about to depart from the Philippines did not by that act alone make
him liable for Violation of Section 6.
What is imperative is the purpose for which the act of bringing foreign
currencies out of the country was done the very intention. It is that
which qualifies the act as criminal or not. There must be that clear
intention to violate and benefit from the act done. Intent is a mental
state, the existence of which is shown by overt acts of a person.
The respondent proceeded to analyze the evidence which, according to him, tended
to show that the accused had no wilfull intention to violate the law. According to the
respondent in his decision:
... this Court is persuaded to accept the explanation of the defense that
the currencies confiscated and/or seized from the accused belong to
him and his business associates abovenamed. And from the
unwavering and unequivocal testimonies of Mr. Templo and all of
currencies in question came from abroad and not from the local source
which is what is being prohibited by the government. Yes, simply

reading the provisions of said circular will, readily show that the
currency declaration is required for the purpose of establishing the
amount of currency being brought by tourist or temporary non-resident
visitors into the country. The currency declarations, therefore, is
already (sic) intended to serve as a guideline for the Customs
authorities to determine the amounts actually brought in by them to
correspond to the amounts that could be allowed to be taken out.
Indeed, this Court is amazed and really has its misgivings in the
manner currency declarations were made as testified to by the Central
Bank employees. Why the Bureau of Customs representative never
took part in all these declarations testified to by no less than five (5)
Central Bank employees? Seemingly, these employees are the
favorites of these travellers. It is the hope of this Court that the
authorities must do something to remedy the evident flaw in the
system for effective implementation of the questioned Central Bank
Circular No. 960.
But even with a doubtful mind this Court would not be able to pin
criminal responsibility on the accused. This is due to its steadfast
adherence and devotion to the rule of law-a factor in restoring the
almost lost faith and erosion of confidence of the people in the
administration of justice. Courts of Justice are guided only by the rule
of evidence.
The respondent-judge has shown gross incompetence or gross ignorance of the law
in holding that to convict the accused for violation of Central Bank Circular No. 960,
the prosecution must establish that the accused had the criminal intent to violate
the law. The respondent ought to know that proof of malice or deliberate intent
(mens rea) is not essential in offenses punished by special laws, which are mala
prohibita. In requiring proof of malice, the respondent has by his gross ignorance
allowed the accused to go scot free. The accused at the time of his apprehension at
the Manila International Airport had in his possession the amount of US$355,349.57
in assorted foreign currencies and foreign exchange instruments (380 pieces),
without any specific authority from the Central Bank as required by law. At the time
of his apprehension, he was able to exhibit only two foreign currency declarations in
his possession. These were old declarations made by him on the occasion of his
previous trips to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case for violation
of Central Bank Circular No. 960, the respondent nonetheless chose to exonerate
the accused based on his defense that the foreign currency he was bringing out of
the country at the time he was apprehended by the customs authorities were
brought into the Philippines by him and his alleged business associates on several
previous occasions when they came to the Philippines, supposedly to be used for
the purpose of investing in some unspecified or undetermined business ventures;
that this money was kept in the Philippines and he precisely came to the Philippines
to take the money out as he and his alleged business associates were afraid that
the "attempted revolution" which occurred on July 6,1986 might spread. Such
fantastic tale, although totally irrelevant to the matter of the criminal liability of the
accused under the information, was swallowed by the respondent-judge "hook, line

and sinker." It did not matter to the respondent that the foreign currency and
foreign currency instruments found in the possession of the accused when he was
apprehended at the airport-380 pieces in all-and the amounts of such foreign
exchange did not correspond to the foreign currency declarations presented by the
accused at the trial. It did not matter to the respondent that the accused by his own
story admitted, in effect, that he was a carrier" of foreign currency for other people.
The respondent closed his eyes to the fact that the very substantial amounts of
foreign exchange found in the possession of the accused at the time of his
apprehension consisted of personal checks of other people, as well as cash in
various currency denominations (12 kinds of currency in all), which clearly belied
the claim of the accused that they were part of the funds which he and his
supposed associates had brought in and kept in the Philippines for the purpose of
investing in some business ventures. The respondent ignored the fact that most of
the CB Currency declarations presented by the defense at the trial were
declarations belonging to other people which could not be utilized by the accused to
justify his having the foreign exchange in his possession. Although contrary to
ordinary human experience and behavior, the respondent judge chose to give
credence to the fantastic tale of the accused that he and his alleged business
associates had brought in from time to time and accumulated and kept in the
Philippines foreign exchange (of very substantial amounts in cash and checks in
various foreign currency denominations) for the purpose of investing in business
even before they knew and had come to an agreement as to the specific business
venture in which they were going to invest. These and other circumstances which
make the story concocted by the accused so palpably unbelievable as to render the
findings of the respondent judge obviously contrived to favor the acquittal of the
accused, thereby clearly negating his claim that he rendered the decision "in good
faith." His actuations in this case amount to grave misconduct prejudicial to the
interest of sound and fair administration of justice.
He not only acquitted the accused Lo Chi Fai, but directed in his decision the release
to the accused of at least the amount of US$3,000.00, allowed, according to
respondent, under Central Bank Circular No. 960. This, in spite of the fact that
forfeiture proceedings had already been instituted by the Bureau of Customs over
the currency listed in the information, which according to the respondent should be
respected since the Bureau of Customs "has the exclusive jurisdiction in the matter
of seizure and forfeiture of the property involved in the alleged infringements of the
aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to
justify the release of US$ 3,000.00 to the accused, the respondent judge again
displayed gross incompetence and gross ignorance of the law. There is nothing in
the said CB Circular which could be taken as authority for the trial court to release
the said amount of U.S. Currency to the accused. According to the above-cited CB
Circular, tourists may take out or send out from the Philippines foreign exchange in
amounts not exceeding such amounts of foreign exchange brought in by them; for
the purpose of establishing such amount, tourists or non-resident temporary visitors
bringing with them more than US$3,000.00 or its equivalent in other foreign
currencies must declare their foreign exchange at points of entries upon arrival in
the Philippines. In other words, CB Circular No. 960 merely provides that for the
purpose of establishing the amount of foreign currency brought in or out of the
Philippines, a tourist upon arrival is required to declare any foreign exchange he is
bringing in at the time of his arrival, if the same exceeds the amount of

US$3,000.00 or its equivalent in other foreign currencies. There is nothing in said

circular that would justify returning to him the amount of at least US$3,000.00, if he
is caught attempting to bring out foreign exchange in excess of said amount without
specific authority from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R.
Dizon, guilty of gross incompetence, gross ignorance of the law and grave and
serious misconduct affecting his integrity and efficiency, and consistent with the
responsibility of this Court for the just and proper administration of justice and for
the attainment of the objective of maintaining the people's faith in the judiciary
(People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent
Judge be DISMISSED from the service. All leave and retirement benefits and
privileges to which he may be entitled are hereby forfeited with prejudice to his
being reinstated in any branch of government service, including government-owned
and/or controlled agencies or corporations.
This resolution is immediately executory.
SO ORDERED.
G.R. No. L-16486

March 22, 1921

THE
UNITED
vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel
Roco
Acting Attorney-General Feria for appellee.

STATES, plaintiff-appelle,

for

appellant.

STREET, J.:
The rather singular circumstances attending the commission of the offense of
homicide which is under discussion in the present appeal are these:
At about noon, on November 29, 1919, while the interisland steamer Vigan was
anchored in the Pasig River a short distance from the lighthouse and not far from
where the river debouches into the Manila Bay, a small boat was sent out to raise
the anchor. The crew of this boat consisted of the accused, Calixto Valdez y Quiri,
and six others among whom was the deceased, Venancio Gargantel. The accused
was in charge of the men and stood at the stern of the boat, acting as helmsman,
while Venancio Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy the
accused, and he accordingly began to abuse the men with offensive epithets. Upon
this Venancio Gargantel remonstrated, saying that it would be better, and they
would work better, if he would not insult them. The accused took this remonstrance

as a display of insubordination; and rising in rage he moved towards Venancio, with

a big knife in hand, threatening to stab him. At the instant when the accused had
attained to within a few feet of Venancio, the latter, evidently believing himself in
great and immediate peril, threw himself into the water and disappeared beneath
its surface to be seen no more.
The boat in which this incident took place was at the time possibly 30 or 40 yards
from shore and was distant, say, 10 paces from the Vigan. Two scows were moored
to the shore, but between these and the boat intervened a space which may be
estimated at 18 or 20 yards. At it was full midday, and there was nothing to obstruct
the view of persons upon the scene, the failure of Venancio Gargantel to rise to the
surface conclusively shows that, owing to his possible inability to swim or the
strength of the current, he was borne down into the water and was drowned.
Two witnesses who were on the boat state that, immediately after Venancio leaped
into the water, the accused told the remaining members of the crew to keep quiet
or he would kill them. For this reason they made no movement looking to rescue;
but inasmuch as there witnesses are sure that Venancio did not again come to the
surface, efforts at rescue would have been fruitless. The fact that the accused at his
juncture threatened the crew with violence is, therefore, of no moment except tho
show the temporary excitement under which he was laboring.
On the next day one of the friends of Venancio Gargantel posted himself near the
lighthouse to watch for the body, in the hope that it might come to the surface and
could thus be recovered. Though his friendly vigil lasted three days nothing came of
it.
It may be added that Venancio has not returned to his lodging in Manila, where he
lived as a bachelor in the house of an acquaintance; and his personal belongings
have been delivered to a representative of his mother who lives in the Province of
Iloilo. His friends and relatives, it is needless to say, take it for granted that he is
dead.
The circumstances narrated above are such in our opinion as to exclude all
reasonable possibility that Venancio Gargantel may have survived; and we think
that the trial judge did not err in holding that he is dead and that he came to his
death by drowning under the circumstances stated. The proof is direct that he never
rose to the surface after jumping into the river, so far as the observers could see;
and this circumstance, coupled with the known fact that human life must inevitably
be extinguished by asphyxiation under water, is conclusive of his death. The
possibility that he might have swum ashore, after rising in a spot hidden from the
view of his companions, we consider too remote to be entertained for a moment.

As to the criminal responsibility of the accused for the death thus occasioned the
likewise can be no doubt; for it is obvious that the deceased, in throwing himself in
the river, acted solely in obedience to the instinct of self-preservation and was in no
sense legally responsible for his own death. As to him it was but the exercise of a
choice between two evils, and any reasonable person under the same
circumstances might have done the same. As was once said by a British court, "If a
man creates in another man's mind an immediate sense of dander which causes
such person to try to escape, and in so doing he injuries himself, the person who
creates such a state of mind is responsible for the injuries which result." (Reg. vs.
Halliday, 61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of July 13,
1882, is cited in the brief of The Attorney-General, as follows: It appeared that upon
a certain occasion an individual, after having inflicted sundry injuries upon another
with a cutting weapon, pointed a shotgun at the injured person and to escape the
discharge the latter had to jump into a river where he perished by drowning. The
medical authorities charged with conducting the autopsy found that only one of the
wounds caused by a cut could have resulted in the death of the injured person,
supposing that he had received no succour, and that by throwing himself in the river
he in fact died of asphyxia from submersion. Having been convicted as the author of
the homicide, the accused alleged upon appeal that he was only guilty of the
offense of inflicting serious physical injuries, or at most of frustrated homicide. The
Supreme Court, disallowing the appeal, enunciated the following doctrine: "That
even though the death of the injured person should not be considered as the
exclusive and necessary effect of the very grave wound which almost completely
severed his axillary artery, occasioning a hemorrhage impossible to stanch under
the circumstances in which that person was placed, nevertheless as the persistence
of the aggression of the accused compelled his adversary, in order to escape the
attack, to leap into the river, an act which the accused forcibly compelled the
injured person to do after having inflicted, among others, a mortal wound upon him
and as the aggressor by said attack manifested a determined resolution to cause
the death of the deceased, by depriving him of all possible help and putting him in
the very serious situation narrated in the decision appealed from, the trial court, in
qualifying the act prosecuted as consummated homicide, did not commit any error
of law, as the death of the injured person was due to the act of the accused." (II
Hidalgo, Codigo Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the death of
Venancio Gargantel, and he was properly convicted of the offense of homicide. The
trial judge appreciated as an attenuating circumstance the fact that the offender
had no intention to commit so great a wrong as that committed. (Par. 3, art. 9 Penal
Code.) In accordance with this finding the judge sentenced the accused to undergo
imprisonment for twelve years and one day, reclusion temporal, to suffer the
corresponding accessories, to indemnify the family of the deceased in the sum of

P500, and to pay the costs. Said sentenced is in accordance with law; and it being
understood that the accessories appropriate to the case are those specified in
article 59 of the Penal Code, the same is affirmed, with costs against the appellant.
So ordered.
Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.

G.R. No. 35006, People v. Almonte, 56 Phil. 54

Republic

of

the

Philippines

SUPREME

COURT

Manila
EN BANC
September 7, 1931
G.R.
THE

No.
PEOPLE

OF

THE

PHILIPPINE

35006
ISLANDS, plaintiff-appellee,

vs.
PURIFICACION ALMONTE, defendant- appellant.
Teodosio

R.

Dio

for

appellant.

Attorney-General Jaranilla for appellee.

IMPERIAL, J.:
Purificacion Almonte is charged with the crime of homicide, the information reading
as follows:
The undersigned provincial fiscal charges Purificacion Almonte with the crime of
homicide, committed as follows:
That on or about October 1, 1930, in the municipality of Sorsogon, Province of
Sorsogon, Philippine Islands, and within the jurisdiction of this court, the
aforementioned accused did willfully, unlawfully, and feloniously beat, attack, and
assault one Felix Te Sue with a knife, which she carried, producing a wound in the
abdomen which was the immediate cause of the death of the said Felix Te Sue.
Contrary to law.
Sorsogon, Sorsogon, November 7, 1930.

(Sgd.)

JACINTO

YAMZON

Provincial Fiscal
The accused pleaded not guilty, and after the trial, at which she was represented by
counsel, she was convicted of the said crime of homicide, and sentenced to
fourteen years, eight months, and one day of reclusion temporal, to indemnify the
heirs of the deceased in the sum of P1,000, and to pay the costs. The defendant
appealed.
The facts which have been proved beyond question are as follows:
Until a week before the crime, the accused lived maritally with the Chinaman Felix
Te Sue who was a married man. Because one Miguela Dawal, with whom he had also
lived maritally, threatened to bring suit against him unless he rejoined her, the
Chinaman and the accused voluntarily agreed to separate. From that time on Te Sue
lived in the barrio of Guinlajon, municipality of Sorsogon, Province of Sorsogon,
together with the said Miguela Dawal. On the morning of October 1, 1930, the
accused visited her former paramour and on entering the house, found him with
Miguela. When Te Sue saw her, he approached and told her to go away at once
because her new paramour might get jealous and do her harm. The accused
insisted upon remaining, and on being pushed by Te Sue and Miguela, feeling that
she was being unjustly treated, took hold of a small penknife she carried and
stabbed the man in the abdomen. Horrified, perhaps, at her deed, she fled to the
street, leaving the blade sticking in her victim's abdomen, and, taking the first bus
that chanced to pass, finally went home. The injured man was at once taken to the
provincial hospital where he was given first aid treatment, and Doctor Ortega
performed a slight operation upon him, cleaning and sewing up his wound. It was
not serious, according to the doctor, and might be healed in a week; but on the
sixth day the patient succumbed to complications which we shall treat of later on.
The relatives of the deceased paid a little over P200 for the hospital treatment and
the expenses of his last illness.
In this instance the defense assigns the following alleged errors as committed by
the trial court in its judgment:
I. The trial court erred in holding that the unnecessary movements of the deceased
while in the provincial hospital of Sorsogon for medical treatment were caused by
the pain of the wound inflicted by the accused.
II. The trial court erred in holding the accused criminally responsible for the
secondary hemorrhage which caused the death of the deceased.

III. The trial court erred in holding the accused responsible for the death of the
offended party as the direct and immediate consequence of the wound inflicted by
the accused.
IV. The trial court erred in holding the accused of the crime of homicide as charged
in the information instead of lesiones leves as supported by the evidence in this
case.
The first three assignments of error raise questions of fact and what really caused
the death of the deceased. It is strongly argued that the judgment appealed from is
erroneous in finding that the deceased's movements, which Doctor Ortega declares
were the cause of the secondary hemorrhage that produced his death, were due to
the pain felt after the operation and during his illness. It is contended that according
to the record, the real cause of the movements was, so the deceased himself
declared, the excessive warmth of the bed and the fact that he was unaccustomed
to such a bed. To ascertain this important point requires a careful examination of
the evidence upon this particular.
Doctor Eduardo Ortega, in charge of the Sorsogon Provincial Hospital, a physician of
admitted ability and skill, speaking of the patient's physical condition when he
entered the hospital, testified as follows:
Q.

What was the result of your examination?

A.

I found a wound in the abdomen, on the left side near the umbilical region;

it was not deep and did not penetrate very far, but it passed through the muscle
tissue.
Q.

What caused the death of Felix Te Sue?

A.

He died of a secondary internal hemmorhage.

Q.

How?

A.

The wound was caused by a certain blow, because the penknife was not

very sharp; the force of the blow which introduced the knife into the flesh produced
a secondary congestion of the internal organ so that any unnecessary movement on
the patient's part would cause congestion of the veins, or would make them more
congested and cause them to bleed.

Q.

And in the case of Felix Te Sue, did they bleed?

A.

He began to bleed after he had been twenty-four hours in the hospital.

Q.

Why do you call it a secondary hemorrhage?

A.

There are many kinds of hemorrhages: Primary, in this particular case, if

the wound had reached the internal organs and severed the veins of those organs it
would be called a primary hemorrhage because it was directly caused by the
wound; but there was no immediate hemorrhage after the wound was inflicted, but
twenty-four hours later; in other words, there was what is called a secondary
hemorrhage.
Q.

You also said that Felix Te Sue had made an unnecessary movement?

A.

Yes, sir.

Q.

Can you tell the court what were those unnecessary movements?

A.

Those movements were the following: The patient began by moving from

side to side; then he would sit up at night, and perhaps jump out of bed, and begin
walking about; when asked why he did that, contrary to medical instructions, he
explained that he could not lie down because the bed was to warm, and that he was
not used to lying to bed.
Q.

Do you mean to say that the patient's movements brought on the

secondary internal hemorrhage?

A.

Yes, sir, they produced the secondary internal hemorrhage.

Q.

And he died because of that secondary internal hemmorhage?

A.

Yes, sir.

Q.

Was the wound alone, as treated by you, sufficient to cause the death of

Felix Te Sue?
A.

If the patient had lain in bed quietly, in order to avoid increasing the

congestion of the internal veins, there would have been no secondary hemorrhage.

Q.

But the wound you treated could have been healed?

A.

Yes, sir; it could have been.

Q.

In how many days could it have been healed?

A.

That wound, if there had been no secondary infection, would have healed

up in a week.
Q.

You said that Felix Te Sue had been asked why he moved about contrary to

the physician's instructions; what instructions did you give him?

A.

As soon as he had been admitted into the hospital, he was examined, and

then made to lie in bed. Medical treatment was then administered, and he was
given to understand that he should remain in bed, for any unnecessary movement
might aggravate his condition, and that what he needed was complete rest.
Q.

If he had not made those movements, do you think death would have

ensued?
A.

I am very sure he would not have had that secondary hemorrhage,

because as a matter of fact, during the first twenty-four hours he had no symptoms
of having an internal hemorrhage.
Q.

And that internal congestion of the veins, although those veins contained

more blood than usual, would not have caused the hemorrhage? That is to say, the
veins would not have burst, if the patient Felix Te Sue had not moved about, as you
have said?
A.

Yes, sir; that internal congestion would have not burst if the patient had

not moved about.

Q.

Can you tell us, doctor, why strangers who know nothing about the care of

the sick are placed in charge of a patient so delicate that his moving may cause his
death, as indeed it did, in this case?
A.

The patient was not placed in the care of strangers; we have nurses to

attend and see to the patient as often as it is needed, besides the physician's visits
to him; but even in the presence of the doctor and the hospital attendants, and
after we had put the patient to bed, he continued to struggle with us.

Q.

Do you mean to say, then, that Felix Te Sue was fastened in his bed, and

in spite of that he was able to leave it a walk about?

A.

He left his bed the first day after the operation, and immediately after it,

when he was not fastened in because he did not seem to be violent. (Pages 16-22,
transcript of the stenographic notes.)
From the foregoing testimony it may be inferred: That the deceased was stabbed on
the left side of the abdominal region, near the navel; that the wound did not involve
any internal organ; that upon arriving at the hospital, he was submitted to a minor
operation which consisted in cleaning, medicating, and suturing the wound; that
upon his arrival, the patient was in a nervous state; that during the operation they
tied down the patient; that immediately after the operation Doctor Ortega
admonished him to keep quiet because any movement he might make would
change

his

pathological

state

for

the

worse

and

bring

about

dangerous

complication; that in spite of this admonition the deceased moved about, sitting up
in bed, getting up and pacing about the room; that because of this, the internal
vessels, already congested because of the wound, bled, and the hemorrhage thus
produced caused his death.
The defense contends, with which the Attorney-General agrees, that according to
Doctor Ortega's testimony the determining cause of Te Sue's death was not he
wound inflicted by the accused, but his own carelessness in moving about against
the doctor's orders, which produced the internal hemorrhage. We agree with both
parties that according to Doctor Ortega, the immediate and determining cause of
the death was none other than the internal hemmorhage produced by the rupture of
the abdominal blood vessels; but we cannot agree, in view of the evidence, that the
real cause of said death was not the wound inflicted upon the victim. Carefully
analyzing Doctor Ortega's testimony, we reach the inevitable conclusion that the
internal veins were congested from the beginning because of the force of the blow
which produced the wound, for that is what the doctor means when he says that
"the wound was caused by a certain blow, because the penknife was not very sharp,
the force of the blow which introduced the knife into the flesh produced a secondary
congestion of the internal organ so that an unnecessary movement on the patient's
part would cause congestion of the veins, or would make them more congested,
causing them to bleed"; and that what really impelled the patient to violate the
doctor's orders, by sitting up in bed and pacing about the room, was not, as the
defense insinuates, a desire to aggravate the criminal liability of the accused, but

simply his nervous condition, which was noted from the moment he entered the
provincial hospital. It was not the warmth of the bed or his not being used to it that
made the patient act as he did, but the pathological state created by the illness
brought on by the wound from which he was suffering. We are convinced that under
normal conditions, if the patient had not been ill, he would not have violated the
doctor's orders, knowing, as he did, that the slightest movement might occasion a
complication or internal hemorrhage capable of causing death.
The point raised by Viada in volume 3 of his work, pages 41 and 42, involves facts
similar to those established in this case, and we believe the decision of the Supreme
Court of Spain is perfectly applicable to this case:
Even when the doctors say that the death was due not so much to the wound,
which in a better constituted person would have healed in thirty or forty days, as to
the patient's purely nervous temperament, his irritability and other causes, all of
which depend upon his physical constitution: should such a death be qualified
as HOMICIDE? The Supreme Court has ruled affirmatively: "Inasmuch as a man is
responsible for the consequences of his act and in this case the physical
condition and temperament of the offended party nowise lessen the evil, the
seriousness whereof is to be judged, not by the violence of the means employed,
but by the result actually produced and as the wound which the appellant inflicted
upon the deceased was the cause which determined his death, without his being
able to counteract its effects, it is evident that the act in question should be
qualified as homicide, etc." (Decision of April 3, 1879, published in the Gazette on
the 16th of June.)
In the case cited the doctors were of the opinion that death was not an immediate
consequence of the wound received, but was rather due to the victim's purely
nervous temperament, his irritability and other causes, peculiar to his physical
constitution. In the case in question, it is sought to attribute the internal
hemorrhage that directly caused death, not to the wound or injury, but the patient's
movements, overlooking the fact that they were due to his nervous condition, and
that this state of nervousness could only be the result of the wound inflicted by the
appellant. We hold, therefore, that the real cause of death in this case was not the
bodily movements referred to, but the congestion of the internal veins produced
beforehand by the force of the blow which caused the wound and the nervous
condition of the deceased.

In United States vs. Sornito (4 Phil., 357), we held that "In crimes against the life of
a human being the results and effects of the criminal acts must necessarily be taken
into consideration in order to establish the seriousness and extent of the evil or
injury produced and to define the crime in accordance with the law. It must also be
taken into consideration that the guilty parties are responsible under the law for all
the unlawful acts executed by them in violation of its principles and for all the
consequences of those acts."
In United States vs. Montes (6 Phil., 443), we also held that "Where a person
voluntarily and with intent of injuring another commits an act which is notoriously
unlawful, he shall be held responsible for the consequences of his criminal action,
even though when such wrongful act constitutes the crime of homicide it appears
that he had no intention of killing the deceased."
In United States vs. Navarro (7 Phil., 713), we reaffirmed the same principle holding
that "`the firm and unalterable jurisprudence of the Supreme Court (interpreting the
Penal Code now in force and effect) is that the crime of homicide is committed when
death ensues or follows, as the result of a wound inflicted by another, whether the
death be the precise and necessary consequence of the injuries or wounds, or
whether death resulted from accidents caused or brought on by reason of such
wounds or injuries received by the patient.' (Judgment of the Supreme Court of
Spain, May 8, 1890.) `It is the firm and unalterable doctrine, and so held by the
Court of Cassation, that the aggressor is responsible for all the natural
consequences of the aggression when these consequences do not owe their origin
to acts or malicious omissions imputable to the assaulted party.' (Judgment of the
Supreme Court of Spain, May 30, 1892.)"
The same doctrine was laid down in United States vs. Monasterial (14 Phil., 391).
Here it was held among other things, "persons who are responsible for an act
constituting a crime are also liable for all the consequences arising therefrom and
inherent therein, other than those due to incidents entirely foreign to the act
executed, or which originate through the fault or carelessness of the injured person,
which are exceptions to the rule not arising in the present case."
At this juncture it is well to remember that, as we stated in the beginning, the
patient's nervous condition when the complication or internal hemorrhage which
caused death set in, was an inherent physiological condition produced by the wound
in the abdomen. It goes without saying that if he had not been wounded he would
not have undergone that extraordinary state and condition, nor have had to leave
his bed during the critical stage of his illness.

Lastly, in United States vs. Zamora (32 Phil., 218), we held that "One who performs
a criminal act should be held to liability for the act and for all of its consequences,
although both were inflicted upon a person other than the one whom the felon
intended to injure."
The cases which the Attorney-General cites in his brief are not applicable, for the
reason that in them all the deaths were due to alien acts, malicious and imprudent,
performed by the injured persons themselves. We have shown that in the case at
bar the real and actual cause of death of the deceased was the hemorrhage of the
internal veins, which had already been congested by the wound produced and the
patient's nervous condition, rather than the so-called bodily movements, and that
these, if they were the immediate cause of his death, were the direct consequence
of the patient's pathological condition or nervousness. At any rate, they are both
traceable to the wound inflicted by the accused.
The last assignment of error is but a corollary to the first three, which have just
been refuted, and it is contended that the accused can only be convicted of slight
physical injuries, instead of the serious crime of homicide. If the appellant must
answer for all the consequences of her acts voluntarily performed, as we have
shown, it necessarily and logically follows that she must be convicted of the graver
offense.
The appellant is entitled to the mitigating circumstances of not having intended to
commit so serious a crime as that committed, and of having acted with passion and
obfuscation. The first is shown by the fact that she made use of a small penknife,
and the second, by the fact that before the attack she had been pushed out of the
room where the victim was, and that she considered such treatment as an offense
or abuse. The penalty must therefore be reduced one degree or to prision mayor.
Wherefore, the judgment appealed from is modified and the appellant is sentenced
to eight years and one day of prision mayor, to indemnify the heirs of the deceased
in the amount of P500, to suffer the accessory penalties of article 61 of the Penal
Code, and to pay the costs of both instances. So ordered.
Avancea, C.J., Johnson, Street, and Villamor, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
It appears from the testimony of Dr. Eduardo Ortega that immediately after being
wounded by the accused, Felix Te Sue went to the hospital of Sorsogon where he
was examined by said doctor, who found that he had a wound on the left side of the
abdomen near the umbilical region, which while it penetrated the muscle tissue,

was not deep and did not produce a primary hemorrhage, for it did not reach the
internal organs, and might be healed in seven days. A minor operation was
performed upon him, but in order to do so, he had to be tied down, because he was
afraid. After the operation he was put to bed, given medical treatment, and to told
to keep quiet because he needed complete rest and any unnecessary movement
might have aggravate his condition. Besides the hospital nurses and attendants,
two relatives to the injured person watched him night and day.
As the penknife was not sharp, the force of the blow by which it was introduced into
the flesh produced a secondary congestion in the internal organ, which, through any
unnecessary movement on the patients part might cause congestion of the veins.
After twenty four hours had passed without any indication if an internal
hemorrhage, it set in with the bursting of the congested veins, because the patient,
disobeying the doctor's orders, moved from side to side, sat up in a bed at night,
got up, and paced about the room, notwithstanding the warnings of the nurses and
relatives, who attended him, saying that he could not remain lying down because
the bed was too warm for him, and that he was not used to that kind of furniture. In
the opinion of the physician, the patient would not have suffered a secondary
hemorrhage and death would not have occurred, if he had not moved about.
In finding the defendant-appellant guilty of the crime of homicide and not merely of
slight physical injuries, the majority rely upon the holding that the movements
made by the patient against the doctor's orders, which caused the rupture of the
veins already congested by the impact of the blow, were due to his nervous
condition and not to the excessive warmth he felt or to his not being used to
sleeping in a bed.
The doctor who examined the deceased, and upon whose testimony the majority
base their conclusion, said nothing about the victim's nervous temperament, nor
has the latter said he was so. The doctor said quite plainly and we have no
reason to doubt him that the patient's restlessness was due to the fact that the
bed was to warm for him, and that he was not used to it. One need not have a
nervous temperament in order to look for coolness and comfort in sleeping. If the
injured man, for the sake of a cooler and more comfortable bed, wished to risk his
life by a purely conscious and voluntary act violating the doctor's instructions
and refusing to listen to his warnings and those of the persons attending him, he
alone must be held responsible for his own death, which resulted from his
carelessness; and such death cannot be attributed to the person who wounded him

slightly, and who is, indeed, responsible for the natural and logical consequences of
such a voluntary act, but not for the death, which as we have seen, was not a
natural and logical consequence of the wound.
Very similar to this are the cases cited by Viada in volume V of the fifth edition of his
commentaries, where the Supreme Court of Spain laid down the following doctrines:
QUESTION 22. If the immediate cause of death was traumatic erysipelas
complicated with meningoencephalitis arising form the erysipelas itself, and the
remote and original cause of the latter was the wound inflicted by the defendant on
the upper part of the offended party's left parietal bone, although if the victim were
not predisposed to erysipelas, had not gone out in the open, and had been given
proper medicine, it is probable the accident would have been avoided and the
wound healed in thirty days. Is the person who inflicted the wound guilty of
homicide or of physical injuries? The Supreme Court has held in favor of the latter
and lighter offense, arguing to make the special circumstances stated above qualify
the act prosecuted as consequences of grossly imprudent acts and omissions of the
injured person, which unfortunately brought on his death, and which in all justice
and reason can only be imputed to the latter, and not to the defendant, who had no
share in them and could not have prevented them. (Decision of June 15, 1874,
Gazette for August 26th.) 5 Viada, 5th edition, page 80.
QUESTION 23. When a wound in the head, which is essential a less serious physical
injuries, gives rise to traumatic erysipelas, which in turn produces cerebral
meningitis from which the person injured dies in eleven days, and the doctors
declare that the erysipelas may have been due to the patient's carelessness in
constantly exposing himself to a draft: Is the act homicide or merely less serious
physical injuries? The Audiencia of Granada held in favor of the former, but upon
appeal on the ground that articles 419 and 433 of the Code had been violated,
because the crime of less serious physical injuries was penalized as if it were
homicide, the Supreme Court held that the appeal had been well taken, because
according to the opinion of the doctors, the erysipelas which preceded the
meningitis that produced death may have been due to the patient's carelessness in
constantly exposing himself to a draft, contrary to said doctors' orders; and as it is
not alleged that the other causes which might have contributed to it actually
occasioned the death, there is some doubt, for a crime is determined by the act
wherein it consists, and if this be so, the crime in question is none other than less

serious physical injuries. (Decision of December 17, 1878, Gazette of February 7,

1879.) 5 Viuda, 5th edition page 81.
QUESTION 24. If the verdict it is stated that the wounds inflicted upon the deceased
by the defendant would have healed, with the loss of the arm, had it not been for
complications due to make mistakes committed by the doctor in the surgical
operation and treatment: Is the crime homicide? It was so held by theAudiencia of
Jaen; but upon appeal taken by the accused, the Supreme Court only found him
guilty of the crime of serious physical injuries : "Whereas, although as this court has
repeatedly held, a person is liable for all justiciable acts contrary to law and for all
the consequences thereof, having inflicted physical injuries, from which or from
whose direct or immediate consequences death results, either incidentally or
accidentally, the offender must answer for the ultimate result of his act, i. e., for the
death resulting from the injury he inflicted, yet this principle is not applicable
where it clearly appears that the injury would not have caused death, in the
ordinary course of events, but would have healed in so many days, and where it is
shown beyond all doubt that the death is due to the malicious or careless acts of
the injured person or a third person, because it is a more and equitable principle
universally recognized and constantly applied, that one is accountable for his own
acts and their natural or logical consequences, and not for those which bear no
relation to the initial cause and are due to the carelessness, fault, or lack of skill of
another, whether it be the injured man himself or a third person: Whereas, the
proper jury having been found, upon the strength of the evidence before it, that the
wounds inflicted by the appellant Jeronimo Navarro upon Bartolome Martinez would
have healed, with the loss of an arm, had it not been for certain complications due
to the mistakes committed by the doctor in the surgical operations and treatment
thereof, it is obvious that following the doctrine set forth in the foregoing
reasonings, the appellant should not have been convicted of the crime of homicide,
but merely of serious physical injuries with the loss of a principal member, this
being the only consequence imputable to him in view of his act, inasmuch as the
death was due wholly to another person's carelessness or lack of skill, etc."
(Decision of April 2, 1903, Gazette of May 23rd.) 5 Viada, 5th edition, page 81.)
In the first two cases cited, it will be observed that the deceased received less
serious physical injuries and that death was due to their own carelessness or abuses
committed by them. In the third case, the deceased had been seriously injured, but
died as a result of the mistakes of the doctor in the surgical operation and
treatment of the injuries. The Supreme Court of Spain held them criminally liable for
the crime of less serious physical injuries in the first two, and of serious physical
injuries in the third, because these, and not homicide were the natural

consequences of their unlawful acts, inasmuch as death was the result of

carelessness and abuses committed by the injured persons themselves, and of the
mistakes of the doctor in the surgical operation and treatment of the wounds.
In United States vs. Embate (3 Phil., 640), where the real cause of death could not
be determined, this court, through Chief Justice Arellano, held:
All the witnesses attribute the death of the child to the illness it was suffering, but
the doctor, who did nothing more than to examine the body and gives his certificate
as to certain bruises on the thighs, in his testimony states that the body showed
unequivocal signs of a serious disease of the heart, and that the bruises could not
have caused the death of the child, but might have contributed to accelerate the
fatal result of that illness, which was a serious affection of the heart. Being asked by
the judge whether the gravity of the child's illness, owing to the affection of the
heart, was such that it might have died without the blows which were inflicted upon
him, the witness replied that "if in the first place the age of the child is taken into
consideration, and in the second its surrounding circumstances, its condition was
such as to lead one to expect a fatal result, no physician being in attendance."
Upon being further questioned as to whether he believed that the blows inflicted
upon the child and which produced the bruises were the cause of its death, he
replied that "as no other approximate cause is known than the great excitement
produced by those blows, it may be inferred that they were the sole cause which
precipitated the fatal result of the illness of the child."
We do not find in this testimony, given solely upon the result of the examination of
the body, sufficient evidence as to the true cause of the death of the child. But it is
true that the accused did strike him for the purpose of inflicting punishment, and as
by this he committed a misdemeanor which should not go unpunished, and which
can be punished in this same cause under the provisions of section 29 of General
Orders, No. 58, . . .
For all the foregoing, I am of the opinion that the defendant- appellant can only be
made to answer for the misdemeanor of slight physical injuries as defined and
penalized in article 587 of the Penal Code, inasmuch as the wound inflicted by her
might have been healed in seven days, the penalty fixed being arresto menor.
Malcolm and Romualdez, JJ., concur.
G.R. No. L-27097 January 17, 1975

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO TOLING y ROVERO and JOSE TOLING y ROVERO, defendantsappellants.
Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiroz for
plaintiff-appellee.
Santiago F. Alidio as counsel de oficio for defendants-appellants.

AQUINO, J.:
Antonio Toling and Jose Toling, brothers, appealed from the decision of the Court of
First Instance of Laguna, finding them guilty of multiple murder and attempted
murder, sentencing them to death and ordering them to indemnify each set of heirs
of (1) Teresita B. Escanan, (2) Antonio B. Mabisa, (3) Isabelo S. Dando, (4) Elena B.
Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F. Bautista in the
sum of P6,000 and to pay Amanda Mapa the sum of P500 (Criminal Case No. SC966). The judgment of conviction was based on the following facts:
Antonio Toling and Jose Toling, twins, both married, are natives of Barrio Nenita
which is about eighteen (or nine) kilometers away from Mondragon, Northern
Samar. They are illiterate farmers tilling their own lands. They were forty-eight years
old in 1966. Antonio is one hour older than Jose. Being twins, they look alike very
much. However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14, 1966).
Antonio's daughter, Leonora, was working in Manila as a laundrywoman since
September, 1964. Jose's three children one girl and two boys, had stayed in Manila
also since 1964.
Antonio decided to go to Manila after receiving a letter from Leonora telling him that
she would give him money. To have money for his expenses, Antonio killed a pig and
sold the meat to Jose's wife for sixty pesos. Jose decided to go with Antonio in order
to see his children. He was able to raise eighty-five pesos for his expenses.
On January 6, 1965, with a bayong containing their pants and shirts, the twins left
Barrio Nenita and took a bus to Allen. From there, they took a launch to Matnog,
Sorsogon. From Matnog, they went to Daraga, Albay on board an Alatco bus, and
from Daraga, they rode on the train, arriving at the Paco railroad station in Manila at
about seven o'clock in the morning of January 8th. It was their first trip to the big
city.

At the Paco station, the twins took a jeepney which brought them to Tondo. By
means of a letter which Aniano Espenola a labor-recruiter, had given them, they
were able to locate an employment agency where they learned the address of the
Eng Heng Glassware. Antonio's daughter was working in that store. Accompanied by
Juan, an employee of the agency, they proceeded to her employer's establishment.
Leonora gave her father fifty pesos. Sencio Rubis Antonio's grandson, gave him
thirty pesos. Antonio placed the eighty pesos in the right pocket of his pants. It was
then noontime.
Jose was not able to find any of his children in the city. The twins returned to the
agency where they ate their lunch at Juan's expense. From the agency, Juan took
the twins to the Tutuban railroad station that same day, January 8th, for their
homeward trip.
After buying their tickets, they boarded the night Bicol express train at about five
o'clock in the afternoon. The train left at six o'clock that evening.
The twins were in coach No. 9 which was the third from the rear of the dining car.
The coach had one row of two-passenger seats and another row of three- passenger
seats. Each seat faced an opposite seat. An aisle separated the two rows. The
brothers were seated side by side on the fourth three-passenger seat from the rear,
facing the back door. Jose was seated between Antonio, who was near the window,
and a three-year old boy. Beside the boy was a woman breast-feeding her baby who
was near the aisle. That woman was Corazon Bernal. There were more than one
hundred twenty passengers in the coach. Some passengers were standing on the
aisle.
Sitting on the third seat and facing the brothers were two men and an old woman
who was sleeping with her head resting on the back of the seat (Exh. 2). on the twopassenger seat across the aisle in line with the seat where the brothers were sitting,
there were seated a fat woman, who was near the window, and one Cipriano
Reganet who was on her left. On the opposite seat were seated a woman, her
daughter and Amanda Mapa with an eight-month old baby. They were in front of
Reganet.
Two chico vendors entered the coach when the train stopped at Cabuyao, Laguna.
The brothers bought some chicos which they put aside. The vendors alighted when
the train started moving. It was around eight o'clock in the evening.
Not long after the train had resumed its regular speed, Antonio stood up and with a
pair of scissors (Exh. B) stabbed the man sitting directly in front of him. The victim
stood up but soon collapsed on his seat.

For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who was
seated opposite him. She was not able to get up anymore. 1
Upon seeing what was happening, Amanda Mapa, with her baby, attempted to leave
her seat, but before she could escape Jose stabbed her, hitting her on her right
hand with which she was supporting her child (Exh. D-2). The blade entered the
dorsal side and passed through the palm. Fortunately, the child was not injured.
Most of the passengers scurried away for safety but the twins, who had run amuck,
stabbed everyone whom they encountered inside the coach. 2
Among the passengers in the third coach was Constabulary Sergeant Vicente Z.
Rayel, a train escort who, on that occasion, was not on duty. He was taking his wife
and children to Calauag, Quezon. He was going to the dining car to drink coffee
when someone informed him that there was a stabbing inside the coach where he
had come from. He immediately proceeded to return to coach No. 9. Upon reaching
coach 8, he saw a dead man sprawled on the floor near the toilet. At a distance of
around nine meters, he saw a man on the platform separating coaches Nos. 8 and
9, holding a knife between the thumb and index finger of his right hand, with its
blade pointed outward. He shouted to the man that he (Rayel) was a
Constabularyman and a person in authority and Rayel ordered him to lay down his
knife (Exh. A) upon the count of three, or he would be shot.
Instead of obeying, the man changed his hold on the knife by clutching it between
his palm and little finger (with the blade pointed inward) and, in a suicidal impulse,
stabbed himself on his left breast. He slowly sank to the floor and was prostrate
thereon. Near the platform where he had fallen, Rayel saw another man holding a
pair of scissors (Exh. B). He retreated to the steps near the platform when he saw
Rayel armed with a pistol.
Rayel learned from his wife that the man sitting opposite her was stabbed to death.
Constabulary Sergeant Vicente Aldea was also in the train. He was in the dining car
when he received the information that there were killings in the third coach. He
immediately went there and, while at the rear of the coach, he met Mrs. Mapa who
was wounded. He saw Antonio stabbing with his scissors two women and a small
girl and a woman who was later identified as Teresita B. Escanan (Exh. I to I-3).
Antonio was not wounded. Those victims were prostrate on the seats of the coach
and on the aisle.
Aldea shouted at Antonio to surrender but the latter made a thrust at him with the
scissors. When Antonio was about to stab another person, Aldea stood on a seat
and repeatedly struck Antonio on the head with the butt of his pistol, knocking him
down. Aldea then jumped and stepped on Antonio's buttocks and wrested the

scissors away from him. Antonio offered resistance despite the blows administered
to him.
When the train arrived at the Calamba station, four Constabulary soldiers escorted
the twins from the train and turned them over to the custody of the Calamba police.
Sergeant Rayel took down their names. The bloodstained scissors and knife were
turned over to the Constabulary Criminal Investigation Service (CIS).
Some of the victims were found dead in the coach while others were picked up
along the railroad tracks between Cabuyao and Calamba. Those who were still alive
were brought to different hospitals for first-aid treatment. The dead numbering
twelve in all were brought to Funeraria Quiogue, the official morgue of the National
Bureau of Investigation (NBI) in Manila, where their cadavers were autopsied (Exh. C
to C-11). A Constabulary photographer took some pictures of the victims (Exh. G to
I-2, J-1 and J-2).
Of the twelve persons who perished, eight, whose bodies were found in the train,
died from stab wounds, namely:
(1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.
(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.
(3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.
(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban, Camarines
Norte.
(5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal.
(6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.
(7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon City and
(8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh. C to C-3,
C-7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-2, P to P-2, Q to Q-2, R to R-2 and T to
T-2)
Four dead persons were found near the railroad tracks. Apparently, they jumped
from the moving train to avoid being killed. They were:
(1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc, Manila. .
(2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.

(3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and

(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street, Pasay City
(Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-3 and S to S-2).
Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda Mapa-Dizon,
Brigida Sarmiento-Palma, Cipriano Reganet and Corazon Bernal-Astrolavio (Exh. D to
D-5). Mrs. Astrolavio supposedly died later (43 tsn January 14, 1966).
Mrs. Mapa declared that because of the stab wound inflicted upon her right hand by
Jose Toling, she was first brought to the Calamba Emergency Hospital. Later, she
was transferred to the hospital of the Philippine National Railways at Caloocan City
where she was confined for thirteen days free of charge. As a result of her injury,
she was not able to engage in her occupation of selling fish for one month, thereby
losing an expected earning of one hundred fifty pesos. When she ran for safety with
her child, she lost clothing materials valued at three hundred pesos aside from two
hundred pesos cash in a paper bag which was lost.
The case was investigated by the Criminal Investigation Service of the Second
Constabulary Zone headquarters at Camp Vicente Lim, Canlubang, Laguna. On
January 9, 1965 Constabulary investigators took down the statements of Mrs. MapaDizon, Cipriano Reganet, Corazon Bernal, Brigida de Sarmiento and Sergeant Aldea.
On that date, the statements of the Toling brothers were taken at the North General
Hospital. Sergeant Rayel also gave a statement.
Antonio Toling told the investigators that while in the train he was stabbed by a
person "from the station" who wanted to get his money. He retaliated by stabbing
his assailant. He said that he stabbed somebody "who might have died and others
that might not". He clarified that in the train four persons were asking money from
him. He stabbed one of them. "It was a hold-up".
He revealed that after stabbing the person who wanted to rob him, he stabbed
other persons because, inasmuch as he "was already bound to die", he wanted "to
kill everybody" (Exh. X or 8, 49 tsn Sept. 3, 1965).
Jose Toling, in his statement, said that he was wounded because he was stabbed by
a person "from Camarines" who was taking his money. He retaliated by stabbing his
assailant with the scissors. He said that he stabbed two persons who were
demanding money from him and who were armed with knives and iron bars.
When Jose Toling was informed that several persons died due to the stabbing, he
commented that everybody was trying "to kill each other" (Exh. I-A).

According to Jose Toling, two persons grabbed the scissors in his pocket and stabbed
him in the back with the scissors and then escaped. Antonio allegedly pulled out the
scissors from his back, gave them to him and told him to avenge himself with the
scissors.
On January 20, 1965 a Constabulary sergeant filed against the Toling brothers in the
municipal court of Cabuyao, Laguna a criminal complaint for multiple murder and
multiple frustrated murder. Through counsel, the accused waived the second stage
of the preliminary investigation. The case was elevated to the Court of First Instance
of Laguna where the Provincial Fiscal on March 10, 1965 filed against the Toling
brothers an information for multiple murder (nine victims), multiple frustrated
murder (six victims) and triple homicide (as to three persons who died after jumping
from the running train to avoid being stabbed).
At the arraignment, the accused, assisted by their counsel de oficio pleaded not
guilty. After trial, Judge Arsenio Naawa rendered the judgment of conviction
already mentioned. The Toling brothers appealed.
In this appeal, appellants' counsel de oficio assails the credibility of the prosecution
witnesses, argues that the appellants acted in self-defense and contends, in the
alternative, that their criminal liability was only for two homicides and for physical
injuries.
According to the evidence for the defense (as distinguished from appellants'
statements, Exhibits 1 and 8), when the Toling twins were at the Tutuban Railroad
Station in the afternoon of January 8, 1965, Antonio went to the ticket counter to
buy tickets for himself and Jose. To pay for the tickets, he took out his money from
the right pocket of his pants and later put back the remainder in the same pocket.
The two brothers noticed that four men at some distance from them were allegedly
observing them, whispering among themselves and making signs. The twins
suspected that the four men harbored evil intentions towards them.
When the twins boarded the train, the four men followed them. They were facing
the twins. They were talking in a low voice. The twins sat on a two passenger seat
facing the front door of the coach, the window being on the right of Antonio and Jose
being to his left. Two of the four men, whom they were suspecting of having evil
intentions towards them, sat on the seat facing them, while the other two seated
themselves behind them. Some old women were near them. When the train was
already running, the man sitting near the aisle allegedly stood up, approached
Antonio and pointed a balisong knife at his throat while the other man who was
sitting near the window and who was holding also a balisong knife attempted to pick
Antonio's right pocket, threatening him with death if he would not hand over the
money. Antonio answered that he would give only one-half of his money provided
the man would not hurt him, adding that his (Antonio's) place was still very far.

When Antonio felt some pain in his throat, he suddenly drew out his hunting knife or
small bolo (eight inches long including the handle) from the back pocket of his pants
and stabbed the man with it, causing him to fall to the floor with his balisong. He
also stabbed the man who was picking his pocket. Antonio identified the two men
whom he had stabbed as those shown in the photographs of Antonio B. Mabisa
(Exh.
L-1
and
L-2
or
5-A
and
5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While Antonio was
stabbing the second man, another person from behind allegedly stabbed him on the
forehead, causing him to lose consciousness and to fall on the floor (Antonio has
two scars on his forehead and a scar on his chest and left forearm, 85, 87 tsn). He
regained consciousness when two Constabulary soldiers raised him. His money was
gone.
Seeing his brother in a serious condition, Jose stabbed with the scissors the man
who had wounded his brother. Jose hit the man in the abdomen. Jose was stabbed in
the back by somebody. Jose stabbed also that assailant in the middle part of the
abdomen, inflicting a deep wound.
However, Jose did not see what happened to the two men whom he had stabbed
because he was already weak. He fell down and became unconscious. He identified
Exhibit A as the knife used by Antonio and Exhibit B as the scissors which he himself
had used. He recovered consciousness when a Constabulary soldier brought him out
of the train.
The brothers presented Doctor Leonardo del Rosario, a physician of the North
General Hospital who treated them during the early hours of January 9, 1965 and
who testified that he found the following injuries on Antonio Toling:
Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2 inches
each, mid-frontal (wound on the forehead) and
Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line level of
3rd ICS right, penetrating thoracic cavity (chest wound (Exh. 11).
and on Jose Toling a stab wound, one inch long on the paravertebral level of the fifth
rib on the left, penetrating the thoracic cavity (Exh. 10). The wound was on the
spinal column in line with the armpit or "about one inch from the midline to the left"
(113 tsn). The twins were discharged from the hospital on January 17th.
The trial court, in its endeavor to ascertain the motive for the twins' rampageous
behavior, which resulted in the macabre deaths of several innocent persons, made
the following observations:

What could be the reason or motive that actuated the accused to run
amuck? It appears that the accused travelled long over land and sea
spending their hard earned money and suffering privations, even to the
extent of foregoing their breakfast, only to receive as recompense with
respect to Antonio the meager sum of P50 from his daughter and P30
from his grandson and with respect to Jose to receive nothing at all
from any of his three children whom he could not locate in Manila.
It also appears that the accused, who are twins, are queerly alike, a
fact which could easily invite some people to stare or gaze at them and
wonder at their very close resemblance. Like some persons who easily
get angry when stared at, however, the accused, when stared at by the
persons in front of them, immediately suspected them as having evil
intention towards them (accused).
To the mind of the Court, therefore, it is despondency on the part of the
accused coupled with their unfounded suspicion of evil intention on the
part of those who happened to stare at them that broke the limit of
their self-control and actuated them to run amuck.
We surmise that to the captive spectators in coach No. 9 the spectacle of middleaged rustic twins, whom, in the limited space of the coach, their co-passengers had
no choice but to notice and gaze at, was a novelty. Through some telepathic or
extra-sensory perception the twins must have sensed that their co-passengers were
talking about them in whispers and making depreciatory remarks or jokes about
their humble persons. In their parochial minds, they might have entertained the
notion or suspicion that their male companions, taking advantage of their ignorance
and naivete, might victimize them by stealing their little money. Hence, they
became hostile to their co-passengers. Their pent-up hostility erupted into violence
and murderous fury.
A painstaking examination of the evidence leads to the conclusion that the trial
court and the prosecution witnesses confounded one twin for the other. Such a
confusion was unavoidable because the twins, according to a Constabulary
investigator, are "very identical". Thus, on the witness stand CIS Sergeants Alfredo
C. Orbase and Liberato Tamundong after pointing to the twins, refused to take the
risk of identifying who was Antonio and who was Jose. They confessed that they
might be mistaken in making such a specific identification (28 tsn September 3,
1965; 32 tsn November 5, 1965).
In our opinion, to ascertain who is Antonio and who is Jose, the reliable guides would
be their sworn statements (Exh. 1 and 8), executed one day after the killing, their
own testimonies and the medical certificates (Exh. 10 and 11). Those parts of the
evidence reveal that the one who was armed with the knife was Antonio and the

one who was armed with the scissors was Jose. The prosecution witnesses and the
trial court assumed that Antonio was armed with the scissors (Exh. B) and Jose was
armed with the knife (Exh. A). That assumption is erroneous.
In his statement and testimony, Antonio declared that he was armed with a knife,
while Jose declared that he was armed with the scissors which Antonio had
purchased at the Tutuban station, before he boarded the train and which he gave to
Jose because the latter is a barber whose old pair of scissors was already rusty. As
thus clarified, the person whom Sergeant Rayel espied as having attempted to
commit suicide on the platform of the train by stabbing himself on the chest would
be Antonio (not Jose). That conclusion is confirmed by the medical certificate,
Exhibit 11, wherein it is attested that Antonio had a wound in the chest. And the
person whom Sergeant Aldea subdued after the former had stabbed several persons
with a pair of scissors (not with a knife) was Jose and not Antonio. That fact is
contained in his statement of January 9, 1965 (p. 9, Record).
The mistake of the prosecution witnesses in taking Antonio for Jose and vice-versa
does not detract from their credibility. The controlling fact is that those witnesses
confirmed the admission of the twins that they stabbed several passengers.
Appellants' counsel based his arguments on the summaries of the evidence found in
the trial court's decision. He argues that the testimonies of Sergeants Rayel and
Aldea are contradictory but he does not particularize on the supposed
contradictions.
The testimonies of the two witnesses do not cancel each other. The main point of
Rayel's testimony is that he saw one of the twins stabbing himself in the chest and
apparently trying to commit suicide. Aldea's testimony is that he knocked down the
other twin, disabled him and prevented him from committing other killings.
It may be admitted that Rayel's testimony that Aldea took the knife of Jose Toling
was not corroborated by Aldea. Neither did Aldea testify that Antonio was near Jose
on the platform of the train. Those discrepancies do not render Rayel and Aldea
unworthy of belief. They signify that Aldea and Rayel did not give rehearsed
testimonies or did not compare notes.
Where, as in this case, the events transpired in rapid succession in the coach of the
train and it was nighttime, it is not surprising that Rayel and Aldea would not give
identical testimonies (See 6 Moran's Comments on the Rules of Court, 1970 Ed. 139140; People vs. Resayaga, L-23234, December 26, 1963, 54 SCRA 350). There is no
doubt that Aldea and Rayel witnessed some of the acts of the twins but they did not
observe the same events and their powers of perception and recollection are not
the same.

Appellants' counsel assails the testimony of Mrs. Mapa. He contends that no one
corroborated her testimony that one of the twins stabbed a man and a sleeping
woman sitting on the seat opposite the seat occupied by the twins. The truth is that
Mrs. Mapa's testimony was confirmed by the necropsy reports and by the twins
themselves who admitted that they stabbed some persons.
On the other hand, the defense failed to prove that persons, other than the twins,
could have inflicted the stab wounds. There is no doubt as to the corpus delicti. And
there can be no doubt that the twins, from their own admissions (Exh. 1 and 8) and
their testimonies, not to mention the testimonies of Rayel, Aldea, Mrs. Mapa and the
CIS investigators, were the authors of the killings.
Apparently, because there was no doubt on the twins' culpability, since they were
caught in flagrante delicto the CIS investigators did not bother to get the
statements of the other passengers in Coach No. 9. It is probable that no one
actually saw the acts of the twins from beginning to end because everyone in Coach
No. 9 was trying to leave it in order to save his life. The ensuing commotion and
confusion prevented the passengers from having a full personal knowledge of how
the twins consummated all the killings.
On the other hand, the twins' theory of self-defense is highly incredible. In that
crowded coach No. 9, which was lighted, it was improbable that two or more
persons could have held up the twins without being readily perceived by the other
passengers. The twins would have made an outcry had there really been an attempt
to rob them. The injuries, which they sustained, could be attributed to the blows
which the other passengers inflicted on them to stop their murderous rampage.
Appellants' view is that they should be held liable only for two homicides, because
they admittedly killed Antonio B. Mabisa and Isabelo S. Dando, and for physical
injuries because they did not deny that Jose Toling stabbed Mrs. Mapa. We have to
reject that view. Confronted as we are with the grave task of passing judgment on
the aberrant behavior of two yokels from the Samar hinterland who reached
manhood without coming into contact with the mainstream of civilization in urban
areas, we exercised utmost care and solicitude in reviewing the evidence. We are
convinced that the record conclusively establishes appellants' responsibility for the
eight killings.
To the seven dead persons whose heirs should be indemnified, according to the trial
court, because they died due to stab wounds, should be added the name of Susana
C. Hernandez (Exh. P, P-1 and P-2). The omission of her name in judgment was
probably due to inadvertence. According to the necropsy reports, four persons,
namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte and Timoteo
U. Dimaano, died due to multiple traumatic injuries consisting of abrasions,

contusions, lacerations and fractures on the head, body and extremities (Exh. J to J2, K to K-2, M to M-2 and S to S-2).
The conjecture is that they jumped from the moving tracing to avoid being killed but
in so doing they met their untimely and horrible deaths. The trial court did not
adjudge them as victims whose heirs should be indemnified. As to three of them,
the information charges that the accused committed homicide. The trial court
dismissed that charge for lack of evidence.
No one testified that those four victims jumped from the train. Had the necropsy
reports been reinforced by testimony showing that the proximate cause of their
deaths was the violent and murderous conduct of the twins, then the latter would
be criminally responsible for their deaths.
Article 4 of the Revised Penal Code provides that "criminal liability shall be incurred
by any person committing a felony (delito) although the wrongful act done be
different from that which he intended". The presumption is that "a person intends
the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of
Court).
The rule is that "if a man creates in another man's mind an immediate sense of
danger which causes such person to try to escape, and in so doing he injures
himself, the person who creates such a state of mind is responsible for the injuries
which result" (Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41
Phil. 4911, 500).
Following that rule, is was held that "if a person against whom a criminal assault is
directed reasonably believes himself to be in danger of death or great bodily harm
and in order to escape jumps into the water, impelled by the instinct of selfpreservation, the assailant is responsible for homicide in case death results by
drowning" (Syllabus, U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371).
The absence of eyewitness-testimony as to the jumping from the train of the four
victims already named precludes the imputation of criminal responsibility to the
appellants for the ghastly deaths of the said victims.
The same observation applies to the injuries suffered by the other victims. The
charge of multiple frustrated murder based on the injuries suffered by Cipriano
Pantoja, Dinna Nosal, Corazon Bernal and Brigida Sarmiento (Exh. D, D-3 to D-5)
was dismissed by the trial court for lack of evidence. Unlike Mrs. Mapa, the offended
parties involved did not testify on the injuries inflicted on them.
The eight killings and the attempted killing should be treated as separate crimes of
murder and attempted murder qualified be treachery (alevosia) (Art. 14[16],

Revised Penal Code). The unexpected, surprise assaults perpetrated by the twins
upon their co-passengers, who did not anticipate that the twins would act
likejuramentados and who were unable to defend themselves (even if some of them
might have had weapons on their persons) was a mode of execution that insured
the consummation of the twins' diabolical objective to butcher their co-passengers.
The conduct of the twins evinced conspiracy and community of design.
The eight killings and the attempted murder were perpetrated by means of different
acts. Hence, they cannot be regarded as constituting a complex crime under article
48 of the Revised Penal Code which refers to cases where "a single act constitutes
two or more grave felonies, or when an offense is a necessary means for
committing the other".
As noted by Cuello Calon, the so-called "concurso formal o ideal de delitos reviste
dos formas: (a) cuando un solo hecho constituye dos o mas delitos (el llamado
delito compuesto); (b) cuando uno de ellos sea medio necesario para cometer otro
(el llamado delito complejo)." (1 Derecho Penal, 12th Ed. 650).
On the other hand, "en al concurso real de delitos", the rule, when there is
"acumulacion material de las penas", is that "si son varios los resultados, si son
varias las acciones, esta conforme con la logica y con la justicia que el agente
soporte la carga de cada uno de los delitos" (Ibid, p. 652, People vs. Mori, L-23511,
January 31, 1974, 55 SCRA 382, 403).
The twins are liable for eight (8) murders and one attempted murder. (See People
vs. Salazar, 105 Phil. 1058 where the accused Moro, who ran amuck, killed sixteen
persons and wounded others, was convicted of sixteen separate murders, one
frustrated murder and two attempted murders; People vs. Mortero, 108 Phil. 31, the
Panampunan massacre case, where six defendants were convicted of fourteen
separate murders; People vs. Remollino, 109 Phil. 607, where a person who fired
successively at six victims was convicted of six separate homicides; U. S. Beecham,
15 Phil. 272, involving four murders; People vs. Macaso, 85 Phil. 819, 828, involving
eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260,
271. Contra: People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Floresca, 99 Phil.
1044; People vs. Sakam, 61 Phil. 27; People vs. Lawas, 97 Phil. 975; People vs.
Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People vs. Cu Unjiengi, 61
Phil. 236; People vs. Penas, 66 Phil. 682; People vs. De Leon, 49 Phil. 437, where the
crimes committed by means of separate acts were held to be complex on the theory
that they were the product of a single criminal impulse or intent).
As no generic mitigating and aggravating circumstances were proven in this case,
the penalty for murder should be imposed in its medium period or reclusion
perpetua (Arts. 64[l] and 248, Revised Penal Code. The death penalty imposed by
the trial court was not warranted.

A separate penalty for attempted murder should be imposed on the appellants. No

modifying circumstances can be appreciated in the attempted murder case.
WHEREFORE, the trial court's judgment is modified by setting aside the death
sentence. Defendants-appellants Antonio Toling and Jose Toling are found guilty, as
co-principals, of eight (8) separate murders and one attempted murder. Each one of
them is sentenced to eight (8) reclusion perpetuas for the eight murders and to an
indeterminate penalty of one (1) year of prision correccional as minimum to six (6)
years and one (1) day ofprision mayor as maximum for the attempted murder and
to pay solidarily an indemnity of P12,000 to each set of heirs of the seven victims
named in the dispositive part of the trial court's decision and of the eight victim,
Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of P500 to
Amanda Mapa. In the service of the penalties, the forty-year limit fixed in the
penultimate paragraph of article 70 of the Revised Penal Code should be observed.
Costs against the appellants.
SO ORDERED.
G.R. No. 72964 January 7, 1988
FILOMENO
vs.
HON.
INTERMEDIATE
APPELLATE
PHILIPPINES, respondents.

URBANO, petitioner,
COURT

AND

PEOPLE

OF

THE

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court
which affirmed the decision of the then Circuit Criminal Court of Dagupan City
finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of
homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno
Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located
at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place
where he stored his palay flooded with water coming from the irrigation canal
nearby which had overflowed. Urbano went to the elevated portion of the canal to
see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass.
He asked them who was responsible for the opening of the irrigation canal and
Javier admitted that he was the one. Urbano then got angry and demanded that

Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed
his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked
Javier hitting him on the right palm of his hand, which was used in parrying the bolo
hack. Javier who was then unarmed ran away from Urbano but was overtaken by
Urbano who hacked him again hitting Javier on the left leg with the back portion of
said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict
further injury, his daughter embraced and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to
his house about 50 meters away from where the incident happened. Emilio then
went to the house of Barangay Captain Menardo Soliven but not finding him there,
Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis,
the Erfes together with Javier went to the police station of San Fabian to report the
incident. As suggested by Corporal Torio, Javier was brought to a physician. The
group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did
not attend to Javier but instead suggested that they go to Dr. Mario Meneses
because Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr.
Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a
medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20
years of age, married, residing at Barangay Anonang, San Fabian,
Pangasinan on October 23, 1980 and found the following:
1 -Incised wound 2 inches in length at the upper portion of the lesser
palmar prominence, right.
As to my observation the incapacitation is from (7-9) days period. This
wound was presented to me only for medico-legal examination, as it
was already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their
differences. Urbano promised to pay P700.00 for the medical expenses of Javier.
Hence, on October 27, 1980, the two accompanied by Solis appeared before the San
Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the
event in the police blotter (Exhibit A), to wit:
xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both

parties appeared before this Station accompanied by brgy. councilman
Felipe Solis and settled their case amicably, for they are neighbors and
close relatives to each other. Marcelo Javier accepted and granted
forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in
his medical treatment, and promising to him and to this Office that this
will never be repeated anymore and not to harbour any grudge against
each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the
additional P300.00 was given to Javier at Urbano's house in the presence of
barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth
General Hospital in a very serious condition. When admitted to the hospital, Javier
had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally
attended to Javier found that the latter's serious condition was caused by tetanus
toxin. He noticed the presence of a healing wound in Javier's palm which could have
been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical
findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after
muscular spasm.
02
inhalation
administered.
Ambo bag resuscitation and cardiac massage done
but to no avail.

Pronounced
dead
by
Cabugao at 4:18 P.M.

Dra.

PMC done and cadaver brought

home by relatives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with the crime
of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial
District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found
Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term
of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17)
years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum,
together with the accessories of the law, to indemnify the heirs of the victim,
Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid
Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his
penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal
but raised the award of indemnity to the heirs of the deceased to P30,000.00 with
costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion for new
trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A")
which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,
Pangasinan, and up to the present having been re-elected to such
position in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a
typhoon that swept Pangasinan and other places of Central Luzon
including San Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the Bued
irrigation dam which irrigates the ricefields of San Fabian were closed
and/or controlled so much so that water and its flow to the canals and
ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam
leading to the canals and ditches which will bring water to the
ricefields, the water in said canals and ditches became shallow which
was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area
affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the
late Marcelo Javier catching fish in the shallow irrigation canals with
some companions;
That few days there after,or on November l5, l980, I came to know that
said Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code which
provides that "Criminal liability shall be incurred: (1) By any person committing a
felony (delito) although the wrongful act done be different from that which he
intended ..." Pursuant to this provision "an accused is criminally responsible for acts
committed by him in violation of law and for all the natural and logical
consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo
as a result of which Javier suffered a 2-inch incised wound on his right palm; that on
November 14, 1981 which was the 22nd day after the incident, Javier was rushed to
the hospital in a very serious condition and that on the following day, November 15,
1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the
natural and logical consequence of Urbano's unlawful act. Hence, he was declared
responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which
supervened from the time the deceased was wounded to the time of
his death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from his
wound, but the cause of his death was due to said wound which was
inflicted by the appellant. Said wound which was in the process of
healing got infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that

the victim suffered lockjaw because of the infection of the wound with
tetanus. And there is no other way by which he could be infected with
tetanus except through the wound in his palm (tsn., p. 78, Oct. 5,
1981). Consequently, the proximate cause of the victim's death was
the wound which got infected with tetanus. And the settled rule in this
jurisdiction is that an accused is liable for all the consequences of his
unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072;
People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death
was due to his own negligence in going back to work without his wound
being properly healed, and lately, that he went to catch fish in dirty
irrigation canals in the first week of November, 1980, is an
afterthought, and a desperate attempt by appellant to wiggle out of
the predicament he found himself in. If the wound had not yet healed,
it is impossible to conceive that the deceased would be reckless
enough to work with a disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of
Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no
tetanus in the injury, and that Javier got infected with tetanus when after two weeks
he returned to his farm and tended his tobacco plants with his bare hands exposing
the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by Urbano
was infected with tetanus at the time of the infliction of the wound. The evidence
merely confirms that the wound, which was already healing at the time Javier
suffered the symptoms of the fatal ailment, somehow got infected with tetanus
However, as to when the wound was infected is not clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following
definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38,
pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants
in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without
which the result would not have occurred."And more comprehensively,
"the proximate legal cause is that acting first and producing the injury,

either immediately or by setting other events in motion, all constituting

a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result
therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient intervening
cause from the time Javier was wounded until his death which would exculpate
Urbano from any liability for Javier's death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days.
However, over 80 percent of patients become symptomatic within 14
days. A short incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the mortality rate
approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability,
and headache are encountered occasionally, but the commonest
presenting complaints are pain and stiffness in the jaw, abdomen, or
back and difficulty swallowing. As the progresses, stiffness gives way
to rigidity, and patients often complain of difficulty opening their
mouths. In fact, trismus in the commonest manifestation of tetanus
and is responsible for the familiar descriptive name of lockjaw. As more
muscles are involved, rigidity becomes generalized, and sustained
contractions called risus sardonicus. The intensity and sequence of
muscle involvement is quite variable. In a small proportion of patients,
only local signs and symptoms develop in the region of the injury. In
the vast majority, however, most muscles are involved to some
degree, and the signs and symptoms encountered depend upon the
major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom,
an interval referred to as the onset time. As in the case of the
incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent
stimuli arising in the periphery, which increases rigidity and causes
simultaneous and excessive contraction of muscles and their

antagonists. Spasms may be both painful and dangerous. As the

disease progresses, minimal or inapparent stimuli produce more
intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may
then lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14
days and an onset time of more than 6 days. Trismus is usually
present, but dysphagia is absent and generalized spasms are brief and
mild. Moderately severe tetanus has a somewhat shorter incubation
period and onset time; trismus is marked, dysphagia and generalized
rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time,
and an onset time of 72 hrs., or less, severe trismus, dysphagia and
rigidity and frequent prolonged, generalized convulsive spasms.
(Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body
depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he
parried the bolo which Urbano used in hacking him. This incident took place on
October 23, 1980. After 22 days, or on November 14, 1980, he suffered the
symptoms of tetanus, like lockjaw and muscle spasms. The following day, November
15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by
tetanus germs at the time, it is more medically probable that Javier should have
been infected with only a mild cause of tetanus because the symptoms of tetanus
appeared on the 22nd day after the hacking incident or more than 14 days after the
infliction of the wound. Therefore, the onset time should have been more than six
days. Javier, however, died on the second day from the onset time. The more
credible conclusion is that at the time Javier's wound was inflicted by the appellant,
the severe form of tetanus that killed him was not yet present. Consequently,
Javier's wound could have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier's death, his wound could have
been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v. Cardenas,
supra) And since we are dealing with a criminal conviction, the proof that the
accused caused the victim's death must convince a rational mind beyond

reasonable doubt. The medical findings, however, lead us to a distinct possibility

that the infection of the wound by tetanus was an efficient intervening cause later
or between the time Javier was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause
and its subsequent infection, for failure to take necessary precautions, with tetanus
may have been the proximate cause of Javier's death with which the petitioner had
nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such
remote cause did nothing more than furnish the condition or give rise
to the occasion by which the injury was made possible, if there
intervened between such prior or remote cause and the injury a
distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition or
occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if
an independent negligent act or defective condition sets into operation
the instances which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause."
(45 C.J. pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of criminal
liability. At the very least, the records show he is guilty of inflicting slight physical
injuries. However, the petitioner's criminal liability in this respect was wiped out by
the victim's own act. After the hacking incident, Urbano and Javier used the facilities
of barangay mediators to effect a compromise agreement where Javier forgave
Urbano while Urbano defrayed the medical expenses of Javier. This settlement of
minor offenses is allowed under the express provisions of Presidential Decree G.R.
No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote cause
is limited to the criminal aspects of this rather unusual case. It does not necessarily
follow that the petitioner is also free of civil liability. The well-settled doctrine is that
a person, while not criminally liable, may still be civilly liable. Thus, in the recent
case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx
... While the guilt of
established beyond
evidence is required
Code). The judgment

the accused in a criminal prosecution must be

reasonable doubt, only a preponderance of
in a civil action for damages. (Article 29, Civil
of acquittal extinguishes the civil liability of the

accused only when it includes a declaration that the facts from which
the civil liability might arise did not exist. (Padilla v. Court of Appeals,
129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which
provides that the acquittal of the accused on the ground that his guilt
has not been proved beyond reasonable doubt does not necessarily
exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows:
The old rule that the acquittal of the accused in a criminal
case also releases him from civil liability is one of the
most serious flaws in the Philippine legal system. It has
given use to numberless instances of miscarriage of
justice, where the acquittal was due to a reasonable doubt
in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil
responsibility is derived from the criminal offense, when
the latter is not proved, civil liability cannot be demanded.
This is one of those causes where confused thinking leads
to unfortunate and deplorable consequences. Such
reasoning fails to draw a clear line of demarcation
between criminal liability and civil responsibility, and to
determine the logical result of the distinction. The two
liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One
is for the punishment or correction of the offender while
the other is for reparation of damages suffered by the
aggrieved party. The two responsibilities are so different
from each other that article 1813 of the present (Spanish)
Civil Code reads thus: "There may be a compromise upon
the civil action arising from a crime; but the public action
for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes
of the imprisonment of or fine upon the accused, the
offense should be proved beyond reasonable doubt. But
for the purpose of indemnity the complaining party, why
should the offense also be proved beyond reasonable
doubt? Is not the invasion or violation of every private
right to be proved only by a preponderance of evidence?
Is the right of the aggrieved person any less private
because the wrongful act is also punishable by the
criminal law?

"For these reasons, the Commission recommends the

adoption of the reform under discussion. It will correct a
serious defect in our law. It will close up an inexhaustible
source of injustice-a cause for disillusionment on the part
of the innumerable persons injured or wronged."
The respondent court increased the P12,000.00 indemnification imposed by the trial
court to P30,000.00. However, since the indemnification was based solely on the
finding of guilt beyond reasonable doubt in the homicide case, the civil liability of
the petitioner was not thoroughly examined. This aspect of the case calls for fuller
development if the heirs of the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of
the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET
ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio.
SO ORDERED.
G.R. No. 74433 September 14, 1987
PEOPLE
OF
THE
vs.
FRANCISCO ABARCA, accused-appellant.

PHILIPPINES, plaintiff-appellee,

SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo, Leyte,
sentencing the accused-appellant Francisco Abarca to death for the complex crime
of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence imposed. With
the approval of the new Constitution, abolishing the penalty of death and
commuting all existing death sentences to life imprisonment, we required the
accused-appellant to inform us whether or not he wished to pursue the case as an
appealed case. In compliance therewith, he filed a statement informing us that he
wished to continue with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx

The undersigned City Fiscal of the City of Tacloban accuses Francisco

Abarca of the crime of Murder with Double Frustrated Murder,
committed as follows:
That on or about the 15th day of July, 1984, in the City of Tacloban,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to kill and with evident
premeditation, and with treachery, armed with an unlicensed firearm
(armalite), M-16 rifle, did then and there wilfully, unlawfully and
feloniously attack and shot several times KHINGSLEY PAUL KOH on the
different parts of his body, thereby inflicting upon said KHINGSLEY
PAUL KOH gunshot wounds which caused his instantaneous death and
as a consequence of which also caused gunshot wounds to LINA
AMPARADO and ARNOLD AMPARADO on the different parts of their
bodies thereby inflicting gunshot wounds which otherwise would have
caused the death of said Lina Amparado and Arnold Amparado, thus
performing all the acts of execution which should have produced the
crimes of murders as a consequence, but nevertheless did not produce
it by reason of causes independent of his will, that is by the timely and
able medical assistance rendered to Lina Amparado and Arnold
Amparado which prevented their death. 1
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty. The Solicitor General
states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny,
had illicit relationship. The illicit relationship apparently began while
the accused was in Manila reviewing for the 1983 Bar examinations.
His wife was left behind in their residence in Tacloban, Leyte (pp. 4547, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte.
On the morning of that date he went to the bus station to go to
Dolores, Eastern Samar, to fetch his daughter. However, he was not
able to catch the first trip (in the morning). He went back to the station
in the afternoon to take the 2:00 o'clock trip but the bus had engine
trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused,
then proceeded to the residence of his father after which he went
home. He arrived at his residence at the V & G Subdivision in Tacloban
City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.).

Upon reaching home, the accused found his wife, Jenny, and Khingsley
Koh in the act of sexual intercourse. When the wife and Koh noticed the
accused, the wife pushed her paramour who got his revolver. The
accused who was then peeping above the built-in cabinet in their room
jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went to the
house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30
p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house
at V & G Subdivision. He was not able to find his wife and Koh there. He
proceeded to the "mahjong session" as it was the "hangout" of
Kingsley Koh. The accused found Koh playing mahjong. He fired at
Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit.
Arnold and Lina Amparado who were occupying a room adjacent to the
room where Koh was playing mahjong were also hit by the shots fired
by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died
instantaneously of cardiorespiratory arrest due to shock and
hemorrhage as a result of multiple gunshot wounds on the head, trunk
and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold
Amparado was hospitalized and operated on in the kidney to remove a
bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina
Amparado, was also treated in the hospital as she was hit by bullet
fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of
nearly P1,000.00 a month was not able to work for 1-1/2 months
because of his wounds. He spent P15,000.00 for medical expenses
while his wife spent Pl,000.00 for the same purpose (pp. 24-25,
tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment, the dispositive
portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca guilty beyond
reasonable doubt of the complex crime of murder with double
frustrated murder as charged in the amended information, and
pursuant to Art. 63 of the Revised Penal Code which does not consider
the effect of mitigating or aggravating circumstances when the law
prescribes a single indivisible penalty in relation to Art. 48, he is hereby
sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the
sum of P30,000, complainant spouses Arnold and Lina Amparado in the
sum of Twenty Thousand Pesos (P20,000.00), without subsidiary
imprisonment in case of insolvency, and to pay the costs.

It appears from the evidence that the deceased Khingsley Paul Koh and
defendant's wife had illicit relationship while he was away in Manila;
that the accused had been deceived, betrayed, disgraced and ruined
by his wife's infidelity which disturbed his reasoning faculties and
deprived him of the capacity to reflect upon his acts. Considering all
these circumstances this court believes the accused Francisco Abarca
is deserving of executive clemency, not of full pardon but of a
substantial if not a radical reduction or commutation of his death
sentence.
Let a copy of this decision be furnished her Excellency, the President of
the Philippines, thru the Ministry of Justice, Manila.
SO ORDERED.

xxx xxx xxx

The accused-appellant assigns the following errors committed by the court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING
A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE
OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247 of the Revised Penal
Code defining death inflicted under exceptional circumstances, complexed with
double frustrated murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional
circumstances. Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another
person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall
be exempt from punishment.

These rules shall be applicable, under the same circumstances, to

parents with respect to their daughters under eighteen years of age,
and their seducers, while the daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the
other spouse shall not be entitled to the benefits of this article.
We agree with the Solicitor General that the aforequoted provision applies in the
instant case. There is no question that the accused surprised his wife and her
paramour, the victim in this case, in the act of illicit copulation, as a result of which,
he went out to kill the deceased in a fit of passionate outburst. Article 247
prescribes the following elements: (1) that a legally married person surprises his
spouse in the act of committing sexual intercourse with another person; and (2) that
he kills any of them or both of them in the act or immediately thereafter. These
elements are present in this case. The trial court, in convicting the accusedappellant of murder, therefore erred.
Though quite a length of time, about one hour, had passed between the time the
accused-appellant discovered his wife having sexual intercourse with the victim and
the time the latter was actually shot, the shooting must be understood to be the
continuation of the pursuit of the victim by the accused-appellant. The Revised
Penal Code, in requiring that the accused "shall kill any of them or both of them . . .
immediately" after surprising his spouse in the act of intercourse, does not say that
he should commit the killing instantly thereafter. It only requires that the death
caused be the proximate result of the outrage overwhelming the accused after
chancing upon his spouse in the basest act of infidelity. But the killing should have
been actually motivated by the same blind impulse, and must not have been
influenced by external factors. The killing must be the direct by-product of the
accused's rage.
It must be stressed furthermore that Article 247, supra, does not define an
offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
As may readily be seen from its provisions and its place in the Code,
the above-quoted article, far from defining a felony, merely provides or
grants a privilege or benefit amounting practically to an exemption
from an adequate punishment to a legally married person or parent
who shall surprise his spouse or daughter in the act of committing
sexual intercourse with another, and shall kill any or both of them in
the act or immediately thereafter, or shall inflict upon them any serious
physical injury. Thus, in case of death or serious physical injuries,

considering the enormous provocation and his righteous indignation,

the accused who would otherwise be criminally liable for the crime
of homicide, parricide, murder, or serious physical injury, as the case
may be is punished only withdestierro. This penalty is mere
banishment and, as held in a case, is intended more for the protection
of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.)
And where physical injuries other than serious are inflicted, the
offender is exempted from punishment. In effect, therefore, Article 247,
or the exceptional circumstances mentioned therein, amount to an
exempting circumstance, for even where death or serious physical
injuries is inflicted, the penalty is so greatly lowered as to result to no
punishment at all. A different interpretation, i.e., that it defines and
penalizes a distinct crime, would make the exceptional circumstances
which practically exempt the accused from criminal liability integral
elements of the offense, and thereby compel the prosecuting officer to
plead, and, incidentally, admit them, in the information. Such an
interpretation would be illogical if not absurd, since a mitigating and
much less an exempting circumstance cannot be an integral element
of the crime charged. Only "acts or omissons . . . constituting the
offense" should be pleaded in a complaint or information, and a
circumstance which mitigates criminal liability or exempts the accused
therefrom, not being an essential element of the offense charged-but a
matter of defense that must be proved to the satisfaction of the courtneed not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo,
23 Phil., 368.)
That the article in question defines no crime is made more manifest
when we consider that its counterpart in the old Penal Code (Article
423) was found under the General Provisions (Chapter VIII) of Title VIII
covering crimes against persons. There can, we think, hardly be any
dispute that as part of the general provisions, it could not have
possibly provided for a distinct and separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal Code
does not define and provide for a specific crime, but grants a privilege
or benefit to the accused for the killing of another or the infliction of
serious
physical
injuries
under
the
circumstances
therein
7
mentioned. ...
xxx xxx xxx

Punishment, consequently, is not inflicted upon the accused. He is banished, but

that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional circumstances, not
being a punishable act, cannot be qualified by either aggravating or mitigating or
other qualifying circumstances, We cannot accordingly appreciate treachery in this
case.
The next question refers to the liability of the accused-appellant for the physical
injuries suffered by Lina Amparado and Arnold Amparado who were caught in the
crossfire as the accused-appellant shot the victim. The Solicitor General
recommends a finding of double frustrated murder against the accused-appellant,
and being the more severe offense, proposes the imposition of reclusion temporal in
its maximum period pursuant to Article 48 of the Revised Penal Code. This is where
we disagree. The accused-appellant did not have the intent to kill the Amparado
couple. Although as a rule, one committing an offense is liable for all the
consequences of his act, that rule presupposes that the act done amounts to a
felony. 9
But the case at bar requires distinctions. Here, the accused-appellant was not
committing murder when he discharged his rifle upon the deceased. Inflicting death
under exceptional circumstances is not murder. We cannot therefore hold the
appellant liable for frustrated murder for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from any
responsibility. Granting the fact that he was not performing an illegal act when he
fired shots at the victim, he cannot be said to be entirely without fault. While it
appears that before firing at the deceased, he uttered warning words ("an waray
labot kagawas,") 10that is not enough a precaution to absolve him for the injuries
sustained by the Amparados. We nonetheless find negligence on his part.
Accordingly, we hold him liable under the first part, second paragraph, of Article
365, that is, less serious physical injuries through simple imprudence or negligence.
(The records show that Arnold Amparado was incapacitated for one and one-half
months; 11 there is no showing, with respect to Lina Amparado, as to the extent of
her injuries. We presume that she was placed in confinement for only ten to
fourteen days based on the medical certificate estimating her recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we therefore impose
upon the accused-appellantarresto mayor (in its medium and maximum periods) in
its maximum period, arresto to being the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The accusedappellant is sentenced to four months and 21 days to six months of arresto mayor.
The period within which he has been in confinement shall be credited in the service

of these penalties. He is furthermore ordered to indemnify Arnold and Lina

Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum
of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special
pronouncement as to costs.
IT IS SO ORDERED.
G.R. No. L-36858 June 20, 1988
PEOPLE
OF
THE
vs.
MACARIO A. ULEP, accused-appellant.

PHILIPPINES, plaintiff-appellee,

The Solicitor General for plaintiff-appellee.

Castor Naval for accused-appellant.

GANCAYCO, J.:
A man must love his wife. He must not lift a finger to hurt her. Indeed he must be
her protector. When against this unwritten rule he beats her, he ceases to be a man.
He becomes a beast. And the law imposes the supreme penalty when in the process
he kills her. It is parricide pure and simple.
This is what Macario A. Ulep, was convicted of by the Court of First Instance of Ilocos
Norte, Second Judicial District. He was sentenced to suffer the penalty of reclusion
perpetua, and to indemnify the heirs of the deceased in the amount of P12,000.00
and to pay the costs in a decision of March 20, 1973.
The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in San
Nicolas, Ilocos Norte, one Asuncion Pablo Ulep died as a result of physical injuries
inflicted upon her on that very day by her husband, accused Macario Ulep. The
following day, the Chief of Police of San Nicolas, Ilocos Norte received a report of the
said death of Asuncion Pablo who allegedly died of a heart attack. The Chief of
Police and the Rural Health Officer went to the house of the deceased and there
they saw the body on a bamboo bed surrounded by relatives, friends, and the
husband of the deceased, Macario. The Chief of Police suggested that an autopsy be
conducted but the husband refused to allow the same. However, the daughter of
the deceased by a previous marriage asked for a day or two to decide on her
preference.

At the behest of the daughter, the request for an autopsy was made shortly before
the burial. Accordingly, the police chief and Dr. Eliseo Bonoan, a physician, caught
up with the funeral Procession at the Catholic cemetery and thereupon conducted
an autopsy on the deceased.
The autopsy reports read as follows:
POSTMORTEM EXAMINATION
Name: ASUNCION PABLO ULEP
Age: 42
Nationality: Filipino
Address: No. 24, San Nicolas, Ilocos Norte
Date: May 25, 1970
PATHOLOGICAL DIAGNOSIS
SKIN:
A rectangular area of about 1" x 3" bluish black in color
was noted on the upper half, anterior aspect of the arm,
left.
SKELETAL SYSTEM:
Complete fracture of the 4th, 5th, 6th and 7th ribs, left.
The 4th and 5th ribs fractured along the midolavicular
line, left. The 6th and 7th ribs fractured along the anterior
auxillary line, left. Presence of extravascated blood and
injuries of the surrounding tissues of the broken ribs
areas, left.
Complete fracture of the 3rd and 4th ribs at the juncture
of the rib and external cartillages with concomitant injury
to its sounding tissues and extravascated blood, right
side.
THORACIC CAVITY:

Presence of about 200 cc. of a serous fluid found within

the cavity.
Pleura lacerated at the points of fractures.
CARDIOVASCULAR SYSTEM:
Heart with small amount of clotted blood. Coronary
vessels congested. The big blood vessels contained small
amount of clotted blood.
ABDOMINAL CAVITY:
Presence of about 500 cc. of serous fluid within the cavity.
DIGESTIVE SYSTEM:
Apparently normal
CENTRAL NERVOUS SYSTEM:
The meningeal vessels were congested.
CAUSE OF DEATH:
CARDIAC ARREST
PRIMARY SHOCK.
(Exh. D, p. 16, rec.).

Two weeks after the burial, two (2) constabulary sergeants investigated Macario
Ulep. A statement was prepared and signed by the accused and was subsequently
sworn to before Fiscal Cesar Abaya of Ilocos Norte. In this statement, marked as
Exhibit "A", he admitted that he caused the death of his wife by elbowing her
because his wife was then drunk and was uttering indecent words. The following
day, PC sergeant Damian Bautista of Camp Juan, Laoag City conducted another
investigation of accused Macario Ulep. His statement was reduced to writing and
then subscribed to before Fiscal Abaya. He reiterated that the cause of death of his
wife, Asuncion Pablo, was his elbowing her on her breast. This statement was
marked Exhibit "B".
Ulep narrated that this elbowing and attack took place at their home at 5:30 in the
afternoon. She vomitted and then went to bed, The accused then left for the fields

and returned at around 9:00 in the evening and found his wife dead on her bed. He
reported this death to their barrio captain.
Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep retracted
his statement in court by narrating that more than a year before that, and while his
wife went to have their palay milled, their bullcart loaded with sacks of rice turned
upside down and pinned his wife on her breast. With the pain in her chest, she was
treated by a country quack doctor or "arbularyo."
The accused took exception to his conviction when he raised the following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH OF
ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY THE ACCUSEDAPPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS AFFIDAVITS,
EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION, WHEN SUCH
ADMISSION IS BUT A MERE BELIEF ON HIS PART.
II
THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF
DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG STANDING
PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY
DR. PEDRO BLANCO FOR THE DEFENSE.
III
THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM
OF THE CRIME OF PARRICIDE.
Our primary concern is to determine the cause of death of Asuncion Pablo, the wife,
of the accused. Was her death a result of cardiac arrest and primary shock due to
fractured ribs? The appellant alleges that the gradual weakening of the heart due to
a long standing illness of the body system caused the cardiac arrest which claimed
the life of Asuncion Pablo.
The post-mortem report on the deceased was prepared by Dr. Eliseo V. Bonoan who
conducted an autopsy at the behest of a daughter of tile deceased by a previous
marriage. The husband who previously denied permission to conduct an autopsy
was present when the autopsy was performed shortly before the body was buried at
the cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr. Bonoan, the
cause of death was manifestly due to cardiac arrest and primary shock. We agree
and see no fault in this finding made in the necropsy report of Dr. Bonoan.

The defense took exception to Dr. Bonoan's testimony that the fractures in the chest
could have been caused by blows or physical pressure. Could such injuries not have
been inflicted by elbow blows when the victim was standing or by knee or feet
blows when the victim was lying on her back or was sitting with her back against
the wall?
While the accused admitted that he delivered several elbow blows on the chest of
his wife immediately before her death and the prosecution attributed these blows as
the proximate cause of the cardiac arrest and primary shock which resulted in the
wife's death, the defense assails this theory of the prosecution in the following
manner:
First, there were no contusions on the chest of the victim. This
indicates that the elbow blows were not of sufficient force to fracture
the ribs. This is so because a fracture necessarily results in the
extravasation of blood in the fractured area and it is the extravasated
blood that causes the swelling or contusion. 2 Dr. Blanco attributes the
absence of swelling or contusion on the chest, where the fractures
were found, to the fact that the fracture conditions Were of long
standing; that is, some repairs has happened and that sufficient time
have elapsed for the swelling to disappear (t.s.n., p. 180).
Second, even on the theory that fractures of the ribs as that found by
Dr. Bonoan were present, the same could have not caused cardiac
arrest and primary shock. This is so because only extravasated blood
was present around the immediate area of the fractures, This means
that the fractures were not depressed or that the fractured ends did
not cave-in, so as to injure the heart and impede its functions to cause
cardiac arrest. The claim of Dr. Bonoan that the chest is pliant and is
like an accordion which can be compressed is puerile to say the least.
Even so, the elbow blows of the accused could not have caused a
compression of the chest wall, no matter how pliant it could be. And
even on the theory that the fractures were caused by stamping the
foot on a piece of wood placed on the chest, while the victim was lying
on her back, still the fractures could not have injured the heart or
impede its functions to cause cardiac arrest, because the fractures,
were not depressed fractures or cave-in fractures. The fractures merely
caused the extravasation of blood within the fractured areas. And
neither would the fractures cause primary shock because they were
merely complete fractures; which means a mere breakage that would
not cause the stoppage of the heart, because it does not tend to
compress the heart. 3

And third, although the pleura or thoracic cavity was lacerated at the
points of fracture, the same could not have caused cardiac arrest or
primary shock because the lacerations were limited to the pleura. The
points of fracture did not cave-in or were not depressed and they did
not injure or impede the heart to cause cardiac arrest. Neither did the
lacerations of the pleura cause primary shock because blood did not
spill into the pleura, which indicates that the hemorrhage was nil. This
is so because the serous fluid in the pleura -as not reddish.
On the contrary, the evidence of the prosecution shows that the
deceased died of cardiac arrest because of the weakening of the heart
due to a long standing process or condition in her body system. Thus
the theory of the defense is strengthened by the very evidence of the
prosecution. 4
Furthermore, both sides in this case took issue to the presence of 200 cc. of serous
fluid in the pleura. The appellant claims that it is not normal whereas the
prosecution says that the pleura normally contains 100 to 200 cc. of serous fluid
and that this is normal. Anyway both agree that there should be enough serous fluid
to lubricate the tissues.
The presence of 500 cc. of serous fluid in the abdominal cavity which, according to
Dr. Blanco, the physician, witness for the appellant, may be due to the chronic
condition of the kidney like nephritis and edema or the hardening of the liver or a
long progressively weakening of the heart. 5 Dr. Bonoan did not concur in this view
when he said that the fluid was rather increased as a result of the diffusion of the
medicine used in the embalming. 6 We find cogent basis in the explanation given by
Dr. Bonoan.
Another point raised in the necropsy report pertains to the presence of clotted blood
in the heart and blood vessels as well as the congestion of the meningeal vessels.
The appellant bares that this is a sign of the hardening of the heart. Dr. Bonoan of
the prosecution disclosed that there were no signs of circulatory weakening and that
blood clots were not found adherent to the heart and such being the condition there
could be no abnormality and thus he further declares that such clots are normally
found in the heart of a dead person or in any part of the circulatory system. 7
There is an admission by Dr. Blanco, the appellant's witness, that he has not
"attended a case of fractured ribs" 8and that he explains cardiac failure as a "failing
of the heart" and his further concept is that it is "the stopping of the heart." He says
that such stoppage could be due to trauma, such as a fracture of the ribs. 9
A resume of the evidence presented by the parties establishes the fact of death of
Asuncion Pablo on May 21, 1970. She was legally married to Macario Ulep, the

appellant herein. The death, established in two affidavits, Exhibits "A" and "B," was
caused by said accused. In these affidavits, the appellant admitted that he elbowed
and attacked his wife. This attack caused the complete fracture of the 4th, 5th, 6th
and 7th ribs on her left chest and the 3rd, and 4th ribs, right chest of Asuncion Pablo
on the same evening of May 21, 1970. The trial judge observed: "There was never
any attempt on the part of the accused to repudiate the sworn statements wherein
he admitted that the cause of death of his wife was his having elbowed her many
times on her breast." 10
Having realized the gravity of his act, the appellant presented a witness to prove
that sometime in February or March, 1969 his wife was pinned down by a sack of
rice and the side portion of a bullcart and was attended to by a town quack doctor
called an arbularyo. This witness said that two (2) ribs on each side of the chest
were fractured, without stating which particular ribs were so affected.
From all these observations, findings, and an incisive study of the necropsy report,
the cause of death of the wife-victim in this case is cardiac arrest and primary shock
caused by the strong pressure applied on the upper front chest bone. This happens
when one steps, kneels or presses the body of a victim against a wall. The man-size
blows coming from the elbow of the aggressor upon a thin-framed woman can only
bring about fatal results.
We find relevance in Wharton and Stilles' findings in their book, Medical
Jurisprudence under the title of "SHOCK," to wit:
Sec. 225. Shock. Death may also be due to the shock associated
with the injury. The possibility of a person dying from the shock
attendant upon an injury which, by itself appears to be unimportant is
attested by experience. No satisfactory explanation of the cause of the
shock seems to have been found, though it is due in some way to the
upsetting of the nervous equilibrium of the body. Shock from an injury
may be fatal even when the blow leaves no trace behind it; as, for
instance, when a person receives a violent blow upon the pit of the
stomach, or behind the ear, or to the larynx. ... In the case of Reg. v.
Slane, et al., 11 the deceased had received injuries to the abdomen by
kick and blows, but there were no marks of bruises present, or
anything to show the cause of death. Death however, had followed
twenty minutes after the maltreatment and was evidently due to the
shock. The prisoners were convicted of murder. 12
We have previously stated that:
Even if the victim is suffering from an internal ailment, liver or heart
disease, or tuberculosis, if the blow delivered by the accused

(a) is the efficient cause of death; or

(b) accelerated his death; or
(c) is the proximate cause of death; then there is criminal liability.

13

Apropos to all these is that time-respected doctrine: "He who is the cause of the
cause is the cause of the evil caused." This is the rationale in Article 4 of the
Revised Penal Code which provides that "criminal liability shall be incurred by a
person committing a felony (delito) although the wrongful act done be different
from that which he intended."
Again, We elucidated that: even though a blow with the fist or a kick does not cause
any external wound, it may easily produce inflammation of the spleen and
peritonitis and cause death, and even though the victim may have been previously
affected by some internal malady, yet if the blow with the fist or foot accelerated
death, he who caused such acceleration is responsible for the death as the result of
an injury willfully and unlawfully inflicted. 14
We are, therefore, convinced that there is no fundamental disagreement between
the two medical witnesses as to the cause of the victim's death and that cardiac
arrest and primary shock took away the life of the victim, Asuncion Pablo.
There is that clear and categorical showing that on the appellant fell the blame for
these in human acts on his wife. He should answer for her tragic death.
The indemnity to the heirs of his deceased wife should be increased to P30,000.00.
WHEREFORE, with the above modification as to indemnity, the judgment appealed
from is hereby AFFIRMED in all other respects.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.
G.R. No. L-34665

August 28, 1931

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
DONATO BINDOY, defendant-appellant.
Florentino
Saguin
Attorney-General Jaranilla for appellee.

ISLANDS, plaintiff-appellee,

for

appellant.

VILLAMOR, J.:
The appellant was sentenced by the Court of First Instance of Occidental Misamis to
the penalty of twelve years and one day of reclusion temporal, with the accessories
of law, to indemnify the heirs of the deceased in the amount of P1,000, and to pay
the costs. The crime charged against the accused is homicide, according to the
following information:
That on or about the 6th of May, 1930, in the barrio of Calunod, municipality
of Baliangao, Province of Occidental Misamis, the accused Donato Bindoy
willfully, unlawfully, and feloniously attacked and with his bolo wounded
Emigdio Omamdam, inflicting upon the latter a serious wound in the chest
which caused his instant death, in violation of article 404 of the Penal Code.
The accused appealed from the judgment of the trial court, and his counsel in this
instance contends that the court erred in finding him guilty beyond a reasonable
doubt, and in convicting him of the crime of homicide.
The record shows that in the afternoon of May 6, 1930, a disturbance arose in
a tuba wineshop in the barrio market of Calunod, municipality of Baliangao, Province
of Occidental Misamis, started by some of the tubadrinkers. There were Faustino
Pacas (alias Agaton), and his wife called Tibay. One Donato Bindoy, who was also
there, offered some tuba to Pacas' wife; and as she refused to drink having already
done so, Bindoy threatened to injure her if she did not accept. There ensued an
interchange of words between Tibay and Bindoy, and Pacas stepped in to defend his
wife, attempting to take away from Bindoy the bolo he carried. This occasioned a
disturbance which attracted the attention of Emigdio Omamdam, who, with his
family, lived near the market. Emigdio left his house to see what was happening,
while Bindoy and Pacas were struggling for the bolo. In the course of this struggle,
Bindoy succeeded in disengaging himself from Pacas, wrenching the bolo from the
latter's hand towards the left behind the accused, with such violence that the point
of the bolo reached Emigdio Omamdam's chest, who was then behind Bindoy.
There is no evidence that Emigdio took part in the fight between Bindoy and Pacas.
Neither is there any indication that the accused was aware of Emigdio Omamdam's
presence in the place, for, according to the testimony of the witnesses, the latter
passed behind the combatants when he left his house to satisfy his curiosity. There
was no disagreement or ill feeling between Bindoy and Omamdam, on the contrary,
it appears they were nephew and uncle, respectively, and were on good terms with
each other. Bindoy did not try to wound Pacas, and instead of wounding him, he hit
Omamdam; he was only defending his possession of the bolo, which Pacas was
trying to wrench away from him, and his conduct was perfectly lawful.

The wound which Omamdam received in the chest, judging by the description given
by the sanitary inspector who attended him as he lay dying, tallies with the size of
the point of Bindoy's bolo.
There is no doubt that the latter caused the wound which produced Emigdio
Omamdam's death, but the defendant alleges that it was caused accidentally and
without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having seen the
accused stab Omamdam with his bolo. Such testimony is not incompatible with that
of the accused, to the effect that he wounded Omamdam by accident. The widow
testified that she knew of her husband's wound being caused by Bindoy from his
statement to her before his death.
The testimony of the witnesses for the prosecution tends to show that the accused
stabbed Omamdam in the chest with his bolo on that occasion. The defendant,
indeed, in his effort to free himself of Pacas, who was endeavoring to wrench his
bolo from him, hit Omamdam in the chest; but, as we have stated, there is no
evidence to show that he did so deliberately and with the intention of committing a
crime. If, in his struggle with Pacas, the defendant had attempted to wound his
opponent, and instead of doing so, had wounded Omamdam, he would have had to
answer for his act, since whoever willfully commits a felony or a misdemeanor
incurs criminal liability, although the wrongful act done be different from that which
he intended. (Art. 1 of the Penal Code.) But, as we have said, this is not the case.
The witness for the defense, Gaudencio Cenas, corroborates the defendant to the
effect that Pacas and Bindoy were actually struggling for the possession of the bolo,
and that when the latter let go, the former had pulled so violently that it flew
towards his left side, at the very moment when Emigdio Omamdam came up, who
was therefore hit in the chest, without Donato's seeing him, because Emigdio had
passed behind him. The same witness adds that he went to see Omamdam at his
home later, and asked him about his wound when he replied: "I think I shall die of
this wound." And then continued: "Please look after my wife when I die: See that
she doesn't starve," adding further: "This wound was an accident. Donato did not
aim at me, nor I at him: It was a mishap." The testimony of this witness was not
contradicted by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this kind, which, had it
existed, would have greatly facilitated the solution of this case. And we deem it well
to repeat what this court said in United States vs. Carlos (15 Phil., 47), to wit:
The attention of prosecuting officers, and especially of provincial fiscals,
directed to the importance of definitely ascertaining and proving, when

possible, the motives which actuated the commission of a crime under

investigation.
In many criminal cases one of the most important aids in completing the
proof of the commission of the crime by the accused is the introduction of
evidence disclosing the motives which tempted the mind of the guilty person
to indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that the appellant
is entitled to acquittal according to article 8, No. 8, Penal Code. Wherefore, the
judgment appealed from is reversed, and the accused Donato Bindoy is hereby
acquitted with costs de oficio. So order
G.R. No. L-32066

March 15, 1903

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff

vs.
GONA (Mansaca), defendant and appellant.
Jose
Ma.
Capili
Attorney-General Jaranilla for appellee.

for

and

appellee,

appellant.

OSTRAND, J.:
The defendant was charged before the Court of First Instance of the Province of
Davao with the crime of homicide, the information reading as follows:
That on or about October 26, 1928, in the municipal district of Pantukan,
Province of Davao, Philippine Islands, as within the jurisdiction of the court,
the said accused voluntarily, illegally, and criminally and with a bolo which he
then carried, assaulted the Mansaca Mapudul, causing him a mortal wound
on the left side of the neck and that as a consequence of said wound, the said
Mapudul died.
Upon trial the court below found the defendant guilty as charged in the information
and taking into consideration the extenuating circumstance of non-habitual
intoxication, sentenced him to suffer twelve years and one ofreclusion
temporal with the accessory penalties prosecuted by law to indemnity the heirs of
the deceased in the sum of P1,000, and to the costs. From this sentenced the
defendant appealed.
It appears from the evidence that on the evening of October 26, 1928, a number
of Mansacas celebrated a reunion in the house of the Mansaca Gabriel. There seems
to have been liberal supply of alcoholic drinks and some of the men present became

intoxicated, with the result that a quarrel took the place between
the MansacaDunca and the defendant. Dunca and his son Aguipo eventually left the
house and were followed by Mapudul and one Award. The defendant left the house
about the same time with intention of assaulting Dunca, but in the darkness of the
evening and in the intoxicated condition of the defendant, the mistook Mapudul for
Dunca and inflicated on him a mortal wound with a bolo.
There can no doubt that the defendant killed Mapudul and that he is guilty of the
crime charged, but his attorney argues that in view of the fact that said defendant
had no intention to kill the deceased and committed the crime by mistake, he
should have been found guilty of homicide through negligence under paragraph 1 of
article 568 of the Penal Code and not of the graver crime of intentional homicide.
This contention is contrary to earlier decisions of this court. In these case of United
State vs. Mendieta(34 Phil., 242), the court said:
Even admitting that the defendant intended to injure Hilario Lauigan instead
of Pedro Acierto, even that, in view of the mortal wound which inflicted upon
the latter, in no way could be considered as a relief from his criminal act. That
he made a mistake in killing one man instead of another, when it is proved
that he acted maliciously and willfully, cannot relieve him from criminal
responsibility. Neither do we believe that the fact that he made a mistake in
killing the wrong man should be considered as a mitigating circumstances.
The appealed sentence is affirmed with the costs against the defendant. So ordered.
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.
G.R. No. L-25459

August 10, 1926

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
RAMON MABUG-AT, defendant-appellant.
Vicente
Sotto
Attorney-General Jaranilla for appellee.

ISLANDS, plaintiff-appellee,

for

appellant.

ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros imposed upon Ramon Mabug-at the
penalty of twelve years and one day cadena temporal, with the accessories of the
law, to indemnify the offended party in the sum of P700 and to pay the costs, for
the crime of frustrated murder.

The appellant appealed from this judgment, making two assignments of error as
committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder, and
2. In not giving any credit to the evidence presented by the defense, finding
the defendant guilty beyond a reasonable doubt.
The evidence of the prosecution shows that the accused and Juana Buralo was
sweethearts. Juana had been jealous of the accused on account of the latter having
frequently visited the house of one Carmen. Their relations were such that the
accused invited Juana to take a walk on the afternoon of August 9, 1925. Juana
refused him, later sending him a note of excuse. On the third day, or the night of
August 11th, the accused went to the threshold of Cirilo Banyan's house where
Juana Buralo had gone to take part in some devotion. There the accused, revolver in
hand, requested Francisco Abellon to ask Juana to come downstairs and as Abellon
refused to do so, the accused said: "If you do not want to go upstairs, I will get
Juana and if anyone tries to defend her I will kill him."
The accused waited until Juana and her niece Perfecta Buralo came downstairs,
when they went in the direction of their house. The accused, who was seen by the
two girls, followed them without saying a word. It is only a short distance from the
house where the devotion took place to that of the offended party, the houses being
adjacent. As the two girls were going upstairs, the accused, while standing at the
foot of the stairway, fired a shot from his revolver which wounded Perfecta Buralo,
the bullet passing through a part of her neck, having entered the posterior region
thereof and coming out through the left eye, which was completely destroyed. Due
to proper medical attention, Perfecta Buralo did not die and is on e of the witnesses
who testified at the trial of this case.
The defense, without abandoning its allegation that the accused is not responsible
for the crime, contends that the crime proven is not frustrated murder but the
discharge of a firearm, with injuries, it not having been proven that it was the
accused's intention to kill.
The relations existing between the accused and Juana Buralo, his disappointment at
her not accepting his invitation to take a walk, the fact that the accused, revolver in
hand, went to look for Juana Buralo at the house where the devotion was being held,
later following her to her house, and especially having aimed at her person--the
head--are facts which, in our opinion, permit of no other conclusion than that, in
firing the shot, it was the accused's intention to kill.
In the decision of this court in the case of United States vs. Montenegro (15 Phil., 1),
it was held:

We do not doubt that there may be cases wherein the discharge of a firearm
at another is not in itselfsufficient to sustain a finding of the intention to kill,
and there are many cases in the books wherein the attendant circumstances
conclusively establish that on discharging a firearm at another the actor was
not in fact animated by the intent to kill. But, in seeking to ascertain the
intention with which a specific act is committed, it is always proper and
necessary to look not merely to the act itself but to all the attendant
circumstances so far as they are developed by the evidence; and where, as in
the case at bar, a revolver is twice discharged point-blank at the body of
another, and the shots directed at the most vital parts of the body, it needs
but little additional evidence to establish the intent to kill beyond a
reasonable doubt.
The fact that a person received the shot which was intended for another, does not
alter his criminal liability. (Art. 1, par. 3, Penal Code.)
The circumstances qualifying the murder alleged in the complaint are evidence
premeditation and treachery. Even when there is sufficient proof of premeditation
(which we do not believe has been sufficiently established), yet, it cannot be
considered as a qualifying circumstance in the present case, because the person
whom the accused intended to kill was not Perfecta Buralo, who was hit by the
bullet, but her aunt Juana Buralo. Had evident premeditation been proven, and there
being no other qualifying circumstance of frustrated murder present in this case, the
acts should be held to be frustrated homicide and punished with the maximum
degree of the penalty prescribed by law. (Question 2, p. 28, 1890 ed., Viada's Penal
Code.) But, the fact is that treachery was proven and must be taken into
consideration in this case, because the accused fired at Perfecta Buralo, employing
means which tended to insure the execution of the crime without running any risk
himself from anyone who might attempt to defend the said offended party. The
treachery which, according to the evidence, would have attended the crime had the
bullet hit Juana Buralo was present in this case because the offended party Perfecta
Buralo and Juana were going upstairs with their backs towards the accused when he
fired his revolver. The Supreme Court of Spain, in a decision of May 7, 1885 (Viada,
do., pp. 29, 30), in holding a crime to be murder and not homicide, stated the
following:
Considering that, according to the concept of treachery as it is explained in
article 10 of the Civil code dealing with said circumstance, it is evident that in
firing the gun which Alejandro Sola was carrying which caused the death of
Nazario Iigo, he employed means which tended to insure the commission of
the crime without any risk to himself arising from any defense that might be
made by the offended party, for neither the wounded party Bartolome
Lobejano, at whom the shot was aimed in order to kill him so that he might
not testify as to the assault committed upon him shortly before, as held by

the trial court, was not in a position to defend himself in any way, nor could
Nazario Iigo become aware of any attack so unjustified, rapid and
unforeseen; considering, further, that the purely accidental circumstance that
as a result of the shot a person other than the one intended was killed, does
not modify, in the instant case, the elements constituting the crime of murder
qualified by the treachery with which Alejandro Sola acted, whether with
respect to the wounded Bartolome Lobejano or to the deceased Nazario Iigo,
for which reason the rules of article 65 are not applicable herein, the culprit
not having, in fact, committed a crime different from that which he intended,
taking into consideration the substantial and intrinsical meaning thereof, etc.
Although the case just cited refers to the crime of consummated murder, the
doctrine sustained therein is applicable to the case at bar so far as the concurrence
of treachery as a qualifying circumstance is concerned.
The crime now before us is frustrated murder, the accused having intended to kill
and performed all the acts of execution, which would have produced the crime of
murder but which, nevertheless, did not produce it by reason of causes independent
of his will. (Art. 3, Penal Code.)
We find no merit in the first assignment of error.
In regard to the second, it appears beyond a reasonable doubt that the facts
enumerated above constitute the crime of frustrated murder.
With the exception of the qualifying circumstance of treachery, we find no other
aggravating circumstance.
The judgment appealed from being in accordance with the law and the facts proven,
the same is hereby affirmed in all its parts costs against the appellant. So ordered.
G.R. No. L-38511

October 6, 1933

THE
PEOPLE
OF
THE
vs.
FRANCISCO
CAGOCO
CAGURO, alias FRANCISCO
GUY), defendant-appellant.

PHILIPPINE
Y

ISLANDS, plaintiff-appellee,

RAMONES
(alias FRANCISCO
ADMONES, aliasBUCOY, alias FRISCO

W.A.
Caldwell
and
Sotto
and
Office of the Solicitor-General Bengzon for appellee.

Astilla

for

appellant.

VICKERS, J.:
The accused was charged in the Court of First Instance of Manila with the crime
of asesinato, committed as follows:
That on or about the 24th day of July, 1932, in the City of Manila, Philippine
Islands, the said accused did then and there willfully, unlawfully and
feloniously, without any just cause therefor and with intent to kill and
treachery, assault and attack one Yu Lon by suddenly giving him a fist blow
on the back part of the head, under conditions which intended directly and
especially to insure, the accomplishment of his purpose without risk to
himself arising from any defense the victim Yu Lon might make, thus causing
him to fall on the ground as a consequence of which he suffered a lacerated
wound on the scalp and a fissured fracture on the left occipital region, which
were necessarily mortal and which caused the immediate death of the said Yu
Lon.
After hearing the evidence, Judge Luis P. Torres found the defendant guilty as
charged, and sentenced him to suffer reclusion perpetua, with the accessory
penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of
P1,000, without subsidiary imprisonment in case of insolvency, and to pay the costs.
Appellant's attorney de oficio makes the following assignments of error:
1. The trial court erred in finding that the appellant the person who
committed the assault on Yu Lon, the victim to the crime charged in the
information.
2. Assuming that the appellant is the person who committed the assault on
Yu Lon (a fact which we specifically deny), the trial court erred in finding that
the appellant struck his supposed victim.
3. Assuming that the appellant is the person who committed the assault on
Yu Lon, and that the appellant did strike his supposed victim (facts which we
specifically deny) the trial court erred in finding that the blow was dealt from
the victim's rear.
4. The trial court erred in finding that the identity of the appellant was fully
established.
5. Assuming that the four preceding errors assigned are without merit, the
trial court erred in convicting the appellant of the crime of murder, under
article 248 of the Revised Penal Code, instead of convicting him of the crime
of maltreatment, under article 266 of the said Code.

It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon
and Yu Yee, father and son, stopped to talk on the sidewalk at the corner of Mestizos
and San Fernando Streets in the District of San Nicolas Yu Lon was standing near the
outer edge of the sidewalk, with his back to the street. While they were talking, a
man passed back and forth behind Yu Lon once or twice, and when Yu Yee was about
to take leave of his father, the man that had been passing back the forth behind Yu
Lon approached him from behind and suddenly and without warning struck him with
his fist on the back part of the head. Yu Lon tottered and fell backwards. His head
struck the asphalt pavement; the lower part of his body fell on the sidewalk. His
assailants immediately ran away. Yu Yee pursued him through San Fernando,
Camba, and Jaboneros Streets, and then lost sight of him. Two other Chinese, Chin
Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and
joined him in the pursuit of Yu Lon's assailant. The wounded man was taken to the
Philippine General Hospital, were he died about midnight. A post-mortem
examination was made the next day by Dr. Anastacia Villegas, who found that the
deceased had sustained a lacerated wound and fracture of the skull in the occipital
region, and that he had died from cerebral hemorrhage; that he had tuberculosis,
though not in an advanced stage, and a tumor in the left kidney.
Yu Yee promptly reported the incident to the police, and about 3 o'clock the next
morning Sergeant Sol Cruz and other detectives, accompanied by Yu Yee, went to
the scene of the crime and found blood stains in the street. Yu Yee said that he
could recognize his father's assailant, and described him as being about five feet in
height, 25 or 30 years old, with long hair and wearing a suit of dark clothes. After
Sergeant Sol Cruz had been working on the case for three or four days he received
information that the accused might be the person that had assaulted Yu Lon, and on
August 4th the accused was arrested by detectives Manrique and Bustamante. He
was wearing a dark wool suit. Yu Yee was immediately called to the police station.
The accused was placed near the middle of a line of some eleven persons that had
been detained for investigation. They were wearing different kinds of clothes. Yu Yee
without hesitation pointed out the defendant as the person that had assaulted Yu
Lon. He identified him not only by his long hair combed towards the back and worn
long on the sides in the form of side-whiskers (patillas), but also by his high cheekbones and the fact that his ears have no lobes. The defendant was identified at the
trial not only by Yu Yee, but also by Chin Sam and Yee Fung.
With respect to the first four assignment of error, which raise questions of fact as to
the identification of the accused, and whether or not be struck the deceased, and if
he did assault the deceased, whether he did so in a treacherous manner, we see no
sufficient reason, after considering the evidence and arguments of counsel, to doubt
the correctness of the findings of the trial judge. The accused was identified by Yu
Yee and two other Chinese, and although Yu Yee may have overstated at the trial
some of the facial peculiarities in the defendant that he claimed to have observed
at the time of the incident, it must be remembered that Yu Yee without hesitation

picked the defendant out of a group of eleven persons as his father's assailant, and
that he had exceptional opportunities for observing his father's assailant, because
while that person was walking back and forth behind Yu Lon, Yu Yee was facing the
assailant.
We find the testimony of the defendant and his witnesses as to the whereabouts of
the defendant on the night in question unworthy of credit.1awphil.net
The testimony of the three Chinese that a man struck the deceased and then ran
away is corroborated by the testimony of a 15-year old boy, Dominador Sales.
As to the contention that the deceased would have fallen on his face if he had been
struck on the back of the head, the expert testimony shows that in such a case a
person instinctively makes an effort to preserve or regain his balance, and that as
result thereof the deceased may have fallen backwards. Another consideration is
that sidewalks almost invariably slope towards the pavement, and this being true,
when the deceased straightened up, he naturally tended to fall backwards. The
evidence leaves no room for doubt that the accused struck the deceased on the
back of the head, because when the deceased was assaulted he and Yu Yee were
standing on the sidewalk, facing each other, and if the accused had not struck the
deceased on the back of the head, it would have been necessary for him to go
between the deceased and Yu Yee. Since the accused struck the deceased from
behind and without warning, he acted with treachery. "There is treachery when the
offender commits any of the crimes against the person, employing means, methods,
or forms in the execution thereof which tend directly and especially to insure its
execution, without risk to himself arising from the defense which the offended party
might make." (Article 14, No. 16, of the Revised Penal Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the appellant if guilty at all,
should be punished in accordance with article 266 of the Revised Penal Code, or for
slight physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal liability
shall be incurred by any person committing a felony (delito) although the wrongful
act done be different from that which he intended; but in order that a person may
be criminally liable for a felony different from that which he proposed to commit, it
is indispensable that the two following requisites be present, to wit: (a) That a
felony was committed; and (b) that the wrong done to the aggrieved person be the
direct consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil.,
310; U.S. vs. Mallari, 29 Phil., 14 U.S. vs. Diana, 32 Phil., 344.)

In the Brobst case, supra, it was held that death may result from a blow over or near
the heart or in the abdominal region, notwithstanding the fact that the blow leaves
no outward mark of violence; that where death result as the direct consequence of
the use of illegal violence, the mere fact that the diseased or weakened condition of
the injured person contributed to his death, does not relieve the illegal aggressor of
criminal responsibility; that one is not relieved, under the law in these Islands, from
criminal liability for the natural consequences of one's illegal acts, merely because
one does not intend to produce such consequences; but that in such cases, the lack
of intention, while it does not exempt from criminal liability, is taken into
consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case at bar. There can be no
reasonable doubt as to the cause of the death of Yu Lon. There is nothing to indicate
that it was due to some extraneous case. It was clearly the direct consequence of
defendants felonious act, and the fact that the defendant did not intend to cause so
great an injury does not relieve him from the consequence of his unlawful act, but is
merely a mitigating circumstance (U.S. vs. Rodriguez, 23 Phil., 22).
The next question is whether the crime committed by the defendant should be
classified as homicide or murder. Can the defendant be convicted of murder when
he did not intend to kill the deceased?
We have seen that under the circumstances of this case the defendant is liable for
the killing of Yu Lon, because his death was the direct consequence of defendant's
felonious act of striking him on the head. If the defendant had not committed the
assault in a treacherous manner. he would nevertheless have been guilty of
homicide, although he did not intend to kill the deceased; and since the defendant
did commit the crime with treachery, he is guilty of murder, because of the
presence of the qualifying circumstance of treachery.
The Supreme Court of Spain has held that there is no incompatibility, moral or legal,
between alevosia and the mitigating circumstance of not having intended to cause
so great an injury:
Considering that there is no moral or legal incompatibility between treachery
and the mitigating circumstance No. 3 of article 9 of the Penal Code, because
the former depends upon the manner of execution of the crime and the latter
upon the tendency of the will towards a definite purpose, and therefore there
is no obstacle, in case treacherous means, modes or forms are employed, to
the appreciation of the first of said circumstances and simultaneously of the
second if the injury produced exceeds the limits intended by the accused;
and for that reason it cannot be held in the instant case that this mitigating
circumstances excludes treachery, or that the accused, being chargeable with
the death of the offended party, should not be liable due to the voluntary

presence of treachery in the act perpetrated, although with mitigation

corresponding to the disparity between the act intended and the act
consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906;
Viada: 5th edition, Vol. 2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104), this court speaking
through Chief Justice Arellano said:
In trying Jacinto to a tree the three defendants acted treacherously
(alevosamente). Whether it was to prevent him from making resistance,
whether it was to torture him for the purpose of making him give information,
or whether it was for the purpose of inflicting further punishment, the fact is
that by this means the defendants secured themselves against any risk which
might have arisen from an attempt at self-defense on the part of the victim.
We are of opinion that they had no intention to cause so great an evil as that
which resulted, but this does not neutralize that other qualifying
circumstance of the resulting death, because if there was no alevosia for the
purpose of killing there was alevosia for the purpose of the illtreating. The
means employed were not made use of for the precise purpose of making
certain the death of Jacinto de Jesus but as a safe means of illtreating him
without risk to the persons who were doing so. If by this means the ill
treatment was aggravated, it follows that it is a qualifying circumstances in
the death which resulted. It was not a condition of the purpose, but it was a
condition of the criminal act itself, in whatever sense this be taken.
The penalty of murder (article 248 of the Revised Penal Code) is reclusion
temporal in its maximum period to death, and there being present in this case one
mitigating and no aggravating circumstance the prison sentence of the appellant is
reduced to seventeen years, four months, and one day of reclusion temporal. As
thus modified, the decision appealed from is affirmed, with the costs against the
appellant.
Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur.
G.R. No. 103119 October 21, 1992
SULPICIO
vs.
HONORABLE
COURT
OF
PHILIPPINES, respondents.

CAMPOS, JR., J.:

INTOD, petitioner,
APPEALS

and

PEOPLE

OF

THE

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV,
Oroquieta City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio
and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena,
Misamis Occidental and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a
meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between them and that Mandaya should
accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's
house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter,
Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however,
that Palangpangan was in another City and her home was then occupied by her sonin-law and his family. No one was in the room when the accused fired the shots. No
one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness
testified that before the five men left the premises, they shouted: "We will kill you
(the witness) and especially Bernardina Palangpangan and we will come back if (sic)
you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court
(RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of
attempted murder. Petitioner seeks from this Court a modification of the judgment
by holding him liable only for an impossible crime, citing Article 4(2) of the Revised
Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be
incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night
he and his companions riddled it with bullets made the crime inherently
impossible.
On the other hand, Respondent People of the Philippines argues that the crime was
not impossible. Instead, the facts were sufficient to constitute an attempt and to
convict Intod for attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the
inherent impossibility of its accomplishment (Art. 4(2), Revised Penal
Code), but due to a cause or accident other than petitioner's and his
accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did
not sleep at her house at that time. Had it not been for this fact, the
crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to
remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should have set
about doing the deed, employing appropriate means in order that his
intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold him
criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at something
quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article 4(2)
is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense
against person or property because: (1) the commission of the offense is inherently
impossible of accomplishment: or (2) the means employed is either (a) inadequate
or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the
law; (2) there is intention to perform the physical act; (3) there is a
performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat pocket of
another with the intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in said
place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he
thought the police officer would be. It turned out, however, that the latter was in a
different place. The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party
imagined where he was, and where the bullet pierced the roof, renders
it no less an attempt to kill. It is well settled principle of criminal law in
this country that where the criminal result of an attempt is not
accomplished simply because of an obstruction in the way of the thing
to be operated upon, and these facts are unknown to the aggressor at
the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent
to kill the victim because the latter did not pass by the place where he was lying-in
wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only
became impossible by reason of the extraneous circumstance that
Lane did not go that way; and further, that he was arrested and
prevented from committing the murder. This rule of the law has
application only where it is inherently impossible to commit the crime.
It has no application to a case where it becomes impossible for the

crime to be committed, either by outside interference or because of

miscalculation as to a supposed opportunity to commit the crime which
fails to materialize; in short it has no application to the case when the
impossibility grows out of extraneous acts not within the control of the
party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court quoted
Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by
reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be administered,
equally whether in the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The community suffers
from the mere alarm of crime. Again: Where the thing intended
(attempted) as a crime and what is done is a sort to create alarm, in
other words, excite apprehension that the evil; intention will be carried
out, the incipient act which the law of attempt takes cognizance of is in
reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's
room thinking that the latter was inside. However, at that moment, the victim was
in another part of the house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder against
Petitioner. However, we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the American laws regarding
the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for
impossible crimes and made the punishable. Whereas, in the United States, the
Code of Crimes and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the cases
generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a
defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is no
defense that in reality the crime was impossible of commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid
criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for
attempting to smuggle letters into and out of prison. The law governing the matter
made the act criminal if done without knowledge and consent of the warden. In this
case, the offender intended to send a letter without the latter's knowledge and
consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable
the contention of the state that "elimination of impossibility as a defense to a
charge of criminal attempt, as suggested by the Model Penal Code and the proposed
federal legislation, is consistent with the overwhelming modern view". In disposing
of this contention, the Court held that the federal statutes did not contain such
provision, and thus, following the principle of legality, no person could be criminally
liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act
plus conduct constitutes the offense of attempt irrespective of legal
impossibility until such time as such legislative changes in the law take
place, this court will not fashion a new non-statutory law of criminal
attempt.
To restate, in the United States, where the offense sought to be committed is
factually impossible or accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime where
the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime neither for an attempt not for an impossible
crime. The only reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article 4,
paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder
because the absence of Palangpangan was a supervening cause independent of the
actor's will, will render useless the provision in Article 4, which makes a person
criminally liable for an act "which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment . . ." In that case all
circumstances which prevented the consummation of the offense will be treated as
an accident independent of the actor's will which is an element of attempted and
frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision
of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is
hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as
defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by
Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto
mayor, together with the accessory penalties provided by the law, and to pay the
costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
G.R. No. 95322 March 1, 1993
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre L. Tagarao for appellant Pablito Domasian.
Lino M. Patajo for appellant Dr. Samson Tan.
CRUZ, J.:
The boy was detained for only about three hours and was released even before his
parents received the ransom note. But it spawned a protracted trial spanning all of
8 years and led to the conviction of the two accused. 1
The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in
question. The accused were Pablito Domasian and Samson Tan, the latter then a
resident physician in the hospital owned by Enrico's parents. They were represented
by separate lawyers at the trial and filed separate briefs in this appeal.

The evidence of the prosecution showed that in the morning of March 11, 1982,
while Enrico was walking with a classmate along Roque street in the poblacion of
Lopez, Quezon, he was approached by a man who requested his assistance in
getting his father's signature on a medical certificate. Enrico agreed to help and
rode with the man in a tricycle to Calantipayan, where he waited outside while the
man went into a building to get the certificate. Enrico became apprehensive and
started to cry when, instead of taking him to the hospital, the man flagged a
minibus and forced him inside, holding him firmly all the while. The man told him to
stop crying or he would not be returned to his father. When they alighted at
Gumaca, they took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney driver and
handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two
then boarded a tricycle headed for San Vicente, with the man still firmly holding
Enrico, who continued crying. This aroused the suspicion of the driver, Alexander
Grate, who asked the man about his relationship with the boy. The man said he and
the boy were brothers, making Grate doubly suspicious because of the physical
differences between the two and the wide gap between their ages. Grate
immediately reported the matter to two barangay tanods when his passengers
alighted from the tricycle. Grate and the tanods went after the two and saw the man
dragging the boy. Noticing that they were being pursued, the man told Enrico to run
fast as their pursuers might behead them. Somehow, the man managed to escape,
leaving Enrico behind. Enrico was on his way home in a passenger jeep when he
met his parents, who were riding in the hospital ambulance and already looking for
him. 2
At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received
an envelope containing a ransom note. The note demanded P1 million for the
release of Enrico and warned that otherwise the boy would be killed. Agra thought
the handwriting in the note was familiar. After comparing it with some records in the
hospital, he gave the note to the police, which referred it to the NBI for
examination. 3
The test showed that it bad been written by Dr. Samson Tan. 4 On the other hand,
Enrico was shown a folder of pictures in the police station so be could identify the
man who had detained him, and he pointed to the picture of Pablito
Domasian. 5 Domasian and Tan were subsequently charged with the crime of
kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6
The defense of both accused was denial and alibi. Domasian claimed that at the
time of the incident he was watching a mahjong game in a friend's house and later
went to an optical clinic with his wife for the refraction of his eyeglasses. 7 Dr. Tan
for his part said he was in Manila. 8

After trial Judge Enrico A. Lanzanas found both accused guilty as charged and
sentenced them to suffer the penalty of reclusion perpetua and all accessory
penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Agra
as actual and moral damages and attorney's fees.
In the present appeal, the accused-appellants reiterate their denial of any
participation in the incident in question. They belittle the credibility of the
prosecution witnesses and submit that their own witnesses are more believable. Tan
specifically challenges the findings of the NBI and offers anew the opposite findings
of the PC/INP showing that he was not the writer of the ransom note. He maintains
that in any case, the crime alleged is not kidnapping with serious illegal detention
as no detention in an enclosure was involved. If at all, it should be denominated and
punished only as grave coercion. Finally, both Domasian and Tan insist that there is
no basis for the finding of a conspiracy between them to make them criminally
liable in equal degree.
First, on the credibility of the witnesses. This is assessed in the first instance by the
trial judge, whose finding in this regard is received with much respect by the
appellate court because of his opportunity to directly observe the demeanor of the
witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim
himself, who positively identified Domasian as the person who detained him for
three hours. The trial court observed that the boy was "straight-forward, natural and
consistent" in the narration of his detention. The boy's naivete made him even more
believable. Tirso Ferreras, Enrico's classmate and also his age, pointed to Domasian
with equal certainty, as the man who approached Enrico when they were walking
together that morning of March 11, 1982. Grate, the tricycle driver who suspected
Enrico's companion and later chased him, was also positive in identifying Domasian.
All these three witnesses did not know Domasian until that same morning and could
have no ill motive in testifying against him. By contrast, Eugenia Agtay, who
testified for the defense, can hardly be considered a disinterested witness because
she admitted she had known Domasian for 3 years.
The defense asks why Domasian openly took Enrico to several public places if the
intention was to kidnap and detain him. That is for Domasian himself to answer. We
do no have to probe the reasons for the irrational conduct of an accused. The more
important question, as we see it, is why Domasian detained Enrico in the first place
after pretending he needed the boy's help. That is also for Domasian to explain. As
for Enrico's alleged willingness to go with Domasian, this was manifested only at the
beginning, when he believed the man sincerely needed his assistance. But he was
soon disabused. His initial confidence gave way to fear when Domasian, after taking
him so far away from the hospital where he was going, restrained and threatened
him if he did not stop crying.

Domasian's alibi cannot stand against his positive identification by Enrico, Grate
and Ferreras, let alone the contradictions made by his corroborating witness, Dr.
Irene Argosino, regarding the time he was in the optical clinic and the manner of his
payment for the refraction. 9 Tan's alibi is not convincing either. The circumstance
that he may have been in Manila at the time of the incident does not prove that he
could not have written the ransom note except at that time.
Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:
The handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person and has seen the
person write, or has seen writing purporting to be his upon which the
witness has acted or been charged and has thus acquired knowledge
of the handwriting of such person. Evidence respecting the handwriting
may also be given by a comparison, made by the witness or the court
with writings admitted or treated as genuine by the party against
whom the evidence is offered or proved to be genuine to the
satisfaction of the judge.
Two expert witnesses were presented in the case at bar, one from the NBI, 10 who
opined that the ransom note and the standard documents were written by one and
the same person, and another from the PC/INP 11 who expressed a contrary
conclusion. The trial court chose to believe the NBI expert because his examination
and analysis "was more comprehensive than the one conducted by the PC/INP
handwriting expert, who virtually limited his reliance on the perceived similarities
and dissimilarities in the pattern and style of the writing, thereby disregarding the
basic principle in handwriting identification that it is not the form alone nor anyone
feature but rather a combination of all the qualities that identify."
We have held that the value of the opinion of a handwriting expert depends not
upon his mere statements of whether a writing is genuine or false, but upon the
assistance he may afford in pointing out distinguishing marks, characteristics and
discrepancies in and between genuine and false specimens of writing which would
ordinarily escape notice or detection from an unpracticed observer. 12 The test of
genuineness ought to be the resemblance, not the formation of letters in some
other specimens but to the general character of writing, which is impressed on it as
the
involuntary
and
unconscious
result
of constitution, habit or other permanent course, and is, therefore itself
permanent. 13
Presented with the conflicting opinions of the witnesses in the case at bar, the Court
feels that the scales should tilt in favor of the prosecution. Significantly, the NBI
opinion was bolstered by the testimony of Agra, who believed that the ransom note
was written by Tan, with whose handwriting he was familiar because they had been

working in the hospital for four years and he had seen that handwriting every day in
Tan's prescriptions and daily reports. 14
Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or
the deliberate imitation of another person's signature. In the case before us, there
was in fact an effort to disguise the ransom note writer's penmanship to prevent his
discovery.
As for the nature of the crime committed, Article 267 of the Revised Penal Code
provides as follows:
Art. 267. Kidnapping and serious illegal detention. Any private
individual who shall kidnap or detain another, or in any manner deprive
him of his liberty, shall suffer the penalty of reclusion perpetua to
death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the
person kidnapped or detained; of if threats to kill him shall have been
made.
4. If the person kidnapped or detained shall be a minor, female or a
public officer.
The penalty shall be death where the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any
other person; even if none of the circumstances above-mentioned were
present in the commission of the offense.
Contrary to Tan's submission, this crime may consist not only in placing a person in
an enclosure but also in detaining him or depriving him in any manner of his
liberty. 16 In the case at bar, it is noted that although the victim was not confined in
an enclosure, he was deprived of his liberty when Domasian restrained him from
going home and dragged him first into the minibus that took them to the municipal
building in Gumaca, thence to the market and then into the tricycle bound for San
Vicente. The detention was committed by Domasian, who was a private individual,
and Enrico was a minor at that time. The crime clearly comes under Par. 4 of the
above-quoted article.
Tan claims that the lower court erred in not finding that the sending of the ransom
note was an impossible crime which he says is not punishable. His reason is that the

second paragraph of Article 4 of the Revised Penal Code provides that criminal
liability shall be incurred "by any person performing an act which would be an
offense against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means." As the crime alleged is not against persons or property but against liberty,
he argues that it is not covered by the said provision.
Tan conveniently forgets the first paragraphs of the same article, which clearly
applies to him, thus:
Art. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
xxx xxx xxx
Even before the ransom note was received, the crime of kidnapping with serious
illegal detention had already been committed. The act cannot be considered an
impossible crime because there was no inherent improbability of its
accomplishment or the employment of inadequate or ineffective means. The
delivery of the ransom note after the rescue of the victim did not extinguish the
offense, which had already been consummated when Domasian deprived Enrico of
his liberty. The sending of the ransom note would have had the effect only of
increasing the penalty to death under the last paragraph of Article 267 although this
too would not have been possible under the new Constitution.
On the issue of conspiracy, we note first that it exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit
it, whether they act through physical volition of one or all, proceeding severally or
collectively. 17
It is settled that conspiracy can be inferred from and proven by the acts of the
accused themselves when said acts point to a joint purpose and design, concerted
action and community of interests. 18 In the instant case, the trial court correctly
held that conspiracy was proved by the act of Domasian in detaining Enrico; the
writing of the ransom note by Tan; and its delivery by Domasian to Agra. These acts
were complementary to each other and geared toward the attainment of the
common ultimate objective, viz., to extort the ransom of P1 million in exchange for
Enrico's life.
The motive for the offense is not difficult to discover. According to Agra, Tan
approached him six days before the incident happened and requested a loan of at
least P15,000.00. Agra said he had no funds at that moment and Tan did not believe

him, angrily saying that Agra could even raise a million pesos if he really wanted to
help. 19The refusal obviously triggered the plan to kidnap Enrico and demand P1
million for his release.
The constitutional issues raised by Domasian do not affect the decision in this case.
His claim that he was arrested without warrant and then tortured and
held incommunicado to extort a confession from him does not vitiate his conviction.
He never gave any confession. As for the allegation that the seizure of the
documents used for comparison with the ransom note was made without a search
warrant, it suffices to say that such documents were taken by Agra himself and not
by the NBI agents or other police authorities. We held in the case of People vs.
Andre Marti, 20 that the Bill of Rights cannot be invoked against acts of private
individuals, being directed only against the government and its law-enforcement
agencies and limitation on official action.
We are satisfied that Tan and Domasian, in conspiracy with each other, committed
the crime of kidnapping as defined and penalized under Article 267 of the Revised
Penal Code and so deserve the penalty imposed upon them by the trial court.
WHEREFORE, the appealed decision is AFFIRMED, with costs against the accusedappellants.
Let a copy of this decision be sent to the Commission on Human Rights for
investigation of the alleged violation of the constitutional rights of Pablito Domasian.
SO ORDERED.
GEMMA T. JACINTO,

G.R. No. 162540

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus -

CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:

Respondent.
July 13, 2009
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T.

Jacinto seeking the reversal of the Decision [1] of the Court of Appeals (CA) in CA-G.R.
CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the
crime of Qualified Theft, and its Resolution [2] dated March 5, 2004 denying
petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y
Rivera and Jacqueline Capitle, was charged before the Regional Trial Court (RTC)
ofCaloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed
as follows:

That on or about and sometime in the month of July 1997, in

Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and
mutually helping one another, being then all employees of MEGA FOAM
INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO,
and as such had free access inside the aforesaid establishment, with
grave abuse of trust and confidence reposed upon them with intent to

gain and without the knowledge and consent of the owner thereof, did
then and there willfully, unlawfully and feloniously take, steal and
deposited in their own account, Banco De Oro Check No. 0132649
dated July 14, 1997 in the sum of P10,000.00, representing payment
made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the
damage and prejudice of the latter in the aforesaid stated amount
of P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino,
handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14,
1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and
the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone
call sometime in the middle of July from one of their customers, Jennifer
Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said
customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela Branch, who was
looking for Generoso Capitle. The reason for the call was to inform Capitle that the
subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of

Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from
Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a
phone; but they could be reached through Valencia, a neighbor and former coemployee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with
cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally
into
four: for
herself,
Ricablanca,
petitioner
Jacinto
and
Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the
matter to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that
the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June
1997 as payment for her purchases from Mega Foam. [4] Baby Aquino further
testified that, sometime in July 1997, petitioner also called her on the phone to tell
her that the BDO check bounced. [5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However, Baby Aquino
said that she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted depositing the subject
BDO check in his bank account, but explained that the check came into his
possession when some unknown woman arrived at his house around the first week
of July 1997 to have the check rediscounted. He parted with his cash in exchange
for the check without even bothering to inquire into the identity of the woman or
her address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didnt know where to find the woman who rediscounted the
check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its agents. Ten pieces
of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked
to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO check, handed over said check to
Ricablanca. They originally intended to proceed to Baby Aquino's place to have the

check replaced with cash, but the plan did not push through. However, they agreed
to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to
the house of Anita Valencia; Jacqueline Capitle decided not to go with the group
because she decided to go shopping. It was only petitioner, her husband,
Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby
Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises
of Baby Aquino, pretending that she was getting cash from Baby Aquino. However,
the cash she actually brought out from the premises was the P10,000.00 marked
money previously given to her by Dyhengco. Ricablanca divided the money and
upon
returning
to
the
jeep,
gave P5,000.00
each
to Valencia and
petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their
hands. This showed that petitioner and Valencia handled the marked money. The
NBI filed a criminal case for qualified theft against the two and one Jane Doe who
was later identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and
presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned
on June 30, 1997, but claimed that she had stopped collecting payments from Baby
Aquino for quite some time before her resignation from the company. She further
testified that, on the day of the arrest, Ricablanca came to her mothers house,
where she was staying at that time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at
the Chinese General Hospital, Ricablanca decided to hitch a ride with the former
and her husband in their jeep going to Baby Aquino's place in Caloocan City. She
allegedly had no idea why Ricablanca asked them to wait in their jeep, which they
parked outside the house of Baby Aquino, and was very surprised when Ricablanca
placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers.According to her, on the morning of August 21, 1997, Ricablanca called
her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to
the house of Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where Baby Aquino
resided, as she had never been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but
requested them to wait for her in the jeep. After ten minutes, Ricablanca came out
and, to her surprise, Ricablanca gave her money and so she even asked, What is
this? Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the
RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds

accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
Valencia y Rivera and Jacqueline Capitle GUILTY beyond
reasonable doubt of the crime of QUALIFIED THEFT and each of them
is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE
(5) MONTHS AND ELEVEN (11) DAYS,as minimum, to SIX (6)
YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as
maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING,

court is MODIFIED, in that:

the

decision

of

the

trial

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia
reduced to 4 months arresto mayor medium.

is

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed

only for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution
datedMarch 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the petition are
as follows:

1.

Whether or not petitioner can be convicted of a crime not

charged in the information;

2.

Whether or not a worthless check can be the object of theft;

and

3. Whether or not the prosecution has proved petitioner's guilt

beyond
reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to
Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit
the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another the check belonged to Baby Aquino,
as it was her payment for purchases she made; (3) the taking was done with intent
to gain this is presumed from the act of unlawful taking and further shown by the
fact that the check was deposited to the bank account of petitioner's brother-in-law;
(4) it was done without the owners consent petitioner hid the fact that she had
received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or
intimidation against persons, nor of force upon things the check was voluntarily
handed to petitioner by the customer, as she was known to be a collector for the
company; and (6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as
the intention of the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the penalty to be imposed on
the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether the crime of qualified theft was
actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals [9] is highly instructive and applicable to the present
case. In Intod, the accused, intending to kill a person, peppered the latters bedroom
with bullets, but since the intended victim was not home at the time, no harm came

to him. The trial court and the CA held Intod guilty of attempted murder. But upon
review by this Court, he was adjudged guilty only of an impossible crime as
defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of producing the
crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:

xxxx

2.

By any person performing an act which

would be an offense against persons or property,
were it not for the inherent impossibility of its
accomplishment or
on
account
of
the
employment of inadequate to ineffectual means.
(emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. When the person intending to commit an offense has already
performed the acts for the execution of the same but nevertheless the
crime was not produced by reason of the fact that the act intended was
by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the
result desired by him, the court, having in mind the social danger and
the degree of criminality shown by the offender, shall impose upon him
the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil intent;
and (3) that its accomplishment was inherently impossible, or the means employed
was either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce
an offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2) the
means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the

offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender
must
be
by
its
nature
one
impossible
of
accomplishment. There must be either (1) legal impossibility, or (2)
physical impossibility of accomplishing the intended act in order to
qualify the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime.
xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime ofqualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that
the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the

check being unfunded, a fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing unlawfully taken by petitioner turned out to
be absolutely worthless, because the check was eventually dishonored, and Mega
Foam had received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money,
which she thought was the cash replacement for the dishonored check, is of no
moment. The Court held in Valenzuela v. People[12] that under the definition of theft
in Article 308 of the Revised Penal Code, there is only one operative act of execution
by the actor involved in theft the taking of personal property of
another. Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308,

there is one apparent answer provided in the language of the law that
theft is already produced upon the tak[ing of] personal property of
another without the latters consent.

xxxx

x x x when is the crime of theft produced? There would be all but

certain unanimity in the position that theft is produced when there is
deprivation of personal property due to its taking by one with intent to
gain. Viewed from that perspective, it is immaterial to the product of
the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued
from such acts of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is

deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of ones personal

property, is the element which produces the felony in its consummated
stage. x x x [13]

From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored check
was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the
check was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation of the
theft. At most, the fact that petitioner was caught receiving the marked money was
merely corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent
scheme. Unfortunately, since said scheme was not included or covered by the
allegations in the Information, the Court cannot pronounce judgment on the
accused; otherwise, it would violate the due process clause of the Constitution. If at
all, that fraudulent scheme could have been another possible source of criminal
liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004,
areMODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6)
months of arrresto mayor, and to pay the costs.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. MANOLITO PANCHO, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision [1] dated June 19, 1998 of the Regional
Trial Court, Branch 15, Malolos, Bulacan, finding appellant Manolito Pancho guilty
beyond reasonable doubt of rape in Criminal Case No. 837-M-96 and attempted
rape in Criminal Case No. 838-M-96. In Criminal Case No. 837-M-96, the trial court
sentenced him to suffer reclusion perpetua,while in Criminal Case No. 838-M-96, the
penalty of 10 years and 1 day, as minimum, to 12 years, as maximum of prision
mayor, was imposed upon him.
The Informations in both Criminal Case Nos. 837-M-96 and 838-M-96 read:
For Criminal Case No. 837-M-96 (For Rape):
That in or about the month of August, 1994, in the municipality of Malolos, province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and feloniously, by
means of force, threats and intimidation and with lewd designs, have carnal
knowledge of said Michelle L. dela Torre, 11 years of age, against her will and
without her consent.
Contrary to law.
For Criminal Case No. 838-M-96 (For Attempted Rape):
That in or about the month of December, 1995, in the municipality of Malolos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully, unlawfully and feloniously,
by means of force, threats and intimidation and with lewd designs, have carnal
knowledge of said Michelle L. dela Torre, 11 years of age, against her will and
without her consent.
Contrary to law.
Upon arraignment, appellant, assisted by counsel, pleaded not guilty to the
crimes charged.

Thereafter, trial ensued. The evidence for the prosecution shows that
complainant Michelle dela Torre was born on April 2, 1984[2] to spouses Exequiela
Lacanilao and Eduardo dela Torre. After Michelles father passed away, her mother
contracted a second marriage with appellant. Michelle and her two (2) brothers live
with the couple at Look First, Malolos, Bulacan.
On August 1, 1994, at around 6:00 oclock in the morning, Michelle, who was
then only ten years old, went home after spending the night at her aunts
house. While she was about to undress, appellant suddenly dragged her and forced
her to lie down on the floor. Although frightened, she struggled by kicking and
boxing him. However, he forcibly removed her clothes and underwear. Then he took
off his clothing. Appellant started kissing and holding her breast and eventually had
carnal knowledge of her. She felt pain when he inserted his organ into her vagina
which bled. She tried to resist but he held her both arms. He was on top of her
making push and pull movements for four (4) minutes. Then he dressed up,
threatening to kill her should she complain or tell anyone about the incident.
Sometime in December, 1995 at the familys new residence at Bayugo,
Meycauayan, Bulacan, appellant arrived from work. When Michelle opened the door
and saw him, she got scared. While he was approaching her, she managed to hit
him. Then she attempted to jump out of the window, but he dragged her by her
feet. At that instance, her uncle (Tito Onio) suddenly arrived. [3] Immediately,
appellant stopped, thus thwarting his bestial desire.
After sometime, Michelle mustered enough courage to report the incidents to
her mother, but the latter casually ignored her. So, she turned to her grandmother
Natividad Lacanilao, who brought her, sometime in February, 1996, to the National
Bureau of Investigation (NBI) for examination by a medico-legal officer. [4] Thereafter,
they proceeded to the Malolos Police Station where she executed a sworn
statement.[5]
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified that she conducted
a medico-genital examination of Michelle dela Torre. Her findings,[6] which she
confirmed on the witness stand, are as follows:
GENERAL PHYSICAL EXAMINATION:
Height: 132.0 cms
Weight: 78.0 cms
Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory
subject.

Breasts, developing, conical, firm. Areolae, brown, 2.5 cms in diameter. Nipples,
brown, protruding, 0.5 cm in diameter.
No sign of extragenital physical injury noted.
GENETAL EXAMINATION:
Pubic hair, fine, scanty. Labia majora and minora, coaptated. Fourchette, tense.
Vestibular mucosa, pinkish. Hymen, moderately tall, moderately thick,
intact. Hymenal orifice, annular, admits a tube 2.0 cms in diameter with moderate
resistance. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1. No evident sign of extragenital physical injury noted on the body of the subject at
the time of examination.
2. Hymen, intact and its orifice small (2.0 cms in diameter) as to preclude complete
penetration by an average sized adult Filipino male organ in full erection without
producing any genital injury.
For his part, appellant strongly denied the charges, contending that it was
impossible for him to commit the crimes considering that during the incidents, his
wife and her two sons were also inside the house. [7] Moreover, the charge of rape is
totally belied by the finding of the NBI Medico-Legal Officer that Michelles hymen
has remained intact with no sign of extra-genital or genital injuries.
After trial, the lower court rendered a Joint Decision dated June 19, 1998, the
dispositive portion of which reads:
In view of all the foregoing and by proof beyond reasonable doubt, the Court hereby
renders judgment as follows:
1. With respect to Criminal Case No. 837-M-96, the Court finds the accused guilty
beyond reasonable doubt of the crime charged and hereby sentences accused
MANOLITO PANCHO to suffer the penalty of RECLUSION PERPETUA.
2. With respect to Criminal Case No. 838-M-96, the Court finds the accused guilty
beyond reasonable doubt of the crime of Attempted Rape, and hereby sentences
accused MANOLITO PANCHO to suffer an imprisonment of TEN (10) YEARS and ONE
(1) DAY to TWELVE (12) YEARS.
3. To indemnify the victim Michelle dela Torre the amount of P20,000.00 each case.

The period of the accuseds detention is credited in his favor.

SO ORDERED.
In this appeal, appellant ascribes to the trial court the following errors:
I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES OF RAPE AND ATTEMPTED RAPE, DESPITE
INSUFFICIENCY OF EVIDENCE.
II
THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE PUT UP BY ACCUSEDAPPELLANT.
As alleged in the Informations, the crimes charged were committed sometime in
August, 1994 and December, 1995. Thus, the governing law is Article 335[8] of the
Revised Penal Code which, as amended by Republic Act No. 7659 (The Death
Penalty Law),[9] provides:
ART. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
xxx
The death penalty shall also be imposed if the crime or rape is committed with any
of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree or the common-law spouse of the parent of the victim.
2. xxx.
A. G.R. No. 136592 for rape:

Rape under the above provisions is either simple or qualified. It is qualified

when the age of the victim (below 18) and her relationship with the appellant are
both alleged in the Information and proved.[10] In this case, the prosecution failed to
allege in the Information the qualifying circumstance that appellant is the victims
step-parent. Thus, he may only be convicted of simple rape.
Simple rape is committed 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 (statutory rape) or is
demented.
In the Information, appellant is being charged of statutory rape considering that
Michelle was then below 12 years old.
The gravamen of the offense of statutory rape is carnal knowledge of a woman
below twelve (12) years old. [11] In statutory rape, force, intimidation or physical
evidence of injury is immaterial. [12] Where the girl is below 12 years of age, violence
or intimidation is not required, and the only subject of inquiry is whether carnal
knowledge took place.[13]
As shown by her Certificate of Live Birth,[14] Michelle was born on April 2,
1984. Thus, on August 1, 1994 when the incident took place, she was only 10 years
and 3 months old.
Michelle identified appellant in open court as the culprit who raped her. She
testified as follows:
FISCAL:
Q: Ms. Witness, you claim in your testimony that you were raped by your
step father Manolito Pancho last August 1, 1994, will you please tell this
Honorable Court how Manolito Pancho raped you?
A: About 6:00 oclock in the morning I went home, sir.
Q: And where is your home located?
A: I went home at Look First, Malolos, Bulacan.
Q: And what happened when you went home at Look, Malolos, Bulacan?

A: Manolito Pancho dragged me and forced me to lie on the floor.

Q: And what happened when after Manolito Pancho lay you on the floor?
A: He took off all my clothes.
Q: And what clothes you are wearing at that time, Ms. witness?
A: I was wearing a t-shirt and short, sir.
Q: What else Manolito Pancho removed?
A: My clothes, short and panty, sir.
Q: And what was your appearance after these clothes were removed by
Manolito Pancho?
A: I was naked, sir.
Q: How about Manolito Pancho, what did he do after he removed your dress?
A: He also took-off his clothes, sir.
Q: What clothes did he remove?
A: His t-shirt, short and brief, sir.
Q: After Manolito removed all these: his short, brief and t-shirt, what did he
do?
A: He placed himself on top of me.
Q: And what happened after he placed himself on top of you?
A: He inserted his penis on my vagina.
Q: Were you able to see his organ when he inserted it on your vagina?
A: Yes, sir.
Q: What happened when he inserted his organ on your vagina?
A: He was kissing me and touching my body, sir.

Q: What particular parts of your body did Manolito Pancho kiss and touch,
Ms. witness?
A: My both breasts, sir.
Q: And what did you feel when Manolito Pancho inserted his organ on your
vagina?
A: It hurts, sir.
Q: What motion did he do if you can still remember when Manolito Pancho
was on top of you?
A: He was kissing me, touching me and then I tried to struggle against him
but he was holding my both hands so that I could not struggle.
Q: And what happened to your vagina after he inserted his penis?
A: It bled, sir.
Q: How long did Manolito Pancho stay on top of you?
A: Four (4) minutes, sir.
Q: And after four (4) minutes, what did Manolito Pancho do?
A: I already dressed up because he already dressed-up, sir.
Q: And what did Manolito Pancho tell you, if any?
A: He said, do not complain because if you do so, I am going to kill you.
Q: How are you related with Manolito Pancho, Ms. witness?
A: My step father, sir.
Q: At the time you claimed that you were raped by Manolito Pancho, will you
please tell this Honorable Court, how young were you then?
A: Ten (10) years old, sir.
Q: Do you have evidence to show Ms. witness that you are ten (10) years
old at that time?
A: My birth certificate, sir.

Q: Do you have with you your birth certificate?

A: Yes, sir. (The grandmother is producing the Live Birth Certificate of the
complainant Michelle dela Torre.)
Q: Will you please tell this Honorable Court what is your date of birth, Ms.
witness?
A: April 2, 1984.
Q: And you claimed that you were 10 years old when you were raped by
Manolito Pancho?
A: Yes, sir.
xxx.[15]
Michelles testimony is straightforward, unflawed by significant inconsistency,
and unshaken by rigid cross-examination. It deserves full faith and credence. In rape
cases, the accused may be convicted solely on the testimony of the rape victim if
her testimony is credible, natural, and convincing. [16]
When a woman says she was raped, she says in effect all that is necessary to
show that rape had been committed, and if her testimony meets the test of
credibility, the accused may be convicted on the basis thereof. [17] It bears stressing
that Michelle, a girl of tender years, innocent and guileless, cannot be expected to
brazenly impute a crime so serious as rape to her step-father if it were not true.
Appellant vigorously denied the charge, contending that per the Medical Report
of Dr. Ida Daniel, Michelles hymen has remained intact. [18]
We are not persuaded.
Appellant heavily relies on the virgo intacta theory.[19] He disregards Dr. Daniels
testimony that there are two types of hymen: (1) one that remains intact even
though there is penetration; (2) the other is lacerated after penetration. [20] We have
ruled that in rape cases the absence of fresh lacerations does not preclude the
finding of rape,[21] especially when the victim is of tender age. [22] Moreover,
laceration of the hymen is not an element of the crime of rape. [23] Hymenal rupture
or any indication of vaginal laceration or genital injury is not necessary for the
consummation of rape.[24] Its absence does not negate a finding of forced sexual
coitus.[25] For the rule is well settled that rape is consummated by the slightest
penile penetration of the labia majora or pudendum of the female organ.[26] Indeed,
the evidentiary weight of the medical examination of the victim, as well as the

medical certificate, is merely corroborative in character and is not an indispensable

element for conviction for rape.[27]
Appellants denial is an inherently weak defense. It has always been viewed
upon with disfavor by the courts due to the ease with which it can be concocted.
[28]
Inherently weak, denial as a defense crumbles in the light of positive
identification of the accused, as in this case. The defense of denial assumes
significance only when the prosecutions evidence is such that it does not prove guilt
beyond reasonable doubt.[29] Verily, mere denial, unsubstantiated by clear and
convincing evidence, is negative self-serving evidence which cannot be given
greater evidentiary weight than the testimony of the complaining witness who
testified on affirmative matters.[30]
B. G.R. No. 136593 for attempted rape:
Appellant also contends that his conviction of attempted rape in Criminal Case
No. 838-M-96 is not supported by evidence.
Michelle testified that when appellant was coming near me, I hit him and I saw
that our door was opened. I tried to jump and that was the time he dragged and he
held my feet.[31]Appellant and Michelle were in this snap situation when his Tito Onio
arrived.[32] Her testimony regarding this incident is quoted as follows:
FISCAL:
xxx
Q: And what happened in that place at Bayugo, Meycauayan, Bulacan?
A: When the door opened I thought it was my mother and when I saw him I
was scared, sir.
Q: And what happened when you saw Manolito Pancho?
A: I closed the door, sir.
Q: Thereafter, what happened?
A: When he was coming near me, I hit him and I saw that our door was
opened. I tried to jump and that was the time he dragged and he held
my feet.
Q: And what happened after Manolito Pancho held your feet?

A: When he was holding my feet I was not able to jump from the window and
thats the time the door opened and then I saw my uncle that is why the
rape was not committed.
xxx.[33]
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape directly by overt
acts, but does not perform all the acts of execution which should produce the crime
of rape by reason of some cause or accident other than his own spontaneous
desistance.[34]
In this second case, the prosecution failed to prove that appellant started to
rape the victim and had commenced the performance of acts of carnal
knowledge. He did not force her to lie down or remove her garment. In short, there
was no showing that he did commence at all the performance of any act indicative
of an intent or attempt to rape the victim. What he did was to drag her and hold her
feet. At this juncture, we can not safely conclude that he was attempting to rape
her.
In People vs. Campuhan,[35] we held that the thin line that separates attempted
rape from consummated rape is the entrance of the male organ into the labial
threshold of the female genitalia. In that case, the accused was caught by the
mother of the victim kneeling on top of her. The victim testified that the accuseds
organ merely touched but did not penetrate her vagina. We held that he could not
be convicted of statutory rape but only attempted rape.
In the instant case, appellant was merely holding complainants feet when her
Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere holding of the feet is
attempted rape.
Anent the award of damages in G.R. No. 136592, we observed that the trial
court only awarded the victim civil indemnity in the amount of P20,000.00. This
must be corrected. We have consistently ruled that upon a finding of the fact of
rape, the award of civil indemnity is mandatory. If the death penalty is imposed, the
indemnity ex delicto should be P75,000.00. Where, as here, the death penalty is not
decreed, the victim should be entitled to P50,000.00 only.[36]
In line with current jurisprudence, we also award the victim moral damages in
the amount of P50,000.00 without need of pleading or proof of the basis thereof.
[37]
The anguish and pain she has endured are evident.

WHEREFORE, the Decision dated June 19, 1998 of the Regional Trial Court,
Branch 15, Malolos, Bulacan, in Criminal Case No. 837-M-96, convicting appellant
Manolito Pancho of rape and sentencing him to suffer the penalty of reclusion
perpetua is AFFIRMED, with the MODIFICATION that he is ordered to pay the victim,
Michelle dela Torre, P50,000.00 as civil indemnity, and P50,000.00 as moral
damages.
In Criminal Case No. 838-M-96, the trial courts judgment convicting the
appellant of attempted rape is REVERSED AND SET ASIDE and a new one is
entered ACQUITTING him of the crime charged.
Costs de oficio.
SO ORDERED.
G.R. No. L-43530

August 3, 1935

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto
K.
Bausa
Office of the Solicitor-General Hilado for appellee.

ISLANDS, plaintiff-appellee,

for

appellant.

RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of
the Court of First Instance of Iloilo, finding him guilty of attempted robbery and
sentencing him to suffer two years and four months of prision correccional and to
an additional penalty of ten years and one day of prision mayor for being an
habitual delinquent, with the accessory penalties of the law, and to pay the costs of
the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his
beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in
the act of making an opening with an iron bar on the wall of a store of cheap goods
located on the last named street. At that time the owner of the store, Tan Yu, was
sleeping inside with another Chinaman. The accused had only succeeded in
breaking one board and in unfastening another from the wall, when the policeman
showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial
fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted
robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense; that,
which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation. The attempt to
commit an indeterminate offense, inasmuch as its nature in relation to its objective
is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is
no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's
store by means of violence, passing through the opening which he had started to
make on the wall, in order to commit an offense which, due to the timely arrival of
policeman Tomambing, did not develop beyond the first steps of its execution. But it
is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its
unavoidable connection, like the logical and natural relation of the cause and its
effect, with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said
beginning of execution, if carried to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. Thus, in case of robbery, in order that the simple act of entering by means
of force or violence another person's dwelling may be considered an attempt to
commit this offense, it must be shown that the offender clearly intended to take
possession, for the purpose of gain, of some personal property belonging to another.
In the instant case, there is nothing in the record from which such purpose of the
accused may reasonably be inferred. From the fact established and stated in the
decision, that the accused on the day in question was making an opening by means
of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical
conclusion that his evident intention was to enter by means of force said store
against the will of its owner. That his final objective, once he succeeded in entering
the store, was to rob, to cause physical injury to the inmates, or to commit any
other offense, there is nothing in the record to justify a concrete
finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the action
intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the
same, and by the things connected therewith, they must show without any
doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation , that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable act, must not and can not
furnish grounds by themselves for attempted nor frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense

which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury. This must
have been the intention of the legislator in requiring that in order for an
attempt to exist, the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed must be such
that, without the intent to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts
leading to the commission of the offense, are not punished except when they are
aimed directly to its execution, and therefore they must have an immediate and
necessary relation to the offense."
Considering says the Supreme Court of Spain in its decision of March 21,
1892 that in order to declare that such and such overt acts constitute an
attempted offense it is necessary that their objective be known and
established, or that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective
and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under
consideration does not constitute attempted robbery but attempted trespass to
dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme
Court of Spain therein cited). Under article 280 of the Revised Penal Code, this
offense is committed when a private person shall enter the dwelling of another
against the latter's will. The accused may be convicted and sentenced for an
attempt to commit this offense in accordance with the evidence and the following
allegation contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another for the
purpose of entering said store ... and that the accused did not succeed in entering
the store due to the presence of the policeman on beat Jose Tomambing, who upon
hearing the noise produced by the breaking of the wall, promptly approached the
accused ... ." Under the circumstances of this case the prohibition of the owner or
inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S.vs. Silvano, 31 Phil., 509'
U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18
Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into
consideration the aggravating circumstances of nighttime and former convictions,
inasmuch as the record shows that several final judgments for robbery and theft
have been rendered against him and in his favor, the mitigating circumstance of
lack of instruction. The breaking of the wall should not be taken into consideration
as an aggravating circumstance inasmuch as this is the very fact which in this case
constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of
trespass to dwelling, if committed with force, is prision correccional in its medium
and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore
the penalty corresponding to attempted trespass to dwelling is to degrees lower
(art. 51), or, arresto mayor in its minimum and medium periods. Because of the
presence of two aggravating circumstances and one mitigating circumstance the
penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held
guilty of attempted trespass to dwelling, committed by means of force, with the
aforesaid aggravating and mitigating circumstances and sentenced to three months
and one day of arresto mayor, with the accessory penalties thereof and to pay the
costs.
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
SANTIAGO,
-

versus - GUTIERREZ,
CARPIO,

MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and

PEOPLE OF THE PHILIPPINES NACHURA, JJ.

and HON. COURT OF APPEALS,
Respondents.
Promulgated:

June 21, 2007

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

DECISION
TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed against
him, but instead insists that as a result, he should be adjudged guilty of frustrated
theft only, not the felony in its consummated stage of which he was convicted. The
proposition rests on a common theory expounded in two well-known
decisions[1] rendered decades ago by the Court of Appeals, upholding the existence
of frustrated theft of which the accused in both cases were found guilty. However,
the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in 1918,
in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in

1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully
measure if or how frustrated theft is susceptible to commission under the Revised
Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an
Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon
(Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner
and Calderon were sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark Receiving
Dispatching Unit (RDU), hauling a push cart with cases of detergent of the wellknown Tide brand. Petitioner unloaded these cases in an open parking space, where
Calderon was waiting. Petitioner then returned inside the supermarket, and after
five (5) minutes, emerged with more cartons of Tide Ultramaticand again unloaded
these boxes to the same area in the open parking space. [7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the
cab and directed it towards the parking space where Calderon was waiting.
Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was
leaving the open parking area. When Lago asked petitioner for a receipt of the
merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and
Calderon were apprehended at the scene, and the stolen merchandise recovered.
[8]
The filched items seized from the duo were four (4) cases ofTide Ultramatic, one
(1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods
with an aggregate value of P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they were
transferred on the same day to the Baler Station II of the Philippine National
Police, Quezon City, for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4) other persons were
apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was
referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon
were charged with theft by the Assistant City Prosecutor, in Informations prepared
on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club
on the afternoon of 19 May 1994 when they were haled by Lago and his fellow
security guards after a commotion and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.
[11]
As the queue for the ATM was long, Calderon and Rosulada decided to buy
snacks
inside
the
supermarket.
It
was
while they were eating that they heard the gunshot fired
by
Lago, leading them to head out ofthe building to check what was

transpiring. As they were outside, they were suddenly grabbed by a security guard,
thus commencing their detention. [12] Meanwhile, petitioner testified during trial that
he and his cousin, a Gregorio Valenzuela, [13] had been at the parking lot, walking
beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa,
when they saw the security guard Lago fire a shot. The gunshot caused him and the
other people at the scene to start running, at which point he was apprehended by
Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought
to the Baler Police Station. At the station, petitioner denied having stolen the
cartons of detergent, but he was detained overnight, and eventually brought to the
prosecutors office where he was charged with theft. [14]During petitioners crossexamination, he admitted that he had been employed as a bundler of GMS
Marketing, assigned at the supermarket though not at SM. [15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC)

of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.[17] The RTC found credible the testimonies of the prosecution witnesses
and established the convictions on the positive identification of the accused as
perpetrators of the crime.

Both accused filed their respective Notices of Appeal, [18] but only petitioner
filed a brief[19] with the Court of Appeals, causing the appellate court to deem
Calderons appeal as abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted of frustrated theft since
at the time he was apprehended, he was never placed in a position to freely dispose
of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of
Appeals rejected this contention and affirmed petitioners conviction. [22] Hence the
present Petition for Review,[23] which expressly seeks that petitioners conviction be
modified to only of Frustrated Theft.[24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both
his felonious intent and his actual participation in the theft of several cases of

detergent with a total value of P12,090.00 of which he was charged. [25] As such,
there is no cause for the Court to consider a factual scenario other than that
presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The
only question to consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner

cites[26] two decisions rendered many years ago by the Court of Appeals: People v.
Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they
modified trial court convictions from consummated to frustrated theft and involve a
factual milieu that bears similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass
before us. Yet despite the silence on our part, Dio and Flores have attained a level of
renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law annotations,
[29]
and studied in criminal law classes as textbook examples of frustrated crimes or
even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful
scenarios that populate criminal law exams more than they actually occur in real
life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that involves the thief having to exit with
the stolen property through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application
of Dio and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio and Flores and the theories
offered therein on frustrated theft have borne some weight in our jurisprudential
system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Dio and Flores, as well as the specific
issues relative to frustrated theft, it is necessary to first refer to the basic rules on
the three stages of crimes under our Revised Penal Code. [30]

Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated when all the elements necessary for
its execution and accomplishment are present. It is frustrated when the offender
performs all the acts of execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of causes independent of the
will of the perpetrator. Finally, it is attempted when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of
the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime. [31] After that point has been
breached, the subjective phase ends and the objective phase begins. [32] It has been
held that if the offender never passes the subjective phase of the offense, the crime
is merely attempted.[33] On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is
complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies

on one hand, and attempted felonies on the other. So long as the offender fails to
complete all the acts of execution despite commencing the commission of a felony,
the crime is undoubtedly in the attempted stage. Since the specific acts of
execution that define each crime under the Revised Penal Code are generally
enumerated in the code itself, the task of ascertaining whether a crime is attempted
only would need to compare the acts actually performed by the accused as against
the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated

necessitates an initial concession that all of the acts of execution have been
performed by the offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The determination of whether
the felony was produced after all the acts of execution had been performed hinges
on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while
the elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an
important characteristic of a crime, that ordinarily, evil intent must unite with an
unlawful act for there to be a crime, and accordingly, there can be no crime when
the criminal mind is wanting. [35] Accepted in this jurisdiction as material in
crimes mala in se,[36] mens reahas been defined before as a guilty mind, a guilty or
wrongful purpose or criminal intent, [37] and essential for criminal liability. [38] It follows
that the statutory definition of ourmala in se crimes must be able to supply what
the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably
held that a criminal law that contains no mens rearequirement infringes on
constitutionally protected rights. [39] The criminal statute must also provide for the
overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embeddedwhich attests when
the felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase shall kill another, thus

making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised
Penal Code, its elements are spelled out as follows:

Art. 308. Who are liable for theft. Theft is committed by any
person who, with intent to gain but without violence against or
intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the
fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field
where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish
upon the same or shall gather cereals, or other forest or
farm products.

Article 308 provides for a general definition of theft, and three alternative and
highly idiosyncratic means by which theft may be committed. [41] In the present
discussion, we need to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of execution by the actor
involved in theft the taking of personal property of another. It is also clear from
the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of persons; and it
was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided

for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use of violence against
or intimidation of persons or force upon things. [42]

In his commentaries, Judge Guevarra traces the history of the definition of

theft, which under early Roman law as defined by Gaius, was so broad enough as to
encompass any kind of physical handling of property belonging to another against
the will of the owner,[43] a definition similar to that by Paulus that a thief handles
(touches, moves) the property of another. [44] However, with the Institutes of
Justinian, the idea had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object, thus: [f]urtum est
contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or

unlawful taking, to characterize theft. Justice Regalado notes that the concept
of apoderamientoonce had a controversial interpretation and application. Spanish
law had already discounted the belief that mere physical taking was constitutive
of apoderamiento, finding that it had to be coupled with the intent to appropriate
the object in order to constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing. [47] However, a conflicting line of cases decided
by the Court of Appeals ruled, alternatively, that there must be permanency in the
taking[48] or an intent to permanently deprive the owner of the stolen property; [49] or
that there was no need for permanency in the taking or in its intent, as the mere
temporary possession by the offender or disturbance of the proprietary rights of the
owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes,
the Court adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful taking. [51]

So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act
that is the taking of personal property of another establishes, at least, that the
transgression went beyond the attempted stage. As applied to the present case, the
moment petitioner obtained physical possession of the cases of detergent and
loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club, petitioner
forfeited the extenuating benefit a conviction for only attempted theft would have
afforded him.

On the critical question of whether it was consummated or frustrated theft, we are

obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to produce theft as a consequence,
do not produce [such theft] by reason of causes independent of the will of the
perpetrator. There are clearly two determinative factors to consider: that the felony
is not produced, and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code [52] as to when a
particular felony is not produced, despite the commission of all the acts of
execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is

necessary to inquire as to how exactly is the felony of theft produced. Parsing
through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is already produced upon the
tak[ing of] personal property of another without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign

national and secreted the item in his desk at the Custom House. At no time was the
accused able to get the merchandise out of the Custom House, and it appears that
he was under observation during the entire transaction. [54] Based apparently on
those two circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that all
the elements of the completed crime of theft are present. [55] In support of its
conclusion that the theft was consummated, the Court cited three (3) decisions of
the Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land
of another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by
the policeman but sometime later. The court said: "[x x x] The trial
court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the
accused take the fruit from the adjoining land arrested him in the act
and thus prevented him from taking full possession of the thing stolen
and even its utilization by him for an interval of time." (Decision of the
Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the

latter was hearing mass in a church. The latter on account of the
solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside
the church, the offended party got back the money from the
defendant. The court said that the defendant had performed all the
acts of execution and considered the theft as consummated. (Decision
of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by

means of a key opened up a case, and from the case took a small box,
which was also opened with a key, from which in turn he took a purse
containing 461 reales and 20 centimos, and then he placed the money
over the cover of the case; just at this moment he was caught by two
guards who were stationed in another room near-by. The court

considered this as consummated robbery, and said: "[x x x] The

accused [x x x] having materially taken possession of the money from
the moment he took it from the place where it had been, and having
taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having been
frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June
13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
therein, that the criminal actors in all these cases had been able to obtain full
possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves did
vary, from sometime later in the 1898 decision; to the very moment the thief had
just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the
building where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases, as it was
ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only
of frustrated rather than consummated theft. The case is People v. Sobrevilla,
[57]
where the accused, while in the midst of a crowd in a public market, was already
able to abstract a pocketbook from the trousers of the victim when the latter,
perceiving the theft, caught hold of the [accused]s shirt-front, at the same time
shouting for a policeman; after a struggle, he recovered his pocket-book and let go
of the defendant, who was afterwards caught by a policeman. [58] In rejecting the
contention that only frustrated theft was established, the Court simply said, without
further comment or elaboration:

We believe that such a contention is groundless. The [accused]

succeeded in taking the pocket-book, and that determines the
crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accuseds] criminal liability, which
arose from the [accused] having succeeded in taking the pocketbook.[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court
cases cited in the latter, in that the fact that the offender was able to succeed in
obtaining physical possession of the stolen item, no matter how momentary, was
able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm without further
comment would be disingenuous, as there is another school of thought on when
theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years

after Adiao and 15 years before Flores. The accused therein, a driver employed by
the United States Army, had driven his truck into the port area of the South Harbor,
to unload a truckload of materials to waiting U.S. Army personnel. After he had
finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The accused later
contended that he had been stopped by four men who had loaded the boxes with
the agreement that they were to meet him and retrieve the rifles after he had
passed the checkpoint. The trial court convicted accused of consummated theft, but
the Court of Appeals modified the conviction, holding instead that only frustrated
theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles pass through the checkpoint, perhaps in the
belief that as the truck had already unloaded its cargo inside the depot, it would be
allowed to pass through the check point without further investigation or checking.
[60]
This point was deemed material and indicative that the theft had not been fully
produced, for the Court of Appeals pronounced that the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even
if it were more or less momentary. [61] Support for this proposition was drawn from a
decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision),
which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida

sea determinate de la consumacion del delito de hurto es preciso que so

haga en circunstancias tales que permitan al sustractor la libre

disposicion de aquella, siquiera sea mas o menos momentaneamente,
pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena. [62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to

make the booty subject to the control and disposal of the culprits, the
articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized
after all the acts of execution had been performed, but before the loot
came under the final control and disposal of the looters, the offense
can not be said to have been fully consummated, as it was frustrated
by the timely intervention of the guard. The offense committed,
therefore, is that of frustrated theft. [63]

Dio thus laid down the theory that the ability of the actor to freely dispose of
the items stolen at the time of apprehension is determinative as to whether the
theft is consummated or frustrated. This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case which according to the division of the
court that decided it, bore no substantial variance between the circumstances
[herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a
delivery receipt for one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery receipt to the guard on
duty at the gate of the terminal. However, the guards insisted on inspecting the
van, and discovered that the empty sea van had actually contained other
merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. Before the
Court of Appeals, accused argued in the alternative that he was guilty only of

attempted theft, but the appellate court pointed out that there was no intervening
act of spontaneous desistance on the part of the accused that literally frustrated the
theft. However, the Court of Appeals, explicitly relying on Dio, did find that the
accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance

between Dio and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Dio, citing a traditional ruling which unfortunately was
not identified in the decision itself. However, the Court of Appeals pointed out that
the said traditional ruling was qualified by the words is placed in a situation where
[the actor] could dispose of its contents at once. [66] Pouncing on this qualification,
the appellate court noted that [o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods at once.
At the same time, the Court of Appeals conceded that [t]his is entirely different from
the case where a much less bulk and more common thing as money was the object
of the crime, where freedom to dispose of or make use of it is palpably less
restricted,[67] though no further qualification was offered what the effect would have
been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative

characteristic as to whether the crime of theft was produced is the ability of the
actor to freely dispose of the articles stolen, even if it were only momentary. Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which
had pronounced that in determining whether theft had been consummated, es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o
menos momentaneamente proves another important consideration, as it implies
that if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Dio or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied inFlores, the
character of the item stolen could lead to a different conclusion as to whether there

could have been free disposition, as in the case where the chattel involved was
ofmuch less bulk and more common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed

observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is

consummated when the thief is able to freely dispose of the stolen
articles even if it were more or less momentary. Or as stated in another
case[[69]], theft is consummated upon the voluntary and malicious
taking of property belonging to another which is realized by the
material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This
ruling seems to have been based on Viadas opinion that in order the
theft may be consummated, es preciso que se haga en
circumstancias x x x [[70]][71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and
other cases, also states that [i]n theft or robbery the crime is consummated after
the accused had material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was frustrated. [72]

There are at least two other Court of Appeals rulings that are at seeming
variance with the Dio and Flores rulings. People v. Batoon[73] involved an accused
who filled a container with gasoline from a petrol pump within view of a police
detective, who followed the accused onto a passenger truck where the arrest was
made. While the trial court found the accused guilty of frustrated qualified theft, the
Court of Appeals held that the accused was guilty of consummated qualified theft,
finding that [t]he facts of the cases ofU.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of
theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen
from a supply depot and loaded them onto a truck. However, as the truck passed
through the checkpoint, the stolen items were discovered by the Military Police
running the checkpoint. Even though those facts clearly admit to similarity with
those in Dio, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused were able to take or get hold of the hospital
linen and that the only thing that was frustrated, which does not constitute any
element of theft, is the use or benefit that the thieves expected from the
commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes
that [w]hen the meaning of an element of a felony is controversial, there is bound to
arise different rulings as to the stage of execution of that felony. [77] Indeed, we can
discern from this survey of jurisprudence that the state of the law insofar as
frustrated theft is concerned is muddled. It fact, given the disputed foundational
basis of the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we have to
reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4)
persons in the premises of his plantation, in the act of gathering and tying some
coconuts. The accused were surprised by the owner within the plantation as they
were carrying with them the coconuts they had gathered. The accused fled the
scene, dropping the coconuts they had seized, and were subsequently arrested after
the owner reported the incident to the police. After trial, the accused were convicted
of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310

of the Revised Penal Code,[79] but further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the
theft was consummated or frustrated was raised by any of the parties. What does
appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft

because petitioners were not able to perform all the acts of execution
which should have produced the felony as a consequence. They were
not able to carry the coconuts away from the plantation due to the
timely arrival of the owner.[80]

No legal reference or citation was offered for this averment, whether Dio, Flores or
the Spanish authorities who may have bolstered the conclusion. There are indeed
evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able
to perform all the acts of execution which should have produced the felon as a
consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is
frustrated when the offender performs all the acts of execution, though not
producing the felony as a result. If the offender was not able to perform all the acts
of
execution,
the
crime
is
attempted,
provided
that
the
nonperformance was by reason of some cause or accident otherthan
spontaneous
desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely
arrival of the owner. However, following Article 6 of the Revised Penal Code, these
facts should elicit the conclusion that the crime was only attempted, especially
given that the acts were not performed because of the timely arrival of the owner,
and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the definitions
provided in Article 6 of the Revised Penal Code, such passage bears no reflection
that it is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced from an
indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as
authority on theft. Indeed, we cannot see how Empelis can contribute to our present
debate, except for the bare fact that it proves that the Court had once deliberately
found an accused guilty of frustrated theft. Even if Empelis were considered as a
precedent for frustrated theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated
theft is viable in this jurisdiction. Considering the flawed reasoning behind its
conclusion of frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that convictions for
frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de
Espaa was then in place. The definition of the crime of theft, as provided then, read
as follows:

Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las

personas ni fuerza en las cosas, toman las cosas muebles ajenas
sin la voluntad de su dueo.

2.

Los que encontrndose una cosa perdida y sabiendo quin es su

dueo se la apropriaren co intencin de lucro.

3.

Los daadores que sustrajeren o utilizaren los frutos u objeto del

dao causado, salvo los casos previstos en los artculos 606, nm.
1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo
prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish
Supreme Court decisions were handed down. However, the said code would be
revised again in 1932, and several times thereafter. In fact, under the Codigo Penal
Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de
lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]

Notice that in the 1870 and 1995 definition of theft in the penal code
of Spain, la libre disposicion of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and perhaps
was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926

commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three
questions for the reader whether the crime of frustrated or consummated theft had
occurred. The passage cited in Dio was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed [e]l que en el
momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al
suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the
1888 decision of the Supreme Court of Spain, that decisions factual predicate
occasioning the statement was apparently very different from Dio, for it appears
that the 1888 decision involved an accused who was surprised by the employees of
a haberdashery as he was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled. [84]

Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held to that
effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the
inconsistent application by the Spanish Supreme Court with respect to frustrated
theft.

Hay frustracin cuando los reos fueron sorprendidos por las

guardias cuando llevaban los sacos de harino del carro que los
conducia a otro que tenan preparado, 22 febrero 1913; cuando el
resultado no tuvo efecto por la intervencin de la policia situada en el
local donde se realiz la sustraccin que impidi pudieran los reos
disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos"
frustracin, si existe apoderamiento, pero el culpale no llega a disponer
de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el
culpable es detenido por el perjudicado acto seguido de cometer la

sustraccin, 28 febrero 1931. Algunos fallos han considerado la

existencia de frustracin cuando, perseguido el culpable o sorprendido
en el momento de llevar los efectos hurtados, los abandona, 29 mayo
1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible,
stos, conforme a lo antes expuesto, son hurtos consumados. [86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually
possible:

La doctrina hoy generalmente sustentada considera que el hurto

se consuma cuando la cosa queda de hecho a la disposicin del agente.
Con este criterio coincide la doctrina sentada ltimamente porla
jurisprudencia espaola que generalmente considera consumado el
hurto cuando el culpable coge o aprehende la cosa y sta quede por
tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no pierde su
carcter de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustracin, pues es
muy dificil que el que hace cuanto es necesario para la
consumacin del hurto no lo consume efectivamente, los raros
casos que nuestra jurisprudencia, muy vacilante, declara
hurtos frustrados son verdaderos delitos consumados.
[87]
(Emphasis supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was
content with replicating the Spanish Supreme Court decisions on the matter, Cuello
Caln actually set forth his own thought that questioned whether theft could truly be
frustrated, since pues es muy dificil que el que hace cuanto es necesario para la
consumacin delhurto no lo consume efectivamente. Otherwise put, it would be
difficult to foresee how the execution of all the acts necessary for the completion of
the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted

force in scholarly thought that obliges us to accept frustrated theft, as proposed
in Dio andFlores. A final ruling by the Court that there is no crime of frustrated theft

in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly
heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look

at the question from a fresh perspective, as we are not bound by the opinions of the
respected Spanish commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must compel us to adopt
the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably higher command, but from the
exercise of the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of theorems
in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies
in the province of the legislature, through statute, to define what constitutes a
particular crime in this jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or combination of acts are criminal
in nature. Judicial interpretation of penal laws should be aligned with what was the
evident legislative intent, as expressed primarily in the language of the law as it
defines the crime. It is Congress, not the courts, which is to define a crime, and
ordain its punishment.[88] The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a crime in a
manner that does not hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a narrow interpretation is
appropriate. The Court must take heed of language, legislative history and purpose,
in order to strictly determine the wrath and breath of the conduct the law forbids. [89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The
ability of the offender to freely dispose of the property stolen is not a constitutive
element of the crime of theft. It finds no support or extension in Article 308, whether
as a descriptive or operative element of theft or as the mens rea or actus reus of
the felony. To restate what this Court has repeatedly held: the elements of the crime
of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there
be taking of personal property; (2) that said property belongs to another; (3) that

the taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the use of
violence against or intimidation of persons or force upon things. [90]

Such factor runs immaterial to the statutory definition of theft, which is the
taking, with intent to gain, of personal property of another without the latters
consent. While theDio/Flores dictum is considerate to the mindset of the offender,
the statutory definition of theft considers only the perspective of intent to gain on
the part of the offender, compounded by the deprivation of property on the part of
the victim.

For the purpose of ascertaining whether theft is susceptible of commission in

the frustrated stage, the question is again, when is the crime of theft produced?
There would be all but certain unanimity in the position that theft is produced when
there is deprivation of personal property due to its taking by one with intent to gain.
Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or unable
to freely dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is reflected in Chief
Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated. [91]

It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of taking itself, in that there could be no
true taking until the actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all the acts of
execution have not been completed, the taking not having been accomplished.
Perhaps this point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to
gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is

deemed complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same. [92] And long ago, we asserted
in People v. Avila:[93]

x x x [T]he most fundamental notion in the crime of theft is the taking

of the thing to be appropriated into the physical power of the thief,
which idea is qualified by other conditions, such as that the taking
must be effected animo lucrandi and without the consent of the owner;
and it will be here noted that the definition does not require that the
taking should be effected against the will of the owner but merely that
it should be without his consent, a distinction of no slight importance.
[94]

Insofar as we consider the present question, unlawful taking is most material

in this respect. Unlawful taking, which is the deprivation of ones personal property,
is the element which produces the felony in its consummated stage. At the same
time, without unlawful taking as an act of execution, the offense could only be
attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the
Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that
once the offenders therein obtained possession over the stolen items, the effect of
the felony has been produced as there has been deprivation of property. The
presumed inability of the offenders to freely dispose of the stolen property does not
negate the fact that the owners have already been deprived of their right to
possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability
of the offender to freely dispose of the stolen property frustrates the theft would
introduce a convenient defense for the accused which does not reflect any

legislated intent,[95] since the Court would have carved a viable means for offenders
to seek a mitigated penalty under applied circumstances that do not admit of easy
classification. It is difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances

such as the size and weight of the property, the location of the property, the
number and identity of people present at the scene of the crime, the number and
identity of people whom the offender is expected to encounter upon fleeing with the
stolen property, the manner in which the stolen item had been housed or stored;
and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen
item would come into account, relevant as that would be on whether such property
is capable of free disposal at any stage, even after the taking has been
consummated.

All these complications will make us lose sight of the fact that beneath all the
colorful detail, the owner was indeed deprived of property by one who intended to
produce such deprivation for reasons of gain. For such will remain the presumed
fact if frustrated theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish the non-completion
of the taking due to these peculiar circumstances, the effect could be to downgrade
the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common

sense. Yet they do not align with the legislated framework of the crime of theft. The
Revised Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly
or impliedly allows that the free disposition of the items stolen is in any way

determinative of whether the crime of theft has been produced. Dio itself did not
rely on Philippine laws or jurisprudence to bolster its conclusion, and the
later Flores was ultimately content in relying on Dio alone for legal support. These
cases do not enjoy the weight of stare decisis, and even if they did, their erroneous
appreciation of our law on theft leave them susceptible to reversal. The same holds
true of Empilis, a regrettably stray decision which has not since found favor from
this Court.

We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Dioand Flores rulings, his petition must be denied, for we decline
to adopt said rulings in our jurisdiction. That it has taken all these years for us to
recognize that there can be no frustrated theft under the Revised Penal Code does
not detract from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft may be
recognized. Our deference to Viada yields to the higher reverence for legislative
intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
G.R. No. L-26298

January 20, 1927

THE
PEOPLE
OF
THE
PHILIPPINE
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes
Caluag
Attorney-General Jaranilla for appellee.

ISLANDS, plaintiff-appellee,

for

appellant.

OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the
defendant guilty of the crime of consummated rape and sentencing him to suffer
seventeen years, four months and one day of reclusion temporal, with the
accessory penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 months old and the evidence
is conclusive that the defendant endeavored to have carnal intercourse with her,
but there may be some doubt whether he succeeded in penetrating the vagina
before being disturbed by the timely intervention of the mother and the sister of the
child. The physician who examined the genital organ of the child a few hours after
the commission of the crime found a slight inflammation of the exterior parts of the
organ, indicating that an effort had been made to enter the vagina, but in testifying
before the court he expressed doubts as to whether the entry had been effected.
The mother of the child testified that she found its genital organ covered with a
sticky substance, but that cannot be considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age that penetration was
impossible; that the crime of rape consequently was impossible of consummation;
and that, therefore, the offense committed should be treated only as abusos
deshonestos. We do not think so. It is probably true that a complete penetration was
impossible, but such penetration is not essential to the commission of the crime; it
is sufficient if there is a penetration of the labia. In the case of Kenny vs. State ([Tex.
Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the offended party was a child of
the age of 3 years and 8 months the testimony of several physicians was to the
effect that her labia of the privates of a child of that age can be entered by a man's
male organ to the hymen and the defendant was found guilty of the consummated
crime rape.
There being no conclusive evidence of penetration of the genital organ of the
offended party, the defendant is entitled to the benefit of the doubt and can only be
found guilty of frustrated rape, but in view of the fact that he was living in the house
of the parents of the child as their guest, the aggravating circumstance of abuse of
confidence existed and the penalty must therefore be imposed in its maximum
degree.
The judgment appealed from is modified and the defendant-appellant is hereby
found guilty of the crime of frustrated rape and is sentenced to suffer twelve years
of prision mayor, with the accessory penalties prescribed by law, and with the costs
in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
G.R. No. 88724

April 3, 1990

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The
Office
of
the
Solicitor
C. Manalo for defendant-appellant.

General

for

plaintiff-appellee.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal
Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern
Samar. The information filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint
under oath by the offended party, accuses CEILITO ORITA alias LITO of the
crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a
boarding house at Victoria St., Poblacion, Borongan, Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, above named
accused with lewd designs and by the use of a Batangas knife he
conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with
and succeeded in having sexual intercourse with Cristina S. Abayan against
her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense
charged. After the witnesses for the People testified and the exhibits were formally
offered and admitted, the prosecution rested its case. Thereafter, the defense opted
not to present any exculpatory evidence and instead filed a Motion to Dismiss. On
August 5, 1985, the trial court rendered its decision, the dispositive portion of which
reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO
ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond
reasonable doubt, with the aggravating circumstances of dwelling and
nightime (sic) with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment in case of insolvency, and to pay
costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On
December 29, 1988, the Court of Appeals rendered its decision, the dispositive
portion of which reads (p. 102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the

appellant found guilty of the crime of rape, and consequently, sentenced to
suffer imprisonment of reclusion perpetua and to indemnify the victim in the
amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its
December 29, 1988 decision and forwarded the case to this Court, considering the
provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with
Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 7175, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St.
Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine
Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding
house. Her classmates had just brought her home from a party (p. 44, tsn,
May 23, 1984). Shortly after her classmates had left, she knocked at the door
of her boarding house (p. 5, ibid). All of a sudden, somebody held her and
poked a knife to her neck. She then recognized appellant who was a frequent
visitor of another boarder (pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs with
him. Since the door which led to the first floor was locked from the inside,
appellant forced complainant to use the back door leading to the second floor
(p. 77, ibid). With his left arm wrapped around her neck and his right hand
poking a "balisong" to her neck, appellant dragged complainant up the stairs
(p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on
the wall. With one hand holding the knife, appellant undressed himself. He
then ordered complainant to take off her clothes. Scared, she took off her Tshirt. Then he pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her
hold his penis and insert it in her vagina. She followed his order as he
continued to poke the knife to her. At said position, however, appellant could
not fully penetrate her. Only a portion of his penis entered her as she kept on
moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In
this position, only a small part again of his penis was inserted into her vagina.

At this stage, appellant had both his hands flat on the floor. Complainant
thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her
and climbed the partition. When she saw him inside the room, she ran to
another room. Appellant again chased her. She fled to another room and
jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen
meters in front of the boarding house, and knocked on the door. When there
was no answer, she ran around the building and knocked on the back door.
When the policemen who were inside the building opened the door, they
found complainant naked sitting on the stairs crying. Pat. Donceras, the first
policeman to see her, took off his jacket and wrapped it around her. When
they discovered what happened, Pat. Donceras and two other policemen
rushed to the boarding house. They heard a sound at the second floor and
saw somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar
Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant,
issued a Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose
clothing with no under-clothes; appears in state of shock, per
unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples;
linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic)areas noted surrounding vaginal orifice,
tender, hymen intact; no laceration fresh and old noted; examining
finger can barely enter and with difficulty; vaginal canal tight; no
discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the

testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed
by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they
"show remarkable and vital inconsistencies and its incredibility amounting to
fabrication and therefore casted doubt to its candor, truth and validity." (p.
33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial
inconsistencies which are not sufficient to blur or cast doubt on the witnesses'
straightforward attestations. Far from being badges of fabrication, the
inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also
confirm that the witnesses had not been rehearsed. The most candid witnesses may
make mistakes sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA
98). Rather than discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as adding credence and veracity to
such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No.
L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity
in details would be a strong indication of untruthfulness and lack of spontaneity
(People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of
the alleged inconsistencies deserves a little discussion which is, the testimony of
the victim that the accused asked her to hold and guide his penis in order to have
carnal knowledge of her. According to the accused, this is strange because "this is
the only case where an aggressor's advances is being helped-out by the victim in
order that there will be a consumation of the act." (p. 34, Rollo). The allegation
would have been meritorious had the testimony of the victim ended there. The
victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused
conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of
fact of the trial court on the credibility of witnesses should be accorded the highest
respect because it has the advantage of observing the demeanor of witnesses and
can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520,
August 25, 1989). We quote with favor the trial court's finding regarding the
testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not
much to be desired as to the sincerity of the offended party in her testimony
before the court. Her answer to every question profounded (sic), under all
circumstances, are plain and straightforward. To the Court she was a picture
of supplication hungry and thirsty for the immediate vindication of the affront
to her honor. It is inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is
necessary to show that rape was committed provided her testimony is clear and
free from contradiction and her sincerity and candor, free from suspicion (People v
Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos.
66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498,
December 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was committed. The
victim's testimony from the time she knocked on the door of the municipal building
up to the time she was brought to the hospital was corroborated by Pat. Donceras.
Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora
(who was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area
surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle
against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court
even inspected the boarding house and was fully satisfied that the narration of the
scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough
to carry the weight of both accused and offended party without the slightest
difficulty, even in the manner as narrated. The partitions of every room were
of strong materials, securedly nailed, and would not give way even by hastily
scaling the same.
A little insight into human nature is of utmost value in judging rape complaints
(People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus,
the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening)
to the ground which was correctly estimated to be less than eight (8) meters,
will perhaps occasion no injury to a frightened individual being pursued.
Common experience will tell us that in occasion of conflagration especially
occuring (sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor appears to be
more valuable than her life or limbs? Besides, the exposure of her private
parts when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of
her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117
SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having been
rendered entirely naked by appellant and that even in her nudity, she had to
run away from the latter and managed to gain sanctuary in a house owned by
spouses hardly known to her. All these acts she would not have done nor
would these facts have occurred unless she was sexually assaulted in the
manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses
to corroborate the allegations in the complaint and the non-presentation of the
medico-legal officer who actually examined the victim. Suffice it to say that it is up
to the prosecution to determine who should be presented as witnesses on the basis
of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R.
No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for
the non-presentation of the medico-legal officer who actually examined the victim,
the trial court stated that it was by agreement of the parties that another physician
testified inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment
of error fall flat on its face. Some were not even substantiated and do not, therefore,
merit consideration. We are convinced that the accused is guilty of rape. However,
We believe the subject matter that really calls for discussion, is whether or not the
accused's conviction for frustrated rape is proper. The trial court was of the belief
that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the
crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be
present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections
with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated
felonies as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a

consequence but which, nevertheless, do not produce it by reason of causes

independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape.1wphi1 Our concern now is
whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the
acts of execution which would produce the felony and (2) that the felony is not
produced due to causes independent of the perpetrator's will. In the leading case
of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction
between attempted and frustrated felonies which is readily understood even by law
students:
. . . A crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented, against
his will, by some outside cause from performing all of the acts which should
produce the crime. In other words, to be an attempted crime the purpose of
the offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when all of the
acts have been performed which should result in the consummated crime;
while in the former there is such intervention and the offender does not arrive
at the point of performing all of the acts which should produce the crime. He
is stopped short of that point by some cause apart from his voluntary
desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge
of his victim he actually attains his purpose and, from that moment also all the
essential elements of the offense have been accomplished.Nothing more is left to
be done by the offender, because he has performed the last act necessary to
produce the crime. Thus, the felony is consummated. In a long line of cases (People
v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No.
L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August
21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of the female organ by
the male organ is sufficient. Entry of the labia or lips of the female organ, without
rupture of the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no penetration of the female

organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United
States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony directly by overt acts.
Taking into account the nature, elements and manner of execution of the crime of
rape and jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v.
Eria 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape
there being no conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray" decision inasmuch as it has
not been reiterated in Our subsequent decisions. Likewise, We are aware of Article
335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which
provides, in its penultimate paragraph, for the penalty of death when the rape is
attempted orfrustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape is a
dead provision. The Eria case, supra, might have prompted the law-making body to
include the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital
organ of the victim, the trial court relied on the testimony of Dr. Zamora when he
"categorically declared that the findings in the vulva does not give a concrete
disclosure of penetration. As a matter of fact, he tossed back to the offended party
the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit
"A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of
the latter of uncertainty whether there was penetration or not. It is true, and
the Court is not oblivious, that conviction for rape could proceed from the
uncorroborated testimony of the offended party and that a medical certificate
is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But
the citations the people relied upon cannot be applicable to the instant case.
The testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the mind of the
court. It should be stressed that in cases of rape where there is a positive
testimony and a medical certificate, both should in all respect, compliment
each other, for otherwise to rely on the testimony alone in utter disregard of
the manifest variance in the medical certificate, would be productive of
mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical certificate that
the vulva was erythematous (which means marked by abnormal redness of the skin
due to capillary congestion, as in inflammation) and tender. It bears emphasis that
Dr. Zamoradid not rule out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was penetration. Anent
this testimony, the victim positively testified that there was penetration, even if only
partially (pp. 302, 304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you referred (sic)
to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the
sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778,
November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September
19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29,
1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative
and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in
favor of the accused because after a thorough review of the records, We find the
evidence sufficient to prove his guilt beyond reasonable doubt of the crime of
consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the
crime of rape is committed with the use of a deadly weapon, the penalty shall
be reclusion perpetua to death. The trial court appreciated the aggravating
circumstances of dwelling and nighttime. Thus, the proper imposable penalty is
death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and
Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that
the cited Constitutional provision did not declare the abolition of the death penalty
but merely prohibits the imposition of the death penalty, the Court has since
February 2, 1987 not imposed the death penalty whenever it was called for under
the Revised Penal Code but instead reduced the same to reclusion perpetua (People
v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a
single indivisible penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1,
Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705;
People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The
accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of
rape and sentenced to reclusion perpetua as well as to indemnify the victim in the
amount of P30,000.00.

SO ORDERED.
SIMON FERNAN, JR. and G.R. No. 145927
EXPEDITO TORREVILAS,[1]
Petitioners, Present:
QUISUMBING, J., Chairperson,
CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. August 24, 2007
x-----------------------------------------------------------------------------------------x
DECISION

VELASCO, JR., J.:

The instant petition under Rule 45 originated from 119 criminal cases [2] filed with
the Sandiganbayan (SB) involving no less than 36 former officials and employees of
the then Ministry of Public Highways (MPH) and several suppliers of construction
materials for defalcation of public funds arising from numerous transactions in the
Cebu First Highway Engineering District in 1977. Because of the sheer magnitude of
the illegal transactions, the number of people involved, and the ingenious scheme
employed in defrauding the government, this infamous 86 million highway scam
has few parallels in the annals of crime in the country.
The Case
Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek the reversal of the
December 4, 1997 Decision[3] of the SB in the consolidated Criminal Case Nos. 1640,
1641, 1642, 1643, 1818, 1819, 1820, 1821, 1822, 1823, 1879, 1880, 1881, 1882,
1883, 1884, 1885, 1886, 1887, 1888, 1889, 2839, 2840, 2841, 2842, 2843, 2844,
2845, 2846, 2847, 2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856, 2857,
2858, 2859, 2860, 2861, 2862, 2863, 2864, 2865, 2866, 2867, 2868, 2869, 2870,
2871, 2872, 2873, 2874, 2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883,
2884, 2885, 2886, 2887, 2888, 2889, 2890, 2891, 2892, 2893, 2894, 2895, 2896,
2897, 2898, 2899, 2900, 2901, 2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909,
2910, 2911, 2912, 2913, 2915, 2917, 2918, 2919, 2920, 2921, 2922, 2923, 2924,
2925, 2926, 2927, 2928, 2929, 2930, 2931, 2932, 2936, 2937, 2938, and 2939, [4] all
entitled People of the Philippines v. Rocilo Neis, et al., finding them guilty of multiple

instances of estafa through falsification of public documents; [5] and the subsequent
August 29, 2000 SB Resolution which denied their separate pleas for
reconsideration.
Petitioner Fernan, Jr. disputes the adverse judgment in only six (6) cases,
namely: 2879, 2880, 2881, 2885, 2914, and 2918; while petitioner Torrevillas seeks
exoneration in nine (9) cases, namely: 2855, 2856, 2858, 2859, 2909, 2910, 2914,
2919, and 2932.
Both petitioners assert their strong belief that their guilt has not been
established beyond reasonable doubt and, hence, exculpation is in order.

The Facts
The SB culled the facts[6] this way:
On June 21, 1978, COA Regional Director Sofronio Flores Jr. of
COA Regional Office No. 7, directed auditors Victoria C. Quejada and
Ruth I. Paredes to verify and submit a report on sub-allotment advises
issued to various highway engineering districts in Cebu, particularly,
the Cebu City, Cebu 1st, Cebu 2nd and the Mandaue City Highway
Engineering Districts.Complying with the directive, they conducted an
investigation and in due course submitted their findings. Their report
(Exhibit C) confirmed the issuance of fake Letters of Advice of
Allotments (LAAs) in the districts mentioned. They discovered that two
sets of LAAs were received by the districts. One set consists of regular
LAAs which clearly indicated the covering sub-allotment advices and
were duly signed by Mrs. Angelina Escao, Finance Officer of the MPH
Regional Office. The LAAs were numbered in proper sequence and duly
recorded in the logbook of the Accounting, Budget and Finance
Division. The other set consists of fake LAAs which do not indicate the
covering sub-allotment advice and were signed by Chief Accountant
Rolando Mangubat and Engr. Jose Bagasao, instead of the Finance
Officer. These fake LAAs were not numbered in proper sequence; they
were mostly undated and were sometimes duplicated. They could not
be traced to the files and records of the Accounting, Budget and
Finance Division. The accounting entry for the disbursements made on
the fake LAAs was debited to the Accounts-Payable Unliquidated
Obligations (8-81-400) and credited to the Checking Account with the
Bureau of Treasury (8-70-790). Nevertheless, the expenditures were
taken from obligations of the current year (1978) because all the
supporting papers of the payment vouchers were dated in that
year. The entries in the journal vouchers filed with the MPH Regional
Office were adjusted every month to 8-81-400 (unliquidated or prior
years obligation), 8-83-000 (liquidated or current year obligations) and

8-70-700 (Treasury/Agency Account). All of these were approved for the

Finance Officer by Chief Accountant Rolando Mangubat. Mangubat,
however, had no authority to approve them because since October
1977, he had already been detailed to the MPH Central Office. There
were indications that the practice had been going on for years.
xxxx
Due to these serious irregularities, then President Marcos
created a Special Cabinet Committee on MPH Region VII Ghost Projects
Anomalies which in turn organized a Special Task Force composed of
representatives from the Finance Ministry Intelligence Bureau (FMIB),
National Bureau of Investigation (NBI), the Bureau of Treasury and the
Commission on Audit. The mission of the task force was to conduct a
wider and more extended investigation in all the fifteen (15) highway
engineering districts of MPH Region VII, including the Cebu First
Highway Engineering District, the 1977 questionable disbursements of
which are the subject matter of these cases.
xxxx
For a better understanding of these highways cases, the flow in the
release of funds to the various agencies of the government and the
control devices set up for disbursement and accounting of public funds
should first be explained. A chart (Exhibit B) graphically shows the flow
of allotments from the Ministry down to the district level.
On the basis of appropriation laws and upon request made by
heads of agencies, the then Ministry of Budget released funds to the
various agencies of the government by means of an Advice of
Allotment (AA) and a Cash Disbursement Ceiling (CDC). The Advice of
Allotment is an authority for the agency to incur obligations within a
specified amount in accordance with approved programs and projects.
The Cash Disbursement Ceiling is an authority to pay. Upon receipt of
the AA and CDC from the Budget, the Central Office of the agency
prepares the Sub-Advice of Allotment (SAA) and the Advice of Cash
Disbursement Ceiling (ACDC) for each region, in accordance with the
disbursement allotment. These are sent to the Regional Office. Upon
receipt, the Budget Officer of the region prepares the corresponding
Letters of Advice of Allotment (LAA) which are forwarded to the various
districts of the region (The amount that goes to each district is already
indicated in the Advice of Allotment). Only upon receipt of the LAA is
the district office authorized to incur obligations.
Now, how are funds released by the Regional Office to the
different districts and ultimately paid out to contractors, the District
Engineer submits to the Regional Director a request for allotment in
accordance with the program of work prepared by the former. This
procedure starts with the preparation of a Requisition for Supplies and
Equipment (RSE) in the District Office by the Senior Civil Engineer,

approved by the District Engineer, and signed by the Chief Accountant

of the Highway Engineering District, who certifies as to the availability
of funds. The RSE is then submitted to the Regional Director for
approval. Once it is approved, a Request for Obligation of Allotment
(ROA) is prepared by the Chief Accountant of the district Senior Civil
Engineer. The ROA signifies that a certain amount of district funds has
been set aside or earmarked for the particular expenditures stated in
the RSE. On the basis of the ROA, the District Office puts up
advertisements, [conducts] biddings, makes awards and prepares
purchase orders which are served on the winning bidder. The District
Office also prepares a summary of deliveries with the corresponding
delivery receipts and tally sheets, conducts inspection and prepares
the General Voucher for the payment of deliveries. Once the General
Voucher (GV) has been prepared, the corresponding check in the form
of a Treasury Check Account for Agency (TCAA) is drawn by the
Disbursing Officer and finally released to the contractor.
At the end of every month, the Report of Checks Issued by
Deputized Disbursing Officer (RCIDD) is prepared, listing all the checks
issued during that period. The RCIDDO is submitted to the accounting
division of the region. Upon receipt of the RCIDDO, the Regional Office
draws a journal voucher, debiting the account obligation (liquidated or
unliquidated obligation, whichever is applicable), and crediting the
account Treasury Check Account for Agency (TCAA). The RCIDDO is
recorded in the Journal of Checks Issued by Deputized Disbursing
Officers (JCIDDO) and posted in the general ledger at the end of each
month.
Simultaneous with the flow of the RCIDDO, the ROAs are
summarized in the Reports of Obligations Incurred (ROI) in the District
Office, once or twice a month, depending upon the volume of
transactions. The ROI is then submitted to the Regional Office. Upon
receipt of the ROI, the accountant of the Regional Office draws a
journal voucher taking up the following entry: debiting the
appropriation allotted (0-90-000) and crediting the obligation incurred
(0-82-000). This is recorded in the general voucher and posted to the
general ledger at the end of each month.The journal voucher is
prepared, closing the account 8-70-709 to 8-71-100-199 at the end of
each month. It is also recorded and posted to the general ledger. At the
end of the month, the balances of each account shown in the general
ledger are summarized in a statement called the trial balance. The trial
balance is submitted to the MPH Central Office in Manila where it is
consolidated with other trial balances submitted by other regional
offices.
xxxx
The elaborate accounting procedure described above with its
system of controls was set up obviously to make sure that government
funds are properly released, disbursed and accounted for. In the hands

of untrustworthy guardians of the public purse, however, it proved to

be inadequate. There were loopholes which an unscrupulous person
adroit in government accounting could take advantage of to
surreptitiously draw enormous sums of money from the government.
Sometime in February, 1977, accused Rolando Mangubat (Chief
Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget
Examiner), and Edgardo Cruz (Clerk II), all of MPH Region VII, met at
the Town and Country Restaurant in Cebu City and hatched an
ingenious plan to siphon off large sums of money from government
coffers. Mangubat had found a way to withdraw government money
through the use of fake LAAs, vouchers and other documents and to
conceal traces thereof with the connivance of other government
officials and employees. In fine, the fraudulent scheme involved the
splitting of LAAs and RSEs so that the amount covered by each general
voucher is less than P50,000.00 to do away with the approval of the
Regional Auditor; the charging of disbursements to unliquidated
obligations due the previous year to provide the supposed source of
funds; and the manipulation of the books of account by negation or
adjustment, i.e., the cancellation of checks through journal vouchers to
conceal disbursements in excess of the cash disbursement ceiling
(CDC), so as not to reflect such disbursements in the trial balances
submitted to the Regional Office.
Mangubat enticed Preagido, Cruz and Sayson to join him. All
three agreed to help him carry out his plan. They typed the fake LAAs
during Saturdays. Cruz and Sayson also took charge of negotiating or
selling the fake LAAs to contractors at 26% of the gross
amount. Preagido on her part manipulated the General Ledger, Journal
Vouchers and General Journal thru negative entries to conceal the
illegal disbursements. Thus, in the initial report of the auditors (Exhibit
D), it was discovered that the doubtful allotments and other anomalies
escaped notice due to the following manipulations:
The letter-advices covering such allotments (LAA) were
generally not signed by the Finance Officer nor recorded in the
books of accounts. Disbursements made on the basis of these
fake LAAs were charged to the unliquidated Obligations (Account
8-81-400), although the obligations being paid were not among
those certified to the unliquidated obligations (Account 8-81400) at the end of the preceding year. To conceal the
overcharges to authorized allotments, account 8-81-400 and the
excess of checks issued over authorized cash disbursements
ceiling, adjustments were prepared monthly through journal
vouchers to take up the negative debit to Account 8-81-400 and
a negative credit to the Treasury Checking Account for Agencies
Account 8-70-790. These journal vouchers in effect cancelled the
previous entry to record the disbursements made on the basis of
the fake LAAs. Thus, the affected accounts (Accounts 8-81-400

and 8-70-790), as appearing in the trial balance would not show

the irregularity. The checks, however, were actually issued.
The four formed the nucleus of the nefarious conspiracy. Other
government employees, tempted by the prospect of earning big
money, allowed their names to be used and signed spurious
documents.
Although the anomalies had been going on for sometime (February
1977 to June 1978), the PNB and Bureau of Treasury had no inkling
about it until the NBI busted the illegal operations.(Some of the
recipients of the stolen funds spent lavishly and bought two cars at a
time). The reason for this is that, at that time, the PNB and Bureau of
Treasury were not furnished copy of the mother CDC and the local
branch of the PNB did not receive independent advice from the PNB
head office in Manila. There were no deposits of money made with the
PNB from which withdrawals could be charged. Only CDCs were
presented to it, and not knowing that some of the CDCs were fake, the
PNB branch paid out the checks drawn against them. The bank had
also no way of knowing what amount was appropriated for the district;
consequently, it did not know if the limit had already been
exceeded. Only an insider steep in government accounting, auditing
and banking procedures, particularly their flaws and loopholes, could
have pulled off such an ingenious and audacious plan.
xxxx
Focusing our attention now on the anomalies committed in the Cebu
First District Engineering District, hereinafter referred to as the Cebu
First HED for brevity, the Court finds that the same pattern of fraud
employed in the other highway engineering districts in MPH Region VII
was followed. The Cebu First HED received from Region VII thirty-four
Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50
and twenty-nine (29) corresponding Sub-Advices of Cash Disbursement
Ceiling (SACDCs), amounting to P5,160,677.04 for the period January
1, 1977 to December 31, 1977. But apart from this, the Cebu First HED
appears to have also received for the same period another set of
eighty-four (84) LAAs amounting to P4,680,694.76 which however,
could not be traced to any Sub-Advice of Allotment (SAA) or matched
to the Advices of Cash Disbursement Ceiling (ACDCs) received from the
MPH and Regional Office. This is highly irregular and not in consonance
with accounting procedures.
It was also made to appear that the payments were made for alleged
prior years obligations and chargeable to Account 8-81-400, obviously
because, they were not properly funded.Furthermore, the list of
projects in Region VII for 1977 showed that Cebu First HED completed
rehabilitation and/or improvement of roads and bridges in its districts
from February to May 1977, with expenditures amounting to
P613,812.00. On the other hand, the expenditures for barangay roads
in the same district in 1977 amounted to P140,692.00, and these were

all completed within the period from November to December,

1977. These completed projects were properly funded by legitimate
LAAs and CDCs in the total amount of only P754,504.00. However, an
additional amount of P3,839,810.74 was spent by the Cebu First HED
for maintenance of roads and bridges for the same year (1977) but the
same could not be traced to any authoritative document coming from
the MPH.
xxxx
A total of 132 General Vouchers, emanating from fake LAAs and
ACDCs, were traced back to Rolando Mangubat, Regional Accountant of
Region VII and Adventor Fernandez, Regional Highway Engineer, also of
Region VII. Those LAAs and ACDCs became the vehicles in the
disbursement of funds amounting to P3,839,810.74, through the
vouchers purportedly issued for the purchase and delivery of the
aforementioned materials allegedly used for the maintenance and
repair of the national highways within the Cebu First HED. Despite the
enormous additional expenditure of P3,839,810.74, the roads and
bridges in the district, as found out by the NBI, did not show any
improvement. As testified to by several barangay captains, the road
maintenance consisted merely of spreading anapog or limestone on
potholes of the national highway.
Obviously, the vouchers for payments of alleged maintenance of
roads and bridges in the additional amount of P3,839,810.74 were
prepared for no other purpose than to siphon the said amount from the
government coffer into the pockets of some officials and employees of
Region VII and the Cebu First HED, as well as the suppliers and
contractors who conspired and confederated with them.

The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose

Sayson, and Edgardo Cruz, all of MPH Region VII, were found guilty in all 119 counts
and were accordingly sentenced by the SB. The other conniver, Delia Preagido, after
being found guilty in some of the cases, became a state witness in the
remainder. On the basis of her testimony and pertinent documents, Informations
were filed, convictions were obtained, and criminal penalties were imposed on the
rest of the accused.
On the other hand, petitioners were both Civil Engineers of the MPH assigned to the
Cebu First Highway Engineering District. Petitioner Fernan, Jr. was included among
the accused in Criminal Case Nos. 2879, 2880, 2881, 2885, 2914, and 2918
allegedly for having signed six (6) tally sheets or statements of deliveries of
materials, used as bases for the preparation of the corresponding number of general
vouchers. Fund releases were made to the suppliers, contractors, and payees based
on these general vouchers.

The Information against Fernan, Jr. in SB Criminal Case No. 2879 reads as follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat,
Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran,
Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde,
Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, Engracia
Escobar,
Abelardo
Cardona,
Leonardo
Tordecilla,
Agripino
Pagdanganan, Ramon Quirante, Mariano Montera, Mariano Jarina, Leo
Villagonzalo, Asterio Buqueron, Zosimo Mendez, Simon Fernan, Jr. and
Juliana de los Angeles for estafa thru falsification of public and
commercial documents, committed as follows:
That on, about and during the period from December 1,
1976 up to January 31, 1977, both dates inclusive, in the City
of Cebu and in Cebu Province, and within the jurisdiction of this
Honorable Court, the accused Rocilo Neis, Assistant District
Engineer of Cebu HED I; Rolando Mangubat, the Chief
Accountant of Region VII of the Ministry of Public Highways and
Adventor Fernandez, Regional Highway Engineer of same
Regional Office, conniving with each other to defraud the
Philippine Government with the indispensable cooperation and
assistance of Angelina Escao, Finance Officer of Region VII of the
Ministry of Public Highways; Delia Preagido, Assistant Chief
Accountant of same Regional Office; Camilo de Letran, Chief
Accountant of Cebu I HED; Manuel de Veyra, Regional Director,
MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH
Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII;
Matilde Jabalde, Supervising Accounting Clerk, MPH, Region VII;
Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson,
Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I,
MPH, Region VII; Leonila del Rosario, Chief Finance and
Management Service, MPH, Central Office; Engracia Escobar,
Chief Accountant, MPH, Central Office; Abelardo Cardona,
Assistant Chief Accountant, MPH, Central Office; Leonardo
Tordecilla, Supervising Accountant, MPH, Central Office; Agripino
Pagdanganan, Budget Officer III, MPH, Central Office; Ramon
Quirante, Property Custodian of Cebu I HED; Mariano Montera,
Senior Civil Engineer Engineer of Cebu I HED; Mariano Jarina,
Clerk in the Property Division of Cebu I HED; Leo Villagonzalo,
Auditors Aide of Cebu I HED; Zosimo Mendez, Auditor of Cebu I
HED; Asterio Buqueron, Administrative Officer of Cebu I HED;
Simon Fernan, Jr., Civil Engineer of Cebu I HED and Juliana de los
Angeles, an alleged supplier, all of whom took advantage of
their official positions, with the exception of Juliana de los
Angeles, mutually helping each other did then and there
willfully, unlawfully and feloniously falsify and/or cause the
falsification of the following documents, to wit:

1. Request for Allocation of Allotment

2. Letter of Advice of Allotment
3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-15
5. Check No. 9933064
6. Abstract of Bids
7. Purchase Order
8. Statement of Delivery
9. Report of Inspection
10. Requisition for Supplies or Equipment
11. Trial Balance
by making it appear that Regional Office No. VII of the Ministry of
Public Highways regularly issued an advice of cash disbursement
ceiling (ACDC) and the corresponding letter of advice of
allotment (LAA) to cover the purchase of 1,400 cu. m. of item
108[7] for use in the repair of the Cebu Hagnaya Wharf
road from Km. 50.30 to Km. 60.00, when in truth and in fact,
as all the accused knew, the same were not true and correct; by
making it appear in the voucher that funds were available and
that there were appropriate requests for allotments (ROA) to pay
the aforesaid purchase; that a requisition for said item was
made and approved; that a regular bidding was held; that a
corresponding purchase order was issued in favor of the winning
bidder; that the road construction materials were delivered,
inspected and used in the supposed project and that the alleged
supplier was entitled to payment when in truth and in fact, as all
the accused know, all of the foregoing were false and incorrect
and because of the foregoing falsifications, the above-named
accused were able to collect from the Cebu I HED the total
amount of TWENTY EIGHT THOUSAND PESOS (P28,000.00),
Philippine Currency, in payment of the non-existing deliveries;
that the said amount ofP28,000.00 was not reflected in the
monthly trial balance submitted to the Central Office by Region
VII showing its financial condition as the same was negated thru
the journal voucher, as a designed means to cover-up the fraud;
and the accused, once in possession of the said amount,
misappropriated, converted and misapplied the same for their
personal needs, to the damage and prejudice of the Philippine

Government in the total amount of TWENTY EIGHT

THOUSAND PESOS (P28,000.00), Philippine Currency.
CONTRARY TO LAW.
The Informations in the six (6) cases involving Fernan, Jr. were essentially identical
save for the details as highlighted in boldface above. For ease of reference, Fernan,
Jr.s criminal cases are detailed below:
Criminal
Case No.
2879

2880

2881

2885

Dates of Main
Commissi Documen
on
ts
Falsified
December
1. General
1, 1976 up Voucher
to January
No. B-15;
31, 1977
2.
Check
No.
9933064;
December
1. Request
1, 1976 up for
to January
Allocation
31, 1977
of
Allotment
101-12105-76;
2. General
Voucher
No. B-55;
3.
Check
No.
9933104;
January 2, 1. Request
1977 up
for
toFebruary Allocation
28, 1977
of
Allotment
101-2-5677;
2. General
Voucher
No. B-245;
3.
Check
No.
9933294;
January 2, 1. Request
1977 up
for
toJanuary
Allocation
31, 1977
of

Items
Purchased

Allegedly Amount
of Fraud

1,400 cu. m. of item 108 PhP

for use in the repair of 28,000.00
the CebuHagnaya Wharf r
oad from Km. 50.30 to
Km. 60.00
1,400 cu. m. of item 108 PhP
for use in the repair of the 28,000.00
Bogo-Curva-Medellon
road from Km. 110.00 to
Km. 119.00

Approximately 1,500 cu. PhP

m. of item 108 for use in 31,000.00
the
repair
and
rehabilitation of damaged
roads and bridges by
Typhoon Aring at the
Tabogon-Bogo provincial
road from Km. 92 to Km.
98

materials for use in the PhP

repair and rehabilitation 30,000.00
of the Daan-Bantayan
road from Km. 127.00 to

2914

2918

Allotment
101-12112-76;
2. General
Voucher
No. B-76;
3.
Check
No.
9933125;
October 1, 1. General
1977 up
Voucher
toNovembe No. B-927;
r 30, 1977
2.
Check
No.
9403425;
January 2, 1. General
1977 up
Voucher
toFebruary No. B-107;
28, 1977
2.
Check
No.
9933157;

Km. 136

1,200 cu. m. of item 108 PhP

for
use
in
the 27,000.00
rehabilitation of the CajelLugo, Barbon barangay
road
1,500 cu. m. of item 108 PhP
for the rehabilitation of 30,000.00
theCebu North HagnayaW
harf road from Km. 71 to
Km. 76

On the other hand, petitioner Torrevillas was one of the accused in Criminal
Case Nos. 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932.
The Information against Torrevillas in SB Criminal Case No. 2855 reads as
follows:
The undersigned accuses Rocilo Neis, Rolando Mangubat,
Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran,
Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde,
Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, Engracia
Escobar,
Abelardo
Cardona,
Leonardo
Tordecilla,
Agripino
Pagdanganan, Ramon Quirante, Jorge de la Pea, Leo Villagonzalo,
Asterio Buqueron, Expedito Torrevillas, Mariano Montera and Rufino V.
Nuez for estafa thru falsification of public and commercial documents,
committed as follows:
That on, about and during the period from June 1, 1977
up to June 30, 1977, both dates inclusive, in the City of Cebu
and in Cebu Province, and within the jurisdiction of this
Honorable Court, the accused Rocilo Neis, Assistant District
Engineer of Cebu HED I; Rolando Mangubat, the Chief
Accountant of Region VII of the Ministry of Public Highways and
Adventor Fernandez, Regional Highway Engineer of same
Regional Office, conniving with each other to defraud the
Philippine Government with the indispensable cooperation and

assistance of Angelina Escao, Finance Officer of Region VII of the

Ministry of Public Highways; Delia Preagido, Assistant Chief
Accountant of same Regional Office; Camilo de Letran, Chief
Accountant of Cebu I HED; Manuel de Veyra, Regional Director,
MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH
Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII;
Matilde Jabalde, Supervising Accounting Clerk, MPH, Region VII;
Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson,
Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I,
MPH, Region VII; Leonila del Rosario, Chief Finance and
Management Service, MPH, Central Office; Engracia Escobar,
Chief Accountant, MPH, Central Office; Abelardo Cardona,
Assistant Chief Accountant, MPH, Central Office; Leonardo
Tordecilla, Supervising Accountant, MPH, Central Office; Agripino
Pagdanganan, Budget Officer III, MPH, Central Office; Ramon
Quirante, Property Custodian of Cebu I HED; Jorge de la Pea,
Auditor of Cebu I HED; Leo Villagonzalo, Auditors Aide of Cebu I
HED; Asterio Buqueron, Administrative Officer of Cebu I HED;
Expedito Torrevillas, representative of the Engineers Office, Cebu
I HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I
HED; and Rufino V. Nuez, an alleged supplier, all of whom took
advantage of their official positions, with the exception of Rufino
V. Nuez, mutually helping each other did then and there willfully,
unlawfully and feloniously falsify and/or cause the falsification of
the following documents, to wit:
1. Request for Allocation of Allotment 101-10-186-76;
10-190-76; 10-192-76; 10-188-76; 10-180-76
2. Letter of Advice of Allotment
3. Advice of Cash Disbursement Ceiling
4. General Voucher No. B-613
5. Check No. 9403099
6. Abstract of Bids
7. Purchase Order
8. Statement of Delivery
9. Report of Inspection
10. Requisition for Supplies or Equipment
11. Trial Balance

by making it appear that Regional Office No. VII of the Ministry of

Public Highways regularly issued an advice of cash disbursement
ceiling (ACDC) and the corresponding letter of advice of
allotment (LAA) to cover the purchase of 153.63 m. t. of item
310[8] for use in asphalting of the Toledo-Tabuelan road at
Km. 108.34 to Km. 109.52, when in truth and in fact, as all
the accused knew, the same were not true and correct; by
making it appear in the voucher that funds were available and
that there were appropriate requests for allotments (ROA) to pay
the aforesaid purchase; that a requisition for said item was
made and approved; that a regular bidding was held; that a
corresponding purchase order was issued in favor of the winning
bidder; that the road construction materials were delivered,
inspected and used in the supposed project and that the alleged
supplier was entitled to payment when in truth and in fact, as all
the accused know, all of the foregoing were false and incorrect
and because of the foregoing falsifications, the above-named
accused were able to collect from the Cebu I HED the total
amount of FORTY EIGHT THOUSAND FOUR HUNDRED
THIRTY ONE PESOS & 85/100 (P48,431.85), Philippine
Currency, in payment of the non-existing deliveries; that the said
amount of P48,431.85 was not reflected in the monthly trial
balance submitted to the Central Office by Region VII showing its
financial condition as the same was negated thru the journal
voucher, as a designed means to cover-up the fraud; and the
accused,
once
in
possession
of
the
said
amount,
misappropriated, converted and misapplied the same for their
personal needs, to the damage and prejudice of the Philippine
Government in the total amount of FORTY EIGHT THOUSAND
FOUR
HUNDRED
THIRTY
ONE
PESOS
&
85/100
(P48,431.85), Philippine Currency.
CONTRARY TO LAW.

The Torrevillas cases were substantially the same save for the details highlighted in
the aforequoted typical accusatory pleading. For ease of reference, Torrevillas
criminal cases are particularized as follows:
Criminal
Case No.
2855

Dates
of Main
Commission Documents
Falsified
June
1, 1. Request for
1977 up
Allocation of
toJune
30, Allotment
1977
101-10-18676;
10-19076;
10-19276;
10-188-

Items
Allegedly
Purchased
153.63 m. t.
of item 310
for
use
in
asphalting of
the
ToledoTabuelan road
from
Km.

Amount
Fraud
PhP
48,431.85

of

2856

2858

2859

2909

June
1977 up
toJune
1977

June
1977 up
toJuly
1977

June
1977 up
toJune
1977

1,
30,

1,
31,

1,
31,

September 1,
1977 up
to November
30, 1977

76;
10-18076;
2.
General
Voucher No.
B-613;
3. Check No.
9403099;
1. Request for
Allocation of
Allotment
101-10-1576; 9-201-76;
8-152-76; 8153-76;9181-76;
9184-76
2.
General
Voucher No.
B-619;
3. Check No.
9403105;
1. Request for
Allocation
Allotment
101-6-23476; 6-237-76;
6-239-76; 6241-76;
6240-76
2.
General
Voucher No.
B-629;
3. Check No.
9403115;
1. Request for
Allocation of
Allotment
101-7-63-76;
8-102-76; 8121-76
2.
General
Voucher No.
B-631;
3. Check No.
9403117;
1.
General
Voucher No.
B-928;
2. Check No.
9403426;

108.34 to Km.
109.52

153.76 m. t. PhP
of item 310 48,472.84
for use in the
asphalting of
the
ToledoTabuelan road
from
Km
108.34 to Km.
109.52

151.35 m. t. PhP
of item 310 47,713.09
for use in the
asphalting of
the
ToledoTabuelan road
from
Km.
108.34 to Km.
109.52

110.01 m. t. PhP
of item 310 34,680.65
for
use
in
asphalting of
the
ToledoTabuelan road
from
Km.
108.34
to
Km.109.52
1,200 cu.m. PhP
of item 108 27,900.00
for use in the
rehabilitation
of
the

2910

September 1,
1977 up
to November
30, 1977

1.
General
Voucher No.
B-929;
2. Check No.
9403427;

2914

October
1,
1977 up
toNovember
30, 1977

1.
General
Voucher No.
B-927;
2. Check No.
9403425;

2919

January
2, 1.
General
1977 up
Voucher No.
toFebruary
B-244;
28, 1977
2. Check No.
9933293;

2932

June
1977 up
toJuly
1977

1, 1. Request for
Allocation of
31, Allotment
101-7-83-76;
7-84-76;
7124-76;
8153-76;
8170-76;
2.
General
Voucher
B643;
3. Check No.
9403130;

BuanoyCantibas,
Balaban
barangay
road
1,200 cu. m.
of item 108
for use in the
rehabilitation
of the MagayCanamukan,
Compostela
barangay
road
1,200 cu. m.
of item 108
for use in the
rehabilitation
of the CajelLugo, Barbon
barangay
road
1,550 cu. m.
of item 108
for use in the
repair
and
rehabilitation
of damaged
roads
and
bridges at the
ToledoTabuelan
national road
from Km. 71
to Km. 83
250 gals of
aluminum
paint
324
gals of red
lead paint for
use in the
maintenance
of
national
roads
and
bridges

PhP
27,900.00

PhP
27,000.00

PhP
31,000.00

PhP
44,762.58

The Sandiganbayans Ruling

The anti-graft court was fully convinced of the guilt of petitioner Fernan, Jr.;
and in its December 4, 1997 Decision, it found him criminally liable in the six (6)
cases against him, thus:
In Criminal Case No. 2879, the Court finds accused JOSE
SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO
MENDEZ,
MARIANO
JARINA and SIMON
FERNAN,
Jr.,
GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized
in Articles 318 and 171, in relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging
from six (6) years ofprision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as maximum,
with the accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of Twenty Eight
Thousand Pesos (P 28,000.00); and, to pay their proportionate share of
the costs.[9] (Emphasis supplied.)
In Criminal Case No. 2880, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
MARIANO
MONTERA,
ZOSIMO
MENDEZ, andSIMON
FERNAN,
Jr.,
GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized
in Articles 318 and 171, in relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging
from six (6) years of prision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as maximum,
with the accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of Twenty Eight
Thousand Pesos (P 28,000.00); and, to pay their proportionate share of
the costs.[10] (Emphasis supplied.)
In Criminal Case No. 2881, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
ZOSIMO
MENDEZ and SIMON FERNAN, Jr., GUILTYbeyond reasonable doubt
as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P

3,500.00); to indemnify, jointly and severally the Republic of the

Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00);
and, to pay their proportionate share of the costs. [11] (Emphasis
supplied.)
In Criminal Case No. 2885, the Court finds accused CAMILO DE
LETRAN
JOSE
SAYSON,
RAMON
QUIRANTE,
ZOSIMO
MENDEZ and SIMON FERNAN, Jr., GUILTYbeyond reasonable doubt
as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); and,
to pay their proportionate share of the costs. [12](Emphasis supplied.)
In Criminal Case No. 2914, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE, EXPEDITO
TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Pesos (P
27,000.00); and, to pay their proportionate share of the costs.
[13]
(Emphasis supplied.)
In Criminal Case No. 2918, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
ZOSIMO
MENDEZ, SIMON
FERNAN,
Jr. and ISMAEL
SABIO,
Jr.
GUILTY beyond reasonable doubt as co-principals in the crime of
Estafa thru falsification of Public Documents as defined and penalized
in Articles 318 and 171, in relation to Article 48 of the Revised Penal
Code, and there being no modifying circumstances in attendance,
hereby sentences each of them to an indeterminate penalty ranging
from six (6) years ofprision correccional, as minimum, to ten (10)
years, eight (8) months and one (1) day of prision mayor, as maximum,
with the accessory penalties provided by law, to pay a fine of Three
Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and
severally the Republic of the Philippines in the amount of Thirty

Thousand Pesos (P 30,000.00); and, to pay their proportionate share of

the costs.[14] (Emphasis supplied.)
Petitioner Torrevillas suffered the same fate and was convicted in the nine (9)
criminal cases, to wit:
In Criminal Case No. 2855, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
MARIANO
MONTERA, and EXPEDITO
TORREVILLAS GUILTY beyond
reasonable doubt as co-principals in the crime of Estafa thru
falsification of Public Documents as defined and penalized in Articles
318 and 171, in relation to Article 48 of the Revised Penal Code, and
there being no modifying circumstances in attendance, hereby
sentences each of them to an indeterminate penalty ranging from six
(6) years ofprision correccional, as minimum, to ten (10) years, eight
(8) months and one (1) day of prision mayor, as maximum, with the
accessory penalties provided by law, to pay a fine of Three Thousand
Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the
Republic of the Philippines in the amount of Forty Eight Thousand Four
Hundred Thirty One Pesos and 85/100 (P 48,431.85); and, to pay their
proportionate share of the costs.[15] (Emphasis supplied.)
In Criminal Case No. 2856, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
MARIANO
MONTERA and EXPEDITO TORREVILLASGUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Forty Eight Thousand Four Hundred
Seventy Two Pesos and 84/100 (P 48,472.84); and, to pay their
proportionate share of the costs.[16] (Emphasis supplied.)
In Criminal Case No. 2858, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as
co-principals in the crime of Estafa thru Falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances in
attendance, hereby sentences each of them to an indeterminate
penalty ranging from six (6) years of prision correccional, as minimum,
to ten (10) years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to pay a fine

of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify,

jointly and severally the Republic of the Philippines in the amount of
Forty Seven Thousand Seven Hundred Thirteen Pesos and 9/100
(P47,713.09); and, to pay their proportionate share of the costs.
In Criminal Case No. 2859, the Court finds accused CAMILO DE
LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA
and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as
co-principals in the crime of Estafa thru Falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos
(P3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty Four Thousand Six Hundred Eighty
pesos and 65/100 (P34,680.65); and , to pay their proportionate share
of the costs.[17]
In Criminal Case No. 2909, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
FLORO
JAYME and EXPEDITO
TORREVILLASGUILTY beyond
reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Nine Hundred
Pesos (P 27,900.00); and, to pay their proportionate share of the costs.
[18]
(Emphasis supplied.)
In Criminal Case No. 2910, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
FLORO
JAYME and EXPEDITO
TORREVILLASGUILTY beyond
reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Nine Hundred

Pesos (P 27,900.00); and, to pay their proportionate share of the costs.

[19]
(Emphasis supplied.)
In Criminal Case No. 2914, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE, EXPEDITO
TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Twenty Seven Thousand Pesos (P
27,000.00); and, to pay their proportionate share of the costs.
(Emphasis supplied.)
In Criminal Case No. 2919, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
MARIANO
MONTERA,
ZOSIMO
MENDEZ,EXPEDITO
TORREVILLAS and ISMAEL SABIO, Jr. GUILTY beyond reasonable
doubt as co-principals in the crime of Estafa thru falsification of Public
Documents as defined and penalized in Articles 318 and 171, in
relation to Article 48 of the Revised Penal Code, and there being no
modifying circumstances in attendance, hereby sentences each of
them to an indeterminate penalty ranging from six (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one
(1) day of prision mayor, as maximum, with the accessory penalties
provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P
3,500.00); to indemnify, jointly and severally the Republic of the
Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00);
and, to pay their proportionate share of the costs. [20] (Emphasis
supplied.)
In Criminal Case No. 2932, the Court finds accused CAMILO DE
LETRAN,
JOSE
SAYSON,
RAMON
QUIRANTE,
MARIANO
MONTERA,
PEDRITO
SEVILLE andEXPEDITO
TORREVILLAS GUILTY beyond reasonable doubt as co-principals in
the crime of Estafa thru falsification of Public Documents as defined
and penalized in Articles 318 and 171, in relation to Article 48 of the
Revised Penal Code, and there being no modifying circumstances in
attendance, hereby sentences each of them to an indeterminate
penalty ranging from six (6) years of prision correccional, as minimum,
to ten (10) years, eight (8) months and one (1) day of prision mayor, as
maximum, with the accessory penalties provided by law, to pay a fine
of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify,
jointly and severally the Republic of the Philippines in the amount of
Forty Four Thousand Seven Hundred Sixty Two Pesos and 58/100 (P

44,762.58); and, to pay their proportionate share of the costs.

[21]
(Emphasis supplied.)

Petitioners made the supplication before the court a quo to recall the adverse
judgments against them which was declined by the August 29, 2000 SB Resolution.
Firm in their belief that they were innocent of any wrongdoing, they now interpose
the instant petition to clear their names.
The Issues
Petitioners put forward two (2) issues, viz:
I
THE HONORABLE SANDIGANBAYAN TOTALLY IGNORED PETITIONERS
CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT WHEN IT RULED
THAT THE BURDEN OF CONVINCING THE HON. COURT THAT THE
DELIVERIES OF THE ROAD MATERIALS ATTESTED TO HAVE BEEN
RECEIVED BY THEM WERE NOT GHOST DELIVERIES RESTS WITH THE
ACCUSED AND NOT WITH THE PROSECUTION.
II
THE
HONORABLE
SANDIGANBAYAN
ERRED
IN
CONVICTING
PETITIONERS AS CO-CONSPIRATORS DESPITE THE PROSECUTIONS
FAILURE TO SPECIFICALLY PROVE BEYOND REASONABLE DOUBT THE
FACTS AND CIRCUMSTANCES THAT WOULD IMPLICATE THEM AS COCONSPIRATORS AND JUSTIFY THEIR CONVICTION.
The Courts Ruling
We are not persuaded to nullify the verdict.
Petitioners guilt was established beyond reasonable doubt

Petitioners mainly asseverate that their guilt was not shown beyond a peradventure
of doubt and the State was unable to show that government funds were illegally
released based on alleged ghost deliveries in conjunction with false or fake tally
sheets and other documents which they admittedly signed.
We are not convinced.

Our Constitution unequivocally guarantees that in all criminal prosecutions, the

accused shall be presumed innocent until the contrary is proved. [22] This sacred task
unqualifiedly means proving the guilt of the accused beyond a reasonable
doubt. Definitely, reasonable doubt is not mere guesswork whether or not the
accused is guilty, but such uncertainty that a reasonable man may entertain after a
fair review and consideration of the evidence. Reasonable doubt is present when
after the entire comparison and consideration of all the evidences,
leaves the minds of the [judges] in that condition that they cannot say
they feel an abiding conviction, to a moral certainty, of the truth of the
charge; a certainty that convinces and directs the understanding, and
satisfies the reason and judgment of those who are bound to act
conscientiously upon it.[23]
A thorough scrutiny of the records is imperative to determine whether or not
reasonable doubt exists as to the guilt of accused Fernan, Jr. and Torrevillas.
Petitioners were charged with the complex crime of estafa through falsification of
public documents as defined and penalized under Articles 318 and 171 in relation to
Article 48 of the Revised Penal Code, thus:
ART. 318. Other deceits. The penalty of arresto mayor and a fine of not
less than the amount of the damage caused and not more than twice
such amount shall be imposed upon any person who shall defraud or
damage another by any deceit not mentioned in the preceding articles
of this chapter.
ART. 171. Falsification by public officer, employee; or notary or
ecclesiastical minister. The penalty of prision mayor and a fine not to
exceed 5,000 pesos shall be imposed upon any public officer,
employee, or notary who, taking advantage of his official position, shall
falsify a document by committing any of the following acts:
xxxx
4. Making untruthful statements in a narration of facts;
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.

The complex crime is pruned into the following essential elements:

For estafa

1. Deceit: Deceit is a specie of fraud. It is actual fraud, and consists in

any false representation or contrivance whereby one person
overreaches and misleads another, to his hurt. There is deceit when
one is misled, either by guile or trickery or by other means, to believe
to be true what is really false.[24]
2. Damage: Damage may consist in the offended party being deprived
of his money or property as a result of the defraudation, disturbance in
property right, or temporary prejudice.[25]
For falsification
1. That the offender is a public officer, employee, or notary public;
2. That he takes advantage of his official position;
3. That he falsifies a document by committing any of the acts defined
under Article 171 of the Revised Penal Code. [26]
Before the SB, a Memorandum of Agreement (MOA) dated September 1, 1988 was
entered into between the State and the accused with the following stipulations and
admissions:
(1) To expedite the early termination of the instant cases and
abbreviate the testimony of Mrs. Delia Preagido, the prosecution and
the accused have agreed to reproduce and adopt as the testimony of
Preagido in the instant cases, her previous testimonies in Criminal
Cases Nos. 889, etc. (Mandaue City HED 78 cases), on May 18 and 19,
1982 and in Criminal Cases Nos. 1446-1789, etc. (Danao City HED 77
cases) on November 10, 1987 and March 14, 1988, both on direct and
cross examination x x x without prejudice to whatever direct and/or
cross examination question, that may be propounded by the
Prosecution and the accused on said State witness, which questions
will only be limited to the fake or irregular LAAs and SACDCs issued to
Cebu I HED in 1977, the sale of such fake or irregular LAAs and
SACDCs issued to Cebu I HED in 1977, the sale of such fake or irregular
LAAs and SACDCs in said engineering district in the said year and the
participation of the accused thereon;
(2) That in the event Mrs. Delia Preagido is presented to testify
as a State witness in the instant cases without reproducing and
adopting her previous testimonies in the Mandaue City HED 78 and the
Danao City HED 77 cases, she will identify documents and exhibits
which have been previously marked and identified by other
prosecution witness x x x.
(3) That in the previous testimonies of Mrs. Delia Preagido in the
Mandaue City HED 78 and the Danao City HED 77 cases, she identified
twenty-six separate lists containing names of officials and employees

of MPH, Regional Office No. VII, of the various Highways Engineering

Districts in MPH, Region VII, and the MPH Central Office who have
allegedly received money or various sums from 1977 to 1978 out of
the proceeds or sales of fake LAAs in 1977 and 1978 and, therefore, to
obviate Mrs. Preagidos previous testimony of these lists, the
Prosecution hereby reproduces and adopts specifically such testimony
and the markings of the lists, i.e., Exhibits KKK, KKK-1 to KKK-25 in the
Mandaue City HED 78 cases and Exhibits 0000, 0000-1 to 0000-25 in
the Danao City HED 77 cases, substituted or re-marked accordingly as
Exhibits LL, LL-1 to LL-25 in the instant cases. [27]

As a result of this MOA, the testimony of state witness Preagido on the modus
operandi of the conspirators, or the unique and distinct method of procedure by
which the malversation of public funds in Region VII of the MPH was perpetrated and
accomplished, dealt a major blow to the defenses raised by petitioners. Preagidos
vital testimony, wherein she identified the methods, documents, exhibits, and other
pertinent papers that led to the crafting of fake Letters of Advice of Allotment
(LAAs),[28] general vouchers, disbursement of funds for non-existent projects,
general vouchers, and other documents, was not even successfully refuted or
overturned by petitioners.
Preagido confirmed and admitted under oath that the illegal disbursement of public
funds pertained to non-existent projects and was supported by fake LAAs, fake
general vouchers, and other pertinent papers that were also falsified. The fake LAAs
and general vouchers were, in turn, supported by signed tally sheets that pertained
to alleged ghost deliveries of road construction materials for non-existent or illegal
projects.
The fake tally sheets, delivery receipts, reports of inspection, requests for
supplies and materials, and other related documents signed on separate occasions
by petitioners, which were attached as supporting documents to corresponding
general vouchers; the alleged amounts and quantities of road construction
materials delivered; and the specific fake general vouchers, checks, and other
pertinent documents issued which led to the illegal disbursement of funds are
summarized as follows:
Petitioner Fernan, Jr.
Crimi
nal
Case
No.

Speci
fic
Exhib
its

Main
Docume
nts
Falsified

2879

T-86-f-

1.

Items
Purchased

Allegedly FAKE
LAAs
that
authori
zed
purchas
e
1,400 cu. m. of item 108 for Not

Amoun
t
of
Fraud

PhP

1, etc.
(Tally
Sheet
s)

2880

2881

2885

General
Voucher
No. B-15;
2. Check
No.
9933064;

use
in
the
repair
of
theCebu HagnayaWharf roa
d from Km. 50.30 to Km.
60.00

numbere
d
contrary
to
official
procedur
e
T-87-f- 1.
1,400 cu. m. of item 108 for Not
1, etc. Request
use in the repair of the numbere
(Tally
for
Bogo-Curva-Medellon road d
Sheet Allocatio from Km. 110.00 to Km. contrary
s)
n
of 119.00
to
Allotmen
official
t 101-12procedur
105-76;
e
2.
General
Voucher
No. B-55;
3. Check
No.
9933104;
T-104- 1.
Approximately 1,500 cu. m. Not
g-1,
Request
of item 108 for use in the numbere
etc.
for
repair and rehabilitation of d
(Tally
Allocatio damaged roads and bridges contrary
Sheet n
of by Typhoon Aring at the to
s)
Allotmen Tabogon-Bogo
provincial official
t 101-2- road from Km. 92 to Km. 98
procedur
56-77;
e
2.
General
Voucher
No.
B245;
3. Check
No.
9933294;
T-89-f- 1.
Materials for use in the Not
1, etc. Request
repair and rehabilitation of numbere
(Tally
for
the Daan-Bantayan road d
Sheet Allocatio from Km. 127.00 to Km. 136 contrary
s)
n
of
to
Allotmen
official
t 101-12procedur
112-76;
e
2.
General
Voucher
No. B-76;

28,000.
00

PhP
28,000.
00

PhP
31,000.
00

PhP
30,000.
00

2914

T-115g-1,
etc.
(Tally
Sheet
s)

2918

T-116f-1,
etc.
(Tally
Sheet
s)

3. Check
No.
9933125;
1.
General
Voucher
No.
B927;
2. Check
No.
9403425;
1.
General
Voucher
No.
B107;
2. Check
No.
9933157;

1,200 cu. m. of item 108 for

use in the rehabilitation of
the
Cajel-Lugo,
Barbon
barangay road

1,500 cu. m. of item 108 for

the
rehabilitation
of
the Cebu NorthHagnaya Wh
arfroad from Km. 71 to Km.
76

PhP
27,000.
00

Not
numbere
d
contrary
to
official
procedur
e

PhP
30,000.
00

Petitioner Torrevillas
Crimi
nal
Case
No.
2855

2856

Specific
Exhibits
T-33-f
(Delivery
Receipt);
T-33-f-1
(Daily Tally
Sheet);

Main
Documents
Falsified

1. Request for
Allocation of
Allotment
101-10-18676;
10-19076;
10-19276;
10-18876;
10-18076;
2.
General
Voucher No.
B-613;
3. Check No.
9403099;
T-34-f
1. Request for
(Delivery
Allocation of
Receipt);
Allotment
T-34-f-1
101-10-15-76;
(Daily Tally 9-201-76; 8Sheet);
152-76;
8153-76;9-18176; 9-184-76

Items
Allegedly
Purchased
153.63 m. t.
of item 310
for use in
asphalting
of
the
ToledoTabuelan
road
from
Km. 108.34
to
Km.
109.52

153.76 m. t.
of item 310
for use in
the
asphalting
of
the
ToledoTabuelan

FAKE LAAs
that
authorized
purchase
Not
numbered
contrary to
official
procedure

Amount
of Fraud
PhP
48,431.85

Not
PhP
numbered
48,472.84
contrary to
official
procedure

2858

2859

2909

2910

2.
General
Voucher No.
B-619;
3. Check No.
9403105;
T-35-f
1. Request for
(Delivery
Allocation
Receipt);
Allotment
T-35-f-1
101-6-234-76;
(Daily Tally 6-237-76; 6Sheet);
239-76;
6241-76;
6240-76
2.
General
Voucher No.
B-629;
3. Check No.
9403115;
T-36-f
1. Request for
(Delivery
Allocation of
Receipt);
Allotment
T-36-f-1
101-7-63-76;
(Daily Tally 8-102-76; 8Sheet);
121-76
2.
General
Voucher No.
B-631;
3. Check No.
9403117;
T-113-b
1.
General
(Request
Voucher No.
for
B-928;
Supplies
2. Check No.
and
9403426;
Equipment
); T-113-d
(Report of
Inspection)
;
T-113-c
(Abstract
of Sealed
Quotation)
T-114-c
1.
General
(Request
Voucher No.
for
B-929;
Supplies
2. Check No.
and
9403427;
Equipment
); T-114-e
(Report of

road
from
Km 108.34
to
Km.
109.52
151.35 m. t.
of item 310
for use in
the
asphalting
of
the
ToledoTabuelan
road
from
Km. 108.34
to
Km.
109.52

Not
PhP
numbered
47,713.09
contrary to
official
procedure

110.01 m. t.
of item 310
for use in
asphalting
of
the
ToledoTabuelan
road
from
Km. 108.34
to
Km.109.52
1,200 cu.m.
of item 108
for use in
the
rehabilitatio
n
of
the
BuanoyCantibas,
Balaban
barangay
road

Not
PhP
numbered
34,680.65
contrary to
official
procedure

1,200
cu.
m. of item
108 for use
in
the
rehabilitatio
n
of
the
MagayCanamukan

Not
PhP
numbered
27,900.00
contrary to
official
procedure

Not
PhP
numbered
27,900.00
contrary to
official
procedure

2914

2919

2932

Inspection)
;
T-114-f
(Abstract
of Sealed
Quotation)
T-115-c
(Request
for
Supplies
and
Equipment
); T-115-e
(Report of
Inspection)
;
T-115-f
(Abstract
of Sealed
Quotation)
T-117-g
(Delivery
Receipt);
T-117-g-1,
etc. (Daily
Tally
Sheets)

,
Compostela
barangay
road
1.
General
Voucher No.
B-927;
2. Check No.
9403425;

1,200
cu.
m. of item
108 for use
in
the
rehabilitatio
n
of
the
Cajel-Lugo,
Barbon
barangay
road

Not
PhP
numbered
27,000.00
contrary to
official
procedure

1.
General
Voucher No.
B-244;
2. Check No.
9933293;

1,550
cu.
m. of item
108 for use
in the repair
and
rehabilitatio
n
of
damaged
roads
and
bridges
at
the ToledoTabuelan
national
road
from
Km. 71 to
Km. 83
250 gals of
aluminum
paint
324
gals of red
lead
paint
for use in
the
maintenanc
e of national
roads
and
bridges

Not
PhP
numbered
31,000.00
contrary to
official
procedure

1. Request for
Allocation of
Allotment
101-7-83-76;
7-84-76;
7124-76;
8153-76;
8170-76;
2.
General
Voucher
B643;
3. Check No.
9403130;

Not
PhP
numbered
44,762.58
contrary to
official
procedure

On the part of petitioners, they readily admitted that they either signed the
tally sheets and/or delivery receipts, reports of inspection, requests for supplies and
materials, and other related documents which became part of the supporting
documents that led to the issuance of general vouchers and eventually the
disbursement of public funds. [29]The tally sheets are statements of delivery that
purportedly indicated the specified quantities of materials for the construction and
maintenance of roads that have been delivered on supposed project sites on given
dates at specific places.
As a result of petitioners signatures in the tally sheets and/or delivery receipts,
reports of inspection, requests for supplies and materials, and other supporting
documentswhich became the basis for payment to supplierspublic funds were
released via general vouchers and checks to the said suppliers despite the fact that
the latter did not make any deliveries in accordance with projects allegedly funded
by mostly fake LAAs.
The accusation that there were no actual deliveries of road construction and
maintenance materials in support of projects or otherwise funded by LAAs was
proven true by the testimonies of the various barangay captains and residents of
the barangay who were supposed to be benefited by the construction and repair
activities of the Cebu First Highway Engineering District. The testimonies of these
barangay captains and residents are summarized as follows: [30]
1. MACARIO LIMALIMA, Barangay Captain of Barangay
Antipolo, Medellin, Cebu, testified that his barangay is traversed by the
national highway stretching to a distance of 2 kilometers and 750
meters (Km. 122; Km. 123 to 125). He described the road as full of
potholes. Except for filling up these potholes with anapog or crushed
limestone, no major repairs were undertaken on the said road in 1978
or in previous years. (TSN., pp. 6-14, June 5, 1986). [31]
2. FELOMINO
ORBISO,
Barangay
Captain
of
Cawit, Medellin, Cebu, from 1972 to 1981, testified that his barangay is
traversed by the national highway, stretching from Km. 125 to Km.
127.9. He described the road as a rough or dirt road. No improvement
was ever made on this road whether during the year when he gave his
statement to the NBI (1978) or in previous years. The road remained in
bad shape, with numerous potholes which the camineros merely filled
up with limestone. (TSN., pp.14-19, June 5, 1986). [32]
3. TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan
Bantayan, Cebu, from 1972 to 1982, testified that his barangay is
traversed by the national highway, stretching from Km. 132 to Km. 134
, or a distance of 2 kilometers. He described the portion of the highway

as a rough road with potholes. He stated that the only improvement

done on this road was the filling up of the potholes with anapog or
crushed limestone and this was done only once in 1977. It even took
the camineros three months from the time the limestones were
delivered to start working on the road. (TSN., pp. 20-26, June 5, 1986).
[33]

4. LUCIA PEAFLOR, Barangay Captain of Don Pedro,

Bogo, Cebu, from 1966 to 1982, testified that her barangay is
traversed by the national highway, stretching from Km. 103 to Km. 105
, up to the boundary of San Remigio, and from the boundary to Daan
Bantayan, a distance of more than 3 kilometers. It was only in 1984 or
1985 when this portion of the national highway was asphalted. Prior to
that, the road was maintained by filling up the potholes with crushed
limestone or anapog. These potholes started to appear between
January and June of 1977.However, as alleged by her in her affidavit
(Exh. II-1-d), these potholes were filled up only from January to June,
1978. (TSN., pp. 28-46, June 5, 1986).[34]
5. MARCELO CONEJOS, Barangay Captain of Tapilon, Daan
Bantayan, from 1972 to 1982, testified that his barangay is traversed
by the national highway, stretching from Km. 130 to Km. 134, or a
distance of 4 kilometers. In 1977, said portion of the national highway
was in bad condition and that nothing was done to improve it until
1982, except for the time when the potholes were filled up with
crushed limestones. (TSN., pp. 48-56, June 5, 1986). [35]
6. REMEDIOS FELICANO, Barangay Captain of Looc, San
Remigio, Cebu from 1977 to 1982, testified that her barangay is
traversed by the national highway, stretching form Km. 109 to Km.
110. She described said portion of the national highway as stoney. The
only maintenance work undertaken to improve the road was the filling
up of potholes with crushed limestone which camineros gathered from
the roadside. (TSN., pp.57-67, June 5, 1986). [36]
7. ALBERTO BRANSUELA, a resident of Barangay San Jose,
Catmon, Cebu, from 1974 to 1978, testified that barangay San Jose is
traversed by the national highway (Km. 58), covering a distance of
kilometer more or less. He stated that while this portion of the national
highway was already asphalted as of 1977, there were potholes which
the camineros filled up with anapog taken from the roadside. (TSN., pp.
69-80), June 5, 1986).[37]
8. CARIDAD PUNLA, Acting Barangay Captain of Barangay
Corazon, Catmon, Cebu, from 1977 to 1982, testified that the
Poblacion of Catmon is traversed by the national highway, stretching
from Km. 57 to Km. 58. In 1977, only more than of this portion of the
national highway was cemented while the remaining portion was
asphalted. While said portion of the national highway already had
cracks and potholes as of 1977, the real problem was the uneven

elevation of the surface of the shoulder of the road. No general repair

was undertaken by the authorities to correct the uneven elevation,
except for the work done by the camineros who covered up the
potholes. (TSN., pp. 81-89, June 5, 1986). [38]
9. FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu, from
1975 to 1982, testified that barangay Bao was traversed by the
national highway, stretching from Km. 59 to Km. 60 1/2. He described
said portion of the national highway as a gravel road surfaced with
anapog. In 1977, the said road already had potholes which
maintenance men filled up with anapog beginning in March, 1977. The
anapog was hauled in from Km. 64, the usual excavation place of
anapog. It took only 3 truckloads of anapog to cover the entire length
of the 1 kilometers traversing their barangay. (TSN., pp. 90-99, June 5,
1986).[39]
10. LEONARDO PINOTE, Barangay Captain of Barangay
Argawanon, San Remigio, Cebu, from 1972 to 1980, testified that his
barangay is traversed by the national highway covering a distance of
kilometers more or less. In 1977, this portion of the national highway
was a rough road with potholes. In the same year, camineros worked
on the road, using wheelbarrows, shovels and rakes, pitching up the
potholes with anapog. (TSN., pp. 29-35, June 6, 1986).[40]
11. PEDRO ORSAL, Barangay Captain of Poblacion, San
Remigio, Cebu, from January 1972 to 1980, testified that his barangay
is traversed by the national highway, from Km. 107 to Km. 110, or a
distance of three kilometers more or less. In 1977, the road from Km.
107 to Km. 108 was a gravel road. It was properly maintained by the
highways people, and every time potholes appeared on the road, they
would be filled-up with anapog. This material was dumped along the
road by trucks of the Bureau of Public Highways. On the other hand,
the road leading to the heart of the poblacion was asphalted, but with
potholes. In 1977, the potholes were filled up by camineros with gravel
delivered by dump trucks of the Bureau of Public Highways. It was only
in 1978 when the road was re-asphalted and extended from the
junction of the poblacion to the adjacent barrio of Looc. x x x (TSN.,
pp.36-45, June 6, 1986).[41]
The inescapable conclusion from the aforementioned testimonies of the barangay
captains and residents of Cebu whose respective barangay are traversed by the
national highway is that there were no actual major repair works undertaken on the
national highway except the filling of potholes by crushed limestone (anapog).
Clearly, there were no deliveries of supplies and materials for asphalting and repair
of roads described in the tally sheets and other supporting documents signed by
petitioners.
While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan of
Tabuclan, Cebu, who testified that he saw the asphalting of the Tabuclan Road from

kilometers 18 to 19, said testimony is not conclusive on the actual delivery of the
supplies indicated in the tally sheets, as Tudlasan was not present at the time of
alleged delivery. Moreover, his testimony runs counter to the testimonies
of Barangay Captain
Remedios
Feliciano
of
Looc,
San
Remigio, Cebu and Barangay Captain Pedro Orsal of Poblacion, San Remigio,Cebu.
Feliciano testified that she was Barangay Captain of Looc, San Remigio, Cebu from
1977 to 1982; that her barangay is traversed by the national highway, stretching
from km. 109 to km. 110; and that the only work undertaken to improve the road
was the filling up of potholes with crushed limestone which camineros gathered from
the roadside. On the other hand, Orsal testified that he was Barangay Captain of
Poblacion, San Remigio, Cebu, from January 1972 to 1980; that his barangay is
traversed by the national highway, from km. 107 to km. 110; that in 1977, the road
from km. 107 to km. 108 was a gravel road maintained by the highways people, and
every time potholes appeared on the road, they would be filled-up with anapog,
which was dumped along the road by the Bureau of Public Highways; and that it was
only in 1978 when the road was re-asphalted and extended from the junction of the
poblacion to the adjacent barrio of Looc.
Compared to the testimony of Vice-Mayor Tudlasan, the testimonies
of Barangay Captains Feliciano and Orsal are entitled to more weight and credit, and
are more credible considering the fact that they are residents of the area where the
road supposedly to be repaired is located plus the fact that they saw only limestone,
not asphalt, that was used in the repair of the road in 1977. The testimonies of
Feliciano and Orsal are further buttressed by the findings and statements of
government witnesses, namelyRuth Inting Paredes, Supervising Commission on Audit
(COA) Auditor assigned to Region VII; Felicitas Cruz Ona, Supervising COA Auditor
assigned to the main COA office; Federico A. Malvar, Senior National Bureau of
Investigation (NBI) Agent of the Anti-Graft Section and member of the COA NBI team
assigned to investigate the anomalies; Rogelio C. Mamaril, Supervising NBI Agent of
the Anti-Fraud and Action Section; and Delia Comahig Preagido, Accountant III, MPH,
Region VIIto the effect that the general vouchers and LAAs that corresponded to the
aforementioned tally sheets signed by petitioner Torrevillas were fake or
falsified. Undeniably, the government witnesses have no motive to testify falsely
against petitioner Torrevillas and, hence, credible. We conclude that there were no
actual deliveries of supplies for asphalting of road and repair on kilometers 108 and
109, which were the subjects of Criminal Case Nos. 2855, 2856, 2858, and 2859.
Glaring is the finding of the SB that the Cebu First Highway Engineering District, to
which petitioners were assigned, had fake LAAs totaling to PhP 4,924,366.50, while
the fake Cash Disbursement Ceilings issued amounted to PhP 6,271,150. [42] The Cebu
First Highway Engineering District had also issued checks per unrecorded reports in

the total sum of PhP 1,135,176.82.[43] Therefore, the total illegal disbursements in the
Cebu First Highway Engineering District alone were a staggering PhP 12,330,693.32
circa 1977.
Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets which
pertained to non-existent deliveries of road construction supplies and materials
totaling PhP 146,000,[44] including PhP 27,000 in Criminal Case No. 2914 where
petitioner Torrevillas was among the co-accused. [45] These tally sheets were attached
as the supporting papers to fake general vouchers which facilitated the release of
check payments to suppliers.
These checks were allegedly paid to suppliers Juliana de los Angeles (Criminal
Case Nos. 2879, 2880, 2881, 2885, and 2914) and Ismael Sabio, Jr. (Criminal Case
No. 2918).[46]
On his part, petitioner Torrevillas voluntarily admitted to signing tally sheets,
reports of inspection, requisitions of supplies and equipment, and other pertinent
documents totaling an even greater amount of PhP 337,861.01, [47] including PhP
27,000 in Criminal Case No. 2914 where petitioner Fernan, Jr. was among the coaccused.[48] These documents signed by petitioner Torrevillas were likewise attached
as supporting papers to fake general vouchers which facilitated the release of check
payments to suppliers.
These checks were allegedly paid to suppliers Rufino V. Nuez (Criminal Case
Nos. 2855, 2856, 2858, and 2859), Juliana de los Angeles (Criminal Case Nos. 2909,
2910, and 2914), Ismael Sabio, Jr. (Criminal Case No. 2919), and Manuel Mascardo
(Criminal Case No. 2932).[49]
These general vouchers and checks could not be traced to genuine
LAAs. Ergo, there were no actual deliveries of supplies and materials for the road
repair and rehabilitation in Region VII, which were the subjects of the criminal cases
where petitioners were charged.
We find no reason to disturb the findings of the court a quo that all the
essential elements of the crime of estafa through falsification of public documents
were present.There is no question that petitioners, at the time of the commission of
the crime, were public officerscivil engineersassigned to the MPH. Their signing of
tally sheets and related documents pertaining to the alleged deliveries of supplies
for road repair and construction constitutes intervention and/or taking advantage of
their official positions, especially considering that they had the duty to inspect the
purported deliveries and ascertain the veracity of the documents and the
statements contained in them.

The tally sheets bearing their signatures contained false recitals of material
facts which the petitioners had the duty to verify and confirm. These tally sheets
were attached as supporting documents to fake LAAs and subsequently became the
bases for the disbursement of public funds to the damage and prejudice of the
government. Indubitably, there exists not even an iota of doubt as to petitioners
guilt.
The essential elements of estafa through falsification of public documents are
present in the cases against petitioners, as follows:
1. Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that supplies
for road construction and maintenance were delivered by suppliers allegedly in
furtherance of alleged lawful projects when in fact said supplies were not delivered
and no actual asphalting or repair of road was implemented. In doing so, petitioners:
1.1. Were public officers or employees at the time of the commission of the
offenses;
1.2. Took advantage of their official position as highway engineers; and
1.3. Made untruthful statements in several narrations of fact.
2. Damage: The government disbursed PhP 146,000 in the case of Fernan, Jr.
and PhP 337,861.01 in the case of Torrevillas, as payments to various suppliers for
the delivery of non-existent supplies.
By way of defense, petitioners posit that the tally sheets and other documents could
in fact be traced to genuine LAAs that were in the custody of the NBI. Unfortunately,
these genuine LAAs were not introduced in evidence. It is an age-old axiom that
s/he who alleges something must prove it. Petitioners assertion that the documents
they signed were all genuine and duly covered by genuine LAAs was substantiated
only by their own self-serving and uncorroborated testimonies. We hesitate to give
much weight and credit to their bare testimonies in the face of clear, convincing,
overwhelming, and hard evidence adduced by the State.
If the genuine LAAs were vital to their defense, and they firmly believed that
the documents were indeed in the custody of the NBI, then petitioners could have
easily procured the compulsory process to compel the production of said
documents. However, petitioners miserably failed to avail of subpoena duces
tecum which the court a quocould have readily granted. The inability to produce
such important and exculpatory pieces of evidence proved disastrous to petitioners

cause. Their conviction was indeed supported by proof beyond reasonable doubt
which was not overturned by defense evidence.
Petitioners acted in conspiracy with one another
Petitioners vigorously claim error on the part of the lower court when it made
the finding that they were co-conspirators with the other parties accused despite
the dearth of evidence to amply demonstrate complicity.
We are not convinced by petitioners postulation.
Indeed, the burden of proving the allegation of conspiracy falls to the
shoulders of the prosecution. Considering, however, the difficulty in establishing the
existence of conspiracy, settled jurisprudence finds no need to prove it by direct
evidence. In People v. Pagalasan, the Court explicated why direct proof of prior
agreement is not necessary:
After all, secrecy and concealment are essential features of a
successful conspiracy. Conspiracies are clandestine in nature. It may be
inferred from the conduct of the accused before, during and after the
commission of the crime, showing that they had acted with a common
purpose and design. Conspiracy may be implied if it is proved that two
or more persons aimed their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined acts,
though apparently independent of each other, were in fact, connected
and cooperative, indicating a closeness of personal association and a
concurrence of sentiment. To hold an accused guilty as a co-principal
by reason of conspiracy, he must be shown to have performed an overt
act in pursuance or furtherance of the complicity. There must be
intentional participation in the transaction with a view to the
furtherance of the common design and purpose. [50]

In Estrada v. Sandiganbayan, we categorized two (2) structures of multiple

conspiracies, namely: (1) the so-called wheel or circle conspiracy, in which there is a
single person or group (the hub) dealing individually with two or more other persons
or groups (the spokes); and (2) the chain conspiracy, usually involving the
distribution of narcotics or other contraband, in which there is successive
communication and cooperation in much the same way as with legitimate business
operations between manufacturer and wholesaler, then wholesaler and retailer, and
then retailer and consumer.[51]
We find that the conspiracy in the instant cases resembles the wheel
conspiracy. The 36 disparate persons who constituted the massive conspiracy to

defraud the government were controlled by a single hub, namely: Rolando

Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget
Examiner), and Edgardo Cruz (Clerk II), who controlled the separate spokes of the
conspiracy. Petitioners were among the many spokes of the wheel.
We recall the painstaking efforts of the SB through Associate Justice Cipriano
A. Del Rosario, Chairperson of the Third Division, in elaborating the intricate web of
conspiracy among the accused, thus:
Mangubat enticed Preagido, Cruz and Sayson to join
him. All three agreed to help him carry out his plan. They typed
fake LAAs during Saturdays. Cruz and Sayson also took charge of
negotiating or selling fake LAAs to contractors at 26% of the gross
amount. Preagido manipulated the general ledger, journal vouchers
and general journal through negative entries to conceal the illegal
disbursements. In the initial report of COA auditors Victoria C. Quejada
and Ruth I. Paredes it was discovered that the doubtful allotments and
other anomalies escaped notice due to the following manipulations:
The letter-advices covering such allotments (LAA) were
not signed by the Finance Officer nor (sic) recorded in the books
of accounts. Disbursements made on the basis of these fake
LAAs were charged to the unliquidated obligations (Account 881-400), although the obligations being paid were not among
those certified to the unliquidated obligations (Account 8-81400) at the end of the preceding year. To conceal the
overcharges to authorized allotments, account 8-81-400 (sic)
and the excess of checks issued over authorized cash
disbursements ceiling, adjustments were prepared monthly
through journal vouchers to take up the negative debit to
Account 8-81-400 and a negative credit to the Treasury Checking
Account for Agencies Account 8-70-790. These journal vouchers
in effect cancelled the previous entry to record the
disbursements made on the basis of fake LAAs. Thus the
affected accounts (Accounts 8-81-400 and 8-70-790), as
appearing in the trial balance, would not show the
irregularity. The checks, however, were actually issued. [52]
The four formed the nucleus of the nefarious conspiracy. Other
government employees, tempted by the prospect of earning
big money, allowed their names to be used and signed
spurious documents.
xxxx
3. Cebu First Highway Engineering District Anomalies
Focusing our attention now on the anomalies committed in the
Cebu First District Engineering District, hereinafter referred to as the
Cebu First HED for brevity, the Court finds that the same pattern of

fraud employed in the other highway engineering districts in MPH

Region VII was followed. The Cebu First HED received from Region VII
thirty-four Letters of Advice of Allotment (LAAs) in the total sum of
P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of
Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for
the period January 1, 1977 to December 31, 1977. But apart from this,
the Cebu First HED appears to have also received for the same period
another set of eighty-four (84) LAAs amounting to P4,680,694.76 which
however, could not be traced to any Sub-Advice of Allotment (SAA) OR
MATCHED TO THE Advices of Cash Disbursement Ceiling (ACDCs)
received from the MPH and Regional Office. This is highly irregular and
not in consonance with accounting procedures.
It was also made to appear that the payments were made for
alleged prior years obligations and chargeable to Account 81-400,
obviously because, they were not properly funded.Furthermore, the list
of projects in Region VII for 1977 showed that Cebu first HED
completed rehabilitation and/or improvement of roads and bridges in
its districts from February to May, 1977, with expenditures amounting
to P613,812.00. On the other hand, the expenditures for barangay
roads in the same district in 1977 amounted to P140,692.00, and these
were all completed within the period from November to December,
1977. These completed projects were properly funded by legitimate
LAAs and CDCs in the total amount of only P754,504.00. However, an
additional amount of P3,839,810.74, was spent by the Cebu First HED
for maintenance of roads and bridges for the same year (1977) but the
same could not be traced to any authoritative document coming from
the MPH.
The following payments for materials purchased for the year
1977 were made to appear as payment for prior years obligation and
were paid out of fake LAAs:
Supplier

No. of Kind
of Measure
Vouch Materials ment
ers
Rufino Nuez
29
Item 310
4,640,275
mt
J.
delos 21
Item 108
22,290
Angeles
cu.m.
Iluminada
11
Item 108
8,325
Vega
cu.m.
Florencio
10
Item 108
7,800
Gacayan
cu.m.
Ismael Sabio, 6
Item 108
6,198
Jr.
cu.m.
FBS Marketing 3
Lumber
Cebu Hollow
2
Hollow

Amount
P1,374,135
.00
433,300.00
191,500.00
156,000.00
123,960.00
70,610.00
19,880.00

Blocks
Bienvenido
Presillas
T.R. Eustaquio
Ent.
Santrade
Mktg.
Pelagia Gomez
M & M Ent.
Freent Ind.

4
1
1
1
1
1

Blocks
Equip.
Rental
Office
Supplies
Johnson
Products
Item 108

29,580.00
7,461.90
8,392.90
2,000
cu.m.

Paints
Office
Supplies

40,000.00
49,736.20
590.20

Total

P2,505,14
7.00

The NBI also discovered that there were purchases of materials

in 1977 that were charged to current obligations but paid out of
spurious LAAs, to wit:
Supplier
Rufino Nuez

No. of Kind
of
Vouch Materials
ers
11
Item 310
Item 108

Juliana
delos 16
Angeles

Item 108
Item 111
Item 200

Iluminada
Vega
Florencio
Gacayan
Vicon Ent.

Item 108

Item 108

Steel
Frame
Item 108

Ismael Sabio, 5
Jr.
Jabcyl Mktg.
3

Measure
ment

Amount

162,549
m.t.
5,000
cu.m.
13,280
cu.m.
1,00 cu.m.
307 cu.m.
3,600
cu.m.
2,400.00
cu.m.

P529,475.0
0
P276,400.0
0
24,000.00
7,982.00
72,090.00
48,000.00
19,042.74

6,950
cu.m.

Bridge
Materials

139,000.00
128,764.80

Total

P1,339,66
3.74

Grand Total . P3,839,810.74

A total of 132 General Vouchers, emanating from fake LAAs and
ACDCs, were traced back to Rolando Mangubat, Regional Accountant of
Region VII and Adventor Fernandez, Regional Highway Engineer, also of
Region VII. Those LAAs and ACDCs became the vehicles in the

disbursement of funds amounting to P3,839,810.74, through the

vouchers purportedly issued for the purchase and delivery of the
aforementioned materials allegedly used for the maintenance and
repair of the national highways within the Cebu First HED. Despite the
enormous additional expenditure of P3,839,810.74, the roads and
bridges in the district, as found out by the NBI, did not show any
improvement (Exhibit II). As testified to by several barangay captains,
the road maintenance consisted merely of spreading anapog or
limestone on potholes of the national Highway.
Obviously, the vouchers for payments of alleged maintenance of
roads and bridges in the additional amount of P3,839,810.74 were
prepared for no other purpose than to siphon off the said amount from
the government coffer into the pockets of some officials and
employees of Region VII and the Cebu First HED, as well as the
suppliers and contractors who conspired and confederated with them.
[53]

After a close re-examination of the records, the Court finds no reason to

disturb the finding of the anti-graft court that petitioners are co-conspirators of the
other accused, headed by Chief Accountant Rolando Mangubat, who were similarly
convicted in practically all the 119 counts of estafa. Undisturbed is the rule that this
Court is not a trier of facts and in the absence of strong and compelling reasons or
justifications, it will accord finality to the findings of facts of the SB. The feeble
defense of petitioners that they were not aware of the ingenuous plan of the group
of accused Mangubat and the indispensable acts to defraud the government does
not merit any consideration. The State is not tasked to adduce direct proof of the
agreement by petitioners with the other accused, for such requirement, in many
cases, would border on near impossibility. The State needs to adduce proof only
when the accused committed acts that constitute a vital connection to the chain of
conspiracy or in furtherance of the objective of the conspiracy. In the case at bench,
the signing of the fake tally sheets and/or delivery receipts, reports of inspection,
and requests for supplies and materials by petitioners on separate occasions is vital
to the success of the Mangubat Group in siphoning off government funds. Without
such fabricated documents, the general vouchers covering the supply of materials
cannot be properly accomplished and submitted to the disbursing officer for the
preparation of checks.
State witness Ruth Paredes, Supervising COA Auditor, elaborated on the
procedure regarding the award of the contract more specifically to the payment of
the contractor or supplier. Once the Request for Supplies and Equipment is
approved by the Regional Office, the Request for Obligation of Allotment (ROA) or
the request for funds is signed by the District Engineer pursuant to the approved
plans and budget and signed by the district accountant as to availability of funds.

The district office will advertise the invitation to bid and award the contract to
the lowest bidder. The Purchase Order (PO) is prepared and addressed to the
winning bidder.Upon delivery of the supplies and materials, the supplier bills the
district office for payment. Consequently, the requisitioning officer will prepare the
general voucher which must be accompanied by the following documents:
a.
b.
c.
d.
e.

The ROA;
The PO;
The abstract of Bid together with the Bid quotations;
The delivery receipts together with the tally sheets; and
The tax clearance and tax certificate of the supplier.

After the preparation and submission of the general voucher and the
supporting documents, the disbursing officer shall prepare and draw a check based
on said voucher.The check is countersigned by an officer of the district office and/or
the COA Regional Director based on the amount of the check.
Thus, it is clear that without the tally sheets and delivery receipts, the
general voucher cannot be prepared and completed. Without the general voucher,
the check for the payment of the supply cannot be made and issued to the
supplier. Without the check payment, the defraudation cannot be committed and
successfully consummated. Thus, petitioners acts in signing the false tally sheets
and/or delivery receipts are indispensable to the consummation of the crime of
estafa thru falsification of public documents.Surely, there were ghost or false
deliveries of supplies and materials as convincingly shown by the testimonies of the
barangay captains, officials, and residents of the areas where the materials were
allegedly used. More importantly, if there were actual deliveries of materials made,
then there would be no need to fake the LAAs because the suppliers will have to be
paid the cost of said materials plus a reasonable profit. As a result, there is nothing
or not much to share with the more than 30 or so co-conspirators, for the suppliers
would not be too dim-witted to part with even their cost in buying the materials
they allegedly supplied. Moreover, the fake delivery receipts and tally sheets signed
by petitioners were linked to the general vouchers upon which check payments
were made to the suppliers who were found guilty of participating in the fraud. With
respect to petitioner Fernan, Jr., he signed tally sheets on the ghost deliveries of
Juliana de los Angeles and Ismael Sabio, Jr. On the part of petitioner Torrevillas, he
signed false tally sheets and delivery receipts on supplies allegedly delivered by
Rufino V. Nuez, Juliana de los Angeles, Ismael Sabio, Jr., and Manuel
Mascardo. Lastly, the checks issued to these suppliers based on general vouchers
supported by the false tally sheets and general vouchers signed by petitioners

cannot be traced to any genuine LAAs, resulting in the inescapable conclusion that
these LAAs were unauthorized; hence, fake or fabricated. These are undisputed telltale signs of the complicity by petitioners with the Mangubat syndicate.
In People v. Mangubat, the court a quo elucidated the conspiracy in
the Cebu highway scam in a trenchant manner:
Where the acts of each of the accused constitute an essential
link in a chain and the desistance of even one of them would prevent
the chain from being completed, then no conspiracy could result as its
consummation would then be impossible or aborted. But when each
and everyone of the accused in the instant cases performed their
assigned tasks and roles with martinet-like precision and accuracy, by
individually performing essential overt acts, so much so that the
common objective is attained, which is to secure the illegal release of
public funds under the guise of fake or simulated public documents,
then each and everyone of said accused are equally liable as coprincipals under the well-established and universally-accepted principle
that, once a conspiracy is directly or impliedly proven, the act of one is
the act of all and such liability exists notwithstanding no-participation
in every detail in the execution of the offense. [54]

In sum, the required quantum of proof has been adduced by the State on the
conspiracy among the accused including petitioners. The conviction of petitioners
must perforce be sustained.
WHEREFORE, we DENY the petition and AFFIRM the December 4, 1997
Decision of the SB in the consolidated criminal cases subject of this petition.
No costs.
SO ORDERED.
SHARICA MARI L. GO-TAN
Petitioner,

G.R. No. 168852

Present:

- versus -

SPOUSES PERFECTO C. TAN

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

and JUANITA L. TAN,

Promulgated:
Respondents.*
September 30, 2008
x----------------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Resolution[1] dated March 7, 2005 of the Regional Trial Court (RTC), Branch
94,Quezon City in Civil Case No. Q-05-54536 and the RTC Resolution[2] dated July 11,
2005 which denied petitioner's Verified Motion for Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were
married.[3] Out of this union, two female children were born, Kyra Danielle[4] and Kristen
Denise.[5]On January 12, 2005, barely six years into the marriage, petitioner filed a Petition
with Prayer for the Issuance of a Temporary Protective Order (TPO) [6] against Steven and her
parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC. She
alleged that Steven, in conspiracy with respondents, were causing verbal, psychological and
economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i)
[7]
of Republic Act (R.A.) No. 9262,[8] otherwise known as the Anti-Violence Against Women
and Their Children Act of 2004.
On January 25, 2005, the RTC issued an Order/Notice[9] granting petitioner's prayer for a
TPO.
On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance
of Permanent Protection Order Ad Cautelam and Comment on the Petition,[10] contending
that the RTC lacked jurisdiction over their persons since, as parents-in-law of the petitioner,
they were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on Opposition[11] to respondents' Motion
to Dismiss arguing that respondents were covered by R.A. No. 9262 under a liberal
interpretation thereof aimed at promoting the protection and safety of victims of violence.
On March 7, 2005, the RTC issued a Resolution[12] dismissing the case as to respondents on
the ground that, being the parents-in-law of the petitioner, they were not included/covered
as respondents under R.A. No. 9262 under the well-known rule of
law expressio unius est exclusio alterius.[13]

On March 16, 2005, petitioner filed her Verified Motion for Reconsideration [14] contending
that the doctrine of necessary implication should be applied in the broader interests of
substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified Motion for
Reconsideration[15] arguing that petitioner's liberal construction unduly broadened the
provisions of R.A. No. 9262 since the relationship between the offender and the alleged
victim was an essential condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution[16] denying petitioner's
Verified Motion for Reconsideration. The RTC reasoned that to include respondents under
the coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the law.
Hence, the present petition on a pure question of law, to wit:
WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTSIN-LAW OF SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE
OF A PROTECTIVE ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO. 9262,
OTHERWISE KNOWN AS THE ANTI-VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN ACT OF 2004.[17]
Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of
Section 47 of R.A. No. 9262 which explicitly provides for the suppletory application of the
Revised Penal Code (RPC) and, accordingly, the provision on conspiracy under Article 8 of
the RPC can be suppletorily applied to R.A. No. 9262; that Steven and respondents had
community of design and purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically; that respondents
should be included as indispensable or necessary parties for complete resolution of the
case.
On the other hand, respondents submit that they are not covered by R.A. No. 9262 since
Section 3 thereof explicitly provides that the offender should be related to the victim only by
marriage, a former marriage, or a dating or sexual relationship; that allegations on the
conspiracy of respondents require a factual determination which cannot be done by this
Court in a petition for review; that respondents cannot be characterized as indispensable or
necessary parties, since their presence in the case is not only unnecessary but altogether
illegal, considering the non-inclusion of in-laws as offenders under Section 3 of R.A. No.
9262.
The Court rules in favor of the petitioner.

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as any act
or a series of acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within
or without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty.
While the said provision provides that the offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the
RPC, thus:
SEC. 47. Suppletory Application. - For purposes of this Act,
the Revised
Penal
Code and
other
applicable laws, shall
have suppletory application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the
contrary. (Emphasis supplied)
Hence, legal principles developed from the Penal Code may be applied in a supplementary
capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special
law is silent on a particular matter.
Thus, in People v. Moreno,[18] the Court applied suppletorily the provision on subsidiary
penalty under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known
as the Revised Motor Vehicle Law, noting that the special law did not contain any provision
that the defendant could be sentenced with subsidiary imprisonment in case of insolvency.
In People v. Li Wai Cheung,[19] the Court applied suppletorily the rules on the service of
sentences provided in Article 70 of the RPC in favor of the accused who was found guilty of
multiple violations of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972,
considering the lack of similar rules under the special law.
In People v. Chowdury,[20] the Court applied suppletorily Articles 17, 18 and 19 of the RPC to
define the words principal, accomplices and accessories under R.A. No. 8042, otherwise
known as the Migrant Workers and Overseas Filipinos Act of 1995, because said words were

not defined therein, although the special law referred to the same terms in enumerating the
persons liable for the crime of illegal recruitment.
In Yu v. People,[21] the Court applied suppletorily the provisions on subsidiary imprisonment
under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as
the BouncingChecks Law, noting the absence of an express provision on subsidiary
imprisonment in said special law.
Most recently, in Ladonga v. People,[22] the Court applied suppletorily the principle of
conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision
therein.
With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be
applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the
RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their
nature, are necessarily applicable, may be applied suppletorily.
Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or
action in concert to achieve a criminal design is shown, the act of one is the act of all the
conspirators, and the precise extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.[23]
It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of
violence against women and their children may be committed by an offender through
another, thus:
SEC. 5. Acts of Violence Against Women and Their Children. - The crime of
violence against women and their children is committed through any of the
following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or
through another, that alarms or causes substantial emotional or
psychological distress to the woman or her child. This shall include, but not be
limited to, the following acts:
(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or
her child;
(3) Entering or remaining in the dwelling or on the property of the woman or
her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to

animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence; x x x. (Emphasis
supplied)
In addition, the protection order that may be issued for the purpose
preventing further acts of violence against the woman or her child may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. x x x The protection orders that may be issued
under this Act shall include any, some or all of the following reliefs:

of

(a) Prohibition of the respondent from threatening to commit or committing,

personally or through another, any of the acts mentioned in Section 5 of
this Act;
(b) Prohibition of the respondent from harassing, annoying, telephoning,
contacting or otherwise communicating with the petitioner, directly
or indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be liberally construed to promote the
protection and safety of victims of violence against women and their children.
(Emphasis supplied)
It bears mention that the intent of the statute is the law [24] and that this intent must be
effectuated by the courts. In the present case, the express language of R.A. No. 9262
reflects the intent of the legislature for liberal construction as will best ensure the attainment
of the object of the law according to its true intent, meaning and spirit - the protection and
safety of victims of violence against women and children.
Thus,
contrary
to
the RTC's pronouncement,
the
maxim "expressio unios est exclusio alterius finds no application here. It must be
remembered that this maxim is only an ancillary rule of statutory construction. It is not of
universal application. Neither is it conclusive. It should be applied only as a means of
discovering legislative intent which is not otherwise manifest and should not be permitted to
defeat the plainly indicated purpose of the legislature.[25]
The Court notes that petitioner unnecessarily argues at great length on the attendance of
circumstances evidencing the conspiracy or connivance of Steven and respondents to cause
verbal, psychological and economic abuses upon her. However, conspiracy is
an evidentiary matter which should be threshed out in a full-blown trial on the merits and
cannot be determined in the present petition since this Court is not a trier of facts.[26] It is
thus premature for petitioner to argue evidentiary matters since this controversy is
centered only on the determination of whether respondents may be included in a petition

under R.A. No. 9262. The presence or absence of conspiracy can be best passed upon after
a trial on the merits.
Considering the Court's ruling that the principle of conspiracy may be
applied suppletorily to R.A. No. 9262, the Court will no longer delve on whether respondents
may be considered indispensable or necessary parties. To do so would be an exercise in
superfluity.
WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7,
2005 and July 11, 2005 of the Regional Trial Court, Branch 94, Quezon City in Civil Case No.
Q-05-54536 are hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal
of the petition against respondents is concerned.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FEDERICO ABRAZALDO
@ PEDING, accused-appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision [1] dated November 15, 1995 of the Regional
Trial Court, Branch 44, Dagupan City in Criminal Case No. 95-01052-D, finding
accused-appellant Federico Abrazaldo guilty beyond reasonable doubt of the crime
of murder and sentencing him to suffer the supreme penalty of death and to
indemnify the heirs of the deceased Delfin Guban the amount of P50,000.00 as
indemnity and P27,000.00 as actual damages, plus costs.
In the Information dated August 3, 1995 filed with the trial court, accusedappellant was charged with the crime of murder committed as follows:
That on or about July 15, 1995 in the evening at barangay Pogo, Municipality of
Mangaldan, province of Pangasinan, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused armed with a bolo, with intent to kill,
treachery and evident premeditation, did, then and there wilfully, unlawfully and
feloniously stabbed DELFIN GUBAN Y GUINTO inflicting upon him a stab wound
which caused his death to the damage and prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code, as amended by R.A. 7659. [2]

Upon arraignment, accused-appellant entered a plea of not guilty. [3] Forthwith,

trial on the merits ensued. The prosecution presented as its witnesses Rosendo
Fajardo, SPO1 Ramie Petrache, SP02 Roberto Fernandez, Dr. Alberto Gonzales and
Gregorio Guban. Accused-appellant and his sister, Marites Abrazaldo, took the
witness stand for the defense.
The facts of the case as presented by the prosecution witnesses are as follows:
On July 15, 1995, at about 10:00 oclock in the evening, at Barangay Pogo,
Mangaldan, Pangasinan, accused-appellant, then intoxicated, [4] attempted to hack
his uncle, Bernabe Quinto, but instead, hit the post of the latters house. [5] The
incident was reported to the barangay authorities, prompting Delfin Guban,
Rosendo Fajardo, Sr., Alejandro Loceste (all are members of the barangay tanod),
and Cesar Manaois to rush to the scene. Upon reaching the place, Fajardo heard
accused-appellant shouting at his uncle, I will kill you! Thereafter, he saw accusedappellant coming out of Quintos house with blood oozing from his forehead. [6] At
that time, the place was well lighted by a flourescent lamp. Guban tried to assist
accused-appellant. However, for unknown reason, accused-apellant and Guban
shouted at each other and grappled face to face. Accused-appellant pulled out his
knife, stabbed Guban at the abdomen [7] and ran away. When Fajardo got hold of
Guban, the latter said, I was stabbed by Feding Abrazaldo.[8] Fajardo, together with
the other barangay tanod, rushed Guban to the Gov. Teofilo Sison Memorial Hospital
where he was operated by Dr. Alberto Gonzales, a Medical Officer III. But after a few
hours, Guban died. Dr. Gonzales issued a Medico-Legal Certificate stating that the
cause of death was stab wound, epigastrium, massive hemothorax right. [9]
Gregorio Guban, the victims father, testified that he was the one who spent for
his sons funeral expenses. For the burial, he spent P10,000.00;[10] for the 10-day
funeral wake,P10,000.00;[11] for the 9th day novena, P3,000.00;[12] and for the
hospitalization, P4,000.00,[13] or a total of P27,000.00.
On July 16, 1995, Fajardo learned that the knife used by accused-appellant in
stabbing Guban was in Salay, Pangasinan. Together with SPO2 Roberto Fernandez,
Fajardo went to the house of Francisca Velasquez, accused-appellants aunt, and
recovered the knife. [14]
Invoking self-defense, accused-appellant presented a different version. On July
15, 1995 at about 10:00 in the evening, he was making fans inside his house at
Barangay Pogo, Mangaldan, Pangasinan. [15] His wife Lydia and children Mary Jane,
Melvin and Christelle were with him. Suddenly, Delfin Guban, who was then drunk,
went to his house and shouted at him, saying, Get out Feding I will kill you! [16] When
accused-appellant went out, Guban hit him with an iron pipe. Accused-appellant ran
towards his house and got his two children. Guban, now armed with a knife,
followed him and they grappled for its possession. In the course thereof, both fell

down.[17] It was then that the knife held by Guban accidentally hit him. Accusedappellant did not know which part of Gubans body was hit. Thereafter, he got the
knife in order to surrender it to the police. [18]
Marites Abrazaldo testified that accused-appellant is his brother. [19] On July 15,
1992, at about 6:00 in the evening, accused-appellant, Guban and Juan Quinto were
engaged in a drinking spree.[20] At about 10:00 oclock in that evening, accusedappellant caused trouble at the house of his uncle, Bernabe Quinto. [21] He attempted
to hack his uncle, but instead hit the post of the latters house. [22] While running
away from his uncles place, he bumped an artesian well, causing a wound on his
forehead.[23] Afterwards, accused-appellant killed Guban. [24]
On November 15, 1995, the trial court rendered a Decision, the decretal portion
of which reads:
WHEREFORE, premises considered, the Court finds accused Federico Abrazaldo @
Peding guilty beyond reasonable doubt of the crime of Murder under Article 248 of
the Revised Penal Code, as amended by Republic 7659, and in view of the presence
of the aggravating circumstances that the crime was committed while the public
authorities were engaged in the discharge of their duties and that the crime was
committed at nighttime, which aggravating circumstances are not offset by any
mitigating circumstance, accused Federico Abrazaldo is hereby sentenced to suffer
the penalty of Death.
Accused Federico Abrazaldo is ordered to pay an indemnity of P50,000.00 to the
heirs of the deceased Delfin Guban. Accused is also ordered to pay the heirs of the
deceased Delfin Guban the total sum ofP27,000.00 as actual expenses, plus costs.
SO ORDERED.
In appreciating treachery and the aggravating circumstances under paragraphs (5)
and (6) of Article 14,[25] Revised Penal Code, the trial court held:
We now come to the issue of whether or not evident premeditation was present. The
prosecutions evidence is wanting on this point. However, there is no question
that there was treachery as the accused embraced Delfin Guban and
suddenly stabbed him with a knife. The victim was not in a position to
defend himself at the time of the attack. The deceased was stabbed
without any warning. He was given no chance to defend himself.
Treachery, therefore, qualifies the killing of the victim and raises it to the
category of murder.
The prosecution has established thru the testimony of Gregorio Guban that at the
time of the incident on July 15, 1995, the members of the barangay tanod, namely:

Rosendo Fajardo, Sr., Delfin Guban and Alfredo Laceste were performing their duties
as members of the barangay tanod. (See p. 6 tsn September 18, 1995). This is an
aggravating circumstance under paragraph 5, Article 14 of the Revised
Penal Code. The members of the barangay tanod who are public
authorities were engaged in the discharge of their duties at the time of
the stabbing incident. Besides, the incident was committed during nighttime,
that was 10:00 in the evening. Accused took advantage of the darkness of the night
for the successful consummation of his plan to kill Delfin Guban.
Accused-appellant, in his Appellants Brief, ascribes to the trial court the
following errors:
I
THE HONORABLE TRIAL COURT ERRED IN NOT APPRECIATING THE CLAIM OF SELFDEFENSE BY THE ACCUSED TAKING INTO CONSIDERATION THE CIRCUMSTANCE OF
THE CASE.
II
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE RECOVERY OF THE
ALLEGED WEAPON USED IN STABBING VICTIM AT THE HOUSE OF THE AUNT OF
ACCUSED BOLSTERED THE CASE AGAINST HIM DESPITE LACK OF SUFFICIENT
EVIDENCE TO PROVE ITS VERACITY.
III
THE HONORABLE TRIAL COURT ERRED IN APPRECIATING THE TESTIMONY
EXTRACTED BY THE PROSECUTION FROM DEFENSE WITNESS MARITESS ABRAZALDO
WHICH HAD NO SUFFICIENT BASIS AT ALL.
IV
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT TREACHERY ATTENDED THE
STABBING OF THE VICTIM WITHOUT SUFFICIENT BASIS TO PROVE THE SAME.
V
THE HONORABLE TRIAL COURT ERRED IN ASSUMING THAT ACCUSED-APPELLANT
TOOK ADVANTAGE OF NIGHTTIME IN CONSUMING THE ACT.
VI

THE HONORABLE TRIAL COURT ERRED IN FINDING THAT THE CHARGE AGAINST
ACCUSED-APPELLANT IS AGGRAVATED BY THE FACT THAT THE VICTIM WAS IN THE
PERFORMANCE OF HIS DUTY.
The Solicitor General, in the Appellees Brief, asserts that in pleading selfdefense, accused-appellant admitted he killed the victim and, therefore, he must
rely on the strength of his own evidence and not on the weakness of that of the
prosecution. Moreover, accused-appellants version of the incident is completely
contradicted by the testimony of his sister. Also, the aggravating circumstance,
under par. (5) of Article 14, Revised Penal Code, was clearly established because
during the incident, Guban, as the Assistant Chief Tanod, was on duty and engaged
in the maintenance of peace and order.
The Solicitor General though agrees with accused-appellant that there was no
treachery. Evidence shows that he and Guban shouted at each other and struggled
face to face before the stabbing incident. Thus, the assault was not
sudden. Likewise, the Solicitor General is convinced that accused-appellant did not
purposely and deliberately seek nighttime to perpetrate the commission of the
crime.
Consistent is the jurisprudence that where self-defense is invoked, it is
incumbent upon the accused to prove by clear and convincing evidence that (1) he
is not the unlawful aggressor;(2) there was lack of sufficient provocation on his part;
and (3) he employed reasonable means to prevent and repel an aggression. On
appeal, the burden becomes even more difficult as the accused must show that the
court below committed reversible error in appreciating the evidence. [26]
Accused-appellant miserably failed to discharge the burden. To show that he
was not the unlawful aggressor, he testified that it was Guban who went to his
house, threatened to kill him, [27] hit him with an iron pipe,[28] and attacked him with a
knife.[29] We quote accused-appellants testimony, thus:
ATTY. CAMPOS:
xxxxxx
Q You said a while ago that on July 15, 1995 at about 10:00 in the evening
you were in your house engaging in fan making, do you know of any
unusual incident that happened during that time?
A Delfin Guban came to my house and he was under the influence
of liquor and he shouted at me, sir.
Q And what did Delfin Guban shout at you?

A He said, Get out Feding I will kill you.

Q After this Delfin Guban shouted at you, what happened next?
A When I went out of the house, I was already there infront of the house
then he hit me, sir.
Q You said Delfin Guban hit you, what instrument did he use in
hitting you?
A He hit me with a pipe , sir.
xxxxxx
Q After Delfin Guban hit you with that pipe, what happened next?
A I ran towards my house inside, then got my two children while Delfin
Guban followed me inside my house, sir.
Q When Delfin Guban followed you inside your house, what happened
again?
A He was holding a knife and we grappled and during that time both of us
fell down, sir.
Q When you grappled with Delfin Guban, who was holding a knife,
what again happened?
A We grappled for the possession of the knife then we fell down
and the knife he was then holding pointed towards him and hit
him. x x x.[30] (Emphasis supplied)
The foregoing testimony bears not only the vice of falsity but also isolation. It is
uncorroborated and even opposed by Marites, accused-appellants own sister and
lone witness. Contrary to his testimony that Guban hit him on his forehead with a
pipe, Marites declared that accused-appellant sustained the wound on his forehead
when he accidentally bumped an artesian well. Instead of fortifying her brothers
defense, she virtually affirmed the prosecutions story by testifying that he created
trouble in their compound, attempted to kill his uncle Bernabe Quinto and killed
Guban. [31]
Ingrained in our jurisprudence is the doctrine that the plea of self-defense
cannot be justifiably entertained where it is not only uncorroborated by any
separate competent evidence but in itself is extremely doubtful. [32] In the present

case, accused-appellants tendency to invoke a melange of defenses renders his

testimony dubious. While he admitted the commission of the crime in order to
preserve his own life, he maintained that Guban accidentally stabbed himself. This
shows ambivalence. Accident presupposes lack of intention to stab the victim, while
self-defense presumes voluntariness, induced only by necessity. [33] Indeed, if there is
truth to either of his claim, his natural course of action was to assist the victim, or at
the very least, report the incident to the authorities. Certainly, the justifying
circumstance of self-defense[34] or the exempting circumstance of accident cannot
be appreciated considering accused-appellants flight from the crime scene and his
failure to inform the authorities of the incident. Furthermore, that he did not
surrender the knife to the authorities is inconsistent with a clean conscience and,
instead, indicates his culpability of the crime charged. [35]
In a last-ditch effort to exculpate himself, accused-appellant assails Fajardos
testimony as tainted with inconsistencies and is contrary to the normal course.
Accused-appellant cannot invoke these alleged weaknesses in view of the principle
that one who pleads self-defense must rely on the strength of his own evidence and
not on the weakness of that of the prosecution.Even if the prosecutions evidence is
weak, it is still credible considering accused-appellants admission that he killed the
victim. It bears emphasis that Fajardos testimony clearly points to him as the
culprit. Not only did he pull out his knife, stabbed Guban [36] and ran away.[37] Fajardo
also reiterated what Guban uttered to him, i.e., I was stabbed by Feding Abrazaldo.
[38]

As Guban had succumbed to death and his opportunity to divulge the truth on
his demise had been lost, we cannot but cast a quizzical glance on accusedappellants uncorroborated testimony. More so, when such testimony was
contradicted by his own witness who happened to be his sister. Standing alone
against the testimonies of the prosecution witnesses, accused-appellants own
account of the killing must necessarily fail. We hold that his guilt has been
established to a degree of moral certainty. The trial court did not err in relying on
the testimony of Fajardo, an eyewitness. Time and again, we have said that we will
not interfere with the judgment of the trial court in determining the credibility of
witnesses unless there appears on record some facts or circumstances of weight
and influence which have been overlooked or the significance of which has been
misinterpreted. This is so because the trial court has the advantage of observing the
witnesses through the different indicators of truthfulness or falsehood. [39]
However, we find that the trial court erred in concluding that treachery attended
the commission of the crime. 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 insure its execution, without risk to
himself arising from defense which the offended party might make. Treachery
cannot be presumed, it must be proved by clear and convincing evidence or as

conclusively as the killing itself. Fajardo testified that accused-appellant and Guban
were grappling with each other and that prior to the stabbing, they were shouting at
each other. In this scenario, it cannot be said that Guban was unprepared to put up
a defense, such as hitting accused-appellant, or that the latters assault was sudden.
We quote in verbatim the testimony of Fajardo, thus:
ATTY. CAMPOS:
Q They were not then fighting?
A They were grappling with each other and then he stabbed Delfin
Guban.
xxxxxx
Q In fact, they were shouting each other?
A Yes, sir.
Q What were they shouting against another?
A I could no longer understand because it was already night.
Q But they were shouting loudly, am I correct?
A Yes and there were many people.[40] (Emphasis supplied)
The trial court likewise erred in appreciating the aggravating circumstance of
nocturnity or nighttime. For nocturnity to be properly appreciated, it must be shown
that it facilitated the commission of the crime and that it was purposely sought for
by the offender. By and itself, nighttime is not an aggravating circumstance. [41] In
the instant case, no sufficient evidence was offered to prove that accused-appellant
deliberately sought the cover of darkness to accomplish his criminal design. In fact,
Fajardo testified that there was a fluorescent lamp sufficiently illuminating the scene
of the crime.[42]
Neither can we sustain the trial courts finding that the aggravating
circumstance under paragraph (5) of Article 14, Revised Penal Code, i.e., that the
crime was committed in a place where public authorities were engaged in the
discharge of their duties, is present. It must be pointed out that this aggravating
circumstance is based on the greater perversity of the offender, as shown by the
place of the commission of the crime, which must be respected. [43] In this case, the
crime was committed at the compound of the accused-appellant where no public
function was being held. The arrival of the barangay authorities was precisely due to

the trouble that had commenced prior to the stabbing incident. Clearly, the said
aggravating circumstance cannot be considered. Moreover, under the present Rules,
[44]
aggravating circumstances must be alleged, otherwise, they cannot be
appreciated. Being favorable to the accused, this new procedure may be given
retroactive effect.[45] Except treachery, the other aggravating circumstances
mentioned have not been alleged in the Information.
In the absence of any circumstance that would qualify the crime at bar to
murder, accused-appellant can only be held liable for homicide defined and
penalized under Article 249 of the Revised Penal Code. The prescribed penalty
is reclusion temporal. Considering that there was neither mitigating nor aggravating
circumstance that attended the commission of the crime, the penalty has to be
imposed in its medium period, ranging from 14 years, 8 months and 1 day to 17
years and 4 months. Applying the provisions of the Indeterminate Sentence Law, he
should be sentenced to an indeterminate penalty, the minimum of which is within
the range of prision mayor, or 6 years and 1 day to 12 years. The maximum thereof
is within the range ofreclusion temporal in its medium period, which is 14 years, 8
months and 1 day to 17 years and 4 months. [46]
On the trial courts award of actual damages in the amount of P27,000.00, we
find the same to be unsubstantiated. To be entitled to such damages, it is necessary
to prove the actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and on the best evidence obtainable to the injured party. [47] In
the case at bar, the prosecution failed to present any receipt to prove the claim for
expenses incurred.[48] Gregorio Guban, the father of the victim, who shouldered the
expenses for the wake and burial failed to submit receipts to show the amount of
such expenses.[49] However, as the heirs of Guban did actually incur funeral
expenses, we are justified in awarding P25,000.00, not for purposes of
indemnification, but by way of temperate damages. [50]
Thus, we now hold that where the amount of the actual damages cannot be
determined because of the absence of receipts to prove the same, but it is shown
that the heirs are entitled thereto, temperate damages may be awarded. Such
temperate damages, taking into account the current jurisprudence fixing the
indemnity for death at P 50,000.00, should be one-half thereof, or P25,000.00. This
makes temperate damages equal to the award of exemplary damages, which is
likewise fixed at P25,000.00 in cases where its award is justified.
WHEREFORE, the assailed judgment in Criminal Case No. 95-01052-D is
AFFIRMED with MODIFICATION. Accused-appellant Federico Abrazaldo is declared
guilty beyond reasonable doubt of homicide defined and penalized under Article 249
of the Revised Penal Code and is sentenced to suffer an indeterminate penalty of six
(6) years and 1 day of prision mayor, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal in its medium period, as

maximum. He is ordered to pay the heirs of the late Delfin Guban P50,000.00 as
indemnity and P25,000.00 as temperate damages.
Costs de oficio.
SO ORDERED.
G.R. No. 189405

November 19, 2014

SHERWIN
DELA
CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and CARLOS ALBERTO L. GONZALES, in behalf
of his deceased brother, JEFFREY WERNHER L. GONZALES, Respondents.
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking
to annul and set aside the May 7, 2009 Decision 1 of the Court of Appeals, in CA-G.R.
CV No. 89257, finding petitioner Sherwin Dela Cruz guilty beyond reasonable doubt
of the crime of Homicide, and its August 19, 2009 Resolution 2 denying his motion for
reconsideration.
Petitioner was charged with the crime of Homicide in an Information 3 dated March 2,
2005, which alleged:
That on or about the 1st day of January 2005, in the City of Makati, Philippines and
within the jurisdiction of this Honorable Court, the abovenamed accused, with intent
to kill and with the use of an unlicensed firearm, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot one JEFFREY WERNHER
GONZALES Y LIM on the head, thereby inflicting upon the latter serious and moral
gunshot wound which directly caused his death.
CONTRARY TO LAW.4
According to the prosecution, on January 1, 2005, at around 2:30 in the afternoon,
petitioner went to the office of Sykes Asia Inc. located at the 25th Floor of
Robinsons Summit Center,Ayala Avenue, Makati City. When petitioner was already
inside the building, he went to the work station of the deceased victim, Jeffrey
Wernher L. Gonzales (Jeffrey), who, by the configuration of the eye witness
Antonette Managbanags sketch, was seated fronting his computer terminal, with
his back towards the aisle. As petitioner approached Jeffrey from the back,
petitioner was already holding a gun pointed at the back of Jeffreys head. At the
last second, Jeffrey managed to deflect the hand of petitioner holding the gun, and
a short struggle for the possession of the gun ensued thereafter. Petitioner won the
struggle and remained in possession of the said gun. Petitioner then pointed the
gun at Jeffreys face, pulled the trigger four (4) times, the fourth shot finally

discharging the bullet that hit Jeffrey in the forehead, eventually killing him. Finally,
after shooting Jeffrey, petitioner fled the office.
The defense recounted a different version of the facts.
Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more or
less, petitioner, together with his children, went to Sykes Asia, the workplace of his
wife, Darlene Dela Cruz (Darlene), located at the 25th Floor of Robinsons Summit
Building in Makati City, to fetch the latter so that their family could spend time and
celebrate together the New Years Day. Before entering the Robinsons Summit
Building, petitioner underwent the regular security check-up/procedures. He was
frisked by the guards-on-duty manning the main entrance of said building and no
firearm was found in his possession. He registered his name at the security logbook
and surrendered a valid I.D.
Upon reaching the 25th Floor of the same building, a security guard manning the
entrance once again frisked petitioner and, likewise, found no gun in his possession;
hence, he was allowed to enter the premises of Sykes Asia. The security guard also
pointed to him the direction towards his wifes table.
However, as Darlene was then not on her table, petitioner approached a certain
man and asked the latter as to the possible whereabouts of Darlene. The person
whom petitioner had talked towas the deceased-victim, Jeffrey. After casually
introducing himself as the husband of Darlene, Jeffrey curtly told him, "Bakit mo
hinahanap si Darlene?"to which he answered, "Nagpapasundo kasi sa akin."The
response given by Jeffrey shocked and appalled petitioner: "Ayaw na nga ng asawa
mo sayo sinusundo mo pa!"
Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from Jeffrey
who he was. But Jeffrey suddenly cursed petitioner. Then, Jeffrey suddenly picked up
something in his chair which happened to be a gun and pointed the same at
petitioners face followed by a clicking sound. The gun, however, did not fire.
Seeing imminent danger to his life,petitioner grappled with Jeffrey for the
possession of the gun.While grappling, the gunclicked for two (2) to three (3) more
times. Again, the gun did not fire.
Petitioner was able to wrest away the gun from Jeffrey and tried to run away to
avoid any further confrontation with the latter.However, Jeffrey immediately blocked
petitioners path and shouted, "Guard! Guard!" Immediately then, Jeffrey took hold
ofa big fire extinguisher, aimed and was about to smash the same on petitioners
head.
Acting instinctively, petitioner parried the attack while still holding the gun. While in
the act of parrying, the gun accidentally fired due to the reasonable force and
contact that his parrying hand had made with the fire extinguisher and the single
bullet discharged hit the forehead of Jeffrey, which caused the latter to fall on the
floor and die.

Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded
towards the elevator. On his way to the elevator, he heard Darlene shout, "Sherwin
anong nangyari?", but he was not able to answer.
After said incident, Darlene abandoned petitioner and brought with her their two (2)
young children. Petitioner later learned that Darlene and Jeffrey had an illicit
relationship when he received a copy of the blog of Darlene, dated January 30,
2005, sent by his friend.
During his arraignment, on August 22, 2005, petitioner, with the assistance of
counsel, pleaded "Not Guilty" to the charge. Thereafter, pretrial conference was
conducted on even date and trial on the merits ensued thereafter.
During the trial of the case, the prosecution presented the oral testimonies of Marie
Antonette Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez) and Carlos
Alberto Lim Gonzales (Gonzales), respectively. The prosecution likewise formally
offered several pieces of documentary evidence to support its claim.
For its part, the defense presented aswitnesses, petitioner himself; his brother,
Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias Elbanvuena (Elbanvuena) and
Managbanag, who was recalled to the witness stand as witness for the defense.
On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147,
rendered a Decision5 finding petitioner guilty beyond reasonable doubt of the crime
of Homicide, as defined and penalized under Article 249 of the Revised Penal Code
(RPC), the fallo thereof reads:
WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz y
Gloria Guilty beyond reasonable doubt of the crime of Homicide as defined and
penalized under Art. 249 of the Revised Penal Code, and sentencing him to suffer
the indeterminate penalty of Eight (8) years and One (1) day of prision mayor
medium as Minimum to Fourteen (14) years eight (8) months and one (1) day of
reclusion temporal medium as Maximum; to indemnify the Heirs of Jeffrey Wernher
Gonzales y Lim in the amount of P50,000.00 plus moral damages in the amount
of P1 Million, and to pay the costs.
SO ORDERED.6
On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent,
through the private prosecutor, filed a Notice of Appeal on April 11, 2007 insofar as
the sentence rendered against petitioner is concerned and the civil damages
awarded.
After the denial of their motion for reconsideration, petitioner elevated the case to
the Court of Appeals (CA). However, the latter denied their appeal and affirmed the
RTC decision with modification on the civil liability of petitioner. The decretal portion
of the Decision7 reads: WHEREFORE, we hereby AFFIRM the Decision of the Regional
Trial Court of Makati, Branch 147 dated 26 February 2007 finding accused-appellant

Sherwin Dela Cruz y Gloria GUILTY beyond reasonable doubt of the crime
ofHomicide with the following MODIFICATIONS:
(1) to pay the heirs of the victim the amount of P50,000.00 as civil indemnity;
(2) the amount of P50,000.00 as moral damages;
(3) the amount of P25,000.00 as temperate damages;
(4) the amount of P3,022,641.71 as damages for loss of earning capacity.
(5) to pay the costs of the litigation.
SO ORDERED.8
Petitioner's motion for reconsideration was denied. Hence, the present petition.
Raised are the following issues for resolution:
1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE, AS PROVIDED FOR BY LAW AND SETTLED JURISPRUDENCE,
ARE PRESENT IN THIS CASE.
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET WAS
DISCHARGED THEREFROM WAS MERELY ACCIDENTAL WHICH OCCURRED
DURING THE TIME THAT THE PETITIONER-APPELLANT WAS STILL IN THE ACT
OF DEFENDING HIMSELF FROM THE CONTINUOUS UNLAWFUL AGGRESSION
OF THE DECEASED VICTIM.
3. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE ESSENTIAL
ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE.
4. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELF-DEFENSE
IS APPLICABLE IN THIS CASE.
5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR THE
DEATH OF THE VICTIM ARISING FROM THE ACCIDENT THAT TRANSPIRED. 9
There is no question that petitioner authored the death of the deceased-victim,
Jeffrey. What is leftfor determination by this Court is whether the elements of selfdefenseexist to exculpate petitioner from the criminal liability for Homicide.
The essential requisites of self-defense are the following: (1) unlawful aggression on
the part of the victim; (2) reasonable necessity of the means employed to prevent
or repel such aggression; and (3) lackof sufficient provocation on the part of the
person resorting to self-defense. 10 In other words, there must have been an unlawful
and unprovoked attack that endangered the life of the accused, who was then
forced to inflict severe wounds upon the assailant by employing reasonable means
to resist the attack.11

Considering that self-defense totally exonerates the accused from any criminal
liability, it is well settled thatwhen he invokes the same, it becomes incumbent upon
him to prove by clear and convincing evidence that he indeed acted in defense of
himself.12 The burden of proving that the killing was justified and that he incurred no
criminal liability therefor shifts upon him. 13 As such, he must rely on the strength of
his own evidence and not on the weakness of the prosecution for, even if the
prosecution evidence is weak, it cannot be disbelieved after the accused himself
has admitted the killing.14
Measured against this criteria, wefind that petitioner's defense is sorely wanting.
Hence, his petition must be denied.
First. The evidence on record does not support petitioner's contention that unlawful
aggression was employed by the deceased-victim, Jeffrey, against him.
Unlawful aggression is the most essential element of self-defense. It presupposes
actual, sudden, unexpected or imminent danger not merely threatening and
intimidating action.15 There is aggression, only when the one attacked faces real and
immediate threat to his life. 16 The peril sought to be avoided must be imminent and
actual, not merely speculative.17 In the case at bar, other than petitioners
testimony, the defense did not adduce evidence to show that Jeffrey
condescendingly responded to petitioners questions or initiated the confrontation
before the shooting incident; that Jeffrey pulled a gun from his chair and tried to
shoot petitioner but failed an assault which may have caused petitioner to fear
for his life.
Even assuming arguendothat the gun originated from Jeffrey and an altercation
transpired, and therefore, danger may have in fact existed, the imminence of that
danger had already ceased the moment petitioner disarmed Jeffrey by wresting the
gun from the latter. After petitioner had successfully seized it, there was no longer
any unlawful aggression to speak of that would have necessitated the need to kill
Jeffrey. As aptly observed by the RTC, petitioner had every opportunity to run away
from the scene and seek help but refused to do so, thus:
In this case, accused and the victim grappled for possession of the
gun.1avvphi1 Accused admitted that he wrested the gun from the victim. From that
point in time until the victim shouted "guard, guard", then took the fire extinguisher,
there was no unlawful aggression coming from the victim. Accused had the
opportunity to run away. Therefore, even assuming that the aggression with use of
the gun initially came from the victim, the fact remains that it ceased when the gun
was wrested away by the accused from the victim. It is settled that when unlawful
aggression ceases, the defender no longer has any right to kill or wound the former
aggressor, otherwise, retaliation and not self-defense is committed (Peo Vs. Tagana,
424 SCRA 620). A person making a defense has no more right to attack an
aggressor when the unlawful aggression has ceased (PeoVs. Pateo, 430 SCRA 609).
Accused alleged that the victimwas about to smash the fire extinguisher on his
(accuseds) headbut he parried it with his hand holding the gun. This is doubtful as
nothing in the records is or would be corroborative of it.In contrast, the two (2)
Prosecution witnesses whose credibility was not impeached, both gave the

impression that the victim got the fire extinguisher to shieldhimself from the
accused who was then already in possession of the gun. 18
Thus, when an unlawful aggression that has begun no longer exists, the one who
resorts to self-defense has no right to kill or even wound the former aggressor. 19 To
be sure, when the present victim no longer persisted in his purpose or action to the
extent that the object of his attack was no longer in peril, there was no more
unlawful aggression that would warrant legal self-defense on the part of the
offender.20 Undoubtedly, petitioner went beyond the call of self-preservation when
he proceeded to inflict excessive, atrocious and fatal injuries on Jeffrey, even when
the allegedly unlawful aggression had already ceased.
More, a review of the testimony of the prosecution witness, Pelaez, will show that if
there was unlawful aggression in the instant case, the same rather emanated from
petitioner, thus: DIRECT EXAMINATION
Atty. Mariano:
Q: Can you relate to the Court, Ms. Witness, how did this incident happen?
A: We were still at work, we were expecting calls but there were no calls at the
moment and I was standing at my work station and then Sherwin approached Jeff
and he pointed a gun at the back of the head of Jeff.
Q: And then what happened?
A: And then Jeff parried the gun and they started struggling for the possession of
the gun.
Q: How far were you from this struggle when you witnessed it?
A: Probably 10 to 12 feet.
Q: Going back to your story, Ms. Witness, you mentioned that after Jeffrey warded
off the gun, they started to struggle, what happened after that, if any?
A: After they struggled, the gun clicked three times and then after that Jeff tried to
get hold of the fire extinguisher and the fourth shot went off and then Jeffrey fell
down.
Q: And who was holding the gun?
A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14) CROSSEXAMINATION: Atty. Agoot:
Q: So you did not see when Sherwin approached Jeffrey because he came from the
other side? Atty. Mariano:
Objection, your Honor, witness already answered that.

Atty. Agoot:
I am on cross examination, your Honor.
COURT
You didnt not see when he approached Jeffrey? A: No, as I said, I saw him point the
gun at the back of Jeff and he did not come from my side so that means
COURT
No, the question is, You did not actually see Sherwin approached Jeffrey?
A: I saw him already at the back of Jeffrey.
Atty. Agoot
He was already at the back of Jeffrey when you saw him?
A: Yes, Sir.
(TSN, Oct. 17, 2005, pp. 26-27)21
Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a
gun from his chair and tried to shoot him, is not corroborated by separate
competent evidence. Pitted against the testimony of prosecution witnesses,
Managbanag and Pelaez, it pales incomparison and loses probative value. We have,
on more thanone occasion, ruled that the plea of self-defense cannot be justifiably
entertained where it is not only uncorroborated by any separate competent
evidence but also extremely doubtful in itself. 22
In addition, other than petitioners testimony, there is dearth of evidence showing
that the alleged unlawful aggression on the part of Jeffrey continued when he
blocked the path of petitioner while the latter tried to run away to avoid further
confrontation with Jeffrey. We also agree with the findings of the RTC that there was
no proof evincing that Jeffrey aimed and intended to smash the big fire extinguisher
on petitioners head. Alternatively, the prosecution witnesses maintained an
impression that Jeffrey used the same to shield himself from petitioner who was
then in possession of the gun, a deadly weapon. An excerpt of the testimony of
Managbanag bares just that, to wit:
Atty. Agoot
Q: And then after pulling the fire extinguisher from the wall Jeffrey again faced the
person who was holding the gun already?
Witness:
A: He was holding the fire extinguisher like this.

COURT
For the record.
Atty. Mariano:
Witness demonstrating how the victim Jeffrey Gonzales was holding the fire
extinguisher upright with his right hand above the fire extinguisher and his left hand
below the fire extinguisher.
Witness:
The left hand would support the weight basically.
Atty. Agoot
Q: And then he used that fire extinguisher to protect himself from the slapping of
that person who was in possession of the gun?
Witness
A: Yes, sir.
Atty. Agoot
Q: And then after that there was again a grappling?
Witness
A: No more grappling for possession. Because Jeffrey was still holding the fire
extinguisher at thattime. And then he fell holding on to the fire extinguisher.
Atty. Agoot
Q: You said here which I quote "binaril siya ng lalaki ng sunod-sunod pero hindi
pumutok" Do you affirmand confirm this statement?
Witness
A: Yes, sir. They were pushing each other. The other person was trying to point the
gun at Jeffrey and Jeffrey was trying to cover himself with the fire extinguisher so
nagkakatulakan sila at the same time.
Atty. Agoot
Q: You said that the gun clicked, how many times did the gun click without firing?
Witness

A: Three (3) times, sir.

Atty. Agoot
Q: And what did the late Jeffrey do when the gun clicked but did not fire?
Witness
A: They were still pushing each other at that time.
Atty. Agoot
Q: Using the fire extinguisher, heused that to push against the person
Witness
A: Basically trying to cover himself and trying to push away the person who was
pointing the gun at him.
Atty. Agoot
Q: And why do you know that Jeffrey was trying hard to push the fire extinguisher?
Witness
A: Because I was seated roughly about 5 to 6 feet away from them. So I clearly saw
what was going on at that time.
(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated 04
September 2006, pp. 12-17, emphasis supplied) 23
Petitioners contention that Jeffreys unlawful aggression was continuous and
imminent is, therefore, devoid of merit.
Given that the criteria of unlawful aggression is indubitably absent in the instant
case, the severe wounds inflicted by petitioner upon Jeffrey was unwarranted and,
therefore, cannot be considered a justifying circumstance under pertinent laws and
jurisprudence.
Second. Even assuming that the unlawful aggression emanated from the deceased
victim, Jeffrey, the means employed by petitioner was not reasonably
commensurate to the nature and extent of the alleged attack, which he sought to
avert. As held by the Court in People v. Obordo: 24
Even assuming arguendo that there was unlawful aggression on the part of the
victim, accused-appellant likewise failed to prove that the means he employed to
repel Homer's punch was reasonable. The means employed by the person invoking
self-defense contemplates a rational equivalence between the means of attack and
the defense. Accused appellant claimed that the victim punched him and was trying

to get something from his waist, so he (accused-appellant) stabbed the victim with
his hunting knife. His act of immediately stabbing Homer and inflicting a wound on a
vital part ofthe victim's body was unreasonable and unnecessary considering that,
as alleged by accused-appellant himself, the victim used his bare fist in throwing a
punch at him.25
Indeed, the means employed by a person resorting to self-defense must be
rationally necessary to prevent or repel an unlawful aggression. The opposite was,
however, employed by petitioner, as correctly pointed out by the RTC, thus:
The victim was holding the fire extinguisher while the second was holding the gun.
The gun and the discharge thereof was unnecessary and disproportionate to repel
the alleged aggression with the use of fire extinguisher. The rule is that the means
employed by the person invoking self-defense contemplates a rational equivalence
between the means of attack and the defense (Peo vs. Obordo, 382 SCRA 98).
It was the accused who was in a vantage position as he was armed with a gun, as
against the victim who was armed, so to speak, with a fire extinguisher, which is not
a deadly weapon. Under the circumstances, accuseds alleged fear was unfounded.
The Supreme Court has ruled that neither an imagined impending attack nor an
impending or threatening attitude is sufficient to constitute unlawful aggression
(Catalina Security Agency Vs. Gonzales-Decano, 429 SCRA 628). It is a settled rule
that to constitute aggression, the person attacked must be confronted by a real
threat on his lifeand limb; and the peril sought to be avoided is imminent and
actual, not merely imaginary (Senoja v. Peo., 440 SCRA 695). 26
If petitioner had honestly believed that Jeffrey was trying to kill him, he should have
just run, despite any obstruction, considering that he was already in possession of
the gun. He could have also immediately sought help from the people around him,
specifically the guard stationed at the floor where the shooting incident happened.
In fact, he could have reported the incident to the authorities as soon as he had
opportunity to do so, if it was indeed an accident or a cry of self-preservation. Yet,
petitioner never did any of that.
We find it highly specious for petitioner to go through the process of tussling and
hassling with Jeffrey, and inthe end, shooting the latter on the forehead, not only
once, but four times, the last shot finally killing him, if he had no intention to hurt
Jeffrey. Thus:
Moreover, the Prosecutions eyewitnesses were consistent in declaring that while
there was prior struggle for the possession of the gun, it was nevertheless accused
who was holding the gun at the time of the actual firing thereof (TSN, p. 30, October
10, 2005; TSN, p. 14, October 17, 2005). Witness Managbanag even alleged that
while the victim (Jeffrey), who was in possession of the fire extinguisher, and the
accused were pushing each other, accused pointed the gun at the victim. She heard
three (3) clicks and on the 4th , the gun fired (TSN, p. 12, October 10, 2005). Under
the circumstances, it cannot be safely said that the gun was or could have been
fired accidentally. The discharge of the gun which led to the victims death was no
longer made in the course of the grapple and/or struggle for the possession of the
gun.27

The observation of the RTC dispels any doubt that the gun may have been shot
accidentally to the detriment of Jeffrey. The fire was neither a disaster nor a
misfortune of sorts. While petitioner may nothave intended to kill Jeffrey at the
onset, at the time he clicked the trigger thrice consecutively, his intent to hurt (or
even kill) Jeffrey was too plain to be disregarded. We have held in the pastthat the
nature and number of wounds are constantly and unremittingly considered
important indicia which disprove a plea of self-defense. 28 Thus, petitioners
contention that an accident simultaneously occurred while hewas in the act of selfdefense is simply absurd and preposterous at best. There could nothave been an
accident because the victim herein suffered a gunshot wound on his head, a vital
part of the body and, thus, demonstrates a criminal mind resolved to end the life of
the victim.
Besides, petitioners failure to inform the police of the unlawful aggression on the
part of Jeffrey and to surrender the gun that he used to kill the victim militates
against his claim of self-defense.29
In view of the foregoing, we find it illogical to discuss further the third element of
self-defense since it is recognized that unlawful aggression is a conditio sine qua
nonfor upholding the justifying circumstance of self-defense. 30 If there is nothing to
prevent or repel, the other two requisites of self-defense will have no basis. 31 Hence,
there is no basis to entertain petitioners argument that a privileged mitigating
circumstance of selfdefense is applicable in this case, because unless the victim has
committed unlawful aggression against the other, there can be no self-defense,
complete or incomplete, on the part of the latter. 32
Anent petitioners argument thatthe RTC erred when it failed to consider as
suppression of evidence the prosecutions alleged deliberate omission to present
the testimonies of the security guards-on-duty at the time of the shooting incident,
the same fails to persuade. We concur with the decision of the CA on this point, to
wit:
Having admitted the killing of the victim, the burden of evidence that he acted in
self-defense, shifted to accused-appellant Dela Cruz. He must rely on the strength of
his own evidence and not on the weakness of the prosecutions evidence, for, even
if the latter were weak, it could not be disbelieved after his open admission of
responsibility for the killing.
The security guards on duty at the time of the subject incident were at the disposal
of both the prosecution and the defense. The defense did not proffer proof that the
prosecution prevented the security guards from testifying. There is therefore no
basis for it to conclude that the prosecution is guilty of suppression of evidence.
The defense could have easily presented the security guards if it is of the opinion
that their [the security guards] testimonies were vital and material to the case of
the defense. It could have compelled the security guards on duty to appear before
the court. xxx.33

It is worthy to note that the question of whether petitioner acted in self-defense is

essentially a question of fact.34 It is the peculiar province of the trial court to
determine the credibility of witnesses and related questions of fact because of its
superior advantage in observing the conduct and demeanor of witnesses while
testifying.35 This being so and in the absence of a showing that the CA and the RTC
failed to appreciate facts or circumstances of such weight and substance that would
have merited petitioner's acquittal, this Court finds no compelling reason to disturb
the ruling of the CA that petitioner did not act in self-defense. 36
In this regard, we do not subscribe to petitioners contention that since the incident
transpired in Jeffreys office, and the witnesses presented by the prosecution are
known officemates of Jeffrey, the witnesses are expected to testify in favor of Jeffrey
and against petitioner. Ascorrectly pointed out by respondent, there appears no
motive on the part of the prosecution witnesses to falsely testify against
petitioner.37 The fact that they are officemates of Jeffrey does not justify a
conclusion that Managbanag and Pelaez would concoct or fabricate stories in
favorof Jeffrey for the mere purpose of implicating petitioner with such a serious
crime, especially since they are testifying under oath.
All told, we find no basis to doubt ordispute, much less overturn, the findings of the
RTC and the CA that the elements of homicide are present in the instant case as
amply shown by the testimonies of the prosecution eyewitnesses, and they
constitute sufficient proof of the guilt of petitioner beyond cavil or doubt.
Nevertheless, with regard to the appreciation of the aggravating circumstance of
use of an unlicensed firearm, we deviate from the findings of the CA. A perusal of
the Information will show that the use of unlicensed firearm was expressly alleged in
the killing of Jeffrey. This allegation was further proved during trial by the
presentation of the Certification from the PNP Firearms and Explosives Division,
dated November 11, 2005, certifying that petitioner is not a licensed/registered
firearm holder of any kind and calibre, per verification from the records of the said
Division. Accordingly, under Paragraph 3 of Section 1 of Republic Act (R.A.) No.
8294, amending Section 1 of Presidential Decree (P.D.) No. 1866, such use of an
unlicensed firearm shall be considered as an aggravating circumstance, to wit:
xxxx
If homicide or murder is committed with the use of an unlicensed firearm, such use
of an unlicensed firearm shall be considered as an aggravating circumstance.
x x x x.
Under Article 249 of the RPC, the penalty for homicide is reclusion temporal. There
being an aggravating circumstance of use of unlicensed firearm, the penalty
imposable on petitioner should be in its maximum period. 38Applying the
Indeterminate Sentence Law, the petitioner shall be sentenced to an indeterminate
penalty of from ten (10) years and one (1) day of prision mayor maximum, as the
minimum penalty, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal maximum, as the maximum penalty.

As to the award of civil indemnity, moral damages, and damages for loss of earning
capacity in favor ofprivate respondent, we sustain the findings of the CA in so far as
they are in accordance with prevailing jurisprudence. In addition, we find the grant
of exemplary damages in the present case in order, since the presence of special
aggravating
circumstance
of
use
of
unlicensed
firearm
has
been
established.39 Based on current jurisprudence, the award of exemplary damages for
homicide is P30,000.00.40
Finally, pursuant to this Courts ruling in Nacar v. Gallery Frames, 41 an interest of six
percent (6%) per annum on the aggregate amount awarded for civil indemnity and
damages for loss of earning capacity shall be imposed, computed from the time of
finality of this Decision until full payment thereof.
WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August 19, 2009
Resolution of the Court of Appeals in CA-G.R. CV No. 89257, finding petitioner
Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of Homicide, are
hereby AFFIRMED with MODIFICATIONS, to wit:
(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10) years
and one (1) day of prision mayor maximum, as the minimum penalty, to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal maximum, as the
maximum penalty;
(2) Petitioner is likewise ORDERED to pay the heirs of the victim the following:
a. the amount of P50,000.00 as civil indemnity;
b. the amount of P50,000.00 as moral damages;
c. the amount of P25,000.00 as temperate damages;
d. the amount of P30,000.00 as exemplary damages;
e. the amount of P3,022,641.71 as damages for loss of earning
capacity;
f. for the civil indemnity and the damages for loss of earning capacity,
an interest of six percent (6%) per annum, computed from the time of
finality of this Decision until full payment thereof; and
g. the costs of the litigation.
SO ORDERED.
G.R. Nos. L-33466-67 April 20, 1983

PEOPLE
OF
THE
vs.
MAMERTO NARVAEZ, defendant-appellant.

PHILIPPINES, plaintiff-appellee,

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato,
Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial,
resulted in the conviction of the accused in a decision rendered on September 8,
1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the
mitigating circumstance of voluntary surrender. The proper penalty
imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64,
Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt
of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in
the sum of P 12,000.00 as compensatory damages, P 10,000.00 as
moral damages, P 2,000.00 as attorney's fees, the offended party
having been represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in
the sum of P12,000.00 as compensatory damages, P10,000.00 as
moral damages, P2,000.00 as attorney's fees, the offended party
having been represent by a private prosecutor, and to pay the costs (p.
48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibanez together with the two deceased Davis
Fleischer and Flaviano Rubia, were fencing the land of George

Fleischer, father of deceased Davis Fleischer. The place was in the

boundary of the highway and the hacienda owned by George Fleischer.
This is located in the municipality of Maitum, South Cotabato. At the
place of the fencing is the house and rice drier of appellant Mamerto
Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was
taking his rest, but when he heard that the walls of his house were
being chiselled, he arose and there he saw the fencing going on. If the
fencing would go on, appellant would be prevented from getting into
his house and the bodega of his ricemill. So he addressed the group,
saying 'Pare, if possible you stop destroying my house and if possible
we will talk it over what is good,' addressing the deceased Rubia, who
is appellant's compadre. The deceased Fleischer, however, answered:
'No, gademit, proceed, go ahead.' Appellant apparently lost his
equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a
gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127133, t.s.n., Defense transcript). Both Fleischer and Rubia died as a
result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's
Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal
battle between the Fleischer and Co., Inc. of which deceased Fleischer was the
secretary-treasurer and deceased Rubia the assistant manager, on the one hand,
and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court
of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R.
No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to
Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a
separate municipality of South Cotabato. He established his residence therein, built
his house, cultivated the area, and was among those who petitioned then President
Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and
nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the
settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an
American landowner in Negros Oriental, filed sales application No. 21983 on June 3,
1937 over the same area formerly leased and later abandoned by Celebes
Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual
survey in 1941 but the survey report was not submitted until 1946 because of the

outbreak of the second world war. According to the survey, only 300 hectares
Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares
each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was
declared open for disposition, appraised and advertised for public auction. At the
public auction held in Manila on August 14, 1948, Fleischer and Company was the
only bidder for P6,000.00. But because of protests from the settlers the
corresponding award in its favor was held in abeyance, while an investigator was
sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by the
representative of the settlers. This amicable settlement was later repudiated by the
settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved
the same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural
Resources, who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance
of Cotabato which then consisted only of one sala, for the purpose of annulling the
order of the Secretary of Agriculture and Natural Resources which affirmed the order
of the Director of Lands awarding the contested land to the company. The settlers
as plaintiffs, lost that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit, misrepresentation and
fraudulent machination on the part of the company. They appealed to the Court of
Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the
decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance
dated September 24, 1966, from the land which they had been occupying for about
30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily
dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred
to his other house which he built in 1962 or 1963 near the highway. The second
house is not far from the site of the dismantled house. Its ground floor has a store
operated by Mrs. June Talens who was renting a portion thereof. He also transferred
his store from his former residence to the house near the highway. Aside from the
store, he also had a rice mill located about 15 meters east of the house and a
concrete pavement between the rice mill and the house, which is used for drying
grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V.
Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of
Cotabato, Branch I. to obtain an injunction or annulment of the order of award with
prayer for preliminary injunction. During the pendency of this case, appellant on

February 21, 1967 entered into a contract of lease with the company whereby he
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38
from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of
P16.00 monthly. According to him, he signed the contract although the ownership of
the land was still uncertain, in order to avoid trouble, until the question of ownership
could be decided. He never paid the agreed rental, although he alleges that the
milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that
portion of land in which your house and ricemill are located as per
agreement executed on February 21, 1967. You have not paid as as
even after repeated attempts of collection made by Mr. Flaviano Rubia
and myself.
In view of the obvious fact that you do not comply with the agreement,
I have no alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega,
and water pitcher pumps from the land of Fleischers & Co., Inc. This
six- month period shall expire on December 31, 1966.
In the event the above constructions have not been removed within
the six- month period, the company shall cause their immediate
demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced
fencing Lot 38 by putting bamboo posts along the property line parallel to the
highway. Some posts were planted right on the concrete drier of appellant, thereby
cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post
just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished,
would have the effect of shutting off the accessibility to appellant's house and rice
mill from the highway, since the door of the same opens to the Fleischers' side. The
fencing continued on that fateful day of August 22, 1968, with the installation of
four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on
his farm all morning, was awakened by some noise as if the wall of his house was
being chiselled. Getting up and looking out of the window, he found that one of the
laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p.
129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased
Fleischer was commanding his laborers. The jeep used by the deceased was parked
on the highway. The rest of the incident is narrated in the People's Brief as above-

quoted. Appellant surrendered to the police thereafter, bringing with him shotgun
No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following
errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his
person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of his
rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun which he
surrendered to the police authorities. He claims, however, that he did so in defense
of his person and of his rights, and therefore he should be exempt from criminal
liability.
Defense of one's person or rights is treated as a justifying circumstance under Art.
11, par. 1 of the Revised Penal Code, but in order for it to be appreciated, the
following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to his
request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto
mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6).
This was in reaction to his having been awakened to see the wall of his house being
chiselled. The verbal exchange took place while the two deceased were on the
ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused
this reaction in him: "As if, I lost my senses and unknowingly I took the gun on the
bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon
hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that
there was a firearm in the jeep and thinking that if he will take that
firearm he will kill me, I shot at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the prosecution.
They claim, however, that the deceased were in lawful exercise of their rights of
ownership over the land in question, when they did the fencing that sealed off
appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence
reveals that five persons, consisting of the deceased and their three laborers, were
doing the fencing and chiselling of the walls of appellant's house. The fence they
were putting up was made of bamboo posts to which were being nailed strands of
barbed wire in several layers. Obviously, they were using tools which could be lethal
weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and
other necessary gadgets. Besides, it was not disputed that the jeep which they used
in going to the place was parked just a few steps away, and in it there was a gun
leaning near the steering wheel. When the appellant woke up to the sound of the
chiselling on his walls, his first reaction was to look out of the window. Then he saw
the damage being done to his house, compounded by the fact that his house and
rice mill will be shut off from the highway by the fence once it is finished. He
therefore appealed to hiscompadre, the deceased Rubia, to stop what they were
doing and to talk things over with him. But deceased Fleischer answered angrily
with 'gademit' and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the
fencing would have resulted in the further chiselling of the walls of appellant's
house as well as the closure of the access to and from his house and rice mill-which
were not only imminent but were actually in progress. There is no question,
therefore, that there was aggression on the part of the victims: Fleischer was
ordering, and Rubia was actually participating in the fencing. This was indeed
aggression, not on the person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right
to fence off the contested property, to destroy appellant's house and to shut off his
ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence
his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer and Company was still pending in the

Court of First Instance of Cotabato. The parties could not have known that the case
would be dismissed over a year after the incident on August 22, 1968, as it was
dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment
of the award to the company, between the same parties, which the company won
by virtue of the compromise agreement in spite of the subsequent repudiation by
the settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel the
corresponding certificate of title issued to the company, on the ground that the
Director of Lands had no authority to conduct the sale due to his failure to comply
with the mandatory requirements for publication. The dismissal of the government's
supplemental petition was premised on the ground that after its filing on November
28, 1968, nothing more was done by the petitioner Republic of the Philippines
except to adopt all the evidence and arguments of plaintiffs with whom it joined as
parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable
judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the
contract of lease on February 21, 1967 was just to avoid trouble. This was explained
by him during cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better
rent the place because even though we do not know who really owns
this portion to avoid trouble. To avoid trouble we better pay while
waiting for the case because at that time, it was not known who is the
right owner of the place. So we decided until things will clear up and
determine who is really the owner, we decided to pay rentals (p. 169,
t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed appellant
the peaceful enjoyment of his properties up to that time, instead of chiselling the
walls of his house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He
who believes that he has an action or a right to deprive another of the
holding of a thing must invoke the aid of the competent court, if the
holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession;

and should he be disturbed therein he shall be protected in or restored
to said possession by the means established by the laws and the Rules
of Court (Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or
cause damage to appellant's house, nor to close his accessibility to the highway
while he was pleading with them to stop and talk things over with him. The assault
on appellant's property, therefore, amounts to unlawful aggression as contemplated
by law.
Illegal aggression is equivalent to assault or at least threatened assault
of immediate and imminent kind (People vs. Encomiendas, 46 SCRA
522).
In the case at bar, there was an actual physical invasion of appellant's property
which he had the right to resist, pursuant to Art. 429 of the Civil Code of the
Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For this
purpose, he may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlawful physical invasion or
usurpation of his property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of Article
11, Revised Penal Code. When the appellant fired his shotgun from his window,
killing his two victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack
of sufficient provocation on the part of appellant who was defending his property. As
a matter of fact, there was no provocation at all on his part, since he was asleep at
first and was only awakened by the noise produced by the victims and their
laborers. His plea for the deceased and their men to stop and talk things over with
him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since
not all the elements for justification are present. He should therefore be held
responsible for the death of his victims, but he could be credited with the special
mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13
of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of

treachery cannot be appreciated in this case because of the presence of
provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz
(55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of
assault adopted by the aggressor was deliberately chosen with a special view to the
accomplishment of the act without risk to the assailant from any defense that the
party assailed might have made. This cannot be said of a situation where the slayer
acted instantaneously ..." (People vs. Caete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation
not sufficiently established. The only evidence presented to prove this circumstance
was the testimony of Crisanto Ibaez, 37 years old, married, resident of Maitum,
South Cotabato, and a laborer of Fleischer and Company, which may be
summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M.,
he was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at
the crossing, Maitum, South Cotabato, when the accused and his wife
talked to him. Mrs. Narvaez asked him to help them, as he was working
in the hacienda. She further told him that if they fenced their house,
there is a head that will be broken. Mamerto Narvaez added 'Noy, it is
better that you will tell Mr. Fleischer because there will be nobody who
will break his head but I will be the one.' He relayed this to Mr. Flaviano
Rubia, but the latter told him not to believe as they were only Idle
threats designed to get him out of the hacienda (pp. 297-303, t.s.n.,
Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating
circumstance of evident premeditation. As WE have consistently held, there must be
"direct evidence of the planning or preparation to kill the victim, .... it is not enough
that premeditation be suspected or surmised, but the criminal intent must be
evidenced by notorious outward acts evincing the determination to commit the
crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that
the accused premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between the premeditation
and the execution of the crime to allow them (him) to reflect upon the
consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased
Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation
to kill the victims nor that the accused premeditated the killing, and clung to his
premeditated act, the trial court's conclusion as to the presence of such
circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to
stop the fencing and destroying his house and to talk things over just before the
shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered to the
authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the
crime. The appellant awoke to find his house being damaged and its accessibility to
the highway as well as of his rice mill bodega being closed. Not only was his house
being unlawfully violated; his business was also in danger of closing down for lack of
access to the highway. These circumstances, coming so near to the time when his
first house was dismantled, thus forcing him to transfer to his only remaining house,
must have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his rights.
Considering the antecedent facts of this case, where appellant had thirty years
earlier migrated to this so-called "land of promise" with dreams and hopes of
relative prosperity and tranquility, only to find his castle crumbling at the hands of
the deceased, his dispassionate plea going unheeded-all these could be too much
for any man-he should be credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not
being attended by any qualifying nor aggravating circumstance, but extenuated by
the privileged mitigating circumstance of incomplete defense-in view of the
presence of unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and by two generic mitigating circumstance
of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two
degrees shall be imposed if the deed is not wholly excusable by reason of the lack
of some of the conditions required to justify the same. Considering that the majority
of the requirements for defense of property are present, the penalty may be
lowered by two degrees, i.e., to prision correccional And under paragraph 5 of
Article 64, the same may further be reduced by one degree, i.e., arresto
mayor, because of the presence of two mitigating circumstances and no
aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan
American World Airways (43 SCRA 397), the award for moral damages was reduced
because the plaintiff contributed to the gravity of defendant's reaction. In the case
at bar, the victims not only contributed but they actually provoked the attack by
damaging appellant's properties and business. Considering appellant's standing in
the community, being married to a municipal councilor, the victims' actuations were
apparently designed to humiliate him and destroy his reputation. The records
disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases
and detained without bail despite the absence of evidence linking her to the killings.
She was dropped as a defendant only upon motion of the prosecution dated October
31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4,
1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings in a Central Visayan province, to
extend its accumulation of public lands to the resettlement areas of Cotabato. Since
it had the capability-financial and otherwise-to carry out its land accumulation
scheme, the lowly settlers, who uprooted their families from their native soil in
Luzon to take advantage of the government's resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced. Thus, the
moral and material suffering of appellant and his family deserves leniency as to his
civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted
of prision correccional or arrests mayor and fine who has no property with which to
meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day
for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on
April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to
reparation of the damage caused, indemnification of consequential damages and
costs of proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant to
Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY
TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE
OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY
AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH
GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF
FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND
WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST

FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on
a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes
self-defense. Under the proven facts, however, she is not entitled to complete
exoneration because there was no unlawful aggression -- no immediate and
unexpected attack on her by her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her psychological
resistance and self-control. This psychological paralysis she suffered diminished her
will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10
of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance
of having acted upon an impulse so powerful as to have naturally produced passion
and obfuscation. The acute battering she suffered that fatal night in the hands of
her batterer-spouse, in spite of the fact that she was eight months pregnant with
their child, overwhelmed her and put her in the aforesaid emotional and mental
state, which overcame her reason and impelled her to vindicate her life and her
unborn childs.
Considering the presence of these two mitigating circumstances arising from
BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply
for and be released from custody on parole, because she has already served the
minimum period of her penalty while under detention during the pendency of this
case.

The Case
For automatic review before this Court is the September 25, 1998 Decision [1] of
the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 50160, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal
portion of the Decision reads:

WHEREFORE, after all the foregoing being duly considered, the Court finds the
accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of the Revised Penal Code as restored by
Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating
circumstance and none of mitigating circumstance, hereby sentences the accused
with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased the sum
of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another
sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages. [2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15 th day of November 1995, at Barangay Bilwang, Municipality
of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously attack, assault,
hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard
deadly weapon, which the accused had provided herself for the purpose, [causing]
the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood
vessels on the posterior surface of the brain, laceration of the dura and
meningeal vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of
the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel, [5] appellant pleaded not guilty during her
arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of
parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions version
of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc
City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte.
For a time, Bens younger brother, Alex, and his wife lived with them too. Sometime
in 1995, however, appellant and Ben rented from Steban Matiga a house at
Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely:
John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving
their salary. They each had two (2) bottles of beer before heading home. Arturo
would pass Bens house before reaching his. When they arrived at the house of Ben,
he found out that appellant had gone to Isabel, Leyte to look for him. Ben went
inside his house, while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiao runner to place a bet. Arturo did not see appellant arrive but
on his way home passing the side of the Genosas rented house, he heard her say I
wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That
was the last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas rented house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend and
neighbor living about fifty (50) meters from her house, to look after her pig because
she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to
sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no
money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus
going to Ormoc when he saw appellant going out of their house with her two kids in
tow, each one carrying a bag, locking the gate and taking her children to the
waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas
rented house. Joseph, appellant and her children rode the same bus to Ormoc. They
had no conversation as Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to
find out the cause of the stench but the house was locked from the inside. Since he
did not have a duplicate key with him, Steban destroyed the gate padlock with a
borrowed steel saw. He was able to get inside through the kitchen door but only
after destroying a window to reach a hook that locked it. Alone, Steban went inside
the unlocked bedroom where the offensive smell was coming from. There, he saw
the lifeless body of Ben lying on his side on the bed covered with a blanket. He was
only in his briefs with injuries at the back of his head. Seeing this, Steban went out
of the house and sent word to the mother of Ben about his sons misfortune. Later
that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of
[her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at
the police station at Isabel, Leyte, received a report regarding the foul smell at the
Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina

Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where
they found the dead body of Ben lying on his side wrapped with a bedsheet. There
was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in
one corner at the side of an aparador a metal pipe about two (2) meters from where
Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6)
inches long with a diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench, had to
be taken outside at the back of the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause of Bens death was
cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a
depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after work on
November 15, 1995, she got worried that her husband who was not home yet might
have gone gambling since it was a payday. With her cousin Ecel Arao, appellant
went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find
him there. They found Ben drunk upon their return at the Genosas house. Ecel went
home despite appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even challenging her to a
fight. She allegedly ignored him and instead attended to their children who were
doing their homework. Apparently disappointed with her reaction, Ben switched off
the light and, with the use of a chopping knife, cut the television antenna or wire to
keep her from watching television. According to appellant, Ben was about to attack
her so she ran to the bedroom, but he got hold of her hands and whirled her around.
She fell on the side of the bed and screamed for help. Ben left. At this point,
appellant packed his clothes because she wanted him to leave. Seeing his packed
clothes upon his return home, Ben allegedly flew into a rage, dragged appellant
outside of the bedroom towards a drawer holding her by the neck, and told her You
might as well be killed so nobody would nag me. Appellant testified that she was
aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, smashed the
arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then
smashed Ben at his nape with the pipe as he was about to pick up the blade and his
wallet. She thereafter ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by shooting him.
She supposedly distorted the drawer where the gun was and shot Ben. He did not
die on the spot, though, but in the bedroom. [7] (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to
her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree
of Bachelor of Science in Business Administration, and was working, at the time of
her husbands death, as a Secretary to the Port Managers in Ormoc City. The couple
had three (3) children: John Marben, Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school; they were
neighbors in Bilwang; they were classmates; and they were third degree cousins.
Both sets of parents were against their relationship, but Ben was persistent and
tried to stop other suitors from courting her. Their closeness developed as he was
her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents, together with
Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben
lived happily. But apparently, soon thereafter, the couple would quarrel often and
their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not remember
when Ben and Marivic married. He said that when Ben and Marivic
quarreled, generally when Ben would come home drunk, Marivic would inflict
injuries on him. He said that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his left hand was covered with
blood. Marivic left the house but after a week, she returned apparently having asked
for Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and
his father apparently rushed to Bens aid again and saw blood from Bens forehead
and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had
apparently again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and
Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as
the marriage went along, Marivic became already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivics two sons, there were three (3)
misunderstandings. The first was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on November 15, 1994, when Marivic
struck Ben on the forehead using a sharp instrument until the eye was also affected.
It was wounded and also the ear and her husband went to Ben to help; and the third
incident was in 1995 when the couple had already transferred to the house in
Bilwang and she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After
we collected our salary, we went to the cock-fighting place of ISCO. They stayed
there for three (3) hours, after which they went to Uniloks and drank beer allegedly
only two (2) bottles each. After drinking they bought barbeque and went to the
Genosa residence. Marivic was not there. He stayed a while talking with Ben, after

which he went across the road to wait for the runner and the usher of the masiao
game because during that time, the hearing on masiao numbers was rampant. I was
waiting for the ushers and runners so that I can place my bet. On his way home at
about 9:00 in the evening, he heard the Genosas arguing. They were quarreling
loudly. Outside their house was one Fredo who is used by Ben to feed his fighting
cocks. Basobas testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me
when I am innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the Genosa
residence. Basobas admitted that he and Ben were always at the cockpits every
Saturday and Sunday. He claims that he once told Ben before when he was stricken
with a bottle by Marivic Genosa that he should leave her and that Ben would always
take her back after she would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long time that
they had been quarreling. He said Ben even had a wound on the right forehead. He
had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel to her
and was a habitual drinker. She said he provoked her, he would slap her, sometimes
he would pin her down on the bed, and sometimes beat her.
These incidents happened several times and she would often run home to her
parents, but Ben would follow her and seek her out, promising to change and would
ask for her forgiveness. She said after she would be beaten, she would seek medical
help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the
injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her
or quarrel with her every time he was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic, testified as
to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified
that on November 15, 1995, he overheard a quarrel between Ben and Marivic.
Marivic was shouting for help and through the open jalousies, he saw the spouses
grappling with each other. Ben had Marivic in a choke hold. He did not do anything,
but had come voluntarily to testify. (Please note this was the same night as that
testified to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos,
testified that he heard his neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is located beside the Genosa
house and saw the spouses grappling with each other then Ben Genosa was holding
with his both hands the neck of the accused, Marivic Genosa. He said after a while,
Marivic was able to extricate he[r]self and enter the room of the children. After that,
he went back to work as he was to go fishing that evening. He returned at 8:00 the
next morning. (Again, please note that this was the same night as that testified to
by Arturo Basobas).

7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were
living in Isabel, Leyte. His house was located about fifty (50) meters from theirs.
Marivic is his niece and he knew them to be living together for 13 or 14 years. He
said the couple was always quarreling. Marivic confided in him that Ben would pawn
items and then would use the money to gamble. One time, he went to their house
and they were quarreling. Ben was so angry, but would be pacified if somebody
would come. He testified that while Ben was alive he used to gamble and when he
became drunk, he would go to our house and he will say, Teody because that was
what he used to call me, mokimas ta, which means lets go and look for a whore. Mr.
Sarabia further testified that Ben would box his wife and I would see bruises and
one time she ran to me, I noticed a wound (the witness pointed to his right breast)
as according to her a knife was stricken to her. Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified
that in the afternoon of November 15, 1995, Marivic went to her house and asked
her help to look for Ben. They searched in the market place, several taverns and
some other places, but could not find him. She accompanied Marivic home. Marivic
wanted her to sleep with her in the Genosa house because she might be battered
by her husband. When they got to the Genosa house at about 7:00 in the evening,
Miss Arano said that her husband was already there and was drunk. Miss Arano
knew he was drunk because of his staggering walking and I can also detect his face.
Marivic entered the house and she heard them quarrel noisily. (Again, please note
that this is the same night as that testified to by Arturo Basobas) Miss Arano
testified that this was not the first time Marivic had asked her to sleep in the house
as Marivic would be afraid every time her husband would come home drunk. At one
time when she did sleep over, she was awakened at 10:00 in the evening when Ben
arrived because the couple were very noisy in the sala and I had heard something
was broken like a vase. She said Marivic ran into her room and they locked the door.
When Ben couldnt get in he got a chair and a knife and showed us the knife through
the window grill and he scared us. She said that Marivic shouted for help, but no
one came. On cross-examination, she said that when she left Marivics house on
November 15, 1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until
November 9, 1995, there were six (6) episodes of physical injuries inflicted upon
Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered
him an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of Marivic on
twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. The OPD
Chart of Marivic at the Philphos Clinic which reflected all the consultations made by
Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit
3.

On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say
whether the injuries were directly related to the crime committed. He said it is only
a psychiatrist who is qualified to examine the psychological make-up of the patient,
whether she is capable of committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided,
testified that about two (2) months before Ben died, Marivic went to his office past
8:00 in the evening. She sought his help to settle or confront the Genosa couple
who were experiencing family troubles. He told Marivic to return in the morning, but
he did not hear from her again and assumed that they might have settled with each
other or they might have forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that night it was
her husband who began the provocation. Marivic said she was frightened that her
husband would hurt her and she wanted to make sure she would deliver her baby
safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she
was suffering from eclampsia and hypertension, and the baby was born prematurely
on December 1, 1995.
Marivic testified that during her marriage she had tried to leave her husband at
least five (5) times, but that Ben would always follow her and they would reconcile.
Marivic said that the reason why Ben was violent and abusive towards her that night
was because he was crazy about his recent girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said that he
died in the bedroom; that their quarrels could be heard by anyone passing their
house; that Basobas lied in his testimony; that she left for Manila the next day,
November 16, 1995; that she did not bother anyone in Manila, rented herself a
room, and got herself a job as a field researcher under the alias Marvelous Isidro;
she did not tell anyone that she was leaving Leyte, she just wanted to have a safe
delivery of her baby; and that she was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw the gun away; that
she did not know what happened to the pipe she used to smash him once; that she
was wounded by Ben on her wrist with the bolo; and that two (2) hours after she
was whirled by Ben, he kicked her ass and dragged her towards the drawer when he
saw that she had packed his things.
9. The body of Ben Genosa was found on November 18, 1995 after an investigation
was made of the foul odor emitting from the Genosa residence. This fact was
testified to by all the prosecution witnesses and some defense witnesses during the
trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel,
Leyte at the time of the incident, and among her responsibilities as such was to take
charge of all medico-legal cases, such as the examination of cadavers and the
autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the

medical board exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw some police officer and
neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone
position with his back to the door. He was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury involving the
skeletal area of the head which she described as a fracture. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as
to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against Marivic Genosa
charged her with the crime of PARRICIDE committed with intent to kill, with
treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously
attack, assault, hit and wound x x x her legitimate husband, with the use of a hard
deadly weapon x x x which caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and
23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998,
and 5 and 6 August 1998.
13. On 23 September 1998, or only fifty (50) days from the day of the last trial
date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime
of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.
14. The case was elevated to this Honorable Court upon automatic review and,
under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon,
filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary
measure, two (2) drafts of Appellants Briefs he had prepared for Marivic which, for
reasons of her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the
entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice, coursing the same through Atty. Teresita G.
Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she
submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16. In the meantime, under date of 17 February 2000, and stamp-received by the
Honorable Court on 19 February 2000, undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben

Genosa and the re-examination of the cause of his death; allow the examination of
Marivic Genosa by qualified psychologists and psychiatrists to determine her state
of mind at the time she killed her husband; and finally, to allow a partial re-opening
of the case a quo to take the testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then
the only qualified forensic pathologist in the country, who opined that the
description of the death wound (as culled from the post-mortem findings, Exhibit A)
is more akin to a gunshot wound than a beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly
granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial
court for the reception of expert psychological and/or psychiatric opinion on the
battered woman syndrome plea, within ninety (90) days from notice, and, thereafter
to forthwith report to this Court the proceedings taken, together with the copies of
the TSN and relevant documentary evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the
Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were
done at the Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years
with her own private clinic and connected presently to the De La Salle University as
a professor. Before this, she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the Ateneo de Manila
University and St. Josephs College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo,
and a PhD from the U.P. She was the past president of the Psychological Association
of the Philippines and is a member of the American Psychological Association. She is
the secretary of the International Council of Psychologists from about 68 countries;
a member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial
Academy, recently lecturing on the socio-demographic and psychological profile of
families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book
entitled Energy Global Psychology (together with Drs. Allan Tan and Allan Bernardo).
The Genosa case is the first time she has testified as an expert on battered women
as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the socio-demographic
and psychological profile of families involved in domestic violence, and nullity cases,
she looked at about 500 cases over a period of ten (10) years and discovered that
there are lots of variables that cause all of this marital conflicts, from domestic
violence to infidelity, to psychiatric disorder.

Dra. Dayan described domestic violence to comprise of a lot of incidents of

psychological abuse, verbal abuse, and emotional abuse to physical abuse and also
sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a very low
opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x
they usually think very lowly of themselves and so when the violence would happen,
they usually think that they provoke it, that they were the one who precipitated the
violence, they provoke their spouse to be physically, verbally and even sexually
abusive to them. Dra. Dayan said that usually a battered x x x comes from a
dysfunctional family or from broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a very low
opinion of himself. But then emerges to have superiority complex and it comes out
as being very arrogant, very hostile, very aggressive and very angry. They also had
(sic) a very low tolerance for frustrations. A lot of times they are involved in vices
like gambling, drinking and drugs. And they become violent. The batterer also
usually comes from a dysfunctional family which over-pampers them and makes
them feel entitled to do anything. Also, they see often how their parents abused
each other so there is a lot of modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked the
violence, the cycle itself which makes her hope her husband will change, the belief
in her obligations to keep the family intact at all costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some leave the
house, or lock themselves in another room, or sometimes try to fight back triggering
physical violence on both of them. She said that in a normal marital relationship,
abuses also happen, but these are not consistent, not chronic, are not happening
day in [and] day out. In an abnormal marital relationship, the abuse occurs day in
and day out, is long lasting and even would cause hospitalization on the victim and
even death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered woman
because inspite of her feeling of self-confidence which we can see at times there are
really feeling (sic) of loss, such feelings of humiliation which she sees herself as
damaged and as a broken person. And at the same time she still has the imprint of
all the abuses that she had experienced in the past.
xxxxxxxxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at the time
of the tragedy that Marivic then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed
away, appeared and testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association.
He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in
private practice, he was connected with the Veterans Memorial Medical Centre
where he gained his training on psychiatry and neurology. After that, he was called
to active duty in the Armed Forces of the Philippines, assigned to the V. Luna
Medical Center for twenty six (26) years. Prior to his retirement from government
service, he obtained the rank of Brigadier General. He obtained his medical degree
from the University of Santo Tomas. He was also a member of the World Association
of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the Philippine
Military Academy from the Period 1954 1978 which was presented twice in
international congresses. He also authored The Mental Health of the Armed Forces
of the Philippines 2000, which was likewise published internationally and locally. He
had a medical textbook published on the use of Prasepam on a Parke-Davis grant;
was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published
the use of the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind
and neurology deals with the ailment of the brain and spinal cord enlarged.
Psychology, on the other hand, is a bachelor degree and a doctorate degree; while
one has to finish medicine to become a specialist in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving violent family relations, and testified in a case
in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and
he has seen probably ten to twenty thousand cases. In those days, the primordial
intention of therapy was reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office in Quezon
City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal abuse,
battering and boxing a woman even to an unconscious state such that the woman is
sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the
vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the psychological
stamina and physiologic constitutional stamina of the victim is stronger, it will take

more repetitive trauma to precipitate the post-traumatic stress disorder and this x x
x is very dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety
neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or
trauma as if it were real, although she is not actually being beaten at that time. She
thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her emotional
tone is unstable, and she is irritable and restless. She tends to become hard-headed
and persistent. She has higher sensitivity and her self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an individuals
illness, such as the deprivation of the continuous care and love of the parents. As to
the batterer, he normally internalizes what is around him within the environment.
And it becomes his own personality. He is very competitive; he is aiming high all the
time; he is so macho; he shows his strong faade but in it there are doubts in himself
and prone to act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the precipator
(sic) or the one who administered the battering, that re-experiencing of the trauma
occurred (sic) because the individual cannot control it. It will just come up in her
mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and primarily with knives. Usually pointed weapons or any weapon that
is available in the immediate surrounding or in a hospital x x x because that abound
in the household. He said a victim resorts to weapons when she has reached the
lowest rock bottom of her life and there is no other recourse left on her but to act
decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he
conducted for two (2) hours and seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his diagnosis. He came out
with a Psychiatric Report, dated 22 January 2001.
xxxxxxxxx

On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time
she killed her husband Marivicc mental condition was that she was re-experiencing
the trauma. He said that we are trying to explain scientifically that the reexperiencing of the trauma is not controlled by Marivic. It will just come in flashes
and probably at that point in time that things happened when the re-experiencing of
the trauma flashed in her mind. At the time he interviewed Marivic she was more
subdued, she was not super alert anymore x x x she is mentally stress (sic) because
of the predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private or the
public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial aquo were elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to
the prosecution evidence that appellant had killed the deceased while he was in bed
sleeping. Further, the trial court appreciated the generic aggravating circumstance
of treachery, because Ben Genosa was supposedly defenseless when he was killed
-- lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court
for automatic review.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that
this Court allow (1) the exhumation of Ben Genosa and the reexamination of the
cause of his death; (2) the examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had killed her spouse;
and (3) the inclusion of the said experts reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the
case for the lower court to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part
appellants Motion, remanding the case to the trial court for the reception of expert
psychological and/or psychiatric opinion on the battered woman syndrome plea; and
requiring the lower court to report thereafter to this Court the proceedings taken as
well as to submit copies of the TSN and additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the examination of
Marivic by two clinical psychologists, Drs. Natividad Dayan [10] and Alfredo Pajarillo,
[11]
supposedly experts on domestic violence. Their testimonies, along with their
documentary evidence, were then presented to and admitted by the lower court

before finally being submitted to this Court to form part of the records of the case.
[12]

The Issues
Appellant assigns the following alleged errors of the trial court for this Courts
consideration:
1. The trial court gravely erred in promulgating an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa
were legally married and that she was therefore liable for parricide.
3. The trial court gravely erred finding the cause of death to be by beating with a
pipe.
4. The trial court gravely erred in ignoring and disregarding evidence adduced from
impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in concluding that Ben
Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the children of
Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the
life of her unborn child.
7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case,
thereby erroneously convicting Marivic Genosa of the crime of parricide and
condemning her to the ultimate penalty of death. [13]
In the main, the following are the essential legal issues: (1) whether appellant
acted in self-defense and in defense of her fetus; and (2) whether treachery
attended the killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not
collateral to the resolution of the principal issues. As consistently held by this Court,
the findings of the trial court on the credibility of witnesses and their testimonies
are entitled to a high degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his discretion or
overlooked, misunderstood or misapplied material facts or circumstances of weight
and substance that could affect the outcome of the case. [14]
In appellants first six assigned items, we find no grave abuse of discretion,
reversible error or misappreciation of material facts that would reverse or modify
the trial courts disposition of the case. In any event, we will now briefly dispose of
these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously hasty
decision without reflecting on the evidence adduced as to self-defense. We note that
in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of
both the prosecution and the defense witnesses and -- on the basis of those and of
the documentary evidence on record -- made his evaluation, findings and
conclusions. He wrote a 3-page discourse assessing the testimony and the selfdefense theory of the accused. While she, or even this Court, may not agree with
the trial judges conclusions, we cannot peremptorily conclude, absent substantial
evidence, that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an obviously
hasty manner. The Information had been filed with the lower court on November 14,
1996. Thereafter, trial began and at least 13 hearings were held for over a year. It
took the trial judge about two months from the conclusion of trial to promulgate his
judgment. That he conducted the trial and resolved the case with dispatch should
not be taken against him, much less used to condemn him for being unduly hasty. If
at all, the dispatch with which he handled the case should be lauded. In any case,
we find his actions in substantial compliance with his constitutional obligation. [15]
Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their marriage
contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the victim. In
the case of parricide of a spouse, the best proof of the relationship between the
accused and the deceased is the marriage certificate. In the absence of a marriage
certificate, however, oral evidence of the fact of marriage may be considered by the
trial court if such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the brother of
appellants deceased spouse -- attested in court that Ben had been married to
Marivic.[17] The defense raised no objection to these testimonies. Moreover, during
her direct examination, appellant herself made a judicial admission of her marriage
to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party
making it, except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made. [19] Other than

merely attacking the non-presentation of the marriage contract, the defense offered
no proof that the admission made by appellant in court as to the fact of her
marriage to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Bens
death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
[c]onsidering that the appellant has admitted the fact of killing her husband and the
acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to
determine which of said acts actually caused the victims death. Determining which
of these admitted acts caused the death is not dispositive of the guilt or defense of
appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben
was a drunk, gambler, womanizer and wife-beater. Until this case came to us for
automatic review, appellant had not raised the novel defense of battered woman
syndrome, for which such evidence may have been relevant. Her theory of self-defense
was then the crucial issue before the trial court. As will be discussed shortly, the legal
requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent
with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from
appellants children. As correctly elucidated by the solicitor general, all criminal
actions are prosecuted under the direction and control of the public prosecutor, in
whom lies the discretion to determine which witnesses and evidence are necessary
to present.[20] As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus,
she cannot now fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of
Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of
her guilt or are attempts to save the life of her unborn child. Any reversible error as
to the trial courts appreciation of these circumstances has little bearing on the final
resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes selfdefense and/or defense of her unborn child. When the accused admits killing the
victim, it is incumbent upon her to prove any claimed justifying circumstance by
clear and convincing evidence. [21] Well-settled is the rule that in criminal cases, selfdefense (and similarly, defense of a stranger or third person) shifts the burden of
proof from the prosecution to the defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered

woman syndrome. While new in Philippine jurisprudence, the concept has been
recognized in foreign jurisdictions as a form of self-defense or, at the least,
incomplete self-defense.[23] By appreciating evidence that a victim or defendant is
afflicted with the syndrome, foreign courts convey their understanding of the
justifiably fearful state of mind of a person who has been cyclically abused and
controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly subjected to
any forceful physical or psychological behavior by a man in order to coerce her to
do something he wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with men. Furthermore,
in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive
relationship with a man once. If it occurs a second time, and she remains in the
situation, she is defined as a battered woman. [25]
Battered women exhibit common personality traits, such as low self-esteem,
traditional beliefs about the home, the family and the female sex role; emotional
dependence upon the dominant male; the tendency to accept responsibility for the
batterers actions; and false hopes that the relationship will improve. [26]
More graphically, the battered woman syndrome is characterized by the socalled cycle of violence,[27] which has three phases: (1) the tension-building phase;
(2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent)
phase.[28]
During the tension-building phase, minor battering occurs -- it could be
verbal or slight physical abuse or another form of hostile behavior. The woman
usually tries to pacify the batterer through a show of kind, nurturing behavior; or by
simply staying out of his way. What actually happens is that she allows herself to be
abused in ways that, to her, are comparatively minor. All she wants is to prevent the
escalation of the violence exhibited by the batterer. This wish, however, proves to
be double-edged, because her placatory and passive behavior legitimizes his belief
that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are
not usually successful, and the verbal and/or physical abuse worsens. Each partner
senses the imminent loss of control and the growing tension and despair. Exhausted
from the persistent stress, the battered woman soon withdraws emotionally. But the
more she becomes emotionally unavailable, the more the batterer becomes angry,
oppressive and abusive. Often, at some unpredictable point, the violence spirals out
of control and leads to an acute battering incident. [29]
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this incident as
unpredictable, yet also inevitable. During this phase, she has no control; only the
batterer may put an end to the violence. Its nature can be as unpredictable as the
time of its explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible
pain, although she may later clearly remember every detail. Her apparent passivity
in the face of acute violence may be rationalized thus: the batterer is almost always
much stronger physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage and out of
control, such that innocent bystanders or intervenors are likely to get hurt. [30]
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound relief.
On the one hand, the batterer may show a tender and nurturing behavior towards
his partner. He knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again. On the other
hand, the battered woman also tries to convince herself that the battery will never
happen again; that her partner will change for the better; and that this good, gentle
and caring man is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation and despair, she feels responsible for
his well-being. The truth, though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she remains with him.
Generally, only after she leaves him does he seek professional help as a way of
getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
womans psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her forgiveness.
Underneath this miserable cycle of tension, violence and forgiveness, each partner
may believe that it is better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other. [31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented
several witnesses. She herself described her heart-rending experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year he
was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was
abusive to you and cruel. In what way was this abusive and cruelty
manifested to you?
A He always provoke me in everything, he always slap me and sometimes
he pinned me down on the bed and sometimes beat me.
Q How many times did this happen?
A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each
other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced and
after that I go to him and he said sorry.
Q During those times that you were the recipient of such cruelty and
abusive behavior by your husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxxxxxxxx
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury
inflicted on your occurred, after your marriage, from that time on, how
frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel
me. [32]

Referring to his Out-Patient Chart [33] on Marivic Genosa at the Philphos Hospital,
Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this
manner:
Q So, do you have a summary of those six (6) incidents which are found in
the chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the dates for the
record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower
eyelid and redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain
and contusion (R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending
physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician:
Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy.
Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were the
attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended
the patient. What do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something
rough substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left
breast. So, [pain] meaning there is tenderness. When your breast is
traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?

xxxxxxxxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of these
injuries. And she told me that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxxxxxxxx
ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused
sometime in the month of November, 1995 when this incident
happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the
patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was
she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination
about her pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates her
pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.

Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of Marivic Genosa. You said that you
were able to examine her personally on November 6, 1995 and she was
8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to
hypertension and I think I have a record here, also the same period from
1989 to 1995, she had a consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient
had hypertension?
A The patient definitely had hypertension. It was refractory to our
treatment. She does not response when the medication was given to
her, because tension headache is more or less stress related and
emotional in nature.
Q What did you deduce of tension headache when you said is emotional in
nature?
A From what I deduced as part of our physical examination of the patient is
the family history in line of giving the root cause of what is causing this
disease. So, from the moment you ask to the patient all comes from the
domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in
hypertension which is unfortunately does not response to the
medication.
Q In November 6, 1995, the date of the incident, did you take the blood
pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous
level of blood pressure?

A It was dangerous to the child or to the fetus. [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in
Isabel, Leyte, testified that he had seen the couple quarreling several times; and
that on some occasions Marivic would run to him with bruises, confiding that the
injuries were inflicted upon her by Ben. [35]
Ecel Arano also testified[36] that for a number of times she had been asked by
Marivic to sleep at the Genosa house, because the latter feared that Ben would
come home drunk and hurt her. On one occasion that Ecel did sleep over, she was
awakened about ten oclock at night, because the couple were very noisy and I
heard something was broken like a vase. Then Marivic came running into Ecels room
and locked the door. Ben showed up by the window grill atop a chair, scaring them
with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this
time to find Ben -- but they were unable to. They returned to the Genosa home,
where they found him already drunk. Again afraid that he might hurt her, Marivic
asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated;
and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three
other witnesses saw or heard the couple quarreling. [37] Marivic relates in detail the
following backdrop of the fateful night when life was snuffed out of him, showing in
the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in
the evening?
A Whole morning and in the afternoon, I was in the office working then after
office hours, I boarded the service bus and went to Bilwang. When I
reached Bilwang, I immediately asked my son, where was his father,
then my second child said, he was not home yet. I was worried because
that was payday, I was anticipating that he was gambling. So while
waiting for him, my eldest son arrived from school, I prepared dinner for
my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.

Q Is this your house or you are renting?

A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with
me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep
with me, but she resisted because she had fears that the same thing will
happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her
because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What
else did he do if any?
A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I
was just worried he might be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to
avoid trouble for fear that he will beat me again. Perhaps he was
disappointed because I just ignore him of his provocation and he switch
off the light and I said to him, why did you switch off the light when the
children were there. At that time I was also attending to my children who
were doing their assignments. He was angry with me for not answering
his challenge, so he went to the kitchen and [got] a bolo and cut the
antenna wire to stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were
scared and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was
carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to
the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for
packing his clothes, then he dragged me again of the bedroom holding
my neck.
Q You said that when Ben came back to your house, he dragged you? How
did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept
on shouting at me that you might as well be killed so there will be
nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled
his wallet which contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and then the wallet
and the blade fell. The one he used to open the drawer I saw, it was a
pipe about that long, and when he was about to pick-up the wallet and
the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I
had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).

xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe
this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me. [38]
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert
witness to assist it in understanding the psyche of a battered person. She had met
with Marivic Genosa for five sessions totaling about seventeen hours. Based on their
talks, the former briefly related the latters ordeal to the court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you
in laymans term describe to this Court what her life was like as said to
you?
A: What I remember happened then was it was more than ten years, that
she was suffering emotional anguish. There were a lot of instances of
abuses, to emotional abuse, to verbal abuse and to physical abuse. The
husband had a very meager income, she was the one who was
practically the bread earner of the family. The husband was involved in a
lot of vices, going out with barkadas, drinking, even womanizing being
involved in cockfight and going home very angry and which will trigger a
lot of physical abuse. She also had the experience a lot of taunting from
the husband for the reason that the husband even accused her of

infidelity, the husband was saying that the child she was carrying was
not his own. So she was very angry, she was at the same time very
depressed because she was also aware, almost like living in purgatory or
even hell when it was happening day in and day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but
wittingly or unwittingly put forward, additional supporting evidence as shown below:
Q In your first encounter with the appellant in this case in 1999, where you
talked to her about three hours, what was the most relevant information
did you gather?
A The most relevant information was the tragedy that happened. The most
important information were escalating abuses that she had experienced
during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already
knew of the facts of the case or at least you have substantial knowledge
of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can
consider them as substantial.
xxxxxxxxx
Q Did you gather an information from Marivic that on the side of her
husband they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband
that were fond of battering their wives?
A What I remember that there were brothers of her husband who are also
battering their wives.
Q Did she not inform you that there was an instance that she stayed in a
hotel in Ormoc where her husband followed her and battered [her]
several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that
room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being
battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this

matter. I think that is the first time that we have this in the Philippines,
what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened,
it was really a self-defense. I also believe that there had been
provocation and I also believe that she became a disordered person. She
had to suffer anxiety reaction because of all the battering that
happened and so she became an abnormal person who had lost shes
not during the time and that is why it happened because of all the
physical battering, emotional battering, all the psychological abuses
that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes. [40]
Parenthetically, the credibility of appellant was demonstrated as follows:
Q And you also said that you administered [the] objective personality test,
what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial Inventory.
The purpose of that test is to find out about the lying prone[ne]ss of the
person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she
someone who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person
that I can trust. That the data that Im gathering from her are the truth.
[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified
on his Psychiatric Report,[42] which was based on his interview and examination of
Marivic Genosa. The Report said that during the first three years of her marriage to
Ben, everything looked good -- the atmosphere was fine, normal and happy -- until
Ben started to be attracted to other girls and was also enticed in[to] gambling[,]
especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed toward his
family, particularly to his wife. The Report continued: At first, it was verbal and
emotional abuses but as time passed, he became physically abusive. Marivic
claimed that the viciousness of her husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that
her husband went for a drinking [spree]. They had been married for twelve years[;]
and practically more than eight years, she was battered and maltreated relentlessly
and mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain.
Further quoting from the Report, [s]he also sought the advice and help of close

relatives and well-meaning friends in spite of her feeling ashamed of what was
happening to her. But incessant battering became more and more frequent and
more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the Courts
mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman,
her state of mind metamorphoses. In determining her state of mind, we cannot rely
merely on the judgment of an ordinary, reasonable person who is evaluating the
events immediately surrounding the incident. A Canadian court has aptly pointed
out that expert evidence on the psychological effect of battering on wives and
common law partners are both relevant and necessary. How can the mental state of
the appellant be appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why should she
continue to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her bags and
go. Where is her self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted with the so-called
battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should not be
drawn from that of an ordinary, reasonable person. What goes on in the mind of a
person who has been subjected to repeated, severe beatings may not be consistent
with -- nay, comprehensible to -- those who have not been through a similar
experience. Expert opinion is essential to clarify and refute common myths and
misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research on
domestic violence, has had a significant impact in the United States and the United
Kingdom on the treatment and prosecution of cases, in which a battered woman is
charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the
latters ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape. [46] In her years of research, Dr. Walker found
that the abuse often escalates at the point of separation and battered women are in
greater danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered woman
usually has a very low opinion of herself. She has x x x self-defeating and selfsacrificing characteristics. x x x [W]hen the violence would happen, they usually
think that they provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered woman does
not readily leave an abusive partner -- poverty, self-blame and guilt arising from the
latters belief that she provoked the violence, that she has an obligation to keep the

family intact at all cost for the sake of their children, and that she is the only hope
for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had
previously testified in suits involving violent family relations, having evaluated
probably ten to twenty thousand violent family disputes within the Armed Forces of
the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in
Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to
her loss of consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in
posttraumatic stress disorder, a form of anxiety neurosis or neurologic anxietism.
[51]
After being repeatedly and severely abused, battered persons may believe that
they are essentially helpless, lacking power to change their situation. x x x [A]cute
battering incidents can have the effect of stimulating the development of coping
responses to the trauma at the expense of the victims ability to muster an active
response to try to escape further trauma. Furthermore, x x x the victim ceases to
believe that anything she can do will have a predictable positive effect. [52]
A study[53] conducted by Martin Seligman, a psychologist at the University of
Pennsylvania, found that even if a person has control over a situation, but believes
that she does not, she will be more likely to respond to that situation with coping
responses rather than trying to escape. He said that it was the cognitive aspect
-- the individuals thoughts -- that proved all-important. He referred to this
phenomenon as learned helplessness. [T]he truth or facts of a situation turn out to
be less important than the individuals set of beliefs or perceptions concerning the
situation. Battered women dont attempt to leave the battering situation, even when
it may seem to outsiders that escape is possible, because they cannot predict their
own safety; they believe that nothing they or anyone else does will alter their
terrible circumstances.[54]
Thus, just as the battered woman believes that she is somehow responsible for
the violent behavior of her partner, she also believes that he is capable of killing
her, and that there is no escape.[55] Battered women feel unsafe, suffer from
pervasive anxiety, and usually fail to leave the relationship. [56] Unless a shelter is
available, she stays with her husband, not only because she typically lacks a means
of self-support, but also because she fears that if she leaves she would be found and
hurt even more.[57]
In the instant case, we meticulously scoured the records for specific evidence
establishing that appellant, due to the repeated abuse she had suffered from her
spouse over a long period of time, became afflicted with the battered woman
syndrome. We, however, failed to find sufficient evidence that would support such a
conclusion. More specifically, we failed to find ample evidence that would confirm
the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the cycle of violence
supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt
there were acute battering incidents. In relating to the court a quo how the fatal
incident that led to the death of Ben started, Marivic perfectly described the
tension-building phase of the cycle. She was able to explain in adequate detail the

typical characteristics of this stage. However, that single incident does not prove
the existence of the syndrome. In other words, she failed to prove that in at least
another battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to
acute battering? How did Marivic normally respond to Bens relatively minor abuses?
What means did she employ to try to prevent the situation from developing into the
next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of
the cycle. She simply mentioned that she would usually run away to her mothers or
fathers house;[58] that Ben would seek her out, ask for her forgiveness and promise
to change; and that believing his words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her
spouse? Did she believe that she was the only hope for Ben to reform? And that she
was the sole support of his emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless and trapped in their relationship?
Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the essential
characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the
defense. Indeed, they were able to explain fully, albeit merely theoretically and
scientifically, how the personality of the battered woman usually evolved or
deteriorated as a result of repeated and severe beatings inflicted upon her by her
partner or spouse. They corroborated each others testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to
present in court the factual experiences and thoughts that appellant had related to
them -- if at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying
circumstance must be proven in order to be appreciated. To repeat, the records lack
supporting evidence that would establish all the essentials of the battered woman
syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself
establish the legal right of the woman to kill her abusive partner. Evidence must still
be considered in the context of self-defense. [59]
From the expert opinions discussed earlier, the Court reckons further that crucial
to the BWS defense is the state of mind of the battered woman at the time of the
offense[60] -- she must have actually feared imminent harm from her batterer and
honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to
self-defense must face a real threat on ones life; and the peril sought to be avoided

must be imminent and actual, not merely imaginary.[61] Thus, the Revised Penal
Code provides the following requisites and effect of self-defense: [62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
Unlawful aggression is the most essential element of self-defense. [63] It
presupposes actual, sudden and unexpected attack -- or an imminent danger
thereof -- on the life or safety of a person. [64] In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time interval
between the unlawful aggression of Ben and her fatal attack upon him. She had
already been able to withdraw from his violent behavior and escape to their
childrens bedroom. During that time, he apparently ceased his attack and went to
bed. The reality or even the imminence of the danger he posed had ended
altogether. He was no longer in a position that presented an actual threat on her life
or safety.
Had Ben still been awaiting Marivic when she came out of their childrens
bedroom -- and based on past violent incidents, there was a great probability that
he would still have pursued her and inflicted graver harm -- then, the imminence of
the real threat upon her life would not have ceased yet. Where the brutalized
person is already suffering from BWS, further evidence of actual physical assault at
the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly
attack before she can defend her life would amount to sentencing her to murder by
installment.[65] Still, impending danger (based on the conduct of the victim in
previous battering episodes) prior to the defendants use of deadly force must be
shown. Threatening behavior or communication can satisfy the required imminence
of danger.[66] Considering such circumstances and the existence of BWS, selfdefense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant
self-defense.[67] In the absence of such aggression, there can be no self-defense -complete or incomplete -- on the part of the victim. [68] Thus, Marivics killing of Ben
was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other
modifying circumstances that would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly
for review on any issue, including that which has not been raised by the parties. [69]

From several psychological tests she had administered to Marivic, Dra. Dayan, in
her Psychological Evaluation Report dated November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated battering
Marivic experienced with her husband constitutes a form of [cumulative]
provocation which broke down her psychological resistance and natural self-control.
It is very clear that she developed heightened sensitivity to sight of impending
danger her husband posed continuously. Marivic truly experienced at the hands of
her abuser husband a state of psychological paralysis which can only be ended by
an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect
of repetitious pain taking, repetitious battering, [and] repetitious maltreatment as
well as the severity and the prolonged administration of the battering is
posttraumatic stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the
severity of the battering. Third, the prolonged administration of
battering or the prolonged commission of the battering and the
psychological and constitutional stamina of the victim and another one
is the public and social support available to the victim. If nobody is
interceding, the more she will go to that disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the qualifications in terms of
severity of the postraumatic stress disorder, Dr. Pajarillo?
A

The severity is the most severe continuously to trig[g]er this

post[t]raumatic stress disorder is injury to the head, banging of the head
like that. It is usually the very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the
individual, and boxing the individual. In this situation therefore, the
victim is heightened to painful stimulus, like for example she is
pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is
heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you
classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or
[atypical]?
A The acute is the one that usually require only one battering and the
individual will manifest now a severe emotional instability, higher
irritability remorse, restlessness, and fear and probably in most [acute]

cases the first thing will be happened to the individual will be thinking of
suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment,
any prolonged, it is longer than six (6) months. The [acute] is only the
first day to six (6) months. After this six (6) months you become chronic.
It is stated in the book specifically that after six (6) months is chronic.
The [a]typical one is the repetitious battering but the individual who is
abnormal and then become normal. This is how you get neurosis from
neurotic personality of these cases of post[t]raumatic stress disorder. [72]
Answering the questions propounded by the trial judge, the expert witness
clarified further:
Q But just the same[,] neurosis especially on battered woman syndrome x x
x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence inflicted upon
appellant resulted in cumulative provocation which broke down her psychological
resistance and natural self-control, psychological paralysis, and difficulty in
concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations were
analogous to an illness that diminished the exercise by appellant of her will power
without, however, depriving her of consciousness of her acts. There was, thus, a
resulting diminution of her freedom of action, intelligence or intent. Pursuant to
paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating circumstance of
having acted upon an impulse so powerful as to have naturally produced passion
and obfuscation. It has been held that this state of mind is present when a crime is
committed as a result of an uncontrollable burst of passion provoked by prior unjust
or improper acts or by a legitimate stimulus so powerful as to overcome reason.
[77]
To appreciate this circumstance, the following requisites should concur: (1) there
is an act, both unlawful and sufficient to produce such a condition of mind; and (2)
this act is not far removed from the commission of the crime by a considerable
length of time, during which the accused might recover her normal equanimity. [78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened to kill her
while dragging her by the neck towards a cabinet in which he had kept a gun. It
should also be recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus. [79]His abusive and violent acts,
an aggression which was directed at the lives of both Marivic and her unborn child,
naturally produced passion and obfuscation overcoming her reason. Even though
she was able to retreat to a separate room, her emotional and mental state

continued. According to her, she felt her blood pressure rise; she was filled with
feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took
the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no
considerable period of time within which Marivic could have recovered her normal
equanimity. Helpful is Dr. Pajarillos testimony [80] that with neurotic anxiety -- a
psychological effect on a victim of overwhelming brutality [or] trauma -- the victim
relives the beating or trauma as if it were real, although she is not actually being
beaten at the time. She cannot control re-experiencing the whole thing, the most
vicious and the trauma that she suffered. She thinks of nothing but the suffering.
Such reliving which is beyond the control of a person under similar circumstances,
must have been what Marivic experienced during the brief time interval and
prevented her from recovering her normal equanimity. Accordingly, she should
further be credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as
well as passion and obfuscation -- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the
severity of the battery inflicted by the batterer-spouse upon appellant. That is, the
repeated beatings over a period of time resulted in her psychological paralysis,
which was analogous to an illness diminishing the exercise of her will power without
depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident occurred
when she was eight months pregnant with their child was deemed by her as an
attempt not only on her life, but likewise on that of their unborn child. Such
perception naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by
employing means, methods or forms in the execution thereof without risk to oneself
arising from the defense that the offended party might make. [81] In order to qualify
an act as treacherous, the circumstances invoked must be proven as indubitably as
the killing itself; they cannot be deduced from mere inferences, or conjectures,
which have no place in the appreciation of evidence. [82] Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself. [83]
Ruling that treachery was present in the instant case, the trial court imposed
the penalty of death upon appellant. It inferred this qualifying circumstances merely
from the fact that the lifeless body of Ben had been found lying in bed with an open,
depressed, circular fracture located at the back of his head. As to exactly how and
when he had been fatally attacked, however, the prosecution failed to establish
indubitably. Only the following testimony of appellant leads us to the events
surrounding his death:

Q You said that when Ben came back to your house, he dragged you? How
did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept
on shouting at me that you might as well be killed so there will be
nobody to nag me
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled
his wallet which contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and then the wallet
and the blade fell. The one he used to open the drawer I saw, it was a
pipe about that long, and when he was about to pick-up the wallet and
the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I
had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxxxxxxxx
Q You said that he dropped the blade, for the record will you please describe
this blade about 3 inches long, how does it look like?
A Three (3) inches long and inch wide.

Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxxxxxxxx
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I
smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened
before when I was admitted in PHILPHOS Clinic, I was about to vomit. I
know my blood pressure was raised. I was frightened I was about to die
because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the
witness at the same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through with him, I
took pity on myself and I felt I was about to die also because of my
blood pressure and the baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence of treachery. There
is no showing of the victims position relative to appellants at the time of the
shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an

argument or a quarrel, treachery cannot be appreciated as a qualifying

circumstance, because the deceased may be said to have been forewarned and to
have anticipated aggression from the assailant. [85]
Moreover, in order to appreciate alevosia, the method of assault adopted by the
aggressor must have been consciously and deliberately chosen for the specific
purpose of accomplishing the unlawful act without risk from any defense that might
be put up by the party attacked. [86] There is no showing, though, that the present
appellant intentionally chose a specific means of successfully attacking her husband
without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about
the same moment when she decided to kill her batterer-spouse. In the absence of
any convincing proof that she consciously and deliberately employed the method by
which she committed the crime in order to ensure its execution, this Court resolves
the doubt in her favor.[87]

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code
is reclusion perpetua to death. Since two mitigating circumstances and no
aggravating circumstance have been found to have attended the commission of the
offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of
paragraph 5[88] of the same Code.[89] The penalty ofreclusion temporal in its medium
period is imposable, considering that two mitigating circumstances are to be taken
into account in reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of the offense.
[90]
Under the Indeterminate Sentence Law, the minimum of the penalty shall be
within the range of that which is next lower in degree -- prision mayor -- and the
maximum shall be within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six (6)
years and one (1) day in prison as minimum; to reclusion temporal in its medium
period, or 14 years 8 months and 1 day as maximum. Noting that appellant has
already served the minimum period, she may now apply for and be released from
detention on parole.[91]

Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was
neither easy nor simple to analyze and recognize vis--vis the given set of facts in
the present case. The Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which decisions are made -on the basis of existing law and jurisprudence applicable to the proven facts. To give
a just and proper resolution of the case, it endeavored to take a good look at studies
conducted here and abroad in order to understand the intricacies of the syndrome
and the distinct personality of the chronically abused person. Certainly, the Court

has learned much. And definitely, the solicitor general and appellants counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work
within the limits of law, jurisprudence and given facts. We cannot make or invent
them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom,
may do so.
The Court, however, is not discounting the possibility of self-defense arising
from the battered woman syndrome. We now sum up our main points. First, each of
the phases of the cycle of violence must be proven to have characterized at least
two battering episodes between the appellant and her intimate partner. Second, the
final acute battering episode preceding the killing of the batterer must have
produced in the battered persons mind an actual fear of an imminent harm from her
batterer and an honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed probable -- not
necessarily immediate and actual -- grave harm to the accused, based on the
history of violence perpetrated by the former against the latter. Taken altogether,
these circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is
hereby AFFIRMED. However, there being two (2) mitigating circumstances and no
aggravating circumstance attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14
years, 8 months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby
imposed
upon
her,
the
director
of
the
Bureau
of Corrections
may
immediately RELEASE her from custody upon due determination that she is eligible
for parole, unless she is being held for some other lawful cause. Costs de oficio.
SO ORDERED.
VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J.:
Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45,
seeking to set aside the Decision[1] of the Court of Appeals Eighth Division in CA-G.R.
CR No. 20995, promulgated on 31 July 2001. The Decision affirmed with
modification the judgment of the Regional Trial Court (RTC) of Manila, Branch 19,
dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas
Pambansa Blg. 22[2] (B.P. 22), otherwise known as the Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation of B.P.
22 against Ty before the RTC of Manila. The Informations were docketed as Criminal

Cases No. 93-130459 to No. 93-130465. The accusatory

the Information in Criminal Case No. 93-130465 reads as follows:

portion

of

That on or about May 30, 1993, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and feloniously make or draw and issue to
Manila Doctors Hospital to apply on account or for value to Editha L. Vecino Check
No. Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in
the amount of P30,000.00, said accused well knowing that at the time of issue she
did not have sufficient funds in or credit with the drawee bank for payment of such
check in full upon its presentment, which check when presented for payment within
ninety (90) days from the date hereof, was subsequently dishonored by the drawee
bank for Account Closed and despite receipt of notice of such dishonor, said
accused failed to pay said Manila Doctors Hospital the amount of the check or to
make arrangement for full payment of the same within five (5) banking days after
receiving said notice.
Contrary to law.[3]
The other Informations are similarly worded except for the number of the checks
and dates of issue. The data are hereunder itemized as follows:
Criminal Case No. Check No. Postdated Amount
93-130459 487710 30 March 1993 30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00
93-130463 487706 30 November 1992 P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.00[4]
The cases were consolidated and jointly tried. At her arraignment, Ty pleaded
not guilty.[5]
The evidence for the prosecution shows that Tys mother Chua Lao So Un was
confined at the Manila Doctors Hospital (hospital) from 30 October 1990 until 4 June
1992. Being the patients daughter, Ty signed the Acknowledgment of Responsibility
for Payment in the Contract of Admission dated 30 October 1990.[6] As of 4 June

1992, the Statement of Account[7]shows the total liability of the mother in the
amount of P657,182.40. Tys sister, Judy Chua, was also confined at the hospital
from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount
of P418,410.55.[8] The total hospital bills of the two patients amounted
to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she
assumed payment of the obligation in installments. [9] To assure payment of the
obligation, she drew several postdated checks against Metrobank payable to the
hospital. The seven (7) checks, each covering the amount of P30,000.00, were all
deposited on their due dates. But they were all dishonored by the drawee bank and
returned unpaid to the hospital due to insufficiency of funds, with the Account
Closed advice. Soon thereafter, the complainant hospital sent demand letters to Ty
by registered mail. As the demand letters were not heeded, complainant filed the
seven (7)Informations subject of the instant case.[10]
For her defense, Ty claimed that she issued the checks because of an
uncontrollable fear of a greater injury. She averred that she was forced to issue the
checks to obtain release for her mother whom the hospital inhumanely and harshly
treated and would not discharge unless the hospital bills are paid. She alleged that
her mother was deprived of room facilities, such as the air-condition unit,
refrigerator and television set, and subject to inconveniences such as the cutting off
of the telephone line, late delivery of her mothers food and refusal to change the
latters gown and bedsheets. She also bewailed the hospitals suspending medical
treatment of her mother. The debasing treatment, she pointed out, so affected her
mothers mental, psychological and physical health that the latter contemplated
suicide if she would not be discharged from the hospital. Fearing the worst for her
mother, and to comply with the demands of the hospital, Ty was compelled to sign a
promissory note, open an account with Metrobank and issue the checks to effect her
mothers immediate discharge.[11]
Giving full faith and credence to the evidence offered by the prosecution, the
trial court found that Ty issued the checks subject of the case in payment of the
hospital bills of her mother and rejected the theory of the defense. [12] Thus, on 21
April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of
violation of B.P. 22 and sentencing her to a prison term. The dispositive part of
the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in
payment of a valid obligation, which turned unfounded on their respective dates of
maturity, is found guilty of seven (7) counts of violations of Batas Pambansa Blg. 22,
and is hereby sentenced to suffer the penalty of imprisonment of SIX MONTHS per
count or a total of forty-two (42) months.
SO ORDERED.[13]

Ty interposed an appeal from the Decision of the trial court. Before the Court of
Appeals, Ty reiterated her defense that she issued the checks under the impulse of
an uncontrollable fear of a greater injury or in avoidance of a greater evil or
injury. She also argued that the trial court erred in finding her guilty when evidence
showed there was absence of valuable consideration for the issuance of the checks
and the payee had knowledge of the insufficiency of funds in the account. She
protested that the trial court should not have applied the law mechanically, without
due regard to the principles of justice and equity. [14]
In its Decision dated 31 July 2001, the appellate court affirmed the judgment of
the trial court with modification. It set aside the penalty of imprisonment and
instead sentenced Ty to pay a fine of sixty thousand pesos (P60,000.00) equivalent
to double the amount of the check, in each case. [15]
In its assailed Decision, the Court of Appeals rejected Tys defenses of
involuntariness in the issuance of the checks and the hospitals knowledge of her
checking accounts lack of funds.It held that B.P. 22 makes the mere act of issuing a
worthless check punishable as a special offense, it being a malum prohibitum. What
the law punishes is the issuance of a bouncing check and not the purpose for which
it was issued nor the terms and conditions relating to its issuance. [16]
Neither was the Court of Appeals convinced that there was no valuable
consideration for the issuance of the checks as they were issued in payment of the
hospital bills of Tys mother.[17]
In sentencing Ty to pay a fine instead of a prison term, the appellate court
applied the case of Vaca v. Court of Appeals[18] wherein this Court declared that in
determining the penalty imposed for violation of B.P. 22, the philosophy underlying
the Indeterminate Sentence Law should be observed, i.e., redeeming valuable
human material and preventing unnecessary deprivation of personal liberty and
economic usefulness, with due regard to the protection of the social order. [19]
Petitioner now comes to this Court basically alleging the same issues raised
before the Court of Appeals. More specifically, she ascribed errors to the appellate
court based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS
FORCED TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE
ISSUANCE OF THE SUBJECT CHECKS.
B. THE
CHECKS
WERE
ISSUED
UNDER
THE
IMPULSE
OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE OF
A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE

CONSIDERATION IN THE ISSUANCE OFTHE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY
AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE
TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW
MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE
AND EQUITY.
In its Memorandum,[20] the Office of the Solicitor General (OSG), citing
jurisprudence, contends that a check issued as an evidence of debt, though not
intended to be presented for payment, has the same effect as an ordinary check;
hence, it falls within the ambit of B.P. 22. And when a check is presented for
payment, the drawee bank will generally accept the same, regardless of whether it
was issued in payment of an obligation or merely to guarantee said obligation. What
the law punishes is the issuance of a bouncing check, not the purpose for which it
was issued nor the terms and conditions relating to its issuance. The mere act of
issuing a worthless check is malum prohibitum.[21]
We find the petition to be without merit and accordingly sustain Tys conviction.
Well-settled is the rule that the factual findings and conclusions of the trial court
and the Court of Appeals are entitled to great weight and respect, and will not be
disturbed on appeal in the absence of any clear showing that the trial court
overlooked certain facts or circumstances which would substantially affect the
disposition of the case.[22] Jurisdiction of this Court over cases elevated from the
Court of Appeals is limited to reviewing or revising errors of law ascribed to the
Court of Appeals whose factual findings are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the
findings are totally devoid of support in the record or that they are so glaringly
erroneous as to constitute serious abuse of discretion. [23]
In the instant case, the Court discerns no compelling reason to reverse the
factual findings arrived at by the trial court and affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject of this case. She,
however, claims that the issuance of the checks was under the impulse of an
uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She
would also have the Court believe that there was no valuable consideration in the
issuance of the checks.

However, except for the defenses claim of uncontrollable fear of a greater injury
or avoidance of a greater evil or injury, all the grounds raised involve factual issues
which are best determined by the trial court. And, as previously intimated, the trial
court had in fact discarded the theory of the defense and rendered judgment
accordingly.
Moreover, these arguments are a mere rehash of arguments unsuccessfully
raised before the trial court and the Court of Appeals. They likewise put to issue
factual questions already passed upon twice below, rather than questions of law
appropriate for review under a Rule 45 petition.
The only question of law raisedwhether the defense of uncontrollable fear is
tenable to warrant her exemption from criminal liabilityhas to be resolved in the
negative. For this exempting circumstance to be invoked successfully, the following
requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must be
real and imminent; and (3) the fear of an injury is greater than or at least equal to
that committed.[24]
It must appear that the threat that caused the uncontrollable fear is of such
gravity and imminence that the ordinary man would have succumbed to it. [25] It
should be based on a real, imminent or reasonable fear for ones life or limb. [26] A
mere threat of a future injury is not enough. It should not be speculative, fanciful, or
remote.[27] A person invoking uncontrollable fear must show therefore that the
compulsion was such that it reduced him to a mere instrument acting not only
without will but against his will as well. [28] It must be of such character as to leave no
opportunity to the accused for escape.[29]
In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checksa condition the
hospital allegedly demanded of her before her mother could be dischargedfor fear
that her mothers health might deteriorate further due to the inhumane treatment of
the hospital or worse, her mother might commit suicide. This is speculative fear; it
is not the uncontrollable fear contemplated by law.
To begin with, there was no showing that the mothers illness was so lifethreatening such that her continued stay in the hospital suffering all its alleged
unethical treatment would induce a well-grounded apprehension of her
death. Secondly, it is not the laws intent to say that any fear exempts one from
criminal liability much less petitioners flimsy fear that her mother might commit
suicide. In other words, the fear she invokes was not impending or insuperable as to
deprive her of all volition and to make her a mere instrument without will, moved
exclusively by the hospitals threats or demands.

Ty has also failed to convince the Court that she was left with no choice but to
commit a crime. She did not take advantage of the many opportunities available to
her to avoid committing one. By her very own words, she admitted that the
collateral or security the hospital required prior to the discharge of her mother may
be in the form of postdated checks or jewelry. [30] And if indeed she was coerced to
open an account with the bank and issue the checks, she had all the opportunity to
leave the scene to avoid involvement.
Moreover, petitioner had sufficient knowledge that the issuance of checks
without funds may result in a violation of B.P. 22. She even testified that her counsel
advised her not to open a current account nor issue postdated checks because the
moment I will not have funds it will be a big problem. [31] Besides, apart from
petitioners bare assertion, the record is bereft of any evidence to corroborate and
bolster her claim that she was compelled or coerced to cooperate with and give in
to the hospitals demands.
Ty
likewise
suggests
in
the
prefatory
statement
of
her Petition and Memorandum that the justifying circumstance of state of necessity
under par. 4, Art. 11 of the Revised Penal Code may find application in this case.
We do not agree. The law prescribes the presence of three requisites to exempt
the actor from liability under this paragraph: (1) that the evil sought to be avoided
actually exists; (2) that the injury feared be greater than the one done to avoid it;
(3) that there be no other practical and less harmful means of preventing it. [32]
In the instant case, the evil sought to be avoided is merely expected or
anticipated. If the evil sought to be avoided is merely expected or anticipated or
may happen in the future, this defense is not applicable. [33] Ty could have taken
advantage of an available option to avoid committing a crime. By her own
admission, she had the choice to give jewelry or other forms of security instead of
postdated checks to secure her obligation.
Moreover, for the defense of state of necessity to be availing, the greater injury
feared should not have been brought about by the negligence or imprudence, more
so, the willful inaction of the actor. [34] In this case, the issuance of the bounced
checks was brought about by Tys own failure to pay her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of state of
necessity to absolve her of liability. It would not have been half as bizarre had Ty
been able to prove that the issuance of the bounced checks was done without her
full volition. Under the circumstances, however, it is quite clear that neither
uncontrollable fear nor avoidance of a greater evil or injury prompted the issuance
of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the Civil
Case[35] for damages filed by Tys mother against the hospital is wholly irrelevant for
purposes of disposing the case at bench. While the findings therein may establish a
claim for damages which, we may add, need only be supported by a preponderance
of evidence, it does not necessarily engender reasonable doubt as to free Ty from
liability.
As to the issue of consideration, it is presumed, upon issuance of the checks, in
the absence of evidence to the contrary, that the same was issued for valuable
consideration.[36] Section 24[37] of the Negotiable Instruments Law creates a
presumption that every party to an instrument acquired the same for a
consideration[38] or for value.[39] In alleging otherwise, Ty has the onus to prove that
the checks were issued without consideration. She must present convincing
evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her burden of
proof. Valuable consideration may in general terms, be said to consist either in some
right, interest, profit, or benefit accruing to the party who makes the contract, or
some forbearance, detriment, loss or some responsibility, to act, or labor, or service
given, suffered or undertaken by the other aide. Simply defined, valuable
consideration means an obligation to give, to do, or not to do in favor of the party
who makes the contract, such as the maker or indorser. [40]
In this case, Tys mother and sister availed of the services and the facilities of
the hospital. For the care given to her kin, Ty had a legitimate obligation to pay the
hospital by virtue of her relationship with them and by force of her signature on her
mothers Contract of Admission acknowledging responsibility for payment, and on
the promissory note she executed in favor of the hospital.
Anent Tys claim that the obligation to pay the hospital bills was not her personal
obligation because she was not the patient, and therefore there was no
consideration for the checks, the case of Bridges v. Vann, et al.[41] tells us that it is
no defense to an action on a promissory note for the maker to say that there was no
consideration which was beneficial to him personally; it is sufficient if the
consideration was a benefit conferred upon a third person, or a detriment suffered
by the promisee, at the instance of the promissor. It is enough if the obligee
foregoes some right or privilege or suffers some detriment and the release and
extinguishment of the original obligation of George Vann, Sr., for that of appellants
meets the requirement.Appellee accepted one debtor in place of another and gave
up a valid, subsisting obligation for the note executed by the appellants. This, of
itself, is sufficient consideration for the new notes.
At any rate, the law punishes the mere act of issuing a bouncing check, not the
purpose for which it was issued nor the terms and conditions relating to its

issuance.[42] B.P. 22 does not make any distinction as to whether the checks within
its contemplation are issued in payment of an obligation or to merely guarantee the
obligation.[43] The thrust of the law is to prohibit the making of worthless checks and
putting them into circulation.[44] As this Court held in Lim v. People of the Philippines,
[45]
what is primordial is that such issued checks were worthless and the fact of its
worthlessness is known to the appellant at the time of their issuance, a required
element under B.P. Blg. 22.
The law itself creates a prima facie presumption of knowledge of insufficiency of
funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. The making, drawing and
issuance of a check payment of which is refused by the drawee bank because of
insufficient funds in or credit with such bank, when presented within ninety (90)
days from the date of the check, shall be prima facie evidence of knowledge of such
insufficiency of funds or credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for payment in full by the drawee
of such check within five (5) banking days after receiving notice that such check has
not been paid by the drawee.
Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds.[46] If not rebutted, it suffices to sustain a conviction. [47]
Petitioner likewise opines that the payee was aware of the fact that she did not
have sufficient funds with the drawee bank and such knowledge necessarily
exonerates her liability.
The knowledge of the payee of the insufficiency or lack of funds of the drawer
with the drawee bank is immaterial as deceit is not an essential element of an
offense penalized by B.P. 22. The gravamen of the offense is the issuance of a bad
check, hence, malice and intent in the issuance thereof is inconsequential. [48]
In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein this
Court inquired into the true nature of transaction between the drawer and the
payee and finally acquitted the accused, to persuade the Court that the
circumstances surrounding her case deserve special attention and do not warrant a
strict and mechanical application of the law.
Petitioners reliance on the case is misplaced. The material operative facts
therein obtaining are different from those established in the instant petition. In the
1992 case, the bounced checks were issued to cover a warranty deposit in a lease
contract, where the lessor-supplier was also the financier of the deposit. It was
a modus operandi whereby the supplier was able to sell or lease the goods while
privately financing those in desperate need so they may be accommodated. The

maker of the check thus became an unwilling victim of a lease agreement under the
guise of a lease-purchase agreement. The maker did not benefit at all from the
deposit, since the checks were used as collateral for an accommodation and not to
cover the receipt of an actual account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an actual
account or for value. Substantial evidence, as found by the trial court and Court of
Appeals, has established that the checks were issued in payment of the hospital
bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting the penalty of
imprisonment, absent any proof that petitioner was not a first-time offender nor that
she acted in bad faith.Administrative Circular 12-2000, [50] adopting the rulings
in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes the non-imposition of
the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However,
the Court resolves to modify the penalty in view of Administrative Circular 132001[53] which clarified Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of preference
in the application of the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of preference in the
application of the penal provisions of B.P. Blg. 22 such that where the circumstances
of both the offense and the offender clearly indicate good faith or a clear mistake of
fact without taint of negligence, the imposition of a fine alone should be considered
as the more appropriate penalty. Needless to say, the determination of whether
circumstances warrant the imposition of a fine alone rests solely upon the
Judge. Should the judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-2000 does not
remove imprisonment as an alternative penalty for violations of B.P. 22; (2) the
judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice, or whether
forbearing to impose imprisonment would depreciate the seriousness of the offense,
work violence on the social order, or otherwise be contrary to the imperatives of
justice; (3) should only a fine be imposed and the accused unable to pay the fine,
there is no legal obstacle to the application of the Revised Penal Code provisions on
subsidiary imprisonment.[54]
WHEREFORE, the instant Petition is DENIED and the assailed Decision of the
Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of

violating Batas Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner

Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each
dishonored check subject of the seven cases at bar with subsidiary imprisonment in
case of insolvency in accordance with Article 39 of the Revised Penal Code. She is
also ordered to pay private complainant, Manila Doctors Hospital, the amount of Two
Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the
dishonored checks. Costs against the petitioner.
SO ORDERED.

PEOPLE
PHILIPPINES,

OF

THE
G.R. No. 184343

Plaintiff-Appellee,
Present:

QUISUMBING, J.,*
- versus -

CARPIO,**
CARPIO MORALES,***
CHICO-NAZARIO, and
Acting Chairperson,
PERALTA, JJ.

JESUS DOMINGO,
Accused-Appellant.

Promulgated:

March 2, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Appellant Jesus Domingo assails the Decision [1] of the Court of Appeals dated 30
April 2008 in CA-G.R. CR No. 30511, modifying the Decision [2] dated 13 November
2006 of Branch 13 of the Regional Trial Court (RTC) of Malolos, Bulacan. The Court of
Appeals found appellant guilty beyond reasonable doubt of murder in Criminal
Cases No. 1496-M-2000 and No. 1497-M-2000, attempted murder in Criminal Cases
No. 1498-M-2000 and No. 1501-M-2000, frustrated murder in Criminal Case No.
1500-M-2000, and frustrated homicide in Criminal Case No. 1499-M-2000.

On 7 March 2003, six Informations[3] were filed before the RTC charging appellant
with the following offenses:

Criminal Case No. 1496-M-2000 for Murder

That on or about the 29 th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a kitchen knife and screw driver and with intent to kill one Marvin
G. Indon, with evident premeditation, treachery and taking advantage
of superior strength, did then and there willfully, unlawfully and
feloniously attack, assault, stab and hit with the kitchen knife and
screw driver said Marvin G. Indon, hitting him on his body thereby
inflicting thereon mortal wounds which directly caused his death.

Criminal Case No. 1497-M-2000 for Murder

That on or about the 29 th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a kitchen knife and screw driver and with intent to kill one Melissa
G. Indon, with evident premeditation, treachery and taking advantage

of superior strength, did then and there willfully, unlawfully and

feloniously attack, assault, stab and hit with the kitchen knife and
screw driver said Melissa G. Indon, hitting her on different parts of her
body thereby inflicting thereon mortal wounds which directly caused
her death.

Criminal Case No. 1498-M-2000 for Frustrated Murder

That on or about the 29 th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with kitchen knife and screw driver, did then and there willfully,
unlawfully and feloniously, with evident premeditation and treachery
attack, assault and hit with the said screw driver one Michelle G. Indon,
a minor of 9 years old, hitting her on her back and buttocks, thereby
inflicting on her serious physical injuries which ordinarily would have
caused the death of the said Michelle G. Indon, thus performing all the
acts of execution which should have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of causes
independent of his will, this is, by the timely and able medical
assistance rendered to said Michelle G. Indon.

Criminal Case No. 1499-M-2000 for Frustrated Murder

That on or about the 29 th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a kitchen knife and screw driver, did then and there willfully,
unlawfully and feloniously, with evident premeditation and treachery,
attack, assault, stab and hit with the said kitchen knife and screw
driver one Ronaldo Galvez, hitting him on different part of his body,
thereby inflicting on him serious physical injuries which ordinarily
would have caused the death of Ronaldo Galvez, thus performing all
the acts of execution which should have produced the crime of murder
as a consequence, but nevertheless did not produce it by reason of
causes independent of his will, that is, by the timely and able medical
assistance rendered to said Ronaldo Galvez.

Criminal Case No. 1500-M-2000 for Frustrated Murder

That on or about the 29 th day of March 2000, in the municipality

of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with a kitchen knife and screw driver, did then and there willfully,
unlawfully and feloniously, with evident premeditation and treachery,
attack, assault, stab and hit with the said kitchen knife and screw
driver one Raquel Gatpandan Indon, hitting her on the different parts
of her body, thereby inflicting on her serious physical injuries which
ordinarily would have caused the death of the said Raquel Gatpandan
Indon, thus performing all the acts of execution which should have
produced the crime of murder as a consequence, but nevertheless did
not produce it by reason of causes independent of his will, that is, by
the timely and able medical assistance rendered to said Raquel
Gatpandan Indon.

Criminal Case No. 1501-M-2000 for Attempted Murder

That on or about the 29th day of March 2000, in
the municipality of San Rafael, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with a kettle and with intent to kill one Jeffer G. Indon,
did then and there willfully, unlawfully and feloniously, with evident
premeditation and treachery, commence the commission of murder
directly by overt acts, that is by attacking, assaulting, and hitting the
said Jeffer G. Indon, a 2 year old boy, with the kettle, hitting the latter
on his head, thereby inflicting upon him physical injuries and if the
accused was not able to accomplish his purpose, that is to kill the said
Jeffer G. Indon, it was not because of his voluntary desistance but due
to the timely intervention of third persons.

On 7 September 2000, appellant, with the assistance of counsel, was arraigned and
he entered separate pleas of Not Guilty to the crimes charged. Thereafter, pre-trial
conference was held, and trial ensued accordingly. [4]

Evidence for the prosecution consisted of the testimonies of complainants Raquel

Indon, Jeffer Indon, and Michelle Indon; Dr. Jacinto Caluag; Police Officer (PO) 3
Asher Villegas and PO2 Rogelio Santos.

Complainant Raquel Indon testified that between 1:00 a.m. and 2:00 a.m. of 29
March 2000, she and her minor children Melissa, Michelle, Marvin and Jeffer were
sleeping inside their house in Caingin, San Rafael, Bulacan, when she was awakened
by the sound of appellant kicking their door open. Raquel narrated that she
immediately recognized the accused, since the kitchen light illuminated his
face. Armed with a screwdriver and a kitchen knife, appellant cut the cord of the
mosquito net and repeatedly stabbed her, using the six-inch screwdriver, and hit
her right arm three times. She screamed and was heard by her sister-in-law, whose
house was contiguous to theirs. When her sister-in-law asked her for the identity of
the assailant, she immediately identified herein appellant as Doser, a name by
which he is known in the community. Appellant was angered by her reply and
said, Anong Doser? and thereafter pulled a kitchen knife from his right side and
stabbed her on the stomach. When she tried to escape from the room, four-year-old
Marvin rushed towards her. She then grabbed him and ran towards the
gate. However, before reaching the gate, she fell down and appellant stabbed her
right leg. The appellant then proceeded to stab Marvin, hitting the latter twice on
the arm and twice on his left chest. Marvin died on 3 April 2000 as a result of these
injuries. After stabbing Marvin, appellant returned back to the house, towards
Raquels two daughters Michelle and Melissa. When Raquel pleaded that the
appellant spare her daughters lives, he retorted: Ngayon pa, nagawa ko na. Melissa
died because of the stab wounds that the appellant inflicted on her; while Michelle,
who was able to hide under the papag merely sustained serious physical
injuries. The appellant also attacked two-year-old Jeffer by striking him on the head
with the screwdriver, but the latter managed to run to the house of Raquels sisterin-law. Raquel got up and ran for help, but the appellant followed her. Their
neighbor, Ronaldo Galvez, came to their rescue and tried to subdue the
appellant. Raquel, thereafter, lost consciousness. She also relayed that she was
later informed that a struggle ensued between appellant and Galvez. Appellant
inflicted wounds on Galvezs upper left chest and arms, after which Galvez was able
to hit appellant with a piece of wood, which rendered the latter
unconscious. Raquel, Melissa, Marvin, Jeffer, Galvez and the appellant were taken to
the hospital.[5]

Raquel also testified that she spent P15,000.00 for the casket of Melissa
Indon, P27,000.00 for the burial expenses of Melissa Indon and Marvin Indon, and
approximatelyP30,000.00 for the food served during their wake. She also stated
that because of her stab wounds, she spent P90,000.00 for hospitalization expenses
and medicines. However, the receipts were lost except those issued
by Sagrada Familia Hospital and Bulacan Provincial Hospital. [6]

Jeffer Indon, who was five years old at the time he testified, stated that the
scar on his forehead was the result of the stab wound inflicted by Doser. However,
on cross-examination, he admitted that he did not know who stabbed him. [7]

her
her
not
her

Michelle Indon identified the appellant as the man who stabbed her mother,
brother Marvin and her sister Melissa. She testified that the appellant stabbed
in the back once. Thereafter, she hid under the papag. She related that she did
go to the hospital anymore, because a certain Nanang Ella had already seen to
stab wound.[8]

Dr. Jacinto Caluag stated under oath that he treated Raquel Indon for multiple
stab wounds. He testified that he also assisted in the operation on Raquel to repair
her liver and gallbladder, which were damaged. He also disclosed that Raquel would
have gone into shock and died had she not been given medical attention. [9]

Police officers Asher Villegas and Rogelio Santos testified that they proceeded
to the scene of the crime after the neighbors of the complainant reported the
incident. When they arrived at the crime scene, appellant was already tied up. They
took pictures of the victims, while the kitchen knife and the screwdriver allegedly
used by the appellant were turned over to Police Officer Villegas. The complainants
and the appellant were then brought to the hospital. They recorded the incident in
the Police Blotter and prepared the statements of the witnesses. After the accused
was treated for injuries, he was brought to the police station and detained. When
asked why he committed the crime, accused denied knowledge of what happened.
[10]

In an Order dated 10 July 2003, the trial court ordered that Ronaldo Galvezs
testimony during his direct examination be stricken off the records due to his
absences on the days he was scheduled to be cross-examined. [11]

The documentary evidence offered by the prosecution included the following:

(1) the sketches of Raquel Indons house, to prove that the light from the kitchen
allowed her to identify the appellant, marked as Exhibits A to A-6; (2) the Death
Certificate of Marvin Indon marked as Exhibit D; (3) the Medico-Legal Certificates of
Raquel Indon, Marvin Indon, Jeffer Indon, and Ronaldo Galvez marked as Exhibits E,

F, H, and L, respectively; (4) the Birth Certificates of Marvin Indon and Michelle
Indon marked as Exhibits B and N; (5) pictures of Melissa Indons lifeless body
marked as Exhibits G and O; (6) Sworn Statements of Ronaldo Galvez and Michelle
Indon marked as Exhibits K and M; (7) Statement of Account of the Medical
Expenses incurred by Raquel Indon, issued by Sagrada Familia Hospital in the
amount of P38,500.00, marked as Exhibit I; and (8) Statement of Account of the
Medical Expenses incurred by Raquel Indon, issued by the Bulacan Provincial
Hospital, in the amount of P7,843.00, marked as Exhibit J.[12]

In his defense, appellant testified that prior to the incident, he was in good
terms with the Indon family and that he had no record of mental illness. However
on 20 March 2000, he went to East Avenue Medical Center for a medical check-up,
and he was advised to have an operation. He suffered from sleeplessness, lack of
appetite, and nervousness.Occasionally, a voice would tell him to kill. He averred
that when he regained his memory, one week had already passed since the
incidents, and he was already detained. He only came to know of the incidents from
his sister and his children who visited him. On cross-examination he admitted that
when he regained his memory, he did not even ask the police officers why he was
incarcerated.[13]
Dr. Regienald Afroilan, a witness for the defense, also testified that appellant
was first brought to the National Center for Mental Health (Center) in August 2004
for a psychiatric evaluation, psychological examination and final testing to
determine if he could stand trial. Dr. Afroilan stated that based on his evaluation,
appellant suffered from Schizophrenia, a mental disorder characterized by the
presence of delusions and or hallucinations, disorganized speech and behavior, poor
impulse control and low frustration tolerance. He could not find out when the
appellant started to suffer this illness, but the symptoms of Schizophrenia which
were manifested by the patient indicated that he suffered from the illness six
months before the Center examined the appellant. On cross-examination, he
clarified that the evaluation finding that appellant suffered from Schizophrenia
covered the period when the appellant submitted himself to examination. [14]

In a Decision dated 13 November 2006, the RTC decreed that the appellant
was guilty beyond reasonable doubt of homicide in Criminal Cases No. 1496-M-00
and No. 1497-M-00, frustrated homicide in Criminal Cases No. 1499-M-00 and No.
1500-M-00, and attempted homicide in Criminal Cases No. 1498-M-00 and No. 1501M-00. The RTC gave credence to the principal eyewitness, Raquel Indon, whose
testimony was corroborated by Michelle Indon, regarding appellants attack on 29

March 2000. The trial court found the appellants defense of insanity unmeritorious,
since what was presented was proof of appellants mental disorder that existed five
years after the incident, but not at the time the crimes were committed. The RTC
also considered it crucial that appellant had the presence of mind to respond to
Raquel Indons pleas that her daughters be spared by saying, Ngayon pa, nagawa ko
na. It also noted that based on the psychiatrists findings, the appellant was
competent to stand trial. However, the trial court declared that there were no
qualifying circumstances to support the charges of Murder, Frustrated Murder or
Attempted Murder.[15] The dispositive part of the Decision dated 13 November
2006reads:

WHEREFORE, premises considered, the Court finds the accused guilty

beyond reasonable doubt of the crime of:

a) In Crim. Case No. 1496-M-00, Homicide, for the death of Marvin G.

Indon, minor and hereby sentences him to suffer the indeterminate
penalty of seven (7) years of prision mayor as minimum to thirteen
(13) years of reclusion temporal as maximum; and to indemnify the
heirs of the deceased in the amount of P75,000.00.

b) In Crim. Case No. 1497-M-00, Homicide, for the death of Melissa

Indon, and hereby sentences him to suffer the indeterminate penalty of
seven (7) years of prision mayor as minimum to thirteen (13) years of
reclusion temporal as maximum; and to indemnify the heirs of the
deceased in the amount of P75,000.00.

c) In Crim. Case No. 1498-M-00, Attempted Homicide, and hereby

sentences him to suffer the indeterminate penalty of six (6) months of
aresto mayor as minimum to five (5) years of prision correccional as
maximum; and to indemnify the private complainant in the amount
of P10,000.00.

d) In Crim. Case No. 1499-M-00, Frustrated Homicide, and hereby

sentences him to suffer the indeterminate penalty of five (5) years
of prision correccional as minimum to eight (8) years ofprision

correccional as maximum; and to indemnify the private complainant

Ronaldo Galvez in the amount of P30,000.00.

e) In Crim. Case No. 1500-M-00, Frustrated Homicide, and hereby

sentences him to suffer the indeterminate penalty of five (5) years
of prision correccional as minimum to eight (8) years ofprision
correccional as maximum; and to indemnify the private complainant
Raquel Gatpandan Indon in the amount of P30,000.00. Likewise,
accused is further directed to pay to the private complainant herein
the sum of P90,000.00 to cover hospitalization and medical
expenses; P42,000.00 to cover the casket and burial expenses for
Melissa and Marvin, and P30,000.00 for food expenses, all by way of
actual damages.

f) In Crim. Case No. 1501-M-00, Attempted Homicide, and

hereby sentences him to suffer the indeterminate penalty of six (6)
months of aresto mayor as minimum to five (5) years ofprision
correccional as maximum, and to indemnify the private complainant in
the amount of P10,000.00.[16]

The appellant filed an appeal before the Court of Appeals docketed as CAG.R. CR No. 30511, wherein he faulted the RTC for not taking note of the
inconsistencies in Raquel Indons testimony and for not giving due weight to his
defense of insanity.[17] In a Decision dated 30 April 2008, the appellate court
adjudged that Raquel Indons testimony was credible, and that the inconsistency
pointed out by appellantwhether or not Raquel was standing up or lying down when
appellant stabbed her legsreferred to minor details. Moreover, insanity exempts the
accused only when the finding of mental disorder refers to appellants state of mind
immediately before or at the very moment of the commission of the crime. This was
not the case when appellant was first medically examined more than four years
after the commission of the crimes. Appellants response to Raquel Indons pleas also
proved that his faculties of reasoning were unimpaired at the time of the attack
against Raquels children.[18]

The Court of Appeals nevertheless modified the RTCs Decision dated 13

November 2006 and declared that the qualifying circumstance of treachery, which

was alleged in the six Informations along with evident pre-meditation, was
adequately proven by the prosecution. Raquel Indon, Michelle Indon, Melissa Indon,
Marvin Indon, and Jeffer Indon were merely sleeping inside their bedroom and had
not even given the slightest provocation when appellant attacked them without
warning. Furthermore, the killing of Marvin Indon and Melissa Indon, both minors
who could not be expected to defend themselves against an adult, was considered
treacherous, and would sustain a conviction for murder.The penalties imposed were
adjusted accordingly. Appellants conviction for frustrated homicide in Criminal Case
No. 1499-M-2000 was affirmed, since prosecution failed to prove appellants
treachery or evident premeditation in his assault against Rolando Galvez, who came
to the scene of the crime to subdue the appellant. [19]

The Court of Appeals also modified the trial courts award of damages. It reduced the
civil indemnity of P75,000.00 awarded by the trial court, occasioned by the deaths
of Marvin Indon and Melissa Indon, to P50,000.00 and awarded the heirs of each
murder victim moral damages in the amount of P50,000.00. The awards for funeral
expenses ofP42,000.00 and food expenses of P30,000.00 were deleted by the
appellate court for lack of sufficient evidence to support the same. The appellate
court awarded Raquel Indon civil indemnity of P30,000.00 and moral damages
of P25,000.00, but reduced the actual damages of P90,000.00 awarded by the RTC
to P46,343.00,
in
accordance
with
the
Statement
of
Accounts
from Sagrada Familia Hospital and Bulacan Provincial Hospital. It affirmed the trial
courts award for moral damages of P10,000.00 in favor of Michelle Indon
and P10,000.00 in favor of Jeffer Indon. Moral damages of P25,000.00 were also
awarded by the appellate court in favor of Ronaldo Galvez. [20]

In the Decision dated 30 April 2008, the fallo reads:

WHEREFORE, the appealed Decision dated November 13, 2006 of the

trial court is modified as follows:

1) In Criminal Case No. 1496-M-2000, accused-appellant Jesus

Domingo is convicted of the crime of murder and sentenced to suffer
the penalty of reclusion perpetua and to indemnify the heirs of the
deceased Marvin Indon the amounts of P50,000.00 as civil indemnity
and P50,000.00 as moral damages. The trial courts award of funeral

and food expenses of P42,000.00 andP30,000.00 respectively, are

hereby deleted.

2) In Criminal Case No. 1497-M-2000, accused-appellant Jesus

Domingo is convicted of the crime of murder and is sentenced to suffer
the penalty of reclusion perpetua and to indemnify the heirs of the
deceased Melissa Indon the amounts of P50,000.00 as civil indemnity
and P50,000.00 as moral damages.

3) In Criminal Case No. 1498-M-2000, accused-appellant Jose

Domingo is convicted of the crime of attempted murder and is
sentenced to an indeterminate penalty of six (6) years ofprision
correccional maximum, as the minimum penalty, to ten (10) years
of prision mayor medium, as the maximum penalty and to pay Michelle
Indon P10,000.00 as moral damages.

4) In Criminal Case No. 1499-M-2000, accused-appellant Jose

Domingo is convicted of the crime of frustrated homicide and is
sentenced to an indeterminate penalty of five (5) years ofprision
correccional as minimum to eight (8) years of prision mayor as
maximum and to pay Ronaldo Galvez P25,000.00 as moral damages.

5) In Criminal Case No. 1500-M-2000, accused-appellant Jose

Domingo is convicted of the crime of frustrated murder and is
sentenced to an indeterminate penalty of twelve (12) years of prision
mayor maximum, as the minimum penalty, to seventeen (17) years
and four (4) months of reclusion temporal medium, as the maximum
penalty and to pay Raquel Indon the amount of P30,000.00 as civil
indemnity, P46, 343.00 as actual damages and P25,000.00 as moral
damages.

6) In Criminal Case No. 1501-M-2000, accused-appellant Jose

Domingo is convicted of the crime of attempted murder and is
sentenced to an indeterminate penalty of six (6) years ofprision
correccional maximum, as the minimum penalty, to ten (10) years
of prision mayor medium, as the maximum penalty and to
pay Jefferson (sic) Indon P10,000.00 as moral damages.[21]

Hence, the present petition where the appellant reiterates the assignment of
errors that were raised before the Court of Appeals, to wit:

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APPELLANT FOR THE CRIMES CHARGED HAS BEEN PROVEN
BEYOND REASONABLE DOUBT; and

II

ASSUMING THAT THE ACCUSED-APPELLANT COMMITTED THE CRIMES

CHARGED, THE TRIAL COURT GRAVELY ERRED IN NOT EXEMPTING HIM
FROM CRIMINAL LIABILITY IN VIEW OF HIS INSANITY AT THE TIME OF
THE COMMISSION OF THE SAME.[22]

This Court affirms the judgment of conviction.

The testimony of the principal witness of the prosecution, Raquel Indon, is

assailed by appellant for not being credible due to an inconsistency in her testimony
and a lack of conformity with the experience of ordinary men.

Appellant refers to Raquels testimony during cross-examination wherein she

narrated that after the appellant entered her bedroom, she screamed. Her sister-inlaw, who lived next door, responded by asking Raquel who her assailant was, and
the latter identified the appellant. Appellant claims that the conversation between
Raquel and her sister-in-law was contrary to the ordinary course of things, and that
the initial reaction of people in such a situation would be to ask for help from other
people in order to save those who are in danger. Secondly, Raquel also testified
during cross-examination that the appellant stabbed the front of her legs when she
fell down. It is also argued that the appellant could not have stabbed the front of her
legs, since she would be lying on front of her legs when she fell down.

This Court finds no merit in these arguments. To begin with, there was
nothing out of the ordinary as regards Raquels testimony on these two
matters. First, there was nothing unusual about the sister-in-laws query as to who
was attacking Raquel. Considering that the exchange merely consisted of this
question and the reply to it, it would not even be accurate to refer to it as a
conversation. Secondly, it was not impossible for the appellant to stab the front of
Raquels legs, had her legs been positioned sideways when she fell. But more
importantly, these are peripheral details that do not affect the substantial aspects of
the incident. Raquel clearly and positively testified that she was carrying her son
Marvin when she rushed to the gate and fell down, and the appellant stabbed her
legs and thereafter proceeded to stab Marvin who later died from the stab
wounds. Her testimony was supported by the Medico-Legal Reports marked as
Exhibits E and F. Any inconsistencies in such peripheral details would not exculpate
the appellant.

Appellant also asserts that he was insane or completely deprived of

intelligence during the commission of the alleged crimes, and therefore should be
exempted from criminal liability in accordance with Article 12, Chapter 2 of the
Revised Penal Code.[23] However, this claim is not supported by evidence.

Appellant offers his uncorroborated testimony as the only proof that he was
insane at the time he committed the crime. He testified that nine days before he
committed the crime, he suffered from lack of appetite, sleeplessness, and
anxiety. In addition, he allegedly heard voices ordering him to kill bad people. He
claims that he does not remember anything that happened on 29 March 2000, when

the crimes were committed, and that he was already detained when he became
conscious of his surroundings.

The law presumes every man to be of sound mind. Otherwise stated, the law
presumes that all acts are voluntary, and that it is improper to presume that acts
are done unconsciously. Thus, a person accused of a crime who pleads the
exempting circumstance of insanity has the burden of proving beyond reasonable
doubt that he or she was insane immediately before or at the moment the crime
was committed.[24]
Insanity exists when there is a complete deprivation of intelligence while
committing the act; i.e., when the accused is deprived of reason, he acts without
the least discernment because there is a complete absence of power to discern,
or there is total deprivation of freedom of the will. Mere abnormality of the
mental faculties is not enough, especially if the offender has not lost
consciousness of his acts. Insanity is evinced by a deranged and perverted
condition of the mental faculties and is manifested in language and conduct. An
insane person has no full and clear understanding of the nature and
consequences of his or her acts. [25]

Even assuming that appellants testimony is credible, his sleeplessness, lack

of appetite, nervousness and his hearing imaginary voices, while suggestive of an
abnormal mental condition, cannot be equated with a total deprivation of will or an
absence of the power to discern. Mere abnormality of mental faculties will not
exclude imputability. The popular conception of the word crazy is used to describe a
person or an act unnatural or out of ordinary. Testimony that a person acted in a
crazy or deranged manner days before the commission of the crime does not
conclusively prove that he is legally insane and will not grant him or her absolution.
[26]

Raquel Indons narration of the events presents evidence that is more

revealing of appellants mental state at the time the crime was
committed. Appellants reply to her pleas that her daughters lives be
spared, Ngayon pa, nagawa ko na, was a positive sign that he was aware of what he
was doing, and that his reasoning faculties were unimpaired.

The trial court found the testimony of Raquel Indon more credible than that of
the accused, and its findings were affirmed by the Court of Appeals. It is settled that
when the trial courts findings have been affirmed by the appellate court, said
findings are generally conclusive and binding upon this Court. This Court does not
generally disturb the findings of fact of the trial court because it is in a better
position to examine real evidence, as well as to observe the demeanor of witnesses
while testifying on the stand. Unless there is a clear showing that it overlooked
certain facts and circumstances that might alter the result of the case, the findings
of fact made by the trial court will be respected and even accorded finality by this
Court.[27]

It is also remarkable that appellants testimony is not supported by his familys

or intimate friends accounts of his purported insanity. Appellant testified that he had
been suffering from symptoms of insanity nine days before the incident. Insanity
may be shown by the surrounding circumstances fairly throwing light on the subject,
such as evidence of the allegedly deranged persons general conduct and
appearance, his conduct consistent with his previous character and habits, his
irrational acts and beliefs, as well as his improvident bargains. [28] It is difficult to
believe that appellants behavior, conduct and appearance, which would denote
mental disturbance, escaped the notice of his family and friends.

Appellant draws attention to the results of the medical examination

conducted by Dr. Regienald Afroilan in 2004, showing that he was suffering from
Schizophrenia. It should be noted however that the examination was taken four
years after the crimes were committed, and that Dr. Afroilan admitted that his
findings did not include the mental state of petitioner four years before. The alleged
insanity of an accused should relate to the period immediately before or at the very
moment the felony is committed, not at any time thereafter. Medical findings of
mental disorder, referring to a period after the time the crime was committed, will
not exempt him from criminal liability. [29]

Appellant emphasizes the fact that he was a friend of the Indon family and
would not have committed such atrocities against them, unless he was totally
deprived of reason.In People v. Madarang,[30] this Court ruled that the fact that the
accused had no quarrel with his victim prior to the killing does not prove the
unstable mental condition of the accused. Jurisprudence is replete with cases in
which lives have been terminated for the flimsiest reasons.

This Court will now discuss the imposition of penalties and modify those imposed by
the Court of Appeals. Appellant is guilty of Murder in Criminal Cases No. 1496-M2000 and No. 1497-M-2000. The penalty for murder is reclusion perpetua to
death. There being neither mitigating nor aggravating circumstances, the penalty
for murder should be imposed in its medium period, or reclusion perpetua.[31] Thus,
for the murder of Marvin Indon and Melissa Indon, the penalty imposed on appellant
is two sentences ofreclusion perpetua.

When death occurs due to a crime, the following damages may be awarded: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory
damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.
[32]

Civil indemnity is mandatory and granted to the heirs of the victim without need of
proof other than the commission of the crime.[33] Under prevailing jurisprudence, the
award of P50,000.00 to the heirs of the victim as civil indemnity is in order.
[34]
Thus, P50,000.00 is awarded to the heirs of Marvin Indon and P50,000.00 to the
heirs of Melissa Indon.

The heirs of Marvin Indon and Melissa Indon are not entitled to actual damages,
because said damages were not adequately proved. The party seeking actual
damages must produce competent proof or the best evidence obtainable, such as
receipts, to justify an award therefor. [35] The funeral expenses, to which Raquel Indon
referred in her testimony, were not supported by receipts. Nevertheless, the award
of P25,000.00 in temperate damages for homicide or murder cases is proper when
no evidence of burial or funeral expenses is presented in the trial court. [36] Under
Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot
be denied that the heirs of the victim suffered pecuniary loss although the exact
amount was not proved.[37] Thus, the heirs of Marvin Indon and Melissa Indon are
entitled to temperate damages of P25,000.00 for each death.

In cases of murder and homicide, the award of moral damages is mandatory,

without need of allegation and proof other than the death of the victim. [38] The

award of P50,000.00 as moral damages is in order for the death for Marvin Indon,
and likewise for that of Melissa Indon.

Exemplary damages of P25,000.00 should also be awarded, since the qualifying

circumstance of treachery was firmly established. [39] Marvin Indon and Melissa Indon
were both minors when they were killed by the appellant. The killing by an adult of
a minor child is treacherous. [40] Moreover, the victims in this case were asleep when
appellant barged into their house and attacked their family. The attack was clearly
unprovoked, and they were defenseless against him.

In Criminal Cases No. 1498-M-2000 and No. 1501-M-2000, appellant is guilty of the
Attempted Murder of Michelle Indon and Jeffer Indon. The penalty for Attempted
Murder is prision correccional maximum to prision mayor medium. Thus, the penalty
imposed on the appellant is two sentences of six years of prision correccional, as
minimum, to ten years of prision mayor medium, as maximum, for the attempted
murder of Michelle Indon and Jeffer Indon. In addition to the moral damages
of P10,000.00 for each victim, which the Court of Appeals imposed, appellant is also
ordered to pay civil indemnity of P20,000.00[41] and exemplary damages
of P25,000.00.[42]

In Criminal Case No. 1499-M-2000, appellant is convicted of the crime of frustrated

homicide of Ronaldo Galvez. The penalty for frustrated homicide, there being no
other mitigating or aggravating circumstances attending the same, is five years
of prision correccional as minimum to eight years and one day of prision mayor as
maximum. Moral damages in the amount of P25,000.00, awarded by the Court of
Appeals, are affirmed.

Appellant is guilty of Frustrated Murder in Criminal Case No. 1500-M2000. The penalty for Frustrated Murder is reclusion temporal, which must be
imposed in its medium period, considering that there were neither aggravating nor
mitigating circumstances that were proven in this case. Applying the Indeterminate
Sentence Law, appellant should be sentenced to suffer the penalty of twelve years
of prision mayor, as minimum, to seventeen years and four months of reclusion
temporal medium, as the maximum penalty. This Court affirms the award by the
Court of Appeals of (1) Civil Indemnity in the amount of P30,000.00;[43] (2) actual
damages of P46,343.00 for medical expenses, which are supported by receipts

marked as Exhibits I and J; and (3) moral damages of P25,000.00. Appellant is also
ordered to pay exemplary damages of P25,000.00 based on the finding that the
assault against Raquel Indon was attended by treachery. [44] The essence of
treachery is that the attack is deliberate and without warning, done in a swift and
unexpected manner of execution, affording the hapless and unsuspecting victim no
chance to resist or escape.[45] At the time Raquel was attacked, she was in her
home, unarmed and sleeping with her children. She was undoubtedly unprepared
and defenseless to resist appellants attack on her and her young children.

All the sums of money awarded to the victims and their heirs will accrue a 6%
interest from the time of this Decision until fully paid.
WHEREFORE, the instant appeal is DENIED. The Decision of the Court of
Appeals dated 30 April 2008 in CA-G.R. CR No. 30511 is MODIFIED in accordance
with the hereinabove discussion on penalties and award of damages, to wit:

1.

In Criminal Case No. 1496-M-2000, this

awards P25,000.00 as temperate damages
exemplary damages to the heirs of Marvin Indon.

Court additionally
and P25,000.00 as

2.

In Criminal Case No. 1497-M-2000, this Court additionally

awards P25,000.00 as temperate damages and P25,000.00 as
exemplary damages to the heirs of Melissa Indon.

3.

In Criminal Case No. 1498-M-2000, the Court additionally awards civil

indemnity of P20,000.00 and exemplary damages of P25,000.00 to
Michelle Indon.

4.

In Criminal Case No. 1499-M-2000, the appellant is sentenced to serve

an indeterminate penalty of five years of prision correccional as
minimum to eight years and one day of prision mayor as maximum.

5.

In Criminal Case No. 1500-M-2000, this Court additionally awards

exemplary damages of P25,000.00 to Raquel Indon.

6.

In Criminal Case No. 1501-M-2000, this Court additionally awards civil

indemnity of P20,000.00 and exemplary damages of P25,000.00 to
Jeffer Indon.

No costs.

SO ORDERED.
NIEL F. LLAVE, G.R. No. 166040
Petitioner,
Present:
PANGANIBAN, C. J., Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and

CHICO-NAZARIO, JJ. *

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:
April 26, 2006
x-----------------------------------------------------------------------------------------x
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review of the Decision [1] of the Court of Appeals
(CA) in CA-G.R. CR No. 26962 affirming, with modification, the Decision [2] of the
Regional Trial Court (RTC) of Pasay City, Branch 109, in Criminal Case No. 02-1779
convicting Petitioner Neil F. Llave of rape.
On September 27, 2002, an Information charging petitioner (then only 12
years old) with rape was filed with the RTC of Pasay City. The inculpatory portion of
the Information reads:
That on or about the 24th day of September 2002, in Pasay City,
Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, NEIL LLAVE Y FLORES, aka NIEL F.
LLAVE, a minor over nine (9) years of age and under fifteen (15) but
acting with discernment, by means of force threat and intimidation, did

then and there willfully, unlawfully, feloniously have carnal knowledge

of the complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven (7)
years of age, against her will and consent.
Contrary to law.[3]
The Case for the Prosecution
The spouses Domingo and Marilou Santos were residents of Pasay City.[4] One of
their children, Debbielyn, was born on December 8, 1994.[5] In 2002, she was a
Grade II student at the Villamor Air Base Elementary School in Pasay City[6] and
attended classes from 12:00 noon to 6:00 p.m.[7]
Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs
at a nearby church.[8] Adjacent to their house was that of Teofisto Bucud, a barbecue
vendor who would usually start selling at 6:30 p.m.[9] Next to Teofistos residence
was a vacant house.[10]
Debbielyn testified that on September 24, 2002, she arrived home at past 6:00 p.m.
She changed her clothes and proceeded to her mothers store. Marilou asked her
daughter to bring home the container with the unsold quail eggs. [11] Debbielyn did
as told and went on her way. As she neared the vacant house, she saw petitioner,
who suddenly pulled her behind a pile of hollow blocks which was in front of the
vacant house. There was a little light from the lamp post. [12] She resisted to no avail.
[13]
Petitioner ordered her to lie down on the cement. Petrified, she complied. He
removed her shorts and underwear then removed his own. He got on top of her.
[14]
She felt his penis being inserted into her vagina. He kissed her. [15] She felt pain
and cried.[16] She was sure there were passersby on the street near the vacant
house at the time.
It was then that Teofisto came out of their house and heard the girls cries. He
rushed to the place and saw petitioner on top of Debbielyn, naked from the waist
down. Teofisto shouted at petitioner, and the latter fled from the scene. Teofisto told
Debbielyn to inform her parents about what happened. [17] She told her father about
the incident.[18] Her parents later reported what happened to the police authorities.
[19]
Debbielyn told the police that petitioner was a bad boy because he was a rapist.
[20]

Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out of
their house to get his barbecue grill. He heard someone moaning from within the
adjacent vacant house.[21] He rushed to the place and saw petitioner, naked from
waist down, on top of Debbielyn, making pumping motions on her anus. [22] The girl
was crying. He shouted at petitioner, Hoy, bakit ginawa mo yan?[23] Petitioner
hurriedly put his shorts on and fled. [24] Neighbors who had heard Teofisto shouting
arrived.[25] Later, Teofisto gave a written statement to the police investigator
regarding the incident.[26]

Domingo Santos testified that at about 6:30 p.m. that day, he was inside their
house. His daughter, Kimberly Rose, suddenly told him that Debbielyn had been
raped near the vacant house by petitioner. [27] He rushed to the place and found her
daughter crying. When he asked her what happened, she replied that she had been
abused. He brought Debbielyn to their house and then left. [28] He then looked for
petitioner and found him at his grandmothers house. A barangay tanod brought
petitioner to the barangay hall.[29]On September 25, 2002, he brought her daughter
to the Philippine General Hospital Child Protection Unit at Taft Avenue, Manila where
she was examined by Dr. Mariella S. Castillo.
Dr. Castillo declared on the witness stand that she was a physician at the Child
Protection Unit of the Philippine General Hospital. On September 25, 2002, she
interviewed the victim who told her Masakit ang pepe ko, Ni-rape ako.[30] Dr. Castillo
also conducted a genital examination on the child, and found no injury on the
hymen and perineum, but found scanty yellowish discharge between the labia
minora.[31] There was also a fresh abrasion of the perineal skin at 1 oclock position
near the anal opening.[32] She declared that the findings support the theory that
blunt force or penetrating trauma (such as an erect penis, finger, or any other
foreign body[33]) was applied to the perineal area [34] not more than six or seven days
before.[35] The abrasion could have been caused on September 24, 2002. She found
no spermatozoa in the vaginal area or injury at the external genitalia; [36] neither did
she find any other injury or abrasion on the other parts of the victims body. [37] She
concluded that her findings were consistent with the victims claim that she was
sexually abused by petitioner.
Barangay Tanod Jorge Dominguez, for his part, testified that on September 24,
2002, Marilou Santos arrived at the barangay hall and reported that her daughter
had been raped by petitioner who was then in his aunts house at Cadena de Amor
Street. Barangay Captain Greg Florante ordered him and Barangay Tanod Efren
Gonzales to proceed to Cadena de Amor Street and take the boy into custody, and
they did as they were told.[38]
The Case for the Accused
Petitioner, through counsel, presented Dr. Castillo as witness. She declared
that the abrasions in the perineal area could have been caused while the offender
was on top of the victim. [39] She explained that the distance between the anus and
the genital area is between 2.5 to 3 centimeters. [40] The abrasion was located at of
an inch from the anal orifice.
Petitioner testified and declared that he was a freshman at
the Pasay City South High School.[41] He had been one of the three outstanding
students in grade school and received awards such as Best in Mathematics. [42] He
also finished a computer course and received a Certificate of Completion from the
Philippine Air Force Management Information Center. [43] He denied having raped the
private complainant. He declared that at 6:30 p.m. on September 24, 2002, he was
outside of their house to buy rice in thecarinderia[44] and he saw her on his way
back.[45] He also met his father, who asked him what he had done to their neighbor.
He was also told that the victims father was so angry that the latter wanted to kill
him.[46] He did not ask his father for the name of the angry neighbor. He was also

told to pass by Cadena de Amor Street in going to his aunts house. Petitioner also
declared that his mother prodded him to go to his aunts house. [47] Later, Domingo
and Barangay Tanod Jorge Dominguez arrived at his aunts house and brought him to
the barangay hall. He did not know of any reason why Debbielyn and her parents
would charge him with rape.[48]
Petitioner also declared that he played cards with Debbielyn.[49] While
confined at the Pasay City Youth Home during trial, he had a crush on Issa, a young
female inmate.Using a piece of broken glass (bubog) about half-an-inch long, he
inscribed her name on his right thigh, left leg and left arm. [50]
Nida Llave testified and identified her sons Certificate of Live Birth, in which it
appears that he was born on March 6, 1990.[51] She declared that at about 6:30
p.m. onSeptember 24, 2000, Marilou Santos and Marilyn Bucud arrived in their
house looking for her son. According to Marilyn, her son had raped the private
complainant. She went to their house to look for her son and came across Domingo
Santos who threatened to kill her son. She and her husband proceeded to the house
of his sister Josefina at Cadena de Amor Street where petitioner had hidden for a
while.[52]
At the conclusion of the trial, the court rendered judgment convicting Neil of
the crime charged. The decretal portion of the decision reads:
FROM ALL THE FOREGOING, the Court opines that the
prosecution has proven the guilt of the xxx Niel Llave y Flores beyond
reasonable doubt when he forcibly pulled the complainant towards the
vacant lot, laid on top of her and had carnal knowledge with the
[complainant] against her will and consent who is only seven (7) years
old (sic). Moreover, he being a minor, he cannot be meted with the
Death penalty.
WHEREFORE, the Court finds the CICL [Child in Conflict with the
Law] Niel Llave y Flores guilty beyond reasonable doubt, and crediting
him with the special mitigating circumstance of minority, this Court
hereby sentences him to prision mayor minimum, Six (6) years and
One (1) day to Eight (8) years, and pay civil indemnity of Fifty
Thousand Pesos (Php50,000.00).[53]
The trial court declared that based on the evidence of the prosecution that
petitioner pushed the victim towards the vacant house and sexually abused her,
petitioner acted with discernment. It also considered petitioners declaration that he
had been a consistent honor student.[54]
Petitioner appealed the decision to the CA, where he averred the following in
his Brief as appellant therein:
I
THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL
INCONSISTENCIES OF THE TESTIMONY OF COMPLAINING WITNESS

WITH THAT OF THE MEDICAL REPORT ON THE FACTUAL ALLEGATION OF

BLEEDING.
II
THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE
TESTIMONY OF THE PROSECUTION WITNESS TEOFISTO BUCUD WHO
HAS REASON TO FABRICATE A SCENARIO AGAINST ACCUSEDAPPELLANT BECAUSE HE HAS PERSONAL VENDETTA AGAINST THE
LATTERS FAMILY/RELATIVES.
III
THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE
PROSECUTION OF RAPE BY HAVING CARNAL KNOWLEDGE, BEING
CONTRARY TO THE PHYSICAL EVIDENCE.[55]
The CA rendered judgment affirming the decision with modification as to the
penalty meted on him.
WHEREFORE, the decision subject of the instant appeal is hereby
MODIFIED in that the accused-appellant is sentenced to an
indeterminate penalty of two (2) years and four (4) months of prision
correccional medium as the minimum to eight (8) years and one (1)
day of prision mayor medium as the maximum. Additionally, the
accused-appellant is ordered to pay the complaining witness the
amount of P50,000 by way of moral damages and P20,000 by way of
exemplary damages.
SO ORDERED.[56]
Petitioner filed a Motion for the Reconsideration, [57]contending that the
prosecution failed to adduce proof that he acted with discernment; hence, he should
be
acquitted.
The
appellate
court
denied
the
motion
in
a
Resolution[58] dated November 12, 2004 on the following finding:
As regards the issue of whether the accused-appellant acted
with discernment, his conduct during and after the crime betrays the
theory that as a minor, the accused-appellant does not have the
mental faculty to grasp the propriety and consequences of the act he
made. As correctly pointed out by the prosecution, the fact that
forthrightly upon discovery, the accused-appellant fled the scene and
hid in his grandmothers house intimates that he knew that he did
something that merits punishment.
Contrary to the urgings of the defense, the fact that the
accused-appellant is a recipient of several academic awards and is an
honor student further reinforces the finding that he [is] possessed [of]
intelligence well beyond his years and is thus poised to distinguish,
better at least than other minors his age could, which conduct is right
and which is morally reprehensible.[59]

Petitioner now raises the following issues and arguments in the instant
petition before this Court:
ISSUES
I
WHETHER OR NOT EVIDENCE WAS SUFFICIENT
PETITIONER BEYOND REASONABLE DOUBT.

TO

CONVICT

II
WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS
BUT BELOW 15 YEARS OF AGE AT THE TIME OF THE CRIME, ACTED
WITH DISCERNMENT.
III
WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.
ARGUMENTS
I
THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF
COMPLAINING WITNESS WITH THE MEDICAL REPORT BELIE THE
FINDING OF RAPE.
II
PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.
III
PETITIONER ACTED WITHOUT DISCERNMENT.
IV
THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.
V
THE COMPLAINT IS FABRICATED.
VI

PETITIONER WAS DENIED DUE PROCESS OF LAW. [60]

The issues raised by the petitioner in this case may be summarized as

follows: (1) whether he was deprived of his right to a preliminary investigation; (2)
whether he had carnal knowledge of the private complainant, and if in the
affirmative, whether he acted with discernment in perpetrating the crime; (3)
whether the penalty imposed by the appellate court is correct; and (4) whether he is
liable to pay moral damages to the private complainant.
On the first issue, petitioner avers that he was deprived of his right to a
preliminary investigation before the Information against him was filed.

On the second issue, petitioner claims that the prosecution failed to prove
beyond reasonable doubt that he had carnal knowledge of Debbielyn. He insists that
her testimony is inconsistent on material points. He points out that she claimed to
have felt pain in her vagina when petitioner inserted his penis to the point that she
cried; this, however, is negated by Dr. Castillos report stating that there was no
evidence of injury on the victims external genitalia. Petitioner maintains that as
against the victims testimony and that of Dr. Castillos report, the latter should
prevail.
According to petitioner, mere touching of the female organ will not suffice as
factual basis of conviction for consummated rape. Moreover, the victims testimony
lacks credibility in view of her admission that, while she was being allegedly
ravished by him, there were passersby along the street. Besides, petitioner avers,
an abrasion may be caused by an invasion of the body through the protective
covering of the skin. Petitioner insists that the prosecution failed to prove the cause
of the abrasion.
Petitioner also claims that the victim was tutored or coached by her parents
on her testimony before the trial court. Dr. Castillo testified that when she
interviewed Debbielyn, the latter admitted to her that she did not understand the
meaning of the word rape and its Filipino translation, hinalay, and that the genital
examination of the girl was at the insistence of the latters parents.
Petitioner avers that Teofisto Bucuds testimony has no probative weight
because and had an ill-motive to testify against him. Petitioner stated, on crossexamination, that his uncle, Boy, had the house rented by Teofisto
demolished. Petitioner avers that the witness persuaded the victims parents to
complain against him, as gleaned from the testimony of Police Investigator Milagros
Carroso.
For its part, the Office of the Solicitor General (OSG) avers that petitioner was
subjected to an inquest investigation under Section 7, Rule 112 of the Revised Rules
of Criminal Procedure, as gleaned from the Certification of the City Prosecutor
incorporated in the Information. It avers that the absence of external injuries does
not negate rape; neither is it necessary that lacerations be found on the hymen of a
victim. Rape is consummated if there is some degree of penetration within the
vaginal surface. Corroborative evidence is not necessary to prove rape. As long as
the testimony of the victim is credible, such testimony will suffice for conviction of
consummated rape. When the victim testified that she was raped, she was, in
effect, saying all that is necessary to prove that rape was consummated. Petitioners
evidence to prove ill-motive on the part of Teofisto Bucud in testifying against him is
at best flimsy. Moreover, it is incredible that the victim and her parents would
charge petitioner with rape solely on Teofistos proddings.
The OSG insists that the petitioner acted with discernment before, during,
and after the rape based on the undisputed facts. The submission of the OSG
follows:
Petitioner argues that since he was only 12 years old at the time
of the alleged rape incident, he is presumed to have acted without

discernment under paragraph 3 of Article 12 of the Revised Penal

Code. Under said provision, the prosecution has the burden of proving
that he acted with discernment. In the instant case, petitioner insists
that there was no evidence presented by the prosecution to show that
he acted with discernment. Hence, he should be exempt from criminal
liability.
Petitioners arguments are bereft of merit.
Discernment, as used in Article 12(3) of the Revised Penal Code is
defined as follows: the discernment that constitutes an exception to
the exemption from criminal liability of a minor under fifteen (15) years
of age but over nine (9), who commits an act prohibited by law, is his
mental capacity to understand the difference between right and wrong
(People v. Doquena, 68 Phil. 580 [1939]). For a minor above nine but
below fifteen years of age, he must discern the rightness or wrongness
of the effects of his act (Guevarra v. Almodova, G.R. No. 75256, January
26, 1989).
Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375,
1998 Ed.), writes that discernment is more than the mere
understanding between right and wrong. Rather, it means the mental
capacity of a minor between 9 and 15 years of age to fully appreciate
the consequences of his unlawful act (People v. Navarro, [CA] [51 O.G.
4062]). Hence, in judging whether a minor accused acted with
discernment, his mental capacity to understand the difference between
right and wrong, which may be known and should be determined by
considering all the circumstances disclosed by the record of the case,
his appearance, his attitude and his behavior and conduct, not only
before and during the commission of the act, but also after and even
during the trial should be taken into consideration (People v. Doquena,
supra).
In the instant case, petitioners actuations during and after the rape
incident, as well as his behavior during the trial showed that he acted
with discernment.
The fact appears undisputed that immediately after being
discovered by the prosecutions witness, Teofisto Bucud, petitioner
immediately stood up and ran away. Shortly thereafter, when his
parents became aware of the charges against him and that private
complainants father was looking for him, petitioner went into hiding. It
was not until the Barangay Tanod came to arrest him in his
grandmothers house that petitioner came out in the open to face the
charges against him. His flight as well as his act of going into hiding
clearly conveys the idea that he was fully aware of the moral depravity
of his act and that he knew he committed something wrong.
Otherwise, if he was indeed innocent or if he was not least aware of
the moral consequences of his acts, he would have immediately

confronted private complainant and her parents and denied having

sexually abused their daughter.
During the trial, petitioner submitted documentary evidence to
show that he was a consistent honor student and has, in fact, garnered
several academic awards. This allegation further bolstered that he
acted with discernment, with full knowledge and intelligence. The fact
that petitioner was a recipient of several academic awards and was an
honor student further reinforces the finding that he was possessed of
intelligence well beyond his years and thus was able to distinguish,
better than other minors of his age could, which conduct is right and
which is morally reprehensible. Hence, although appellant was still a
minor of twelve years of age, he possessed intelligence far beyond his
age. It cannot then be denied that he had the mental capacity to
understand the difference between right and wrong. This is important
in cases where the accused is minor. It is worthy to note that the basic
reason behind the enactment of the exempting circumstances under
Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent on the part of the accused. In
expounding on intelligence as the second element of dolus, the
Supreme Court has stated: The second element of dolus is intelligence;
without this power, necessary to determine the morality of human acts
to distinguish a licit from an illicit act, no crime can exist, and because
the infant has no intelligence, the law exempts (him) from criminal
liability (Guevarra v. Aldomovar, 169 SCRA 476 [1989], at page 482).
The foregoing circumstances, from the time the incident up to
the time the petitioner was being held for trial, sufficiently satisfied the
trial court that petitioner acted with discernment before, during and
after the rape incident. For a boy wanting in discernment would simply
be gripped with fear or keep mum. In this case, petitioner was fully
aware of the nature and illegality of his wrongful act. He should not,
therefore, be exempted from criminal liability. The prosecution has
sufficiently proved that petitioner acted with discernment. [61]
In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on
the peri-anal skin and not in the labia of the hymen. He further insists that there can
be no consummated rape absent a slight penetration on the female organ. It was
incumbent on the prosecution to prove that the accused acted with discernment but
failed. The mere fact that he was an honor student is not enough evidence to prove
that he acted with discernment.
The petition is not meritorious.
On the first issue, petitioners contention that he was deprived of his right to a
regular preliminary investigation is barren of factual and legal basis. The record

shows that petitioner was lawfully arrested without a warrant. Section 7, Rule 112 of
the Revised Rules of Criminal Procedure provides:
SEC. 7. When accused lawfully arrested without warrant. When a
person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation, the complaint or
information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in accordance
with existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit
of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the
Revised Penal Code, as amended, in the presence of his counsel.
Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from
the time he learns of its filing, ask for a preliminary investigation with
the same right to adduce evidence in his defense as provided for in
this Rule.
As gleaned from the Certification[62] of the City Prosecutor which was incorporated in
the Information, petitioner did not execute any waiver of the provisions of Article
125 of the Revised Penal Code before the Information was filed. He was arraigned
with the assistance of counsel on October 10, 2002, and thereafter filed a petition
for bail.[63]Petitioners failure to file a motion for a preliminary investigation within
five days from finding out that an Information had been filed against him effectively
operates as a waiver of his right to such preliminary investigation. [64]
On the second issue, a careful review of the records shows that the prosecution
adduced evidence to prove beyond reasonable doubt that petitioner had carnal
knowledge of the private complainant as charged in the Information. In People v.
Morata[65] the Court ruled that penetration, no matter how slight, or the mere
introduction of the male organ into the labia of the pudendum, constitutes carnal
knowledge. Hence, even if the penetration is only slight, the fact that the private
complainant felt pains, points to the conclusion that the rape was consummated. [66]
From the victims testimony, it can be logically concluded that petitioners
penis touched the middle part of her vagina and penetrated the labia of the
pudendum. She may not have had knowledge of the extent of the penetration;
however, her straightforward testimony shows that the rape passed the stage of
consummation.[67] She testified that petitioner dragged her behind a pile of hollow
blocks near the vacant house and ordered her to lie down. He then removed her

shorts and panty and spread her legs. He then mounted her and inserted his penis
into her vagina:
Fiscal Barrera:
Q: From what time up to what time?
A: From 12:00 oclock noon up to 6:00 p.m.
Q: September 24, 2002 and going over the calendar, it was Tuesday.
Did you go to school from 12:00 oclock noon up to 6:00 p.m.?
A: Yes, Sir, on the same date I went to school.
Q: At about 6:00 p.m., Sept. 24, 2002, where were you?
A: I went home.
Q: And by whom you are referring to your house at 1-C Carnation St.,
R. Higgins, Maricaban, Pasay City?
A: Yes, Sir.
Q: And what did you do after you went home?
A: I changed my clothes and then I proceeded to the store of my
mother.
Q: And where is that store of your mother where you went?
A: It is near our house, walking distance.
Q: What is your mother selling in that store?
A: She sells quail eggs.
Q: And were you able to immediately go to the store of your mother
where she was selling quail eggs?
A: Yes, sir.
Q: And that was past 6:00 p.m. already?
A: Yes, sir.
Q: And what happened when you went to the store where your mother
is selling quail eggs past 6:00 p.m.?
A: My mother asked me to bring home something.
Q: What were these things you were asked by your mother to bring
home?
A: The things she used in selling.
Q: And did you obey what your mother told you to bring home
something?
A: Yes, Sir.
Q: And what happened to you in going to your house?
A: Totoy pulled me.

Q: Pulled you where?

A: Totoy pulled me towards an uninhabited house.
Q: What happened after Totoy pulled you in an uninhabited house?
A: He told me to lie down on the cement.
Q: What happened after he laid you down on the cement?
A: He removed my shorts and panty. He also removed his shorts.
Q: After Totoy removed your shorts and panty and he also removed his
shorts, what happened next?
A: He inserted his penis inside my vagina.
Q: What did you feel when Totoy inserted his penis inside your vagina?
A: It was painful.
Q: Aside from inserting his penis inside your vagina, what else did you
do to you?
A: He kissed me on my lips.
Q: After Totoy inserted his penis inside your vagina and kissed you on
your lips, what did you do?
A: I cried.
Q: What happened when you were crying when he inserted his penis
inside your vagina and kissed you on your lips. What happened
next?
A: Somebody heard me crying.
Q: Who heard you crying?
A: Kuya Teofe, Sir.

Q: What happened after you cried and when somebody heard you
crying?
A: Totoy ran away.
Q: After Totoy ran away, what happened next?
A: When Totoy ran away, I was left and Kuya Teofe told me to tell the
matter to my parents.
Q: Did you tell your parents what Totoy did to you?
A: Yes, Sir.[68]
On cross-examination, the victim was steadfast in her declarations:

ATTY. BALIAD:
Q: Again, in what particular position were you placed by Totoy when he
inserted his penis inside your vagina?
A: I was lying down.
Q: Aside from lying down, how was your body positioned at that time?
A: He placed on top of me.
Q: After he placed on top of you, what else did he do to you, if any?
A: He started to kiss me and then he inserted his penis inside my
vagina.
Q: Did you feel his penis coming in into your vagina?
A: Yes, Sir.
Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir.[69]
When questioned on cross-examination whether she could distinguish a vagina from
an anus, the victim declared that she could and proceeded to demonstrate. She
reiterated that the penis of petitioner penetrated her vagina, thus, consummating
the crime charged:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the
accused, Neil Llave or Totoy inserted his penis in your vagina, do
you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel that the penis of Neil
entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your pepe?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in this
case penetrated only in your vagina and not in your anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither by
his penis touched any part of your anus?

A: He did not insert anything on my anus, Sir. [70]

While it is true that Dr. Castillo did not find any abrasion or laceration in the private
complainants genitalia, such fact does not negate the latters testimony the
petitioner had carnal knowledge of her. The absence of abrasions and lacerations
does not disprove sexual abuses, especially when the victim is a young girl as in this
case.[71] According to Dr. Castillo, the hymen is elastic and is capable of stretching
and reverting to its original form.[72] The doctor testified that her report is
compatible with the victims testimony that she was sexually assaulted by petitioner:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the
accused, Neil Llave or Totoy inserted his penis in your vagina, do
you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel (sic) that the penis of Neil
entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your pepe?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in this
case penetrated only in your vagina and not in your anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither by
his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.
xxxx
Fiscal Barrera:
Q: Based on your testimony doctor, and the medico genital
examination propounded on the report that the victim here,
Debbielyn Santos is complaining that around 6:00 in the evening
of September 24, 2002, she was sexually abused and that on
the following day, September 25, you interviewed her and stated
to you that her genitalia was hurting and in binocular (sic)
masakit ang pepe ko, ni-rape ako, would your findings as
contained in this Exh. B and C be compatible with the allegation
if the minor victim that she was sexually abused on September
24. 2002 at around 6:00 p.m.?
Atty. Baliad:

Objection, Your Honor. The one who narrated the incident is the
mother.
Court:
What is your objection?
Atty. Baliad:
The objection, Your Honor, is the question propounded is that it
was the minor who made the complaint regarding the allegation.
Fiscal Barrera:
The answer were provided..
Court:
The doctor is being asked whether or not her findings is
compatible with the complaint of the minor. Overruled. Answer.
Witness:
A It is compatible with the allegation of the minor.
Fiscal Barrera:
Confronting you again with your two (2) medico-genital
documents, the Provincial and Final Report mark[ed] in evidence
as Exhs. B and C, at the lower portion of these two exhibits there
appears to be a signature above the typewritten word, Mariella
Castillo, M.D., whose signature is that doctor?
A Both are my signatures, Sir.[73]
Dr. Castillo even testified that the abrasion near the private complainants anal
orifice could have been caused by petitioner while consummating the crime
charged:
Fiscal Barrera:
Q: With your answer, would it be possible doctor that in the process of
the male person inserting his erect penis inside the vagina, in
the process, would it be possible that this abrasion could have
been caused while in the process of inserting the penis into the
vagina touch the portion of the anus where you find the
abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of your examination, that the
alleged perpetrator is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.
Q: Do you still recall your answer that a 12-year-old boy could cause an
erection of his penis?
A: Yes, sir.

Q: To enlight[en] us doctor, we, not being a physician, at what age

could a male person can have erection?
A: Even infants have an erection.[74]
Petitioners contention that the private complainant was coached by her
parents into testifying is barren of merit. It bears stressing that the private
complainant testified in a straightforward and spontaneous manner and remained
steadfast despite rigorous and intensive cross-examination by the indefatigable
counsel of the petitioner. She spontaneously pointed to and identified the petitioner
as the perpetrator.
It is inconceivable that the private complainant, then only a seven- year old
Grade II pupil, could have woven an intricate story of defloration unless her plaint
was true.[75]The Presiding Judge of the trial court observed and monitored the
private complainant at close range as she testified and found her testimony
credible. Case law is that the calibration by the trial court of the evidence on record
and its assessment of the credibility of witnesses, as well as its findings of facts and
the conclusions anchored on said findings, are accorded conclusive effect by this
Court unless facts and circumstances of substance were overlooked, misconstrued
or misinterpreted, which, if considered would merit a nullification or reversal of the
decision. We have held that when the offended party is young and immature, from
the age of thirteen to sixteen, courts are inclined to give credence to their account
of what transpired, considering not only their relative vulnerability but also the
shame and embarrassment to which they would be exposed if the matter to which
they testified is not true.[76]
Neither do we lend credence to petitioners claim that the charge against him
is but a fabrication and concoction of the private complainants parents. Indeed,
petitioner admitted in no uncertain terms that the spouses had no ill-motive against
him. Thus, Neil testified as follows:
Fiscal Barrera:
Q: As you testified earlier that you have played post cards with
Debbielyn Santos alias Lyn-lyn and you have no quarrel or
misunderstanding with Lyn-lyn. Do you know of any reason why
Lyn-lyn complaint (sic) against you for sexual abuse?
A: I dont know of any reason, Sir.
Q: You

also testified that you do not have any quarrel or

misunderstanding with Lyn-lyns parents, spouses Domingo
Santos, Jr. and Marilou Santos, do you think of any reason as to
why they would file a complaint against you for molesting their
7-year-old daughter?
A: I do not know of any reason why they filed a complaint against me,
Sir.
Fiscal Barrera:
That would be all, Your Honor.[77]

There is no evidence that the parents of the offended party coached their
daughter before she testified. No mother or father would stoop so low as to subject
their daughter to the tribulations and the embarrassment of a public trial knowing
that such a traumatic experience would damage their daughters psyche and mar
her life if the charge is not true.[78]
On the other hand, when the parents learned that their daughter had been
assaulted by petitioner, Domingo tried to locate the offender and when he failed, he
and his wife reported the matter to the barangay authorities. This manifested their
ardent desire to have petitioner indicted and punished for his delictual acts.
That petitioner ravished the victim not far from the street where residents
passed by does not negate the act of rape committed by petitioner. Rape is not a
respecter of time and place. The crime may be committed by the roadside and even
in occupied premises.[79] The presence of people nearby does not deter rapists from
committing the odious act.[80] In this case, petitioner was so daring that he ravished
the private complainant near the house of Teofisto even as commuters passed by,
impervious to the fact that a crime was being committed in their midst.
Case law has it that in view of the intrinsic nature of rape, the only evidence that
can be offered to prove the guilt of the offender is the testimony of the offended
party. Even absent a medical certificate, her testimony, standing alone, can be
made the basis of conviction if such testimony is credible. Corroborative testimony
is not essential to warrant a conviction of the perpetrator. [81] Thus, even without the
testimony of Teofisto Bucud, the testimonies of the offended party and Dr. Castillo
constitute evidence beyond reasonable doubt warranting the conviction of
petitioner.
Teofistos testimony cannot be discredited by petitioner simply because his uncle
caused the demolition of the house where Teofisto and his family were residing. It
bears stressing that Teofisto gave a sworn statement to the police investigator on
the very day that the petitioner raped Debbielyn and narrated how he witnessed the
crime being committed by the petitioner.[82] In the absence of proof of improper
motive, the presumption is that Teofisto had no ill-motive to so testify, hence, his
testimony is entitled to full faith and credit. [83]
The trial court correctly ruled that the petitioner acted with discernment when he
had carnal knowledge of the offended party; hence, the CA cannot be faulted for
affirming the trial courts ruling.
Article 12, paragraph 3 of the Revised Penal Code provides that a person over
nine years of age and under fifteen is exempt from criminal liability, unless he acted
with discernment. The basic reason behind the exempting circumstance is complete
absence of intelligence, freedom of action of the offender which is an essential
element of a felony either by dolus or by culpa. Intelligence is the power necessary
to determine the morality of human acts to distinguish a licit from an illicit act. [84] On
the other hand, discernment is the mental capacity to understand the difference
between right and wrong. The prosecution is burdened to prove that the accused
acted with discernment by evidence of physical appearance, attitude or deportment
not only before and during the commission of the act, but also after and during the
trial.[85] The surrounding circumstances must demonstrate that the minor knew what

he was doing and that it was wrong. Such circumstance includes the gruesome
nature of the crime and the minors cunning and shrewdness.
In the present case, the petitioner, with methodical fashion, dragged the resisting
victim behind the pile of hollow blocks near the vacant house to insure that
passersby would not be able to discover his dastardly acts. When he was discovered
by Teofisto Bucud who shouted at him, the petitioner hastily fled from the scene to
escape arrest. Upon the prodding of his father and her mother, he hid in his
grandmothers house to avoid being arrested by policemen and remained thereat
until barangay tanods arrived and took him into custody.
The petitioner also testified that he had been an outstanding grade school
student and even received awards. While in Grade I, he was the best in his class in
his academic subjects. He represented his class in a quiz bee contest. [86] At his the
age of 12, he finished a computer course.
In People v. Doquea,[87] the Court held that the accused-appellant therein
acted with discernment in raping the victim under the following facts:
Taking into account the fact that when the accused Valentin
Doquea committed the crime in question, he was a 7 th grade pupil in
the intermediate school of the municipality of Sual, Pangasinan, and as
such pupil, he was one of the brightest in said school and was a
captain of a company of the cadet corps thereof, and during the time
he was studying therein he always obtain excellent marks, this court is
convinced that the accused, in committing the crime, acted with
discernment and was conscious of the nature and consequences of his
act, and so also has this court observed at the time said accused was
testifying in his behalf during the trial of this case. [88]
The CA ordered petitioner to pay P50,000.00 as moral damages
and P20,000.00 as exemplary damages. There is no factual basis for the award of
exemplary damages. Under Article 2231, of the New Civil Code, exemplary damages
may be awarded if the crime was committed with one or more aggravating
circumstances. In this case, no aggravating circumstance was alleged in the
Information and proved by the People; hence, the award must be deleted.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of

merit. The decision of the Court of Appeals in CA-G.R. CR No. 26962 is AFFIRMED
WITH MODIFICATION that the award of exemplary damages is DELETED.
SO ORDERED.
ALVIN JOSE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR No. 22289 affirming with modification the Decision [2] of the
Regional Trial Court of Calamba, Laguna, Branch 36, convicting the accused therein
of violation of Section 21(b), Article IV in relation to Section 29, Article IV of Republic
Act No. 6425, as amended.
The records show that Alvin Jose and Sonny Zarraga were charged with the said
crime in an Information, the accusatory portion of which reads:
That on or about November 14, 1995, in the municipality of Calamba, Province of
Laguna, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, not being
licensed or authorized by law, did then and there willfully, unlawfully and feloniously
sell and deliver to other person METHAMPHETAMINE HYDROCHLORIDE (or shabu)
weighing 98.40 grams, a regulated drug, and in violation of the aforestated law.
CONTRARY TO LAW.[3]
The accused, assisted by counsel, pleaded not guilty to the charge.
As culled by the trial court, the evidence of the prosecution established the
following:
[O]n November 14, 1995, P/Supt. Joseph R. Castro of the Fourth Regional Narcotics
Unit received an information from an unnamed informant. Said unnamed informant
was introduced to him by former Narcom P/Senior Inspector Recomono. The
information was that a big time group of drug pushers from Greenhills will deliver
100 grams of shabu at Chowking Restaurant located at Brgy. Real, Calamba,
Laguna.
Acting on such report, SPO1 Bonifacio Guevarra was assigned to act as the poseurbuyer. SPO2 William Manglo and SPO2 Wilfredo Luna were the other members of the
team. SPO1 Guevarra was provided with marked money consisting of a P1,000.00
bill on top of a bundle of make-believe money bills supposedly amounting
to P100,000.00. P/Supt. Joseph R. Castro, SPO2 William Manglo and Wilfredo Luna
went to the place on a Mitsubishi Lancer while SPO1 Guevarra and the informant
boarded an L-300 van. They arrived at the Chowking Restaurant at about 11:00 in
the morning. They positioned their cars at the parking area where they had a
commanding view of people going in and out (TSN, October 3, 1996, pp. 2-8 and
TSN, July 11, 1996, pp. 4-7).

It was about 4 oclock in the afternoon when a Toyota Corolla with Plate No. UBV-389
arrived. Sonny Zarraga was the driver with Alvin Jose. The unnamed informant
approached and talked to Sonny Zarraga. Then, the informant called SPO1 Bonifacio
Guevarra and informed the latter that Sonny Zarraga had with him 100 grams
of shabu. SPO1 Bonifacio Guevarra offered to buy the shabu. Sonny Zarraga asked
SPO1 Bonifacio Guevarra if he had the money to buy 100 grams of shabu. Guevarra
responded in the affirmative. He showed the aforecited bundle of money bills.
Sonny Zarraga then asked Alvin Jose to bring out the shabu and handover (sic) to
Bonifacio Guevarra. SPO1 Bonifacio Guevarra, in turn, handed the bundle of money
bills.
Guevarra scratched his head, the pre-arranged signal to signify that the transaction
was consummated (TSN, July 30, 1996, pp. 3-8). Immediately thereafter, William
Manglo and Wilfredo Luna approached and introduced themselves as Narcom
Operatives. They arrested Sonny Zarraga and Alvin Jose. The buy-bust bundle of
money bills and the shabu were recovered. The two were brought to Camp Vicente
Lim for investigation. Edgar Groyon conducted the investigation. The shabu was
brought to the PNP Crime Laboratory for examination (TSN, July 30, 1996, pp. 9-10
and TSN, October 3, 1996, pp. 9-13). P/Senior Inspector Mary Jean Geronimo
examined the shabu. She reported and testified that the specimen, indeed, was a
second or low grade methamphetamine hydrochloride (TSN, July 30, 1996, pp. 3136).[4]
On the other hand, the accused therein were able to establish the following
facts:
Sonny Zarraga and Alvin Jose claimed that, on November 13, 1995, they were at SM
Mega Mall (sic), Mandaluyong, Metro Manila, to change money. Suddenly, a person
with a hand bag appeared and ordered them to handcuff themselves. They were
later able to identify three of these people as Police Supt. Joseph Roxas Castro,
SPO3 Noel Seno and a certain Corpuz. They were all in civilian clothes.
They proceeded to where Sonny Zarragas car was parked. Sonny Zarraga was
forced to board another car while another person drove Sonny Zarragas car with
Alvin Jose as passenger. They drove towards Greenhills. They were eventually
blindfolded. On the way to Greenhills, one of the men opened the gloves
compartment of Sonny Zarragas car. One of the men saw a substance inside the
said compartment. He tasted it. Said person asked Sonny Zarraga if he could come
up with P1.5 Million peso (sic). Col. Castro even showed the picture of Sonny
Zarragas mother-in-law who was supposed to be a rich drug pusher.
They ended up inside a room with a lavatory. While inside the said room, Sonny
Zarragas cellular phone rung. It was a call from Sonny Zarragas wife. Col. Castro
talked to Pinky Zarraga and asked her if she could pay P1.5 Million as ransom for the

release of Sonny Zarraga. Sonny Zarraga instead offered to withdraw money from
the bank in the amount of P75,000.00. The agreement was that in the bank, Pinky
Zarraga would withdraw the money and deliver it to Col. Castro in exchange for
Sonny Zarragas release. The agreement did not materialize. Col. Castro and Pinky
Zarraga met inside the bank but Pinky Zarraga refused to withdraw the money as
Sonny Zarraga was nowhere to be seen. There was a commotion inside the bank
which prompted the bank manager to call the police.
Col. Castro left the bank in a hurry, passed by for Alvin Jose who was left at the
room and brought them to Camp Vicente Lim. There, they were investigated.
The defense claimed that SPO3 Noel Seno got Sonny Zarragas jewelry, P85,000.00
in cash and Sonny Zarragas car spare tire, jack and accessories. Noel Seno was
even able to withdraw the P2,000.00 using Sonny Zarragas ATM card. [5]
On June 10, 1998, the trial court rendered judgment convicting both accused of
the crime charged and sentencing each of them to an indeterminate penalty.
The fallo of the decision reads:
WHEREFORE, this Court finds both the accused Sonny Zarraga and Alvin Jose guilty
beyond reasonable doubt, for violation of R.A. 6425, as amended, and is hereby
sentenced to suffer the penalty of imprisonment of, after applying the
Indeterminate Sentence Law, six (6) years and one (1) day to ten (10) years.
Both accused are hereby ordered to pay the fine of P2 million each and to pay the
cost of suit.
In the service of sentence, the preventive imprisonment undergone both by the
accused shall be credited in their favor.
Atty. Christopher R. Serrano, Branch Clerk of Court, is hereby ordered to deliver and
surrender the confiscated Methamphetamine Hydrochloride to the Dangerous Drugs
Board.
SO ORDERED.[6]
On appeal to the CA, the accused-appellants averred that the trial court erred as
follows:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE
EVIDENCE PRESENTED BY THE PROSECUTION.

II
THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THAT THE MERE
PRESENTATION OF THE SHABU IN COURT IS NOT SUFFICIENT TO FIND, WITH
ABSOLUTE CERTAINTY, THAT THE APPELLANTS COMMITTED THE CRIME OF
SELLING PROHIBITED DRUGS, ESPECIALLY WHEN THE IDENTITY OF THE
DRUG WAS NOT PARTICULARLY SET OUT IN THE TESTIMONY OF THE
PROSECUTION WITNESSES.
III
EVEN GRANTING THAT THE TRIAL COURT CORRECTLY FOUND
APPELLANTS GUILTY OF THE CRIME CHARGED AGAINST THEM:

THE

(a) THE TRIAL COURT DID NOT IMPOSE THE PROPER PENALTY AGAINST
THEM.
(b) EACH OF THE APPELLANTS CANNOT BE MADE TO PAY A FINE IN THE
AMOUNT OF P2 MILLION PESOS (SIC) AND THE COST OF THE SUIT.[7]
The CA rendered judgment affirming the decision appealed from with
modification. The appellate court reduced the penalty imposed on appellant Alvin
Jose, on its finding that he was only thirteen (13) years old when he committed the
crime; hence, he was entitled to the privileged mitigating circumstance of minority
and to a reduction of the penalty by two degrees. The appellant filed a motion for
reconsideration, alleging that since the Information failed to allege that he acted
with discernment when the crime was committed and that the prosecution failed to
prove the same, he should be acquitted. The appellate court denied the motion.
Appellant Jose, now the petitioner, filed his petition for review on certiorari,
alleging that
THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING PETITIONER DESPITE
(1) THE FAILURE OF THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT
THAT PETITIONER, WHO WAS ONLY 13 YEARS OLD WHEN THE CRIME WAS
ALLEGEDLY COMMITTED BY HIM IN CONSPIRACY WITH CO-ACCUSED SONNY
ZARRAGA, ACTED WITH DISCERNMENT, AND (2) THE ABSENCE OF A DECLARATION
BY THE TRIAL COURT THAT PETITIONER SO ACTED WITH DISCERNMENT, PURSUANT
TO THE APPLICABLE PROVISIONS OF THE REVISED PENAL CODE AND THE
ESTABLISHED JURISPRUDENCE.[8]
The petitioner asserts that, under paragraph 3, Article 12 of the Revised Penal
Code, a minor over nine (9) and under fifteen (15) years of age at the time of the
commission of the crime is exempt from criminal liability unless he acted with

discernment, in which case he shall be proceeded against in accordance with Article

192 of Presidential Decree (P.D.) No. 603, as amended by P.D. No. 1179, as provided
for in Article 68 of the Revised Penal Code. He avers that the prosecution was
burdened to allege in the Information and prove beyond reasonable doubt that he
acted with discernment, but that the prosecution failed to do so. The petitioner
insists that the court is mandated to make a finding that he acted with discernment
under paragraph 1, Article 68 of the Revised Penal Code and since the CA made no
such finding, he is entitled to an acquittal.
For its part, the Office of the Solicitor General (OSG) asserts that the allegation
in the Information that the petitioner and his co-accused conspired and
confederated to sell the shabusubject of the Information sufficiently avers that the
petitioner acted with discernment; hence, there was no need for the public
prosecutor to allege specifically in the Information that the petitioner so acted. It
contends that it is not necessary for the trial and appellate courts to make an
express finding that the petitioner acted with discernment. It is enough that the
very acts of the petitioner show that he acted knowingly and was sufficiently
possessed with judgment to know that the acts he committed were wrong.
The petition is meritorious.
Under Article 12(3) of the Revised Penal Code, a minor over nine years of age
and under fifteen is exempt from criminal liability if charged with a felony. The law
applies even if such minor is charged with a crime defined and penalized by a
special penal law. In such case, it is the burden of the minor to prove his age in
order for him to be exempt from criminal liability. The reason for the exemption is
that a minor of such age is presumed lacking the mental element of a crime the
capacity to know what is wrong as distinguished from what is right or to determine
the morality of human acts; wrong in the sense in which the term is used in moral
wrong.[9] However, such presumption is rebuttable. [10] For a minor at such an age to
be criminally liable, the prosecution is burdened [11] to prove beyond reasonable
doubt, by direct or circumstantial evidence, that he acted with discernment,
meaning that he knew what he was doing and that it was wrong. [12] Such
circumstantial evidence may include the utterances of the minor; his overt acts
before, during and after the commission of the crime relative thereto; the nature of
the weapon used in the commission of the crime; his attempt to silence a witness;
his disposal of evidence or his hiding the corpus delicti.
In the present case, the prosecution failed to prove beyond reasonable doubt
that the petitioner, who was thirteen (13) years of age when the crime charged was
committed, acted with discernment relative to the sale of shabu to the poseurbuyer. The only evidence of the prosecution against the petitioner is that he was in
a car with his cousin, co-accused Sonny Zarraga, when the latter inquired from the
poseur-buyer, SPO1 Bonifacio Guevarra, if he could afford to buy shabu. SPO1

Guevarra replied in the affirmative, after which the accused Zarraga called the
petitioner to bring out and hand over the shabu wrapped in plastic and white soft
paper. The petitioner handed over the plastic containing the shabu to accused
Zarraga, who handed the same to the poseur-buyer:
Q Whom did you approach to buy the shabu?
A The two of them, Sir.
Q While the two of them was (sic) sitting inside the car, what did you tell
them?
A They asked me if I can afford to buy the 100 grams, Sir.
Q And what was your response?
A I answer in (sic) affirmative, Sir.
Q And what happened next?
A After that I showed my money, Sir.
Q Now, tell us when you said they reply (sic) in the affirmative specifically. I
withdraw that.
Q When you said they asked you whether you can afford to buy 100 grams
tell us who asked you that question?
A Sonny Zarraga, Sir.
Q And after you answer (sic) in the affirmative, what was his response?
A He let his companion to (sic) bring out the shabu, Sir.
Q Did his companion bring out the shabu?
A Yes, Sir.
Q What happened to the shabu?
A Alvin Jose handed the shabu to his companion Sonny Zarraga.
Q After that, what did Sonny Zarraga do with the shabu?
A He handed it to me, Sir.

Q After this shabu was handed to you, what happened next?

A After examining the shabu, I put it in my pocket and then I handed to him
the money, Sir.
Q When you say money, which money are you referring to?
A The P1,000.00 bill with the bundle of boodle money, Sir.
Q Now, after you handed the money to the accused, what happened next?
A I made signs to my companions, Sir.
Q What signs did you give?
A I acted upon our agreement by scratching my head, Sir.
Q And how did your companions respond to your signal?
A After scratching my head, my companions approached us and arrested
them.
Q Now, tell us, do you know, in particular, who arrested Sonny Zarraga?
A Yes, Sir.
Q Tell us.
A SPO1 William Manglo and PO3 Wilfredo Luna, Sir.
Q Can you describe to us the manner by which Sonny Zarraga was arrested
by these police officers?
A Yes, Sir.
Q Please tell us.
A They introduced themselves as NARCOM operatives, Sir.
Q And after that, what happened?
A They recovered the money from Sonny Zarraga, Sir. [13]
Q What happened to the shabu which was handed to you by the accused?

A It was brought by our office to the crime laboratory, Sir.

Q Who made the request for its examination?
A SPO3 Edgar Groyon, Sir.
Q Earlier, you said that the shabu was handed to you. What did you do with
the shabu?
A While we were at the area, I handed it to SPO1 William Manglo, Sir.
Q Tell us, when this shabu was handed to you by the accused, in what
container was it contained?
A When it was handed to me by Sonny Zarraga it was wrapped in a plastic
and white soft paper, Sir. [14]
It was accused Zarraga who drove the car and transacted with the poseur-buyer
relative to the sale of shabu. It was also accused Zarraga who received the buymoney from the poseur-buyer. Aside from bringing out and handing over the plastic
bag to accused Zarraga, the petitioner merely sat inside the car and had no other
participation whatsoever in the transaction between the accused Zarraga and the
poseur-buyer. There is no evidence that the petitioner knew what was inside the
plastic and soft white paper before and at the time he handed over the same to his
cousin. Indeed, the poseur-buyer did not bother to ask the petitioner his age
because he knew that pushers used young boys in their transactions for illegal
drugs. We quote the testimony of the poseur-buyer:
ATTY. VERANO:
Q Did you try to find out if they were friends of your informant?
A No, Sir.
Q Did you find out also the age of this Mr. Alvin Yamson?
A I dont know the exact age, what I know is that he is a minor, Sir.
Q Eventually, you find (sic) out how old he is (sic)?
A I dont know, Sir.
Q Mr. Guevarra, may I remind you that, in your affidavit, you stated the age
of the boy?

A I cannot recall anymore, Sir.

Q Were you not surprised from just looking at the boy at his age, were you
not surprised that a young boy like that would be in a group selling
drugs?
FISCAL:
It calls for an opinion, Your Honor.
ATTY. VERANO:
May I ask, Your Honor, if he did not further interrogate why or how this very
young boy (sic) selling 100 grams of shabu.
COURT:
The witness may answer.
WITNESS:
A No more, Sir, because I know that young boys are being used by pushers.
[15]

Even on cross-examination, the public prosecutor failed to elicit from the

petitioner facts and circumstances showing his capacity to discern right from wrong.
We quote the questions of the public prosecutor on cross-examination and the
petitioners answers thereto:
FISCAL:
Cross, Your Honor. May I proceed.
COURT:
Please proceed.
FISCAL:
Q Mr. Witness, you started your narration that it started on November 13,
1995 and did I hear it right that you went to Manuela at 5 oclock in the
afternoon?
WITNESS:

A Yes, Sir.
Q Now, when you went to Manuela, you came from Filinvest, Quezon City?
You left Filinvest, Quezon City, at 12 oclock?
A No, Sir.
Q What time did you leave?
A After lunch, Sir.
Q Now, on the second day which you claimed that you were in the custody
of the police, you said that at one occasion on that day, you have (sic) a
chance to be with your cousin in a [L]ancer car and it was inside that
[L]ancer car when your cousin saw his own cellular phone on one of the
seats of the car, is that correct?
A Yes, Sir.
Q Did your cousin tell you that that was his first opportunity to make a call
to anybody since the day that you were arrested?
A He did not say anything, he just get (sic) the cellular phone.
Q Did you come to know the reason how that cellular phone appeared inside
that [L]ancer car?
A No, Sir.
Q Now, going back to the first day of your arrest. You said that you were
accosted by a male person at the workshop and then you went out of
Megamall and when you went outside, this man saw the key of the car
dangling at the waist. At whose waist?
A From my cousin.
Q And at that time, that person did not have any knowledge where your car
was?
A No, Sir.
Q And your cousin told him that your car was parked at the third level
parking area of SM Megamall, is that correct?

A Yes, Sir.
Q And at that time, that man did not make any radio call to anybody?
A No, Sir.
Q Until the time that you reached the third level parking of Megamall, he
had not made any call?
A No, Sir.
Q And yet when you reach (sic) the third level parking of the Megamall, you
claimed that there was already this group which met you?
A Yes, Sir.
Q And this group were the policemen who are the companions of the male
person who arrested you?
A Yes, Sir.
Q Do you know the reason why they were there at that time?
A No, Sir.
Q These people do not know your car?
A No, Sir.
FISCAL:
No further question, Your Honor.
ATTY. VERANO:
No re-direct, Your Honor.
COURT:
Q Mr. Witness, earlier you stated that you are not a drug user nor have you
seen any shabu. In support of your claim, are you willing to submit
yourself to an examination?
WITNESS:

A Yes, Your Honor.

Q Are you willing to submit a sample of your urine to this Court?
A Yes, Sir.
COURT:
The witness is discharged.[16]
The claim of the OSG that the prosecution was able to prove that the petitioner
conspired with his co-accused to sell shabu to the poseur-buyer, and thereby proved
the capacity of the petitioner to discern right from wrong, is untenable. Conspiracy
is defined as an agreement between two or more persons to commit a crime and
decide to commit it. Conspiracy presupposes capacity of the parties to such
conspiracy to discern what is right from what is wrong. Since the prosecution failed
to prove that the petitioner acted with discernment, it cannot thereby be concluded
that he conspired with his co-accused. Indeed, in People v. Estepano,[17] we held
that:
Clearly, the prosecution did not endeavor to establish Renes mental capacity to fully
appreciate the consequences of his unlawful act. Moreover, its cross-examination of
Rene did not, in any way, attempt to show his discernment. He was merely asked
about what he knew of the incident that transpired on 16 April 1991 and whether he
participated therein. Accordingly, even if he was, indeed, a co-conspirator, he would
still be exempt from criminal liability as the prosecution failed to rebut the
presumption of non-discernment on his part by virtue of his age. The crossexamination of Rene could have provided the prosecution a good occasion to
extract from him positive indicators of his capacity to discern. But, in this regard,
the government miserably squandered the opportunity to incriminate him. [18]
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of
the Court of Appeals in CA-G.R. CR No. 22289 which affirmed the Decision of the
Regional Trial Court of Calamba, Laguna, Branch 36, is SET ASIDE. The petitioner is
ACQUITTED of the crime charged for insufficiency of evidence. [19]
No costs.
SO ORDERED.
THE UNITED STATES, Plaintiff-Appellee, v. MAXIMO MARALIT, DefendantAppellant.
Claro

M.

Recto

for Appellant.

Attorney-General

Avancea

for Appellee.

SYLLABUS
1. CRIMINAL LAW; APPEAL; REVERSAL. The Supreme Court will not reverse a
judgment of conviction in a criminal case unless, on review of the facts, there
appears to be a reasonable doubt of the guilt of the accused.
2. ID.; ID.; FINDINGS OF TRIAL COURT AS TO CREDIBILITY OF WITNESSES. In
reviewing the facts in a criminal case the Supreme Court, in determining the
credibility of witnesses whose testimony is in conflict, will be guided to some extent
by the opinion of the trial court on that matter, and will not disturb its conclusions in
that
regard
unless
the
record
discloses
some
reason
therefor.
3. ID.; INFANTS; EXEMPTION FROM RESPONSIBILITY. A person over 9 years of age
and under 15 is exempt from criminal liability unless, in committing the crime, he
acted
with
discernment.
4. ID.; ID.; DISCERNMENT. In order to convict a person of that age and impose a
criminal penalty upon him, the trial court must make an express finding to the effect
that, in the commission of the crime, he acted with discernment.
5. ID.; ID.; ID. The finding that such person acted with discernment must be
based upon evidence found in the record, or upon the personal appearance and
conduct of that person during the trial, or from facts of which the court may take
judicial
notice.
6. ID.; ID.; ID. To establish the fact that such person acted with discernment it is
not necessary, even if it were permissible, that a witness declare directly and in
words that he acted with discernment; it is sufficient that, from the evidence as a
whole,
it
is
a
necessary
inference
that
he
so
acted.
7. ID.; ID.; ID. In arriving at the conclusion that such person acted with
discernment the trial court may take into consideration all the facts and
circumstances presented by the record as well as the appearance, attitude and
conduct
of
such
person
during
the
trial.
8. ID.; ID.; DISCRETIONAL PENALTY. Where the accused is a minor of less than 15
and over 9 years of age, a discretionaly penalty should be imposed, provided that
the same shall always be less by two degrees, at least, than that prescribed by the
law for the offense committed.
DECISION
MORELAND, J. :

The appellant was convicted of homicide and sentenced to five (5) years of prision
correccional, to the accessories provided by law, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs:chanrob1es virtual 1aw library
We are satisfied that the defendant below, without jurisdiction, stabbed Florentino
Luistro
in
the
side
with
a
knife
and
caused
his
death.
Counsel for appellant vigorously and ably attacks the findings of fact of the trial
court and attempts to show that he should have accepted the testimony of the
defense rather than that of the prosecution as a basis for his conclusions. A careful
examination of the evidence, however, fails to furnish sufficient reasons to reverse
the trial court on the facts. Two witnesses testified to the occurrence on behalf of
the prosecution and stated that they, with the deceased Florentino, were walking
along in single file each with a bundle of zacate on his head, Florentino bringing up
the rear, when they met the defendant and a companion. As they were passing
each other they heard a sound similar to that made by the dropping of one of the
bundles of zacate. They instantly turned and saw Florentino and the defendant
fighting with their fist. They soon separated and Florentino, returning to his bundle
of zacate, stooped to pick it up when the defendant ran to him quickly and stabbed
him in the left side with a knife. The defendant and his companion then ran away.
The witnesses and Florentino went home. Florentino died a few days later as a
result
of
the
wound
thus
received.
The accused and his witness tell a different story, in which it is claimed that
Florentino made an attack upon the accused, after some sharp words had passed
between them, and struck him several times with a club; whereupon the accused, in
self-defense, made use of his dagger with the effect already noted.
Upon this evidence the trial court found with the witnesses for the prosecution. In
spite of the insistent argument of counsel for the appellant we must conclude on the
record that there is no reason for a reversal of the trial court with regard to its
findings
of
fact.
Counsel for appellant strenuously contends that the accused should be acquitted on
the ground that the prosecution did not prove that the accused, in stabbing the
deceased, acted with discernment, that is, with a full understanding of the nature
and consequences of his act. This argument is based upon the age of the accused
and
paragraph
3
of
article
8
of
the
Penal
Code.
The accused was less than 15 years of age at the time the crime was committed.
The deceased was less than 16, the certificate of death stating that his age was
fifteen. The paragraph of article 8 referred to provides that a person over 9 years of
age and under 15 is exempt from criminal liability "unless he has acted with
discernment." That paragraph also provides that "in order to impose a penalty upon
such a person, . . . the court shall make an express finding upon this fact," that is,
the
fact
that
he
acted
with
discernment.
While counsel admits that the trial court found that the accused acted, in the
commission of the crime, with complete discernment, he contends that there is no
evidence in the record upon which that finding can be based, he alleging that it was

the duty of the prosecution to prove that fact by affirmative evidence.

We are satisfied that the contention of counsel is not well grounded in this particular
case. It is true, as counsel asserts, that it must appear from the evidence that the
accused acted with knowledge of the nature of his acts and of the results which
would naturally follow therefrom; but to establish that fact it is not necessary that
some witness declare directly and in words that he acted with such knowledge. It is
sufficient that, from the evidence as a whole, it is a necessary inference that he so
acted. The trial court taking into consideration all of the facts and circumstances
presented by the record, together with the appearance of the accused as he stood
and testified in court, drew the conclusion that he was of sufficient intelligence and
was sufficiently endowed with judgment to know that the act which he committed
was wrong and that it was likely to produce death. In pursuance of that conclusion
the court made the finding that the accused in committing the act complained of
acted
with
discernment.
We are of the opinion, however, that the penalty imposed is not correct. Article 85
of
the
Penal
Code
provides
that

"In the case of a minor of less than fifteen and over nine years of age, who is found
by the court to have acted with discernment, and, therefore, not being exempt from
criminal liability, a discretional penalty shall be imposed, provided that the same
shall always be less by two degrees, at least than that prescribed by the law for the
offense
committed."cralaw
virtua1aw
library
Following the provisions of this article the penalty imposed should have been two
(2) years of prision correccional instead of five years. As so modified, the judgment
is
affirmed.
So
ordered.
Torres, Carson, Trent and Araullo, JJ., concur.
PEOPLE OF THE PHILIPPINES, appellee, vs. BERNARDO CORTEZANO and
JOEL CORTEZANO, appellants.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision [1] of the Regional Trial Court of Camarines
Sur, Libmanan, Branch 56, in Criminal Cases Nos. L-1679 and L-1680, convicting
appellants Bernardo Cortezano and Joel Cortezano with four counts of rape and
sentencing them to suffer the penalty of reclusion perpetua for each count; and
ordering each of them to pay damages to the victim as follows: P200,000 as moral
damages and P200,000 as exemplary damages in all the cases.
The Indictments

On November 22, 1994, two separate Informations for rape were filed against
the appellants. The first Information docketed as Criminal Case No. L-1679 reads:
That on or about the 6th day of May, 1990, in the afternoon at Bgy. (sic) Azucena,
Municipality of Sipocot, Province of Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design,
conspiring, confederating together and mutually helping one another, taking
advantage of their superior strength with force, intimidation and with grave abuse
of confidence, did then and there wilfully (sic), feloniously and unlawfully have
carnal knowledge one after the other with Leah C. Cortizano (sic), 7 years old,
minor, against her will and the offended party suffered damages.
ACTS CONTRARY TO LAW.[2]
The second Information docketed as Criminal Case No. L-1680 reads:
That on or about the 10th day of June, 1990, in the afternoon at Bgy. (sic) Azucena,
Municipality of Sipocot, Province of Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design,
conspiring, confederating together and mutually helping one another, taking
advantage of their superior strength with force, intimidation and with grave abuse
of confidence, did then and there wilfully (sic), unlawfully and feloniously have
carnal knowledge one after the other with Leah C. Cortezano, 7 years old, minor,
against her will and the offended party suffered damages.
ACTS CONTRARY TO LAW.[3]
On arraignment, the accused entered their plea of not guilty. A consolidated trial
of the two criminal cases then ensued.
The Case for the Prosecution
Sometime in March 1990, Lourney Cortezano decided to take a leave of absence
from her part-time job in Cubao, Quezon City, to spend her vacation with her three
children: eight-year-old Leah, three-year-old Leah Lou, and Lionel, who was barely a
year old. Lourney decided to stay in the house of her parents-in-law, Santiago and
Nita Cortezano, located at Barangay Azucena, Sipocot, Camarines Sur. Lionel was
also sick with asthma so Lourney could rely on her mother-in-law to take care of him
while she was at work. Lourneys husband, Elmer, remained in their residence in
Caloocan City.
The Cortezano residence was located at an isolated patch of land. Nita and
Santiago slept in a room separated from the sala by a curtain. Their children, the
accused Bernardo (Butchoy) Cortezano, who was then twelve years old; the accused

Joel Cortezano, who was then only thirteen; Tinggang, who was six years old, and
Boyet Orcine, their six-year-old nephew, also lived with the couple. At night, Lourney
and her children, as well as Joel, Bernardo and Tinggang, slept beside each other in
a room near the kitchen, beside the couples room. By mid-April of 1990, Lourney
returned to Caloocan City, leaving her children in the care of her parents-in-law.
Early in the afternoon of May 6, 1990, Joel and Bernardo ordered their niece
Leah to sleep in their parents room. Leah protested because it was hot in that
room. Joel threatened to whip her if she refused. Leah had no choice; she went to
the room and slept. Leah suddenly awoke when she sensed pressure on her arms
and legs. When she opened her eyes, she saw her uncles Joel and Bernardo; they
were holding her hands and feet as she was being undressed. Leah struggled but
was easily overpowered by her uncles. She threatened to shout, but she was told
that nobody would hear her. Joel and Bernardo wet her vagina with their
saliva. Bernardo then held her hands as Joel mounted her. Joel inserted his penis
into her vagina, while Bernardo stood by the window to serve as a lookout. Leah felt
something slippery inside her vagina. After Joel dismounted, Bernardo went on top
of Leah and inserted his penis into her vagina. It was Joels turn to stand by the
window as a lookout. Leah once more felt something slippery in her
vagina. Bernardo then stood up.
Momentarily, Boyet Orcine arrived and inquired what Joel and Bernardo were
doing to Leah. Joel and Bernardo ordered Boyet to rape Leah and threatened to box
him if he refused.Joel and Bernardo laughed as Boyet was having his turn with
Leah. Joel and Bernardo then called Leah Lou and Lionel into the room, letting them
see their sister naked.
Joel and Bernardo threatened to kill her and the members of the family if she
told anyone about what happened to her. Joel, Bernardo and Boyet left the room
together. Leah went out of the room and washed her vagina.
Petrified, Leah did not reveal to her grandparents what happened to her. After
that first harrowing incident, Joel and Bernardo subjected her to sexual abuse
daily. After every sexual intercourse they had with Leah, Joel and Bernardo would
threaten to kill her and her family if she told anyone what they had been doing to
her.
On June 10, 1990, Joel and Bernardo again ordered Leah to go to her
grandparents room. She did as she was told. Joel and Bernardo undressed her. Leah
was told to lie down, and Joel and Bernardo again wet her vagina with their
saliva. Joel then laid on top of her, holding her hands and pinning her legs with his,
as he inserted his penis into her vagina. Bernardo stood by the window as a
lookout. Leah tried to fight Joel, but the latter was enraged. She was about to shout,
but Joel told her that it would be futile to do so because their neighbors were far

away. Joel dismounted and Bernardo had his turn, with Joel standing by the window
to see if anyone was coming. Joel and Bernardo again threatened to kill Leah if she
told anyone about the incident.
The next day, June 11, 1990, was Lionels birthday. Lourney arrived at Brgy.
Azucena and brought her children back to Caloocan City, in time for Leahs
enrollment at the Kalayaan Elementary School in Brgy. Silang, Caloocan
City. Because of the sexual abuse she suffered at the hands of her uncles, Leah felt
pain in her lower abdomen (puson). Every now and then, she would feel numbness
on the left side of her body.
Sometime in March 1993, Lionel and Leah Lou once again stayed with their
grandparents in Brgy. Azucena. On May 21, 1993, Elmer arrived in Sipocot and
stayed with his parents.Lourney followed her family to Sipocot on June 20,
1993. Leah remained in Caloocan City to continue her schooling. Her studies were
financed by the Department of Social Welfare and Development.
On August 23, 1993, Elmer had a quarrel with his parents and left Brgy.
Azucena. Since then, Lourney did not hear from her husband and did not know
where he was. On September 20, 1993, Lourney left Brgy. Azucena and brought her
children to Pili, Camarines Sur.
On May 27, 1994, Lourney learned from Boyet Orcine that her daughter Leah
had been sexually abused by Joel and Bernardo way back in 1990. Boyet told
Lourney that Leah Lou had suffered the same fate as Leah. [4] Lourney immediately
contacted a certain Mrs. Monares, a social worker at the DSWD of Pili, Camarines
Sur, and inquired whether the information relayed to her by Boyet Orcine could be
true. Mrs. Monares advised Lourney to ask Leah herself. Lourney left Pili and arrived
in Caloocan City on June 1, 1994. She asked Leah if she recalled anything that
happened to her while on vacation in Sipocot in 1990. Leah told her mother that Joel
and Bernardo had whipped her and she did not want to return to Sipocot. When
Lourney asked her daughter, the latter replied that Joel and Bernardo had raped her.
Lourney brought Leah to the PNP Crime Laboratory in Camp Crame, Quezon
City. Dr. Ma. Cristina B. Freyra examined Leah and submitted Medico-Legal Report
No. M-0807-94, with the following findings:
FINDINGS:
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female child. Breasts are conical
with pale brown areola and nipples from which no secretions could be pressed
out. Abdomen is flat and soft.

GENITAL:
There is absence 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 deep healed lacerations at 3, 7 and 9
oclock. External vaginal orifice offers strong resistance to the introduction of the
examining index finger.[5]
On June 16, 1994, Lourney and Leah arrived in the Criminal Investigation Field
Office in Naga City where they gave their respective sworn statements to PO3 Elmer
V. Caceres.[6]
The Case for the Accused
Bernardo was born on January 22, 1978. He denied the charges. He admitted
that he was charged with raping Leah Lou on April 21, 1994 in People v. Bernardo
Cortezano,[7] filed with the Regional Trial Court of Pili, Camarines Sur, and that he
pleaded guilty on his arraignment. He testified that on March 28, 1990, he arrived in
Bagadiong, Libmanan, Camarines Sur, to help his cousin, Alvin Reoval, to plow and
harrow his rice field and plant palay. He had lost his school bag, and his father,
Santiago, had punished him for it. He had nowhere to go except to his cousins
house. Barangay Bagadiong was adjacent to Barangay Busak, and one would take
four and half-hours by carabao to traverse Busak from Bagadiong. There were,
however, many passenger jeepneys and buses plying the Busak-Sipocot
route. When Bernardo thought that his parents were no longer mad at him, he
returned to Sipocot on April 5, 1993. He received P3,150 for his services. He met his
sister-in-law Lourney only in 1994, when she charged him with the rape of Leah Lou.
Joel Cortezano testified that he was born on November 1, 1976. He and his
mother arrived in Manila on May 6, 1990 and stayed in the house of his aunt
Concordia Hernandez in San Andres, Manila. On May 9, 1990, he went to the
Philippine General Hospital (PGH) for treatment of leukemia and stayed there for
three days. Thereafter, he was advised by the doctor not to leave the hospital, as he
needed blood transfusion. Joel stayed in the hospital for one week. Joel was
discharged from the hospital and stayed in the house of his aunt, Concordia
Hernandez, in San Andres, Manila, for about a month and helped the latter manage
her store. Every now and then, he returned to the hospital for check-ups.
In August 1990, Joels mother fetched him from San Andres and brought him to
Novaliches for two days. Thereafter, he returned to Sipocot, Camarines Sur.
When asked about his medical certificate regarding his treatment at the PGH
during the period stated, Joel testified that he lost the same during a typhoon. He
claimed that efforts to secure copies of the said medical certificates proved futile, as

the employees who released the certificates were busy. Joel denied raping his niece
Leah.
Nita Cortezano testified that she left Sipocot on May 6, 1990 for Manila to
accompany her son Joel to the PGH, as the latter was suffering from leukemia and
needed blood transfusion.They stayed in the hospital for about two weeks. They did
not immediately return to Sipocot as they were ordered by the attending physician
to stay in Manila. On May 28, 1990, she and Joel went to Elmers house in Caloocan
City where they saw Leah. It would have thus been impossible for Leah to be in
Sipocot on May 6, 1990 to June 10, 1990. Nita further testified that it was only in
1991 when Leah and her siblings were first brought to Sipocot by Lourney. The
second instance was in 1992, but it was their father Elmer who was with the
children at the time.
Santiago Cortezano corroborated in part his wifes testimony. He testified that
between May 6 and June 10, 1990, Leah and her siblings indeed spent their
vacation in Sipocot. However, during that time, Joel was brought to Manila for a
check-up at the PGH. Bernardo, on the other hand, left the household in June
1990. Aside from this, his daughters Melanie and Teresita, who were 16 years old
and 10 years old, respectively, and his grandson Boyet (Bulilit) stayed in his
house. His son Elmer also arrived in Sipocot during this time.
Sancho Cortezano testified that he went to the house of his older brother Elmer
in Caloocan City on May 10, 1990 to inform the latter of his marriage. Elmer was not
in his house but Lourney and her children, including Leah, were there. Sancho left
on May 11, 1990 for Cebu where he got married seven days later. On June 3, 1990,
Sancho returned to Manila and when he went to visit Elmer at his house, only
Lourney and the children were there.
Boyet Orcine testified that on May 6, 1990, he was in the hills with his mother
Emerlina Cortezano in Barangay Tulay, which was very far from the house of the
Cortezanos in Barangay Azucena, Sipocot. He returned from the hills only in
1993. He testified that he did nothing while he was away.
On rebuttal, the prosecution presented two letters from Mrs. Fe B. Baes, Chief of
the Medical Records Division of the PGH, that as an outpatient, Joel consulted the
hospital on August 16, 1989, November 2, 1989 and April 6, 1990, and that he was
never confined at the PGH in 1990. The said letters read as follows:
In connection with the letter received by this office requesting for a record of a
certain Joel Cortezano, whether or not he was hospitalized in this hospital way back
1989, please be informed that as per hospital records, a certain Joel Cortezano
consulted on an outpatient basis sometime on August 16, 1989, November 2, 1989
and April 6, 1990.[8]

In reply to your letter dated August 15, 1995 re: JOEL CORTEZANO, may I inform you
that he was never confined in this hospital anytime in 1990. He only consulted on
April 6, 1990 on an outpatient basis.[9]
After trial, the court rendered a decision convicting the appellants of four counts
of rape, the dispositive portion of which reads as follows:
WHEREFORE, in view of the aforecited considerations, this Court finds the accused,
JOEL CORTEZANO and BERNARDO CORTEZANO, GUILTY beyond reasonable doubt of
the two crimes of Rape as defined and punished under Article 335, of the Revised
Penal Code, as amended. They are sentenced to suffer the penalty of FOUR
RECLUSION PERPETUA each, in both criminal cases, considering that they acted
in conspiracy in the commission of the act, and to indemnify the offended party Fifty
Thousand Pesos (P50,000.00) each, as moral damages in each criminal case, and
another Fifty Thousand Pesos (P50,000.00) each in each case, as exemplary
damages, and to pay the costs of this suit. The period of their respective preventive
detention is considered in the service of their sentence.
SO ORDERED.[10]
Hence, this appeal.
Joel and Bernardo, now the appellants, note, citing People v. Batis,[11] that there
are three (3) settled principles to warrant a conviction for rape, namely: (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 where only two persons are usually involved, the
testimony of the complainant must be scrutinized with great 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 of the defense.
The appellants assert that Leahs testimony is incredible; hence, barren of
probative weight. In her sworn statement to the police authorities, she claimed that
she was raped thirty-six times, but her testimony in the trial court tends to show
that she claimed to have been raped only on May 6 and June 10, 1990. Boyets
denial that he had sexual intercourse with Leah belied the latters testimony that she
was likewise raped by him. If Leahs claim that her sister Leah Lou and her brother
Lionel saw her naked had any ring of truth to it, the two would surely have
immediately reported the matter to their parents. The fact that they did not do so
raises serious doubts as to the veracity of Leahs testimony.
The appellants also claim that although their defense of alibi is inherently weak,
it is incumbent upon the prosecution to establish their guilt beyond reasonable
doubt before a judgment of conviction could be rendered against them. Considering

the prosecutions evidence, tattered as it is, their defense assumes importance and
is even decisive of the outcome of the case.
The Court finds the appeal without merit.
This Court in People v. Guanson,[12] ruled:
Well-entrenched in our jurisprudence is the doctrine that assessment of the
credibility of witnesses lies within the province and competence of trial courts. The
matter of assigning values to declarations on the witness stand is best and most
competently performed by the trial judge who, unlike appellate magistrates, could
weigh such testimony in light of the declarants demeanor, conduct and attitude at
the trial and is thereby placed in a more competent position to discriminate the
truth against falsehood. Thus, appellate courts will not disturb the credence, or lack
of it, accorded by the trial court to the testimonies of witnesses, unless it be clearly
shown that the latter court had overlooked or disregarded arbitrarily the facts and
circumstance of significance.[13]
In this case, the trial court gave credence and full probative weight to the
testimony of the victim, in tandem with those of the other witnesses of the
prosecution:
Whatever inconsistencies or lapses there were, the same relate to trivial matters
and do not in any manner affect her credibility and the veracity of her
statements. Furthermore, such minor lapses are to be expected when a
person is recounting details of humiliating experience which are painful to
recall. (Pp. V. Olivar, 215 SCRA 759) In fact, though how lengthy and rigid the crossexamination
was,
Leahs
declarations
remained
consistent,
firm
and
undisturbed. Leahs categorical, spontaneous, emphatic, and straightforward
answers during the cross-examination strengthened and explained whatever
missing facts there were on direct examination. The medico-legal findings,
moreover, corroborated Leahs testimony that she was indeed raped. Although there
are no fresh hymenal lacerations, the incident having happened three (3) years
before the examination, yet there are healed lacerations evidencing the sexual
attack. A freshly broken hymen is not an essential element of rape. (Pp. V.
Cura, GR 112529, January 18, 1995)[14]
The bestial defloration was mirrored in Leahs being, as she cringed and trembled
whenever she sees the accused. During the trial, the Interpreter had to shield Leahs
line of vision upon advice of the Presiding Judge, as she was uncontrollably shaking
and crying, when the accused would come within her view. Her tears and
statements were not contrived but borne out of a genuine feeling of bitterness. She
sobbed bitterly as she narrated her nauseating experience in the hands of her
uncles and even eloquently declared in a loud voice:

hindi ko kailangan ang pera, ang

kailangan ko ay katarungan!
(p. 9, TSN dated January 27, 1995)[15]
This Court ruled in People v. Dy[16] that the victims act of crying during her
testimony bolsters the credibility of the rape charge with the verity born out of
human nature and experience.
Indeed, as can be gleaned from Leahs testimony, she recounted, with tears
cascading from her eyes, the sordid details on how the appellants ravished her and
satiated their bestial proclivities, thus:
Q: On May 6, 1990 to June 10, 1990, do you know any unusual incident that
took place involving that person?
A: Yes, Sir.
Q: Tell the Honorable Court, what is that all about?
A: That occur[r]ence was done to me by my two Titos.
Q: What specific occur[r]ence?
A: The raped (sic) that they did to me, Sir. (Pagsasamantala)
Q: They, to whom are you referring to?
A: My two uncles, Sir, Joel and Bernardo.
Q: What is the surname?
A: Cortezano, Sir.
Q: Can you possibly tell the Honorable Court, how this raping incident was
done to you?
A: Yes, Sir.
Q: Feel free to tell the Court.
A: (Witness crying) That vacation mama left us at Sipocot, because she was
to go back to work in Manila. She told me, that she is to leave on May 5,
1990. The next day, after lunch, Joel and Bernardo did something bad to

me. After lunch, he told me to go inside the room, when I refused, he

held the broom attempting to whip me. Because of fear, I went inside
the room, while complaining to them why ask me to sleep in that room,
when it is too hot in that room. He told me to obey otherwise, he will
whip me. I slept, and when I woke up I noticed that they were doing
something bad to me. The first thing I saw was Tito Joel was (sic) doing
to me. I was crying the (sic), I was strangling (sic), my two hands were
being held and my legs pinned down. I could not move because they
(sic) were two of them, one was watching outside. They told me that if I
shout it will be useless because no one will hear me because the house
was really far from neighbors. Our house is situated in a secluded
place. Then, after that my grandmother arrive (sic), and she asked if
there was something bad happened. I told her there was none. I was
about to relay to her the incident, but I just could not because the two of
them were watching me. They stopped doing this to me when my
mother arrive[d] on June 10, 1990.
When we were about to leave, they were planning to do something bad to
me. They said, lets do it in the grass land. They kicked me from where I
was standing, and I was thrown with my bottoms (sic) hitting the mud
first, I told them I dont like it anymore, and I run (sic) and when they
overtook me, they stripped off my panties. They placed saliva in my
vagina and inserted their penis in my vagina.When my mama asked me,
what was the abrasions in my arms all about, I told her that my arms
was (sic) strucked (sic) by wire. (The witness showed the scratches that
were already healed)When we reached Manila my father asked me
about what happened and we told him, that they were whipping us.
(The witness cried.)[17]
Q: Ms. Witness, as far as you can recall when was (sic) this incident
happened?
A: On May 6, 1990 until June 10, 1990.
Q: How many times were you forced to lie with the accused in this case from
that period?
A: Thirty six times.
Q: What time did this incident on May 6, 1990 took place?
A: After lunchtime.

Q: Tell the Honorable Court what was the participation of the accused Joel
and Bernardo Cortezano in this incident of May 6, 1990?
A: I was ordered to get inside the room together with my brother and sister,
and I was ordered to get inside the room of my lola.
Q: On the basis of that instruction, what did you do, if any?
A: I obeyed even if the room was hot.
Q: What was the answer of Joel in relation to your complain[t] that the room
was hot?
A: I better obey, otherwise he will whip me with the broom (walis-tingting).
Q: And so what happened next?
A: I slept and when I woke up they were doing something bad on (sic) me
already.
Q: When you said they, to whom are you referring to?
A: Joel Cortezano and Bernardo Cortezano.
Q: What is that bad you are referring to when you say that the accuseds
(sic) in this case were doing bad things to you when you woke up?
A: I was being raped, they undress me.
Q: There are two accused in this case, who was the first one to rape you?
A: Joel Cortezano.
Q: When you say rape, just what do you mean, can you possibly explain
further to the Honorable Court how was it done?
A: When I woke up they were already undressing me, they held my hand
and my legs and I could not move and Tito Joey[18] inserted his penis to
my vagina and Tito Butchoy[19] was standing by the window and
watching.
(Witness is crying).
Q: And so, what did you feel, if any?

A: I felt something slippery was left inside my vagina.

Q: And so, after the accused Joel Cortezano did this to you, what happened
next?
A: They left the house and were at the sampaloc tree.
Q: How old are (sic) you then during that incident as related on May 6,
1990?
A: I was seven years old.
Q: What else happened, if any, with regards to Bernardo Cortezano besides
his watching in the window as you say?
A: After Tito Joel did that to me, Bernardo Cortezano also did it to me and
after that, Boyet, a cousin of mine when inside the room and ask what
they were doing and Tito Joel answered, you also have to do what we
are doing, otherwise we will hurt you, so Boyet did the same thing to
me.
Q: You testify (sic) that one of the accuseds (sic), Bernardo Cortezano, after
Joel Cortezano did the same thing to (sic), tell the Honorable Court what
is this thing that Bernardo Cortezano did to you, if any?
A: Tito Joel went beside the window and watch while Bernardo Cortezano
also inserted his penis to my vagina.
Q: When Bernardo Cortezano inserted his penis into your vagina, what did
you feel, if any?
A: I feel that there was something slippery again was left inside my vagina.
Q: And so, after Bernardo Cortezano did this to you, what happened next, if
any?
A: Boyet went inside the room followed by Tito Joel who went inside again
and told Boyet to do what they were doing otherwise he will hurt Boyet
and since Boyet was frightened, he also did the same thing to me.
Q: What is that same thing Boyet did to you, if any?
A: He also held my arms and inserted his penis into my vagina.

Q: And so after that, what happened next?

A: They laughed at me and then they called by brother and sister and told
them to peep at me and they saw me naked.
Q: At the time when these accused Joel and Bernardo Cortezano started
making advances, did you not resist their advances?
A: I fought back but they were too strong for me, one held my arms and the
other was on top of me while he inserted his penis, I want to shout but
Joel told me not to because nobody can hear me.
Q: Now we come to the incident of June 10, 1990, as far as you can recall,
where were you on June 10, 1990.
A: I was at the house of my lola.
Q: While you were at the house of your Lola, what incident took place, if
any?
A: On June 10, 1990 it was the last time they did it to me.
Q: What time was that already?
A: It was after lunchtime, they warned me not to tell anybody otherwise
they will kill me and my family.
Q: When you say they, to whom are you referring to?
A: Joel and Bernardo Cortezano.
Q: If they are inside the courtroom, will you please point to them?
A: (Witness pointing to a man wearing stripe[d] polo who identify (sic)
himself as Bernardo Cortezano and the man wearing a gray polo who
identify (sic) himself as Joel Cortezano).
Q: Please tell the Honorable Court what is that same thing you are referring
to which was done to you by the accuseds in this case on June 10, 1990?
A: They remove (sic) my panty and they place saliva in my vagina and then
they held my arms and pinned my legs and then kiss me on the lips.
Q: Who kissed you on the lips?

A: Joel Cortezano.
Q: And after kissing you on the lips, what happened next, if any?
A: They left the room and went to the sampaloc tree and they laughed at
me, then I went out of the room and wash my lips. [20]
Leah was brought by her mother to Sipocot to spend her vacation with her
grandparents, only to be waylaid and enslaved by the appellants, her own
uncles. Well-settled is the rule that the testimonies of young victims deserve full
credence and should not be so easily dismissed as a mere fabrication. [21] As
emphasized by this Court in People v. Quezada:[22]
No woman, especially one of tender age, would concoct a story of defloration, allow
an examination of her private parts and thereafter permit herself to be subjected to
a public trial, unless she is motivated solely by the desire to have the culprit
apprehended and punished. Considering that the young victim had not been
exposed to the ways of the world, it is most improbable that she would impute a
crime so serious as rape to any man, if the charge were not true. [23]
In People v. De Guzman,[24] we held:
Well-established is the rule that testimonies of rape victims, especially child victims,
are given full weight and credit. It bears emphasis that the victim was barely seven
years old when she was raped. In a litany of cases, we have applied the well settled
rule that when a woman, more so if she is a minor, says she has been raped, she
says, in effect, all that is necessary to prove that rape was committed. Courts
usually give greater weight to the testimony of a girl who is a victim of sexual
assault, especially a minor particularly in cases of incestuous rape, because no
woman would be willing to undergo a public trial and put up with the shame,
humiliation and dishonor of exposing her own degradation were it not to condemn
an injustice and to have the offender apprehended and punished. [25]
The barefaced fact that the public prosecutor opted to charge the appellants
with only four counts of rape on May 6 and June 10, 1990, but Leah, in her sworn
statement to the police authorities, stated that she had been raped by the
appellants on a daily basis and testified thereon, does not render her testimony
implausible. Even the municipal trial court which conducted the preliminary
investigation of the cases found probable cause against the appellants for thirty-six
counts of rape:
From the evidence of the prosecution, it is clear that statutory rape was committed
to victim Leah Cedilla Cortezano for thirty six (36) times by accused Joel Cortezano
and Bernardo Cortezano, and the rapes were committed in the house of the

paternal grandparents of victim Leah Cedilla Cortezano located in Barangay

Azucena, Sipocot, Camarines Sur, from May 6, 1990, until June 10, 1990.
WHEREFORE, for all the foregoing considerations, it is respectfully recommended
that THIRTY-SIX (36) complaints for rape should be filed in the Regional Trial Court
against accused JOEL CORTEZANO and BERNARDO CORTEZANO.
Forward this case and its entire records to the Honorable Senen C. Lirag, the
Provincial Prosecutor of Camarines Sur, Camarines Sur Hall of Justice, Naga City, for
appropriate action.
SO ORDERED.[26]
The provincial prosecutor may have opted to file only four counts of rape
instead of thirty-six counts of rape for reasons other than the implausibility of Leahs
testimony. Neither is Leahs testimony enfeebled by her siblings failure to report to
their parents or grandparents that they saw her naked on May 6, 1990. At the time,
Leah Lou was barely three, while Lionel was only a year old. The children were too
young to realize the importance of reporting such an incident to their parents or
grandparents.
In the present recourse, the appellants defense of alibi deserves scant
consideration. As consistently held by this Court:
[A]libi is the weakest of all defenses. It is a settled rule that for an alibi to prevail,
the defense must establish by positive, clear and satisfactory proof that it was
physically impossible for the accused to have been at the scene of the crime at the
time of its commission, and not merely the accused was somewhere else. [27]
For alibi to prosper, the following must be established with clear and convincing
evidence: (a) the presence of the appellant in another place at the time of the
commission of the offense; and, (b) physical impossibility for him to be at the scene
of the crime.[28] Alibi cannot prevail over the positive, straightforward and
spontaneous testimony of the victim identifying the appellants as the malefactors
and how they consummated the crimes charged.
Bernardo failed to show that it was physically impossible for him to have been in
Sipocot on May 6 and June 10, 1990. Bernardo even testified that it was possible for
him to have returned to Sipocot if he wanted to, as there were passenger jeepneys
and buses plying the route four times a day. [29] There is no evidence that his running
away from their house was even reported to the police authorities. The appellant
merely relied on his testimony and that of his father to prove his defense. He even
failed to present his cousin Alvin Reoval to corroborate his testimony.

Appellant Joel Cortezano likewise failed to substantiate his alibi. He failed to

prove that he was treated at the PGH and was confined thereat on May 6 and June
10, 1990. When asked to produce any certification to prove his claim, he failed to
produce any, on his incredible claim that the person releasing the certification was
very busy and could not issue a certification.This was belied by the certifications
issued by the PGH that the appellant had consulted the PGH as an outpatient only
on August 16, 1989, November 2, 1989 and April 6, 1990, but was never confined in
the said hospital.[30]
Boyet Orcines bare denial that he was forced by the appellants to have sexual
intercourse with Leah cannot prevail over Leahs positive and categorical
testimony. The appellants failed to adduce a morsel of evidence to prove that Leah
had any ill motive to implicate her cousin Boyet.
The appellants claim that the charges against them were instigated by Lourney
to hit back at her husband and his family deserves scant consideration. No mother
in her right mind would subject her child, who is of tender age, to go through the
rigors of undergoing a rape case just to exact revenge. In this light, this Court had
the occasion to say:
Indeed, it is accused-appellants claim that the rape charge against him was merely
fabricated by complainants mother in order to get back at him, which we find to be
implausible. As the trial court well-observed, it would be contrary to human nature
for a mother like Lucita to expose her daughter of six years to the rigors of a trial of
rape which may leave her stigmatized for life, and, in addition, involve another
daughter as corroborative witness, just so she could exact her pound of flesh
against accused-appellant. In several rape cases, this Court has uniformly rejected
similar defenses on the ground that it is unbelievable. [31]
This Court also held in People v. De Guzman[32] that:
All told, the proffered alibi of accused-appellant cannot stand against the positive
identification by the complainant that he is the defiler of her womanhood. Indeed,
the revelation of an innocent girl not even into her teens whose chastity has been
abused deserves full credit, as the willingness of complainant to face police
investigation and to undergo the trouble and humiliation of a public trial is eloquent
testimony of the truth of her complaint. In short, it is most improbable for an
innocent and guileless girl of seven years as herein-offended party, to brazenly
impute a crime so serious as rape to any man, let alone her uncle, if it were not
true.[33]
The Court notes that the appellants were still minors when they committed the
offense. At the time, Joel was 13 years and 6 months old, while Bernardo was 12
years and 4 months old.Nevertheless, they are not exempt from criminal liability.

Article 12, paragraph 3 of the Revised Penal Code provides:

Article 12. Circumstances, which exempt from liability.The following are exempt
from criminal liability:
3. A person over nine years of age and under fifteen, unless he acted with
discernment, in which case, such minor shall be proceeded against in accordance
with the provisions of Article 80 of this Code.
A minor who is over nine years old and under fifteen years old at the time of the
commission of the crimes is exempt from criminal liability only when the said minor
acted without discernment. It is the burden of the prosecution to prove that a minor
acted with discernment when he committed the crime charged. In determining if
such a minor acted with discernment, the Courts pronouncement in Valentin v.
Duquea[34] is instructive:
The discernment that constitutes an exception to the exemption from criminal
liability of a minor under fifteen years of age but over nine, who commits an act
prohibited by law, is his mental capacity to understand the difference between right
and wrong, and 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, the very appearance, the very attitude, the very comportment and behavior
of said minor, not only before and during the commission of the act, but also after
and even during the trial.
In this case, the evidence on record shows beyond cavil that the appellants
acted with discernment when they raped the victim, thus: (a) they wetted the
victims vagina before they raped her; (b) one of them acted as a lookout while the
other was raping the victim; (c) they threatened to kill the victim if she divulged to
her parents what they did to her; (d) they forced Boyet to rape the victim; (e) they
laughed as Boyet was raping the victim; (f) they ordered Leah Lou and Lionel to look
at their sister naked after the appellants had raped her.
The Proper Penalties
The imposable penalty for rape committed by two or more persons under Article
335 of the Revised Penal Code was reclusion perpetua to death.[35] Since the
appellants were both minors at the time they committed the offenses, they are
entitled to the benefits of the privileged mitigating circumstance of minority under
Article 68(1) of the Revised Penal Code which reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of age.When the
offender is a minor under eighteen years and his case is one coming under the

provisions of the paragraph next to the last of Article 80 of this Code, the following
rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not exempted
from liability by reason of the court having declared that he acted with discernment,
a discretionary penalty shall be imposed, but always lower by two degrees at least
than that prescribed by law for the crime which he committed.
Two degrees lower than reclusion perpetua to death is prision mayor, which has
a range of 6 years and 1 day to 12 years. The maximum of the indeterminate
penalty shall be taken from the proper period of the said penalty, depending upon
the presence or absence of modifying circumstances. The minimum of the
indeterminate penalty shall be taken from the full range of the penalty, one degree
lower than prision mayor, prision correccional, which has a range of 6 months and 1
day to 6 years.
In these cases, the crimes were not aggravated by abuse of superior strength
because the said circumstance is already considered in the penalty imposed by the
law for the crimes.However, the crimes were aggravated by relationship, pursuant
to the second paragraph of Article 15 of the Revised Penal Code, as amended.
[36]
The appellants are the uncles of the victim. The crime charged in Criminal Case
No. L-1679 was aggravated by the appellants, adding ignominy to the natural
effects of the crime.[37] In People v. Fuertes,[38] this Court ruled:
Ignominy is a circumstance pertaining to the moral order which adds disgrace and
obloquy to the material injury caused by the crime. The clause Which add ignominy
to the natural effects of the act contemplates a situation where the means
employed or the circumstances tend to make the effects of the crime more
humiliating or to put the offended party to shame.
Ignominy was attendant when the appellants forced Boyet Orcine to rape the
victim, and laughed as the latter was being raped by Boyet, and when they ordered
Leah Lou and Lionel to look at their naked sister after the appellants had raped
her. However, the aforementioned modifying circumstances cannot aggravate the
crimes and the penalties therefor because the same were not alleged in the
Information as mandated by Section 9, Rule 110 of the Revised Rules of Criminal
Procedure. Although the crimes were committed before the effectivity of the said
Rule, it shall be applied retroactively because it is favorable to the appellants. [39]
Civil Liabilities of the Appellants
The trial court awarded P50,000 as moral damages and P50,000 as exemplary
damages to the victim in each case. The court did not award civil indemnity in both
cases. The decision of the trial court shall thus be modified.

The trial court convicted the appellants of two counts of rape in each
case. However, Leah is entitled to civil indemnity of P50,000 and moral damages
of P50,000 for every crime committed by the appellants. [40] The appellants are also
liable to the said victim for exemplary damages for each count of rape in the
amount of P25,000.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Libmanan, Camarines Sur, Branch 56, in Criminal Cases Nos. L-1679 and L-1680,
finding the appellants Bernardo Cortezano and Joel Cortezano guilty beyond
reasonable doubt of four counts of rape is AFFIRMED WITH MODIFICATIONS.
In Criminal Case No. L-1679, the appellants are sentenced to suffer an
indeterminate sentence of imprisonment (two counts) of nine (9) years and one (1)
day of prision mayor in its medium period, as maximum, to four (4) years and two
(2) months of prision correccional in its medium period, as minimum. Each of the
appellants is ordered to pay the offended party Leah Cortezano P50,000 as civil
indemnity; P50,000 as moral damages; and P25,000 as exemplary damages for
each count of rape. Thus, each of the appellants shall pay the offended party the
total amount of P100,000 as civil indemnity; P100,000 as moral damages;
and P50,000 as exemplary damages.
In Criminal Case No. L-1680, the appellants are sentenced to suffer an
indeterminate sentence (two counts) of nine (9) years and one (1) day of prision
mayor in its medium period, as maximum, to four (4) years and two (2) months
of prision correccional in its medium period, as minimum. Each of the appellants is
ordered to pay the offended party Leah CortezanoP50,000 as civil
indemnity; P50,000 as moral damages; and P25,000 as exemplary damages for
each count of rape. Thus, each of the appellants shall pay the offended party the
total amount of P100,000 as civil indemnity; P100,000 as moral damages;
and P50,000 as exemplary damages.
SO ORDERED.
G.R. No. L-4549

October 22, 1952

THE
PEOPLE
OF
THE
PHILIPPINES,
vs.
BIENVENIDO CAPISTRANO, defendant-appellant.

plaintiff-appellee,

Miguel
F.
Trias
for
appellant.
Office of the Solicitor General Pompeyo Diaz and Esmeraldo Umali for appellee.
JUGO, J.:

Bienvenido Capistrano was charged before the Court of First Instance of Quezon
province with the crime of treason on four (4) counts. He was found guilty by said
court and sentenced to suffer life imprisonment and to pay a fine of P10,000 and
the costs.
The attorney de oficio of the appellant states in a petition filed with this Court that
after having read, reread, and studied the evidence, he finds no substantial error
committed by the trial court and prays for the affirmance of the judgment.
The evidence of the record establishes the following:
The accused Bienvenido Capistrano admitted being a Filipino citizen.
Count No. I
Alejo Enriquez Wong and Carmen Verdera testified that the defendant was a socalled Yoin, which means an armed soldier of the Japanese. Wearing a Japanese
military uniform, he rendered services to the Japanese army as a guard of a
Japanese garrison. To the same effect, the witness Placer Canada testified.
The defendant argued at the trial court that there was no evidence showing that he
had been appointed a Yoin or that he was a Makapili. While no written formal
appointment was introduced in evidence, yet it is clear that he was engaged in the
work of guarding the Japanese garrison, armed with a gun and wearing a Japanese
uniform and taking part in the military drills of the Japanese army.
Count No. II
At about 3:00 o'clock in the morning of January 8, 1945, the defendant with other
Filipino members of the Yoin and several Japanese soldiers, all armed, arrived near
the house of Carmen Verdera in Barrio Malay, Municipality of Lopez, Province of
Tayabas (now Quezon), and ordered the inmates therein to open the door. The
appellant and his companions entered the house, raised the mosquito nets and
ordered the inmates to rise. The appellant and his companions tied Graciano
Fortuna, Carmen Verdera, Alejo Enriquez Wong, Rufino Rivera, Maria Canada, Brisilio
Canada, Remedios Anastacio, Dolores Enriquez, Teodora Zamora, Presentacion
Anastacio, and Placer Canada with a rope which was used as a clothesline. The
intruders then searched the premises and seized from Alejo Enriquez Wong $1,000,
U.S. currency, and P4,000, Philippine currency. They took Graciano Fortuna and
other inmates to the Japanese garrison at Lopez, Tayabas (Quezon) and then to the
Yoin garrison in the same town. The motive for the raid was that Pedro Canada, a
brother of Placer, was a guerrilla lieutenant in Lopez and Salvador Fortuna, son of
Graciano, was a soldier in the said organization. One night during the detention of
Placer and her companions in the Yoin garrison, the appellant attempted to sexually

abuse Placer and her companions, but when the women cried and the Japanese
came, the defendant escaped. Placer and her companions were released after one
month when they paid to the chief of the Yoin and the appellant the sum of P2,500
Japanese war notes. The charge was testified to by several victims.
The accused was more than nine (9) but less than fifteen (15) years of age at the
time that he committed the crime. However, the court which had the opportunity to
see and hear the accused at the trial found that he acted with discernment. It
should be noted, furthermore, that he appeared as the leader or commander of the
raiding party. Although his minority does not exempt him from criminal
responsibility for the reason that he acted with discernment, yet it may be
considered as a special mitigating circumstance lowering the penalty by two (2)
degrees.
Article 80 of the Revised Penal Code cannot be applied to the accused because he
was over eighteen (18) years old at the time of the trial (People vs. Estefa, 47 Off
Gaz. No. 11, 5652; 86 Phil. 104).
In view of the above special mitigating circumstances of minority, the penalty
imposed upon the accused is hereby modified by imposing upon him four (4) years
of prision correccional, to pay a fine of P10,000 and to indemnify Alejo Enriquez
Wong in the sum of P6,000, with subsidiary imprisonment in case of insolvency in
the payment of the fine and the indemnity, with costs.
It is so ordered.

VALCESAR
yMACAMAY,

ESTIOCA

G.R. No. 173876

Petitioner,
Present:

YNARES-SANTIAGO, J.
Chairperson,
AUSTRIA-MARTINEZ,
-versus

CHICO-NAZARIO,
NACHURA, and

REYES, JJ.

Promulgated:
PEOPLE OF THEPHILIPPINES,
Respondent.

June 27, 2008

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

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,
[1]

petitioner Valcesar Estioca y Macamay prays for the reversal of the Decision[2] of

the Court of Appeals in CA-G.R. CR No. 00036 dated 30 June 2006, affirming with
modification the Decision[3] and Order[4] dated 5 April 2004 and 17 August 2004,
respectively, of theOzamiz City Regional Trial Court (RTC), Branch 35, in Criminal
Case No. 3054, finding him guilty of robbery under Article 299, subdivision (a),
number (2) of the Revised Penal Code.

Culled from the records are the following facts:

On 31

July

2001,

an

Information[5] was

filed

before

petitioner, Marksale Bacus (Bacus),

the

RTC

charging

Kevin Boniao (Boniao)

and Emiliano Handoc (Handoc) with robbery, thus:

That on July 28, 2001, at about 8:00 oclock in the morning, in

the City of Ozamiz, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of gain, did
then and there helping one another, willfully, unlawfully, and
feloniously break, destroy, and destroyed the padlock of the main door
of the classroom of MS. SELINA M. PANAL and once inside, the accused
took, stole and carried away the following:

A.

One
(1)
worth P6,000.00;

Panasonic

Colored

TV

14

B.

One (1) Sharp Karaoke Tower Single Player

color black worth P6,000.00; and

C.

One (1) 3D Rota Aire Stand Fan color brown

worth P3,000.00;

belonging to the Ozamiz City Central School represented herein by MS.

SELINA M. PANAL, all valued at P15,000.00, to the damage and
prejudice of the said school thereof, in the aforementioned sum
of P15,000.00, Philippine Currency.

When

arraigned

on

separate

dates

with

the

assistance

of

their

counsels de oficio, petitioner, Bacus, Boniao and Handoc pleaded Not guilty to the
charge.[6] Thereafter, trial on the merits ensued.

The prosecution presented as witnesses Nico Alforque (Nico) and Mrs. Celina
M. Panal (Mrs. Panal). Their testimonies, woven together, bear the following:

On 28 July 2001 (Saturday), at about 8:00 in the morning, Nico, then eleven
years old and a Grade VI student of Ozamiz City Central School (OCCS), and his
cousin, Mark Alforque (Mark), went to the OCCS and cleaned the classroom of a
teacher named Mrs. Myrna Pactolin (Mrs. Pactolin). They received P30.00 each from
Mrs. Pactolin for the chore. Afterwards, Mark went home while Nico stayed inside the
OCCS

because

Mrs. Pactolin requested

him

to

get

some waya-

waya and dapna inside the OCCSs canal to be used as fish food.[7]

While
petitioner

catching waya-waya and dapna inside

and Bacus enter

the OCCSs premises

the OCCSs canal, Nico saw

by

climbing

over

the OCCSs gate. Petitioner andBacus then proceeded to the classroom of another
teacher, Mrs. Panal, which was located near the OCCSs canal. Thereupon, petitioner
and Bacus destroyed the padlock of the classrooms door using an iron bar and
entered therein. Subsequently, petitioner and Bacus walked out of the classroom
carrying a television, a karaoke and an electric fan, and thereafter brought them to
the school gate. They went over the gate with the items and handed them over
to Boniao and Handoc who were positioned just outside the OCCSs gate.The items
were placed inside a tricycle. After petitioner, Bacus and Boniao boarded the
tricycle, Handoc drove the same and they sped away. [8]

On the following day, 29 July 2001, Mrs. Panal went to the OCCS for a dance
practice with her students. She proceeded to her classroom and discovered that it
was forcibly opened, and that the karaoke, television and electric fan therein were
missing. She immediately reported the incident to the police. The OCCS principal
informed

her

thatNico witnessed

the

incident. Thereafter,

petitioner, Bacus, Boniao and Handoc were charged with robbery.[9]

The prosecution also submitted object evidence to buttress the testimonies of

its witnesses, to wit: (1) a T-shaped slightly curved iron bar, which is 10 mm. by 12

inches in size, used in destroying the padlock of Mrs. Panals classroom and marked
as

Exhibit

A;

and

(2)

Yeti

brand,

colored

yellow,

padlock

used

in

Mrs. Panals classroom, marked as Exhibit B.

For

its

part,

the

defense

presented

the

petitioner, Bacus, Rolly Agapay (Agapay), Boniao and Handoc to

testimonies

of

refute

the

foregoing accusations. Petitioner and his co-accused denied any involvement in the
incident and interposed the defense of alibi.

Petitioner Estioca testified that on 28 July 2001, he cleaned his house

located at Laurel Street, Ozamiz City, from 8:00 in the morning up to 10:00 in the
morning. After cleaning the house, he ate lunch and rested. At around 3:00 in the
afternoon of the same day, he went to the house of his neighbor/friend, Junjun Ho
(Junjun), to help the latter in cleaning his houseyard. However, Junjuns father
arrived, and since the father and son had to discuss important things, he decided to
go home which was about past 3:00 in the afternoon. Upon arriving home, his aunt,
Myrna Macamay, told him that some people had gone to the house looking for
him. Later, two unidentified persons, accompanied byBoniao, came to his house and
brought him to the City Hall Police Station for investigation as regards the incident.
[10]

During the interrogation inside the police station, a certain Michael

approached him and inquired as to where he sold the television stolen from the
OCCS. He told Michael not to accuse him of stealing as it is not a good joke. Michael
called Bacus and Boniao who were then standing nearby, and the two pointed to
him as the one who sold the television. Afterwards, one of the police officers therein
told him to approach a certain Colonel Bation who was also inside the police
station. Upon approaching Colonel Bation, the latter punched him in the stomach
causing him to kneel down in pain. Colonel Bation asked him where he sold the
television but he told him he had nothing to do with it.Colonel Bation took a whip
and smacked him with it several times on the body. An emergency hospital worker
named Dennis Fuentes, who was also present, stripped him naked and burned his
scrotum, chest and palm with lighter, cigarette butts and matchsticks. Thereafter,
he was jailed.[11]

Bacus, a resident of Barangay Lam-an, Ozamiz City, declared that on the

night of 27 July 2001, he slept at the guardhouse of the Ozamiz City National High
School (OCNHS) which is located in front of the OCCS. On the following day, 28 July
2001, at about 7:00 in the morning, he woke up and helped his mother in selling
bananas beside their house which is situated in front of the OCNHS. At
about 11:00 in

the

morning

of

the

same

day,

while

on

his

way

to Barangay Tinago, Ozamiz City, to buy chicken feed, a certain Michael Panal and
an unidentified companion blocked his path and asked him if he was the one who
robbed the OCCS. He told the two that he had nothing to do with the incident. The
two then brought him to the nearby seashore where they were met by a group of
persons headed by a certain Maning. Thereupon, they tortured and beat him for
refusing to admit involvement in the incident. Subsequently, he was taken to
the Ozamiz City Hall for investigation.[12]

Agapay, an OCNHS working student and a resident of the said school,

narrated that he knows Bacus because the latter resided in a house located just in
front of the OCNHS; that he and Bacus usually slept at the guardhouse of the
OCNHS; that on the night of 27 July 2001, he and Bacus slept at the guardhouse of
the OCNHS; and that Bacuswoke up on the following day, 28 July 2001, at about
8:30 in the morning.[13]

Boniao, 14 years old and resident of Barangay Tinago, Ozamiz City, testified
that on 28 July 2001, at 8:00 in the morning, he cleaned his parents house and
thereafter watched

television. On 30 July 2001, at 7:00 in the morning, he

and Bacus went to the OCCS to pick up plastic bottles scattered therein. After
gathering some plastic bottles, he and Bacus left the OCCS. While on their way
home, a certain Leoncio apprehended him and brought him to his parents
house. Upon arriving home, his mother beat him and forbade him to go out of the
house. Subsequently, several persons went to his parents house and arrested
him. He was taken to a nearby port where he was asked to identify the persons
involved in the robbery of the OCCS. When he could not say anything about the
incident, he was brought to the City Hall Police Station where he was jailed. [14]

Handoc, a pedicab driver residing at Barangay Tinago, Ozamiz City, stated

that

he

helped

his

brother-in-law

in

quarrying

gravel

at Panay-

ay Diot, Clarin, MisamisOccidental, on the whole morning of 28 July 2001; that he

went back to Barangay Tinago, Ozamiz City, at about 4:00 in the afternoon of 28
July 2001; that Tomas Medina, the former barangay captain, arrested him and took
him to the City Hall; that police officers in the City Hall inquired as to where he sold
the television stolen from the OCCS but he replied that he had nothing to do with it;
that he was repeatedly beaten by police officers for denying any involvement in the
incident; and that he was detained at the City Hall Jail. [15]

After

trial,

the

RTC

rendered

Decision

on 5

April

2004 convicting

petitioner, Bacus, Boniao and Handoc of robbery under Article 299, subdivision (a),
number (2), paragraph 4 of the Revised Penal Code. The trial court imposed on
petitioner, Bacus and Handoc an indeterminate penalty ranging from six years and
one day of prision mayor as minimum, to fourteen years, eight months and one day
of reclusion temporal as maximum. Since Boniao was a minor (14 years old) when
he participated in the heist, he was sentenced to a lower prison term of six months
of arresto mayor as

minimum

to

four

years

and

two

months

of prision correccional as maximum. They were also ordered to payP15,000.00 as

civil liability. Nonetheless, the sentence meted out to Boniao was suspended and his
commitment to the Department of Social Welfare and Development (DSWD) was
ordered pursuant to Presidential Decree No. 603. [16] The dispositive portion of the
decision reads:

WHEREFORE,
finding
accused Valcesar Estioca y Macamay alias Bango, Marksale Bacus alias
Macoy, Emeliano Handoc y Bullares alias Eming and
minor
Kevin Boniao guilty beyond reasonable doubt of the crime of robbery
defined and penalized under Article 299, subsection (a), paragraph 2 of
the Revised Penal Code and upon applying Art. 64, paragraph 1 of the
Revised Penal Code and Indeterminate Sentence Law and Privileged
Mitigating Circumstance of two (2) degrees lower than that prescribed
for by law (Art. 68, par. 1) unto Kevin Boniao, a minor, who was 14
years old at the time of the commission of the crime, this court hereby
sentences
them
(a) Valcesar Estioca, Marksale Bacus, Emeliano Handoc to suffer the
indeterminate penalty ranging from six (6) years and one (1) day

of Prision Mayor as minimum to fourteen (14) years, eight (8) months

and one (1) day of Reclusion Temporal as maximum and
(b) KevinBoniao (minor) to suffer the penalty of six (6) months
of Arresto Mayor as minimum to four (4) years and two (2) months
of Prision Correccional as maximum and all of the accused to suffer the
accessory penalty provided for by law, to indemnify the civil liability
of P15,000.00 and to pay the costs.

With respect to Kevin Boniao, the sentence imposed upon him is

hereby suspended pursuant to PD 603 as amended and he is therefore
committed to the Department of Social Welfare and Development
(DSWD) for reformation, otherwise if he is incorrigible, then the
sentence shall be imposed upon him by the court. The DSWD is hereby
ordered to have close surveillance and supervision upon him and to
constantly observe the development of his behavior and to submit to
the court a report/recommendation on the matter as prescribed for by
law.

The Order of this court dated August 20, 2001 is hereby cancelled and
revoked.

The accused are entitled 4/5 of the time they were placed under
preventive imprisonment.

The
cash
bond
in
the
amount
of P24,000
posted
by
accused Valcesar Estioca is hereby cancelled and the same is ordered
released and returned to the bondsman concerned. [17]

Petitioner, Bacus, Boniao and Handoc filed a Motion for Reconsideration of

the RTC Decision arguing that there was no conspiracy among them and that the
penalty imposed was erroneous. [18] On 17 August 2004, the RTC issued an Order
partially granting the motion.[19] The trial court lowered the penalty imposed on
them but affirmed its earlier finding of conspiracy and conviction. It also ordered
the DSWD to release and turn over Boniao to his parents. It concluded:

WHEREFORE, as herein modified, the imposable indeterminate

penalty
meted
to
accused Valcesar Estioca, Marksale Bacus and Emeliano Handoc being
guilty beyond reasonable doubt of he crime of Robbery, defined and
penalized under paragraph 4 of Art. 299 of the Revised Penal Code
upon applying Indeterminate Sentence Law with paragraph 1 of Art.
64, Revised Penal Code, ranges from four (4) years, two (2) months
and one (1) day of prision correccional as minimum to eight (8) years
and one (1) day of prision mayor as maximum with accessory penalty
provided for by law; and for minor accused Kevin Boniao, the penalty of
four (4) months of arresto mayor upon applying the privileged
mitigating circumstance in Art. 68, paragraph 1 of the Revised Penal
Code with Art. 64, paragraph 1 of the same Code. All of the accused
shall indemnify jointly the civil liability of P15,000.00 and to pay the
costs.

As aforestated, minor accuser Kevin Boniao is hereby ordered released

from DSWD and returned to the custody of his parents. [20]

Unsatisfied, petitioner appealed the RTC Decision and Order before the Court
of

Appeals.[21] Bacus, Boniao and Handoc did

not

appeal

their

conviction

anymore. On 30 June 2006, the Court of Appeals promulgated its Decision affirming
with

modification

the

RTC

Decision

and

Order. The

appellate

court

held

that Boniao is exempt from criminal liability but his civil liability remains pursuant to
Republic Act No. 9344 otherwise known as The Juvenile Justice and Welfare Act of
2006, thus:

On a final note, considering that it is axiomatic that an appeal opens

the entire case for review and considering further that any decision
rendered in the appeal does not bind those who did not appeal except
if beneficial to them, We hold that herein accused Kevin Boniao should
be acquitted and his criminal liability extinguished pursuant to
Republic Act No. 9344, otherwise known as the Juvenile Justice and
Welfare Act of 2006, which took effect on May 22, 2006. The pertinent
provision thereof provides, thus:

Sec. 6. Minimum Age of Criminal Responsibility. A child

fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from criminal
liability.However, the child shall be subjected to Section
20 of this Act.

xxxx

The exemption from criminal liability herein established

does not include exemption from civil liability, which shall
be enforced in accordance with existing laws.

WHEREFORE, premises foregoing, the appeal is hereby DISMISSED and

the assailed Decision and the August 17, 2004 Order are hereby
AFFIRMED subject to the modification that accused KEVIN BONIAO is
hereby ACQUITTED of the crime charged pursuant to Section 6 of R.A.
No. 9344, without prejudice to his civil liability. [22]

On 21 August 2006, petitioner filed the instant petition on the following

grounds:
I.

WHETHER OR NOT UNDER THE FACTS AND CIRCUMSTANCES OF THE

ALLEGED ROBBERY WHICH HAPPENED ON BROAD DAY LIGHT AND IN
THE PRESENCE OF ALLEGED TWO (2) EYEWITNESSES UNDER HUMAN
EXPERIENCE CAN POSSIBLY BE PERPETUATED BY THE ACCUSED;

II.

WHETHER OR NOT ALLEGED LONE WITNESS NICO ALFORQUE COULD

HAVE POSSIBLY WITNESS[ED] THE ALLEGED ROBBERY INCIDENT. [23]

Simply put, the Court is called upon to determine whether the testimony
of Nico is credible given the surrounding circumstances of the incident.

Petitioner maintains that the testimony of Nico regarding the fact that the
robbery was committed in broad daylight (8:00 in the morning) and in full view
of Nico is against human nature. He asserts that no person would dare commit
robbery in broad daylight and in the presence of other people because they would
be easily identified.[24]

Petitioner further claims that it was impossible for Nico to see petitioner
and Bacus destroy

the

door

of

Mrs. Panals classroom

because,

according

to Nicos own Affidavit,Nico was inside the classroom of Mrs. Pactolin during the
incident. He insists that the walls of Mrs. Pactolins classroom prevented Nico from
witnessing the incident.[25]

In resolving issues pertaining to the credibility of the witnesses, this Court is

guided by the following well-settled principles: (1) the reviewing court will not
disturb the findings of the lower court, unless there is a showing that it overlooked,
misunderstood or misapplied some fact or circumstance of weight and substance
that may affect the result of the case; (2) the findings of the trial court on the
credibility of witnesses are entitled to great respect and even finality, as it had the
opportunity to examine their demeanor when they testified on the witness stand;
and (3) a witness who testifies in a clear, positive and convincing manner is a
credible witness.[26]

After carefully reviewing the evidence on record and applying the foregoing
parameters to this case, we find no cogent reason to overturn the factual finding of
the

RTC

that Nicos testimony

is

credible. As

an

eyewitness

to

the

incident, Nico positively identified petitioner, Bacus, Boniao and Handoc as those
who robbed the OCCS of an electric fan, television and karaoke on the morning
of 28

July

2001. His

direct

account

of

how

petitioner, Bacus, Boniao and Handoc helped one another in robbing the OCCS is
candid and convincing, thus:

Q: Now, on July 28, 2001 at about 8:00 oclock in the morning, could
you be kind enough to tell us where were you at that time?

A: We were cleaning the room of the school, sir.

Q: What particular school are you referring to?

A: At Ozamis Central School, sir.

Q: Would you be able to tell us the name of the teacher of that

particular classroom you were cleaning?

A: The classroom of Mrs. Pactolin, sir.

Q: Why did you clean the classroom of Mrs. Pactolin, were you being
paid?

A: Yes sir.

Q: How much?

A: P30.00 sir.

Q: Were you alone in cleaning the classroom of Mts. Pactolin at that

time?

A: We were two sir.

Q: Would you be kind enough to tell this honorable court who was your
companion at that time?

A: My cousin Mark Alforque sir.

Q: Now, after cleaning the classroom of Mrs. Pactolin together with

Mark Alforque, what did you do next?

A: My cousin went home and I was left in the classroom because I was
requested by my teacher to get fish food.

Q: What fish food are you talking about Mr. Witness?

A: Wayawaya and Dapna sir.

Q: While getting the fishfood for your teacher, did you observed (sic)
anything unusual that happened?

A: Yes, sir.

Q: Would you be kind enough to tell this Court now what did you
observed (sic) that time when you were getting the fishfood?

A: I saw somebody climbed the gate sir.

xxxx

Q: Where were you at that time Mr. Nico Alforque?

A: I was inside the school sir.

Q: What particular place are you referring?

A: Near the canal sir.

Q: And would you be able to tell us also how far were you when you
saw these persons climbing the gate?

A: I was a little bit farther sir.

Q: After you saw the two persons climbing the gate, what happened
after that?

A: I saw that the padlock was opened.

Q: What particular padlock are you referring to?

A: I saw a padlock made of iron.

Q: And what particular classroom or place were these persons you saw
that they were opening the padlock?

A: The classroom of Mrs. Celina Panal sir.

Q: Who is this Mrs. Celina Panal?

A: A teacher sir.

Q: Would you be able to tell us whose classroom these persons you

saw opening the padlock?

A: The classroom of Mrs. Panal sir.

Q: Would you be able to tell us how did they opened (sic) the
classroom of Mrs. Celina Panal?

A: The room was opened with the used (sic) of an iron bar sir.

Q: I am showing to you this iron bar, what relation has this iron bar to
the one you said a while ago?

A: That is the one used by the persons to open the classroom sir.

TO COURT:

We would like to request your honor that this iron bar be marked as
our Exh. A.

COURT:

Mark it.

TO WITNESS:

Q: And what about the padlock, would you be able to identify the
padlock that was used (sic) by these persons?

A: Yes sir.

Q: I am showing to you this padlock, would you kindly tell this Court
what relation this padlock to the one you stated a while ago?

A: That is the padlock used (sic) by them sir.

TO COURT:

For identification purposes your honor, May I respectfully request that

this padlock be marked as Exh. B.

COURT:

Mark it.

TO WITNESS:

Q: Now Mr. Nico Alforque, you said that there were two persons who
opened the classroom of Mrs. Celina Panal, would you kindly
identify these persons if you can see them now in court?

A: Yes sir.

Q: Would you kindly point to them if they are now here in court?

The witness is pointing to a person whom when asked of his name

declared that he is Valcesar Estioca.

A: And would you kindly tell us also the companion of Valcesar Estioca?

The witness is pointing to a person whose name is Marksale Bacus.

Q: These are the persons who destroyed the padlock of the classroom
of Mrs. Celina Panal?

A: Yes sir.

Q: After destroying the padlock Mr. Nico Alforque, what did you
observed?

A: I saw that they brought out the colored TV, the Karaoke and the
Electric Fan.

Q: You said that these persons after destroying the padlock, took the
colored TV, the Karaoke and the Electric Fan, where did they go?

A: After taking these things, they went out of the classroom sir.

Q: And after going out of the classroom where did they go?

A: They went to the gate sir.

Q: And at the gate, what did you observed (sic) if any?

A: I saw that there was another person sir.

Q: And what was this person doing at the gate?

A: They passed on the things through the person at the gate sir.

Q: To whom did these persons passed these things at the gate?

The witness is pointing to a man whose name is Kevin Boniao.

Q: What else did you observed (sic) at the gate?

A: I saw that there is another person.

Q: Who was that person?

The witness is pointing to accused Emeliano Handoc.

Q: And what was Emeliano Handoc doing at the gate Mr. Nico Alforque?

A: He was waiting at the gate sir.

Q: Now after you saw these persons, what were the two accused doing
at the gate when they passed the things to Kevin Boniao?

A: They were riding the tricycle sir.

Q: Could you be able to tell us who was driving the tricycle?

The witness is pointing to Emeliano Handoc.

Q: And after seeing these persons what did you observed (sic) after
that?

A: I did not see anything because I went away sir.

Q: You mean to say that all those persons went away when you went
away?

A: Yes sir.

Q: They went together, is that what you mean?

A: Yes sir.

Q: Are they walking or riding?

A: They were riding in a tricycle sir.

COURT:

Q: Whose tricycle?

The witness is pointing to Emeliano Handoc.[27]

Mrs. Panal corroborated the foregoing testimony of Nico on relevant points.[28]

The foregoing testimonies are consistent with the object evidence submitted
by the prosecution. The RTC and the Court of Appeals found the testimonies
of Nico and Mrs.Panal to be truthful and unequivocal and, as such, prevailed over
the denial and alibi of petitioner and his cohorts. Both courts also found no ill motive
on the part of Nico and Mrs. Panal.

It is not incredible or against human nature for petitioner and his companions
to have committed the robbery in broad daylight and in full view of Nico. There is no
standard behavior of criminals before, during and after the commission of a crime.
[29]

Some may be so bold and daring in committing a crime in broad daylight and in

full view of other persons. Others may be so cunning such that they commit crime
in the darkness of the night to avoid detection and arrest by peace officers. [30]

In People v. Toledo, Sr.,[31] we sustained the credibility of the eyewitness and

upheld the conviction of the accused for homicide despite the circumstances
existing at the crime scene -- broad daylight, full view of many persons inside the
school compound, and presence of inhabited houses. It was also ruled that crimes
may be committed in broad daylight and that criminals are not expected to be

logical or to act normally in executing their felonious designs because committing a

crime itself is not logical or reasonable, viz:

Appellant [accused] also asserts that the testimony of Ronnie

[eyewitness]
was
inherently
improbable. He
insists
that
the circumstances existing at the crime scene -- broad daylight,
full view of many persons inside the school compound,
presence of inhabited houses around the purok -- were such that a
crime could not be committed.

For a number of reasons, we find no merit in this

contention. First, appellants premise that there were many persons in
the school compound is not supported by the evidence on
record.Second, crimes are known to have been committed in
broad
daylight
within
the
vicinity
of
inhabited
houses. Third, although it would be illogical and unreasonable
for normal persons in full control of their faculties to commit a
crime under such circumstances, the same does not hold true
for all, especially those under the grip of criminal impulses. We
cannot expect the mind of such persons to work within the
parameters of what is normal, logical or reasonable, as the
commission
of
a
crime
is
not
normal,
logical
or
reasonable.Hence, the circumstances present in this case do
not rule out appellants commission of the crime. [32]

Besides, as aptly observed by the Office of the Solicitor General, [33] it is not
improbable for petitioner and his cohorts to have committed the robbery as
narrated by Nicobecause it happened on a Saturday, a non-school day in the
OCCS. Apparently, petitioner and his companions expected that none or only few
persons would go to the OCCS on said date.

A perusal of the transcript of stenographic notes shows that Nico was in a

canal located inside the OCCS catching waya-waya and dapna when he saw the
incident, and was not inside the enclosed classroom of Mrs. Pactolin as alleged by
petitioner.[34] Nico declared that he clearly saw the incident and that nothing blocked

his vision.[35] Nicoremained steadfast and consistent in his foregoing testimony even
on cross examination, thus:

Q: From the place where you were gathering fishfood at that time you
cannot clearly see the room of Mrs. Panal, am I right?

A: I can see it clearly sir.

Q: You have not seen what were those persons doing inside the room
of Mrs. Panal?

A: I saw them sir.

Q: You saw them taking away the Colored TV, Karaoke and the Electric
Fan?

A: Yes sir.

Q: Who among them took with him the TV?

The witness is pointing to Valcesar Estioca.

Q: Aside from the TV he also carry away with him the Electric Fan and
Karaoke?

A: It was his companion sir.

xxxx

Q: Now at the gate you saw how many persons aside from that two
who entered the room of Mrs. Panal?

A: I saw three persons sir.

Q: Was these three persons outside the gate or inside the gate?

A: They were inside the gate sir.

Q: And that was the time you saw the TV, Karaoke and Electric Fan
turned over to those persons at the gate?

A: Yes sir.

Q: After that, those three persons left the place?

A: Yes sir.

Q: What about those two persons you saw entering the room of
Mrs. Panal where did they go?

A: They went out sir.[36]

The alleged inconsistency between the affidavit of Nico and his court
testimony is inconsequential. Inconsistencies between the sworn statement or
affidavit and direct testimony given in open court do not necessarily discredit the
witness since an affidavit, being taken ex parte, is oftentimes incomplete and is
generally regarded as inferior to the testimony of the witness in open court. Judicial

notice can be taken of the fact that testimonies given during trial are much more
exact and elaborate than those stated in sworn statements, usually being
incomplete and inaccurate for a variety of reasons, at times because of partial and
innocent suggestions or for want of specific inquiries. Additionally, an extrajudicial
statement or affidavit is generally not prepared by the affiant himself but by
another who uses his own language in writing the affiants statement; hence,
omissions and misunderstandings by the writer are not infrequent. Indeed, the
prosecution witnesses direct and categorical declarations on the witness stand are
superior to their extrajudicial statements.[37]

Since we find no error in the factual finding of the RTC, as affirmed by the
Court of Appeals, that the testimony of eyewitness Nico is credible, then the
judgment of conviction against petitioner, Bacus, Boniao, and Handoc should be
affirmed. The positive and credible testimony of a lone eyewitness, such as Nico, is
sufficient to support a conviction.[38]

We shall now determine the propriety of the penalties imposed on

petitioner, Bacus, Boniao and Handoc.

Article 299, subdivision (a), number (2), paragraph 4 of the Revised Penal
Code provides that the penalty for robbery with use of force upon things where the
value of the property taken exceeds P250.00 and the offender does not carry arms,
as in this case, is prision mayor. Since no aggravating or mitigating circumstance
was alleged and proven in this case, the penalty becomes prision mayor in its
medium period in accordance with Article 64, paragraph 1 of the Revised Penal
Code. Applying the Indeterminate Sentence Law, the range of the penalty now
is prision correccional in any of its periods as minimum to prision mayor medium as
its maximum. Thus, the RTC and the Court of Appeals were correct in imposing on
petitioner, Bacus and Handoc, a prison term of four years, two months, and one day
of prision correccional as minimum, to eight years and one day of prision mayor as
maximum, because it is within the aforesaid range of penalty.

With regard to Boniao, who was a minor (14 years old) at the time he
committed the robbery, Article 68, paragraph 1 of the Revised Penal Code instructs
that the penalty imposable on him, which is prision mayor, shall be lowered by two
degrees. The RTC, therefore, acted accordingly in sentencing him to four months
of arresto mayor.

Nonetheless, as correctly ruled by the Court of Appeals, Boniao, who was

barely 14 years of age at the time he committed the crime, should be exempt from
criminal liability and should be released to the custody of his parents or guardian
pursuant to Sections 6 and 20 of Republic Act No. 9344, otherwise known as The
Juvenile Justice and Welfare Act of 2006, to wit:

SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen

years of age or under at the time of the commission of the offense
shall be exempt from criminal liability. However, the child shall be
subjected to an intervention program pursuant to Section 20 of this
Act.

xxxx

The exemption from criminal liability herein established does not

include exemption from civil liability, which shall be enforced in
accordance with existing laws.

Sec. 20. Children Below the Age of Criminal Responsibility. If it has

been determined that the child taken into custody is fifteen (15) years
old or below, the authority which will have an initial contact with the
child has the duty to immediately release the child to the custody of
his/her parents or guardian, or in the absence thereof, the childs
nearest relative. Said authority shall give notice to the local social
welfare and development officer who will determine the appropriate
programs in consultation with the child and to the person having
custody over the child. If the parents, guardians or nearest relatives

cannot be located, or if they refuse to take custody, the child may be

released to any of the following: a duly registered nongovernmental or
religious
organization;
a barangay official
or
a
member
of
the Barangay Council for the Protection of Children (BCPC); a local
social welfare and development officer; or, when and where
appropriate, the DSWD. If the child referred to herein has been found
by the Local Social Welfare and Development Office to be abandoned,
neglected or abused by his parents, or in the event that the parents
will not comply with the prevention program, the proper petition for
involuntary commitment shall be filed by the DSWD or the Local Social
Welfare and Development Office pursuant to Presidential Decree No.
603, otherwise known as The Child and Youth Welfare Code.

Although the crime was committed on 28 July 2001 and Republic Act No.
9344 took effect only on 20 May 2006, the said law should be given retroactive
effect in favor ofBoniao who was not shown to be a habitual criminal. [39] This is
based on Article 22 of the Revised Penal Code which provides:

Retroactive effect of penal laws. Penal laws shall have a

retroactive effect insofar as they favor the person guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving
the same.

However, as Boniaos civil liability is not extinguished pursuant to the

second paragraph of Section 6, Republic Act No. 9344, Boniao should be held
jointly liable with petitioner, Bacus, and Handoc for the payment of civil liability in
the amount of P15,000.00 representing the stolen items.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The

Decision of the Court of Appeals dated 30 June 2006 in CA-G.R. CR No. 00036
isAFFIRMED in toto. Costs against petitioner.

SO ORDERED.

ROBERT SIERRA y CANEDA,

Petitioner,

G.R. No. 182941

Present:

QUISUMBING, J., Chairperson,

CARPIO-MORALES
**

- versus -

CHICO-NAZARIO,

***

LEONARDO-DE CASTRO, and

BRION, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent.

Promulgated:

July 3, 2009

x---------------------------------------------------------------------------------------- x
DECISION

BRION, J.:

Before us is the petition of Robert Sierra y Caneda (petitioner) for the review
on certiorari[1] of the Decision[2] and Resolution[3] of the Court of Appeals[4] (CA) that
affirmed with modification his conviction for the crime of qualified rape rendered by

the Regional Trial Court (RTC), Branch 159, Pasig City, in its decision of April 5,
2006.
THE ANTECEDENT FACTS
In August 2000, thirteen-year-old AAA [5] was playing with her friend BBB in the
second floor of her familys house in Palatiw, Pasig. The petitioner arrived holding a
knife and told AAA and BBB that he wanted to play with them. The petitioner then
undressed BBB and had sexual intercourse with her. Afterwards, he turned to AAA,
undressed her, and also had sexual intercourse with her by inserting his male organ
into hers. The petitioner warned AAA not to tell anybody of what they did.
AAA subsequently disclosed the incident to Elena Gallano (her teacher) and to
Dolores Mangantula (the parent of a classmate), who both accompanied AAA to
the barangayoffice. AAA was later subjected to physical examination that revealed a
laceration on her hymen consistent with her claim of sexual abuse. On the basis of
the complaint and the physical findings, the petitioner was charged with rape under
the following Information:
On or about August 5, 2000, in Pasig City and within the jurisdiction of
this Honorable Court, the accused, a minor, 15 years old, with lewd
designs and by means of force, violence and intimidation, did then and
there willfully, unlawfully and feloniously have sexual intercourse with
his (accused) sister, AAA, thirteen years of age, against the latters will
and consent.

Contrary to law.[6]

The petitioner pleaded not guilty to the charge and raised the defenses of
denial and alibi. He claimed that he was selling cigarettes at the time of the alleged

rape. He also claimed that AAA only invented her story because she bore him a
grudge for the beatings he gave her. The parties mother (CCC) supported the
petitioners story; she also stated that AAA was a troublemaker. Both CCC and son
testified that the petitioner was fifteen (15) years old when the alleged incident
happened.[7]
The defense also presented BBB who denied that the petitioner raped her;
she confirmed the petitioners claim that AAA bore her brother a grudge.
On April 5, 2006, the RTC convicted the petitioner of qualified rape as follows:
WHEREFORE, in view of the foregoing, this Court finds the accused
ROBERT SIERRA y CANEDA GUILTY beyond reasonable doubt of the
crime of rape (Violation of R.A. 8353 in relation to SC A.M. 99-1-13) and
hereby sentences the said juvenile in conflict with law to suffer the
penalty of imprisonment of reclusion perpetua; and to indemnify the
victim the amount ofP75,000 as civil indemnity, P50,000 as moral
damages, and P25,000 as exemplary damages.

SO ORDERED.[8]

The petitioner elevated this RTC decision to the CA by attacking AAAs credibility. He
also invoked paragraph 1, Section 6 of R.A. No. 9344 (Juvenile Justice and Welfare
Act of 2006)[9] to exempt him from criminal liability considering that he was only 15
years old at the time the crime was committed.
The CA nevertheless affirmed the petitioners conviction with modification as to
penalty as follows:
WHEREFORE, finding that the trial court did not err in
convicting

Robert

Sierra,

the

assailed

Decision

is

hereby AFFIRMED with MODIFICATION that Robert Sierra has

to

suffer

the

penalty

of

imprisonment

of RECLUSION

TEMPORAL MAXIMUM. The award of damages are likewise

affirmed.

SO ORDERED.[10]

In ruling that the petitioner was not exempt from criminal liability, the CA
held:
As to the penalty, We agree with the Office of the Solicitor General that
Robert is not exempt from liability. First, it was not clearly established
and proved by the defense that Robert was 15 years old or below at
the time of the commission of the crime. It was incumbent for the
defense to present Roberts birth certificate if it was to invoke Section
64 of Republic Act No. 9344. Neither is the suspension of sentence
available to Robert as the Supreme Court, in one case, clarified that:

We note that, in the meantime, Rep. Act No. 9344 took

effect on May 20, 2006. Section 38 of the law reads:

SEC. 38. Automatic Suspension of Sentence. Once

the child who is under eighteen (18) years of age at
the time of the commission of the offense is found
guilty of the offense charged, the court shall
determine and ascertain any civil liability which
may have resulted from the offense committed.

However, instead of pronouncing the judgment of

conviction, the court shall place the child in conflict
with the law under suspended sentence, without
need

of

application: Provided,

however,

That

suspension of sentence shall still be applied even if

the juvenile is already eighteen (18) years of age or
more at the time of the pronouncement of his/her
guilt.

Upon suspension of sentence and after considering

the various circumstances of the child, the court
shall impose the appropriate disposition measures
as provided in the Supreme Court on Juveniles in
Conflict with the Law.

The law merely amended Article 192 of P.D. No. 603,

as

amended

by

A.M.

No.

02-1-18-SC,

in

that

the

suspension of sentence shall be enjoyed by the juvenile

even if he is already 18 years of age or more at the time
of

the

pronouncement

of

his/her

guilt.

The

other

disqualifications in Article 192 of P.D. No. 603, as

amended, and Section 32 of A.M. No. 02-1-18-SC have not
been deleted from Section 38 of Republic Act No. 9344.
Evidently, the intention of Congress was to maintain the
other disqualifications as provided in Article 192 of P.D.
No. 603, as amended, and Section 32 of A.M. No. 02-1-18-

SC. Hence, juveniles who have been convicted of a crime

the imposable penalty for which isreclusion perpetua, life
imprisonment or reclusion perpetua to death or death, are
disqualified from having their sentences suspended. [11]

The CA denied the petitioners subsequent motion for reconsideration; hence,

the present petition.
THE ISSUES
The petitioner no longer assails the prosecutions evidence on his guilt of the
crime charged; what he now assails is the failure of the CA to apply paragraph 1,
Section 6[12]of R.A. No. 9344 under the following issues:
(1) Whether or not the CA erred in not applying the provisions of R.A. No.
9344 on the petitioners exemption from criminal liability;
(2) Whether or not the CA erred in ruling that it was incumbent for the
defense to present the petitioners birth certificate to invoke Section 64 of
R.A. No. 9344 when the burden of proving his age lies with the prosecution
by express provisions of R.A. No. 9344; and

(3) Whether or not the CA erred in applying the ruling in Declarador v. Hon.
Gubaton[13] thereby denying the petitioner the benefit of exemption from
criminal liability under R.A. No. 9344.
The threshold issue in this case is the determination of who bears the burden
of proof for purposes of determining exemption from criminal liability based on the
age of the petitioner at the time the crime was committed.
The petitioner posits that the burden of proof should be on the prosecution as
the party who stands to lose the case if no evidence is presented to show that the

petitioner was not a 15-year old minor entitled to the exempting benefit provided
under Section 6 of R.A. No. 9344. [14] He additionally claims that Sections 3,[15] 7,
[16]

and 68[17] of the law also provide a presumption of minority in favor of a child in

conflict with the law, so that any doubt regarding his age should be resolved in his
favor.
The petitioner further submits that the undisputed facts and evidence on
record specifically: the allegation of the Information, the testimonies of the
petitioner and CCC that the prosecution never objected to, and the findings of the
RTC established that he was not more than 15 years old at the time of the
commission of the crime.
The Peoples Comment, through the Office of the Solicitor General (OSG),
counters that the burden belongs to the petitioner who should have presented his
birth certificate or other documentary evidence proving that his age was 15 years or
below. The OSG also stressed that while petitioner is presumed to be a minor, he is
disqualified to have his sentence suspended following the ruling in Declarador v.
Hon. Gubaton.[18]
THE COURTS RULING
We grant the petition.
We examine at the outset the prosecutions evidence and the findings of the
lower courts on the petitioners guilt, since the petition opens the whole case for
review and the issues before us are predicated on the petitioners guilt of the crime
charged. A determination of guilt is likewise relevant under the terms of R.A. No.
9344 since its exempting effect is only on the criminal, not on the civil, liability.
We see no compelling reason, after examination of the CA decision and the
records of the case, to deviate from the lower courts findings of guilt. The records
show that the prosecution established all the elements of the crime charged
through the credible testimony of AAA and the other corroborating evidence; sexual
intercourse did indeed take place as the information charged. [19] As against AAAs
testimony, the petitioner could only raise the defenses of denial and alibi defenses
that, in a long line of cases, we have held to be inherently weak unless supported by

clear and convincing evidence; the petitioner failed to present this required
evidentiary support.[20] We have held, too, that as negative defenses, denial and
alibi cannot prevail over the credible and positive testimony of the complainant.
[21]

We sustain the lower courts on the issue of credibility, as we see no compelling

reason to doubt the validity of their conclusions in this regard.

While the defense, on appeal, raises a new ground i.e., exemption from
criminal liability under R.A. No. 9344 that implies an admission of guilt, this
consideration in no way swayed the conclusion we made above, as the defense is
entitled to present all alternative defenses available to it, even inconsistent ones.
We note, too, that the defenses claim of exemption from liability was made for the
first time in its appeal to the CA. While this may initially imply an essential change
of theory that is usually disallowed on appeal for reasons of fairness, [22] no essential
change is really involved as the claim for exemption from liability is not
incompatible with the evidence submitted below and with the lower courts
conclusion that the petitioner is guilty of the crime charged. An exempting
circumstance, by its nature, admits that criminal and civil liabilities exist, but the
accused is freed from criminal liability; in other words, the accused committed a
crime, but he cannot be held criminally liable therefor because of an exemption
granted by law.In admitting this type of defense on appeal, we are not unmindful,
too, that the appeal of a criminal case (even one made under Rule 45) opens the
whole case for review, even on questions that the parties did not raise. [23] By
mandate of the Constitution, no less, we are bound to look into every circumstance
and resolve every doubt in favor of the accused. [24] It is with these considerations in
mind and in obedience to the direct and more specific commands of R.A. No. 9344
on how the cases of children in conflict with the law should be handled that we rule
in this Rule 45 petition.
We find a review of the facts of the present case and of the applicable law on
exemption from liability compelling because of the patent errors the CA committed
in these regards. Specifically, the CAs findings of fact on the issues of age and
minority, premised on the supposed absence of evidence, are contradicted by the
evidence on record; it also manifestly overlooked certain relevant facts not disputed
by the parties that, if properly considered, would justify a different conclusion. [ 2 5 ]

In tackling the issues of age and minority, we stress at the outset that the
ages of both the petitioner and the complaining victim are material and are at issue.
The age of the petitioner is critical for purposes of his entitlement to exemption
from criminal liability under R.A. No. 9344, while the age of the latter is material in
characterizing the crime committed and in considering the resulting civil liability
that R.A. No. 9344 does not remove.
Minority as an Exempting Circumstance
R.A. No. 9344 was enacted into law on April 28, 2006 and took effect on May
20, 2006. Its intent is to promote and protect the rights of a child in conflict with the
law or a child at risk by providing a system that would ensure that children are dealt
with in a manner appropriate to their well-being through a variety of disposition
measures such as care, guidance and supervision orders, counseling, probation,
foster care, education and vocational training programs and other alternatives to
institutional care.[26] More importantly in the context of this case, this law modifies
as well the minimum age limit of criminal irresponsibility for minor offenders; it
changed what paragraphs 2 and 3 of Article 12 of the Revised Penal Code ( RPC), as
amended, previously provided i.e., from under nine years of age and above nine
years of age and under fifteen (who acted without discernment) to fifteen years old
or under and above fifteen but below 18 (who acted without discernment) in
determining exemption from criminal liability. In providing exemption, the new law
as the old paragraphs 2 and 3, Article 12 of the RPC did presumes that the minor
offenders completely lack the intelligence to distinguish right from wrong, so that
their acts are deemed involuntary ones for which they cannot be held accountable.
[27]

The current law also drew its changes from the principle of restorative justice

that it espouses; it considers the ages 9 to 15 years as formative years and gives
minors of these ages a chance to right their wrong through diversion and
intervention measures.[28]
In the present case, the petitioner claims total exemption from criminal liability
because he was not more than 15 years old at the time the rape took place. The CA
disbelieved this claim for the petitioners failure to present his birth certificate as
required by Section 64 of R.A. No. 9344. [29] The CA also found him disqualified to
avail of a suspension of sentence because the imposable penalty for the crime of
rape is reclusion perpetua to death.

Burden of Proof
Burden of proof, under Section 1, Rule 131 of the Rules on Evidence, refers to
the duty of a party to present evidence on the facts in issue in order to establish his
or her claim or defense. In a criminal case, the burden of proof to establish the guilt
of the accused falls upon the prosecution which has the duty to prove all the
essential ingredients of the crime. The prosecution completes its case as soon as it
has presented the evidence it believes is sufficient to prove the required
elements. At this point, the burden of evidence shifts to the defense to disprove
what the prosecution has shown by evidence, or to prove by evidence the
circumstances showing that the accused did not commit the crime charged or
cannot otherwise be held liable therefor. In the present case, the prosecution
completed its evidence and had done everything that the law requires it to do. The
burden of evidence has now shifted to the defense which now claims, by an
affirmative defense, that the accused, even if guilty, should be exempt from
criminal liability because of his age when he committed the crime. The defense,
therefore, not the prosecution, has the burden of showing by evidence that the
petitioner was 15 years old or less when he committed the rape charged. [30]
This conclusion can also be reached by considering that minority and age are
not elements of the crime of rape; the prosecution therefore has no duty to prove
these circumstances. To impose the burden of proof on the prosecution would make
minority and age integral elements of the crime when clearly they are not. [31] If the
prosecution has a burden related to age, this burden relates to proof of the age of
the victim as a circumstance that qualifies the crime of rape. [32]
Testimonial Evidence is Competent Evidence
to Prove the Accuseds Minority and Age

The CA seriously erred when it rejected testimonial evidence showing that the
petitioner was only 15 years old at the time he committed the crime. Section 7 of
R.A. No. 9344 expressly states how the age of a child in conflict with the law may be
determined:

SEC. 7. Determination of Age. - x x x The age of a child may be

determined from the child's birth certificate, baptismal
certificate or any other pertinent documents. In the absence of
these documents, age may be based on information from the
child himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant
evidence. In case of doubt as to the age of the child, it shall be
resolved in his/her favor. [Emphasis supplied]

Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344 provides the
implementing details of this provision by enumerating the measures that may be
undertaken by a law enforcement officer to ascertain the childs age:
(1) Obtain documents that show proof of the childs age, such as

(a)

Childs birth certificate;

(b) Childs baptismal certificate ;or

(c)

Any other pertinent documents such as but not limited to the

childs school records, dental records, or travel papers.

(2) x x x

(3) When the above documents cannot be obtained or pending

receipt of such documents, the law enforcement officer shall
exhaust other measures to determine age by:

(a)

Interviewing the child and obtaining information that indicate

age (e.g. date of birthday, grade level in school);

(b) Interviewing persons who may have knowledge that indicate[s]

age of the child (e.g. relatives, neighbors, teachers, classmates);

(c)

Evaluating the physical appearance (e.g. height, built) of the

child; and

(d) Obtaining other relevant evidence of age.

xxx

Section 7, R.A. No. 9344, while a relatively new law (having been passed only
in 2006), does not depart from the jurisprudence existing at that time on the
evidence that may be admitted as satisfactory proof of the accuseds minority and
age.
In the 1903 case of U.S. v. Bergantino,[33] we accepted testimonial evidence to
prove the minority and age of the accused in the absence of any document or other
satisfactory evidence showing the date of birth. This was followed by U.S. v.
Roxas[34] where the defendants statement about his age was considered sufficient,
even without corroborative evidence, to establish that he was a minor of 16 years at
the time he committed the offense charged. Subsequently, in People v. Tismo,
[35]

the Court appreciated the minority and age of the accused on the basis of his

claim that he was 17 years old at the time of the commission of the offense in the
absence of any contradictory evidence or objection on the part of the prosecution.
Then, in People v. Villagracia,[36] we found the testimony of the accused that he was
less than 15 years old sufficient to establish his minority. We reiterated these dicta
in the cases of People v. Morial[37] and David v. Court of Appeals,[38] and ruled that
the allegations of minority and age by the accused will be accepted as facts upon
the prosecutions failure to disprove the claim by contrary evidence.
In these cases, we gave evidentiary weight to testimonial evidence on the
accuseds minority and age upon the concurrence of the following conditions: (1) the
absence of any other satisfactory evidence such as the birth certificate, baptismal
certificate, or similar documents that would prove the date of birth of the
accused; (2) the presence of testimony from accused and/or a relative on the age
and minority of the accused at the time of the complained incident without any
objection on the part of the prosecution; and (3) lack of any contrary evidence
showing that the accuseds and/or his relatives testimonies are untrue.

All these conditions are present in this case. First, the petitioner and CCC
both testified regarding his minority and age when the rape was committed.
[39]

Second, the records before us show that these pieces of testimonial evidence

were never objected to by the prosecution. And lastly, the prosecution did not
present any contrary evidence to prove that the petitioner was above 15 years old
when the crime was committed.
We also stress that the last paragraph of Section 7 of R.A. No. 9344 provides
that any doubt on the age of the child must be resolved in his favor. [40] Hence, any
doubt in this case regarding the petitioners age at the time he committed the rape
should be resolved in his favor. In other words, the testimony that the petitioner as
15 years old when the crime took place should be read to mean that he was not
more than 15 years old as this is the more favorable reading that R.A. No. 9344
directs.
Given the express mandate of R.A. No. 9344, its implementing rules, and
established jurisprudence in accord with the latest statutory developments, the CA
therefore cannot but be in error in not appreciating and giving evidentiary value to
the petitioners and CCCs testimonies relating to the formers age.
Retroactive Application of R.A. No. 9344

That the petitioner committed the rape before R.A. No. 9344 took effect and
that he is no longer a minor (he was already 20 years old when he took the stand)
will not bar him from enjoying the benefit of total exemption that Section 6 of R.A.
No. 9344 grants.[41] As we explained in discussing Sections 64 and 68 of R.A. No.
9344[42] in the recent case of Ortega v. People:[43]
Section 64 of the law categorically provides that cases of
children 15 years old and below, at the time of the commission of
the crime, shall immediately be dismissed and the child shall be
referred to the appropriate local social welfare and development
officers (LSWDO). What is controlling, therefore, with respect to
the exemption from criminal liability of the CICL, is not the
CICLs age at the time of the promulgation of judgment but the
CICLs age at the time of the commission of the offense. In short,
by virtue of R.A. No. 9344, the age of criminal irresponsibility has been
raised from 9 to 15 years old. [Emphasis supplied]

The retroactive application of R.A. No. 9344 is also justified under Article 22 of the
RPC, as amended, which provides that penal laws are to be given retroactive effect
insofar as they favor the accused who is not found to be a habitual criminal. Nothing
in the records of this case indicates that the petitioner is a habitual criminal.
Civil Liability
The last paragraph of Section 6 of R.A. No. 9344 provides that the accused
shall continue to be civilly liable despite his exemption from criminal liability; hence,
the petitioner is civilly liable to AAA despite his exemption from criminal liability. The
extent of his civil liability depends on the crime he would have been liable for had
he not been found to be exempt from criminal liability.

The RTC and CA found, based on item (1) of Article 266-B of the RPC, as
amended, that the petitioner is guilty of qualified rape because of his relationship
with AAA within the second civil degree of consanguinity and the latters minority.
[44]

Both courts accordingly imposed the civil liability corresponding to qualified rape.
The relationship between the petitioner and AAA, as siblings, does not appear

to be a disputed matter. Their mother, CCC, declared in her testimony that AAA and
the petitioner are her children. The prosecution and the defense likewise stipulated
in the proceedings below that the relationship exists. We find, however, that AAAs
minority, though alleged in the Information, had not been sufficiently proven.
[45]

People v. Pruna[46] laid down these guidelines in appreciating the age of the

complainant:
In order to remove any confusion that may be engendered by
the foregoing cases, we hereby set the following guidelines in
appreciating age, either as an element of the crime or as a qualifying
circumstance.

1.

The best evidence to prove the age of the offended party is an

original or certified true copy of the certificate of live birth of such
party.

2. In the absence of a certificate of live birth, similar authentic

documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have

been lost or destroyed or otherwise unavailable, the testimony, if
clear and credible, of the victims mother or a member of the family
either by affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or date of birth of
the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and

what is sought to be proved is that she is less than 7
years old;
b. If the victim is alleged to be below 7 years of age and
what is sought to be proved is that she is less than 12
years old;
c. If the victim is alleged to be below 12 years of age and
what is sought to be proved is that she is less than 18
years old.

4. In the absence of a certificate of live birth, authentic document, or

the testimony of the victims mother or relatives concerning the
victims age, the complainants testimony will suffice provided
that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age

of the offended party. The failure of the accused to object to
the testimonial evidence regarding age shall not be taken
against him. [Emphasis supplied]

The records fail to show any evidence proving the age of AAA. They do not
likewise show that the petitioner ever expressly and clearly admitted AAAs age at
the time of the rape. Pursuant to Pruna, neither can his failure to object to AAAs
testimony be taken against him.

Thus, the required concurrence of circumstances that would upgrade the

crime to qualified rape i.e., relationship within the third degree of consanguinity and
minority of the victim does not exist. The crime for which the petitioner should have
been found criminally liable should therefore only be simple rape pursuant to par. 1,
Article 266-A of the RPC, not qualified rape. The civil liability that can be imposed on
the petitioner follows the characterization of the crime and the attendant
circumstances.

Accordingly, we uphold the grant of moral damages of P50,000.00 but

increase the awarded exemplary damages P30,000.00, both pursuant to prevailing

jurisprudence.[47] Moral damages are automatically awarded to rape victims without

the necessity of proof; the law assumes that the victim suffered moral injuries
entitling her to this award.[48] Article 2230 of the Civil Code justifies the award of
exemplary damages because of the presence of the aggravating circumstances of
relationship between AAA and petitioner and dwelling. [49] As discussed above, the
relationship (between the parties) is not disputed. We appreciate dwelling as an
aggravating circumstance based on AAAs testimony that the rape was committed in
their house.[50] While dwelling as an aggravating circumstance was not alleged in
the Information, established jurisprudence holds that it may nevertheless be
appreciated as basis for the award of exemplary damages. [51]

We modify the awarded civil indemnity of P75,000.00 to P50,000.00, the

latter being the civil indemnity appropriate for simple rape [52] on the finding that
rape had been committed.[53]

In light of the above discussion and our conclusions, we see no need to

discuss the petitions third assignment of error.
WHEREFORE, premises considered, the instant petition is GRANTED. The
Decision dated February 29, 2008 and Resolution dated May 22, 2008 of the Court
of Appeals in CA-G.R.-CR.-H.C. No. 02218 are REVERSED and SET ASIDE.
Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H for rape
filed against petitioner Robert Sierra y Caneda is hereby DISMISSED. Petitioner
isREFERRED to the appropriate local social welfare and development officer who
shall proceed in accordance with the provisions of R.A. No. 9344. Petitioner
is ORDERED topay the victim, AAA, P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P30,000.00 as exemplary damages.
Unless there are other valid causes for petitioners continued detention, we
hereby ORDER his IMMEDIATE RELEASE under the above terms.
Let a copy of this Decision be furnished the Director of the Bureau of
Corrections in Muntinlupa City for its immediate implementation. The Director of the
Bureau of Corrections is directed to report to this Court within five days from receipt
of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice and
Welfare Council.

SO ORDERED.

JOEMAR ORTEGA,

G.R. No. 151085

Petitioner,
Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,*
CHICO-NAZARIO, and
NACHURA, JJ.
Promulgated:

PEOPLE OF THE PHILIPPINES,

Respondent.
August 20, 2008
x--------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before this Court is a Petition [1] for Review on Certiorari under Rule 45 of the Rules of
Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision [2] dated
October 26, 2000 which affirmed in toto the Decision[3] of the Regional Trial Court
(RTC) of Bacolod City, Branch 50, dated May 13, 1999, convicting petitioner Joemar
Ortega[4] (petitioner) of the crime of Rape.
The Facts
Petitioner, then about 14 years old, [5] was charged with the crime of Rape in two
separate informations both dated April 20, 1998, for allegedly raping AAA, [6] then
about eight (8) years of age. The accusatory portions thereof respectively state:

Criminal Case No. 98-19083

That sometime in August, 1996, in the Municipality of XXX, Province of
YYY, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, by means of force, violence and intimidation,
did then and there, (sic) willfully, unlawfully and feloniously (sic) had
carnal knowledge of and/or sexual intercourse with the said AAA, a
minor, then about 6 years old, against her will.
CONTRARY TO LAW.[7]

Criminal Case No. 98-19084

That on or about the 1st day of December, 1996, in the Municipality of
XXX, Province of YYY, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force,
violence and intimidation, did then and there, (sic) willfully, unlawfully
and feloniously (sic) had carnal knowledge of and/or sexual intercourse
with the said AAA, a minor, then about 6 years old, against her will.
CONTRARY TO LAW.[8]
Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the
offense charged.[9] Thus, trial on the merits ensued. In the course of the trial, two
varying versions arose.
Version of the Prosecution
On February 27, 1990, AAA was born to spouses FFF and MMM. [10] Among her
siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in the family. Before
these disturbing events, AAA's family members were close friends of petitioner's
family, aside from the fact that they were good neighbors. However, BBB caught
petitioner raping his younger sister AAA inside their own home. BBB then informed
their mother MMM who in turn asked AAA. [11] There, AAA confessed that petitioner
raped her three (3) times on three (3) different occasions.
The first occasion happened sometime in August 1996. MMM left her daughter AAA,
then 6 years old and son BBB, then 10 years old, in the care of Luzviminda Ortega [12]
(Luzviminda), mother of petitioner, for two (2) nights because MMM had to stay in a
hospital to attend to her other son who was sick. [13] During the first night at

petitioner's residence, petitioner entered the room where AAA slept together with
Luzviminda and her daughter. Petitioner woke AAA up and led her to the sala. There
petitioner raped AAA. The second occasion occurred the following day, again at the
petitioner's residence. Observing that nobody was around, petitioner brought AAA
to their comfort room and raped her there. AAA testified that petitioner inserted his
penis into her vagina and she felt pain. In all of these instances, petitioner warned
AAA not to tell her parents, otherwise, he would spank her. [14] AAA did not tell her
parents about her ordeal.

The

third

and

last

occasion

happened

in

the

evening

of December

1,

1996. Petitioner went to the house of AAA and joined her and her siblings in
watching

battery-powered

television.

At

that

time,

Luzviminda

conversing with MMM. While AAA's siblings were busy watching, petitioner

was
called

AAA to come to the room of CCC and BBB. AAA obeyed. While inside the said room
which was lighted by a kerosene lamp, petitioner pulled AAA behind the door,
removed his pants and brief, removed AAA's shorts and panty, and in a standing
position inserted his penis into the vagina of AAA. [15] AAA described petitioner's
penis as about five (5) inches long and the size of two (2) ballpens. She, likewise,
narrated that she saw pubic hair on the base of his penis. [16]
This last incident was corroborated by BBB in his testimony. When BBB was about to
drink water in their kitchen, as he was passing by his room, BBB was shocked to see
petitioner and AAA both naked from their waist down in the act of sexual
intercourse. BBB saw petitioner holding AAA and making a pumping motion.
Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left.
Thereafter, BBB reported the incident to his mother, MMM. [17]
MMM testified that when she asked AAA about what BBB saw, AAA told her that
petitioner inserted his fingers and his penis into her vagina. MMM learned that this
was not the only incident that petitioner molested AAA as there were two previous
occasions. MMM also learned that AAA did not report her ordeal to them out of fear
that petitioner would spank her. MMM testified that when BBB reported the matter
to her, petitioner and Luzviminda already left her house. After waiting for AAA's
brothers to go to sleep, MMM, with a heavy heart, examined AAA's vagina and she
noticed that the same was reddish and a whitish fluid was coming out from it.
Spouses FFF and MMM were not able to sleep that night. The following morning, at
about four o'clock, MMM called Luzviminda and petitioner to come to their house.
MMM confronted Luzviminda about what petitioner did to her daughter, and
consequently, she demanded that AAA should be brought to a doctor for
examination.[18]
MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas [19] (Dr.
Katalbas), the Rural Health Officer of the locality who examined AAA and found no
indication that she was molested.[20] Refusing to accept such findings, on December
12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical Officer IV of the

Bacolod City Health Office. Dr. Jocson made an unofficial written report [21] showing
that there were abrasions on both right and left of the labia minora and a small
laceration at the posterior fourchette. She also found that the minor injuries she saw
on AAA's genitals were relatively fresh; and that such abrasions were superficial and
could disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her
certification that her findings required the confirmation of the Municipal Health
Officer of the locality.
Subsequently, an amicable settlement [22] was reached between the two families
through the DAWN Foundation, an organization that helps abused women and
children. Part of the settlement required petitioner to depart from their house to
avoid contact with AAA.[23] As such, petitioner stayed with a certain priest in the
locality. However, a few months later, petitioner went home for brief visits and in
order to bring his dirty clothes for laundry. At the sight of petitioner, AAA's father
FFF was infuriated and confrontations occurred. At this instance, AAA's parents went
to the National Bureau of Investigation (NBI) which assisted them in filing the three
(3) counts of rape. However, the prosecutor's office only filed the two (2) instant
cases.
Version of the Defense

Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and

Luzviminda Ortega.[24] He is the second child of three siblings an elderbrother and
a younger sister. Petitioner denied the accusations made against him. He testified
that: his parents and AAA's parents were good friends; when MMM left AAA and her
brothers to the care of his mother, petitioner slept in a separate room together with
BBB and CCC while AAA slept together with Luzviminda and his younger sister; he
never touched or raped AAA or showed his private parts to her; petitioner did not
threaten AAA in any instance; he did not rape AAA in the former's comfort room,
but he merely accompanied and helped AAA clean up as she defecated and feared
the toilet bowl; in the process of washing, he may have accidentally touched AAA's
anus; on December 1, 1996, petitioner together with his parents, went to AAA's
house;[25] they were dancing and playing together with all the other children at the
time; while they were dancing, petitioner hugged and lifted AAA up in a playful act,
at the instance of which BBB ran and reported the matter to MMM, who at the time
was with Luzviminda, saying that petitioner and AAA were having sexual
intercourse;[26] petitioner explained to MMM that they were only playing, and that he
could not have done to AAA what he was accused of doing, as they were together
with her brothers, and he treated AAA like a younger sister; [27] BBB was lying; AAA's
parents and his parents did not get angry at him nor did they quarrel with each
other; petitioner and his parents peacefully left AAA's house at about nine o'clock in
the evening; however, at about four o'clock in the morning, petitioner and his
parents were summoned by MMM to go to the latter's house; upon arriving there
they saw BBB being maltreated by his father as AAA pointed to BBB as the one who
molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for
examination.[28]
Luzviminda corroborated the testimony of her son. She testified that: her son was a
minor
at
the
time
of
the
incident;
CCC
and
BBB
were
the
children of MMM in her firstmarriage, while AAA and the rest of her

siblings were of the second marriage; CCC and BBB are half-brothers of AAA; when
MMM entrusted AAA and her brothers to her sometime in August of 1996, she slept
with AAA and her youngest daughter in a separate room from petitioner; on
December 1, 1996, she was at AAA's house watching television and conversing with
MMM, while FFF and Loreto were having a drinking spree in the kitchen; from where
they were seated, she could clearly see all the children, including petitioner and
AAA, playing and dancing in the dining area; she did not hear any unusual cry or
noise at the time; while they were conversing, BBB came to MMM saying that
petitioner and AAA were having sexual intercourse; upon hearing such statement,
Luzviminda and MMM immediately stood up and looked for them, but both mothers
did not find anything unusual as all the children were playing and dancing in the
dining area; Luzviminda and MMM just laughed at BBB's statement; the parents of
AAA, at that time, did not examine her in order to verify BBB's statement nor did
they get angry at petitioner or at them; and they peacefully left AAA's house.
However, the following day, MMM woke Luzviminda up, saying that FFF was
spanking BBB with a belt as AAA was pointing to BBB nor to petitioner as the one
who molested her. At this instance, Luzviminda intervened, telling FFF not to spank
BBB but instead, to bring AAA to a doctor for examination. Luzviminda accompanied
MMM to Dr. Katalbas who found no indication that AAA was molested. She also
accompanied her to Dr. Jocson. After getting the results of the examination
conducted by Dr. Jocson, they went to the police and at this instance only did
Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner vehemently
denied to Luzviminda that he raped AAA. Thereafter, MMM and Luzviminda went to
their employer who recommended that they should seek advice from the Women's
Center. At the said Center, both agreed on an amicable settlement wherein
petitioner would stay away from AAA. Thus, petitioner stayed with a certain priest
in the locality for almost two (2) years. But almost every Saturday, petitioner would
come home to visit his parents and to bring hisdirty clothes for laundry. Every time
petitioner came home, FFF bad-mouthed petitioner, calling him a rapist.
Confrontations occurred until an altercation erupted wherein FFF allegedly slapped
Luzviminda. Subsequently, AAA's parents filed the instant cases. [29]
The RTC's Ruling
On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail
over the positive identification of petitioner as the perpetrator of the crime by AAA
and BBB, who testified with honesty and credibility. Moreover, the RTC opined that it
could not perceive any motive for AAA's family to impute a serious crime of Rape to
petitioner, considering the close relations of both families. Thus, the RTC disposed of
this case in this wise:

FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega
Y Felisario GUILTY beyond reasonable doubt as Principal by Direct
Participation of the crime of RAPE as charged in Criminal Cases Nos.
98-19083 and 98-19084 and there being no aggravating or mitigating
circumstance, he is sentenced to suffer the penalty of Two (2)
Reclusion Temporal in its medium period. Applying the Indeterminate
Sentence Law, the accused shall be imprisoned for each case for a
period of Six (6) years and One (1) day of Prision Mayor, as minimum,
to Fifteen (15) years of Reclusion Temporal, as maximum. The accused
is condemned to pay the offended party AAA, the sum of P100,000.00
as indemnification for the two (2) rapes (sic).

Aggrieved, petitioner appealed the RTC Decision to the CA.[30]

Taking into consideration the age of petitioner and upon posting of the
corresponding bail bond for his provisional liberty in the amount of P40,000.00, the
RTC ordered the petitioner's release pending appeal. [31]

The CA's Ruling

On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the
petitioner's defense of denial could not prevail over the positive identification of the
petitioner by the victim AAA and her brother BBB, which were categorical,
consistent and without any showing of ill motive. The CA also held that the
respective medical examinations conducted by the two doctors were irrelevant, as it
is established that the slightest penetration of the lips of the female organ
consummates rape; thus, hymenal laceration is not an element of rape. Moreover,
the CA opined that petitioner acted with discernment as shown by his covert acts.
Finally, the CA accorded great weight and respect to the factual findings of the RTC,
particularly in the evaluation of the testimonies of witnesses.
Petitioner filed his Motion for Reconsideration [32] of the assailed Decision which the
CA denied in its Resolution[33] dated November 7, 2001.
Hence, this Petition based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN
FACTS OF SUBSTANCE AND VALUE WHICH IF CONSIDERED MIGHT
AFFECT THE RESULT OF THE CASE.

II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR
WHEN IT FAILED TO APPRECIATE THE MEDICAL FINDINGS OF DR.
LUCIFREE KATALBAS.
III.

THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE

COURT, THAT PETITIONER-APPELLANT IN FACT COMMITTED AND IS
CAPABLE OF COMMITTING THE ALLEGEDRAPE WITHIN THE RESIDENCE
OF THE VICTIM WHERE SEVERAL OF THE ALLEGED VICTIM'S FAMILY
MEMBERS AND THEIR RESPECTIVE MOTHERS WERE PRESENT IS
IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE.
IV.
THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS
SET FORTH BY THE ALLEGED VICTIM REGARDING THE CIRCUMSTANCES
ATTENDING THE COMMISSION OF RAPE SOMETIME IN AUGUST 1996. [34]

Petitioner argues that, while it is true that the factual findings of the CA are
conclusive on this Court, we are not prevented from overturning such findings if the
CA had manifestly overlooked certain facts of substance and value which if
considered might affect the result of the case. Petitioner stresses that from the
testimonies of AAA and BBB, it can be deduced that penetration was achieved;
thus, AAA felt pain. Petitioner contends that assuming the allegations of AAA are
true that petitioner inserted his fingers and his penis into her vagina, certainly such
acts would leave certain abrasions, wounds and/or lacerations on the genitalia of
AAA, taking into consideration her age at the time and the alleged size of
petitioner's penis. However, such allegation is completely belied by the medical
report of Dr. Katalbas who, one day after the alleged rape, conducted a medical
examination on AAA and found that there were no signs or indications that AAA was
raped or molested. Petitioner submits that the CA committed a grave error when it
disregarded such medical report since it disproves the allegation of the existence of
rape and, consequently, the prosecution failed to prove its case; thus, the
presumption of innocence in favor of the petitioner subsists. Moreover, petitioner
opines that like AAA, petitioner is also a child of the barrio who is innocent,
unsophisticated and lacks sexual experience. As such, it is incredible and contrary
to human reason that a 13- year-old boy would commit such act in the very dwelling
of AAA, whose reaction to pain, at the age of six, could not be controlled or
subdued. Petitioner claims that poverty was MMM's motive in filing the instant
case,as she wanted to extort money from the parents of the petitioner. Petitioner
points out that the medical report of Dr. Jocson indicated that the abrasions that
were inflicted on the genitalia of AAA were relatively fresh and the same could
disappear within a period of 3 to 4 days. Considering that Dr. Jocson conducted the
medical examination on December 12, 1996, or after the lapse of eleven (11) days
after the alleged incident of rape, and that AAA's parents only filed the instant case
after almost a year, in order to deter Luzviminda from filing a case of slander by
deed against FFF, it is not inconceivable that MMM inflicted said abrasions on AAA
to prove their case and to depart from the initial confession of AAA that it was
actually BBB who raped her. Finally, petitioner submits that AAA and BBB were
merely coached by MMM to fabricate these stories. [35]
On the other hand, respondent People of the Philippines through the Office of the
Solicitor General (OSG) contends that: the arguments raised by the petitioner are

mere reiterations of his disquisitions before the CA; the RTC, as affirmed by the CA,
did not rely on the testimonies of both doctors since despite the absence of
abrasions, rape is consummated even with the slightest penetration of the lips of
the female organ; what is relevant in this case is the reliable testimony of AAA that
petitioner raped her in August and December of 1996; even in the absence of force,
rape was committed considering AAA's age at that time; as such, AAA did not have
any ill motive in accusing petitioner; and it is established that the crime of rape
could be committed even in the presence of other people nearby. Moreover, the
OSG relies on the doctrine that the evaluation made by a trial court is accorded the
highest respect as it had the opportunity to observe directly the demeanor of a
witness and to determine whether said witness was telling the truth or not. Lastly,
the OSG claims that petitioner acted with discernment when he committed the said
crime, as manifested in his covert acts. [36]
However, Republic Act (R.A.) No. 9344, [37] or the Juvenile Justice and Welfare Act of
2006, was enacted into law on April 28, 2006 and it took effect on May 20, 2006.
[38]

The law establishes a comprehensive system to manage children in conflict with

the law[39] (CICL) and children at risk[40] with child-appropriate procedures and
comprehensive programs and services such as prevention, intervention, diversion,
rehabilitation,

re-integration

and

after-care

programs

geared

towards

their

development. In order to ensure its implementation, the law, particularly Section

8[41] thereof, has created the Juvenile Justice and Welfare Council (JJWC) and vested
it with certain duties and functions [42] such as the formulation of policies and
strategies to prevent juvenile delinquency and to enhance the administration of
juvenile justice as well as the treatment and rehabilitation of theCICL. The law also

provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65,
66, 67 and 68 of R.A. No. 9344's Transitory Provisions. [43]
The said Transitory Provisions expressly provide:
Title VIII
Transitory Provisions
SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old
and Below. Upon effectivity of this Act, cases of children fifteen (15)
years old and below at the time of the commission of the crime shall
immediately be dismissed and the child shall be referred to the
appropriate local social welfare and development officer. Such officer,
upon thorough assessment of the child, shall determine whether to
release the child to the custody of his/her parents, or refer the child to
prevention programs, as provided under this Act. Those with
suspended sentences and undergoing rehabilitation at the youth
rehabilitation center shall likewise be released, unless it is contrary to
the best interest of the child.
SECTION 65. Children Detained Pending Trial. If the child is detained
pending trial, the Family Court shall also determine whether or not
continued detention is necessary and, if not, determine appropriate
alternatives for detention. If detention is necessary and he/she is
detained with adults, the court shall immediately order the transfer of
the child to a youth detention home.
SECTION 66. Inventory of "Locked-up" and Detained Children in
Conflict with the Law. The PNP, the BJMP and the BUCOR are hereby
directed to submit to the JJWC, within ninety (90) days from the
effectivity of this Act, an inventory of all children in conflict with the
law under their custody.
SECTION 67. Children Who Reach the Age of Eighteen (18) Years
Pending Diversion and Court Proceedings. If a child reaches the age of
eighteen (18) years pending diversion and court proceedings, the
appropriate diversion authority in consultation with the local social
welfare and development officer or the Family Court in consultation
with the Social Services and Counseling Division (SSCD) of the
Supreme Court, as the case may be, shall determine the appropriate
disposition. In case the appropriate court executes the judgment of
conviction, and unless the child in conflict with the law has already
availed of probation under Presidential Decree No. 603 or other similar
laws, the child may apply for probation if qualified under the
provisions of the Probation Law.
SECTION 68. Children Who Have Been Convicted and are Serving
Sentences. Persons who have been convicted and are serving
sentence at the time of the effectivity of this Act, and who were below

the age of eighteen (18) years at the time of the commission of the
offense for which they were convicted and are serving sentence, shall
likewise benefit from the retroactive application of this Act. They shall
be entitled to appropriate dispositions provided under this Act and
their sentences shall be adjusted accordingly. They shall be
immediately released if they are so qualified under this Act or other
applicable laws.
Ostensibly, the only issue that requires resolution in this case is whether or not
petitioner is guilty beyond reasonable doubt of the crime of rape as found by both
the RTC and the CA. However, with the advent of R.A. No. 9344 while petitioner's
case is pending before this Court, a new issue arises, namely, whether the pertinent
provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time
he committed the alleged rape, he was merely 13 years old.

In sum, we are convinced that petitioner committed the crime of rape against AAA.
In a prosecution for rape, the complainant's candor is the single most important
factor. If the complainant's testimony meets the test of credibility, the accused can
be convicted solely on that basis. [44] The RTC, as affirmed by the CA, did not doubt
AAA's credibility, and found no ill motive for her to charge petitioner of the heinous
crime of rape and to positively identify him as the malefactor. Both courts also
accorded respect to BBB's testimony that he saw petitioner having sexual
intercourse with his younger sister. While petitioner asserts that AAA's poverty is
enough motive for the imputation of the crime, we discard such assertion for no
mother or father like MMM and FFF would stoop so low as to subject their daughter
to the tribulations and the embarrassment of a public trial knowing that such a
traumatic experience would damage their daughter's psyche and mar her life if the
charge is not true.[45] We find petitioner's claim that MMM inflicted the abrasions
found by Dr. Jocson in the genitalia of AAA, in order to extort money from
petitioners parents, highly incredible. Lastly, it must be noted that in most cases of
rape committed against young girls like AAA who wasonly 6 years old then, total
penetration of the victim's organ is improbable due to the small vaginal
opening. Thus, it has been held that actual penetration of the victim's organ or
rupture of the hymen is not required. [46] Therefore, it is not necessary for conviction
that the petitioner succeeded in having full penetration, because the slightest
touching of the lips of the female organ or of the labia of the pudendum constitutes
rape.[47]
However, for one who acts by virtue of any of the exempting circumstances,
although he commits a crime, by the complete absence of any of the conditions
which constitute free will or voluntariness of the act, no criminal liability arises.
[48]

Therefore, while there is a crime committed, no criminal liability attaches. Thus,

in Guevarra v. Almodovar,[49] we held:

[I]t is worthy to note the basic reason behind the enactment of the
exempting circumstances embodied in Article 12 of the RPC; the
complete absence of intelligence, freedom of action, or intent,
or on the absence of negligence on the part of the accused. In
expounding on intelligence as the second element of dolus, Albert has
stated:
"The second element of dolus is intelligence; without this
power, necessary to determine the morality of human

acts to distinguish a licit from an illicit act, no crime can

exist, and because . . . the infant (has) no intelligence, the
law exempts (him) from criminal liability."
It is for this reason, therefore, why minors nine years of age and below
are not capable of performing a criminal act.

In its Comment[50] dated April 24, 2008, the OSG posited that petitioner is no longer
covered by the provisions of Section 64 of R.A. No. 9344 since as early as 1999,
petitioner was convicted by the RTC and the conviction was affirmed by the CA in
2001. R.A. No. 9344 was passed into law in 2006, and with the petitioner now
approximately 25 years old, he no longer qualifies as a child as defined by R.A. No.
9344.

Moreover,

the

OSG

claimed that the retroactive effect of Section 64 of R.A. No. 9344 isapplicable only if
the child-accused is still below 18 years old as explained under Sections 67 and 68
thereof. The OSG also asserted that petitioner may avail himself of the provisions of
Section 38[51] of R.A. No. 9344 providing for automatic suspension of sentence if
finally found guilty. Lastly, the OSG argued that while it is a recognized principle
that laws favorable to the accused may be given retroactive application, such
principle does not apply if the law itself provides for conditions for its application.
We are not persuaded.
Section 6 of R.A. No. 9344 clearly and explicitly provides:
SECTION 6. Minimum Age of Criminal Responsibility. A child fifteen
(15) years of age or under at the time of the commission of the
offense shall be exempt from criminal liability. However, the child shall
be subjected to an intervention program pursuant to Section 20 of this
Act.
A child above fifteen (15) years but below eighteen (18) years of age
shall likewise be exempt from criminal liability and be subjected to an
intervention program, unless he/she has acted with discernment, in
which case, such child shall be subjected to the appropriate
proceedings in accordance with this Act.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in
accordance with existing laws.

Likewise, Section 64 of the law categorically provides that cases of children 15 years
old and below, at the time of the commission of the crime, shall immediately be
dismissed and the child shall be referred to the appropriate local social welfare and
development officer (LSWDO). What iscontrolling, therefore, with respect to the
exemption from criminal liability of the CICL, is not the CICL's age at the time of the
promulgation of judgment but the CICL's age at the time of the commission of the
offense. In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has
been raised from 9 to 15 years old.[52]
Given this precise statutory declaration, it is imperative that this Court accord
retroactive application to the aforequoted provisions of R.A. No. 9344 pursuant to
the well-entrenched principle in criminal law - favorabilia sunt amplianda adiosa
restrigenda. Penal laws which are favorable to the accused are given retroactive
effect.[53] This principle is embodied in Article 22 of the Revised Penal Code, which
provides:
Art. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the publication of such
laws, a final sentence has been pronounced and the convict is serving
the same.

We also have extant jurisprudence that the principle has been given expanded
application in certain instances involving special laws. [54] R.A. No. 9344 should be no
exception.
In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the
deliberations on the bill in the Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages
34 to 35, may I humbly propose that we should insert, after Sections
67 to 69, the following provision:
ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS
LAW PENDING THE CREATION OF THE OFFICE OF JUVENILE WELFARE
AND RESTORATION (OJWR) AND THE LOCAL COUNCIL FOR THE
PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR, SHALL BE

IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD

SHALL UNDERTAKE DIVERSION PROGRAMS FOR THEM, PRIORITIZING
THE YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE LIGHTER
OFFENSES.
The only question will be: Will the DSWD have enough facilities for
these adult offenders?
Senator Pangilinan, Mr. President, according to the CWC, the DSWD
does not have the capability at the moment. It will take time to
develop the capacity.
Senator Santiago. Well, we can say that they shall be transferred
whenever the facilities are ready.
Senator Pangilinan. Yes. Mr. President, just a clarification. When we
speak here of children who do not have criminal liability under this
law, we are referring here to those who currently have criminal
liability, but because of the retroactive effect of this measure,
will now be exempt. It is quite confusing.
Senator Santiago. That is correct.
Senator Pangilinan. In other words, they should be released either to
their parents or through a diversion program, Mr. President. That is my
understanding.
Senator Santiago. Yes, that is correct. But there will have to be a
process of sifting before that. That is why I was proposing that they
should be given to the DSWD, which will conduct the sifting process,
except that apparently, the DSWD does not have the physical
facilities.
Senator Pangilinan. Mr. President, conceptually, we have no
argument. We will now have to just craft it to ensure that the input
raised earlier by the good Senator is included and the capacity of the
DSWD to be able to absorb these individuals. Likewise, the issue
should also be incorporated in the amendment.
The President. Just a question from the Chair. The moment this law
becomes effective, all those children in conflict with the law,
who were convicted in the present Penal Code, for example,
who will now not be subject to incarceration under this law,
will be immediately released. Is that the understanding?
Senator Pangilinan. Yes, Mr. President.
Senator Santiago. They would immediately fall under . . . .
Senator Pangilinan. The diversion requirements, Mr. President.

Senator Santiago. Yes.

The President. But since the facilities are not yet available, what will
happen to them?
Senator Santiago. Well, depending on their age, which has not yet
been settled . . . . . provides, for example, for conferencing family
mediation, negotiation, apologies, censure, et cetera. These
methodologies will apply. They do not necessarily have to remain in
detention.
Senator Pangilinan. Yes, that is correct, Mr. President. But it will still
require some sort of infrastructure, meaning, manpower. The
personnel from the DSWD will have to address the counseling. So,
there must be a transition in terms of building the capacity and
absorbing those who will benefit from this measure.
The President. Therefore, that should be specifically provided for as an
amendment.
Senator Pangilinan. That is correct, Mr. President.
The President. All right. Is there any objection? [Silence] There being
none, the Santiago amendment is accepted.[55]
xxxx
PIMENTEL AMENDMENTS
xxxx
Senator Pimentel.
xxxx
Now, considering that laws are normally prospective, Mr. President, in
their application, I would like to suggest to the Sponsor if he could
incorporate some kind of a transitory provision that would
make this law apply also to those who might already have been
convicted but are awaiting, let us say, execution of their
penalties as adults when, in fact, they are juveniles.
Senator Pangilinan. Yes, Mr. President. We do have a provision
under the Transitory Provisions wherein we address the issue
raised by the good Senator, specifically, Section 67. For
example, Upon effectivity of this Act, cases of children fifteen
(15) years old and below at the time of the commission of the
crime shall immediately be dismissed and the child shall be

referred to the appropriate local social welfare and

development officer. So that would be giving retroactive effect.
Senator Pimentel. Of cases that are still to be prosecuted.
Senator Pangilinan. Yes.

Senator Pimentel. What about those that have already been

prosecuted? I was trying to cite the instance of juvenile offenders
erroneously convicted as adults awaiting execution.
Senator Pangilinan. Mr. President, we are willing to include that as an
additional amendment, subject to style.
Senator Pimentel. I would certainly appreciate that because that is a
reality that we have to address, otherwise injustice will really be . . .
Senator Pangilinan. Yes, Mr. President, we would also include that as a
separate provision.
The President. In other words, even after final conviction if, in fact, the
offender is able to prove that at the time of the commission of the
offense he is a minor under this law, he should be given the benefit of
the law.
Senator Pimentel. Yes, Mr. President. That is correct.
Senator Pangilinan. Yes,
amendment.[56]

Mr.

President. We accept that proposed

The Court is bound to enforce this legislative intent, which is the dominant factor in
interpreting a statute. Significantly, this Court has declared in a number of cases,
that intent is the soul of the law, viz.:
The intent of a statute is the law. If a statute is valid it is to have effect
according to the purpose and intent of the lawmaker. The intent is the
vital part, the essence of the law, and the primary rule of construction
is to ascertain and give effect to the intent. The intention of the
legislature in enacting a law is the law itself, and must be enforced
when ascertained, although it may not be consistent with the strict
letter of the statute. Courts will not follow the letter of a statute when
it leads away from the true intent and purpose of the legislature and
to conclusions inconsistent with the general purpose of the act. Intent
is the spirit which gives life to
a legislative enactment. In construing statutes the proper course is to
start out and follow the true intent of the legislature and to adopt that
sense which harmonizes best with the context and promotes in the
fullest manner the apparent policy and objects of the legislature. [57]

Moreover,
[58]

penal

laws

are

construed

liberally

in

favor

of

the

accused.

In this case, the plain meaning of R.A. No. 9344's unambiguous language,

coupled with clear lawmakers' intent, is most favorable to herein petitioner. No

other interpretation is justified, for the simple language of the new law itself
demonstrates the legislative intent to favor the CICL.
It bears stressing that the petitioner was only 13 years old at the time of the
commission of the alleged rape. This was duly proven by the certificate of live birth,
by petitioner's own testimony, and by the testimony of his mother. Furthermore,
petitioners age was never assailed in any of the proceedings before the RTC and the
CA. Indubitably, petitioner, at the time of the commission of the crime, was below
15 years of age. Under R.A. No. 9344, he is exempted from criminal liability.
However, while the law exempts petitioner from criminal liability for the two (2)
counts of rape committed against AAA, Section 6 thereof expressly provides that
there is no concomitant exemption from civil liability. Accordingly, this Court
sustains the ruling of the RTC, duly affirmed by the CA, that petitioner and/or his
parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the
nature of actual or compensatory damages, and is mandatory upon a conviction for
rape.
The RTC, however, erred in not separately awarding moral damages, distinct from
the civil indemnity awarded to the rape victim. AAA is entitled to moral damages in
the amount of P50,000.00 for each count of rape, pursuant to Article 2219 of the
Civil Code, without the necessity of additional pleading or proof other than the fact
of rape. Moral damages are granted in recognition of the victim's injury necessarily
resulting from the odious crime of rape.[59]
A final note. While we regret the delay, we take consolation in the fact that a law
intended to protect our children from the harshness of life and to alleviate, if not
cure, the ills of the growing number of CICL and children at risk in our country, has
been enacted by Congress. However, it has not escaped us that major concerns
have been raised on the effects of the law. It is worth mentioning that in the
Rationale for the Proposed Rule on Children Charged under R.A. No. 9165, or the
Comprehensive Dangerous Drugs Act of 2002, it was found that:

The passage of Republic Act No. 9344 or the Juvenile Justice and
Welfare Act of 2006 raising the age of criminal irresponsibility from 9
years old to 15 years old has compounded the problem of employment
of children in the drug trade several times over. Law enforcement
authorities, Barangay Kagawads and the police, most particularly,
complain that drug syndicates have become more aggressive in using
children 15 years old or below as couriers or foot soldiers in the drug
trade. They claim that Republic Act No. 9344 has rendered them
ineffective in the faithful discharge of their duties in that they are
proscribed from taking into custody children 15 years old or below who
openly flaunt possession, use and delivery or distribution of illicit
drugs, simply because their age exempts them from criminal liability
under the new law. [60]

The Court is fully cognizant that our decision in the instant case effectively
exonerates petitioner of rape, a heinous crime committed against AAA who was
only a child at the tender age of six (6) when she was raped by the petitioner, and
one who deserves the laws greater protection. However, this consequence is
inevitable because of the language of R.A. No. 9344, the wisdom of which is not
subject to review by this Court. [61] Any perception that the result reached herein
appears unjust or unwise should be addressed to Congress. Indeed, the Court has
no discretion to give statutes a meaning detached from the manifest intendment
and language of the law. Our task is constitutionally confined only to applying the
law and jurisprudence to the proven facts, and we have done so in this case. [62]

WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-19084
filed against petitioner Joemar F. Ortega are hereby DISMISSED. Petitioner is
hereby referred to the local social welfare and development officer of the locality for
the appropriate intervention program. Nevertheless, the petitioner is hereby
ordered to pay private complainant AAA, civil indemnity in the amount of One
Hundred Thousand Pesos (P100,000.00) and moral damages in the amount of One
Hundred Thousand Pesos (P100,000.00). No costs.
Let a copy of this Decision be furnished the two Houses of Congress and the
Juvenile Justice and Welfare Council (JJWC).

SO ORDERED.
ROBERT REMIENDO y SIBLAWAN,

G.R. No. 184874

Petitioner,
Present:

CARPIO, J.,
Chairperson,
CARPIO MORALES,*

- versus -

VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondent.

October 9, 2009

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

DECISION

NACHURA, J.:

This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court
assailing the Decision[2] dated November 16, 2007 and the Resolution [3] dated
October 3, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 29316
entitled, People of the Philippines v. Robert Remiendo y Siblawan.

The case arose from the filing of two criminal informations, both dated March 10,
2008, against petitioner Robert Remiendo y Siblawan (Remiendo), that read

Criminal Case No. 98-CR-2999

That in or about the month of March 1997, at Badiwan, Municipality of

Tuba, Benguet Province, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously have carnal knowledge of one
[AAA], a girl below 12 years of age.

CONTRARY TO LAW.[4]

Criminal Case No. 98-CR-3000

That in or about the month of May 1997, at Badiwan, Municipality of

Tuba, Benguet Province, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously have carnal knowledge of one
[AAA], a girl below 12 years of age.

CONTRARY TO LAW.[5]

Upon arraignment, Remiendo pled not guilty to both charges. After pretrial, a
joint trial ensued before the Regional Trial Court (RTC), Branch 62, La Trinidad,
Benguet.Both the prosecution and the defense presented their respective evidence,
summarized by the CA in its Decision, to wit:

The prosecution presented the following version of facts:

The complainant [AAA] was born on 16 February 1986. At the

time of the commission of the offense, she was a minor below 12 years
of age. She knew accused-appellant Robert Remiendo as he was
residing near the house where her family used to stay. Sometime in
March 1997, she was sexually assaulted by accused-appellant inside
said house. On that day, her parents and brother left for work after
breakfast, and she was left alone in the house. Accused-appellant
came in, pushed her into the room, and threatened to kill her if she
reported
what
happened. He
undressed
himself
and
the
complainant. The latter was standing and refused to remove her panty
but she obliged when accused-appellant insisted. Then he made her lie
on the bed and placed his penis in her vagina. The complainant
struggled, moved, and pushed accused-appellant. She felt pain when
accused-appellant inserted his penis into her vagina. She cried until
accused-appellant left, but she did not shout because accusedappellant warned her not to, or else he would kick her. She put on her
clothes after accused-appellant left. Her parents arrived in the
afternoon but she did not tell them what happened to her because her
mother might whip her.

Sometime in May 1997, [AAA] was again sexually assaulted by

accused-appellant, which took place in the house of the latter. At that
time, she was on her way to see her mother at her workplace after she
had lunch. When she passed by the house of accused-appellant, the
latter pulled her into his house and brought her into his room. She
cried and shouted but accused-appellant told her to keep quiet. She
struggled but was helpless because accused-appellant was
stronger. They were alone in the room. Accused-appellant removed his
clothes and told her to remove her panty. Afraid, she removed her
panty and was made to lie on the bed. Accused-appellant inserted his
penis into her vagina and she felt pain. She kept on moving but she
could not push away accused-appellant. She moved her shoulders and

pushed
accused-appellant
with
both
hands
but
he
was
stronger. Afterwards, accused-appellant moved away and threatened
to kill her if she told anyone what happened. She responded that she
would not tell anyone. Later, she executed a sworn statement and
identified accused-appellant as the person who raped her.

Dr. Ronald R. Bandonill, Medico-Legal Officer of the National

Bureau of Investigation (NBI)-Cordillera Administrative Region,
physically examined the complainant on 2 January 1998. Said medicolegal officer testified that [AAA] was thirteen (13) years old and a
Grade III pupil at Badiwan Tuba, Benguet at the time of the
examination. She was four feet and eleven inches (411) tall, weighed
78 pounds, fairly nourished, and fairly developed. She was conscious,
coherent, and cooperative. She was ambulatory and had no extragenital injuries. Upon examination of her genital area, he found old
lacerations of the hymen at 5:00 and 7:00 oclock positions, which
meant that her hymen was altered by a hard rigid instrument. The
lacerations were done more than three (3) months prior to the
examination. To determine the approximate size of the object that the
hymenal opening could accommodate, he inserted a test tube. The
2.5-centimeter diameter of said tube was admitted with ease by the
hymenal orifice. He noted that the vaginal walls were lax and the
ridges inside were smothered. The complainant told him that accusedappellant raped her. He presented a written report of his findings.

On 12 July 1998, psychiatrist Dr. Elsie I. Caducoy conducted an

examination of the mental condition of the complainant. The latter was
also scheduled for psychological examination to be conducted by Elma
Buadken. The result of the examination showed that [AAA] is suffering
from psychosis and organicity. She has a below average intelligence
quotient of 88, but not on the level of mental retardation. She can
perform simple tasks but needs guidance. As to her studies, she can
hardly comprehend what is being taught to her. Having psychosis
means that her brain is afflicted with a disease. Her medical history
showed that she suffered head and body injuries brought about by
being sideswiped by a motor vehicle sometime in 1996. She was
confined in the hospital for twelve (12) days. Said injuries substantially
contributed to her present condition. Organicity, on the other hand,
means that the complainant suffers from a cloud of memory, upward
rolling of the eyeballs, stiffening of the extremities, loss of
consciousness, and epileptic seizures. Her psychosis occurs after

seizure. She is not, however, insane. During a seizure, she does not
know what is going on, but afterwards she returns to her level of
consciousness. With regular medication, her seizures will be greatly
minimized. During her interview, the complainant had a seizure and
the psychiatrist had to wait until her consciousness level returned. The
complainant then revealed that accused-appellant and a certain
Reynoso Cera raped her. The psychiatrist opined that during the rape,
she did not have a seizure because if she had, she would not have
remembered what had happened. The fact that she was able to narrate
what happened and who raped her suggested that she was on her
conscious level at such time. A written report of the foregoing findings
was submitted in court.

The defense presented the following version of facts:

Lea F. Chiwayan, thirteen (13) years old, testified that she was a
friend, playmate, and neighbor of the complainant. She testified that
she and [AAA] played together and talked about their crushes. The
complainant told Lea Chiwayan that she had a crush on accusedappellant. Sometime in April or May 1997, the complainant said that
her brother had molested her, and that he and his father had sexual
intercourse with her in their house in Poyopoy, Tuba. Sometime in
August 1997, the complainant confided that Reynoso Cera raped her in
his house. She told Lea Chiwayan that she did not feel anything
because she was used to having sexual intercourse with brother and
father. One Saturday afternoon, Lea Chiwayan and the complainant
were playing when they saw accused-appellant going to the basketball
court near the church. They followed him and watched a basketball
game. After the game, Lea Chiwayan went home with the others while
the complainant stayed behind. A few seconds after they left, the
complainant ran after them and told them that something happened
between her and accused-appellant. She said that accused-appellant
pulled her towards the back of the church and had sexual intercourse
with her. The complainant later took back what she said because she
was only joking. She then asked Lea Chiwayan not to tell the accusedappellant. However, Lea Chiwayan told accused-appellant what the
complainant
told
them. Accused-appellant
confronted
the
complainant. He flicked a finger on her head, kicked and spanked
her. He said, what are you saying, why did I do that, if I like and I do it,
Ill not do it with you, you should be ashamed of yourself. He then
borrowed the vehicle of a certain Junie, started the engine, and

stepped on the gas such that the fumes from the exhaust pipe were
directed at the complainant. Later, Lea Chiwayan learned that [AAA]
filed a case against accused-appellant.

Dolores L. Daniel, Grade II teacher of [AAA] for the school year

1997-1998, testified that the latter was unruly and a liar. The
complainant would pick fights and steal money from her
classmates. However, the witness admitted that there was no written
record in school that she reprimanded complainant for her
behavior. She knew that the complainant had an accident before.

Victor Daniel, a jitney operator, testified that accused-appellant

was one of his drivers. He described accused-appellant as a
hardworking and industrious person. When he learned that Robert
Remiendo was accused of rape, he was outraged because he knew the
daily activities of accused-appellant. The latter could not have done
such act under his strict supervision.

Accused-appellant testified that he knew the complainant, as

she was a townmate of his mother. In September 1996, he and his
parents were then residing in Badiwan. When the complainant figured
in an accident at that time, he was the one who informed her
parents. The first time he saw the complainant was during the time
when he was doing some repairs on his jitney. He saw the complainant
and her playmates go inside the jitney. He told them to alight from the
vehicle. Sometime in June 1997, he again saw the complainant and her
sister playing inside the jitney. He told them to alight as they were
disturbing him. On the day he was playing basketball at the church
grounds in Badiwan, Lea and Emma Chiwayan approached him and
asked him if it was true that he raped [AAA]. He asked where the latter
was and went to see her. Out of anger, he borrowed the vehicle of
Junie, started the engine, directed the exhaust pipe at the complainant,
and revved the engine so the smoke would go straight to her. He
slapped her and said if I would like someone, it would not be you
because there are a lot of girls better than you. During the Christmas
party in Badiwan, he again saw the complainant roaming around the
dance area. He told her to get out as she irritated the people
dancing. The complainant said nothing and left the dance
floor. Thereafter, he saw the complainant laughing and smiling. He
learned that he was charged with two (2) counts of rape when he

received a subpoena issued by the Office of the Provincial Prosecutor in

January 1998.[6]

In its Joint Judgment[7] dated October 27, 2004, the RTC found Remiendo
guilty beyond reasonable doubt of two (2) counts of statutory rape. The RTC
disposed as follows:

WHEREFORE, in view of all the foregoing, the court finds ROBERT

REMIENDO y SIBLAWAN guilty beyond reasonable doubt of two counts
of rape as charged in the Information docketed as Criminal Case No.
98-CR-2999 and in the Information docketed as Criminal Case No. 98CR-3000, and hereby sentences him to suffer the penalty of eight (8)
years and one (1) day of prision mayor, as minimum, to fourteen (14)
years and one (1) day of reclusion temporal, as maximum for each
count of rape.

He shall further indemnify the offended party [AAA] the sum of

Fifty Thousand Pesos (P50,000.00) by way of civil indemnity, the sum
of Thirty Thousand Pesos (P30,000.00) by way of moral damages, and
the sum of Ten Thousand Pesos (P10,000.00) by way of exemplary
damages.

Pursuant to Administrative Circular No. 4-92-A of the Court

Administrator, the Provincial Jail Warden of Benguet Province is
directed to immediately transfer the said accused, Robert Remiendo, to
the custody of the Bureau of Corrections, Muntinlupa City, Metro Manila
after the expiration of fifteen (15) days from date of promulgation
unless otherwise ordered by this Court.

Let a copy of this Judgment be furnished the Provincial Jail

Warden of Benguet Province for his information, guidance and
compliance.

SO ORDERED.[8]

Aggrieved, Remiendo interposed his appeal before the CA. In its assailed
Decision, the CA affirmed the RTC, modifying only the civil liability imposed upon
Remiendo.The fallo of the CA Decision reads

WHEREFORE, premises considered, the instant appeal

is DISMISSED. The Joint Judgment dated 27 October 2004 rendered by
the Regional Trial Court, Branch 62, La Trinidad, Benguet,
is AFFIRMED with MODIFICATION on the civil liability of accusedappellant. He is ordered to pay the complainant, for each count of
rape, the sum of (a) P50,000.00 as civil indemnity, (b) P50,000.00 as
moral damages, and (c) P25,000.00 as exemplary damages.

SO ORDERED.[9]

Remiendo moved to reconsider the November 16, 2007 Decision, but the CA
denied the motion in its October 3, 2008 Resolution; hence, this petition alleging
that

(a)

THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

DECISION OF THE COURT A QUO CONVICTING PETITIONER OF
STATUTORY RAPE DESPITE THE ABSENCE OF EVIDENCE TO PROVE
THE TRUE AND REAL AGE OF THE PRIVATE COMPLAINANT.

(b) THE COURT OF APPEALS GRAVELY ERRED IN NOT GIVING

PETITIONER THE BENEFIT ACCORDED TO HIM BY REPUBLIC ACT
9344 KNOWN AS THE JUVENILE JUSTICE AND WELFARE ACT OF 2006
INCREASING THE AGE OF CRIMINAL RESPONSIBILITY.[10]

Remiendo questions his conviction for statutory rape despite the purported
absence of competent proof that AAA was below 12 years old at the time of the

alleged commission of the crimes. According to him, the Certificate of Live Birth of
AAA offered by the prosecution during its formal offer of exhibits was not admitted
by the RTC in its Order[11] dated September 14, 1999 because it was neither
identified by any witness, nor marked as exhibit during the trial though reserved for
marking during the pretrial. He further posits that, on the basis of the testimonies of
the defense witnesses and the Elementary School Permanent Record, [12] AAA was
more than 12 years old in March and May 1997.

Considering that AAA was more than 12 years of age, Remiendo then
questions her credibility as a witness, claiming that she was smiling during her
testimony; and that her failure to flee from the situation, even taking off her panties
herself, belies her charges of statutory rape against him.

We disagree.

As provided in Article 266-A (1)(d) of the Revised Penal Code, sexual

intercourse with a girl below 12 years old is statutory rape. Its two elements are: (1)
that the accused has carnal knowledge of a woman; and (2) that the woman is
below 12 years of age. Sexual congress with a girl under 12 years old is always
rape.[13]

As regards the appreciation of the age of a rape victim, the Court, in People v.
Pruna,
laid down the following guidelines:
[14]

1. The best evidence to prove the age of the offended party is an

original or certified true copy of the certificate of live birth of such
party.

2. In the absence of a certificate of live birth, similar authentic

documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have

been lost or destroyed or otherwise unavailable, the testimony, if clear
and credible, of the victims mother or a member of the family either by
affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the
offended party pursuant to Section 40, Rule 130 of the Rules of
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and

what is sought to be proved is that she is less than 7
years old;

b. If the victim is alleged to be below 7 years of age and

what is sought to be proved is that she is less than 12
years old;

c. If the victim is alleged to be below 12 years of age and

what is sought to be proved is that she is less than 18
years old.

4. In the absence of a certificate of live birth, authentic document, or

the testimony of the victims mother or relatives concerning the victims
age, the complainants testimony will suffice provided that it is
expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of

the offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to

the age of the victim.[15]

In this case, the prosecution offered in evidence a certified true copy of AAAs
Certificate of Live Birth[16] as part of the testimonies of AAA and her mother that
AAA was born on February 21, 1986. It was reserved for marking as part of the
exhibits for the prosecution, as shown in the Pretrial Order [17] dated November 16,
1998. During the trial, in order to abbreviate the proceedings, the parties agreed to
stipulate on the testimony of AAAs mother, specifically on the following facts:

1. That she is [BBB], the natural mother of [AAA], the victim in these
two (2) Criminal Cases Nos. 98-CR-2999 and 98-CR-3000;

2. That on January 5, 1998[,] she executed an affidavit-complaint for

and on behalf of her daughter which she subscribed before NBI agent
Atty. Dave Alunan; and

3. That the subject matter of her sworn statement against Reynoso

Cera and Robert Remiendo is the alleged statutory rape against [AAA].
[18]

And part of the affidavit-complaint of BBB is the statement that AAA was born on
February 21, 1986.[19]

A certificate of live birth is a public document that consists of entries (regarding the
facts of birth) in public records (Civil Registry) made in the performance of a duty by
a public officer (Civil Registrar). As such, it is prima facie evidence of the fact of
birth of a child,[20] and it does not need authentication. It can only be rebutted by
clear and convincing evidence to the contrary. Thus, despite the September 14,
1999 Order, the RTC correctly appreciated the same in its Joint Judgment.

Nevertheless, even assuming that the Certificate of Live Birth was not appreciated
by the RTC, the prosecution was able to establish that AAA was below 12 years old
during the two occasions of rape per the guidelines laid down in Pruna. It is
significant to note that both AAA and BBB testified that AAA was born on February

21, 1986. This fact was neither denied nor objected to by the defense. The
argument of Remiendo that the prosecution admitted in the course of trial that
AAAs birthday was February 21, 1984 cannot stand. As quoted by Remiendo in his
petition

Court:

Anyway, it is stated in that document that the birth date of

[AAA] was February 21, 1983. Do you agree that that is an entry
there?

Pros. Suanding:

Yes, your honor. We agree, your honor.[21]

This statement cannot qualify as a judicial admission on the birth date of

AAA. A judicial admission is an admission, verbal or written, made by a party in the
course of the proceedings in the same case and it dispenses with proof with respect
to the matter or fact admitted. It may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made. [22] In this case,
what was only admitted was that the entry of AAAs date of birth appearing in her
school record is February 21, 1983. There was no such admission that the said date
was the correct birthday of AAA. And as between the school record and the
testimonies of AAA and her mother BBB, the latter must prevail.

As to the credibility of AAA as a witness, jurisprudence instructs us that the

trial courts assessment deserves great weight, and is even conclusive and binding,
if not tainted with arbitrariness or oversight of some fact or circumstance of weight
and influence. The reason is obvious. Having the full opportunity to observe directly
the witnesses deportment and manner of testifying, the trial court is in a better
position than the appellate court to evaluate testimonial evidence properly. [23]

Testimonies of rape victims who are young and immature deserve full
credence, inasmuch as no young woman, especially of tender age, would concoct a
story of defloration, allow an examination of her private parts, and thereafter
pervert herself by being the subject of a public trial, if she was not motivated solely
by the desire to obtain justice for the wrong committed against her. Youth and
immaturity are generally badges of truth. It is highly improbable that a girl of tender
years, one not yet exposed to the ways of the world, would impute to any man a
crime so serious as rape if what she claims is not true. [24]

What is more, AAAs testimony of rape was corroborated by the NBI medicolegal examination showing healed lacerations on her hymen. Hymenal lacerations,
whether healed or fresh, are the best evidence of forcible defloration. When the
consistent and forthright testimony of a rape victim is consistent with medical
findings, there is sufficient basis to warrant a conclusion that the essential requisites
of carnal knowledge have been established. When there is no evidence to show any
improper motive on the part of the rape victim to testify falsely against the accused
or to falsely implicate him in the commission of a crime, the logical conclusion is
that the testimony is worthy of full faith and credence. [25] In this case, Remiendo
failed to convince us to rule otherwise.

Remiendo also posits that he should benefit from the mandate of Republic Act
(R.A.) No. 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006.

The pertinent provision of R.A. No. 9344 reads

SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen

(15) years of age or under at the time of the commission of the offense
shall be exempt from criminal liability.However, the child shall be
subjected to an intervention program pursuant to Section 20 of this
Act.

A child above fifteen (15) years but below eighteen (18)

years of age shall be likewise exempt from criminal liability
and be subjected to an intervention program, unless he/she
acted with discernment, in which case, such child shall be

subjected to the appropriate proceedings in accordance with

this Act.

The exemption from criminal liability herein established does not

include exemption from civil liability, which shall be enforced in
accordance with existing laws.[26]

Remiendo argues that the prosecution failed to establish that he acted with
discernment in the commission of the crimes charged. Thus, he claims that he
should be exempt from criminal liability.

We differ. Discernment is the mental capacity to understand the difference

between right and wrong. The prosecution is burdened to prove that the accused
acted withdiscernment by evidence of physical appearance, attitude or deportment
not only before and during the commission of the act, but also after and during the
trial. The surrounding circumstances must demonstrate that the minor knew what
he was doing and that it was wrong. Such circumstance includes the gruesome
nature of the crime and the minors cunning and shrewdness. [27]

Culled from the records of this case, it is manifest that Remiendo acted with
discernment, being able to distinguish between right and wrong and knowing fully
well the consequences of his acts against AAA. During the rape that occurred in
March 1997, Remiendo waited for AAA to be left alone at her house before he came,
and, while doing his dastardly act, threatened to kick her should she shout for
help. In May 1997, Remiendo again ravished AAA in the room of his house when the
latter passed by and, thereafter, threatened to kill her if she told anybody about
what had just happened. Per his own testimony, he knew that committing rape was
wrong because he claimed to have been enraged when he was asked by AAAs
playmates if he indeed raped AAA, to the point of slapping her and revving up the
engine of a jitney and directing the smoke from the exhaust pipe towards her.

Remiendo, being above 15 and under 18 years of age at the time of the rape,
and having acted with discernment, but having already reached 21 years of age
at the time of the imposition of his sentence by the trial court, his claim for the
[28]

benefits of R.A. No. 9344 is rendered moot and academic in view of Section
40[29] thereof which provides

SEC. 40. Return of the Child in Conflict with the Law to Court. If
the court finds that the objective of the disposition measures imposed
upon the child in conflict with the law have not been fulfilled, or if the
child in conflict with the law has willfully failed to comply with the
conditions of his/her disposition or rehabilitation program, the child in
conflict with the law shall be brought before the court for execution of
judgment.

If the child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with this Act,
to order execution of sentence, or to extend the suspended sentence
for a certain period or until the child reaches the maximum age of
twenty-one (21) years.[30]

Remiendo was born on January 21, 1982. The Joint Judgment was
promulgated on October 27, 2004. Thus, at the time of the imposition of his
sentence, Remiendo was already 22 years old and could no longer be considered a
child for the purposes of the application of R.A. No. 9344.

WHEREFORE, the petition is DENIED, and the Decision dated November 16,
2007 and the Resolution dated October 3, 2008 of the Court of Appeals
are AFFIRMED.No costs.

SO ORDERED.
G.R. No. 182239

March 16, 2011

PEOPLE
OF
THE
vs.
HERMIE M. JACINTO, Accused-Appellant.

PHILIPPINES, Plaintiff-Appellee,

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 pre-trial,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
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
At about past 6 oclock in the evening of 28 January 2003, FFF sent his eight-yearold 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
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
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
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
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
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
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], sisterin-law of appellants aunt, Gloria, 62 testified on the behavior of Julito after the rape
incident was revealed.63
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
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. 76Around
three (3) minutes later, Luzvilla saw Julito, now in a white T-shirt, 77 running towards
the house of Rita.78AAA 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
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:

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
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.
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
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:
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?
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.
Q What was painful?
A My vagina.
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. Micabalo 106 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:
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.
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.
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
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
[Sec. 68 of Republic Act No. 9344]132 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:

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 AAA 140 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 old 141 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.
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 accused-appellant is reclusion perpetua.148 (Emphasis
supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
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

pronouncement of his/her guilt.(Emphasis supplied.)

at

the

time

of

the

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
in Sarcia,156 overturning the ruling inGubaton. Thus:

promulgated

the

decision

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 deliberations 158 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 CAG.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.

G.R. No. 45186

September 30, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JOSEFINA BANDIAN, defendant-appellant.
Jose Rivera Yap for appellant.
Office of the Solicitor-General Hilado for appellee.
DIAZ, J.:
Charged with the crime of infanticide, convicted thereof and sentenced to reclusion perpetua and the corresponding
accessory penalties, with the costs of the suit, Josefina Bandian appealed from said sentence alleging that the trial
court erred:
I. In taking into consideration, to convict her, her alleged admission to Dr. Nepomuceno that she had thrown
away her newborn babe, and
II. In holding her guilty of infanticide, beyond reasonable doubt, and in sentencing her to reclusion perpetua,
with costs.
The facts of record ma be summarized as follows:
At about 7 o'clock in the morning of January 31, 1936, Valentin Aguilar, the appellant's neighbor, saw the appellant go
to a thicket about four or five brazas from her house, apparently to respond to a call of nature because it was there
that the people of the place used to go for that purpose. A few minutes later, he again saw her emerge from the
thicket with her clothes stained with blood both in the front and back, staggering and visibly showing signs of not
being able to support herself. He ran to her aid and, having noted that she was very weak and dizzy, he supported
and helped her go up to her house and placed her in her own bed. Upon being asked before Aguilar brought her to
her house, what happened to her, the appellant merely answered that she was very dizzy. Not wishing to be alone
with the appellant in such circumstances, Valentin Aguilar called Adriano Comcom, who lived nearby, to help them,
and later requested him to take bamboo leaves to stop the hemorrhage which had come upon the appellant.
Comcom had scarcely gone about five brazas when he saw the body of a newborn babe near a path adjoining the
thicket where the appellant had gone a few moments before. Comcom informed Aguilar of it and latter told him to
bring the body to the appellant's house. Upon being asked whether the baby which had just been shown to her was
hers or not, the appellant answered in the affirmative.
Upon being notified of the incident at 2 o'clock in the afternoon of said day, Dr. Emilio Nepomuceno, president of the
sanitary division of Talisayan, Oriental Misamis, went to the appellant's house and found her lying in bed still bleeding.
Her bed, the floor of her house and beneath it, directly under the bed, were full of blood. Basing his opinion upon said
facts, the physician in question declared that the appellant gave birth in her house and in her own bed; that after
giving birth she threw her child into the thicket to kill it for the purpose of concealing her dishonor from the man, Luis
Kirol, with whom she had theretofore been living maritally, because the child was not his but of another man with
whom she had previously had amorous relations. To give force to his conclusions, he testified that the appellant had
admitted to him that she had killed her child, when he went to her house at the time and on the date above-stated.
The prosecuting attorney and the lower court giving absolute credit to Dr. Nepomuceno whose testimony was not
corroborated but, on the contrary, was contradicted by the very witnesses for the prosecution and by the appellant, as
will be stated later, they were of the opinion and the lower court furthermore held, that the appellant was an
infanticide. The Solicitor-General, however, does not agree with both. On the contrary, he maintains that the appellant

may be guilty only of abandoning a minor under subsection 2 of article 276 of the Revised Penal Code, the
abandonment having resulted in the death of the minor allegedly abandoned.
By the way, it should be stated that there is no evidence showing how the child in question died. Dr. Nepomuceno
himself affirmed that the wounds found in the body of the child were not caused by the hand of man but by bites
animals, the pigs that usually roamed through the thicket where it was found.
Infanticide and abandonment of a minor, to be punishable, must be committed wilfully or consciously, or at least it
must be result of a voluntary, conscious and free act or omission. Even in cases where said crimes are committed
through mere imprudence, the person who commits them, under said circumstances, must be in the full enjoyment of
his mental faculties, or must be conscious of his acts, in order that he may be held liable.
The evidence certainly does not show that the appellant, in causing her child's death in one way or another, or in
abandoning it in the thicket, did so wilfully, consciously or imprudently. She had no cause to kill or abandon it, to
expose it to death, because her affair with a former lover, which was not unknown to her second lover, Luis Kirol, took
place three years before the incident; her married life with Kirol she considers him her husband as he considers
her his wife began a year ago; as he so testified at the trial, he knew that the appellant was pregnant and he
believed from the beginning, affirming such belief when he testified at the trial, that the child carried by the appellant
in her womb was his, and he testified that he and she had been eagerly waiting for the birth of the child. The
appellant, therefore, had no cause to be ashamed of her pregnancy to Kirol.
If to the foregoing facts is added the testimony of the witnesses Valentin Aguilar and Adriano Comcom that the child
was taken from the thicket and carried already dead to the appellant's house after the appellant had left the place,
staggering, without strength to remain on her feet and very dizzy, to the extent of having to be as in fact she was
helped to go up to her house and to lie in bed, it will clearly appear how far from the truth were Dr. Nepomuceno's
affirmation and conclusions. Also add to all these the fact that the appellant denied having made any admission to
said physician and that from the time she became pregnant she continuously had fever. This illness and her extreme
debility undoubtedly caused by her long illness as well as the hemorrhage which she had upon giving birth, coupled
with the circumstances that she is a primipara, being then only 23 years of age, and therefore inexperienced as to
childbirth and as to the inconvenience or difficulties usually attending such event; and the fact that she, like her lover
Luis Kirol a mere laborer earning only twenty-five centavos a day is uneducated and could supplant with what
she had read or learned from books what experience itself could teach her, undoubtedly were the reasons why she
was not aware of her childbirth, or if she was, it did not occur to her or she was unable, due to her debility or
dizziness, which causes may be considered lawful or insuperable to constitute the seventh exempting circumstance
(art. 12, Revised Penal Code), to take her child from the thicket where she had given it birth, so as not to leave it
abandoned and exposed to the danger of losing its life.
The act performed by the appellant in the morning in question, by going into the thicket, according to her, to respond
to call of nature, notwithstanding the fact that she had fever for a long time, was perfectly lawful. If by doing so she
caused a wrong as that of giving birth to her child in that same place and later abandoning it, not because of
imprudence or any other reason than that she was overcome by strong dizziness and extreme debility, she should not
be blamed therefor because it all happened by mere accident, from liability any person who so acts and behaves
under such circumstances (art. 12, subsection 4, Revised Penal Code).
In conclusion, taking into account the foregoing facts and considerations, and granting that the appellant was aware
of her involuntary childbirth in the thicket and that she later failed to take her child therefrom, having been so
prevented by reason of causes entirely independent of her will, it should be held that the alleged errors attributed to
the lower court by the appellant are true; and it appearing that under such circumstances said appellant has the
fourth and seventh exempting circumstances in her favor, is hereby acquitted of the crime of which she had bee
accused and convicted, with costs de oficio, and she is actually confined in jail in connection with this case, it is
ordered that she be released immediately. So ordered.
Avancea, C. J., and Abad Santos, J., concur.

G.R. No. 5418, U.S. v. Tanedo, 15 Phil. 196

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
February 12, 1910
G.R. No. 5418
THE UNITED STATES, plaintiff-appellee,
vs.
CECILIO TAEDO, defendant-appellant.
O'Brien & De Witt, for appellant.
Office of the Solicitor-General Harvey, for appellee.
MORELAND, J.:
The defendant in this case was accused of the crime of murder committed, as
alleged in the information, as follows:
That on or about the 26th day of January of this year, the said accused, with the
intention of killing Feliciano Sanchez, invited him to hunt wild chickens, and,
upon reaching the forest, with premeditation shot him in the breast with a
shotgun which destroyed the heart and killed the said Sanchez, and afterwards,
in order to hide the crime, buried the body of the deceased in a well. The motive
is unknown. The premeditation consists in that the accused had prepared his
plans to take the deceased to the forest, there to kill him, so that no one could
see it, and to bury him afterwards secretly in order that the crime should remain
unpunished.
The defendant was found guilty of homicide by the Court of First Instance of the
Province of Tarlac and sentenced to fourteen years eight months and one day
of reclusion temporal, accessories, indemnification and costs. The defendant
appealed.
There is very little dispute about the facts in this case, in fact no dispute at all as
to the important facts. The accused was a landowner. On the morning of the
26th of January, 1909, he, with Bernardino Tagampa, Casimiro Pascual, Valeriano
Paulillo, and Juan Arellano, went to work on a malecon or dam on his land. The
defendant took with him a shotgun and a few shells, with the intention to hunt
wild chickens after he had set his laborers at work. He remained with his

laborers an hour or so and then went a short distance away across a stream to
see how the alteration which he had made in the malecon affected the flow of
water from the rice filed on the other side of the stream. He carried his shotgun
with him across the stream. On the other side of the stream he met the
deceased, who, with his mother and uncle, had been living in a small shack for a
month or so during the rice-harvesting season. The accused asked the uncle of
the deceased where he could find a good place in which to hunt wild chickens.
The uncle was lying on the floor in the interior of the shack sick of fever. The
deceased, a young man about 20 years of age, was working at something under
a manga tree a short distance from the shack. Although the accused directed his
question to the uncle inside of the shack, the deceased answered the question
and pointed out in a general way a portion of the forest near the edge of which
stood the shack. There is some contradiction between the testimony of the
accused and the Government witnesses just at this point. The uncle of the
deceased testified that the boy and the accused invited each other mutually to
hunt wild chickens and that the accused accepted the invitation. The accused,
however, testified that he did not invite the deceased to go hunting with him,
neither did the deceased go with him, but that he remained under the manga
tree "trying something." At any rate the accused went into the forest with his
gun. What took place there is unknown to anybody except the accused. Upon
that subject he testified as follows:
And after Feliciano Sanchez pointed out that place to me, that place where the
wild chickens were to be found, I proceeded to hunt, because, in the first place,
if I could kill some wild chickens we would have something to eat on that day. So
when I arrived at that place I saw a wild chickens and I shot him. And after I shot
that chicken I heard a human cry. I picked up the chicken and went near the
place where I heard the noise, and after I saw that I had wounded a man I went
back toward the malecon, where my companions were working, running back,
and when I arrived there I left my shotgun behind or by a tree not far from
where my companions were working; and I called Bernardino Tagampa to tell
him about the occurrence, and to him I told of that occurence because he is my
friend and besides that he was a relative of the deceased, and when Tagampa
heard of this he and myself went together to see the dead body.
Only one shot was heard that morning and a chicken was killed by gunshot
wound. Chicken feathers were found in considerable qualities at the point where
the chicken was shot and where the accident occurred. The defendant within a
few minutes after the accident went out of the woods to the malecon where he

had left his laborers at work, carrying the dead chicken with him. The accused
called Bernardino Tagampa, on of the laborers, to go with him and they
disappeared for some time. Tagampa says that they went a little way toward the
woods and came back. The accused says that they went to the place where the
body of the deceased lay and removed it to a place in the cogon grass where it
would not be easily observed. It is certain, however, that the body was
concealed in the cogon grass. During the afternoon Tagampa left the malecon,
where his fellow laborers were working, probably to hunt for a place in which to
hide the body. The rest of the laborers saw the witness Yumul take the chicken
which had been killed by the accused. He delivered it to the wife of the accused,
who testified that she received the chicken from Yumul and that it had been
killed by a gunshot wound. That evening the accused and Tagampa went
together to dispose of the body finally. They took it from the cogon grass where
it lay concealed and carried it about seventeen or eighteen hundred meters
from the place where it had originally fallen, and buried it in an old well,
covering it with straw and earth and burning straw on top of the well for the
purpose of concealing it. Tagampa said that he helped the accused dispose of
the body because he was afraid of him, although he admits that the accused in
no way threatened or sought to compel him to do so. The defendant prior to the
trial denied all knowledge of the death of the deceased or the whereabouts of
the body. On the trial, however, he confessed his participation in the death of
the deceased and told the story substantially as above.
So far as can be ascertained from the evidence the prior relations between the
accused and the deceased had been normal. The deceased was a tenant on land
belonging to a relative of the accused. There was no enmity and no unpleasant
relations between them. No attempt was made to show any. There appears to
have been no motive whatever for the commission of the crime. The
Government has not attempted to show any. The only possible reason that the
accused could have for killing the deceased would be found in the fact of a
sudden quarrel between them during the hunt. That idea is wholly negative by
the fact that the chicken and the man were shot at the same time, there having
been only one shot fired.
Article 1 of the Penal Code says:
Crimes or misdemeanors are voluntary acts and omissions punished by law.

Acts and omissions punished by law are always presumed to be voluntary unless
the contrary shall appear.
Article 8, subdivision 8, reads as follows:
He who, while performing a legal act with due care, causes some injury by mere
accident without liability or intention of causing it.
Section 57 of the Code of Criminal Procedure is as follows:
A defendant in a criminal action shall be presumed to be innocent until the
contrary is proved, and in case of a reasonable doubt that his guilt is
satisfactorily shown he shall be entitled to an acquittal.
The American doctrine is substantially the same. It is uniformly held that if life is
taken by misfortune or accident while in the performance of a lawful act
executed with due care and without intention of doing harm, there is no criminal
liability. (Tidwell vs. State, 70 Ala., 33; State vs. Benham, 23 Ia., 154, 92 Am.
Dec., 417; Bertrong vs. State, 2 Tex. Ap., 160; Williamson vs. State, 2 Ohio C. C.,
292; U. S. vs. Meagher, 37 Fed. Rep., 875; U. S. vs. Castro, Fed. Cas., 14752;
State vs. Legg, 3 L. R. A., N. S., 1152.)
In this case there is absolutely no evidence of negligence upon the part of the
accused. Neither is there any question that he was engaged in the commission
of a lawful act when the accident occurred. Neither is there any evidence of the
intention of the accused to cause the death of the deceased. The only thing in
the case at all suspicious upon the part of the defendant are his concealment
and denial.
In the case of the State vs. Legg, above referred to, it is said (p.1165):
Where accidental killing is relied upon as a defense, the accused is not required
to prove such a defense by a preponderance of the evidence, because there is a
denial of intentional killing, and the burden is upon the State to show that it was
intentional, and if, from a consideration of all the evidence, both that for the
State and the prisoner, there is a reasonable doubt as to whether or not the
killing was accidental or intentional, the jury should acquit. . . . But where
accidental killing is relied upon, the prisoner admits the killing but denies that it
was intentional. Therefore, the State must show that it was intentional, and it is
clearly error to instruct the jury that the defendant must show that it was an

accident by a preponderance of the testimony, and instruction B in the Cross

case was properly held to be erroneous.
In 3 L. R. A., N. S., page 1163, it is said:
Evidence of misadventure gives rise to an important issue in a prosecution for
homicide, which must be submitted to the jury. And since a plea of misadventure
is a denial of criminal intent (or its equivalent) which constitutes an essential
element in criminal homicide, to warrant a conviction it must be negative by the
prosecution beyond a reasonable doubt.
In support of such contention the author cites a number of cases.
We are of the opinion that the evidence is insufficient to support the judgment of
conviction.
The judgment of conviction is, therefore, reversed, the defendant acquitted, and
his discharge from custody ordered, costs de oficio. So ordered.
Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.
G.R. No. 137347

March 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
PO3 FERDINAND FALLORINA Y FERNANDO, appellant.

DECISION

CALLEJO, SR., J.:

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.
The accusatory portion of the Information charging the appellant with murder reads:
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.
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.
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:
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. AOC38701 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 above-mentioned 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.
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.
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 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.
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 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.

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

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:
Admitted, Your Honor.
ATTY. PEREZ:
Yes, Your Honor.
COURT: (to the witness)
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?
A

Yes, Your Honor.

Therefore, the gun was cocked when you came out?

Yes, Your Honor.

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

I safety (sic) it, sir.

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

Yes, Your Honor.

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?

(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.

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?
A

Yes, Your Honor.

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

The Court gave the gun to the accused for him to demonstrate.
(to the witness)

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:
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?

No, Your Honor.

I thought you were surrendering to Major Suyo?

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

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

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

ATTY. PRINCIPE: (to the witness)

Q

What is your relation with PO3 Angelito Lam of Valenzuela?

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

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

Yes, sir.

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

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.

Why did you not go to your office at Camp Crame, Quezon City?

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

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

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.
ATTY. PRINCIPE: (to the witness)
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?
A

No, sir.

COURT: (to the witness)

Q

Did you send somebody to visit your family?

No, Your Honor.

ATTY. PRINCIPE: (to the witness)

Q

Did you cause to blotter the shooting incident of Vincent?

I was not able to do that, sir.

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

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

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.
We agree with the encompassing disquisitions of the trial court in its decision on this matter:
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 crossexamination 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:
Q:
While playing basketball with Nono, LA and Puti, do you remember of any unusual incident which
took place?
A:

Yes, sir.

Q:

What was that unusual incident?

A:

When Vincent was shot, sir.

Q:

Who shot Vincent?

A:

Ferdinand Fallorina, sir.

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.

Q:

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

A:

"Nakatalikod po siya."

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.

(Witness referring to Exhibit O-11)

Q:

And who was the driver of that tricycle?

A:

It was Jeffrey who drove the tricycle, sir.

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.

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:
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:

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

COURT: (to the witness)

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

Q:

How long have you known Ferdinand Fallorina before the incident?

A:

More or less two years, sir.

Q:

Why do you know him?

A:

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

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:

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

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.

G.R. No. 29396, People v. Ayaya, 52 Phil.

354
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
November 9, 1928

G.R. No. 29396

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
PRAXEDES AYAYA, defendant-appellant.
G. N. Trinidad for appellant.
Attorney-General Jaranilla for appellee.
VILLAMOR, J.:
The appellant was tried in the Court of First Instance of Tayabas upon the
following information:
That on or about January 15, 1928, in the municipality of Pagbilao, Province of
Tayabas, Philippine Islands, and within the jurisdiction of this court, the abovenamed accused, with the intent to kill her husband Benito dela Cruz, with whom
she was united in lawful marriage, with treachery and by means of an umbrella,
did voluntarily, unlawfully, and feloniously assault and attack her said husband
Benito de la Cruz, inflicting a mortal wound in the upper left eyelid, as a result of
which said Benito de la Cruz died five (5) days thereafter. In violation of article
402 of the Penal Code.
It appears from the record that at about 1 o'clock in the morning of January 16,
1928, Jose Fajardo, the chief of police of Pagbilao, Tayabas, was informed by a
policeman that one Benito de la Cruz was drunk, wounded, and vomiting in his
house in said municipality. Said chief of police went to the place and found
Benito, the deceased, lying in bed with a wound on his left eyelid, and
unconscious, for he did not answer the questions put to him. When his wife, the
defendant Praxedes Ayaya, was questioned as to the cause of that wound, she
replied that it was due to the fact that she herself had jabbed her husband with
an umbrella. Health officer Victoriano Litonjua was then called, and upon
examining Benito, found he had a wound on the left upper eyelid which was
bleeding: that his pupils were dilated and, from the odor of his breath and from
his vomiting, it appeared that Benito was drunk. In view of the wounded man's
condition he was later taken to the provincial hospital of Tayabas, where he died
four days after the incident. Health officer Litonjua and Dr. G. Santos Cuyugan,
the director of the provincial hospital of Tayabas, who treated the wounded man,
expressed different opinions as to the cause of the death of Benito de la Cruz.
Health officer Litonjua believes that the deceased's cerebral hemorrhage was
due to his alcoholic excesses, whereas Doctor Cuyugan, who performed the
autopsy, declared that the wound was caused by some blunt instrument and

that his death was caused by the cerebral hemorrhage produced by the wound
he had received in the forehead, and that health officer Litonjua's statement as
to said hemorrhage being due to the alcohol is erroneous. The trial court found
the defendant guilty of the crime alleged in the information, and taking into
account that the defendant did not intend to inflict so grave an injury as she did,
and that there had been provocation on the part of the offended party,
sentenced her to fourteen years, eight months and one day reclusion temporal,
with the accessories of the law, and to pay the heirs of the deceased the sum of
P500 by way of indemnity, plus the costs of the action.
The defendant appealed from this judgment, and her attorney, in support of the
petition that the judgment appealed from be reversed and the appellant
acquitted with costs de oficio, assigns the following errors: (1) The trial court
erred in holding that the deceased's wound on the left upper eyelid was caused
by the appellant; (2) supposing, without admitting, that said wound was really
caused by the herein appellant, the lower court erred in concluding that said
wound was the immediate cause of the death of the deceased and
consequently, in convicting the appellant; and (3) the lower court erred in not
acquitting the appellant, at least, for reasonable doubt.
The evidence presented by the prosecution to prove that the crime charged,
consists of the following: Exhibit A, which is the sworn statement filed by the
accused with the justice of the peace of Pagbilao; Exhibit B, which is the
umbrella used by the defendant and with which she jabbed the deceased;
Exhibit C, which is the report of the autopsy of Benito de la Cruz signed by
Doctor Cuyugan; and Exhibit D, which is the death certificate.
In the defendant's sworn statement she states, among other things, that at
about 8 o'clock at night on January 15, 1928, she, with her husband Benito de la
Cruz, and her son Emilio, drank tuba in the store of one Felicidad Losloso; that
afterwards they went to a cinema; that while returning home and without any
warning her husband, who was drunk, gave her a blow which she dodged; that
then her husband went home, preceding her and her son and when they arrived
at the house they found the door closed; that she and her son pushed the door
and attempted to open it, but her husband, who was inside, prevented it; that
then the door gave way somewhat and her son Emilio succeeded in putting his
head between the opening of the door and the wall and in order to prevent the
door from crushing him, she pushed it; that Benito then poked his head out of
the opening of the door and when she saw him, she jabbed him with the
umbrella she carried; that she does not know where she jabbed him although

she thinks it was in the body; and that when she and her son finally succeeded
in entering the house, they found that Benito was already in bed with a wound in
the forehead. The accused herself, in her testimony in her own behalf,
substantially repeated what she had declared before the justice of the peace of
Pagbilao, stating, however, that when the door was opened and her son put his
head between the opening of the door and the wall, in order to prevent the door
from crushing her son's head, she jabbed her husband with her umbrella with a
downward motion, though she could not tell if she touched him or not. She
stated, furthermore, that she did not know how the wound in her husband's
forehead was caused. This point of the defendant's testimony has not been
contradicted by any evidence to the contrary; rather it has been corroborated by
her son Emilio de la Cruz who also testified at the trial.
On the other hand, it appears from the testimony of the defendant and of her
son that the husband and wife did not quarrel in the street while returning home
on the night in question, and, moreover, that during the marriage they lived
together in peace with no disagreements between them, either on or before the
date of the incident.
In view of the fact that there is no eyewitness of the act herein prosecuted, with
the exception of the defendant and her son Emilio de la Cruz, we are compelled
to accept the declaration of the defendant that she jabbed her husband with her
umbrella in order to prevent the door from closing and crushing her son's head
which was inserted between said door and the wall of the house. Said
defendant, explaining what took place, says in part: "When the door was ajar my
son went in, and then my husband pushed it and as I saw that he was about to
crush my son's head, I jabbed my husband with the point of the umbrella,
downwards to prevent him from crushing my son's head." We find nothing
improbable in this statement and if we add to this the absence of any
reasonable motive to prompt said defendant to injure her husband, we are
compelled to conclude that in thrusting her umbrella in the opening of the door
in question, she did so to free her son from the imminent danger of having his
head crushed or being strangled; and if she thus caused her husband's injury, it
was by a mere accident, without any fault or intention to cause it. This being so,
we believe that she incurred no criminal liability in accordance with article 8, No.
8, of the Penal Code, because, it being a licit act to free her son from the grave
danger threatening him, and the fact of having touched the left eye of her
husband, who was behind the door, with the end of her umbrella, does not make

her criminally liable. (Decision of the Supreme Court of Spain of November 30,
1888.)
Whereof the judgment appealed from is reversed, and the appellant Praxedes
Ayaya must be, as she hereby is, acquitted, with costs de oficio. So ordered.
Avancea, C. J., Johnson, Street, Malcolm, Ostrand, Romualdez and Villa-Real,

PEOPLE OF THE PHILIPPINES, appellee, vs. FEDERICO GENITA, JR. y

CULTURA, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:

Challenged in this appeal is the Decision dated June 14, 1996 of the
Regional Trial Court, Branch 4, Butuan City in Criminal Case No. 4954 finding
Federico Genita, Jr., appellant herein, guilty beyond reasonable doubt of two
counts of murder and sentencing him to suffer reclusion perpetua for each
count.
[1]

Appellant was charged in an Information which reads:

That on or about the evening of December 17, 1991 in Barangay Bugsukan, Butuan
City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill, and with treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault and shot with the
use of a high powered firearm one Jesus Bascon thereby hitting him on both legs, and
Reynaldo Timbal who was hit on his head which caused their subsequent death.
[2]

On arraignment, petitioner pleaded not guilty. Forthwith, trial ensued. The

prosecution presented Danilo Timbal, Vicente Olaco and Dr. Elsie Caballero
as its witnesses. Appellant took the witness stand for the defense.
The version of the prosecution is as follows:
On December 17, 1991, at around 8:00 oclock in the evening, while the
victims Reynaldo Timbal and Jesus Bascon were loading firewood in a truck in
Barangay Bugsukan, Butuan City, appellant who was drunk and armed with

an M-14 rifle, asked Reynaldo for a Christmas gift. Reynaldo told him to just
come back because they were still loading firewood. Appellant left the
place. Not long after, he returned and fired his gun at Jesus feet, hitting his left
leg. He immediately jumped into the truck. Appellant then went near its
bumper and fired at the tire near the chassis. Then he changed the
magazine of his gun and fired again at Jesus, this time, hitting his right
leg. Reynaldo ran away, his right hand covering his head. Appellant chased
him and fired at him, hitting his nape and right hand. After the commotion, the
victims co-workers who were able to take refuge from the cascade of bullets
returned to the scene and found the dead body of Reynaldo. Jesus was
immediately brought to the Butuan City General Hospital but died thereafter.
[3]

Dr. Elsie Caballero, City Health Officer of Butuan City, who conducted the
post mortem examination of the body of Reynaldo, found that he died of
shock, gunshot wound in the neck with avulsion of brain tissues. On the other
hand, the Death Certificate issued by Dr. Raul Monton, Medical Specialist II
of the Butuan City General Hospital, attributed Jesus death to compound
fractures, (R) & (L) Legs, and Hypovolemic Shock.
[4]

[5]

Appellant, relying on the exempting circumstance of accident as his

defense, presented a different version. He testified that he was a member of
the Civilian Armed Forces Geographical Unit (CAFGU) stationed at Bugsukan,
Butuan City, hence, he was officially issued an M-14 rifle. On the evening of
December 17, 1991, while on his way to his camp, he saw a truck parked at
the right side of the road with its rear lights on. While approaching the vehicle,
somebody grasped his neck. As a consequence, he accidentally pulled the
trigger of the M-14 rifle slung on his shoulder. The weapon automatically
fired. At this instance, his assailant set him free. Immediately he rushed to the
camp and reported the incident to Sgt. Montealto who placed the camp on
alert. Appellant stayed in the camp during the entire evening. The following
morning, he learned that two persons were killed.
[6]

On June 14, 1996, the trial court rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, finding accused FEDERICO GENITA, JR. y CULTURA guilty
beyond reasonable doubt for the death of the two (2) victims:

(1) He is hereby sentenced to reclusion perpetua with its accessory penalties for the
death of Reynaldo Timbal which penalty entails imprisonment for at least thirty (30)
years.
(2) For the death of Jesus Bascon, the said accused, FEDERICO GENITA, JR. y
CULTURA is also sentenced to another penalty of reclusion perpetua with its
accessory penalties which penalty entails another imprisonment of at least thirty (30)
years.
Both sentences shall be served by the accused successively at the Davao Prison and
Penal Farm at Panabo, Davao del Norte.
Accused is also ordered to indemnify the Heirs of Reynaldo Timbal the sum of Fifty
Thousand (P50,000.00) pesos and another Fifty Thousand (P50,000.00) pesos for the
Heirs of Jesus Bascon plus costs of suit.
IT IS SO ORDERED.

[7]

Hence, this appeal anchored on the following assignments of error:

I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT
TO THE EXEMPTING CIRCUMSTANCE OF ACCIDENT INTERPOSED BY THE
ACCUSED-APPELLANT
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION
TO PROVE ITS ATTENDANCE ON THE ASSUMPTION THAT THE KILLING OF
THE VICTIM WAS NOT ACCIDENTAL.[8]

Appellant contends that he was performing a lawful act with due care
when the victims were killed. He was then on his way to the CAFGU station to
report for duty. He had no intention to kill the victims. He accidentally pulled
the trigger of the rifle and the bullets hit the victims. Thus, he should have
been exempted from any criminal liability. Even assuming that he is liable for
the death of the victims, he contends that the trial court erred in appreciating
the qualifying circumstance of treachery.

The Solicitor General maintains that considering the number of gunshot

wounds inflicted on the victims, the shooting could not have been an
accident. Nonetheless, the Solicitor General agrees with appellant that the
qualifying circumstance of treachery was not sufficiently proven, stressing that
the latter was drunk when he approached Reynaldo. This should have put the
victims on guard as it was established during the hearing that appellant tends
to be cantankerous and out of control when he is drunk. Also, it was not
proven that he consciously adopted the means of executing the crime.
Appellants version that he accidentally shot the two victims is
incredible. Accident is an exempting circumstance under Article 12 of the
Revised Penal Code. It must be stressed that in raising this defense, appellant
has the burden of the evidence and it was incumbent upon him to establish
that he was exempt from criminal liability. He must show with clear and
convincing proofs that: 1) he was performing a lawful act with due care, 2) the
injury caused was by a mere accident, and 3) he had no fault or intention of
causing the injury. Considering appellants evidence, it is clear that the
requisites of accident as an exempting circumstance were not proven. First,
appellants manner of carrying his M-14 rifle negates his claim of due care in
the performance of an act. Knowing that his rifle was automatic, he should
have seen to it that its safety lock was intact. Worse, he admitted that his
finger was constantly on the trigger. With the safety lock released and his
finger on the trigger, how can we conclude that he acted with due care? We
cannot accept his version that he was just following his trainers instruction to
release the safety lock while in a critical area. For one, he never presented
his trainer to corroborate his statement; and for another, he was not in a
critical area. Second,the number of wounds sustained by the victims shows
that the shooting was not merely accidental. Both victims sustained more than
one wound. While it could have been possible that the first wound sustained
by both victims was by accident, however, the subsequent wounds sustained
by them in different parts of their bodies could not have been similarly
inflicted. Andthird, appellant manifested an unmistakable intent to kill the
victims when he reloaded his rifle after his first unsuccessful attempt to kill
them. Jesus had already sought refuge by jumping into the truck when
another bullet hit his right leg. Reynaldo was already running away when he
was shot on his nape and right hand. That appellant chased the victims and
[9]

[10]

shot them several times clearly show that he had the intent to kill them. His
defense must necessarily fail.
[11]

Moreover, if it were true that someone attacked appellant, thus causing

him to accidentally pull the trigger of his rifle, then his natural reaction should
have been to defend himself.Instead, he rushed towards the
camp. Furthermore, he did not present any evidence to support his allegation
that the CAFGU was placed on alert. And not a single witness corroborated
his version of accidental shooting, an indication that it is fabricated.
The trial court found the testimonies of the prosecution witnesses
credible. We stamp our agreement to such finding. Woven in the fabric of our
jurisprudence is that the findings of the trial court are accorded not only the
highest respect, but also finality, unless some weighty circumstance has been
ignored or misunderstood but which could alter the result and could affect the
judgment to be rendered. Given the direct opportunity to observe the witness
on the stand, the trial judge was in a vantage position to assess the demeanor
of the witnesses and determine if they were telling the truth or not. Here, the
trial court keenly observed:
[12]

The defense counsel attempted to force into the mouth of the accused the answer
counsel wanted accused to respond to his questions. During the direct examination,
for instance, defense counsel propounded this question:
Atty. Dagani:
Q It appears from your testimony that while you were walking from your
house to the camp, you seemed to be prepared for fight, do you agree
with me on that?
It is obvious that this leading question was propounded to explain why the finger of
the accused was on the trigger of the weapon. The attempt of the defense counsel to
elicit the desired answer was apparently to support the theory that the accused was on
alert that evening with the safety lock of his rifle released.

Pitted against the clear, positive and impressive account narrated by the prosecution
witnesses, the claim of accidental shooting is exposed of what it is a farce, an
invention of the imagination.
Furthermore, the trial court found that the prosecution witnesses were not
motivated by any ill desire to implicate appellant with a serious charge. The
absence of motive on their part lends more credence to their testimonies.
However, we find that the trial court erred in finding that treachery exists in
the commission of the crime. 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 especially to insure its execution,
without risk to himself arising from the defense which the offended party might
make. Thus, for the crime to be qualified by treachery the following elements
must be proved: (1) the means of execution employed gave the person
attacked no opportunity to defend himself or to retaliate; and (2) the means of
execution were deliberately or consciously adopted. Treachery cannot be
presumed but must be proved by clear and convincing evidence or as
conclusively as the killing itself. Hence, where no particulars are shown as to
the manner by which the aggression was commenced or how the act which
resulted in the death of the victim began and developed, treachery can in no
way be established from mere suppositions, drawn solely from circumstances
prior to the killing. In the instant case, it appears from the record that the
attack was not so swift so as to render the victims off guarded. Contrary to the
finding of the trial court, appellant could not have managed to stealthily
approach and suddenly fire at the victims. Therefore the means in executing
the crime cannot be considered deliberate. Besides, Jesus had the chance to
jump into the truck after he was hit at the left leg. Reynaldo, on the other
hand, was able to run away and take cover, though unsuccessful. As a matter
of fact, the other laborers who were with the victims managed to evade the
volley of bullets. It cannot be said, therefore, that the victims were unprepared
to put up a defense.
[13]

[14]

Since the aggravating circumstance of treachery was not proven,

appellant can only be convicted of two separate crimes of homicide
punishable under Article 249 of the Revised Penal Code. The Solicitor

General maintains that he should be convicted of double homicide, a complex

crime punishable under Article 48 of the Revised Penal Code which provides:
ARTICLE 48. Penalty for complex crimes. When a single act constituted 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.
The instant case does not fall under the above provision. The finding of
the trial court tells why, thus:
Let it be noted, though, that herein accused killed both deceased one after the other.
As described by witness Danilo Timbal accused Genita first fired at Jesus Bascon who
was in the truck. He then shot the front tire of the truck. After reloading, he went back
to Bascon and shot him again. During this time Reynaldo Timbal was at the back of
the truck. When Reynaldo Timbal ran away, accused fired at him hitting the deceased
on the head and wounding the deceaseds right hand which covered his head while he
was running. For each death, therefore, accused shall be held criminally liable.
Appellant, therefore, must be convicted of two separate crimes of
homicide.
The penalty for homicide is reclusion temporal. In view of the absence of
the qualifying circumstance of treachery, appellant can only be convicted of
homicide punishable by reclusion temporal. There being neither mitigating
nor aggravating circumstance that attended the commission of the crime, the
imposable penalty is the medium period of reclusion temporal. Applying the
Indeterminate Sentence Law, appellant should be meted out the indeterminate
sentence of ten (10) years and one (1) day of prision mayor maximum, as
minimum, to seventeen (17) years and four (4) months of reclusion
temporal medium, as maximum.
[15]

[16]

With regard to civil liability, no proof was presented as to the actual or

moral damages. The trial court, however, ordered appellant to indemnify the
heirs of each of the victims the amount of P50,000.00, which we affirm. Unlike
the award of actual damages, the award of civil indemnity need no proof other
than the death of the victim. In addition, temperate damages may be
[17]

recovered under Article 2224 of the Civil Code, as it cannot be denied that the
heirs suffered some pecuniary loss although the exact amount was not proved
with certainty. Hence, an award of P25,000.00 by way of temperate damages
would be appropriate. The heirs of Reynaldo and Jesus are
awarded P50,000.00 each as civil indemnity andP25,000.00 as temperate
damages.
[18]

WHEREFORE, the Decision of the trial court is MODIFIED in the sense

that appellant is hereby found guilty beyond reasonable doubt of two crimes of
homicide. He is sentenced to suffer (10) years and one (1) day of prision
mayor maximum, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal medium, as maximum, for each crime of homicide.
The appellant is ordered to pay the heirs of each of the victims, Reynaldo
Timbal and Jesus Bascon, the amounts of P50,000.00 as civil indemnity for
their deaths and P25,000.00 as temperate damages.
With costs de oficio.
SO ORDERED.
G.R. No. 157718

April 26, 2005

ALVIN AMPLOYO y EBALADA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES , Respondent.
DECISION
CHICO-NAZARIO, J.:
This is a petition for review on certiorari assailing the Decision 1of the Court of Appeals which affirmed the Decision 2of
the Regional Trial Court of Olongapo City , Branch 72, and its Resolution 3denying petitioner's motion for
reconsideration.
On 21 July 1997 , petitioner was charged with violation of Section 5(b), Article III of Republic Act No. 7610, in an
Information worded as follows:
That on or about the 27th day of June, 1997, and on dates prior thereto, at Brgy. Calapandayan, in the Municipality of
Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with
lewd design, and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously,
commit acts of lascivious conduct with one Kristine Joy Mosquera, a minor of eight (8) years old, by then and there
touching, mashing and playing her breast, against her will and consent, to the damage and prejudice of the latter. 4

Upon arraignment, petitioner pleaded 'NOT GUILTY. Trial on the merits ensued thereafter. The prosecution presented
as witnesses (1) the complainant herself, Kristine Joy Mosquera; (2) complainant's mother, Gnelida Gallardo
Mosquera; and (3) Department of Social Welfare and Development (DSWD) psychologist Lucrecia Cruz. Petitioner,
on the other hand, waived his right to present evidence 5after his demurrer to evidence 6was denied by the trial
court. 7
The facts, as appreciated by the trial court, are as follows:
Kristine Joy Mosquera was eight years old on 27 June 1997 , 8having celebrated her eighth year the day before. A
grade III student, she was walking to school (which was just a short distance from her house) at around seven oclock
in the morning when she was met by petitioner who emerged from hiding from a nearby store. Petitioner and Kristine
Joy were neighbors. Petitioner approached Kristine Joy, touched her head, placed his hand on her shoulder where it
then moved down to touch her breast several times. Petitioner thereafter told Kristine Joy not to report to anybody
what he did to her.
This was not the first time that the incident happened as petitioner had done this several times in the past, even when
Kristine Joy was still in Grade II. However, it was only during this last incident that Kristine Joy finally told somebody '
her grandmother, who immediately talked to Gnelida Mosquera, Kristine Joy's mother.
Mrs. Mosquera conferred with Kristine Joy who said that petitioner would sometimes even insert his hand under her
shirt to caress her breast. Mother and child then reported the matter to the barangay. From the barangay, the case
was referred to the DSWD then to the Police Department of Subic, Zambales.
On 07 November 1997, Kristine Joy was seen by a psychologist, witness Lucrecia Cruz, who reported that Kristine
Joy was a victim of sexual abuse and was showing unusual behavior as a result thereof. Among other things, Ms.
Cruz detected in the eight-year old child feelings of insecurity, anger, anxiety and depression. Guilt feelings were also
noted. All in all, Kristine Joy appeared on the surface to be a child with normal behavior despite the experience, but
on a deeper level, she developed a fear of going to school as petitioner might again be hiding in the store waiting for
her. She was deeply bothered during the interview and even uttered ' Nahihiya ako sa mga magulang ko at uncle ko
baka tuksuhin akong bobo na hindi ko agad sinabi.
Kristine Joy continued going to school, but this time accompanied always by an adult relative.
On 22 September 1999 , the trial court rendered its decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing considerations, the Court finds the accused Alvin Amployo GUILTY beyond
reasonable doubt of the crime of Child Abuse defined under Section 5 (b) of Republic Act 7610 and hereby sentences
him to Reclusion Temporal in its medium period or FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY
TO SEVENTEEN (17) YEARS and to pay the costs. 9
The Court of Appeals, as adverted to earlier, affirmed the Decision of the trial court by dismissing petitioner's appeal
for lack of merit. Upon motion for reconsideration, however, the Court of Appeals modified its ruling relative to the
penalty imposed, thus:
WHEREFORE, the motion for reconsideration is DENIED. However, the penalty is MODIFIED such that accusedappellant is sentenced to imprisonment of twelve (12) years 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. 10
Hence, the instant petition, the following issues having been presented for resolution:
I.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING HEREIN

PETITIONER OF ACTS OF LASCIVIOUSNESS IN RELATION TO SEC. (5) ARTICLE III OF RA NO. 7610
DESPITE THAT THE FACTUAL MILIEU NEGATES THE SAME
II.
WHETHER THE ALLEGED ACT OF HEREIN PETITIONER CONSTITUTES ACTS OF LASCIVIOUSNESS
AS PENALIZED UNDER SEC (5) ARTICLE III OF RA NO. 7610
The first issue basically questions the sufficiency of the evidence adduced to prove acts of lasciviousness under
Article 336 of the Revised Penal Code (RPC). According to petitioner, the prosecution failed to prove beyond
reasonable doubt all the elements of said crime, particularly the element of lewd design.
On the second issue, petitioner contends that even assuming that the acts imputed to him amount to lascivious
conduct, the resultant crime is only acts of lasciviousness under Article 336 of the RPC and not child abuse under
Section 5(b) of Rep. Act No. 7610 as the elements thereof have not been proved.
Rep. Act No. 7610, the 'Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act,
defines sexual abuse of children and prescribes the penalty therefor in its Article III, Section 5:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse
or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following;
(a) . . .
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct as the case
may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period; . . .
Thus, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious
conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must
be met in addition to the requisites for sexual abuse under Section 5 of Rep. Act No. 7610.
First Issue:
Article 336 of the RPC on Acts of Lasciviousness has for its elements the following:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex. 11
The presence of the second element is not in dispute, that is, Kristine Joy was below 12 years old on the material
date set in the information. It is the presence of the first element which petitioner challenges, claiming that lewd
design has not been proved beyond reasonable doubt.
The term 'lewd is commonly defined as something indecent or obscene; 12it is characterized by or intended to excite
crude sexual desire. 13That an accused is entertaining a lewd or unchaste design is necessarily a mental process the
existence of which can be inferred by overt acts carrying out such intention, i.e., by conduct that can only be
interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts
themselves and the environmental circumstances. 14What is or what is not lewd conduct, by its very nature, cannot be
pigeonholed into a precise definition. As early as U.S. v. Gomez 15we had already lamented that '
It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amenable to
the provisions of article 439 16of the Penal Code. What constitutes lewd or lascivious conduct must be determined
from the circumstances of each case. It may be quite easy to determine in a particular case that certain acts are lewd
and lascivious, and it may be extremely difficult in another case to say just where the line of demarcation lies between
such conduct and the amorous advances of an ardent lover.
In herein case, petitioner argues that lewd design cannot be inferred from his conduct firstly because the alleged act
occurred at around seven oclock in the morning, in a street very near the school where people abound, thus, he could
not have been prompted by lewd design as his hand merely slipped and accidentally touched Kristine Joy's breast.
Furthermore, he could not have been motivated by lewd design as the breast of an eight year old is still very much
undeveloped, which means to say there was nothing to entice him in the first place. Finally, assuming that he indeed
intentionally touch Kristine Joy's breast, it was merely to satisfy a silly whim following a Court of Appeals ruling. 17
Petitioner's arguments crumble under the weight of overwhelming evidence against him. Well-settled is the rule that
factual findings of the trial court, particularly when affirmed by the Court of Appeals, are binding on this Court barring
arbitrariness and oversight of some fact or circumstance of weight and substance 18for which there are none in this
case. Besides, Kristine Joy's testimony is indeed worthy of full faith and credence as there is no proof that she was
motivated to falsely accuse petitioner. Thus, we stress anew that no young and decent girl like Kristine Joy would
fabricate a story of sexual abuse, subject herself to medical examination and undergo public trial, with concomitant
ridicule and humiliation, if she is not impelled by a sincere desire to put behind bars the person who assaulted her. 19
Clearly then, petitioner cannot take refuge in his version of the story as he has conveniently left out details which
indubitably prove the presence of lewd design. It would have been easy to entertain the possibility that what
happened was merely an accident if it only happened once. Such is not the case, however, as the very same
petitioner did the very same act to the very same victim in the past. 20Moreover, the incident could never be labeled as
accidental as petitioner's hand did not just slip from Kristine Joy's shoulder to her breast as there were times when he
would touch her breast from under her shirt. 21Finally, the theory that what happened was accidental is belied by
petitioner having threatened Kristine Joy to keep silent and not tell on him. 22
As to petitioner's argument that human experience negates the presence of lewd design as Kristine Joy had no
developed breasts with which to entice him, suffice it to say that on the contrary, human experience has taught us
painfully well that sexual misconduct defies categorization and what might be an unusual, unlikely or impossible
sexual conduct for most might very well be the norm for some.
Finally, we dismiss for being atrocious the proposition that petitioner was not compelled by lewd design as he was
merely satisfying a 'silly whim. Terrifying an eight-year old school girl, taking advantage of her tender age with his

sheer size, invading her privacy and intimidating her into silence, in our book, can never be in satisfaction of a mere
silly whim.
Second Issue:
Petitioner contends that assuming he is guilty of lascivious conduct, still he can only be convicted under the RPC
since his conduct does not amount to sexual abuse as defined under Section 5(b), Article III of Rep. Act No. 7610.
The elements of sexual abuse under Section 5, Article III of Rep. Act No. 7610 that must be proven in addition to the
elements of acts of lasciviousness are the following:
(1) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age. 23
The first element obtains. Section 32, Article XIII of the Implementing Rules and Regulations of Rep. Act No. 7610
defines lascivious conduct 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. (Emphasis supplied)
Undoubtedly, based on the foregoing definition, petitioner's act of purposely touching Kristine Joy's breasts
(sometimes under her shirt) amounts to lascivious conduct.
The second element is likewise present. As we observed in People v. Larin, 24Section 5 of Rep. Act No. 7610 does not
merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious
conduct through coercion or intimidation. As case law has it, intimidation need not necessarily be irresistible. 25It is
sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the
offended party. 26This is especially true in the case of young, innocent and immature girls who could not be expected
to act with equanimity of disposition and with nerves of steel. 27Young girls cannot be expected to act like adults under
the same circumstances or to have the courage and intelligence to disregard the threat. 28
1wphi1

In this case, it is not hard to imagine eight-year old Kristine Joy being intimidated by her neighbor, a full grown adult
male, who constantly accosted her while she was alone and on her way to school and who consistently ordered her
not to report what he had been doing to her. That this child was cowed into silence and submission and was
traumatized in the process is reflected in the psychological report 29made by the DSWD psychologist, Lucrecia Cruz,
the latter stating that:
BEHAVIOR OBSERVATION:
Subject appeared kemp, fair complexion, attractive, wearing white T-shirt and maong short pants. She [was]
observed to be cooperative, attentive and expressive.
In an interview, subject disclosed that since she was in Grade II a certain Alvin Amployo a.k.a. Tikboy who (sic)
sexually molested her. She narrated that her private part was fondled for many times. The incident happened every
time she went to school in the morning, noontime and in the afternoon. The abuser hide (sic) along the store way to
school. Then she was threatened not to reveal to anybody especially to her parents.

TEST RESULT AND INTERPRETATION:

Test result revealed that subject manifest anger as she quoted 'gusto ko makulong si Tikboy ng matagal. Indicate
strong fear, anxiety, poor concentration, nightmare, shame and auditory hallucination. Implies low self-esteem as she
quoted ' madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka tuksuhin akong bobo na hindi ko
agad sinabi.
Indicate that subject disturbed towards past as she quoted ' ang masidhing ala-ala ng aking kamusmusan ay yong
panghihipo ni Tikboy. Thus, subject aiming that Tikboy be put to jail.
CASE SUMMARY AND RECOMMENDATION:
In summary, Kristine Joy Mosquera is a victim of sexual molestation committed by a certain Alvin Amployo or Tikboy.
Subject was greatly affected psychologically and emotionally. Thus, subject manifest from (sic) anger, anxiety, poor
concentration, nightmare, shame, auditory hallucination and low self-esteem. She is deeply depressed and suffer
from traumatic sexualization. From psychotherapeutic point of view subject needs constant counseling to overcome
her presented (sic) crisis. To assist the subject to ventilate her ambivalent feeling. To restore moral values, improve
her self-esteem and enhance her emotional and social functioning.
As to the third element, there is no dispute that Kristine Joy is a minor, as she was only eight years old at the time of
the incident in question.
Finally, we note that no award for moral damages was made by both the trial court and the Court of Appeals despite
the fact that the mental anguish suffered by Kristine Joy on account of her harrowing experience is spread all over the
records of the case and has been well documented by the psychologist who examined her as reflected in her report
quoted above. At the risk of being repetitive, proof of Kristine Joy's mental anguish, wounded feelings and social
humiliation finds an express outlet in her words: ' madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko
baka tuksuhin akong bobo na hindi ko agad sinabi and ' ang masidhing ala-ala ng aking kamusmusan ay yong
panghihipo ni Tikboy. We therefore modify the ruling of the Court of Appeals by awarding moral damages to Kristine
Joy in the amount of Twenty Thousand Pesos (P20,000.00) pursuant to Article 2219 of the Civil Code. 30
Additionally, we find relevant to discuss here the case of People v. Solmoro 31wherein we declared that upon a finding
of guilt of the accused for acts of lasciviousness, the amount of P30,000.00 as moral damages may be further
awarded to the victim in the same way that moral damages are awarded to victims of rape even without need of proof
because it is assumed that they suffered moral injury. Considering that the crime of acts of lasciviousness
or abusos dishonestos is necessarily included in rape 32and both cases involve sexual assault albeit in different
degrees, the rationale for foregoing with proof of moral damages in rape cases applies with equal force to crimes of
acts of lasciviousness, the rationale being:
One other cognate development in the case law on rape is applicable to the present disposition. The Court has also
resolved that in crimes of rape, such as that under consideration, moral damages may additionally be awarded to the
victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of
the basis thereof as has heretofore been the practice. Indeed, the conventional requirement of allegata et probate in
civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil
aspect included therein, since no appropriate pleadings are filed wherein such allegations can be made.
Corollarily, the fact that complainant has suffered the trauma of mental, physical and psychological sufferings which
constitute the bases for moral damages are too obvious to still require the recital thereof at the trial by the victim,
since the Court itself even assumes and acknowledges such agony on her part as a gauge of her credibility. What
exists by necessary implication as being ineludibly present in the case need not go through the superfluity of still
being proved through a testimonial charade. 33

It does not end there. In People v. Abadies, 34and with respect specifically to lascivious conduct amounting to child
abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct in
addition to the award of moral damages on the justification that '
It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment.
Nevertheless, Section 31(f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to
the discretion of the court, provided that the same is to be administered as a cash fund by the Department of Social
Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his
family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the
Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states
parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in
an environment which fosters their self-respect and human dignity.
With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos (P15,000.00) on petitioner.
WHEREFORE, premises considered, the Resolution of the Court of Appeals modifying the Decision of the Regional
Trial Court of Olongapo City, Branch 72, finding accused-petitioner ALVIN AMPLOYO y EBALADA alias 'TIKBOY
guilty beyond reasonable doubt of violation of Republic Act No. 7610, and sentencing him to suffer the penalty of
twelve (12) years 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 is AFFIRMED with the MODIFICATION that petitioner is hereby ordered
to pay a fine of Fifteen Thousand Pesos (P15,000.00) and moral damages in the amount of Twenty Thousand Pesos
(P20,000.00). No costs.
SO ORDERED.
G.R. No. 172695

June 29, 2007

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ISAIAS CASTILLO y COMPLETO, Appellant.
DECISION
YNARES-SANTIAGO, J.:
In an Information1 dated January 19, 1994, appellant Isaias Castillo y Completo was charged with the crime of
parricide, committed as follows:
That on or about November 5, 1993, in the Municipality of Cabuyao, Province of Laguna and within the jurisdiction of
this Honorable Court, accused Isaias Castillo y Completo, while conveniently armed with illegally possessed sling and
deadly arrow, with intent to kill his wife Consorcia Antiporta with whom he was united in lawful wedlock did then and
there wilfully, unlawfully and feloniously shot and hit his wife Consorcia Antiporta with the aforesaid deadly arrow,
hitting the latter on the right side of her neck causing the laceration of the jugular vein which caused her
instantaneous death.
CONTRARY TO LAW.2
The case was docketed as Criminal Case No. 8590-B and raffled to Branch 24 of the Regional Trial Court of Bian,
Laguna.
Appellant entered a plea of not guilty when arraigned on April 15, 1994. Trial thereafter ensued.

The facts as found by the trial court are as follows:

There is no dispute that the victim, Consorcia Antiporta Castillo, died violently in the evening of November 5, 1993.
The cause of her death was massive hemorrhage due to "laceration of the jugular vein of her neck". According to Dr.
Solita P. Plastina, Municipal Health Officer of Calamba, Laguna, who conducted the autopsy on the victims body, the
fatal weapon could have been a "pointed instrument like a nail". There is no dispute likewise that the accused shot
with a dart from a rubber sling, his wife hitting her at the neck and causing her instantaneous death. The letters
written by the accused from his detention cell addressed to his mother-in-law, to his father-in-law, and lastly, the
victims sister, speak so eloquently of someone who accepts the fault for the early demise of the victim. Asking
forgiveness from the close relatives of the victim is a clear admission of authorship of the fatal act.
In the same letters, the accused raised as an issue his lack of intent to do the fatal harm to his wife. This is the same
issue to be resolved by this Court. Whether or not the fatal injury sustained by the victim was accidental.
xxxx
Guillermo Antiporta, father of the victim, narrated in Court that in the evening of November 5, 1993, between 9:00
oclock to 10:00 oclock, the accused came home drunk and was in an angry mood. The accused kicked the door and
table, and then threw the electric fan away. He was prevailed upon by Guillermo to take a rest. But the accused did
not heed the advice of Guillermo as he took instead his sling and arrow from the house ceiling where he was keeping
them. Dejectedly, Guillermo transferred to the adjacent house of her x x x daughter [in-law] Yolanda. From there,
Guillermo heard the victim crying and, afterwards, shouting at the accused. Guillermo concernedly ordered Yolanda
to see what was happening inside the house of Consorcia, and Yolanda obeyed. On her way, Yolanda met the
accused carrying the bloodied body of Consorcia. Guillermo, the accused, and Yolanda brought Consorcia to the
hospital but to no avail.
From all the circumstances gathered, the infliction of the fatal injury upon Consorcia was preceded by a quarrel
between her and the accused. This spat negated the accuseds version that he was practicing the use of the weapon
when Consorcia was hit by the arrow, and lends credence to the prosecutions contention that the shooting was
intentional.
x x x To sustain the accuseds assertion that he was practicing the use of said weapon at the time of the incident is
patently absurd. The defense even failed to rebut Guillermo Antiportas testimony that the accused was keeping said
sling and arrow inside his house.
It might be true that the accused was one of those who rushed the victim to the hospital and while on the way, he
sounded remorseful. But Guillermo Antiporta further testified that while the victim was being attended to by the
medical personnel of said hospital, the accused stayed outside the hospital premises, then he disappeared. He was
later on apprehended by police authorities while hiding inside the comfort room of a premises in an adjoining
barangay. The accuseds omission to surrender himself to the authorities is a clear indication of guilt.3
After several hearings, the trial court rendered on October 5, 1998, a decision,4 the dispositive portion of which reads:
WHEREFORE, this Court hereby finds accused ISAIAS CASTILLO Y COMPLETO GUILTY beyond reasonable doubt
of the crime of PARRICIDE and hereby sentences him to a penalty of RECLUSION PERPETUA and to indemnify the
heirs of the victim in the sum of P50,000.00, as moral damages.
SO ORDERED.5
Appellant filed an appeal with the Court of Appeals, alleging that the prosecution failed to sufficiently establish his
guilt beyond reasonable doubt. However, in a Decision6 dated February 28, 2005, the Court of Appeals denied
appellants appeal and affirmed with modification the decision of the trial court, to wit:

WHEREFORE, premises considered, the decision dated October 5, 1998 of the Regional Trial Court, Branch 24 of
Bian, Laguna is hereby AFFIRMED with the modification that accused-appellant Isaias Castillo y Completo is further
ordered to indemnify the heirs of the victim the amount of P50,000.00 as civil indemnity.
SO ORDERED.7
Appellant filed a motion for reconsideration but it was denied in a Resolution dated June 16, 2005.
Hence, this appeal.
Appellant alleged that the pieces of circumstantial evidence on which his conviction was based did not sufficiently
establish his guilt beyond reasonable doubt; that the prosecution failed to prove his motive in killing his wife; or that
they had a quarrel immediately prior to the incident.
Appellant likewise claimed that it was not established that he was the one who shot his wife with a deadly arrow
considering that at the time of the incident, he and his drinking buddies were all engaged in target shooting using the
sling and arrow. Hence, he surmised that any one of them could have shot the victim. At any rate, even assuming that
he was the one who killed his wife, the same was accidental and not intentional.
Furthermore, he claimed that his presence at the crime scene did not establish his guilt beyond reasonable doubt. His
arrest while hiding inside a toilet in the adjoining barangay, while his wife was being treated in the hospital, likewise
does not prove his complicity since the prosecution did not prove that he deliberately hid inside the toilet.
Finally, the letters he sent to his father-in-law, mother-in-law and sister-in-law where he asked for forgiveness should
not be considered as admission of guilt.
The petition lacks merit.
Direct evidence of the commission of the offense is not the only matrix wherefrom a trial court may draw its
conclusions and finding of guilt. Conviction can be had on the basis of circumstantial evidence provided that: (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. 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.8Proof beyond reasonable
doubt does not mean the degree of proof excluding the possibility of error and producing absolute certainty. Only
moral certainty or "that degree of proof which produces conviction in an unprejudiced mind" is required.9
In the instant case, all the essential requisites for circumstantial evidence to sustain a conviction, are present. As
correctly found by the Court of Appeals, the following pieces of circumstantial evidence indubitably established that
appellant was the perpetrator of the crime, to wit:
1. Consortia would often confide to her sister Leticia about the violent behavior of her (Consortia) husband, herein
accused-appellant. And even if Consortia would not tell Leticia about the beatings, the latter would see her face with
black eyes as evident proofs of maltreatment.
2. On the night of the incident, accused-appellant arrived at their house drunk and displaying violent behavior, kicking
the door and table.
3. Accused-appellant was last seen holding and practicing his sling and arrow.

4. Immediately afterwards, Consortia was heard crying and shouting.

5. Accused-appellant was thereafter seen carrying Consortia, bloodied and unconscious, to be brought to the hospital
where she later died.
6. The autopsy findings indicate that Consortia sustained a punctured wound in the neck which fatally lacerated her
jugular vein. The cause of the wound was a pointed object.
7. While detained, accused-appellant wrote letters to the parents and sister of Consortia asking for forgiveness.
Also notable is accused-appellants behavior immediately after the incident. He disappeared and did not enter the
clinic where Consortia was rushed for treatment. And when Consortias sister later sought police assistance in
searching for accused-appellant, the latter was found by the police hiding inside a toilet at a nearby barangay.10
There is no merit in appellants contention that the prosecution failed to prove motive in killing his wife. Intent to kill
and not motive is the essential element of the offense on which his conviction rests.11 Evidence to prove intent to kill
in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and
number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the
killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the
victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.12
In the instant case, the following circumstances satisfactorily established appellants intent to kill his wife:
First: The killing was immediately preceded by a quarrel between the appellant and his wife. Leticia, the victims
sister, testified that the deceased suffered from the violent behavior of the appellant who would often lay hand on the
victim during their marital squabbles.
Guillermo, appellants father-in-law, testified that on the night of the incident, appellant arrived in their conjugal abode
drunk and in a foul mood. He kicked the door and table and threw away the electric fan. Guillermo tried to prevail
upon appellant but to no avail. Instead, appellant got his sling and arrow which he kept near the ceiling.
Guillermo left appellants house and went to the house of his daughter-in-law, Yolanda, located about four meters
away; but he could still hear the victim and appellant arguing and shouting at each other. After a while, Guillermo
requested Yolanda to look on her sister-in-law. On her way, Yolanda met the appellant carrying Consorcia soaked in
blood.
Second: It has always been said that criminal cases are primarily about human nature.13 In the instant case, appellant
disappeared after his wounded wife was rushed to the hospital. This is indeed contrary to human nature. A husband
is expected to lend comfort to his dying wife up to her last breath. In this case, however, appellant took flight. It is
well-established that the flight of an accused is competent evidence to indicate his guilt, and flight, when unexplained,
as in this case, is a circumstance from which an inference of guilt may be drawn.14
Appellant alleged that his arrest by police authorities inside a toilet at the adjoining barangay is not an indication of
guilt because the prosecution failed to prove that he deliberately hid in order to evade being arrested.15
The contention lacks merit.
As above-discussed, it is contrary to human nature for a husband to leave his dying wife, more so if his absence is
unexplained. Appellant did not offer any explanation for his flight. In appellants brief, he claimed that in "all
probability, it might have happened that he (appellant) was merely answering the call of nature at the precise time
when he was arrested."16 However, we find it is highly illogical for appellant to go as far as the adjoining barangay to

answer the call of nature especially since he could do so inside the premises of the hospital. Moreover, the allegation
that he was fearful of reprisal coming from the victims relatives17 is contrary to his claim of innocence.
Third: The location of the wound and its extent likewise proved appellants intent to kill the victim. The autopsy report
revealed that the victim sustained a punctured wound in the neck, a vital organ, which fatally lacerated her jugular
vein causing massive hemorrhage. The extent of the physical injury inflicted on the deceased manifests appellants
intention to extinguish life.18
Fourth: As regards appellants act of carrying the body of his wounded wife and bringing her to the hospital, the same
does not manifest innocence. It is merely an indication of an act of repentance or contrition on the part of appellant.19
In fine, all these circumstances prove appellants intent to harm his wife.
There is likewise no merit in appellants contention that he was not the one who shot the deadly arrow because at the
time of the incident, he and his drinking buddies were all playing and practicing target shooting with the use of the
sling and arrow.
Prosecution witness Guillermo Antiporta categorically testified that appellant was alone with his wife inside their
house when the incident happened. This completely discounts the possibility that other than appellant, there could be
another person or persons who could have perpetrated the crime. There is no paucity of evidence because the time
when Guillermo left the appellant and the victim up to the time Yolanda saw him carrying his wife, were all accounted
for. Moreover, the testimony of defense witness Galang supports the prosecutions contention that appellant was
alone with his wife at the time of the incident. As noted by the Court of Appeals:
Defense witness, Jose Nelson Galang, testified that he left his drinking buddies and headed home at about 9:00 p.m.,
as in fact he was already in bed at about 10:00 p.m. when he saw that Consortia was being rushed to the hospital.
Instead of weakening the evidence for the prosecution, Galangs testimony even supports the prosecutions version
that between 9:00 p.m. and 10:00 p.m. of that fateful night, accused-appellant arrived at their house drunk,
presumably going home from that drinking session with his friends. x x x20
There is likewise no merit in appellants contention that assuming he was the one who killed his wife, the same was
accidental and not intentional. The exempting circumstance of accident is not applicable in the instant case. Article
12, par. 4 of the Revised Penal Code, provides:
ART. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability:
xxxx
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.
"Accident" is an affirmative defense which the accused is burdened to prove, with clear and convincing
evidence.21 The defense miserably failed to discharge its burden of proof. The essential requisites for 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;

4. Without fault or intention of causing it.22

By no stretch of imagination could playing with or using a deadly sling and arrow be considered as performing a
"lawful act." Thus, on this ground alone, appellants defense of accident must be struck down because he was
performing an unlawful act during the incident. As correctly found by the trial court:
Furthermore, mere possession of sling and arrow is punishable under the law. In penalizing the act, the legislator took
into consideration that the deadly weapon was used for no legal purpose, but to inflict injury, mostly fatal, upon other
persons. Let it be stressed that this crude weapon can not attain the standards as an instrument for archery
competitions. To sustain the accuseds assertion that he was practicing the use of said weapon at the time of the
incident is patently absurd. The defense even failed to rebut Guillermo Antiportas testimony that the accused was
keeping said sling and arrow inside his house.23
Furthermore, by claiming that the killing was by accident, appellant has the burden of proof of establishing the
presence of any circumstance which may relieve him of responsibility, and to prove justification he must rely on the
strength of his own evidence and not on the weakness of the prosecution, for even if this be weak, it can not be
disbelieved after the accused has admitted the killing.24 Other than his claim that the killing was accidental, appellant
failed to adduce any evidence to prove the same.
Likewise, we cannot lend credence to appellants contention that the letters he wrote to his parents-in-law and sisterin-law, where he asked for forgiveness, should not be considered as an implied admission of guilt. He claimed that he
wrote the letters in order to explain that what happened was an accident and that he was to be blamed for it because
he allowed his drinking buddies to play with the sling and arrow.
Settled is the rule that in criminal cases, except those involving quasi-offenses or those allowed by law to be settled
through mutual concessions, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt. Evidently, no one would ask for forgiveness unless he had committed some wrong and a plea for
forgiveness may be considered as analogous to an attempt to compromise.25 Under the present circumstances,
appellants plea for forgiveness should be received as an implied admission of guilt. Besides, contrary to appellants
assertion, the killing of Consorcia was deliberate, and not by accident.
Finally, we find no cogent reason to review much less depart now from the findings of the lower court as affirmed by
the Court of Appeals. When the trial courts factual findings have been affirmed by the appellate court, said findings
are generally conclusive and binding upon this Court, for it is not our function to analyze and weigh the parties
evidence all over again except when there is serious ground to believe a possible miscarriage of justice would
thereby result. Our task in an appeal via certiorari is limited, as a jurisdictional matter, to reviewing errors of law that
might have been committed by the Court of Appeals.26
Parricide under Article 246 of the Revised Penal Code is punishable by reclusion perpetua to death. The trial court
and the Court of Appeals correctly imposed the penalty of reclusion perpetua. Likewise, civil indemnity in the amount
of P50,000.00 and moral damages in the amount of P50,000.00 were properly awarded by the courts below.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated February 28, 2005 which affirmed
with modification the judgment of the Regional Trial Court of Bian, Laguna, Branch 24, finding appellant Isaias
Castillo y Completo guilty of parricide and sentencing him to suffer the penalty of reclusion perpetua and ordering him
to pay the heirs of his victim P50,000.00 as moral damages and P50,000.00 as civil indemnity, is AFFIRMED.
With costs.
SO ORDERED.
G.R. No. 186128

June 23, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
SUSAN LATOSA y CHICO, Accused-Appellant.
DECISION
VILLARAMA, JR., J.:
This is an appeal from the Decision1 dated April 23, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02192
which affirmed the April 12, 2006 Decision2 of the Regional Trial Court (RTC) of Pasig City, Branch 159, convicting
appellant Susan Latosa y Chico of parricide.
Appellant was charged with parricide in an information3 which reads,
That, on or about the 5th of February 2002, in the Municipality of Taguig, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then the legitimate wife of one Felixberto
Latosa y Jaudalso, armed with and using an unlicensed gun, with intent to kill, did then and there willfully, unlawfully
and feloniously shoot her husband, Felixberto Latosa y Jaudalso, hitting him on the head, thereby causing the latter
to sustain gunshot wound which directly caused his death.
CONTRARY TO LAW.
Upon arraignment on June 25, 2002, appellant, with the assistance of counsel, pleaded not guilty. Trial thereafter
ensued.
The prosecutions evidence established the following version:
On February 5, 2002, at around 2:00 in the afternoon, appellant and her husband Major Felixberto Latosa, Sr.
(Felixberto) together with two (2) of their children, Sassymae Latosa (Sassymae) and Michael Latosa (Michael), were
at their house in Fort Bonifacio. Felixberto, Sr. was then asleep4 when Sassymae saw appellant take Felixberto Sr.s
gun from the cabinet and leave. She asked her mother where she was going and if she could come along, but
appellant refused.5
Moments later, appellant returned and told Sassymae to buy ice cream at the commissary. Appellant gave her money
and asked her to leave.6 After Sassymae left, appellant instructed Michael to follow his sister, but he refused as he
was hungry. Appellant insisted and further told Michael not to make any noise as his father was sleeping.
Nevertheless, appellant went back inside the house and turned up the volume of the television and the radio to
full.7 Shortly after that, she came out again and gave Michael some money to buy food at the grocery.
Instead of buying food, Michael bought ice candy and returned to the barracks located at the back of their house.
Michael thereupon saw his friend Mac-Mac Nisperos who told him that he saw appellant running away from their
house. Michael did not pay any attention to his friends comment, and simply continued eating his ice candy.
Moments later, a certain Sgt. Ramos arrived and asked if something had happened in their house. Michael replied in
the negative then entered their house. At that point, he saw his father lying on the bed with a hole in the left portion of
his head and a gun at his left hand.
Michael immediately went outside and informed Sgt. Ramos about what happened. Sgt. Ramos told him that
appellant had reported the shooting incident to the Provost Marshall office.8 Then, Sassymae arrived and saw her
father with a bullet wound on his head and a gun near his left hand.9

Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the victim, also testified that sometime in
December 2001, their father told him and his siblings over dinner about a threat to their lives by a certain Efren Sta.
Inez.10
Appellant, testifying on her own behalf, on the other hand claimed that when Felixberto, Sr. woke up, he asked her to
get his service pistol from the cabinet adjacent to their bed. As she was handing the pistol to him it suddenly fired,
hitting Felixberto, Sr. who was still lying down. Shocked, she ran quickly to Felixberto, Sr.s office and asked for
help.11 She also claimed that when Felixberto, Sr. asked her for his gun, she was on her way out of the house to
follow her children who left for the market on an errand she had earlier given Sassymae. She claimed that she
wanted to drive for them because it was hot. She ran after them but after a few minutes, when she realized that she
did not have with her the keys to their jeep, she went back to their house. Felixberto, Sr. then asked again for his gun,
and it was then that it fired as she was handing it to him.12
Appellant further described herself as a good mother and a good provider for their six (6) children whom she raised
by herself while Felixberto, Sr. was in Mindanao. She claimed that they testified against her because they were
manipulated by her brother-in-law, Francisco Latosa.13 She denied that Sassymae saw her holding a gun when she
asked her to buy ice cream, alleging that Michael and Sassymae saw her holding the gun only when she placed it
inside the cabinet before they proceeded to the hospital.14
Appellant also denied her childrens testimony15 that she was having an affair with a certain Col. Efren Sta. Inez (Sta.
Inez), a policeman. She claimed that she first met Sta. Inez when her youngest brother was killed on June 6, 2001 by
unidentified men. Sta. Inez was the one (1) who assisted her. She was alone at that time since her husband informed
her that he could not leave his post in Mindanao for he had to rush some papers. She allegedly only saw Sta. Inez
twice but admitted that Sta. Inez went to the precinct when he learned of the shooting incident. 16 She also denied that
she was terminated from her job at the Philippine Public Safety College due to immorality for having said affair. She
claimed that she was terminated because she had incurred numerous absences from her work as she grieved the
death of her youngest brother and had lost interest in her work after his death.17
The RTC found appellant guilty beyond reasonable doubt for killing her husband Felixberto, Sr. The dispositive
portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds the accused SUSAN LATOSA Y CHICO "GUILTY" beyond
reasonable doubt of the crime of parricide under Art. 246 of the Revised Penal Code as amended by RA 7659 in rel.
to Sec. 1[,] 3rd par. PD 1866 as amended by RA 8294 and Sec. 5, RA 8294 and hereby sentences the said accused
to suffer the penalty of reclusion perpetua and to further indemnify the victim the amount of P50,000 as civil
indemnity[,] P50,000 as moral damages and P25,000 as exemplary damages.
SO ORDERED.18
The RTC held that the claim of accidental shooting was inconsistent with the evidence considering the location of the
gunshot wound, which was at the left temple of Felixberto, Sr., and the fact that the gun was found near Felixberto,
Sr.s left hand despite his being right-handed. The trial court found that appellant planned the killing by asking her two
(2) children to leave the house and, after the shooting, placing the gun near the victims left hand to suggest that the
death was suicide. But appellant overlooked the fact that Felixberto, Sr. was right-handed. The trial court noted that
despite the grueling cross-examination of the defense counsel, the Latosa children never wavered in their testimonies
about what they knew regarding the circumstances surrounding the shooting incident. Their testimonies bore the
hallmarks of truth as they were consistent on material points. The RTC found it inconceivable that the children would
testify against their own mother or concoct a story of parricide unless they were impelled by their passion to condemn
an injustice done to their father.19
The RTC, in finding appellant guilty, considered the following circumstantial evidence established by the prosecution:
(1) shortly before the shooting, appellant asked her two (2) children to do errands for her which were not usually
asked of them; (2) at the time of the shooting, only the appellant and Felixberto, Sr. were in the house; (3) appellant

was seen running away from the house immediately after the shooting; (4) when Michael went inside their house, he
found his father with a hole in the head and a gun in his left hand; (5) the medico-legal report showed that the cause
of death was intracranial hemorrhage due to the gunshot wound on the head with the point of entry at the left
temporal region; (6) the Firearms Identification Report concluded that appellant fired two (2) shots; (7) Felixberto, Sr.
was right-handed and the gun was found near his left hand; (8) Sassymae testified that she heard Sta. Inez tell
appellant "bakit mo inamin. Sana pinahawak mo kay Major iyong baril saka mo pinutok"; (9) appellants children
testified that they were informed by Felixberto, Sr. regarding the threat of appellants paramour, Sta. Inez, to the
whole family; and (10) Francisco Latosa presented a memorandum showing that appellant was terminated from her
teaching job by reason of immorality.20
On appeal, the CA upheld the decision of the RTC. The CA held that since appellant admitted having killed her
husband albeit allegedly by accident, she has the burden of proving the presence of the exempting circumstance of
accident to relieve herself of criminal responsibility. She must rely on the strength of her own evidence and not on the
weakness of the prosecution, for even if this be weak, it cannot be disbelieved after the appellant has admitted the
killing.21
The CA, however, found appellants version of accidental shooting not credible. Citing the case of People v.
Reyes,22 the CA held that appellants claim of accidental shooting was negated by the following facts: (1) a revolver is
not prone to accidental firing as pressure on the trigger is necessary to make the gun fire, cocked or uncocked; and
(2) when handing a gun to a person, the barrel or muzzle is never pointed to that person. In this case, appellant held
the gun in one (1) hand and extended it towards her husband who was still lying in bed. Assuming that appellant was
not aware of the basic firearm safety rule that the firearms muzzle is never pointed to a person, she failed to explain
why the gun would accidentally fire, when it should not have fired unless there was pressure on the trigger. The
location of Felixberto, Sr.s wound also showed that the shooting was not accidental. Appellant did not dispute that
Felixberto, Sr. was lying down during the shooting and that after the incident, the gun was found near his left hand.
The CA found that it was contrary to human nature that a newly awakened military man would suddenly ask his wife,
who was busy doing other things, to bring his firearm, and patiently wait for her to come back to their house, when the
gun was just inside an adjacent cabinet only two (2) meters away from his bed.23
The dispositive portion of the CA decision reads as follows:
WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Pasig City, Branch 159, in
Criminal Case No. 122621-H finding SUSAN LATOSA y CHICO guilty beyond reasonable doubt of the crime of
parricide under Article 246 of the Revised Penal Code and sentencing her to suffer the penalty of reclusion perpetua
and ordering her to pay the heirs of Felixberto Latosa the amount of P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P25,000.00 as exemplary damages is AFFIRMED.
SO ORDERED.24
Undaunted, appellant filed a Notice of Appeal on May 12, 2008.25
Appellant argues that the circumstantial evidence presented by the prosecution was insufficient to prove that she
intentionally killed her husband. She insists that the gun fired accidentally while she was giving it to Felixberto, Sr.
Since she had no experience in handling firearms, she was not able to foresee that it would fire accidentally and hit
her husband. After her husband was hit, she immediately rushed to his office and asked for assistance.26
The only issue the Court has to resolve in this case is whether the exempting circumstance of accident was
established by appellant.
The basis of appellants defense of accidental shooting is Article 12, paragraph 4 of the Revised Penal Code, as
amended, which provides:

ART. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability:
xxxx
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.
Thus, it was incumbent upon appellant to prove with clear and convincing evidence, the following essential requisites
for the exempting circumstance of accident, to wit:
1. She was performing a lawful act;
2. With due care;
3. She caused the injury to her husband by mere accident;
4. Without fault or intention of causing it.27
To prove the circumstance she must rely on the strength of her own evidence and not on the weakness of that of the
prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the killing.28
However, by no stretch of imagination could the pointing of the gun towards her husbands head and pulling the
trigger be considered as performing a lawful act with due care. As correctly found by the CA, which we quote in full:
Appellants version that she "accidentally shot" her husband is not credible. Appellants manner of carrying the caliber
.45 pistol negates her claim of "due care" in the performance of an act. The location of the wound sustained by the
victim shows that the shooting was not merely accidental. The victim was lying down and the fact that the gun was
found near his left hand was not directly disputed by her. We find it contrary to human nature that a newly awakened
military man would suddenly ask his wife for his firearm, and even patiently wait for her return to the house, when the
said firearm was just inside the cabinet which, according to appellant, was just about two meters away from his bed.
xxxx
In the case at bench, appellant held the gun in one hand and extended it towards her husband who was still lying in
bed. Assuming arguendo that appellant has never learned how to fire a gun and was merely handing the firearm over
to the deceased, the muzzle is never pointed to a person, a basic firearms safety rule which appellant is deemed to
have already known since she admitted, during trial, that she sometimes handed over the gun to her husband.
Assuming further that she was not aware of this basic rule, it needed explaining why the gun would accidentally fire,
when it should not, unless there was pressure on the trigger.29
There is no merit in appellants contention that the prosecution failed to prove by circumstantial evidence her motive
in killing her husband. Intent to kill and not motive is the essential element of the offense on which her conviction
rests. Evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the
malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors
before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was
committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to
kill is presumed.30
In the instant case, the following circumstantial evidence considered by the RTC and affirmed by the CA satisfactorily
established appellants intent to kill her husband and sustained her conviction for the crime, to wit:

The prosecution established the following circumstantial evidence:

(1) Susan Latosa, the accused, asked her twins to do errands for her. She first asked Sassymae to go to
Commissary to buy ice cream, thereafter, she asked Michael to follow his sister at the Commissary which
according to the prosecution witnesses was not the usual thing the accused would do;
(2) Thereafter, it was only the accused and the victim who were left alone in the house;
(3) After the witness Michael, son of the accused and the victim left and proceeded at the barracks located
at the back of their house, Susan Latosa was seen running away from the house by Michaels friend named
Macmac;
(4) Immediately thereafter, Michael Latosa went inside the room of their barracks and saw his father with
sort of a hole in the head, blood on the nose and had a gun in his left hand (TSN, May 5, 2003, pp. 7-8, 1213);
(5) The cause of death of the victim Felixberto Latosa was intracranial hemorrhage due to gunshot wound of
the head (per Medico-legal Report No. M-052-2002, Exh. P);
(6) Susan Latosas paraffin test yielded positive result for the presence of gunpowder nitrate in her right
hand;
xxx
(8) The point of entry of the gunshot wound found on the victim was located at the left temporal region as
evidenced by Medico Legal Report No. M-052-2002 (Exhibit P);
(9) The victim was a right-handed and the gun was found on the latters left hand;
(10) Sassymae Latosa [testified] that she heard Col. Sta. Inez [tell] her mother, "bakit mo inamin. Sana
pinahawak mo kay Major iyong baril saka mo pinutok." (TSN, May 19, 2002, p. 13); and
(11) The children testified that they were informed by the victim regarding the threat of Sta. Inez to the whole
family who alleged[ly] has an amorous relationship with their mother. Francisco Latosa presented a
memorandum that accused was terminated from her teaching job by reason of immorality.31
1avvphi1

Moreover, the Court finds no cogent reason to review much less depart now from the findings of the RTC as affirmed
by the CA that appellants version is undeserving of credence. It is doctrinally settled that the assessments of the
credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique
opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling
examination. These are the most significant factors in evaluating the sincerity of witnesses and in unearthing the
truth, especially in the face of conflicting testimonies. Through its observations during the entire proceedings, the trial
court can be expected to determine, with reasonable discretion, whose testimony to accept and which witness to
believe. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some facts or
circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the
disposition of the case.32 We find none in this case.
One last note. On the matter of damages, the CA awarded exemplary damages in the amount of P25,000.00. We
increase the award to P30,000.00 in light of prevailing jurisprudence33 fixing the award of exemplary damages to said
amount.

WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The April 23, 2008 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 02192 is hereby AFFIRMED with MODIFICATION. The amount of exemplary
damages is increased to P30,000.00.
With costs against the accused-appellant.
SO ORDERED.
PhilippineLaw.info Jurisprudence 1946 October
PhilippineLaw.info Jurisprudence Phil. Rep. Vol. 77

G.R. No. L-64, People v. Moreno, 77

Phil. 548
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
October 28, 1946
G.R. No. L-64
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIGUEL M. MORENO, defendant-appellant.
Santiago F. Alidio for appellant.
First Assistant Solicitor General Reyes, Assistant Solicitor Caizares and Solicitor
Luciano for appellee.
FERIA, J.:
This is an appeal by the defendant Miguel M. Moreno from the judgment of the
Court of First Instance of Zamboanga, which found him guilty of the crime
charged with the aggravating circumstances of premeditation and cruelty and
without any mitigating circumstance, and sentenced the defendant to death and
to indemnify the heirs of the deceased.

The appellant was at the outbreak of the war a prisoner serving sentence in the
San Ramon Penal Colony Farm, situated in the City of Zamboanga. During the
Japanese occupation, he befriended and gained the confidence of the Japanese
naval authorities, was released from prison, and appointed Captain of a semimilitary organization known as Kaigun Jeutay, composed of Filipinos and
sponsored by the Japanese navy. On October 23, 1944, the defendant was
appointed by the Japanese naval authorities as section commander of the San
Ramon Penal Colony with plenary powers of supervision and control over said
colony and its environs.
On November 23, 1944, a group of defendant's soldiers went to the house of
Paciano de los Santos, and took with them two single young daughters of said
Paciano, and on the next day, when the deceased wet to San Ramon Penal
Colony, he was confined in a cell by order of the defendant.
On the night of December 1, 1944, defendant gathered all the prison officials
and employees of San Ramon Penal Colony in a meeting in the house of P.D.
Dellosa then Assistant Superintendent of the institution, and in that gathering
the accused arrogantly announced that he was not afraid to cut the head of
anybody, ordered all those present to witness the execution of Paciano de los
Santos the following day, and instructed Gregorio Magalit, a prisoner employee
of said institution to prepare the grave for said Paciano and issue a formal
memorandum to that effect. A photostatic copy of which was presented as
Exhibit D during the trial.
And in the morning of December 2, 1944, Paciano de los Santos was taken to a
place known as Fishery Division of the colony with both hands tied at the back,
and there the defendant ordered the victim Paciano to kneel down with the head
bent forward by the side of the grave already prepared for him by order of the
accused, and in that position the accused with a Japanese sabre held in the
handle by his both hands, hacked the head of Paciano de los Santos, and
immediately kicked the prostrate body of the victim into the grave.
The facts above stated were established beyond a per-adventure of doubt by the
testimony of the witnesses for the prosecution, and are substantially admitted
by the defendant in his testimony during the trial. When the defendant was
asked whether he killed Paciano de los Santos in the form and manner described
by the witness for the prosecution, he answered the following: "When I arrived
at the place the deceased Paciano de los Santos was already in the place where

I was to execute him, and was taken there by four Japanese and several guards
of San Ramon, and on the way they have instructed me how should I kill him, I
did kill him in the form and manner testified to by the witnesses for the
prosecution." (Pp. 49, 50, t.s.n.)
The attorney de oficio appointed by this court for the defendant contends, in the
four assignments of error assigned in his brief, that the court below erred (1) in
trying the defendant in the same day on which he was arraigned and pleaded
not guilty, and not granting him two days to prepare for trial as provided by law;
(2) in trying and convicting the accused without a preliminary investigation by
the municipal judge or Fiscal of Zamboanga City;(3) in not compelling, by
process of subpoena, the attendance of witnesses in behalf of the defendant,
and finding, despite this failure, that the latter's testimony was not corroborated
by any witness; and (4) in finding the accused guilty of murder with two
aggravating circumstances and imposing upon him the penalty of death.
(1) As to the first assigned error of the court below, it is true that, according to
section 7, Rule 114, the defendant after arraignment is entitled to at least two
days to prepare for trial, except when the case is on appeal from the justice of
the peace. But this court in several cases, among them, the case of People vs.
Cruz (54 Phil., 24, 28), has already construed said section and held that the said
right may be waived either expressly, or impliedly by not asking for time to
prepare for trial. In the present case, the defendant has waived his right to have
at least two days to prepare for trial, by submitting himself and not objecting to
the trial ordered by the court on the same day in which he was arraigned. The
decision of this court in the case of People vs. Valte (43 Phil., 907), quoted by
the attorney for the accused, does not support his contention, for in the said
case the defendant did not waive but exercised his right by demanding that he
be granted two days to prepare for trial.
Besides, taking into consideration the fact that the defendant admitted having
killed the victim in the form and manner testified to by the witnesses for the
prosecution, and the only defense he alleged is that he was ordered to do so by
Japanese naval authorities; that the defendant had in fact been given time to
prepare for his defense, because before the trial had begun, the said attorney,
after a conference with the defendant, asked the court to issue subpoena and
subpoena duces tecum to Nicanor Punsala and Timoteo Almonte, employees in
San Ramon Penal Colony, and to Gregorio Magalit, a detainee in the stockade of

Zamboanga, and the subpoenas were issued and served on the same date,
August 6, upon them; and that after three of the witnesses for the prosecution
had testified, the trial was adjourned and continued on August 7 and 8; it may
be concluded that had there been any error such an error is not a reversible one,
for it did not impair the substantial rights of the defendant.
(2) With respect to the second assignment of error, the record shows that the
defendant has waived his right to a preliminary investigation in a
communication called a motion of July 30, 1945, filed with the court, in which
the said defendant states that "he respectfully waives his right to a preliminary
investigation and request that this case be remanded to the Court of First
Instance of Zamboanga for final decision."
Section 1 and 7, Rule 108, of the Rules of Court use the words "preliminary
investigation," but a cursory reading thereof would clearly show that the
investigation mentioned therein is not the preliminary investigation proper in
which the defendant has the right to present his evidence. That is the reason
why said investigation made for the purpose of issuing the warrant of arrest of a
defendant if it appears that his arrest is justified, is defined by section 1 as "a
previous inquiry or examination made before the arrest of the defendant."
Whether or not the warrant of arrest issued without a probable cause, has
nothing to do with the right of the defendant to a preliminary investigation, and
cannot be raised for the first time on appeal from a judgment in which the
defendant is found guilty of the offense charged beyond a reasonable doubt and
sentenced to death.
The preliminary investigation proper to which the defendant is entitled as apart
of the due process of law in those cases in which the statute provides for it, is
that established by section 11, of same Rule 108, and consist in the right of the
defendant, after his arrest, to "be informed of the complaint or information filed
against him . . . of the substance of the testimony and evidence presented
against him," and to be allowed "to testify or to present witnesses or evidence in
his favor." And the defendant has waived expressly his right to that preliminary
investigation, as above stated.
(3) In his third assignment of error, the attorney for the defendant states that
"the lower court erred in not compelling by process of subpoena the attendance
of witnesses in behalf of the appellant as provided by the Philippine Constitution,

and finding, despite this failure, that the testimony of the appellant was
corroborated by any witnesses."
This assignment of error is clearly without foundation; because the same
attorney admits in his brief that, the would be witnesses for the defense Nicanor
Punsalan, Timoteo Almonte and Gregorio Magalit were, upon petition of his
attorney in the court below, served on August 6 with subpoena and
subpoena duces tecum issued by the court, That "Nicanor Punsalan and Timoteo
Almonte were not examined or presented as witnesses in behalf of the
appellant," does not support the contention of dependant's attorney that they
have not been compelled by subpoena to appear in court as witnesses. The
presumption is that they had appeared in compliance with the subpoena, there
being nothing in the record to show the contrary, and that if they had not been
presented as such by the attorney for the defendant, it was because their
testimonies were not favorable to the latter; as evidenced by the testimony of
said Magalit, the other witness subpoenaed for the defense, who was used by
the prosecution as a rebuttal witness and testified against the accused.
(4) The fourth or last assignment of error, is also without merit. Because the
defendant, testifying in his own behalf, admitted having killed Paciano de los
Santos on the date and in the form and manner testified to by the witnesses for
the prosecution, and the only defense that he executed or killed the deceased in
obedience to an order given him by Japanese officers of the navy, by whom he
was informed that the deceased was one of those who were encountered by the
Japanese in a mountain and wounded a Japanese soldier, is not supported by
any evidence in the record. And because assuming that there was such an
order, it would not justify the crime committed by defendant and exempt him
from criminal liability.
That there was no such order, oral or written, is clearly shown by the
defendant's own incredible, contradictory and unsupported testimony relating to
his having been ordered by the Japanese naval officer to kill the deceased,
which reads as follows:
P. declarando aqui los testigos de la acusacion todos dijeron de que ejecucion de
aquel Paciano de los Santos era por orden de Vd, es cierto eso?
C.A. No. 384

February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of
murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and
sentenced to an indeterminate penalty ranging from seven years, four months and one day of prision mayorto
thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties provided by law, to
indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She
was also credited with one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon,
and in her brief filed therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her
honor and that she should be completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she
did not have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily
surrendered to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the alleged offense was attended by the
aggravating circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta.
Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant
and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one
occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing
her nickname "Aveling," while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her
of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts,
on account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him.
She kept the matter to herself, until the following morning when she informed her mother about it. Since then, she
armed herself with a long fan knife, whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and
surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing
her. She immediately screamed for help, which awakened her parents and brought them to her side. Amado came
out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father,
asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her husband prevented her from
doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio
lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of

Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told
them to end the conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the
neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if
he should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at
about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the
Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house,
to attend religious services, and sat on the front bench facing the altar with the other officials of the organization and
the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the
purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina
was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to
the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest
of impudence, placed his hand on the upper part of her right thigh. On observing this highly improper and offensive
conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right
hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's
offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed
Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was
necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and
staggering towards the altar, and upon seeing his daughter still holding the bloody knife, he approached her and
asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina
died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel,
approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang
bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal."
Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein
defendant and appellant to go home immediately, to close their doors and windows and not to admit anybody into the
house, unless accompanied by him. That father and daughter went home and locked themselves up, following
instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen
arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually
happened in the chapel and of the previous acts and conduct of the deceased, as already stated above, and went
with said policemen to the police headquarters, where her written statements were taken, and which were presented
as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may be, is universal. It has been
entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only
true nobility. And they are the future wives and mothers of the land. Such are the reasons why, in the defense of their
honor, when brutally attacked, women are permitted to make use of all reasonable means available within their reach,
under the circumstances. Criminologists and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry.
There is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they
always receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have
the right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada,
Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense,
inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence;
and it is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from
criminal liability, since such killing cannot be considered a crime from the moment it became the only means left for
her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and
Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her
honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail,
holding her firmly from behind, without warning and without revealing his identity, and, in the struggle that followed,
touched her private parts, and that she was unable to free herself by means of her strength alone, she was
considered justified in making use of a pocket knife in repelling what she believed to be an attack upon her honor,
and which ended in his death, since she had no other means of defending herself, and consequently exempt from all
criminal liability (People vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which
she happened to be carrying at the time, even though her cry for assistance might have been heard by people
nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her house to a
certain tienda, for the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and,
believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply,
attacked and killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the
supposed attempt, it was not sufficient provocation or aggression to justify her completely in using deadly weapon.
Although she actually believed it to be the beginning of an attempt against her, she was not completely warranted in
making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home with
his wife, did not do any other act which could be considered as an attempt against her honor (United States vs.
Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at
night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as
indicated by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly
justified in killing him, as shown by the authorities cited above..
According to the facts established by the evidence and found by the learned trial court in this case, when the
deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and
placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with electric
lights, and there were already several people, about ten of them, inside the chapel, including her own father and the
barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was and there could be
no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck,
inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed
by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she
cannot be legally declared completely exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio
lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to
her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the
authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate
vindication of a grave offense committed against her a few moments before, and upon such provocation as to
produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating
circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs.
Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his
offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is
another mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310;
United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant
and appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship,
cannot be legally sustained; as there is no evidence to show that the defendant and appellant had murder in her
heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the
greatest provocation. She is a God-fearing young woman, typical of our country girls, who still possess the
consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now
drifting away they know not where.
The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the
first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the
manner and form and under the circumstances above indicated, the defendant and appellant committed the crime of
homicide, with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified
character to be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal
Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant should be accorded the most liberal consideration
possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs.
Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two
degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of
section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant
and appellant should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree,
to prision correccional in its medium degree. Consequently, with the modification of judgment appealed from,
defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months
and one day of arresto mayor, as minimum, to two years, four months, and one day ofprision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in
the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal
penalty, in case of insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2
of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated. So ordered..
G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.

MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros. Roast
pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the kitchen and

asked Modesto Patobo for some of the delicacy. Patobo's answer was; "There is no more. Come here and I will make
roast pig of you." The effect of this on the accused as explained by him in his confession was, "Why was he doing like
that, I am not a child." With this as the provocation, a little later while the said Modesto Patobo was squatting down,
the accused came up behind him and struck him on the head with an ax, causing death the following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of the trial
court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying circumstance of alevosia.
The court, however, gave the accused the benefit of a mitigating circumstance which on cursory examination would
not appear to be justified. This mitigating circumstance was that the act was committed in the immediate vindication
of a grave offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly applied.
That there was immediate vindication of whatever one may term the remarks of Patobo to the accused is admitted.
Whether these remarks can properly be classed as "a grave offense" is more uncertain. The Supreme court of Spain
has held the words "gato que araaba a todo el mundo," "landrones," and "era tonto, como toda su familia" as not
sufficient to justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13,
1886.) But the same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision of
October 22, 1894.) We consider that these authorities hardly put the facts of the present case in the proper light. The
offense which the defendant was endeavoring to vindicate would to the average person be considered as a mere
trifle. But to this defendant, an old man, it evidently was a serious matter to be made the butt of a joke in the presence
of so many guests. Hence, it is believed that the lower court very properly gave defendant the benefit of a mitigating
circumstance, and correctly sentenced him to the minimum degree of the penalty provided for the crime of murder.
lawph!1.net

Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and one day
of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto
Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance against
the appellant. So ordered.
Arellano, C.J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y

SANGGINO, accused-appellant.
DECISION
QUISUMBING, J.:

In the amended decision dated June 2, 1999, in Criminal Case No. 96CR-2522, the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8,
found appellant June Ignas y Sanggino guilty of murder aggravated especially
by the use of an unlicensed firearm. Appellant was initially sentenced to suffer
the penalty of reclusion perpetua, but on motion for reconsideration by the
prosecution, the penalty was upgraded to death by lethal injection. Hence,
the case is now before us for automatic review.
[1]

[2]

[3]

Appellant is an elementary school graduate. He resided at Cruz, La

Trinidad, Benguet, where he operated a bakery. He is married to Wilma
Grace Ignas, by whom he has a son of minor age. Wilma Grace used to be
the cashier of Windfield Enterprise, which is owned by Pauline Gumpic.
Pauline had a brother, Nemesio Lopate. It was he whom appellant fatally
shot.
[4]

[5]

[6]

In the amended Information, pursuant to Section 14, Rule 110 of the

1985 Rules of Criminal Procedure, the Provincial Prosecutor of Benguet
charged appellant as follows:
[7]

[8]

That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality of
La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, without any authority of law or without any lawful permit did then
and there willfully, unlawfully and knowingly have in his possession, control and
custody a Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and
ammunitions were used by the accused in unlawfully killing NEMESIO LOPATE at
the above-mentioned place and date in violation of the said law.
CONTRARY TO LAW.

[9]

Appellant was arraigned and pleaded not guilty to the foregoing amended
information. The case then proceeded to be heard on the merits.
Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellants wife, Wilma Grace Ignas,
confided to her close friend, Romenda Foyagao, that she was having an
affair with Nemesio Lopate.
[10]

[11]

On the evening of October 16, 1995, Wilma Grace, Romenda, and

Nemesio went to Manila. Romenda and Nemesio were sending off Wilma
Grace at the Ninoy Aquino International Airport as she was leaving for Taiwan
to work as a domestic helper. Upon arrival in Manila, the trio checked at
Dangwa Inn, with Nemesio and Wilma Grace sharing a room. All three of
them stayed at the inn until October 18, 1995, when Wilma Grace left for
Taiwan.
[12]

[13]

Thereafter, Romenda received from Taiwan four letters written by Wilma

Grace on various dates. Although all the letters were addressed to Romenda,
two of them were meant by Wilma Grace to be read by her paramour,
Nemesio. In the other two letters, Wilma Grace instructed Romenda to reveal
to appellant her affair with Nemesio.
[14]

It was only sometime late in February 1996 that Romenda, following her
bosom friends written instructions, informed appellant about the extramarital
affair between Wilma Grace and Nemesio. Romenda informed him that the
two had spent a day and a night together in a room at Dangwa Inn in Manila.
Appellant became furious. He declared Addan to aldaw na dayta nga
Nemesio, patayek dayta nga Nemesio (There will be a day for that Nemesio. I
will kill that Nemesio). Appellant then got all the letters of Wilma Grace from
Romenda.
[15]

[16]

[17]

That same week Alfred Mayamnes, appellants neighbor who was

presented at the trial as a prosecution witness, had a talk with appellant.
Mayamnes was an elder of the Kankanaey tribe to which appellant
belonged. He wanted to confirm whether Nemesio Lopate, who was likewise
from the same tribe, was having an affair with appellants spouse. Talk
apparently had reached the tribal elders and they wanted the problem
resolved as soon as possible. A visibly angry appellant confirmed the gossip.
Mayamnes also testified that he advised Nemesio to stay at the Mountain
Trail Kankanaey community until things had cooled down.
[18]

[19]

[20]

[21]

Shortly after their talk, appellant closed down his bakeshop and offered his
equipment for sale. Among the potential buyers he approached was
Mayamnes, but the latter declined the offer.
[22]

Sometime during the first week of March, Mayamnes saw appellant load
his bakery equipment on board a hired truck and depart for Nueva Vizcaya.
[23]

At around 10:00 p.m. of March 10, 1996, according to another prosecution

witness, Annie Bayanes, a trader in vegetables, she was at the Trading Post,
La Trinidad, Benguet. The Trading Post is a popular depot where vegetable
growers in the Cordilleras bring their produce late in the evenings for sale to
wholesalers and retailers. Witness Bayanes said she was at the unloading
[24]

area (bagsakan), conversing with another dealer at the latters booth, when
suddenly two gunshots shattered the quiet evening.
[25]

Bayanes turned towards the place where the sound of the gunshots came
from. She testified that she saw a person falling to the ground. Standing
behind the fallen individual, some 16 inches away, was another person who
tucked a handgun into his waistband and casually walked away.
[26]

[27]

[28]

Initially, she only saw the gunmans profile, but when he turned, she caught
a glimpse of his face. She immediately recognized him as the appellant June
Ignas. She said she was familiar with him as he was her townmate and had
known him for several years. Witness Bayanes was five or six meters away
from the scene, and the taillight of a parked jeepney, which was being loaded
with vegetables, plus the lights from the roof of the bagsakan, aided her
recognition of appellant.
[29]

[30]

Also at the bagsakan area that night was prosecution witness Marlon
Manis. He testified that on hearing gunshots from the Trading Post entrance,
he immediately looked at the place where the gunfire came from. He saw
people converging on a spot where a bloodied figure was lying on the ground.
Witness Manis saw that the fallen victim was Nemesio Lopate, whom he
said he had known since Grade 2 in elementary school. Manis then saw
another person, some 25 meters away, hastily walking away from the scene.
He could not see the persons face very well, but from his gait and build, he
identified the latter as his close friend and neighbor, June Ignas. Manis said
that the scene was very dimly lit and the only illumination was from the lights
of passing vehicles, but he was familiar with appellants build, hairstyle, and
manner of walking.
[31]

[32]

[33]

[34]

Prosecution witness Mona Barredo, a bakery worker, testified that she

knew appellant. She said they were co-workers formerly at the Annaliza
Bakery at Km. 10, Shilan, La Trinidad, Benguet. Barredo declared that at
around 10:30 p.m. of March 10, 1996, appellant came to her residence at
Pico, La Trinidad. After being served refreshments, appellant took out a
handgun from his jacket and removed the empty shells from the chamber.
Appellant then told her to throw the empty cartridges out of the
window. Because of nervousness she complied. Barredo also said that
[35]

[36]

[37]

appellant disclosed to her that he had just shot his wifes paramour. Appellant
then stayed at her house for 8 or 9 hours; he left only in the morning of March
11, 1996, according to her. Police investigators later recovered the spent gun
shells from witness Barredos sweet potato garden.
[38]

[39]

[40]

According to witness on the scene, responding policemen immediately

brought the victim, Nemesio Lopate, to the Benguet General Hospital where
he was pronounced dead on arrival.
[41]

Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet,

testified during that trial that she conducted the post-mortem examination of
the victims cadaver. Among her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on
the right side of the mouth, above the edge of the upper lip
xxx
3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the
upper lip on the left side
xxx
9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with
blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal space,
subscapular area, 13 cm. from the midline, directed to the left side of the chest, 38.0
cm. from the embedded bullet slug of the left shoulder.
[42]

Dr. Jovellanos determined the cause of death to be Hypovolemia due to

gunshot wound, back, right, (Point of Entry fifth intercostal space subscapular
area). She further stated on the witness stand that she recovered a bullet
from the victims left shoulder, which she turned over to the police
investigators. According to her, given the blackened edges of the gunshot
wound at the victims back, Nemesio was shot from a distance of less than
three (3) feet.
[43]

[44]

[45]

On March 14, 1996, police investigators accompanied by one of

appellants brother as well as prosecution witness Julio Bayacsan, a friend of

appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed light on

the slaying of Nemesio. The law enforcers found appellant selling bread at
Kayapa and brought him back to La Trinidad, Benguet.
[46]

Witness Bayacsan testified that shortly after they arrived from Kayapa, he
had an opportunity to talk with appellant at the La Trinidad Police
Station. There, appellant disclosed to this witness that he shot and killed
Nemesio. Bayacsan, however, did not inform the police about appellants
revelation as he considered appellant his good friend.
[47]

[48]

Prosecution witness Pauline Gumpic, the victims sister, testified that she
and appellant had a private talk, while the latter was in police custody, and
appellant admitted to her that he killed her brother. Gumpic declared that
appellant revealed to her that he shot Nemesio for having illicit relations with
appellants wife and failing to ask for his forgiveness.
[49]

[50]

SPO4 Arthur Bomagao of the La Trinidad police, who headed the team
that investigated the fatal shooting of Nemesio, declared on the stand that
appellant voluntarily admitted to him that he shot the victim with a .38 caliber
handgun. Bomagao further testified that appellant surrendered to him the
letters of Wilma Grace, wherein the latter admitted her affair with Nemesio.
[51]

[52]

[53]

Appellant interposed the defense of alibi. Sometime during the last week
of February 1996, he said, he entered into a partnership with a friend and
fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva Vizcaya.
Appellant claimed that he was having a hard time operating his bakeshop in
La Trinidad as he had no helpers. When Anoma proposed a business
arrangement, he added, he immediately seized the opportunity. On March 8,
1996, he and Anoma then transferred his equipment to Anomas bakery in
Kayapa, which is some four (4) to five (5) hours away from La Trinidad,
according to appellant. He averred that he was baking bread with Anoma in
Kayapa on the night Nemesio was killed. Under oath, appellant said that he
never left Kayapa since his arrival on March 8, 1996. He and Anoma were
engrossed in baking and marketing their produce, he testified, until the
policemen from La Trinidad brought him back to Benguet for questioning on
March 14, 1996.
[54]

[55]

[56]

[57]

[58]

Defense witness Ben Anoma corroborated appellants alibi. Anoma

declared that during the last week of February 1996, he met with appellant in
La Trinidad. There, the witness said, he proposed a partnership with appellant
in the baking business to be based in Kayapa. Appellant agreed and on
March 8, 1996, they transferred appellants equipment to Kayapa. They
immediately commenced their operations and on the evening of March 10,
1996, he and appellant baked bread at his bakery in Kayapa until 11:00 p.m.,
when they rested for the night.
[59]

[60]

[61]

The trial court disbelieved appellants defense and sustained the

prosecutions version. Its initial judgment reads:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized
under Article 248 of the Revised Penal Code, and considering the aggravating
circumstances of treachery, nighttime and the special aggravating circumstance of the
use of an unlicensed firearm, without any mitigating circumstance, he is hereby
sentenced to suffer the penalty of Reclusion Perpetua. He is further sentenced to pay
the heirs of the VICTIM the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
2. P1,800,000.00 for unearned income;
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad, Benguet,
Philippines.
[62]

Both the prosecution and the defense filed their respective motions for
reconsideration. The prosecution sought the imposition of the death penalty.
The defense prayed for acquittal on the ground of reasonable doubt.
[63]

On June 2, 1999, the trial court granted the prosecutions motion. It

amended its judgment to read as follows:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized
under Article 248 of the Revised Penal Code, and considering the aggravating
circumstances of treachery, nighttime and the special aggravating circumstance of the
use of an unlicensed firearm, without any mitigating circumstance, he is hereby
sentenced to suffer the penalty of death by lethal injection. He is further sentenced to
pay the heirs of the victim the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
2. P2,040,000.00 for unearned income;
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers.

[64]

Hence, this automatic review, with appellant imputing the following errors
to the court a quo:
I

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER DESPITE THE WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE
OF THE PROSECUTION.
II

THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT

TO THE ALLEGED EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSED-

APPELLANT DESPITE ITS BEING HEARSAY IN NATURE AND IN VIOLATION

OF HIS RIGHTS UNDER CUSTODIAL INVESTIGATION.
III

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE

TO THE DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT.
IV

ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE

TRIAL COURT GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF
THE DECEASED WAS ATTENDED BY EVIDENT PREMEDITATION,
TREACHERY AND NIGHTTIME.
V

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

APPRECIATED THE ALLEGED USE OF AN UNLICENSED .38 CALIBER
FIREARM AS AN AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF
THE CRIME OF MURDER WITHOUT ANY FACTUAL AND LEGAL BASIS.
VI

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT

APPRECIATE IN FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING
CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE,
PASSION AND OBFUSCATION AND VOLUNTARY SURRENDER.
VII

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED

EXCESSIVE DAMAGES IN THE FORM OF FUNERAL EXPENSES AND
UNEARNED INCOME OF THE DECEASED WHICH WERE NOT
SUFFICIENTLY PROVEN.
[65]

Appellants assigned errors may be reduced to the following pertinent

issues: (1) the nature of the crime committed, if any; (2) the sufficiency of the

prosecutions evidence to prove appellants guilt; (3) the correctness of the

penalty; and (4) the propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to sustain the
appellants conviction for the unlawful killing of Nemesio Lopate, the question
arises: Was the killing murder as found by the trial court or mere homicide?
Note that the amended information under which the appellant stands charged
does not, unlike the original information, charge appellant with murder but with
mere unlawful killing albeit through the use of an unlicensed firearm. Note
further that the amended information does not definitely and categorically
state that the unlawful killing was attended by the aggravating or qualifying
circumstances of treachery, evident premeditation, and nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that the qualifying
and aggravating circumstances must be specifically alleged in the information.
Although the Revised Rules of Criminal Procedure took effect only on
December 1, 2000 or long after the fatal shooting of Nemesio Lopate, as a
procedural rule favorable to the accused, it should be given retrospective
application. Hence, absent specific allegations of the attendant circumstances
of treachery, evident premeditation, and nocturnity in the amended
information, it was error for the trial court to consider the same in adjudging
appellant guilty of murder. As worded, we find that the amended information
under which appellant was charged and arraigned, at best indicts him only for
the crime of homicide. Any conviction should, thus, fall under the scope and
coverage of Article 249 of the Revised Penal Code.
[66]

[67]

As for the separate case for illegal possession of firearm, we agree with
the trial courts order to dismiss the information for illegal possession of firearm
and ammunition in Criminal Case No. 97-CR-2753. Under R.A. No. 8294,
which took effect on July 8, 1997, where murder or homicide is committed
with the use of an unlicensed firearm, the separate penalty for illegal
possession of firearm shall no longer be imposed since it becomes merely a
special aggravating circumstance. This Court has held in a number of
cases that there can be no separate conviction of the crime of illegal
possession of firearm where another crime, as indicated by R.A. No. 8294, is
[68]

[69]

[70]

[71]

committed. Although R.A. No. 8294 took effect over a year after the alleged
offense was committed, it is advantageous to the appellant insofar as it spares
him from a separate conviction for illegal possession of firearms and thus
should be given retroactive application.
[72]

2. Sufficiency of the Prosecutions Evidence

But is the prosecutions evidence sufficient to sustain a conviction for
homicide?
Appellant primarily contests the accuracy of the identification made by the
prosecution witnesses who testified that they saw him at the locus criminis,
tucking a gun in his pants and casually walking away. For one, he contends
that the prosecution witnesses who were present at the scene did not in fact
see appellant as the person who allegedly shot the victim. Witness Marlon
Manis was not certain that the person he saw walking away from the fallen
victim was appellant. As per Manis own admission, he merely presumed that it
was appellant. As to witness Annie Bayanes, her identification of appellant as
the assailant was equally doubtful. The fact is she did not see the alleged
gunmans face, considering that the only illumination on the scene was a
vehicles taillight. Appellant stresses that both Bayanes and Manis were in a
state of excitement and nervousness as a result of the incident, hence the
resultant commotion and fear distracted their powers of observation. Appellant
insists that given these considerations, the testimonies of Bayanes and Manis
failed to show that he was at the scene of the crime, much less prove that he
was the gunman.
For the appellee, the Office of the Solicitor General (OSG) contends that
the failure of Manis to see the actual shooting is irrelevant, as such was not
the purpose for which his testimony was offered in evidence. Rather, Manis
testimony was meant to provide circumstantial evidence tending to show the
physical description of Nemesios attacker, and not as an eyewitness
testimony to positively identify said assailant. Neither was Bayanes presented
to testify as an eyewitness to the shooting, but to declare that she got a clear
look at the face of the suspectedgunman.

We note that at the heart of the prosecutions case is the familiarity of

Annie Bayanes and Marlon Manis with appellant. Absent this familiarity, the
prosecutions theory that circumstantial evidence shows that appellant killed
Nemesio would collapse like a house of cards. It was precisely this familiarity
with appellant, which enabled said witnesses to recognize him as the person
tucking a gun in his waistband and walking away from the fallen victim.
Bayanes had known appellant for some ten (10) years before the incident and
even described him as a good man. She was only five or six meters away
from the scene of the crime and was able to fully look at the face of the person
tucking a gun in his pants and walking away. Familiarity with the physical
features, particularly those of the face, is actually the best way to identify the
person. That the only illumination in the area came from the taillight of a
parked vehicle and the lights on the roof of the bagsakan does not discredit
her account. We have held that moonlight, starlight, kerosene lamps, a
flashlight, and lights of passing vehicles may be adequate to provide
illumination sufficient for purposes of recognition and identification. Under the
circumstances of these cases, this Court believes that Bayanes was in the
position and had a fair opportunity to identify appellant as the person leaving
the crime scene with a gun tucked in his waist.
[73]

[74]

[75]

[78]

[76]

[77]

[79]

Her testimony was buttressed by that of witness Marlon Manis. A former

neighbor of appellant, he had known appellant since 1993. He was a frequent
customer at appellants bakery. In the rural areas, people tend to be more
familiar with their neighbors. This familiarity may extend to body movements,
which cannot easily be effaced from memory. Hence, Manis testimony that he
could recognize appellant even just from his build and manner of walking is
not improbable. His declaration that he was some twenty-five (25) meters
away from the person walking away from the victim does not make recognition
far-fetched. Once a person has gained familiarity with another, identification is
an easy task, even from that distance.
[80]

Evidence should only be considered for the purpose it was formally

offered. As the Solicitor General points out, the statements of Bayanes and
Manis were not offered to positively identify appellant as the assailant, but to
provide circumstantial evidence concerning Nemesios assailant, tending to
prove that appellant did shoot the victim. Thus, the court a quocommitted no
[81]

reversible error in giving weight and credence to the testimonies of Bayanes

and Manis for the stated purposes therefor.
Appellant next assails the testimonies of the following prosecution
witnesses: (1) Pauline Gumpic for being inconsistent and flawed with
contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained
delay in giving their respective sworn statements to the police; and (3) Mona
Barredo for flip-flopping with respect to the alleged admission to her by
appellant and how the police investigators knew about said admission, after
she claimed that she did not tell anyone about his revelation. Appellant
submits that the trial court erred in giving weight to the aforementioned
testimonies.
For appellee, the OSG argues that with respect to Gumpics alleged
contradictions, they refer only to unimportant and collateral matters; they do
not affect her credibility. With respect to the delay or vacillation by Bayacsan
and Bayanes in giving their statements to the authorities, the OSG points out
that a reading of their declarations in court will show that the alleged delay
was adequately explained. As to Barredos testimony, a closer reading of her
supposed flip-flopping shows that the alleged contradictions were due to an
honest misapprehension of fact on her part.
When the issue boils down to the credibility of witnesses, the appellate
court will not generally disturb the findings of the trial court because the latter
is in the vantage position of observing witnesses through the various indicia of
truthfulness or falsehood. However, this rule is not absolute. One exception
is where the judge who wrote the decision did not personally hear the
prosecutions evidence. In this case, the records show that Judge Angel V.
Colet, who authored the assailed decision, took over from Judge Benigno M.
Galacgac only on April 29, 1997 or after the witnesses for the prosecution had
testified. It does not follow, however, that a judge who was not present at the
trial cannot render a just and valid judgment. The records and the transcripts
of stenographic notes are available to him as basis for his decision.
[82]

[83]

After going over the transcripts of the witnesses testimonies, we find no

reason to disturb the findings of the trial court. With respect to the statements
of Gumpic, we agree with the Solicitor General that alleged inconsistencies

refer only to irrelevant and collateral matters, which have nothing to do with
the elements of the crime. It is axiomatic that slight variations in the testimony
of a witness as to minor details or collateral matters do not affect his or her
credibility as these variations are in fact indicative of truth and show that the
witness was not coached to fabricate or dissemble. An inconsistency, which
has nothing to do with the elements of a crime, is not a ground to reverse a
conviction.
[84]

[85]

We likewise find no basis for appellants contention that Bayanes and

Bayacsan failed to give a satisfactory explanation for the delay or vacillation in
disclosing to the authorities what they knew. Bayanes gave a satisfactory
reason for her delay in reporting to the authorities what she knew. She had
simply gone about her normal business activities for some months, unaware
that a case had been filed concerning the killing of Nemesio. It was only nine
(9) months after the incident that she read a notice for help posted by the
victims relatives at the Trading Post, appealing to possible witnesses to the
killing to come forth and assist them in their quest for justice. It was only then
that she decided to reveal to the authorities what she knew.
As to Bayacsan, he candidly admitted in court that he considered
appellant his friend and he wanted to protect him and hence, he only
disclosed appellants admission to him when the police started questioning
him. There is no rule that the suspect in a crime should immediately be named
by a witness. Different people react differently to a given situation and there
is no standard form of human behavior when one is confronted with a strange,
startling, or frightful experience. The Court understands the natural
reluctance or aversion of some people to get involved in a criminal case.
More so where, as in these cases, a townmate of Bayanes and Bayacsan is
involved. We have taken notice that when their townmates are involved in a
criminal case, most people turn reticent. Hence, the failure of Bayanes and
Bayacsan to immediately volunteer information to the police investigators will
not lessen the probative value of their respective testimonies. The delay,
having been satisfactorily explained, has no effect on their credibility.
[86]

[87]

[88]

[89]

[90]

We have likewise closely scrutinized the testimony of Mona Barredo

regarding the alleged admission by appellant to her that he killed the victim.
We find nothing flip-flopping about her testimony. Instead, we find a witness

who admitted she was nervous that she might not be able to answer all the
questions. Said nervousness was engendered by her erroneous belief that to
be a credible witness, she must have personal knowledge of the crime. Even
the most candid witnesses make mistakes and may give some contradictory
or inconsistent statements, but such honest lapses need not necessarily affect
their credibility. Ample margin should be accorded a witness who is tensionfilled with the novelty of testifying before a court.
[91]

[92]

[93]

Appellant further contends that the trial court erred in giving credence to
the verbal admissions of guilt he made to Gumpic and SPO4 Bomagao inside
the police station since said admissions are inadmissible in evidence as
uncounseled confessions.
The OSG submits that said verbal admissions of complicity, as well as
those made to appellant to Bayacsan and Barredo, are admissible as
statements forming part of the res gestae. We agree on this point with the
OSG.
The requisites of res gestae are: (1) the principal act or res gestae must
be a startling occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false statement, and the
statement was made during the occurrence or immediately prior or
subsequent to thereto; and (3) the statement made must concern the
occurrence in question and its immediately attending circumstances. All
these elements are present in appellants verbal admission to Barredo that he
killed the victim when he went to the latters house half an hour after the fatal
shooting of Nemesio.
[94]

The verbal admission by appellant to Barredo was made before appellant

had the time and opportunity to contrive a falsehood. Similar statements have
been held to be part of the res gestae: (1) a childs declaration made an hour
after an alleged assault; (2) the testimony of a police officer as to what the
victim revealed to him some 30 minutes after the commission of an alleged
crime; and (3) a victims declaration made some 5 to 10 minutes after an
alleged felony took place. Note that since appellants admission was not
solicited by police officers in the course of a custodial investigation, but was
made to a private person, the provisions of the Bill of Rights on custodial
[95]

[96]

[97]

investigation do not apply. The Rules of Court provides that an admission

made to a private person is admissible in evidence against the declarant.
[98]

[99]

Prosecutions evidence here is admittedly circumstantial. But in the

absence of an eyewitness, reliance on circumstantial evidence is inevitable.
Resort thereto is essential when the lack of direct evidence would result in
setting a felon free.
[100]

[101]

Circumstantial evidence suffices to convict if the following requisites are

met: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
In our mind, the following pieces of circumstantial evidence show with moral
certainty that appellant was responsible for the death of Nemesio:
[102]

1. Appellant had the motive to kill Nemesio Lopate for having an affair with his wife,
and appellant had openly expressed his desire and intention to do so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis heard
two gun shots at the Trading Post, La Trinidad, Benguet and saw Nemesio Lopate fall
to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into his waistband, and
walking away;
4. From another angle, Manis also saw a person whose gait and built resembled that of
appellant walking away from the crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona
Barredo, brought out a handgun, emptied it of two spent .38 caliber shells and
instructed Barredo to throw the shells out of the window, which she did;
6. Appellant then told Barredo that he had shot and killed his wifes paramour, after
which he stayed at Barredos house for the night;
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La
Trinidad, Benguet recovered a .38 caliber slug from Nemesios corpse and found two
(2) bullet entry wounds on the said cadaver;

8. On March 18, 1996, police investigators, assisted by Barredo, recovered two (2)
spent .38 caliber shells from Barredos sweet potato patch, immediately outside her
residence wherein appellant had slept a week before.
The foregoing circumstances clearly show that appellant had the motive,
the opportunity, and the means to commit the crime at the place and time in
question. Simply put, the circumstantial evidence adduced by the prosecution
has successfully overcome the claim of innocence by appellant. Under the
proved circumstances, appellants defense of alibi is untenable. More so, in
this situation where prosecution witness Bayanes unflinchingly declared that
she saw appellant standing behind the victim, tucking a gun in his pants,
moments after the latter was shot. As we held in People v. Salveron, and
reiterated in People v. Sesbreo, where an eyewitness saw the accused with
a gun, seconds after the gunshot and after the victim fell to the ground, the
reasonable conclusion is that said accused killed the victim.
[103]

[104]

Appellants alibi cannot prevail over the positive testimony of Bayanes

concerning appellants identification and presence at the crime scene. Basic is
the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically
impossible for him to have been at the scene of the crime. Physical
impossibility refers to the distance between the place where the appellant was
when the crime transpired and the place where it was committed, as well as
the facility of access between the two places. In these cases, the defense
admitted that the distance between La Trinidad, Benguet and Kayapa, Nueva
Vizcaya is 79 kilometers, which can be negotiated in 4 or 5 hours. Clearly, it
was not physically impossible for appellant to be at the locus criminis at the
time of the killing. Hence, the defense of alibi must fail.
[105]

[106]

[107]

In sum, we find that the prosecutions evidence suffices to sustain the

appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of homicide, it follows that he cannot,
under the provisions of RA No. 7659, be sentenced to suffer the death
penalty. The penalty for homicide under Article 249 of the Revised Penal Code

is reclusion temporal. Our task now is to determine whether there are

aggravating or mitigating circumstances which could modify the penalty.
More specifically, may the special aggravating circumstance of use of an
unlicensed firearm be taken against the appellant?
Appellant argues that the trial court erred in appreciating the special
aggravating circumstance of use of unlicensed firearm in the present case.
Like the killing, said aggravating circumstance must likewise be proved
beyond reasonable doubt, says the appellant. On this point, he adds, the
prosecution failed to adduce the necessary quantum of proof.
We find merit in the appellants contentions. It is not enough that the
special aggravating circumstance of use of unlicensed firearm be alleged in
the information, the matter must be proven with the same quantum of proof as
the killing itself. Thus, the prosecution must prove: (1) the existence of the
subject firearm; and (2) the fact that the accused who owned or possessed it
does not have the corresponding license or permit to own or possess the
same. The records do not show that the prosecution presented any
evidence to prove that appellant is not a duly licensed holder of a caliber .38
firearm. The prosecution failed to offer in evidence a certification from the
Philippine National Police Firearms and Explosives Division to show that
appellant had no permit or license to own or possess a .38 caliber
handgun. Nor did it present the responsible police officer on the matter of
licensing as a prosecution witness.Absent the proper evidentiary proof, this
Court cannot validly declare that the special aggravating circumstance of use
of unlicensed firearm was satisfactorily established by the prosecution. Hence
such special circumstance cannot be considered for purposes of imposing the
penalty in its maximum period.
[108]

Coming now to the obverse side of the case, is the appellant entitled to
benefit from any mitigating circumstance?
Appellant, firstly contends that assuming without admitting that he is guilty,
the lower court should have considered at least the mitigating circumstance of
immediate vindication of a grave offense as well as that of passion and
obfuscation. Appellant points out that the victims act of maintaining an

adulterous relationship with appellants wife constituted a grave offense to his

honor, not to mention the shame, anguish, and anxiety he was subjected to.
Even the mere sight of the victim must have triggered an uncontrollable
emotional outburst on appellants part, so that even a chance meeting caused
in him an irresistible impulse powerful enough to overcome all reason and
restraint. Secondly, appellant points out that the trial court failed to consider
his voluntary surrender as a mitigating circumstance.
The Solicitor General counters that there was literally no immediate
vindication to speak of in this case. Appellant had sufficient time to recover his
serenity following the discovery of his wifes infidelity. Nor could passion and
obfuscation be appreciated in appellants favor because the killing was not
proximate to the time of the offense. Appellant became aware of the treatment
offensive to his dignity as a husband and to the peace and tranquility of his
home two weeks earlier. This interval between the revelation of his wifes
adultery and the fatal shooting was ample and sufficient for reason and selfcontrol to reassert themselves in appellants mind. As to the mitigating
circumstance of voluntary surrender, the OSG stresses that his supposed
surrender at Kayapa, Nueva Vizcaya was actually due to the efforts of law
enforcers who came looking for him. There he did not resist, but lack of
resistance alone is not tantamount to voluntary surrender, which denotes a
positive act and not merely passive conduct.
According to the OSG, for the mitigating circumstance of vindication of a
grave offense to apply, the vindication must be immediate. This view is not
entirely accurate. The word immediate in the English text is not the correct
translation of the controlling Spanish text of the Revised Penal Code, which
uses the word proxima. The Spanish text, on this point, allowsa lapse of
time between the grave offense and the actual vindication. Thus, in an
earlier case involving the infidelity of a wife, the killing of her paramour
prompted proximately though not immediately by the desire to avenge the
wrong done, was considered an extenuating circumstance in favor of the
accused. The time elapsed between the offense and the suspected cause
for vindication, however, involved only hours and minutes, not days. Hence,
we agree with the Solicitor General that the lapse of two (2) weeks between
his discovery of his wifes infidelity and the killing of her supposed paramour
[109]

[110]

[111]

could no longer be considered proximate. The passage of a fortnight is more

than sufficient time for appellant to have recovered his composure and
assuaged the unease in his mind. The established rule is that there can be no
immediate vindication of a grave offense when the accused had sufficient time
to recover his serenity. Thus, in this case, we hold that the mitigating
circumstance of immediate vindication of a grave offense cannot be
considered in appellants favor.
[112]

We likewise find the alleged mitigating circumstance of passion and

obfuscation inexistent. The rule is that the mitigating circumstances of
vindication of a grave offense and passion and obfuscation cannot be claimed
at the same time, if they arise from the same facts or motive. In other words,
if appellant attacked his victim in proximate vindication of a grave offense, he
could no longer claim in the same breath that passion and obfuscation also
blinded him. Moreover, for passion and obfuscation to be well founded, the
following requisites must concur: (1) there should be an act both unlawful and
sufficient to produce such condition of mind; and (2) the act which produced
the obfuscation was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator might recover his
moral equanimity. To repeat, the period of two (2) weeks which spanned the
discovery of his wifes extramarital dalliance and the killing of her lover was
sufficient time for appellant to reflect and cool off.
[113]

[114]

Appellant further argues that the lower court erred in failing to consider
voluntary surrender as a mitigating circumstance. On this point, the following
requirements must be satisfied: (1) the offender has not actually been
arrested; (2) the offender surrendered himself to a person in authority; and (3)
the surrender was voluntary. Records show, however, that leaflets and
posters were circulated for information to bring the killer of Nemesio to
justice. A team of police investigators from La Trinidad, Benguet then went to
Kayapa, Nueva Vizcaya to invite appellant for questioning. Only then did he
return to Benguet. But he denied the charge of killing the victim. Clearly,
appellants claimed surrender was neither spontaneous nor voluntary.
[115]

Absent any aggravating or mitigating circumstance for the offense of

homicide the penalty imposable under Art. 64 of the Revised Penal Code
is reclusion temporal in its medium period. Applying the Indeterminate

Sentence Law, the penalty which could actually be imposed on appellant is an

indeterminate prison term consisting of eight (8) years and one (1) day
ofprision mayor as minimum to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal as maximum.
4. Proper Award of Damages
Appellant and the Solicitor General are one in contending that the trial
court awarded excessive actual damages without adequate legal basis. Thus,
the amount of P150,000.00 was awarded for funeral and burial expenses
without any supporting evidence on record. This cannot be sustained in this
review. In order for actual damages to be recovered, the amount of loss must
not only be capable of proof but must actually be proven with reasonable
degree of certainty, premised upon competent proof or best evidence
obtainable of the actual amount thereof, such as receipts or other documents
to support the claim. The records clearly show in this case that only the
amount of P7,000 as funeral expenses was duly supported by a receipt.
Hence, the award of actual damages should be limited to P7,000 only.
[116]

[117]

[118]

Appellant further contests the award of P2,040,000 for loss of earning

capacity as unconscionable. Since the victims widow could not present any
income tax return of her husband to substantiate her claim that his net income
was P60,000 annually, then according to appellant, there is no basis for this
award at all. At best, appellant says, only temperate or nominal damages may
be awarded.
The OSG responds that the award for loss of earning capacity has
adequate basis as the prosecution presented sufficient evidence on the
productivity of the landholdings being tilled by the deceased and the
investments made by the Lopate family from their income. Hence, said the
OSG, it was not a product of sheer conjecture or speculation. Nonetheless,
the OSG submits that the original amount of P1,800,000 for loss of earning
capacity should be restored as it is this amount which takes into account only
a reasonable portion of annual net income which would have been received
as support by the heirs.

In setting said award at P2,040,000, amended from P1,800,000, for lost

earnings, the trial court took note of the following factors in its computations:
The Death Certificate of Nemesio Lopate shows that he died at the age of
29. His widows detailed testimony shows that their average annual net
income from vegetable farming was P60,000. The victims share of the
annual net income from the couples farm is half thereof, or P30,000. Using
the American Expectancy Table of Mortality, the life expectancy of the victim
at age 29 is set at 34 years.
[119]

[120]

Therefore, total loss of Earning Capacity (X) should be computed as

follows:
X = 2/3 (80-29) x P30,000
X = 2/3 (51) x P30,000
X = 34 x P30,000
X = P1,020,000
This amount should form part of the damages awarded to the heirs.
We sustain the award of P50,000 as indemnity ex delicto. But there being
no testimony or other proof thereon, the award of P50,000 as moral damages
cannot now be sustained.Instead, temperate damages in the amount
of P25,000 should be awarded.
The award of P20,000 in attorneys fees should be maintained. Records
show that the victims widow had to hire the services of a private prosecutor to
actively prosecute the civil aspect of this case, and in line with Article 2208
of the Civil Code, reasonable attorney fees may be duly recovered.
[121]

[122]

WHEREFORE, the judgment of the Regional Trial Court of La Trinidad,

Benguet, Branch 8, in Criminal Case No. 96-CR-2522 is MODIFIED as
follows:

Appellant June Ignas y Sanggino is found GUILTY beyond reasonable

doubt of the crime of HOMICIDE as defined and penalized under Article 249
of the Revised Penal Code, as amended. There being neither aggravating nor
mitigating circumstance, he is hereby sentenced to suffer an indeterminate
penalty of ten (10) years and one (1) day of prision mayor as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal as maximum.
Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the
victim, Nemesio Lopate, the following sums: a) P7,000 as actual damages;
b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity;
d) P25,000 as temperate damages; and e) P20,000 as attorneys
fees. Costs de oficio.
SO ORDERED.
G.R. No. L-32042 December 17, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION

AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the charge of
murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was
qualified by treachery and aggravated by premeditation and disregard of rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the judgment
of conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary surrender. The penalty was
reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of immediate
vindication of a grave offense and that the aggravating circumstances of disregard of rank should not be appreciated
against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the shooting, by
Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this manner
(Exh. A):

... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P. Paredes,
Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay nagumpisa ng
pagtratrabaho sa Civil Service magmula pa noong November, 1965 ng ako ay nasuspende sa
aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at nasuspende ako ng 60 days at
nabalik ako sa trabaho noong January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION
OF PUBLIC FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at
dinimanda din ako ng Civil Service ng Administrative case ng "DISHONESTY" at dinismiss na ako
sa trabaho ni Commissioner Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa akin na sinabi
ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho noong ay ang binaril ko
kanina na si PEDRO MONCAYO JR. Y RAMOS at naka pending pa ngayon sa City Fiscal ng
Maynila kay Asst. Fiscal Magat at iyon namang "dismissal order" ni Commissioner Subido ay
inapela ko sa Civil Service Board of Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay naghirap na
ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting department
noon at nagagalit sa akin ang mga empleyado ng Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service sa kalye
Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong
kaso ko ay matagal na at hindi pa natatapos at baka matulungan niya ako at ang sagot niya ay
"UMALIS KA NA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at
umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr. sa loob ng
compound ng Civil Service at sa harapan ng maraming tao sinabi niya na "NAGIISTAMBAY PALA
DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969, nakita ko si
PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng Civil
Service, sinundan ko siya at pagliko ng kotse niya sa kanto ng P. Paredes at Lepanto, Sampaloc,
Maynila, ay binaril ko siya ng walong beses at tinamaan siya at napatumba siya sa kaniyang upuan
sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at kayo nga ang
dumating kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the bullets
which he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service Commission at its main
office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in the Administrative
Division from Nov. 1963 continuously up to Nov. 1965 when he was suspended for
"DISHONESTY".
After two months, he was reinstated but was criminally charged for QUALIFIED THEFT,
MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS
and administratively charged for "DISHONESTY" culminating in his dismissal from the Civil Service
on February 1966.

The aforecited criminal charges against the suspect was allegedly investigated by Asst. Fiscal
MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City
Court of Mla. issued a Warrant No. E-316758 for the arrest of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-87409
for the arrest of the suspect for the crime of MALVERSATION OF PUBLIC FUNDS. According to
the suspect, the aforecited criminal and administrative charges filed him were allegedly instigated
and contrived by the victim and since the time of his dismissal, he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested the victim
to help him in his cases but the former allegedly uttered to the suspect "UMALIS KA NGA DIYAN
BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and when they
met again, the victim allegedly remarked in the presence of many people, "NAGIISTAMBAY PALA
DITO ANG MAGNANAKAW". The suspect who was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an
unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL", SQUIRES
BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22 bullets in its cylinder, waited
for the victim outside the Civil Service compound at P. Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation, surreptitiously
followed the victim and when the latter's car was at a full stop at the corner of Lepanto and P.
Paredes sts. due to heavy traffic of motor vehicles, the suspect without any warning or provocation,
suddenly and treacherously shot the victim eight (8) times on the head and different parts of the
body at closer range which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car (w/ Plate No. L55117) by his co-employees (composed of VICTOR VILLAR, ELEUTERIO MENDOZA &
FORTUNATO JOSE Jr.) to the FEU Hospital. Unfortunately, the victim was pronounced DOA by Dr.
P. PAHUTAN, SOD, at 5:40 p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel Transactions
Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to E-2). The accused was a
clerk in the cash section, Administrative Division of the Commission, receiving P1,884 per annum (Exh. D). He started
working in the Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service that Benito
admitted having malversed an amount between P4,000 and P5,000 from his sales of examination fee stamps.
Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division of this
Commission, who, as had previously been reported, malversed public funds in the amount of
approximately P5,000.00 out of his collections from the sale of examination fee stamps.

I wish to state that this matter came to my attention on the evening of March 1, 1965 when Mr.
Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money orders at P2.00 each with
a total vlaue of P100.00 were missing from a bundle of money orders received from the Provincial
Treasurer of Cotabato, which were kept by him in one of the cabinets inside the Cashier's Cashier'
room.
At the same time he also informed me that he suspected that Mr. Benito stole the missing money
orders. His suspicion arose from the fact that he found several money orders marked "Cotabato" as
their place of issue among the cash receipts turned over to him by Mr. Benito that afternoon as his
collection from the sale of examination fee stamps. Mr. Abarquez showed to me the said money
orders issued in Cotabato which were turned over to him by Mr. Benito and after checking their
serial numbers with the records of list of remittances on file, we were able to establish definitely the
fact that the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section and one of
his duties was to sell examination fee stamps to applicants for examinations. It was then the
practice of the cashier to issue to Mr. Benito in the morning examination fee stamps to be sold
during the day and in the afternoon he turned over to the Cashier the proceeds from the sale of
stamps including the unsold stamps issued to him. After considering the work performed by Mr.
Benito, it became evident that he succeeded in malversing the amount of P100.00 by substituting
equivalent amount of money orders in the place of the cash extracted by him from his daily
collections from the sale of examination fee stamps when he clears his accountability with the
Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him whether he
had something to do with the loss of the fifty (50) money orders at P2.00 each. At first he denied,
but when I asked him where he obtained the money orders issued in Cotabato which were included
in his collections the day preceding, he admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing the said
irregularity and how much in all did he actually malversed out of his daily collections from the time
that he started the anomaly. He stated in the presence of Mr. Abarquez that he started in January,
1965 and that although he did not know exactly the total amount malversed by him, he believed the
amount to be between P4,000.00 to P5,000.00. He also confessed that he used the money orders
remitted by the Provincial Treasurer of Negros Occidental in the amount of P3,436.00 in
substituting various amounts extracted by him from his daily cash collections and used by him for
personal purposes.
It appears from the records that the List of Remittances covering the money orders received from
the Provincial Treasurer of Negros Occidental was duly receipted by Mr. Benito. He was supposed
to issue an Official Receipt therefor in favor of the said Provincial Treasurer and then turn over to
the Cashier the amount involved for deposit to the National Treasurer. The said List of Remittances,
duly signed by Mr. Benito, is enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the Commissioner. However, he
pleaded that he be given first an opportunity to restore the amount before I make my report in order
that the penalty that may be imposed upon him may be lessened to a certain degree. As I thought it
wise in the interest of the service to recover the amount involved, I allowed him to go and see his
parents in Naga City to raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a loan with the
Government Service Insurance System and that the proceeds of the said loan which he intended to
use in restoring the amount malversed by him were expected to be released during the last week of

May, 1965. However, when the month of May, 1965 elapsed without the amount involved having
been restored, I conferred with Mr. del Prado, my immediate superior and asked him whether we
should wait further for the release of the said loan in order that the amount involved may be
recovered. Mr. Prado consented to giving him a little more time.
When Mr. Benito still failed to restore the amount in question by the end of June, 1965, I got hold of
him on July 5, 1965 and together with Messrs. del Prado, Abarquez and Gatchalian, also of this
Commission, brought him before Deputy Commissioner A. L. Buenaventura and reported the entire
matter to the Deputy Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian
and myself, Mr. Benito admitted readily and voluntarily before the Deputy Commissioner the
commission of the offense of malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally and that he be
suspended from office immediately considering the gravity of the offense committed by him.
(Sgd.)
PEDRO
R.
MONCA
YO
Administ
rative
Officer II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he had
misappropriated his collections and spent the amount in nightclubs and pleasure spots and for personal purposes.
The decision dismissing him from the service reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, Administrative
Division of this Office, for dishonesty.
The following excerpts from the letter dated October 22, 1965 of the Commissioner of Civil Service
connect respondent with the alleged misappropriation of public funds representing his collection
from the sale of examination fee stamps and constitute the basis of the instant case against him:
An investigation made by this Commission shows that you malversed public
funds in the amount of P3,536.00 out of your collections from the sale of
examination fee stamps while in the performance of your official duties as Clerk II
in the Cash Section, Administrative Division of this Office. It appears that you
succeeded in malversing the above-stated amount from your cash collections by
substituting in lieu thereof money orders worth P3,436.00 remitted to this
Commission by the Provincial Treasurer of Negros Occidental which were duly
receipted for by you. It also appears that you extracted from a bundle of money
orders remitted by the Provincial Treasurer of Cotabato the amount of P100.00 in
money orders which were kept in one of the cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money orders were always kept
in the Cashier's safe and he had no access to them. Although he admitted having received money
orders amounting to P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and
another remittance of the Provincial Treasurer of Cotabato he, however, disclaimed having
substituted the same for cash collections in his sale of examination fee stamps. He reasoned out
further that he could not be charged with malversation of public funds inasmuch as he was not then
an accountable officer.

It appears that respondent, as Clerk in the Cash Section, performs, among other duties, the selling
of examination fee stamps, receiving payments therefor, and receiving remittances in form of cash
and/or money orders from provincial treasurers in connection with examinations held in the
provinces. It was also his duty to issue official receipts for said remittances. In the course of the
performance of his duties, he received said remittances from the Provincial Treasurers of Negros
Occidental and Cotabato, but no official receipts were issued by him, as shown by the reply
telegrams pertaining thereto. While records disclose that remittances from the province of Cotabato
were submitted to the Cashier of the Civil Service Commission, there is no evidence showing that
remittances from Negros Occidental were likewise submitted.
Investigation further reveals that 50 money orders were discovered missing from the remittances of
Cotabato Provincial Treasurer which were kept in the cabinet of the Cashier. On or about March 2,
1965, the Cashier of the Commission noticed that 15 money orders turned over by respondent as
part of his collections in the sale of examination fee stamps were among the missing money orders.
This triggered off the filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio Buenaventura
having misappropriated an aggregate amount ranging from P3,000 to P7,000, which he spent in
night clubs, pleasure spots and other personal benefits. Despite the testimonies of several
witnesses regarding his confession, including that of the then Deputy Commissioner himself,
respondent, when asked to take the stand, denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil Service Commission,
when examined by representatives of the Auditor's Office, did not indicate any shortage and
therefore there was no irregularity involved. This argument is not well taken. Inasmuch as the
remittances received by respondent from said Provincial Treasurers of Negros Occidental and
Cotabato were not in turn given corresponding official receipts, naturally, the same were not
reflected on the Cashier's cash book.
The weakness of respondent's defense lies not so much on its failure to establish convincingly his
innocence as its irreconciliability with established facts. Obviously, none of the circumstances in
this case is consistent with his claim of innocence. On the contrary, all of them put together produce
reasonable assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged.
Wherefore, he is dismissed from the service effective upon his receipt of this decision.
In the interest of the service this decision is executed also on the date of his receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. The appeal
was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, allegedly made
upon seeing Benito in the compound of the Civil Service Commission near the canteen at eleven o'clock in the
morning of December 12, 1969 (about six hours before the shooting): "Nagiistambay pala dito and magnanakaw."
(Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na itong Civil Service pala ay istambayan ng
magnanakaw." (27 tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. Benito contends that Moncayo insulted him
when he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service Commission. Benito
argues that that remark "was tantamount to kicking a man already down and to rubbing salt into a raw wound" and
that, as it was made publicly and in a loud voice, he was exposed to ridicule in the presence of his officemates.

Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975, acquitting
him of the charge of malversation in connection with his alleged misappropriation of the fees collected from the
examinees of the 1974 patrolman examination. That same decision makes reference to Benito's exoneration from the
administrative charge. The court's decision reads as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between October 17, 1964, to
February, 1965, inclusive, in the City of Manila Philippines, the said accused
being then employed as Clerk I of the Civil Service Commission, a branch of the
government of the Republic of the Philippines, among whose duties were to
accept payments of fees collected from the examinees of the 1964 Patrolman
examination, and by reason of his said position received the total amount of
P3,536.00, with the duty to turn over and/or account for his collections to the
cashier of the Civil Service Commission immediately or upon demand but the
said accused once in possession of the said amount of P3,536.00, with intent to
defraud, despite repeated demands made upon him to turn over and to account
for the same, did then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert and malverse the said amount to his own
personal use and benefit, to the detriment of public interest and to the damage
and prejudice of the said Civil Service Commission in the said amount of
P3,536.00, Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil Service Commission
from May 27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I, range 26 from July 23,
1965 (Exhibits A, A-1, A-2). He had the duty, among others, of selling Civil Service examination- fee
stamps and to receive payment therefor, as well as to receive remittances of money orders and
checks from the provincial treasurers for payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in the
information, testified in his direct examination that Benito was working in his office; that one of the
duties that he assigned to him was to sell examination fee stamps; that it was customary for him to
give stamps to Benito at the start of office hours in the morning and that Benito turned over to him
the proceeds of the sale, as well as the unsold stamps, at the close of office hours in the afternoon;
that one afternoon he noticed that Benito turned over to him 50 money orders from Cotabato,
together with some cash, as proceeds of the sale of stamps for that day; that he remembered that
he was missing money orders from one of his cabinets where he kept them; that when he
discovered that the 50 money orders were those which were missing, he reported the matter to
Pedro Moncayo, the chief administrative officer; on March 1, 1965; that the money orders were for
P2.00 each, and were payments of the examination fees from Cotabato (Exhibit F); that he
discovered the loss of the 50 money orders on February 28, 1965 and reported it to Moncayo on
March 1, 1965, together with the list of missing orders (Exhibit M); that after receiving the report,
Moncayo called Benito to the office of Abarquez where he admitted taking the missing money
orders; that Moncayo submitted a memorandum to the Commissioner, dated October 21, 1965,
after giving Benito a chance to refund the value of the money orders (Exhibit O). Alipio
Buenaventura, acting Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer,
testified that when Benito was confronted with the report of Moncayo and Abarquez, he admitted
that he misappropriated about P3,000.00 because of bad company and that he asked for a chance
to refund the money.

Under cross-examination, Abarquez elucidated his testimony in his direct examination and
explained that when Benito turned over the proceeds of the sale of stamps for that particular day,
he kept the sum of P100.00 and replaced it with the 50 money orders that he had taken from the
cashier's office to cover up the money that he had pocketed. When he was asked when he
discovered that Benito substituted the 50 money orders from Cotabato, he answered that he
checked them the following night (March 2, 1965) with the list of money orders remitted by the
Provincial treasurer (Exhibits F, F-1); but when he was confronted with his affidavit which he
executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had only verified 15 money
orders missing as of April 18, 1966 and that he did not keep any record of the money and the
money orders given to him by Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an unlocked drawer was also
occupied by two other persons, and that this was the first time that he had not followed the usual
procedure of keeping them in the safe. He further admitted that, although regular examinations
were conducted during the period of October 1, 1964 to February 28, 1965 by the examiners of the
Civil Service Commission and the auditors of the General Auditing Office, they did not find any
shortage in the accounts of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first he hinted that
they were not deposited with the Bureau of Treasury because they were reported missing; but
when pressed further, he said that he deposited them, but did not issue any official receipt for them.
When asked if he had any evidence to show that they were actually deposited, he admitted that he
could not even remember when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its case, is too weak and
shaky to sustain a finding of guilt because of his glaring inconsistencies, contradictions and gaps in
memory. The prosecution has failed to present convincing evidence that the 50 money orders were
even lost: According to Abarquez he had only verified the loss of 15 on April 18, 1966, although he
testified earlier that he determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General Auditing Office did
not find any irregularity in the cash accountability of Benito, according to Abarquez. This was
corroborated by Romeo Jarabelo, auditor of the Commission on Audit and Miguel Games, auditing
examiner assigned to the Civil Service Commission, who testified for the accused. Benito was in
fact exonorated the administrative charge filed against him for the time same transaction (Exhibit
E).
In fact, the testimony of Abarquez under cross-examination that he has not issued any official
receipt for the 50 money orders and his inability to prove that he deposited them with the bureau of
Treasury gives rise to the suspicion that other persons, not the accused, may have stolen the 50
missing money orders. Even without taking into account the testimony of the accused, who denied
the testimonies of the witnesses for the prosecution, the court believes that the prosecution has
failed to prove the guilt of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the mitigating
circumstance of vindication of a grave offense because it was not specifically directed at Benito. The prosecution
notes that the remark was uttered by Moncayo at eleven o'clock in the morning. According to Benito's testimony (not
consistent with his confession), he saw Moncayo three hours later or at two o'clock in the afternoon and inquired from
him about his case and Moncayo said that he had already submitted his report and he could not do anything more
about Benito's case (26 tan). As already stated, the assassination was perpetrated at around five o'clock in the
afternoon of the same day.

Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances recited
above for changing our prior opinion that the mitigating circumstance of "haber ejecutado el hecho en vindicacion
proxima de una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's favor. As aptly stated by
the ponente, Justice Esguerra, Benito "had more than sufficient time to suppress his emotion over said remark if he
ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa) no ha apreciado la
proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar por la tarde (Sentencia de 11
noviembre 1921); por regla general no es proxima cuando transcurre tiempo suficiente para la razon recobre su
imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si
falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y
proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del autor de
un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en el pecho con
las manos', porque el tiempo transcurrido entre los golpes y la muerte fue suficiente para que el animo del reo se
serenase (Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the assassination
was more than sufficient to enable Benito to recover his serenity. But instead of using that time to regain his
composure, he evolved the plan of liquidating Moncayo after office hours. Benito literally ambushed Moncayo just a
few minutes after the victim had left the office. He acted with treachery and evident premeditation in perpetrating the
cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the latter's
alleged defamatory remark that the Civil Service Commission compound was a hangout for a thief or for thieves but
the refusal of Moncayo to change his report so as to favor Benito. Benito did not act primarily to vindicate an alleged
grave offense to himself but mainly to chastise Moncayo for having exposed the alleged anomalies or defraudation
committed by Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should not be considered
against him because there was no evidence that he "deliberately intended to offend or insult the rank" of Moncayo.
That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the killer was
a clerk in the same office who resented the victim's condemnatory report against him. In that situation, the existence
of the aggravating circumstance of "desprecio del respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior, the chief of
police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his subordinate, the
chancellor of the consulate, who had misappropriated the funds of the consulate, which misappropriation was
discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder was
aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.

G.R. Nos. 39708-09, People v.

David, 60 Phil. 93
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
April 16, 1934
G.R. Nos. 39708-09
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LEOVIGILDO DAVID, defendant-appellant.
Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J Francisco for
appellant.
Office of the Solicitor-General Hilado for appellee.
VILLA-REAL, J.:
This case comprises two appeals taken by the defendant Leovigildo David from
the judgment rendered by the Court of First Instance of Bataan in criminal cases
Nos. 3310 (G.R. No. 39708) and 3296 (G.R. No. 39709), the dispositive part of
which reads as follows:
Wherefore, in criminal case No. 3310, for frustrated murder, the court finds the
defendant Leovigildo David guilty of frustrated murder, without any aggravating
nor mitigating circumstances and, therefore, sentences him to twelve (12) years
and one (1) day of reclusion temporal with the accessory penalties of the law, to
indemnify the offended party Jose V. Reyes in the sum of one thousand pesos,
with no subsidiary imprisonment in case of insolvency, and to pay the costs.
The penalty of reclusion has been imposed instead of cadena following the
doctrine laid down in the case of People vs. Orifon (57 Phil., 594).

In criminal case No. 3296, for discharge of firearms with less serious physical
injuries, the court finds the defendant Leovigildo David guilty of the said crime
and sentences him to two (2) years, eleven (11 months and eleven (11) days
ofprision correccional, with the accessory penalties of the law, and to pay the
costs. So ordered.
In support of his appeal, the defendant-appellant assigns the following alleged
errors as committed by the trial court in its aforesaid decision, to wit:
1. In holding the defendant-appellant guilty of the crime of frustrated murder in
the above entitled case No. 3310, and consequently in sentencing him
to reclusion temporal, to indemnify the offended party and to pay the costs.
2. In holding the defendant-appellant guilty of the crime of discharged of firearm
with less serious physical injuries with which he was charged in the above
entitled case No. 3296 and sentencing him, by virtue of the same, to prision
correccional, with costs.
3. In adopting the prosecution's theory that the defendant, with deliberate intent
to kill Jose V. Reyes, fired from behind four revolver shots at the latter.
4. In not accepting the theory of the defense that the defendant, in firing his
revolver at the offended party, did not intend to kill the latter but he did so in
defense of his father and while the offended party was facing him.
5. In not acquitting the defendant-appellant of the charges in the two above
entitled case.
The two cases at bar arose from two informations filed by the provincial fiscal of
Bataan in the justice of the peace court of Dinalupihan, the one against
Leovigildo David and Teodoro David for frustrated murder committed on the
person of Jose V. Reyes at the time, place and in the manner described in the
corresponding information and the other against said Leovigildo David for
discharge of firearm with less serious physical injuries committed on the person
of German Pinili at the time, place and in the manner described in the
corresponding information. After preliminary investigations had been duly
conducted and the cases forwarded to the Court of First Instance of Bataan, the
same provincial fiscal filed the following informations:

On or about April 18, 1931, in the municipality of Dinalupihan, Province of

Bataan, Philippine islands, and within the jurisdiction of this Court of First
Instance, the abovenamed defendant Leovigildo David willfully, illegally and
criminally shot at German Pinili with his revolver, the bullet penetrating the
latter's left side and lodging itself in the left scapula, as a result of which said
German Pinili was under medical treatment for about 25 days.
That on or about April 18, 1931, in the barrio of Luacan, municipality
Dinalupihan, Province of Bataan, Philippine Islands, and within the jurisdiction of
this court, the said defendant, without any justifiable motive whatsoever and
with deliberate intent to kill Jose V. Reyes with treachery and evident
premeditation, willfully, illegally and criminally, fired four revolver shots at Jose
V. Reyes, who then had his back toward the defendant, inflicting upon him a
serious bullet wound at the back above the left clavicle, the medical treatment
of which lasted about seventy-seven (77) days, having thereby performed all the
acts of execution which should have, as a consequence, produced the crime of
murder on the person of the said Jose V. Reyes, which, nevertheless, was not
consummated by reason of causes independent of the will of the said defendant.
The offended party spent about one thousand pesos for the treatment of his
wound.
The defendant is a recidivist, having been formerly convicted of the offense of
less serious physical injuries in criminal case No. 2901 of this court, by virtue of
a final and executory judgment dated December 8, 1927, the penalty of which
was served by the said defendant.
Contrary to the provisions of article 403, in connection with those article 3,
paragraph 2, of the Penal Code, and with the aggravating circumstance of
recidivism.
From the documentary as well as the oral evidence presented at the joint trial of
the two case, the following pertinent facts, which are necessary for the
resolution of the questions raised in these appeals, have been proven beyond
reasonable doubt, to wit:
The herein defendant-appellant Leovigildo David is the son of Teodoro David,
ademocrata candidate for municipal president of Dinalupihan, and the offended
party Jose V. Reyes is the brother of Emilio Reyes, nacionalista candidate for

member of the provincial board of Bataan, both during the general elections of
1931.
While Emilio Reyes and Teodoro David were engaged in an argument after the
former had quarreled with the aforesaid defendant-appellant, then an election
inspector, because said Emilio Reyes wanted to see the list of registered voters,
Jose V. Reyes, the complaint in criminal case No. 3310 and brother of Emilio
Reyes, arrived at the scene and asked who was making trouble. Upon hearing
him, Teodoro David, in a contemptuous tone, said in Tagalog: "Phse, ichura mong
lalake" (Pshaw, you are but a shrimp) and, opening the door of the car where he
was, rushed upon his interlocutor and the two engaged in a hand-to-hand fight
during which both fell to the ground. Teodoro David fell on his right side, face
downwards, Jose V. Reyes on top of him. The two constabulary soldiers present,
who had arrived in the same car with Teodoro David a few moments before, tried
to prevent them from coming to blows but due to the presence of many people
who were witnessing the quarrel, were unable to make timely intervention and
succeeded in separating the combatants only after they had already fallen to
the ground, Cirilo Dullas raising Jose V. Reyes and holding him aside, while
Esteban Aninang did the same to Teodoro David and took him to his car. While
Jose V. Reyes was on top Teodoro David, there was heard a first shot, which did
not hit its mark, fired by the herein defendant Leovigildo David, later followed by
another which hit the stock of the gun carried by the constabulary soldier Cirilo
Dullas in his right hand as he held Jose V. Reyes with his left hand after
separating the latter from Teodoro David. Upon hearing the second shot and
feeling the bullet hit the stock of his gun, Dullas instinctively shoved Jose V.
Reyes, whom he continued to hold by the left arm with his left hand, causing the
latter stagger and stoop to the right side, his back toward the north whence the
shots came. While Jose V. Reyes was thus stooping, a third shot was heard,
which hit the upper left hand side of Reyes' body, whereupon he fell to the
ground. Immediately thereafter, there rang a fourth shot which hit the left axilla
of the boy German Pinili, who was perched on top of a fence witnessing the fight
between Jose V. Reyes and Teodoro David. Jose V. Reyes was immediately
brought by his brother Emilio Reyes and others to Dr. Gonzalo Nuguid's clinic in
Orani, Bataan, where he was given first aid, while the constabulary soldiers
seized the revolver of the defendant Leovigildo David and placed him under
arrest. In the chamber of the revolver of the defendant Leovigildo David were
found four empty cartridges. Constabulary Captain Cirilo Legaspi, who had been
notified of the incident, immediately ordered the seizure of Jose V. Reyes'

revolver which was found in a box in the latter's house, while he, accompanied
by his brother Emilio Reyes, was being treated by the doctor.
The first question to be decided in this appeal, in connection with the criminal
case for frustrated murder, is one of fact and consists in whether or not Jose V.
Reyes had his back toward Leovigildo David when the latter shot at him.
The witnesses of the prosecution testified in the negative stating that when the
defendant fired the shot which hit Jose V. Reyes, the latter was on top of Teodoro
David, the defendant's father, and in the act of hitting Teodoro on the forehead
for the second time the butt of his revolver. The testimony of the constabulary
soldier Esteban Aninang, who stated that the violent shove given Jose V. Reyes
by his companion Cirilo Dullas caused the said Jose V. Reyes to stagger and
stoop to the right side and at the same time to turn his back toward the
defendant simultaneously with the third shot, corroborates the testimony of the
witnesses for the defense that Jose V. Reyes was facing the defendant.
The second question of fact to be decided is whether or not Jose V. Reyes had
struck Teodoro David with the butt of his revolver, while the latter was under
him, and was in the act of striking said Teodoro David for the second time when
Leovigildo David fired the shot which hit him.
On this point, the testimony of the two constabulary soldiers, who may be
regarded as impartial witnesses, is unanimous in that when Jose V. Reyes
received the bullet wound, he was already standing far from Teodoro David and
beside the constabulary soldier Cirilo Dullas who had dragged him away from
said Teodoro David.
From the foregoing, it may be stated as a conclusion of fact that when Leovigildo
David fired the shot that hit Jose V. Reyes, the latter was facing him, and if the
bullet hit Jose V. Reyes on the back, it was due to the fact that his position was
changed upon being shoved by the constabulary soldier; and that when the said
complainant was already far from Teodoro David.
Now then, do the above facts, which were proven beyond reasonable doubt at
the trial, constitute the crime of frustrated murder for which the defendant
Leovigildo David has been convicted and sentenced?

Inasmuch as the defendant fired the shot facing the victim and in the presence
of many people, he did not employ means, methods and forms in the execution
of the crime, which tend directly and specially to insure its execution without
risk to himself arising from the defense which the offended party might make
(article 10, No. 2, of the old Penal Code). The very fact that Jose V. Reyes had
been shoved by the constabulary soldier Cirilo Dullas shows that he could have
evaded the shot and thereby frustrate the defendant's intent. Therefore, the
circumstance of treachery was not present in the commission of the crime.
Did the defendant Leovigildo David have the intention of killing Jose V. Reyes?
The defendant-appellant invokes the defense of a relative to exempt himself
from criminal liability (article 8, No. 5, of the old Penal Code). It has been shown
that when the said defendant fired at Jose V. Reyes, the aggression had already
ceased and, therefore, the motive for defense; and in firing at his victim, the
defendant's intention could not have been only to repel the aggression against
his father but also to kill Jose V. Reyes. Therefore, the intention of the defendant
Leovigildo David to kill Jose V. Reyes is obvious.
The third question to be decided is whether or not the defendant Leovigildo
David, having intended to kill Jose V. Reyes, had performed all the acts of
execution which should have produced the latter's death, but did not produce it
by reason of causes independent of his will (article 3 of the old Penal Code).
The doctors, who testified as experts on whether or not the wound received by
Jose V. Reyes was necessarily mortal, are not unanimous.
Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can only
make approximate statements, not accurate ones, because in order to
determine the seriousness of a wound a doctor should see the organs internally
affected by it. No doctor can with certainly state the seriousness of a wound for
it is determined only during the autopsy. . . . " (T. s. n., pp. 144, 145.) "On the
basis of general principles, the wound was not mortal. The general principles I
am referring to relate to the mortal positions of the organs and tissues." (T. s. n.,
pp. 151.) "Judging from the position of the scars, I am of the opinion that the left
lung was affected but the affected part is near the border." "It would be
perforated. The effect should be internal hemorrhage but the flow of the blood
would be mortal because the blood vessels in that region are small." "All the

wounds, including those caused at the base of the lungs, are not mortal." (T. s.
n., p. 152.)
It will be seen that the testimony of Dr. Anzures is purely hypothetical because
he has seen nothing but the scars, but nevertheless he is of the opinion that if
the lung had been perforated, it would result in an internal hemorrhage and the
flow of the blood would be mortal because the blood vessels of that part are
small.
Dr. Afable, who may be said to have saved the offended party's life, testified as
follows: "Taking all the abovestated facts into consideration, I arrived at the
conclusion that the blood found in the lung of Mr. Reyes had its origin in the
injury or wound in the upper left part of the chest." (T. s. n., p. 6.) "I am of the
opinion that had not the fluid been drained from the patient's lung, it could have
caused his death, taking into consideration the condition in which he was then
found." (T. s. n., p. 8.) Answering a question regarding the accumulation of the
fluid in the pleural region due to the congestion of the lung, he said: "That is one
of the causes of death in this case, and a continuous internal hemorrhage might
cause death as well." (T. s. n., p. 16.)
From all the above expert testimony, it may be inferred that had it not been for
the timely and adequate medical intervention, the offended party Jose V. Reyes
would have succumbed from the wound in his lung. A wound that may, by itself
alone, produce a similar consequence, is mortal.
The defendant-appellant Leovigildo David, in firing his revolver and hitting Jose
V. Reyes on the upper left hand part of his body, piercing it from side to side and
perforating the lung, then performed all the acts of execution which should have
produced the latter's death but did not produce it by reason of timely and
adequate intervention of medical science, which was completely independent of
his will.
The facts proven at the trial as committed by the defendant-appellant Leovigildo
David constitute the crime of frustrated homicide, defined and penalized in
article 404 of the old Penal Code which was in force at the time of the
commission of the crime. The penalty prescribed by law for the said crime, if
consummated, is reclusion temporal in its full extent. Inasmuch as the crime
with which Leovigildo David is charged herein is merely frustrated, the said
penalty should be one degree lower, that is, prision mayor in its full extent, the

duration of which is from six years and one day to twelve years. In order to
determine the penalty, the presence of the mitigating circumstance of
immediate vindication of a grave offense committed against an ascendant
(article 9, No. 5, of the Penal Code) should be taken into consideration, without
any aggravating circumstance to compensate the same, for which reason the
said penalty should be imposed in its minimum period, that is, from six years
and one day to eight years ofprision mayor (article 81, rule 2, of the Penal
Code).
As to the offended party German Pinili, the evidence shows beyond reasonable
doubt that one of the shots fired by the defendant Leovigildo David hit him on
the left axilla, the treatment of the wound having lasted about twenty-five days.
Although it is true that the shot, which hit the boy German Pinili, was not aimed
at him, however, it cannot be considered accidental because, it having been
voluntarily aimed at Jose V. Reyes, the defendant-appellant Leovigildo David is
liable for the consequences of his act, in accordance with the provisions of
article 1, paragraph 3, of the old Penal Code, which provides that "any person
voluntarily committing a felony (delito) or misdemeanor (falta) shall incur
criminal liability, although the wrongful act done be different from that which he
intended."
Although the crime, which the defendant Leovigildo David had intended to
commit against Jose V. Reyes, was homicide, the crime committed by him
against the boy German Pinili is discharge of firearms with less serious physical
injuries, and the penalty which should be imposed upon him is that which
corresponds to this complex crime, in its maximum period (article 64, paragraph
2, of the old Penal Code). However, inasmuch as he is charged only with the said
complex crime, the only penalty that may be imposed upon him is that
corresponding to this offense of discharge of firearms with less serious physical
injuries, defined and penalized in article 408, in connection with article 418 of
the old Penal Code, with prision correccional in its minimum and medium
periods, that is, from six months and one day to four years and two months,
which should be imposed in its maximum period, that is, from two years and two
months, in accordance with the rule established in article 89, paragraph 2, of
the same Code. There being no modifying circumstance to be taken into
consideration, the said penalty should be imposed in its medium period, that is,

from three years, four months and eight days to three years, nine months and
three days.
In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence
law, is applicable to the defendant-appellant, and consequently the maximum of
the penalty, which he should suffer in case No. 3310, should be the maximum of
that which should be imposed upon him under the law, that is, eight years
of prision mayor; and the minimum, a penalty embraced within that next lower
in degree to that prescribed by law for the crime of frustrated homicide, which
is prision correccional in its full extent, the duration of which is from six months
and one day to six years, that is one year and one day of prision correccional.
Therefore, the total extent of the penalty to be imposed upon the defendant for
the crime of frustrated homicide should be from one year and one day to eight
years.
In criminal case No. 3296, for the complex crime of discharge of firearms with
less serious physical injuries, the maximum of the penalty, which should be
imposed upon the defendant, is the maximum period of the penalty prescribed
by the law, that is, three years, nine months and three days of prision
correccional, and the minimum, four months and one day of arresto mayor, a
penalty embraced within that next lower in degree which is arresto mayor in its
medium and maximum periods, the duration of which is from four months and
one day to six months, and consequently the full extent of the penalty which
should be imposed upon him is from four months and one day to three years,
nine months and three days.
The total amount of the expenses incurred by the offended party for medical
assistance is P1,030.79.
Wherefore, the judgment appealed from is hereby modified, and the defendant
Leovigildo David is declared guilty of the crime of frustrated homicide in criminal
case No. 3310 of the Court of First Instance of Bataan (G. R. No. 39709) and
sentenced to one (1) year and one (1) day of prision correccional to eight (8)
years of prision mayor and to indemnify the offended party Jose V. Reyes for
damages in the sum of P1,030.79; and in criminal case No. 3296 of the said
Court of First Instance of Bataan (G.R. No. 39708), he is declared guilty of the
crime of discharged of firearms with less serious physical injuries, and
sentenced to four months and one day to three years, nine months and three

days, with the costs of both instances in the two cases against the appellant. So
ordered.
Malcolm, Abad Santos, Butte and Diaz, JJ., concur.

G.R. No. 4971, U.S. v. Hicks, 14 Phil. 217

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
September 23, 1909
G.R. No. 4971
THE UNITED STATES, plaintiff,
vs.
AUGUSTUS HICKS, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Jose Robles Lahesa for defendant.
TORRES, J.:
For about five years, from September, 1902, to November, 1907, Augustus
Hicks, an Afro-American, and Agustina Sola, a Christian Moro woman, illicitly
lived together in the municipality of Parang, Cotabato, Moro Province, until
trouble arising between them in the last-mentioned month of 1907, Agustina
quitted Hick's house, and, separation from him, went to live with her brother-inlaw, Luis Corrales. A few days later she contracted new relations with another
negro named Wallace Current, a corporal in the Army who then went to live in
the said house.
On the 21st of December following, at about 7:30 p. m., Augustus Hicks together
with a soldier named Lloyd Nickens called at said house, and from
the sala called out to his old mistress who was in her room with Corporal
Current, and after conversing with her in the Moro dialect for a few minutes,
asked the corporal to come out of said room; in response thereto the corporal
appeared at the door of the room, and after a short conversation, Current
approached Hicks and they shook hands, when Hicks asked him the following

question: "Did I not tell you to leave this woman alone?," to which Current
replied: "That is all right, she told me that she did not want to live with you any
longer, but if she wishes, she may quit me, and you can live with her." The
accused then replied: "God damn, I have made up my mind;" and as Corporal
Current saw that Hicks, when, he said this, was drawing a revolver from his
trousers' pocket, he caught him by the hand, but the latter, snatching his hand
roughly away, said: "Don't do that," whereupon Current jumped into the room,
hiding himself behind the partition, just as Hicks drew his revolver and fired at
Agustina Sola who was close by in the sala of the house. The bullet struck her in
the left side of the breast; she fell to the ground, and died in a little more than
an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to
render assistance and wrested the weapon from the hand of the accused. The
latter immediately fled from the house and gave himself up to the chief of police
of the town, H. L. Martin, asking him to lock him up in jail; and, when a few
minutes later a policeman came running in and reported that Hicks had fired a
shot at Agustina, the said chief of police caused Hicks to be arrested. The latter,
when once in jail, threw eight revolver cartridges out of the window; these were
picked up by a policeman who reported the occurrence and delivered the
cartridges to his chief.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a
complaint with the Court of First Instance of said province charging Augustus
Hicks with the crime of murder. Proceedings were instituted, the trial court, after
hearing the evidence adduced, entered judgment on the 10th of September of
the same year, sentencing the accused to the penalty of death, to be executed
according to the law, to indemnify the heirs of the deceased in the sum of
P1,000, and to pay the costs. The case has been submitted to this court for
review.
The above-stated facts, which have been fully proven in the present case,
constitute the crime of murder, defined and punished by article 403 of the Penal
Code, in that the woman Agustina Sola met a violent death, with the qualifying
circumstance of treachery (alevosia), she being suddenly and roughly attacked
and unexpectedly fired upon with a 45-caliber revolver, at close, if not point
blank range, while the injured woman was unarmed and unprepared, and at a
time when she was listening to a conversation, in which she was concerned,
between her aggressor and third person, and after usual and customary words

had passed between her and her aggressor. From all of the foregoing it is
logically inferred that means, manners, and forms were employed in attack that
directly and specially insured the consummation of the crime without such risk
to the author thereof as might have been offered by the victim who, owing to
the suddenness of the attack, was doubtless unable to flee from the place where
she was standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his
exculpatory allegations which were certainly not borne out at the trial, the
evidence in the case is absolutely at variance therewith and conclusively
establishes, beyond peradventure of doubt, his culpability as the sole fully
convicted author of the violent and treacherous death of his former mistress,
Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of
Current, who had seized him, he fell backward but managed to support himself
on his two hands, and when he got up again the said corporal threatened him
with a revolver thrust into his face; whereupon he also drew his revolver, just as
Edward Robinson caught him from behind, when his revolver went off, the bullet
striking the deceased.
This allegation appears to be at variance with the testimony of the witnesses
Wallace Current, Edward Robinson, Luis Corrales, and Lloyd Nickens in their
respective declaration, especially with that of the second and third, who
witnessed the actual firing of the shot by the aggressor at the deceased, as
shown by the fact that Robinson immediately approached the accused in order
to take his weapon away from him which he succeeded in doing after a brief
struggle, whereupon the aggressor ran out of the house. Thus, the shot that
struck the deceased in the breast and caused her death was not due to an
accident but to a willful and premeditated act on the part of the aggressor with
intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the
presence of other aggravating circumstances, such as premeditation, and the
fact that the crime was committed in the dwelling of the deceased should be
taken into consideration. The last-mentioned circumstances appears proven
from the testimony of several witnesses who were examined at the trial of the
case.

Inasmuch as in the present case the crime has already been qualified as
committed with treachery, the circumstance of premeditation should only be
considered as a merely generic one. Premeditation is, however, manifest and
evident by reason of the open acts executed by the accused. According to the
testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked leave from
the former to be absent from the canteen where he was working on the morning
of the day when the affray occurred, alleging that his mind was unsettled and
that he feared getting into trouble. It is also shown by the fact that Whited, who
was in Hicks' house about noon upon the latter's invitation, and while both
where drinking gin, and while the revolver, the instrument of the crime, was
lying on the table on which were also several loaded cartridges, heard the
accused repeatedly say, referring to the deceased, that her time had come,
adding that he would rather see her dead than in the arms of another man, and
when the accused went to bed apparently very much worried, and refusing to
answer when called, the witness left him. On the day after the crime the police
found on a table in the cuprit's house several loaded cartridges, a bottle of oil
and a piece of cloth used undoubtedly for cleaning the revolver.
All the foregoing circumstances conclusively prove that the accused,
deliberately and after due reflection had resolved to kill the woman who had left
him for another man, and in order to accomplish his perverse intention with
safety, notwithstanding the fact that he was already provided with a clean and
well-prepared weapon and carried other loaded cartridges besides those already
in his revolver, he entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be a proper manner, disguising
his intention and claiming her by his apparent repose and tranquility, doubtless
in order to successfully accomplish his criminal design, behaving himself
properly as he had planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating
circumstances is present, not even that mentioned in paragraph 7 of article 9 of
the Penal Code, to wit loss of reason and self-control produced by jealousy as
alleged by the defense, inasmuch as the only causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and immoral passions.
From the foregoing considerations, and as the judgment appealed from is in
accordance with the law, it is our opinion that the same should be affirmed, as

we do hereby affirm it with costs, provided, however, that the death penalty
shall be executed according to the law in force, and that in the event of a pardon
being granted, the culprit shall suffer the accessory penalties of article 53 of the
Penal Code unless the same be expressly remitted in the pardon. So ordered.
G.R. No. L-7094

March 29, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court below is
conclusively established by the evidenced of record.
The trial court was of opinion that its commission was not marked by either aggravating or extenuating
circumstances, and sentenced the convict to fourteen years eight months and one day of reclusion temporal, the
medium degree of the penalty prescribed by the code. Burt we are of opinion that the extenuating circumstance set
out in subsection 7 of article 9 should have been taken into consideration, and that the prescribed penalty should
have been imposed in its minimum degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx

xxx

xxx

That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had theretofore been
his querida (concubine or lover) upon discovering her in flagrante in carnal communication with a mutual
acquaintance. We think that under the circumstances the convict was entitled to have this fact taken into
consideration in extenuation of his offense under the provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of July 4, 1892,
which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows:
Shall he who kills a woman with whom he is living in concubinage for having caught her in her underclothes
with another party and afterwards shoots himself, inflicting a serious wound, be responsible for that crime
with the extenuating circumstance of having acted with violent passion and obfuscation? The Audiencia of
Santiago de Cuba did not so hold and its judgment was reversed by the supreme court for the improper
disregard of article 9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by
the trial court, and which were the immediate cause of the crime by producing in the accused strong emotion
which impelled him to the criminal act and even to attempt his own life, were a sufficient impulse in the
natural and ordinary course to produce the violent passion and obfuscation which the law regards as a
special reason for extenuation, and as the judgment did not take into consideration the 8th circumstance of
article 9 of the code, the Audiencia rendering it seems to have violated this legal provision."

It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from legitimate feelings, not those which arise from
vicious, unworthy, and immoral passions," and declined to give the benefit of the provisions of this article to the
convict in that case on the ground that the alleged causes for his loss of self-control did not "originate from legitimate
feelings." But in that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection
had resolved to kill the woman who had left him for another man, and in order to accomplish his perverse
intention with safety, notwithstanding the fact that he was already provided with a clean and well-prepared
weapon and carried other loaded cartridges besides those already in his revolver, he entered the house,
greeting everyone courteously and conversed with his victim, in what appeared to be in a proper manner,
disguising his intention and calming her by his apparent repose and tranquility, doubtless in order to
successfully accomplish his criminal design, behaving himself properly as he had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's vexation,
disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with
him, which she had a perfect right to do; his reason for killing her being merely that he had elected to leave him and
with his full knowledge to go and live with another man. In the present case however, the impulse upon which
defendant acted and which naturally "produced passion and obfuscation" was not that the woman declined to have
illicit relations with him, but the sudden revelation that she was untrue to him, and his discovery of her in flagrante in
the arms of another. As said by the supreme court of Spain in the above-cited decision, this was a "sufficient impulse"
in the ordinary and natural course of things to produce the passion and obfuscation which the law declares to be one
of the extenuating circumstances to be taken into consideration by the court.
Modified by a finding that the commission of the crime was marked with the extenuating circumstance set out in
subsection 7 of article 9, and by the reduction of the penalty of fourteen years eight months and one day ofreclusion
temporal to twelve years and one day of reclusion temporal, the judgment of conviction and the sentence imposed by
the trial court should be and are hereby affirmed, with the costs of this instance against the appellant.
Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
G.R. No. L-46530

April 10, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CATALINO RABAO, defendant-appellant.
Jose F. Oreta for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney Paredes, Jr. for appellee.
IMPERIAL, J.:
This is an appeal from a judgment of the Court of First Instance of Camarines Sur convicting the appellant of the
crime of parricide and sentencing him to an indeterminate penalty of from eight years and one day of prision mayor to
twenty years of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs.
The information filed by the acting provincial fiscal of said province charged the defendant with parricide for having
killed his wife Salvacion Agawa on December 15, 1937, in the municipality of Naga, Province of Camarines Sur,
which crime was committed with evident premeditation and abuse of superior strength.
The defendant and the deceased Salvacion Agawa were married before the justice of the peace of Naga on January
15, 1936 and had since been born to the marriage. Since their marriage they had made their home in the house of

Urbano Rellora, who lived maritally with the mother of the accused. On the morning of December 15, 1937, when the
defendant was hardly awake after staying up late the previous night on account of the elections held in the
municipality of Naga, he noticed that his wife was preparing water with which to give the child a bath. He told his wife
not to bathe the child because it had a cold, but the wife insisted and a quarrel arose in the heat of which the accused
punched his wife on the abdomen. She fell seated on a sack of rice nearby and immediately suffered an attack of
which she died in spite of the aid rendered her by the accused himself and other persons who had arrived. The
following morning Dr. Vicente Roxas performed an autopsy and found that the spleen of the deceased had been
hypertrophied due to an acute and chronic malaria from which she had been suffering, and that death was caused by
the hemorrhage of the spleen when it was ruptured as a consequence of an external blow on the abdomen which
might have been that delivered by the accused.
The defense alleges that the lower court erred in declaring that the accused hit the deceased on the abdomen, which
caused her death, instead of finding him, at most, guilty of parricide through reckless imprudence.
After an examination of the evidence, we are of the opinion that the lower court did not err in finding that the accused
hit the deceased on the abdomen which directly caused the rupture of her spleen producing thereby an internal
hemorrhage that caused her almost instant death. Urbano Rellora who, as stated before, was the owner of the house
where the defendant and the deceased lived and who maintained marital relations with the mother of the accused,
testified positively that he saw the accused punched his wife on the abdomen, as a result of which she fell seated on
a sack of rice and that very moment she had an attack, became unconscious and expired. This testimony is
corroborated by Dr. Roxas who performed the autopsy, when he declared that the death was caused by the
hemorrhage produced by the rupture of the spleen which rupture was caused by an external blow on the abdomen of
the deceased. The defendant himself, in his sworn declaration (Exhibit C) subscribed before the justice of the peace
of Naga, voluntarily admitted having hit his wife on the abdomen with his fist when she said things that offended and
made him nervous. The aggression was likewise corroborated by another eye-witness, Raymundo Hilano, who
declared that he was at that time passing in front of the defendant's house when he heard and saw him quarrelling
with his wife and that the defendant was delivering blows on his wife. The testimony of this witness however, seems
incredible and deserves no merit for he testified having seen the aggression through a window which was three and a
half meters high from the ground where he stood. Considering the height of the window and the location of the
witness, it is clear that he could not have seen what was happening inside the house.
The defendant's act is not mere reckless imprudence, as the defense contends, since under article 365 of the
Revised Penal Code the acts that go to make up reckless imprudence must be lawful in themselves, and the attack
consisting in the blow the defendant dealt his wife is certainly not lawful, since it transgresses the Revised Penal
Code itself, which expressly prohibits it under pain of punishment.
The facts proven constitute the crime of parricide defined by article 246 of the Revised Penal Code, and in its
commission there were present the following mitigating circumstances considered by the lower court in favor of the
defendant: lack of intention to commit so grave a crime (article 13 [3], Revised Penal Code); having acted upon an
impulse so powerful as naturally to have produced passion or obfuscation (article 13 [6]); having surrendered himself
to the authorities immediately after the commission of the crime (article 13 [7]); with no aggravating circumstance. As
to the penalty imposed, we find that it is not in accordance with that prescribed by the law. Under article 246 of the
Revised Penal Code the crime of parricide is punished with reclusion perpetua to death. These penalties are
indivisible and the Revised Penal Code provides, in article 63, rule 3, that whenever there is present some mitigating
circumstance with no aggravating one, the lesser penalty shall be applied. In conformity with this legal provision, the
penalty that should be imposed on the accused is that of reclusion perpetua.
After reviewing the facts, we are convinced that the defendant did not really have the intention of committing so grave
a crime as parricide. The quarrel that led to the aggression had its origin from the natural and justifiable desire of the
defendant, as a father, to prevent his child, which was then ill, from being given a bath. If, under the circumstances,
he transgressed the law by an unjust attack on his wife, he is, nevertheless, deserving of the mitigating
circumstances allowed in his favor. We invoke, for this reason, article 5, paragraph 2, of the Revised Penal Code, and

recommended to his Excellency, the President of the Philippines, the commutation of the penalty imposed on the
defendant in this decision.
Modifying the appealed judgment, we declare the defendant Catalino Rabao guilty of the crime of parricide and
hereby sentenced him to reclusion perpetua, and to the accessory penalties provided in article 41 of the Revised
Penal Code, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs in both instances.
So ordered.

PEOPLE
OF
THE
DAWATON, accused.

PHILIPPINES, plaintiff,

vs. EDGAR

DECISION
BELLOSILLO, J.:

EDGAR DAWATON was found by the trial court guilty of murder qualified
by treachery and sentenced to death, ordered to indemnify the heirs of the
victim P50,000.00 plus the accessory penalties provided by law, without
subsidiary imprisonment in case of insolvency, and to pay the costs of suit.
[1]

An Information for murder qualified by treachery and evident

premeditation was filed against Edgar Dawaton on 11 March 1999. When first
arraigned he pleaded not guilty, but during the pre-trial on 7 May 1999, he
offered to plead guilty to the lesser offense of homicide but was rejected by
the prosecution, hence, the case proceeded to trial.
[2]

[3]

The prosecution presented as witnesses the very persons who were with
the accused and the victim during the incident, namely, Domingo Reyes and
Esmeraldo Cortez. The prosecution also presented Generosa Tupaz, the
mother of the victim, to prove the civil liability of the accused.
The evidence for the prosecution: On 20 September 1998 Esmeraldo
Cortez was entertaining visitors in his house in Sitio Garden, Brgy. Paltic,
Dingalan, Aurora. His brother-in-law Edgar Dawaton and kumpadre Leonides
Lavares dropped by at about 12:00 o'clock noon followed by Domingo Reyes
shortly after. All three (3) guests of Esmeraldo were residents of Sitio
Garden. They started drinking soon after. At about 3:00 o'clock in the
afternoon and after having consumed four (4) bottles of gin, they went to the
house of Amado Dawaton, Edgar's uncle, located about twenty (20) meters

away from Esmeraldo's house. They stayed at the balcony of the house and
continued drinking. Amado Dawaton was not in.
Already drunk, Leonides decided to sleep on a papag or wooden bench,
lying down on his right side facing Domingo and Edgar using his right hand for
a pillow. Edgar, Domingo and Esmeraldo continued drinking until they finished
another bottle of gin.
At about 3:30 in the afternoon, twenty (20) minutes after Leonides had
gone to sleep, Edgar stood up and left for his house. When he returned he
brought with him a stainless knife with a blade 2 to 3 inches long. Without a
word, he approached Leonides who was sleeping and stabbed him near the
base of his neck. Awakened and surprised, Leonides got up and blurted:
"Bakit Pare, bakit?" Instead of answering, Edgar again stabbed Leonides on
the upper part of his neck, spilling blood on Leonides' arm.
[4]

[5]

Leonides attempted to flee but Edgar who was much bigger grabbed the
collar of his shirt and thus effectively prevented him from running away. Edgar
then repeatedly stabbed Leonides who, despite Edgar's firm hold on him, was
still able to move about twenty (20) meters away from the house of Amado
Dawaton before he fell to the ground at the back of Esmeraldo's house. But
even then, Edgar still continued to stab him. Edgar only stopped stabbing
Leonides when the latter already expired. Edgar then ran away towards the
house of his uncle Carlito Baras situated behind the cockpit.
Domingo and Esmeraldo were positioned a few meters away from where
Leonides was sleeping when he was initially assaulted by Edgar. They were
shocked by what happened but other than pleading for Edgar to stop they
were unable to help Leonides.
Domingo left for his house soon after the stabbing started as he did not
want to get involved. Nonetheless he felt pity for Leonides so he returned a
few minutes later.
By then, Leonides was already dead and people had already gathered at
the site. The mayor who was in a nearby cement factory arrived and
instructed them not to go near the body.They pointed to the direction where

Edgar fled. Edgar was later arrested at the house of his uncle, Carlito Baras,
at Sitio Aves, Brgy. Paltic, Dingalan.
Accused-appellant Edgar Dawaton was the sole witness for the
defense. He did not deny that he stabbed Leonides Lavares but insisted that
he was provoked into stabbing him. Edgar claimed that the night prior to the
stabbing incident, or on 19 September 1998, his uncle Armando Ramirez went
to his house to welcome his return from Cavite where he worked as a
carpenter. They started drinking gin at about 7:00 o'clock in the evening and
ended at 3:00 o'clock in the morning of the following day. He slept and woke
up at 6:00 o'clock in the morning of 20 September 1998.
Apparently, he did not have enough of the prior evening's drinking orgy. He
went to his uncle's house early that morning and after his uncle bought two (2)
bottles of gin they started drinking again. Domingo Reyes arrived at around
7:30 in the morning and joined them. Esmeraldo Cortez joined them about
12:00 o'clock noon and bought two (2) more bottles of gin.Later, the group
with the exception of Armando Ramirez transferred to the house of Esmeraldo
upon the latter's invitation and drank two (2) more bottles of gin.
In Edgar's version of the stabbing incident, a drunk and angry Leonides
arrived at about 2:30 in the afternoon and demanded that they - he and Edgar
- return candles (magbalikan [tayo] ng kandila). Leonides was godfather of a
son of Edgar. Leonides also cursed and threatened to hang a grenade on
Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako ng granada at
sasabitan kita!).
[6]

[7]

According to Edgar, he tried to calm down Leonides but the latter insisted
on going home purportedly to get a grenade. Alarmed because he knew
Leonides had a grenade, Edgar went home to look for a bladed weapon. He
already had a knife with him but he thought it was short. Not finding another
weapon, he returned to Esmeraldo's house.
When he returned, Leonides was still in Esmeraldo's house and had joined
in the drinking. He sat opposite Leonides who resumed his tirades against
him.

Again Leonides started to leave for his house purportedly to get a

grenade. Afraid that Leonides would make good his threat, Edgar held on to
him and stabbed him. He did not know where and exactly how many times he
struck Leonides but he recalled doing it three (3) times before his mind went
blank (nablangko). Edgar also claimed that he was in this mental condition
when he left Leonides and ran to the house of Carlito Baras. He did not know
that he had already killed Leonides, only that he stabbed him thrice. He
regained his senses only when he reached his uncle Carlito's house.
[8]

Edgar further said that he sought his uncle's help so he could surrender
but he was told to wait because his uncle was then taking a bath. It was while
waiting for his uncle when the policemen arrived to arrest him. He maintained
that he voluntarily went with them.
The medico-legal certificate dated 24 September 1998 issued by Dr.
Ernesto C. del Rosario showed that the victim sustained a stab wound at the
back and ten (10) stab wounds in front. He also had slash wounds on his left
hand and his tongue was cut off. The immediate cause of death was
determined to be "Hypovolemic Shock due to hemorrhage, multiple stabbed
(sic) wounds."
[9]

[10]

On 20 October 1999 the parties entered into several stipulations which

were embodied in an Order. Specifically, they admitted the veracity of
the Sinumpaang Salaysay dated 21 September 1998 executed by SPO2
Ramil D. Gamboa and PO3 Gerry M. Fabros, the police officers who
arrested the accused; the genuineness and due execution of the medico-legal
certificate issued by Dr. Ernesto C. del Rosario; and, the authenticity of the
certificate of death also issued by Dr. del Rosario. Thus, the presentation of
the arresting officers and Dr. del Rosario as witnesses was dispensed with.
[11]

[12]

[13]

On 20 November 1999 the trial court convicted Edgar Dawaton of murder

qualified by treachery and sentenced him to death.
We affirm the conviction of accused-appellant; we however modify the
penalty imposed on him.

The conclusion that accused-appellant murdered Leonides Lavares was

sufficiently proved by the testimonies of prosecution witnesses Domingo
Reyes and Esmeraldo Cortez who both witnessed the fatal stabbing. This was
not refuted by the accused himself who admitted that he stabbed the victim
three (3) times before his mind went blank and could no longer recall what he
did after that.
Treachery clearly attended the killing. The accused attacked the victim
while the latter was in deep slumber owing to the excessive amount of alcohol
he imbibed. We are not persuaded by the version of the accused that the
victim threatened to harm him with a grenade and that it was only to prevent
this from happening that he was forced to stab Leonides. We defer instead to
the judgment of the trial court which gave more credence to the version of the
prosecution witnesses inasmuch as it was in a better position to decide on the
question of credibility, having heard the witnesses themselves and observed
their deportment during trial.
According to the prosecution witnesses, the victim had no chance to
defend himself as he was dead drunk and fast asleep. He had no inkling at all
of what was going to happen to him since there was no prior argument or
untoward incident between him and the accused. From all indications they
were on friendly terms; as in fact they were even kumpadres. No one knew
nor expected that when the accused momentarily excused himself, it was for
the purpose of looking for a knife, and without any warning, stabbing the
victim who was sleeping.
There is treachery when the attack is upon an unconscious victim who
could not have put up any defense whatsoever, or a person who was dead
drunk and sleeping on a bench and had no chance to defend himself.
Clearly, the attack was not only sudden but also deliberately adopted by the
accused to ensure its execution without risk to himself.
[14]

[15]

The accused argues that trial court erred in imposing the death penalty
despite the attendance of mitigating and alternative circumstances in his favor.
He avers that he is entitled to the mitigating circumstance of plea of
guilty. We disagree. While the accused offered to plead guilty to the lesser
offense of homicide, he was charged with murder for which he had already
[16]

entered a plea of not guilty. We have ruled that an offer to enter a plea of
guilty to a lesser offense cannot be considered as an attenuating
circumstance under the provisions of Art. 13 ofThe Revised Penal
Code because to be voluntary the plea of guilty must be to the offense
charged.
[17]

Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal

Procedure requires the consent of the offended party and the prosecutor
before an accused may be allowed to plead guilty to a lesser offense
necessarily included in the offense charged. We note that the prosecution
rejected the offer of the accused.
Nor can the accused avail of the mitigating circumstance of voluntary
surrender as he himself admitted that he was arrested at his uncle's
residence. The following elements must be present for voluntary surrender to
be appreciated: (a) the offender has not been actually arrested; (b) the
offender surrendered himself to a person in authority, and, (c) the surrender
must be voluntary.
[18]

[19]

Resorting to sophistry, the accused argues that he was not arrested

but "fetched" as he voluntarily went with the policemen when they came for
him. This attempt at semantics is futile and absurd. That he did not try to
escape or resist arrest after he was taken into custody by the authorities did
not amount to voluntary surrender. A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt or
because he wishes to save them the trouble and expense necessarily
included in his search and capture. It is also settled that voluntary surrender
cannot be appreciated where the evidence adduced shows that it was the
authorities who came looking for the accused.
[20]

[21]

Moreover, the evidence submitted by the prosecution belies the claim of

the accused that he intended to submit himself to the authorities. The joint
affidavit of the arresting officers, the veracity of which was admitted by the
parties and evidenced by a 20 October 1999 Order of the trial court, revealed
that they chanced upon the accused trying to escape from the rear of the
cockpit building when they came looking for him.
[22]

Similarly, there is no factual basis to credit the accused with the mitigating
circumstance of outraged feeling analogous or similar to passion and
obfuscation. Other than his self-serving allegations, there was no evidence
that the victim threatened him with a grenade. Domingo Reyes and Esmeraldo
Cortez testified that there was no prior altercation or disagreement between
Edgar and Leonides during the drinking spree, and they did not know of any
reason for Edgar's hostility and violence. On the contrary, Esmeraldo Cortez
even recalled seeing the two (2) in a playful banter (lambingan) during the
course of their drinking indicating that the attack on the accused was
completely unexpected.
[23]

[24]

[25]

The accused would want us to reconsider the penalty imposed on him on

account of his not being a recidivist. He contends that an appreciation of this
factor calls for a reduction of the penalty.
We are not persuaded. Recidivism is an aggravating circumstance the
presence of which increases the penalty. The converse however, that is, nonrecidivism, is not a mitigating circumstance which will necessarily reduce the
penalty. Nonetheless, we hold that the trial court erred in not appreciating the
alternative circumstance of intoxication in favor of the accused.Under Art. 15
of The Revised Penal Code, intoxication of the offender shall be considered
as a mitigating circumstance when the offender commits a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit
said felony. Otherwise, when habitual or intentional, it shall be considered as
an aggravating circumstance.
The allegation that the accused was drunk when he committed the crime
was corroborated by the prosecution witnesses. The accused and his drinking
companions had consumed four (4) bottles of gin at the house of Esmeraldo
Cortez, each one drinking at least a bottle. It was also attested that while the
four (4) shared another bottle of gin at the house of Amado Dawaton, it was
the accused who drank most of its contents. In addition, Esmeraldo testified
that when Edgar and Leonides arrived at his house that noon, they were
already intoxicated. There being no indication that the accused was a
habitual drunkard or that his alcoholic intake was intended to fortify his resolve
to commit the crime, the circumstance of intoxication should be credited in his
favor.
[26]

[27]

[28]

Consequently, we find that the trial court erroneously imposed the penalty
of death. The accused was charged with murder for which the law provides a
penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The Revised
Penal Code, in all cases in which the law prescribes a penalty composed of
two (2) indivisible penalties, such as in this case, when the commission of the
act is attended by a mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied. Since no aggravating
circumstance attended the killing but there existed the mitigating circumstance
of intoxication, the accused should be sentenced only to the lesser penalty
of reclusion perpetua.
The trial court correctly ordered the accused to pay civil indemnity in the
amount of P50,000.00 to the heirs of the victim without need of proof other
than the fact that a crime was committed resulting in the death of the victim
and that the accused was responsible therefor. The heirs are also entitled to
moral damages pursuant to Art. 2206 of the New Civil Code on account of the
mental anguish which they suffered, and the amount of P50,000.00 is
considered reasonable according to existing jurisprudence.
[29]

[30]

WHEREFORE, the assailed Decision of the court a quo finding the

accused EDGAR DAWATON guilty of MURDER qualified by treachery is
AFFIRMED with the modification that the penalty is reduced from death
to reclusion perpetua. The accused is ordered to pay the heirs of Leonides
Lavares P50,000.00 in civil indemnity and P50,000.00 in moral damages.
SO ORDERED.

PEOPLE
OF
THE
PHILIPPINES, appellee,
VIERNES y ILDEFONSO, appellant.

vs. ELADIO

DECISION
PANGANIBAN, J.:

Under the Rules of Court, a judgment of conviction in a criminal prosecution may be

modified only upon motion of the accused. As a rule, the prosecution is prohibited from seeking,
and the trial court from granting, a more severe penalty than that imposed in the original
decision. This is especially true in a case in which the new and amended penalty imposed is
death.

The Case
Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 Order of the
Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97
and 0534-97.The assailed Decision convicted appellant of two counts of rape and one count of
attempted rape. It disposed as follows:
[1]

[2]

WHEREFORE, the Court finds the accused, ELADIO VIERNES y

ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the
crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal
Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim.
Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized under
Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by
Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case No. 0534-97
of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised
Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and
sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to
indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral
damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages
in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of
this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as
Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum,
to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of
this suit; and
3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to
indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral
damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages
in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of
this suit.
[3]

On the other hand, the assailed Order increased the penalties as follows:

WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO,

guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as
defined and penalized under Article 335, par. 3 of the Revised Penal Code, as
amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of

Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to
Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659, and in
Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article
335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and
sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify
CATHERINE LINATOC in the amount of P50,000.00, to pay P10,000 as
moral damages pursuant to Article 2219 (3) of the Civil Code, as well as
exemplary damages in the amount of P5,000.00 pursuant to Article 2229
of the same Code and the costs of this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10)
YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in
the amount of P25,000.00 and to pay the costs of this suit; and
3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify
Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral
damages pursuant to Article 2219 (3) of the Civil Code, the amount of P5,000.00,
as exemplary damages, pursuant to Article 2229 of the same Code and the costs of
this suit.
[4]

Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc
(assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor Danilo
S. Sandoval. The Complaint in Criminal Case No. 0532-97 charged appellant with rape
committed as follows:

That on or about the 29th day of September, 1996 at about 10:00 oclock in the morning
at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then the common law husband of the mother
of the victim, did then and there willfully, unlawfully and feloniously, by means of
force and intimidation have carnal knowledge of the undersigned complainant who is
a minor below 12 years old, against her will and consent to her damage and prejudice
in such amount as may be awarded to her under the provision of the Civil Code.
[5]

The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape:

That on or about the 18th day of August 1997 at about 12:00 oclock noon, at
Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then the common law husband of the mother
of the victim, did then and there wilfully, unlawfully and feloniously, by means of

force and intimidation have carnal knowledge of the undersigned complainant who is
a minor of 12 years old against her will and consent to her damage and prejudice in
such amount as may be awarded to her under provisions of the Civil Code.
[6]

Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape:

That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa
City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, being then the common law husband of the mother of the victim, by means
of force and intimidation and with lewd design pursuant to his carnal desire, did then
and there willfully, unlawfully and feloniously commence the commission of the
felony of rape directly by overt acts against the undersigned complainant who is a
minor below 12 years old, by then and there undressing her and going on top of her
with his exposed private organ but did not perform all the acts of execution which
should have produced the said felony because the undersigned offended party resisted.
[7]

Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial
Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the same
court. Later, all the cases were consolidated in Branch 12.
[8]

On arraignment, appellant pleaded not guilty. After trial in due course, the lower court
rendered the assailed Decision.
[9]

In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the
imposed penalties be increased pursuant to Republic Act (RA) No. 7659. The RTC granted the
Motion via the assailed Order.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General presents the following narration of facts:
[10]

Catherine Linatoc stood quietly by the door of the toilet of appellants her mothers
common-law husband house. Her skirts hemlines were slowly falling to her knees
vainly covering the panty that were pulled down mid-way her lower legs. This was the
third of a series of dismaying sex that she and appellant had been through. Like the
others before this one, there was by appellant much pulling, shoving and forcible
grasping of her hands, thus rendering her immobile for three minutes or so.
The third rape happened in appellants house in Tibig, Lipa City, around noontime of
August 18, 1997. Appellant then bidded [sic] the two brothers and a step-brother of
Catherine Linatoc to clean the his tricycle, which was parked on the side of the street

across his house. They followed his order. Appellant also instructed Catherine Linatoc
to fetch water for the house toilet. She obliged, returning with two pails of it. She
deposited them by the door of the toilet. Turning about, Catherine Linatoc was
surprised to find appellant behind her. In quick succession, appellant pushed her to the
wall, pulled her skirts up, drag her panty mid-way her lower leg, and rushed his own
pants down. Grasping her hands tightly with one hand, appellant began inserting his
penis into her vagina. She resisted to no avail. His penis established a comfortable
slide into and out of her [organ], as the pace quickened for about three minutes. The
gyration was furious. After appellant spurted out, he backed off and left saying
nothing.
Frightened and crying, Catherine Linatoc went to her great-grandmothers abode in
San Guillermo, Lipa City. She reported the incident to this elder, and recounted some
more. Catherine Linatoc told her great-grandmother of two other acts of sexual abuse
by appellant. The first one, she narrated, happened on September 29, 1996, about ten
in the morning[;] and the second, on March 1997 around noon-time.
The first rape happened on September 29, 1996 in appellants house. Catherine Linatoc
was on the ground floor of the house when so suddenly appellant sprung from
wherever he was, grabbed and carried her to the second floor. The second floor was
just three steps from the ground floor. He then undressed her, taking off her sando,
skirt and panty. He undressed himself too, and then floored both their bodies, [his] on
top of her. He caressed her breasts and started inserting his penis into her
vagina. Appellant held her hands tightly and fought off her struggle. There was push
and pull for about three minutes, then appellant came through. Appellant dressed up,
and before walking away, apologized to her. It would be the first and last rape, he said.
There was soon the second sexual abuse. In March 1997, about noontime, using the
same strategy as he did in the [first] rape, appellant unburdened himself on Catherine
Linatoc. From nowhere, appellant appeared. He dragged her to the second floor where
he undressed her and himself. He mightily threw her to the floor, his sweaty body
covering hers. Appellant engaged in the now familiar gyration once again. This time,
however his penis landed on the thighs of the victim as insertion, because of her
struggle and vaginas virginal qualities, became frustratingly difficult. Between her
thighs appellant thrusted his penis. He satisfied himself just the same.
The great-grandmother was helpless to remedy the abuse done to Catherine
Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who
arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also
arrived. Catherine Linatoc had her medico-legal examination with these results.:

x x x lacerated hymen on the 3:00 and 9:00 oclock positions with small amounts of
whitish discharge.
The medico-legal examination was performed by Dr. Helen S. Dy. The present
criminal complaints against appellant were thereafter filed.
[11]

Version of the Defense

Appellant denies the charges against him. Claiming to have been elsewhere at the time of the
commission of the alleged crimes, he submits the following counterstatement of the facts:

1) ELADIO, at the lower court, stated that he is the common law husband of Lina de
la Cruz-Linatoc (mother of the alleged victim Catherine Linatoc). He is a security
guard and at the same time, a tricycle driver. On September 29, 1996 he was living
with Lina, together with Catherine, his two sons and other relatives. On September 28,
1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of
her great grandmother and stayed therein even beyond September 29,
1996. Therefore, it is impossible for him (ELADIO) to have attacked Catherine
sexually on September 29, 1996. It is not true that he attempted to rape Catherine in
March of 1997 because he was on duty at that time. Their company logbook will bear
witness thereto. (Exhibit 2, Original Records) On August 18, 1997 it is not true that he
raped Catherine since he was plying his tricyle then. (TSN, pp. 2-13, December 11,
1997; and pp. 2-22, January 8, 1998)
2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of
ELADIO that Catherine was no longer in their house on September 29, 1996 and that
ELADIO could not have abused Catherine sexually. Catherines charge for March
1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998).
xxxxxxxxx

D. Sur-Rebuttal Evidence.
ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case.

[12]

Ruling of the Trial Court

The court a quo held that the testimony of Catherine Linatoc -- both on direct and on crossexamination -- was clear, positive and steadfast. Corroborated by the medicolegal examination
conducted on her, it was replete with details that jibed on material points. The prosecution

successfully proved that she was the daughter of appellants common-law wife and that, at the
time of the crime, she was 12 years old.
The declarations of complainant were accorded full faith and credence on the theory that she
would not publicly acknowledge the defilement of her virtue or subject herself to public
humiliation, if her purpose was not to obtain justice for the wrong committed. There is no
evidence that she was a woman of loose morals or that she had any ill motive to falsely accuse
appellant.
On the other hand, appellants denial and alibi were unsubstantiated and self-serving; hence,
they deserve no weight in law. They cannot stand against Catherines positive testimony.
In the assailed Order, the trial court noted that the prosecutions Motion was unopposed. It
ruled that the increase in the penalty did not place appellant in double jeopardy.
Hence, this appeal.

[13]

The Issues
In his Brief, appellant raises this sole alleged error:
[14]

The lower court has committed an error in convicting the accused-appellant of the
crimes charged and on meting out on him the supreme penalty of death, more
particularly in Criminal Cases Nos. 0532-97 and 0534-97.
An appeal from a criminal conviction, especially one involving the death penalty, throws the
whole case open for review. Thus, it becomes the duty of the reviewing court to correct any error
in the appealed judgment, whether or not it is made the subject of an assignment of error. In
this light, the Court believes that a second issue needs to be taken up, namely:
[15]

Whether the trial court erred in increasing the penalties via the assailed Order.
This Courts Ruling
The trial court was correct in convicting appellant in accordance with the challenged
Decision, but was wrong in imposing the new penalties through the assailed Order.
First Issue: Appellants Culpability
After a thorough review of the pleadings, the transcripts of stenographic notes and other
records of the case, we are convinced that the court a quo did not err in giving credence to the
testimonies of the victim and the other prosecution witnesses. The testimony of private

complainant, detailing how she was abused by appellant on two separate occasions and how he
tried to rape her once more, was clear and convincing. We quote at length:
Q While you were in your house on that date, September 29, 1996, 10:00 oclock in the morning, do
you remember of any unusual incident that transpired if any?
A Yes, sir.
Q What was that unusual incident that transpired?
A After my mother left, I was pulled sir.
Q By whom, who pulled you?
A My step father, sir.
Q Where were you brought, towards what direction?
A Towards the second floor of our house and to the place where we sleep, sir.
Q By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29,
1996, what kind of house is that?
A It is made of Sawali, sir.
Q How about the flooring, how many floors does it have?
A Three (3) steps sir.
Q What do you mean by three (3) steps?
A Our stairs is made of three (3) steps, sir.
Court:
From the ground floor?
A Yes, sir.
Q What is located after going this stairs composed of three (3) steps?
A That is the place where we sleep sir.
Q After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio
Viernes do to you after reaching that upper portion of your house, if he did anything?
Atty. Dimaandal
Leading your Honor.
Court
Answer.
A He undressed me sir.
Q What were you wearing that Eladio Viernes took of[f] from your body?
A I was wearing a skirt which was my uniform sir.
Q What else I[f] any were taken of[f] from your body by Eladio Viernes?
A My blouse, sando and my skirt and my panty sir.

Q After Eladio Viernes took of[f] your clothing, after removing your clothing what did Eladio Viernes
do on your body?
A He placed himself on top of me.
Q When Eladio Viernes placed himself on top of you, what was he wearing if any?
A None sir.
Q By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at
that time?
A He was wearing pants, sir.
Q You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was
already naked, what did he do with hi[s] pants before he went on top of you?
A He mashed [m]y breast sir.
Q What else did he do [to] you aside from mashing your breast?
A He inserted his penis into my vagina.
Q By the way, while he was mashing your breast, what were you doing if you did anything?
A I was fighting him back sir.
Q What did Eladio Viernes do when you fought him back while he was mashing your breast?
A He was slapping me sir.
Q When he inserted his penis into your vagina, what did you feel?
A Painful, sir.
Q Was Eladio Viernes able to actually insert his penis[?]
Atty. Dimaandal
Leading your honor.
Q After Eladio Viernes inserted his private organ into your private organ, what else did he do if
anything more?
A He did pumping motion, sir.
Q For how long did he do this pumping motion, while his penis was inside your vagina?
A About three (3) minutes sir.
Q After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside
your vagina, what else did he do if he did anything more?
A He removed his private organ sir.[16]

We also quote the testimony of the victim regarding appellants attempt to rape her:
Q When was the second time, after September 26, 1996?
A In May 1997 but I do not remember the exact date sir.
Q Are you sure about the date?

Atty. Dimaandal
That is the answer of the witness.
Prosecutor
Thats why I am asking, are you sure about the date?
A May 19, 1997 sir.
Q By the way, in [the] second incident [where] Eladio Viernes according to you raped you again,
where did this happen?
A At Barangay Tibig, Lipa City.
Q In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes?
A In the upper portion of our house at the place where we are sleeping sir.
Q The same place where the second rape was committed?
A Yes, sir.
Q Around what time did this happen, this second rape happened?
Atty. Dimaandal
We make it of record that the witness cannot answer.
Prosecutor
The witness is thinking . . .
A Noontime sir.
Q How did this happen?
A He again pulled me sir.
Q By the way on that second occasion, where was your mother?
A She was working sir.
Q You said that you were again pulled, where were you brought by Eladio Viernes at the same time
around?
A The upper portion of our house and at the place where we were sleeping sir.
Q After you were pulled by Eladio Viernes, what did Eladio Viernes do to you?
A He undressed me sir.
Q What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that
same occasion?
A I was wearing a skirt sir.
Q After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything?
A He again placed himself on top of me sir.
Q What was he wearing he placed himself on top of you if he was wearing anything?
A He was wearing pants sir.

Q When he placed himself on top of you, where was his pants?

A He removed pants sir.
Q When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second
time around?
A He again mashed my breast sir.
Q What did you do when Eladio Viernes again mashed your breast?
A I was fighting him back sir.
Q What else did he do aside from mashing your breast, what did Eladio Viernes do to you?
A He was inserting his penis into my vagina sir.
Q When Eladio Viernes was inserting his penis into your vagina, what did you do?
A I was struggling sir.
Q When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your
vagina?
A It was not inserted sir.
Q What did Eladio Viernes do when he failed to insert his penis into your vagina?
A He just placed it between my thighs sir.
Q After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?
Atty. Dimaandal
May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there
was no vagina [sic].
Q You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs?
Atty. Dimaandal
Leading
Court
Answer.
Interpreter
Witness pointing to the inner portion of her two thighs
Q What did Viernes do after he put his penis between the inner portion of your two thighs?
A [H]e placed his penis between my thighs and he again did the pumping motion sir.[17]

Pertinent portions of the testimony of complainant regarding her second defilement in the
hands of appellant read as follows:
Q Miss Witness, on August 18, 1997 around 12:00 noon where were you?
A I was at home sir.
Q What were you doing?

A I just arrived from school sir.

Q You said that you were in your house, where was this house located on that date, August 18, 1997?
A At Barangay Tibig sir.
Q You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa
City on August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody
there?
A My step father sir.
Q Meaning Eladio Viernes?
A Yes sir.
Q Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if
he did anything upon seeing him or meeting you?
A He instructed our companions in the house to clean the motor tricycle sir.
Q After instructing your companions in your house to clean the motor tricycle, what else did Eladio
Viernes do, if he did anything more?
A He asked me to fetch two (2) containers of water sir.
Q By the way, these your companions of your house, [sic] who where given the instruction by Eladio
Viernes to clean the motor tricycle, who are these companions [sic] of your house?
A My two brothers and one step brother, sir.
Q How old were these two brothers of yours and your one step brother who were given the instruction
by Eladio Viernes to clean the motor tricycle?
A My step brother was 12 years old; my two brothers were six and 5 years old sir.
Q How far was this tricycle from your house?
A Near the street sir.
Q Around how many meters if you can calculate was this tricycle from your house or can you point
distance from the place where you are sitting now to any place inside the court room?
Interpreter
Witness pointing to the railings inside the Court room as their house and the witness pointed to the
western wall of the court room as the place where the tricycle was to be around 7 meters sir.
Q What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving
the instruction from your step father Eladio Viernes to clean the motor tricycle?
A They followed the instruction of my step father to clean the tricycle sir.
Q How about you when you were instructed by your step father to fetch two (2) containers of water,
what did you do?
A I brought the water near the comfort room sir.
Q After you brought the two (2) containers of water to the place were you said a while ago, what did
Eladio Viernes do to you if he did anything?

A He followed me sir.
Q After Eladio Viernes followed you, what did he do [to] you if he did anything?
A I was frightened sir.
Q Why?
Atty. Dimaandal
Not responsive your honor. I move to strike out the answer of the witness.
Court
Continue.
Q Why did you get frightened?
A Because I felt that he will repeat the same thing sir.
Q What do you mean repeat the same thing?
A He will again repeat raping me sir.
Q When you got frightened, what did you do?
A I tried to struggle sir.
Q Why did you struggle, what was Eladio Viernes doing [to] you?
A He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me
from going out sir.
Q What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the
comfort room?
A I could not go out [o]f the comfort room because I was held by my step father sir.
Q After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more?
A He pulled down my panty sir.
Q Up to what portion was that panty of yours pulled down?
Interpreter
Witness pointing to her ankle
Q After Eladio Viernes pulled down your panty up to your ankle, what did he do to you?
A He was inserting his penis into my vagina, sir.
Q What was your position in relation to Eladio Viernes when he was inserting his penis into your
vagina?
A I was standing sir.
Q How about Eladio Viernes, where was he in relation to you while he was inserting his penis into
your vagina?
A He was at my back sir.

Q What happened to this effort of Eladio Viernes in trying to insert his private organ into your private
organ?
A It was inserted sir.
Q You said that you were standing, what was the form or what was the position of your body aside
from the fact that you were standing when Eladio Viernes was able to insert his penis into your
vagina while he was at your back?
A I was standing and I was struggling sir.
Q When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of
your body aside from the fact that you were standing?
A I was standing with my knees bent sir.
Q After Eladio Viernes was able to insert his penis into your vagina while you are in a standing
position, how long was his penis inside your vagina?
A About three (3) minutes sir.[18]

Catherine impressed the trial court as a decent woman [who has] not been shown to be of
loose morals or one who goes out with different men any time of the day or night. A rape
victim who testifies in a categorical, straightforward, spontaneous and frank manner -- and
remains consistent -- is a credible witness. It is well-entrenched that the trial court is in the best
position to assess the credibility of witnesses and their testimonies because of its unique
opportunity to observe them firsthand and to note their demeanor, conduct and attitude on the
stand. In the absence of any showing that its assessment is flawed, an appellate tribunal is
bound by it.
[19]

[20]

[21]

Despite the tender age of complainant, her accounts on direct and cross-examination were
replete with details that jibed on material points. Considering her young age, it would have
been highly improbable for her to fabricate a charge so humiliating to her and her family, had she
not been truly subjected to the painful experience of sexual abuse.
[22]

[23]

The moral ascendancy of appellant as the common-law husband of complainants mother

takes the place of force and intimidation as an element of rape, although the presence of such
element is apparent from Catherines testimony.
[24]

Alibi and Corroboration

Appellant denies having raped Catherine on September 29, 1996, claiming she was at her
grandmothers house in San Guillermo, while he was outside his house digging a toilet
pit. Allegedly, in March 1997, he was on duty as a security guard at the Smart Tower; and on
August 18, 1997, he was busy the whole day plying his tricycle route.
The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear
and convincing evidence, are negative and self-serving evidence that deserve no weight in
law. They cannot be given greater evidentiary value over a credible witness testimony on
affirmative matters. Except for Lina Linatocs corroboration, the only evidence supporting the
alibi and denial of appellant is his own say-so. And Lina happens to be his common-law wife;
[25]

thus, her testimony is necessarily suspect and cannot prevail over the testimonies of more
credible witnesses. Negative testimony cannot prevail over the offended partys positive
identification of the accused as her rapist.
[26]

[27]

Finally, for alibi to prosper, it must be shown that the accused was in another place at the
time the crime was committed, and that it would have been physically impossible for him to be at
the scene of the crime at the time it was committed. Such physical impossibility was not proven
in
the
present
case. The
Smart Tower
where
appellant
worked as
a
security guard was located also in Barangay Tibig, Lipa City, and was only a thirty-minute walk
from his house. The tricycle station, on the other hand, was only 1000 meters away. Note that he
had a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence.
[28]

Attempt to Settle the Case

Appellant strongly denies the prosecutions assertion that he attempted to settle the case with
complainants family.
We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated
November 25, 1997 -- addressed to Orlando and Catherine Linatoc, signed by appellant and
delivered by Lina Linatoc -- was admissible evidence against appellant. Perusal of the letter
reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a promise of an
additional P100,000 in exchange for dropping the charges against him. Under Section 27, Rule
130 of the Rules of Court, an offer of compromise by the accused may be received in evidence as
an implied admission of guilt.
[29]

Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary surrender.
We disagree. The act of surrender must be spontaneous, accompanied by an
acknowledgment of guilt, or an intention to save the authorities the trouble and the expense that
search and capture would require. Going to the police station to clear his name does not show
any intent of appellant to surrender unconditionally to the authorities.
[30]

[31]

Medicolegal Officers Testimony

Appellant avers that the medicolegal officer who examined complainant admitted being
unsure of her findings.
We disagree with the assessment by appellant of the testimony of the medicolegal
officer. However, even if we discount the testimony of the latter, complainants testimony by
itself can sustain the formers conviction. Medical examination is not an indispensable
requirement, and its absence does not affect the verdict of conviction, if sufficient evidence is

presented to prove the crime charged. When a rape complainant, especially one of tender age
like Catherine, says that she has been raped, she in effect says all that is necessary to show that
she has indeed been raped.
[32]

Civil Indemnity and Moral Damages

The Solicitor General takes issue with the damages awarded by the RTC. In the assailed
Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in moral damages
and P5,000 in exemplary damages for every count of consummated rape; and P25,000 in civil
indemnity for the attempted rape.
Recent jurisprudence has increased the indemnification for the victim in a case of
consummated rape to P75,000 if the crime was committed with, or effectively qualified by, any
of the circumstances under which the death penalty is authorized by the applicable amendatory
laws. Moral damages are pegged at P50,000 without further need of pleading or proof.
[33]

Exemplary damages, on the other hand, are granted when an aggravating circumstance,
which is not offset by a mitigating circumstance, attended the commission of the crime. In
several cases, the relationship between the appellant and the rape victim justifies the award of
exemplary damages, as in this case.
[34]

Second Issue: Modification of Penalties

One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion
for Reconsideration seeking the imposition of the death penalty on appellant for the two cases of
consummated rape and reclusion temporal for the attempted rape, in accordance with Section 11
of RA 7659. The prosecution argued that the Motion would not place appellant in double
jeopardy, because what is sought is just the imposition of the proper penalty as provided by law.
The trial court concurred with the prosecution and granted the Motion in the assailed Order,
saying that the Motion was unopposed and that there was no violation of appellants right against
double jeopardy.
[35]

[36]

We disagree. Conflicting decisions rendered over the years both allowing the prosecution to
seek the reconsideration of a conviction and prohibiting it therefrom necessitate a review of the
rule on the modification of judgments of conviction. Early on, in People v. Ang Cho Kio, the
Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the prosecution
cannot move to increase the penalty imposed in a promulgated judgment. Reopening the case for
the purpose of increasing the penalty as sought by the government would place the accused in
double jeopardy. This ruling was followed in People v. Pomeroy and People v. Ruiz.
[37]

[38]

[39]

The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification
or the setting aside of the judgment before it became final or an appeal was perfected. Under
this amendment, a judgment acquired finality and the trial court lost jurisdiction only in the
following cases: (1) after the 15-day period to appeal lapsed, (2) when the defendant
voluntarily submitted to the execution of judgment, (3) when the defendant perfected the appeal,
[40]

[41]

(4) when the accused withdrew the appeal, (5) when the accused expressly waived in writing
the right to appeal, and (6) when the accused filed a petition for probation. Under this
amendment, the trial court had plenary power to alter or revise its judgment in accordance with
the requirements of law and justice.
[42]

[43]

[44]

In 1985, Section 7 of Rule 120 was amended to include the phrase upon motion of the
accused effectively resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking
a modification of a judgment of conviction. As amended, the provision was worded as follows:
[45]

SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the

accused, be modified or set aside by the court rendering it before the judgment has
become final or appeal has been perfected. A judgment in a criminal case becomes
final after the lapse of the period for perfecting an appeal, or when the sentence has
been partially or totally satisfied or served, or the accused has expressly waived in
writing his right to appeal, or the accused has applied for probation.
Under this Rule, a judgment of conviction, before it became final, could be modified or set
aside upon motion of the accused. It obviously aims to protect the accused from being put anew
to defend himself from more serious offenses or penalties which the prosecution or the court may
have overlooked in the original trial. It does not however bar him from seeking or receiving more
favorable modifications.
[46]

Significantly, the present Rules, as amended last year, retained the phrase upon motion of the
accused, as follows:

SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the

accused, be modified or set aside before it becomes final or before appeal is
perfected. Except where the death penalty is imposed, a judgment becomes final after
the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing his
right to appeal, or has applied for probation.
Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the
penalties without the consent of the accused.
We close this Decision with an exhortation to the defense counsel to be more circumspect in
defending appellant and others similarly situated. Counsel should have immediately objected to
the Motion for Reconsideration in the trial court. Because of this failure to take exception, the
RTC judge meekly granted the relief prayed for and condemned the accused, inter alia, to two
death sentences.
Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of
the assailed Order. We cannot disregard such serious lapse. We urge counsel, as well as all the
members of the bench and the bar, to be more vigilant in protecting the rights of the accused -especially those in jeopardy of the death penalty -- and to keep abreast of legal
developments. Indeed, the learning process in law never ceases. Utmost dedication to duty and
excellence is expected of every lawyer.
[47]

WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order

is ANNULLED and SET
ASIDE, while
the
assailed
Decision
is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral damages
are increased to P50,000 and those for exemplary damages to P25,000 for each consummated
rape, pursuant to current jurisprudence.
[48]

SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. RONNIE ABOLIDOR,

CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused.
CLAUDIO BARCIMO, JR., appellant.
DECISION
YNARES-SANTIAGO, J.:

This is an appeal from the decision dated January 31, 2000 of the
Regional Trial Court of Iloilo City, Branch 31, in Criminal Case No. 40948,
convicting Claudio Barcimo, Jr. @ Noc-noc, Ronnie Abolidor and Francisco
Comoda of the crime of murder, sentencing them to suffer the penalty
of reclusion perpetua and ordering them to pay P100,000.00 as civil
indemnity, P16,000.00 as actual damages and P30,000.00 as moral and
exemplary damages.
[1]

Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were

indicted for Murder in an Information alleging:
That on or about the 14 day of June 1993, in the Municpality of New Lucena, Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and helping one another together with another
unidentified person, armed with firearms of unknown caliber, with deliberate intent
and decided purpose to kill, with treachery, superior strength and evident
premeditation, did then and there, willfully, unlawfully and feloniously attack and
shoot Thelma Subosa with said firearms hitting the latter on the head, chest and other
parts of her body which caused the death of said Thelma Subosa immediately
thereafter.
th

CONTRARY TO LAW.

[2]

Upon arraignment, the three accused pleaded not guilty. Trial on the
merits ensued.
[3]

The victim, Thelma Subosa, was the mother of 14 children with her
deceased husband, Primo Subosa. Subsequently, she cohabited with her
common-law husband Warlito Huesca and lived together with some of her
children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito
Huesca also died.
In the early morning of June 14, 1993, a day after Warlito was buried, the
victim, her children namely, Ellyn, Roselyn, Evelyn, Manilyn, Leopoldo and
Lilibeth, and Milagros Huesca, the younger sister of Warlito Huesca, were
awakened by the forcible opening of the door of their house. Four men
entered the house and declared a hold up. The victim pleaded not to be
harmed. Instead, accused Ronnie Abolidor tied her mouth with a handkerchief
to silence her. Then appellant Claudio Barcimo, Jr. shot the victim several
times causing her instantaneous death.
[4]

Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr.

and Ronnie Abolidor since they slept on the same mat with the victim and a
kerosene lamp was near the victims head. Both testified that they knew
Ronnie Abolidor because he was their neighbor for several years, and Claudio
Barcimo, Jr. because he was a friend of their deceased stepfather. Francisco
Comoda was later identified by the witnesses at the police station.
[5]

[6]

Roselyn also testified that on June 12, 1993, at the burial of their
stepfather, the victim told her that it was Claudio Barcimo, Jr. @ Noc-Noc who
killed Warlito Huesca.
[7]

For his part, appellant denied any participation in the killing of Thelma
Subosa and claimed that he could not have done it because he was a good
friend of Warlito Huesca; that on June 13, 1993, at around 4:00 p.m., he was
with Brgy. Capt. Buol in a celebration at the house of Brgy. Capt. Gerardo
Paniza at Brgy. Dawis. He had dinner and watched game of mahjong; that at
around 10:00 p.m., he went to sleep on the sofa near the mahjong table; that
the mahjong game lasted until 4:00 a.m. the following day; that he and Capt.

Buol went back to New Lucena at about 6:00 a.m. of June 14, 1993; and on
the next day, he left for Manila for treatment of tuberculosis.
[8]

After trial, the trial court convicted the three accused on January 31, 2000
in a decision, the dispositive portion of which reads:
WHEREFORE, the prosecution having sufficiently established the guilt of all the
three accused, namely, Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor alias
Ronnie and Francisco Comoda, beyond reasonable doubt (Rule 133, Sec. 2, Revised
Rules of Court) of the offense of Murder under Art. 248, R.P.C. as alleged in the
Information, this Court hereby renders judgment sentencing all the said accused to
suffer the penalty of imprisonment consisting of Reclusion Perpetua, with all the
attendant accessory penalties, to pay P100,000.00 as indemnity for death to the heirs
of the late Thelma Sobusa, to pay the sum of P16,000.00 as actual damages, and
P30,000.00 by way of moral and exemplary damages and to pay the costs.
SO ORDERED.

[9]

Only Claudio Barcimo, Jr. appealed the decision raising the following
assignment of errors:
A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF
PROSECUTION WITNESSES ELLEN SOBUSA AND ROSELYN SOBUSA AND IN
NOT APPRECIATING THE TESTIMONY OF THE AUNT OF SAID WINTNESSES
AS CORROBORATED BY THE BARANGAY CAPTAIN OF THE PLACE WHERE
THE INCIDENT HAPPENED THAT THE SAID PROSECUTION WITNESSES HAVE
NOT IDENTIFIED THE KILLERS.
B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN
THE COMMISSION OF THE CRIME.
C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN
THE COMMISSION OF THE CRIME.
D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY
SURRENDER OF THE ACCUSED.[10]

Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and
Roselyn as one of the assailants is doubtful because when asked whether
they know the assailants, they replied in the negative.

The contention is without merit.

By challenging his identification by the witnesses of the prosecution, as
one of the assailants of the victim, the appellant attacks the credibility of said
witnesses and the probative weight of their testimonies. However, when the
issue of credibility of witnesses is in question, the findings of facts of the trial
court, its calibration of the testimonies of witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings
are accorded by the appellate court high respect if not conclusive effect,
precisely because of the unique advantage of the trial court in observing and
monitoring at close range the demeanor, deportment and conduct of the
witnesses as they testify, unless the trial court has overlooked, misconstrued
or misinterpreted cogent facts of substance which if considered might affect
the result of the case.
[11]

In the case at bar, there is no showing that the trial court overlooked,
misunderstood, misapplied or misconstrued any fact of substance that might
materially affect the outcome of the case. The trial court found the collective
testimonies of the prosecution witnesses Ellyn and Roselyn to be:
generally impressionable but their natural naivet and inexperience make them reliable
witnesses. Their statements are generally free from any bias or prejudice as to be
slanted or malicious. It is observed that the testimonies of Ellyn and Roselyn Sobusa
are direct, straightforward and delivered without any hesitancy whatsoever.
[12]

The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively

identified appellant as the one who shot the victim. Although the incident
occurred during nighttime, the house of the victim was sufficiently illuminated
by the kerosene lamp placed near the head of the victim, which provided
enough light for purposes of identifying the killers.
On direct testimony, Ellyn Sobusa narrated the incident as follows:
Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident
that happened?
A. Yes, sir.

Q. What is that incident about?

A. At around that time I was awakened by the sound of the opening of the door. I saw
four (4) persons entered our house and one them said, This is a hold up. My
mother then pleaded, Do not kill me.Have mercy.
Q. What happened after your mother pleaded have mercy?
A. There was a shot and I ducked. Then another shot was fired which I do not know
anymore because I lied with my face down.
Q. Do you know the person who said this is a hold up?
A. Yes, sir.
Q. Who is he?
A. Nocnoc.
Q. How far is this Nocnoc when you said he shot your mother?
A. Very near.
Q. What was the position of your mother by the time she was shot by Nocnoc?
A. She was lying down.

xxxxxxxxx
Q. Miss witness, this incident happened at around 2:00 oclock in the morning, why are
you sure that Ronnie Abolidor was one of the four persons who entered your
house?
A. Because we have a kerosene lamp placed very near the head of my mother.
Q. How far is that kerosene lamp from your mother?
A. Witness demonstrates about 5 to 6 inches more or less.
Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene
lamp?
A. Nocnoc was situated on the feet of my mother.
Q. What was the position of Nocnoc when he shot your mother?

A. He was standing.[13]

Considering the illumination from the kerosene lamp, and Ellyns proximity
to her mother and to the appellant, she could have clearly seen and
recognized the appellant when he shot the victim.
In People v. Prieto, we ruled that the illumination provided by kerosene
lamp or wicklamps, and flashlights, moonlight or starlight may, in proper
situations, be considered as sufficient illumination, making the attack on the
credibility of witnesses solely on that ground unmeritorious.
[14]

Moreover, Roselyn testified that she was familiar with the voice of the
appellant as he was a friend of his stepfather and she visited appellants house
several times. The voice of a person is an acceptable means of identification
where it is established that the witness and the accused knew each other
personally and closely for a number of years. Once a person has gained
familiarity with another, identification becomes quite an easy task even from a
considerable distance. We also note that appellant did not deny that Warlito
Huesca was his good friend and that he visited their house many times.
[15]

[16]

[17]

The credibility of the prosecution witnesses Ellyn and Roselyn is not

adversely affected by their failure to immediately report the identities of the
perpetrators to the responding authorities immediately after the
incident. Indubitably, fear stifled the witnesses from voicing their knowledge of
the identities of the perpetrators. There is no rule that a witness should
immediately name the suspect in a crime. Nevertheless, the delay was not
that long as when the police authorities investigated the witnesses in the
afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara, Iloilo, they named
appellant and accused Ronnie Abolidor as two of the perpetrators.
[18]

[19]

To escape criminal liability, appellant invokes the defense of alibi and

denial. He asserts that he could not have done it considering that Warlito
Huesca, the common-law husband of the victim, was his good friend and at
the time of the incident he was at Brgy. Dawis together with Brgy. Capt. Buol
in the house of Brgy. Capt. Gerardo Pineza watching the game of majhong.
We are not convinced.

It is well settled that positive identification, where categorical and

consistent and not attended by any showing of ill motive on the part of the
eyewitnesses testifying on the matter, prevails over alibi and denial which, if
not substantiated by clear and convincing evidence, are negative and selfserving evidence undeserving weight in law. Hence, the defense of denial
and alibi cannot prosper in the light of the positive identification by
eyewitnesses Ellyn Sobusa and Roselyn Sobusa that appellant was the one
who shot their mother.
[20]

We agree with the trial courts appreciation of the presence of qualifying

circumstance of treachery. 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 insure its execution,
without risk to himself arising from the defense which the offended party might
make. It is settled that there is treachery if the victim, when killed, was
sleeping or had just awakened, because in such cases the victim was in no
position to put up any form of defense.
[21]

In the case at bar, the victim had just awakened from sleep because of the
forcible opening of their door. When she was shot by appellant, she was lying
down on the mat with a handkerchief tied around her mouth. Obviously, in this
position she can not defend herself from the aggression of the perpetrators.
The trial court did not err in disregarding the mitigating circumstance of
voluntary surrender. To benefit an accused, the following requisites must be
proven, namely: (1) the offender has not actually been arrested; (2) the
offender surrendered himself to a person in authority; and (3) the surrender
was voluntary. A surrender to be voluntary must be spontaneous, showing the
intent of the accused to submit himself 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. Voluntary surrender
presupposes repentance. In People v. Viernes, we held that going to the
police station to clear ones name does not show any intent to surrender
unconditionally to the authorities.
[22]

[23]

In the case at bar, appellant surrendered to the authorities after more than
one year had lapsed since the incident and in order to disclaim responsibility

for the killing of the victim. This neither shows repentance or acknowledgment
of the crime nor intention to save the government the trouble and expense
necessarily incurred in his search and capture. Besides, at the time of his
surrender, there was a pending warrant of arrest against him. Hence, he
should not be credited with the mitigating circumstance of voluntary surrender.
[24]

Appellant is guilty of Murder, qualified by treachery, for the killing of

Thelma Sobusa. Article 248 of the Revised Penal Code, as amended,
imposes the penalty of reclusion perpetua to death for Murder. The trial court
was correct in imposing the penalty of reclusion perpetua, there being no
aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2 of
the Revised Penal Code.
The trial court awarded the amount of P100,000.00 as civil indemnity to
the heirs of the victim. Said amount must be reduced to P50,000.00, in line
with prevailing jurisprudence.
[25]

The award of actual damages must also be modified. While appellant

admitted the amount of P19,000.00 as actual damages, the trial court only
awarded the amount of P16,000.00. Ordinarily, receipts should support
claims of actual damages, but where the amount claimed was admitted, it
should be granted. Consequently, the heirs of the victim is entitled to be
awarded the amount of P19,0000.00 as actual damages.
[26]

[27]

[28]

The trial court likewise erred when it awarded the amount of P30,000.00
as moral and exemplary damages without indicating what amount constitutes
moral damages and exemplary damages. In murder and homicide cases, the
award of moral damages should be substantiated by evidence. In the case at
bar, the prosecution failed to present proof of moral damages.Therefore, the
same should be deleted.
[29]

On the other hand, exemplary damages must be awarded in view of the

attendance of treachery which qualified the killing to Murder. Under Article
2230 of the Civil Code, exemplary damages as part of the civil liability may be
imposed when the crime was committed with one or more aggravating
circumstances. The term aggravating circumstances as used therein is to be
understood in its broad or generic sense since the law did not specify

otherwise. The ordinary qualifying nature of an aggravating circumstance is a

distinction that should only be of consequence to the criminal, rather than to
the civil liability of the offender. Thus, the heirs of the victim are entitled to
exemplary damages in the amount of P25,000.00.
[30]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial

Court of Iloilo City, Branch 31, in Criminal Case No. 40948, insofar as it finds
Claudio Barcimo, Jr. @ Noc-noc guilty beyond reasonable doubt of the crime
of murder and sentences him to suffer the penalty of reclusion perpetua is
AFFIRMED with the MODIFICATION that appellant is ORDERED to pay the
heirs of Thelma Sobusa the amounts of P50,000.00 as civil indemnity,
P19,000.00 as actual damages and P25,000.00 as exemplary damages. The
award of moral damages is DELETED.
Costs de oficio.
G.R. No. L-37271

July 1, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MAGDALENA CALISO, defendant-appellant.
Juan Sumulong for appellant.
Attorney-General Jaranilla for appellee.
ABAD SANTOS, J.:
The appellant in this case was convicted of the crime of murder by the Court of First Instance of Occidental Negros,
and sentenced to suffer the penalty of reclusion perpetua, to indemnify the parents of the deceased in the sum of
P1,000, with the accessory penalties prescribed by law, and to pay the costs. On this appeal, her counsel de
oficio attacks the findings of fact of the trial court, but does not raise any question of law.
The questions of fact involved in this case are fully discussed in well considered decision of the trial court, presided
over by then Judge Quirico Abeto, which decision reads as follows:
Se halla acusada Magdalena Caliso del delito de asesinato de un nio de 9 meses de edad, ocurrido en La
Carlota, Negros Occidental, el dia 8 de febrero del presente ao, 1932. La querella alega que la acusada,
siendo una criada de los Sres. Esmeralda (Emilio), voluntaria, ilegal y criminalmente y con el proposito de
satisfacer una venganza, administro cierta cantidad de acido acetico concentrado, que es una sustancia
venenosa, a Emilio Esmeralda, Jr., un nio de 9 meses de edad, causandole quemaduras en la boca, en la
garganta, en los intestinos y otras partes vitales de los organos internos que le produjeron necesariamente
la muerte de la victima, quien sucumbio pocas horas despues; que en la comision de este delito, han
concurrido las circunstancias agravantes de alevosia, abuso de confianza y que el acto se ha cometido en
la propia morada de los padres de la victima.

Despues de presentadas las pruebas, tanto de la acusacion, como de la defensa, y despues de oidos los
brillantes informes aducidos tanto por el Fiscal Provincial, como por el abogado de oficio de la acusada, el
Juzgado se ha reservado la decision para este dia, no sin antes felicitar tanto a la acusacion como a la
defenda, la primera por lo concienzudo en la reunion y presentacion de sus pruebas, y la segunda por el
interes grande con que ha demostrado a favor de la acusada. El Juzgado ha querido tomar tiempo para
decidir esta causa, porque se da cuenta de lo grave que es el delito cometido y de las circunstancias tanto
de la acusada como de los ofendidos en esta causa. Por un lado, esta la acusada, que es una mujer que
pertenece al sexo debil, en la primavera de su vida, a quien una sentencia podria privar de todos los
beneficios que la vida le ofrece. Por otro lado, una madre loca de dolor que ha perdido al unico hijo varon
de la familia y que considera a la causada como la persona que le ha arrebatado su unico cario. Por eso el
Juzgado ha querido, hasta donde le ha sido posible, poner toda su atencion en todos los detalles de las
pruebas, observando hasta los menores actos de los testigos y de la acusada.
Y de las pruebas presentadas, el Juzgado encuentra que en la tarde del dia 8 de febrero de 1932, mientras
los esposos. Sres. Emilio Esmeralda y Flora Gonzalez estaban durmiendo tomando la siesta,
repentinamente la Sra. de Esmeralda se desperto porque oyo un grito agudo de su hijo Emilio Esmeralda,
de 9 meses de edad, que estaba durmiendo en una cama al lado opuesto del sitio donde estaba ella
durmiendo con su marido. Cuando la Sra. de Esmeralda llego, seguida de su marido, a la cama donde
habia dejado dormido a su hijo, al levantar el mosquitero de la cama, percibio inmediatamente un olor fuerte
de acido acetico y encontro a su hijo, que seguia llorando fuertemente, con los ojos en blanco, los labios
hinchados y blanquecinos y la cara amoratada, y al levantarle percibio olor de acido acetico en la
respiracion del nio. Entonces grito preguntando quien habia puesto acido acetico en la boca de su hijo, y
como ella es farmaceutica de profesion, se acordo inmediatamente de un antidoto que podia neutralizar los
efectos del acido acetico y ella misma saco agua de cal y mojando un algodon hidrofilo, limpio la boca del
nio, al mismo tiempo que mandaba a su marido que llamara por telefono al doctor. Pocos momentos
despues llego el Dr. Augusto Locsin, quien segun su declaracion, noto inmediatamente el olor de acido
acetico en la respiracion del nio, y quiso hacer la primera cura, lavando el estomago del nio, pero la
madre no quiso que el lavado llegara hasta el estomago, por el temor de lastimar la garganta del chiquillo
con el 'catheter', y por este motivo el lavado solamente se pudo hacer hasta la garganta del nio. Despues
de algun tiempo, llegaron, procedentes de Bacolod, los Dres. Orosa y Ochoa, quienes por telefono habian
sido llamados tambien por el padre de la victima. El Dr. Orosa es el jefe medico del Hospital Provincial de
esta provincia, y el Dr. Ochoa es uno de los medicos residentes en dicho hospital, especialista en las
enfermedades de los cinco sentidos. Ambos doctores declararon positivamente que habian percibido el olor
de acido acetico en la respiracion del nio, y habiendo ellos concluido que el chiquillo habia tomado acido
acetico, aplicaron la cura para eliminar dicha sustancia del organismo del nio, y despues de hacer las
primeras curas, llevaron al nio al Hospital Provincial y alli murio pocos minutos despues de haber llegado.
Ambos doctores, asi como el Dr. Locsin, son unanimes en la afirmacion de que la muerte del chiquillo se
debio al envenenamiento por medio de acido acetico, y todos, especialmente el Dr. Ochoa, coinciden en la
opinion de que la muerte ha sido por asfixia, pues el acido acetico ha hecho estragos en la laringe del nio
y este no pudo respirar. El Dr. Ochoa que, como se ha dicho, es un especialista en los cinco sentidos,
examino la boca y la garganta del nio y encontro alli quemaduras ocasionadas, segun el, por el acido
acetico. Y tan seguros estan los doctores de que el nio habia tomado acido acetico y que la muerte del
mismo se debio a esta sustancia, que el mismo Dr. Orosa, que es un medico de muy larga experiencia y un
experto cirujano, le aseguro al Fiscal que no habia necesidad de autopsia para llegar a una conclusion
rayana a la seguridad sobre la causa de la muerte del chiquillio, y que aun cuando la autopsia demostrara
que no existia acido acetico en los intestinos de, nio, ya porque este habia sido absorbido por el
organismo, o ya porque el estomago habia sido lavado, el estaba segurismo de que la muerte se debio al
envenenamiento por acido acetico, porque el habia olido esa sustancia, cuyo olor es inconfundible, en la
respiracion del nio y ha visto los estragos de la sustancia en la garganta y en la boca del occiso. Ambos
medicos, de un modo positivo, sin dudar ni un momento, aseguraron al Juzgado de que la causa de la
muerte, como se ha repetido varias veces, es por envenenamiento por acido acetico. Y el Juzgado esta
conforme en que en tales circunstancias, no habia necesidad de autopsia para que el Juzgado pueda

concluir, en vista de las afirmaciones de los medicos basadas en los hechos por ellos encontrados, que la
muerte ha sido por envenenamiento por acido acetico.
El Juzgado no tiene duda alguna de la competencia de estos dos doctores, sobre todo tratandose de la
opinion del Dr. Ochoa, que es un especialista en los cinco sentidos y que ha reconocido la garganta y la
boca del nio, en las cuales encontro quemaduras pruducidas por aciso acetico.
Aparte de esto, la madre del occiso, que es una farmaceutica, acostumbrada a oler y distinguir sustancias,
percibio el olor del acido acetico en los primeros momentos en que alzo a su hijo de la cama. El marido de
esta seora, Sr. Emilio Esmeralda, tambien es un quimico y aseguro tambien haber olido el olor fuerte del
acido acetico desde los primeros momentos. Aparte de estas dos personas que pueden equivocarse, ya por
su pasion o por las preocupaciones de momento por estar interesados por su hijo, esta el Sr. Julian Gomeri,
otro quimico que vivia en la misma casa, quien aseguro al Juzgado que al entrar en el cuarto donde estaba
el chiquillo en brazos de su madre, olio inmediatamente el olor sofocante del acido acetico, tanto es asi que
pregunto inmediatamente quien habia puesto acido acetico en la cama del nio y en seuida se puso a
buscar por si habia dicha sustancia en la cama del nio, pero no encontro ninguna botella de acido acetico,
ni rastro de esta sustancia en la cama, sino en la respiracion del nio.
Por eso el Juzgado repite que esta probado fuera de toda duda racional que el nio Emilio Esmeralda, Jr.,
murio a consecuencia de envenenamiento de acido acetico, y es insostenible la teoria de que pubo haber
tenido una indigestion por haber ingerido jugo de naranja de California despues de haber tomado leche, y
de que el olor del acido acetico podia derivarse del vomito dle chiquillo por la mezcala del jugo de naranja
con la leche. Tres medicos y tres quimicos es imposible que confundan el olor del jugo de naranja que se ha
vuelto acido al mezclarse con la leche, con el olor fuerte del acido acetico concentrado.
Habiendo llegado a esta conclusion de que la muerte del nio Emilio Esmeralda, Jr., se debio a
envenenamiento por acido acetico, la otra cuestion que el Juzgago tiene que resolver es: quien le
administro esta sustancia.
Desde este punto las pruebas son todas circunstanciales unicamente.
Es un hecho probado que dias antes de este suceso, al volver el Sr. Emilio Esmeralda a su casa,
procedente de la fabrica de la Central La Carlota, a eso de la madrugada, not cierto bulto que se movia en
los bajos de su cama en el cuarto-habitacion de el y de su seora cuando esta pasaba algunos dias en La
Carlota. Temiendo que algun ladron se habia introducido debajo de la cama, cogio su revolver y amenazo
con dispararle un tiro al que estaba alli metido si no salia. Efectivamente de alli salio un hombre y, todo
temblando, le dijo al Sr. Esmeralda que el no era un ladron, sino que estaba alli porque habia sido llamado
por la acusada con quien estaba en relaciones amorosas. El Sr. Esmeralda entonces le recrimino por su
acto y le dejo marchar, conminandole que no volviera a repetir el acto. Cuando la Sra. Flora Gonzalez llego
a La Carlota algunos dias despues, o sea en el dia de autos, el Sr. Esmeralda, despues del desayuno y
estando entonces ausente la acusada por haber ido al mercado, le conto a su seora lo que habia sucedido
en uno de los dias pasados, o sea, el haber sorprendido a un hombre en su propio cuarto y debajo de su
misma cama, acudiendo a una cita que tuvo con la acusada. La Sra. de Esmeralda, dada su educacion y
por ser mujer al fin, se sintio muy ofendida e indignada por el acto de su criada y, muy nerviosa, espero la
vuelta de la acusada, y cuando esta llego, la Sra. Esmeralda la busco en la cocina, la empezo a insultar de
pies a cabeza, recriminandola por su acto inmoral y por haberse permitido ocultar a su amante en el propio
cuartro de sus amos, y despues de regaar a la acusada, se volvio a su cuarto, y pareciendole poco la
recriminacion que acababa de hacer a la acusada, otra vez la Sra. de Esmeralda volvio a la cocina a
reprenderla de nuevo, y como no se calmaban los nervios de la Sra. de Esmeralda en estas dos ocasiones,
a medida que volvia a la cocina, emprendia nuevos insultos a la acusada, en terminos que cuando la Sra.
de Esmeralda puso a dormir a su hijo en la cama, cuando encontro algo sucias las fundas de la almohada,
otra vez se fue a la cocina y volvio a amonestar a la acusada recriminandola y diciendola que solamente

sabia tener amantes y no sabia cumplir sus deberes como criada. Apenas dos horas escasas de ocurrir
estos insultos, ocurrio el suceso que dio lugar a la muerte del nio Emilio Esmeralda, Jr.
Procediendo por eliminacin, el Ministerio Fiscal ha tratado de probar al Juzgado, y asi alega en su informe,
que en el momento de ocurrir el incidente del envenenamiento del nio, solamente estaban en aquel dia
viviendo en la casa donde ocurrio el suceso, diez personas, a saber: los esposos Esmeralda, sus dos hijas,
Lilia y Elsa, el nio Emilio Esmeralda, Jr., Julai Gomeri, Jose Colmenares, Catalino Ramos, una criada de
unos 12 aos de edad, llamada Magdalena Soriano, y la aqui acusada. El Ministerio Fiscal dice que no
pueden ser autores dle envenenamiento, ni el Sr. Esmeralda, ni su esposa. El Juzgado, desde luego, esta
conforme con esta eliminacion. No es posible que estos sean los autores de tal envenenamiento; ademas
de ser padres, la actitud de la madre, enloquecida de dolor por la muerte de su hijo, aleja toda duda. Seria
absurda la mas remota suposicion de que estas personas fuesen los autores de tal envenenamiento. No
podia ser Elsa Esmeralda porque esta, aparte de sus pocos aos, estaba durmiendo con su hermanito en la
misma cama donde ocurrio el incidente. No podia ser Lilia, ni la criada Magdalena Soriano, porque ambas
estaban entonces en el retrete, segun las pruebas; ademas que no podia caber la suposicion de que, o
Magdalena Soriano, o Lilia hayan administrado equivocadamente acido acetico al nio dormido, por cuanto
que la botella que lo contenia estaba en la cocina, segun la acusada misma, cerca del cantaro de agua
donde ella habia puesto, y la acusada, segun ella misma, estaba toda la tarde en la cocina fregando platos,
de tal manera que si Magdalena Soriano o Lilia hubiesen querido alcanzar la botella de acido acetico, la
acusada los hubiera visto. Julian Gomeri estaba dormido en su cuarto; era un compaero del Sr. Esmeralda
en el trabajo, amigo intomo de la familia y no ha tenido ningun disgusto con ningun miembro de ella y no
hay motivo alguno para atribuir que el haya puesto en la boca del nio acido acetico. Jose Colmenares
estaba en la fabrica de la Central, que dista medio kilometro de la casa ocupada por los Sres. de
Esmeralda, ocupado en sus trabajos como empleado de dicha Central. Catalino Ramos estaba ausente
entonces en la localidad, pues se encontraba en el pueblo de Talisay. Eliminadas estas personas,
solamente queda la acusada como posible autora del acto de administrar acido acetico al nio Emilio
Esmeralda, Jr.
Desde luego, la prueba de que la acusada, pocas horas antes del suceso, era la unica de la casa que habia
recibido insultos de la madre del nio, es una prueba circunstancial contra ella. Ninguno tenia motivos de
resentimiento hacia ningun miembro de la familia del occiso mas que la acusada. Ella misma ha admitido
durante su testimonio que en aquel dia ella habia sido reprendida por su ama. Cuando el nio Emilio
Esmeralda, Jr., dio un grito agudo que hizo despertar a su madre, Julian Gomeri, que estaba dormido en el
otro cuarto, pudo abrir los ojos y vio a la acusada saliendo de la puerta de la sala y dirigiendose hacia la
cocina. Por esta sala habia que pasar al salir del cuarto donde estaba dormido el nio, para ir a la cocina; y
la distancia de la puerta de esta sala al sitio donde estaba durmiendo el nio habia apenas 4 o 5 metros. La
acusada no ha podido desmentir esta declaracion de Julian Gomeri, ni ha podido dar explicacion alguna por
que en aquel preciso momento ella salia de la sala para ir a la cocina. Es posible que despues de haberse
puesto el acido acetico en la boca del nio, este no haya podido gritar inmediatamente, sino algunos
segundos despues al sentir los efectos del acido, de tal manera que la acusada tuvo tiempo para
abandonar el sitio y volver a la cocina y estando en la sala, el nio dio el primer grito que le hizo abrir los
ojos a Julian Gomeri. Este hecho es otra prueba circunstancial bastante fuerte, a juicio del Juzgado, contra
la acusada. Cuando la madre del nio estaba curando a este, ordeno a la acusada y a Magdalena Soriano
a que hirvieran agua en la cocina, y mientras estas dos criadas cumplian la orden, la acusada, sin motivo
alguno plausible, le puso las manos debajo de las narices de Magdalena Soriano y le dijo: "Mis manos
estan oliendo acido acetico porque se ha derramado algo alli cuando hice vinagre esta maana con acido
acetico." Esta explicacion no pedida hecha por la acusada no parece indicar otra cosa mas que algun temor
que abrigaba por si alguien pudiese oler acido acetico en sus manos. Otra prueba circunstancial contra la
acusada es el hecho de que en la casa ella era la unica que tenia bajo su custodia esta botella Exhibit A que
contenia acido acetico. Magdalena Soriano no sabia siquiera donde estaba puesta esta botella. Cuando la
Sra. de Esmeralda busco esta botella, cuyo recuerdo le trajo a la memoria al oler el acido acetico en la boca
de su hijo, la acusada fue quien saco la botella de la cocina y le entrego a la Sra. de Esmeralda, diciendola,
poco mas o menos, estas palabras: "Seora, aqui esta botella; no ha salido de la cocina."

La acusada, al declarar en la silla testifical como testigo a su favor, al ser preguntada por el Juzgado si ha
olido acido acetico al entrar en el cuarto, se inmuto algun tanto; pero inmediatamente se repuso y nego
rotundamente haber olido acido acetico. El Juzgado le dirigio varias veces esta pregunta, y la acusada
insistio en su negativa. El Juzgado le pregunto si conocia el acido acetico y el olor del mismo, y afirmo que
si y volvio a afirmar que no habia percibido tal olor en el cuarto al entrar y durante todo el tiempo que habia
permanecido alli. Ahora bien, tres medicos imparciales, does quimicos y una farmaceutica, aparte de
Magdalena Soriano, han olido el inconfundible olor de acido acetico en el cuarto. La unica que no ha podido
oler dicha sustancia es la acusada. En la comisionde un crimen, el unico que tiene interes en negar la
existencia de un cuerpo del delito es casi siempre, o sin casi, el autor del mismo. Y esta actitud de la
acusada de negar una cosa tan evidente y sobre la cual el Juzgado no tiene duda alguna, corrobora, a
juicio del Juzgado, todas las pruebas circunstanciales que se han presentado por la acusacion.
La defensa hace enfasis en el hecho de que la acusada, lejos de escaparse, entro en el cuarto para ayudar
a la madre del nio para salvar a este, y tanto es asi que la misma acusada, segun Julian Gomeri, tan
pronto como la Sra. de Esmeralda pidio algodon, fue la que saco de las manos de Julian Gomeri el algodon
y lo entrego a la Sra. de Esmeralda. Este hecho no es, a juicio del Juzgado, suficiente para demostrar la
inocencia de la acusada. Cuantas veces ha sucedido que el que ha realizado un acto criminal, se
arrepiente de su crimen y trata de remediarlo! El que acaba de herir a un hombre, despues de pasado el
primer momento de obcecacion, si el pudiera curarlo, indudablemente no se encontraria mejor medico para
el herido. Tambien puede suceder que la acusada, habiendo querido causar daos unicamente a la criatura,
haya querido usar de toda su habilidad para que los efectos del dao no fuesen tan grandes. La actitud de
la acusada, por tanto, es perfectamente explicable y no incompatible con su culpabilidad. Otra actitud de la
acusada que parece tener bastante peso es su actitud cuando ella volvio por la tarde del dia siguiente del
suceso a la estacion de policia cuando el Jefe de Policia le dijo que volviera en aquella tarde. Y el abogado
de la acusada tiene razon para hacer enfasis sobre esta circunstancia. La acusada ha sido arrestada casi a
media noche del mismo dia del suceso. Fue puesta en libertad a las 11 de la maana del dia siguiente, en
vista de que no llegaba orden de arresto contra ella; pero el Jefe de Policia le dijo que volviera a las 3 en
punto de la tarde, y a las 3 de aquella tarde la acusada volvio al edificio municipal. El abogado de la
acusada arguye que una conciencia criminal no procederia como ha procedido la acusada; ella se hubiera
escapado. El Juzgado ha considerado detenidamente este aspecto de la cuestion; ha meditado largamente
sobre este acto de la acusada; pero la conclusion del Juzgado es que si la acusada volvio en la tarde de
aquel dia al edificio municipal, era porque la acusada no sabia que el nio Emilio Esmeralda, Jr., habia
muerto. Ademas, ella debia saber que, mujer que era, no podia ir a ninguna parte sin que le alcanzaran las
autoridades correspondientes y, por tanto, era mejor para ella presentarse ante las autoridades
aparentando tener una conciencia tranquila y preparando en esa forma su futura defensa. El Juzgado cree
que desde el momento en que la acusada mostro solicitud suma para salvar la vida del nio que ella habia
segado en momentos de colera, la acusada ya habia concebido su plan de defensa.
Se dira tal vez quo no es usual que, habiendo la madre del nio ofendido a la acusada, esta, en lugar de
tomar venganza de la madre, que muchas oportunidades hubiera ella tenido porque, segun ha tratado de
resaltar el abogado de la defensa, la acusada dormia en el mismo cuarto de los esposos Esmeralda y
preparaba la comida de estos, haya dirigido su accion vengadora a una inocente criatura, maxime teniendo
en consideracion que la acusada es una mujer y las mujeras, por regla general, son mas caritativas que los
hombres. En primer lugar, ya sea un hombre, ya sea una mujer, cuando estan obcecados por el odio y la
venganza, ya no consideran las circunstancias y procuran dirigir su venganza al que les ha ofendido alli
mismo donde es mas facil ejecutar. En este caso, el nio Emilio Esmeralda, Jr., era el que dormia mas
cerca a la puerta entrando inmediatamente, procedente de la cocina, y era el que, por su tierna edad, podia
sentir inmediatamente los efectos del acido acetico, pudiendo asi ejecutar su venganza con mayor
seguridad de su parte. Causando dao al nio, que, por ser el unico varon de la familia, era el mas querido
por los Sres. de Esmeralda, se causaba mayor dao a la Sra. de Esmeralda. El Juzgado, desde luego,
acepta la teoria de que la mujer es mucha mas caritativa que el hombre y mucho mas debil del consenso
comun; pero precisamente por ser mas caritativa, por ser mas debil, cuando la mujer se vuelve mala y
quiere vengarse, su venganza busca al mas debil tambien y sobre este hace recaer esa venganza, y la
experiencia diaria nos ensea que los seres mas debiles, sean hombres o mujeres, cuando se vuelven

malos, son peores enemigos; y no es nada extrao, por tanto, que la acusada, temiendo atacar al Sr.
Esmeralda y a la Sra. de Esmeralda, porque contra ellos no tenia asegurada la ejecucion de su venganza,
ha escogido como victima a una criatura indefensa de 9 meses de edad.
Por las consideraciones expuestas, el Juzgado encuentra probado fuera de toda duda racional que Emilio
Esmeralda, Jr., de 9 meses de edad, fallecio el dia 8 de febrero de 1932, a consecuencia de
envenenamiento por acido acetico concentrado, y que la acusada, aprovechando la ocasion en que sus
amos estaban durmiendo, administro una pequea cantidad de esta sustancia a dicho nio, quemandole de
este modo la boca y la garganta, a consecuencia de lo cual dicho nio fallecio.
Se declara, por tanto, a la acusada Magdalena Caliso culpable del delito de asesinato, y estimando en la
comision del delito la concurrencia de la circunstancia agravante de alevosia, porque se trata de un ser
indefenso, y de la circunstancia de haberse realizado el acto en la propia morada de los padres de la
victima, cuyas circunstancias estan compensadas con las circunstancias atenuantes de falta de instruccion
y de haber obrado la acusada a impulsos de un sentimiento que la hayan producido arrebato y obcecacion,
le condena a la pena de reclusion perpetua, a indemnizar a los padres del occiso en la suma de P1,000,
con las accesorias de ley, y a pagar las costas del juicio. Asi se ordena.
We agree to the conclusions of fact reached by the trial court. As to the application of the law to the facts of the case,
we are inclined to the proposition advanced by the Attorney-General that in the commission of the crime the
aggravating circumstance of grave abuse of confidence was present since the appellant was the domestic servant of
the family and was sometimes the deceased child's amah. The circumstance of the crime having been committed in
the dwelling of the offended party, considered by the lower court as another aggravating circumstance, should be
disregarded as both the victim and the appellant were living in the same house. (U.S. vs. Rodriguez, 9 Phil., 136;
U.S. vs. Destrito and De Ocampo, 23 Phil., 28.) Likewise, threachery cannot be considered to aggravate the penalty
as it is inherent in the offense of murder by means of poisoning (3 Viada, p. 29). Similarly the finding of the trial court
that the appellant acted under an impulse so powerful as naturally to have produced passion and obfuscation should
be discarded because the accused, in poisoning the child, was actuated more by a spirit of lawlessness and revenge
than by any sudden impulse of natural and uncontrollable fury (People vs. Hernandez, 43 Phil., 104, 111) and
because such sudden burst of passion was not provoked by prior unjust or improper acts of the victim or of his
parents (U.S. vs. Taylor, 6 Phil., 162), since Flora Gonzalez had the perfect right to reprimand the defendant for
indecently converting the family's bedroom into a rendezvous of herself and her lover.
The aggravating circumstance of abuse of confidence being offset by the extenuating circumstance of defendant's
lack of instruction considered by the lower court, the medium degree of the prescribed penalty should, therefore, be
imposed, which, in this case, is reclusion perpetua.
The penalty imposed by the lower court upon the appellant being thus within the limits fixed by law, the judgment
appealed from is affirmed with costs. So ordered.

G.R. No. L-49430, People v. Lora,

113 SCRA 366
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
DECISION
March 30, 1982
G.R. No. L-49430
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BELINDA LORA Y VEQUIZO alias LORENA SUMILEW, accused-appellant.
PER CURIAM:The defendant Belinda Lora y Vequizo alias Lorena Sumilew was
accused in the Court of First Instance of Davao of serious illegal detention with
murder in an amended information which reads as follows:
, J.:
The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in the
Court of First Instance of Davao of serious illegal detention with murder in an
amended information which reads as follows:
The undersigned accuses the above-named accused of the crime of Serious
Illegal Detention with Murder under Art. 267 in relation to Articles 248 and 48 of
the Revised Penal Code, committed as follows:
That on or about May 28, 1976, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the abovementioned accused being then a
private person, wilfully, unlawfully and feloniously and for the purpose of
extorting ransom from spouses Ricardo Yap and Myrna Yap, illegally detained
their three (3) year old child Oliver Yap, a minor, from May 28 to 29, 1975 and
with treachery, evident premeditation and with intent to kill wilfully, unlawfully
and feloniously attacked, assaulted Oliver Yap by tying his mouth with stocking,
placing him inside a Pallmall cigarette box, covering the said box with a mat and
piece of sack and filing the same with other boxes in the third floor (bodega) of
the house owned by said spouses Ricardo Yap and Myrna Yap, thereby inflicting
upon said Oliver Yap the following to wit: Asphyxia due to suffocation" which
caused the death of said Oliver Yap.

That the commission of the foregoing offense was attended by the following
aggravating circumstances: (1) taking advantage of superior strength; (2)
disregard of the respect due the offended party on account of his age; (3) that
the crime was committed in the dwelling of the offended party; (4) that the
crime was committed with abuse of confidence, she being a domestic helper
(maid) or obvious ungratefulness; (5) that craft, fraud and disguise was
employed; and (6) that the crime was committed with cruelty, by deliberately
and inhumanly augmenting the suffering of the victim.
Contrary to law.
According to the trial judge, "he has appointed as counsel de oficio Atty.
Hildegardo Inigo a bar topnotcher with considerable practice," in view of the
gravity of the offense.
Upon motion of the counsel for the accused, the arraignment was postponed to
enable him to study the charge against the accused. Thereafter, after being
arraigned, the accused Belinda Lora in the presence and with the assistance of
her counsel, entered a plea of guilty in Visayan dialect, which is her native
dialect.
The Court thereafter directed the prosecution to present its evidence and the
counsel for the "accused manifested that the evidence of the defense would be
presented only for proving mitigating circumstances.
Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez, Fidencio
Bisnar, Ricardo Yap, Agaton Bonahos, Emmanuel Mesias, Rolando Estillori and
Juan Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora using the name "Lorena Sumilew",
applied as a housemaid in the household of the spouses Ricardo Yap and Myrna
Yap at 373 Ramon Magsaysay Avenue, Davao City. The spouses had a store on
the ground floor; a mezzanine floor was used as their residence; while the third
floor was used as a bodegafor their stocks. They had two children, Emily and
Oliver Yap. Oliver was 3 years and five months old. 1

Belinda Lora was accepted as a housemaid in the residence of the Yaps and
reported for work the following day, May 27, 1975. Her duties were to wash
clothes and to look after Oliver Yap. 2
On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her
mother-in-law and her husband panicky because their son, Oliver, and the maid,
accused Belinda Lora were missing. The mother-in-law had found a ransom note
at the stairway to the mezzanine floor. The note said that Oliver was to be sold
to a couple and that the writer (defendant herein) needed money for her
mother's hospitalization. 3 Four pieces of residence certificates were also found
inside the paper bag of the maid. One residence certificate bore the No.
1941785 with the name Sumiliw, Lorena Pamintil. 4
The incident was reported immediately to the police. Mrs. Yap, accompanied by
one Mrs. Erlinda Velez, went to look for Oliver and the housemaid. Not finding
them in Davao City, they went to Digos and Bansalan (Davao) and looked in the
hospitals there. The residence certificate in the name of Lorena Sumiliw was
issued in Digos and the ransom letter stated that the mother of the defendant
was very sick. 5
In the evening of May 28, 1975, the Yaps received two telephone calls at their
residence. The first call was received by Mrs. Yaps's mother-in-law while the
second call was received by Ricardo Yap. Lorena Sumiliw (defendant), the caller,
instructed Ricardo Yap to bring the amount of P3,000.00 to the island infront of
the (Davao) Regional Hospital and to go there alone without any policeman or
companion, after which his son (Oliver) would be left to the security guard of the
hospital at the emergency exit. 6
The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI, the
money was marked with Mrs. Yap's initials "MY". 7
Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the Regional
Hospital at 9:30 in the evening of May 28, 1975. He placed the money near the
Imelda Playground. He proceeded to the hospital and looked for his child from
the security guard. However, the security guard said nobody left a boy with him.
8 Ricardo Yap stayed at a corner looking and calling for his child but could not
locate him. After ten minutes, he went back to where he had placed the money
but the money was not there anymore. He waited until 11:00 o'clock, after
which he went home. 9

The following morning, May 29, 1975, Mrs. Yap received a phone call from the
accused informing her that her son was at the Minrapco Terminal and that she
was asking for another P 3,000.00. Mrs. Yap proceeded to the terminal
whereupon she learned that the terminal had moved to a place near a theatre.
When Myrna Yap arrived at the place, she saw the accused board a Minica bus.
She followed and grabbed the accused. 10 As the accused said that Mrs. Yap's
son was brought to the Regional Hospital they proceeded there. Upon arriving
there, a couple, Mr. and Mrs. Bonahos said that the Yap son was in Panacan. Mrs.
Yap and the accused went to Panacan. After arriving at Panacan the accused told
Mrs. Yap that her son was in the custody of a woman whom she paid P 100.00
and that the woman would return her son at 6:00 o'clock P.M. that day. Mrs. Yap
therefore, made the accused sign a promissory note that she would return Oliver
on the same day. 11 After the accused boarded a bus for Surigao, Mrs. Yap listed
down the bus number and the seat number and reported to Lt. Mesias of the
Davao City Police Force that the "kidnapper" was on board the Surigao bus. 12
Lt. Mesias stopped the bus and placed the accused under arrest. From the body
of the accused was taken an improvised pouch containing 36 pieces of P 50.00
bills and 24 pieces of P 20.00 bills. The money had initials reading "MY" below
the serial numbers. 13
The following morning, May 30, 1975, upon waking up at around 6 o'clock in his
house, Ricardo Yap noticed that blood was dripping from the ceiling. He went
upstairs, which was being utilized as a bodega, to verify, and found his son
placed inside the carton of Marlboro cigarettes. The head of the child was inside
the carton while his feet protruded outside. 14 His mouth was tied with
stockings. 15 The child was already dead. 16 He had died of "asphyxhia due to
suffocation. 17
The defendant presented evidence only for the purpose of proving alleged
mitigating circumstances. She claims that she did not intend to kill the child. 18
To support her plea for mercy, she stated that she had three children aged from
one to five years whom she left in Pagadian. 19 On objection to the materiality
of the evidence, the appellant's counsel pleaded that she be allowed to prove
those facts for "humanitarian consideration" which might enable the Supreme
Court to review the penalty with compassion. 20
The defendant capped her testimony with the following plea:

A I would request the Honorable Court that LIFE IMPRISONMENT will be the
penalty imposed upon me because I really committed the crime. I did not really
intend to kill the child.
Q Would you like to make any further appeal?
A I really repent to what I have done, sir. 21
On cross-examination, the defendant admitted that she gagged the child's
mouth with stockings; placed the child inside the box with head down and legs
up; that she covered the box with some sacks and boxes and left the child in
that condition inside the storeroom of the house of Ricardo Yap. 22
When the defendant left the store room, the voice of the child, who was
previously shouting, "was already slow and to make sure that his voice would
not be heard I closed the door. 23
On the basis of the plea of guilt of the defendant and the evidence of the
prosecution, the court convicted the defendant with complex crime of serious
illegal detention with murder and imposed, among others, the extreme penalty
of death.
Hence, this automatic review.
The guilt of the defendant is so patent that there is no further need to discuss
the evidence. The only task remaining after the plea of guilty and the
presentation of the undisputed evidence for the prosecution is to determine the
crime committed, the penalty to be imposed and the aggravating and mitigating
circumstances to be appreciated. The crime actually committed is not the
complex crime of kidnapping with murder, as found by the trial court, but the
simple crime of murder qualified by treachery.
Kidnapping is a crime against liberty defined in Article 267, Title IX, Book 11 of
theRevised Penal Code. The essence of kidnapping or serious illegal detention is
the actual confinement or restraint of the victim or the deprivation of his liberty.
24
Where there is no showing that the accused intended to deprive their victims of
their liberty for some time and for some purpose, and there being no

appreciable interval between their being taken and their being shot from which
kidnapping may be inferred, the crimes committed were murder and frustrated
murder and not the complex crimes of kidnapping with murder and kidnapping
with frustrated murder. 25
In the instant case. the gagging of the child with stockings, placing him in a box
with head down and legs upward and covering the box with some sacks and
other boxes were only the methods of the defendant to commit murder. The
child instantly died of suffocation. This is evident from the testimony of Dr. Juan
Abear, Jr. who performed the autopsy on May 30, 1975 at 8 o' clock in the
morning. When Dr. Abear conducted the autopsy, the body of the child was
already in a state of decomposition. Dr. Abear opined that the child must have
died three days before the autopsy. 26 In other words, the child died practically
on the very day that the child was stuffed into the box on May 28,1975.
The demand for ransom did not convert the offense into kidnapping with
murder. The defendant was well aware that the child would be suffocated to
death in a few moments after she left. The demand for ransom is only a part of
the diabolic scheme of the defendant to murder the child, to conceal his body
and then demand money before the discovery of the cadaver.
There is treachery because the victim is only a 3-year old child. 27 The
commission of the offense was attended with the aggravating circumstances of
lack of respect due to the age of the victim, cruelty and abuse of confidence.
The circumstance of lack of respect due to age applies in cases where the victim
is of tender age as well as of old age. This circumstance was applied in a case
where one of the victims in a murder case was a 12-year-old boy. 28 In the
instant case, the victim was only 3 years old. The gagging of the mouth of a
three-year-old child with stockings, dumping him with head downwards into a
box, and covering the box with sacks and other boxes, thereby causing slow
suffocation, is cruelty. There was also abuse of confidence because the victim
was entrusted to the care of the appellant. The appellant's main duty in the
household is to take care of the minor child. There existed a relation of trust and
confidence between the appellant and the one against whom the crime was
committed and the appellant made use of such relation to commit the crime.

When the killer of the child is the domestic servant of the family and was
sometimes the deceased child's amah the aggravating circumstance of grave
abuse of confidence is present. 29
On the other hand, the defendant invokes the following as mitigating
circumstances, namely; (1) she pleaded guilty; (2) she did not intend to commit
so grave a wrong, (3) she was overcome by fear that her mother will die unless
she is able to raise money for her mother's hospitalization, thus; she committed
kidnaping for ransom (4) the appellant should live so that her children who are
of tender years would not be deprived of a mother; and (5) we have a
compassionate society. 30
The only mitigating circumstance that may be appreciated in favor of the
defendant is her voluntary plea of guilt. Her contention that she had no intention
to kill the child lacks merit. The defendant was well aware that her act of
gagging the mouth of the child with stockings, placing him with head down and
feet up in a box and covering the box with sacks and other boxes would result to
the instant suffocation of the child.
There being three aggravating circumstances, namely, lack of respect due to the
tender age of the victim, cruelty and abuse of confidence and only one
mitigating circumstance in favor of the defendant, she deserves the death
penalty imposed upon her by the lower court.
WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime of
murder qualified with treachery and appreciating the aggravating circumstances
already indicated above, We hereby impose the penalty of death with costs de
oficio.
With this modification, the rest of the decision is hereby affirmed.
Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De
Castro, Melencio-Herrera, Ericta, Plana and Escolin, JJ., concur.
G.R. No. L-63243 February 27, 1987
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSALIO LAGUARDIA, DANTE BARTULAY, BALTAZAR BERAN, and RAYMUNDO BARTULAY, accusedappellant.

CRUZ, J.:
In this automatic review of the death sentence imposed upon the lone accused-appellant, we are asked to determine
if, while concededly guilty of robbery, he should also be held for the killing of the victim notwithstanding that this was
actually done by another person. The Solicitor General says the judgment should be affirmed because of the proven
conspiracy between the accused-appellant and the actual killer. The defense, on the other hand, impliedly admits the
conspiracy only with respect to the robbery but not as regards the murder which it claims was not part of the original
plan.
The facts, as derived by the lower court from the evidence adduced at the trial, are briefly narrated as follows:
On September 6, 1979, at about 10:30 o'clock in the evening, Dante Bartulay and Baltazar Beran, the herein
accused-appellant, signaled to a stop a truck owned by Fortune Tobacco Corporation then being driven by Miguel
Chua on the zigzag road in Kilometer 36 inside the Iwahig Penal Colony at Puerto Princess in Palawan City. Beran
approached one side of the truck and pretended to borrow a screwdriver and while Chua looked for the tool Bartulay
shouted from the other side of the truck, "This is a hold-up!" With guns drawn, the two men ordered Chua and his
three companions, Benigno Caca, Frank Morante, and Eduardo Aniar, to alight. Bartulay forced Chua to lie face down
on the ground about 3 meters away from his companions. Bartulay was pointing a gun at Chua's head. On orders of
Bartulay, Beran got the wallets and watches of the four. Bartulay asked about the money they were carrying and
Chua pointed to its location. Beran got it and gave it to Bartulay. The money amounted to about P100,000.00. Then,
again on orders of Bartulay, Beran herded the three companions inside the panel where they were locked. It was
while they were still inside the panel that Beran and the others heard two gunshots. When Beran got off the truck, he
saw Chua still lying on the ground but now bleeding in the head. Thereafter, Beran drove the truck from the scene of
the crime while Bartulay followed in a motorcycle. Somehow, Caca and Morante managed to escape by jumping from
the truck through a secret exit of the panel. They subsequently reported the occurrence to the law-enforcement
authorities who, returning to the scene of the crane the following day, found Chua already dead. 1 Beran was

arrested on September 8, 1979, with the amount of P4,500.00 in his possession and upon questioning
pointed to the place where he had hidden the pistol he had used during the hold-up. 2 Further investigation
disclosed that the motorcycle and guns by Bartulay and Beran were owned by Rosalio Laguardia, who
was Identified by Beran as the mastermind of the crime. 3 The money stolen was supposed to have been
divided in the house of Raymundo Bartulay Dante's brother. 4
Dante Bartulay could not be tried at the time because he was at large. Baltazar Beran was found guilty of robbery
with homicide and sentenced to death. Rosalio Laguardia was convicted (presumably as a principal by inducement)
and sentenced to life imprisonment. Raymundo Bartulay was acquitted for insufficient evidence. 5
This case involves Baltazar Beren only as Laguardia later withdraw his appeal.
In finding Beran guilty and sentencing him to death, the trial court made the following conclusion:
... It is undisputed that the crime committed by the accused was robbery with homicide, and the
killing of the victim was done with the use of a gun. The heinous act was preceded by taking of the
wallets, the watches and the money from the victim of the robbery. Whenever a homicide has been
committed as a consequence, or on the occasion, of a robbery, all those who took part as principals
in the robbery will also be held guilty as principals of the special complex crime of robbery with
homicide (Pp. v. Darwin Veloso y Militante, alias Carlito Villareal, accused-appellant, G.R. No.
32900, Feb. 25, 1982). In the case at bar, evidence is strong and clear that Baltazar Beran did not
endeavor to prevent the homicide of the killing (sic) of Mike Chua by Dante Bartulay ... 6

The accused-appellant now faults the trial court for holding inter alia that Beran should be held guilty of the homicide
committed on the occasion of the robbery notwithstanding that he was not the one who actually killed Chua; that he
should have tried to prevent the killing of Chua but did not; and that the aggravating circumstances of treachery,
evident premeditation, nighttime and use of a motor vehicle should not have been appreciated against him.
The accused-appellant suggests that the case 7 cited by the lower court in convicting him is not applicable

because the crime involved therein was robbery with homicide committed by a band whereas the robbery
in the instant case was perpetrated only by two persons. The trial judge did err in this respect.
Nevertheless, as the Solicitor General correctly points out, the offense, while not covered by Article 296 of
the Revised Penal Code, still comes under Article 294(l) which may also impose the death penalty "when
by reason or on occasion of the robbery, the crime of homicide shall have been committed" even
if cuadrilla is not present.
Under this provision, it is enough to show conspiracy among the participants in the crime of robbery to render each
and every one of them liable for any homicide that may be committed by reason or on the occasion of such robbery.
And in the instant case, evidence of such conspiracy is not lacking. Indeed, it is not disputed that Bartulay and Beran
together went to the scene of the crime and lay in wait for Chua's truck; that they together pretended to borrow a
screwdriver from the victim; that while Bartulay pointed a gun at Chua and his companions, Beran divested them of
their cash and watches; that Beran got the bag containing P100,000.00 on orders of Bartulay; that also on the latter's
orders, Beran locked up Chua's three companions in the panel; that Beran drove the stolen truck away from the
scene of the crime while Bartulay followed in the motorcycle; and that Beran later got P4,500.00 as his share of the
stolen money.
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it, whether they act through the physical volition of one or all proceeding severally or collectively.8 It

is also a settled rule that conspiracies need not be established by direct evidence of acts charged but may
and generally must be proved by a number of indefinite acts, conditions, and circumstances which vary
according to the purpose accomplished. The very existence of a conspiracy is generally a matter of
inference deduced from certain acts of the persons accused, done in pursuance of an apparent criminal
or unlawful purpose in common between them. The existence of the agreement, or joint assent of the
minds, need not be proved directly. 9
Confronted with the established fact of conspiracy to commit the robbery, the accused-appellant cannot plead that he
should not be held responsible for the murder on the ground that he did not conspire to commit it or that he had no
opportunity to prevent its commission.
"The rule is that where the conspiracy to commit robbery was conclusively shown by the concurrent and coordinate
acts of the accused, and homicide was committed as a consequence or on the occasion of the robbery, all the
accused are guilty of robo con homicidio whether or not they actually participated in the killing." 10
That rule was applied in People v. Puno, 11 where the accused and confederate Tenarife, in pursuance of a

preconceived plan, boarded a jeep and help up its passengers, with Tenarife killing one of them after
divesting him of his wallet and his watch. Puno himself robbed another passenger but did not participate
in the shooting of the deceased victim. Nonetheless he was held guilty of robbery with homicide as the
killing was committed by Tenarife in connection with the robbery which Puno and Tenarife had conspired
to commit.
Generally, when robo con homicidio has been proven, all those who had taken part in the robbery
are guilty of the complex crime unless it appears that they endeavored to prevent the homicide
(U.S. v. Macalalad, 9 Phil. 1; Decisions of Supreme Court of Spain dated Feb. 23 and April 30,
1972 and June 19, 1980; 3 Viada, Codigo Penal 347, 354, 358). 12

It may be observed that, although Puno did not actually take part in the killing of Oyong
by Tenarife, his presence in the jeepney was a crucial factor that emboldened his
confederate in perpetrating that homicidal act with impunity. 13
In People v. Veloso, 14 this Court held:
... Well entrenched is the rule that whenever a homicide has been committed as a consequence, or
on the occasion, of a robbery, all those who took part as principals in the robbery will also be held
guilty as principals of the special complex crime of robbery with homicide, although they did not
actually take part in the homicide, unless it clearly appears that they endeavored to prevent the
homicide.
That decision cited the earlier case of People v. Mangulabnan, 15 where it was categorically declared:
... in order to determine the existence of the crime of robbery with homicide it is enough that a
homicide would result by reason or on the occasion of the robbery (Decision of Supreme Court of
Spain of Nov. 26, 1892, and Jan. 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267, and 259-260,
respectively). This High Tribunal speaking of the accessory character of the circumstances leading
to the homicide, has also held that it is immaterial that the death would supervene by mere
accident(Decision of Sept. 9, 1886, Oct. 22, 1907, April 30, 1910 and July 14, 1917), provided that
the homicide be produced by reason or on the occasion of robbery, inasmuch as it is only
the resultobtained, without reference or distinction as to the circumstances, causes, modes or
persons intervening in the commission of the crime, that has to be taken into consideration
(Decision of Jan. 12, 1889 see Cuello Calon's Codigo, Penal pp. 501-502; Emphasis supplied).
It is futile therefore for the accused-appellant to argue that he was inside the panel with the companions of Chua
when the latter was killed by Bartulay and could not have stopped the shooting. The undisputed fact is that the killing
was committed on the occasion of the robbery which Beran and Bartulay plotted and were carrying out together. In
the absence of clear evidence that he endeavored to prevent it, Beran is as guilty of the homicide as Bartulay
although it was Bartulay who pulled the trigger.
Concerning the aggravating circumstances which the accused-appellant insists should not have been taken against
him, the Court notes that no specific finding regarding such circumstances was made by the trial judge, who simply
meted out the penalties without explanation. The trial judge, notably, did not say why, after finding both Beran and
Laguardia guilty, the former should be sentenced to death and the latter only to life imprisonment. If any error has
been committed with respect to Laguardia's penalty and the circumstances so indicate it is too late to correct it
now as the same has long since become final. By withdrawing his appeal, Laguardia may have benefited from the
trial judge's carelessness.
The trial court also does not clearly impute to Beran any ag gravating circumstance and merely hints at nighttime and
use of motor vehicle almost in passing. This is another censurable flaw in the decision. It is no wonder that the case
itself is perplexed over the accused-appellant's assignment of error that the trial court had taken the said several
aggravating circumstances against him.
In any event, it is clear that, as alleged in the amended information, the crime committed by Beran was aggravated
by despoblado and justified the imposition on him of the death penalty as prescribed by Article 294 of the Revised
Penal Code. The evidence shows that the accused lay in wait for the truck being driven by Chua at an isolated
portion of Highway 36, choosing that particular spot where they could commit the crime they were planning without
disturbance or discovery and with easy opportunity for escape. 16 The use of motor vehicles is also appreciated

because the conspirators drove away from the scene of the crime to facilitate their escape and also to
prevent the other passengers of the truck, whom they took with them, from reporting the offense to the
authorities. 17

Nighttime is rejected, however, because it was not especially sought, as Chua's trip schedule and not the discretion
of the culprits determined the time of its commission. Evident premeditation is, of course, inherent in the crime of
robbery and was not proved in the commission of the killing. As for treachery, there is no evidence of its employment
as none of the witnesses actually saw the shooting of Chua, being all inside the panel when they heard the fatal
shots.
Miguel Chua was only 32 years old at the time he was killed and left a wife and three children aged, respectively, 11,
10 and 8, the youngest a daughter. To provide for his family, he was willing to work even at night, not unaware
perhaps, given the condition of the times, of the dangers that lurked in the desolate routes he traveled, considering
especially the sizeable amounts of money he often carried. If he was nonetheless undeterred, it was probably
because, like the promising young man that he was, he had a dream for the future. Tragically, that dream died with
him on the lonely stretch of road where greed lay in ambush with a gun.
The indemnity for the death of Chua is increased to P30,000.00. Funeral expenses amounted to P16,500.00. 18As

the victim was earning at the time of his death a monthly compensation of P2,500.00, 19 consisting of
salary and commission, or P30,000.00 annually, and could have lived about 24 more years, 20 his total
earnings for the period would have amounted to P720,000.00. The heirs are also entitled to this amount
plus P10,000.00 moral damages and P10,000.00 exemplary damages. 21
WHEREFORE, the appealed decision is AFFIRMED as MODIFIED but in view of the provisions of the new
Constitution, the death penalty is reduced to reclusion perpetua. The accused-appellant shall also pay the civil
indemnity specified above, and costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla Bidin Sarmiento and Cortes, JJ., concur.
G.R. No. 178541

March 27, 2008

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ANGELO ZETA, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:
For review is the Decision dated 30 June 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 02054,1 affirmingin
toto the Decision2 dated 29 November 2002 of the Quezon City Regional Trial Court (RTC), Branch 88, in Criminal
Case No. Q-95-63787, finding accused-appellant Angelo Zeta and his wife, Petronilla Zeta (Petronilla), guilty of
murder.
The facts are as follows:
On 6 November 1995, an Information3 was filed before the RTC charging appellant and Petronilla of Murder, thus:
That on or about the 28th day of October 1995, in Quezon City, Philippines, the said accused, conspiring together,
confederating with and mutually helping each other, with intent to kill, did then and there, willfully, unlawfully and
feloniously with evident premeditation, treachery, assault, attack and employ personal violence upon the person of
RAMON GARCIA y LOPEZ by then and there shooting the latter with the use of a .45 cal. pistol hitting him on the

different parts of his body, thereby causing the instant and immediate cause of his death, to the damage and
prejudice of the heirs of said RAMON GARCIA Y LOPEZ.
When arraigned on 20 December 1995, appellant and Petronilla, assisted by their respective counsels de parte,
pleaded "Not Guilty" to the charge of murder.4 Trial on the merits thereafter ensued.
The prosecution presented as witnesses Aleine Mercado (Aleine), Dr. Maria Cristina Freyra (Dr. Freyra), Police
Inspector Solomon Segundo (Inspector Segundo), Rey Jude Naverra (Rey), Edwin Ronk (Edwin), Francisco Garcia
(Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and SPO2 Wakab Magundacan (SPO2 Magundacan). Their
testimonies, taken together, bear the following:
On 28 October 1995, at around 12:00 midnight, Edwin, Rey and a certain Melvin Castillo (Melvin) had a drinking
spree outside the house of Rey located at No. 30-B Tacio Street, La Loma, Quezon City. At about 2:00 in the morning
of the same date, a car stopped in front of the three. Appellant was driving the car while Petronilla was seated beside
him. Petronilla opened the cars window and asked Edwin if he knows Ramon and the latters address at No. 25-C
General Tinio Street, La Loma, Quezon City. Edwin replied that he did not know Ramon or his address. Thereafter,
appellant and Petronilla left on board the car and proceeded to General Tinio Street, La Loma, Quezon City.5
At about 2:15 in the morning of the same date, the car boarded by appellant and Petronilla stopped in front of
Ramons house at No. 25-C General Tinio Street, La Loma, Quezon City. After parking nearby, appellant and
Petronilla alighted from the car and proceeded to Ramons house. Petronilla repeatedly called Ramon. Aleine (niece
of Cristina Mercado, Ramons common-law wife) was awakened by the repeated calls and opened the door.
Petronilla requested Aleine to call Ramon. Aleine told Petronilla that she would wake up Ramon who was then
sleeping with Cristina at the second floor of the house. Aleine invited appellant and Petronilla inside the house but the
two replied that they would just wait for Ramon outside. Aleine proceeded to the second floor of the house and
knocked at the door of Ramons room. Ramon woke up. Subsequently, Aleine went downstairs and proceeded to the
dining table. While Ramon was walking down the stairs, appellant suddenly entered the house and shot Ramon
several times on different parts of the body with a caliber .45 Llama pistol. Upon seeing appellant shooting Ramon,
Aleine hid inside the restroom. When the gunshots ceased, Aleine went out of the restroom and saw Ramon sprawled
and bloodied on the ground floor.6
Edwin, Rey and Melvin were still drinking when they heard the gunshots. They rushed to the direction of Ramons
house. When they were nearing Ramons house, Petronilla suddenly stepped out of the main door of Ramons house
followed by appellant. Melvin uttered, "Mamamatay tao." Petronilla merely looked at them and entered the car.
Appellant also proceeded inside the car and thereafter the car sped away.7
Subsequently, Aleine went out of the house and called for help. Edwin, Rey and Melvin approached her. They carried
Ramon and placed him inside a vehicle owned by a neighbor. While they were on their way to the Chinese General
Hospital, Ramon told Aleine that the one who shot him was "asawa ni Nellie na kapitbahay namin sa Las
Pias." Ramon died due to gunshot wounds while being operated on at the Chinese General Hospital. Thereafter, the
police arrived at the crime scene and recovered several empty bullet shells and slugs.8
At about 10:55 the following morning, SPO2 Magundacan received a report that a carnapped vehicle was parked
along Lakandula Street, P. Tuazon Blvd., Quezon City. SPO2 Magundacan proceeded thereat and saw appellant
about to board a car armed with a gun visibly tucked in his waist. SPO2 Magundacan approached appellant and
asked him for a license and/or registration papers of the gun but appellant did not show any. SP02 Magundacan also
inquired from Petronilla, who was inside the car also armed with a gun tucked in her waist, if she had a license but
Petronilla likewise failed to show any. Thus, SPO2 Magundacan brought appellant and Petronilla to Police Precinct 8,
Project 4, Quezon City, for investigation. Subsequently, appellant and Petronilla, upon the request of the La Loma
police, were turned over to the police station for investigation as regards the killing of Ramon. Appellant and Petronilla
were thereafter charged with murder.9

The prosecution also adduced documentary and object evidence to buttress the testimonies of its witnesses, to wit:
(1) death certificate of Ramon;10 (2) sworn statement of Aleine;11 (3) request for autopsy examination of Ramons
body;12 (4) medico-legal report issued and signed by Dr. Freyra stating that Ramon died due to gunshot wounds;13 (5)
anatomical sketch of a human body signed by Dr. Freyra indicating the location of the gunshot wounds on Ramons
body;14 (6) physical science report stating that a paraffin test was conducted on both hands of Ramon and they were
found negative for gunpowder nitrates;15 (7) handwritten sketch made by Edwin depicting the streets of Tacio and
General Tinio;16 (8) request for ballistic examination of the object evidence recovered from the crime scene;17 (9)
ballistic report issued and signed by Inspector Segundo stating that the bullet extracted from Ramons body and other
bullets recovered from the crime scene were similar to the bullets of the caliber .45 Llama pistol seized from
appellant;18 (10) certification from the Personnel Division of the Philippine Long Distance Telephone Company (PLDT)
affirming that Ramon was its regular employee from 14 February 1981 up to 27 October 1995 and that he was
receiving a monthly salary of P13,687.00 plus other benefits;19 (11) summary of expenses and receipts for the wake of
Ramon;20 (12) joint affidavit of SPO2 Magundacan and a certain PO2 Ronald Zamora;21 (13) photographs showing the
spot where appellant and Petronilla stood while waiting for Ramon, the stairs where Ramon walked down shortly
before he was shot several times by appellant, the area inside Ramons house where appellant positioned himself
while shooting at Ramon, and the location where Ramon fell down after he was shot several times by appellant; 22 (14)
nine empty shells and seven deformed slugs fired from a caliber .45 pistol which were recovered by SPO1 Villarin
from the crime scene;23 (15) a deformed slug fired from a caliber .45 pistol which was extracted from Ramons body;
(16) test bullets fired from the caliber .45 Llama pistol seized from appellant;24 (17) the caliber .45 Llama pistol with
Serial Number C-27854 seized from appellant;25 and (18) a calling card recovered from Ramon with the print label
"Cristine Rent A Car," "Angelo D. Zeta" and with telephone numbers and addresses.26
For its part, the defense presented the testimonies of appellant, Petronilla, and Annabelle Vergara (Annabelle) to
refute the foregoing allegations. Their version of the incident is as follows:
On 27 October 1995, at about 10:00 in the evening, appellant, Petronilla and Annabelle (housemaid of the couple)
were in the couples house at Cainta, Rizal.27 Later, appellant took Petronillas caliber .38 pistol and went to his
brothers (Jose Zeta, Jr.) house in Marikina arriving therein at around 12:00 midnight. Jose was out of the house so
appellant waited for him. At about 2:30 in the morning of 28 October 1995, Jose arrived. Thereafter, appellant
demanded from Jose the return of his three firearms, one of which is a caliber .45 pistol. Jose, however, handed only
the caliber .45 pistol to appellant. Appellant berated Jose for refusing to return the two other firearms. Irked, Jose
drew a gun. Appellant also drew the caliber .45 pistol and shot Jose four times. Jose fell down on the ground.
Afterwards, appellant left the house, took Joses car which was parked near the house, and proceeded to Police
Precinct 8, Project 4, Quezon City, where he waited for a certain Tony Tolentino whom he claims to be a policeman
assigned at the Southern Police District. At about 9:00 in the morning of 28 October 1995, the policeman on duty at
Precinct 8 informed appellant that the latters car parked inside the precinct was a carnapped vehicle. The policemen
searched the car and found several guns including the caliber .45 and the caliber .38. Appellant was thereupon
detained and charged with illegal possession of firearms and carnapping.28
At about 10:00 in the morning of 28 October 1995, Petronilla received a telephone call informing her that appellant
was at Police Precinct 8, Project 4, Quezon City. She immediately proceeded thereat and presented documents
relative to her ownership and license of the caliber .38 seized from appellant. Thereafter, she went home at about
11:00 in the evening.29
On 2 November 1995, Petronilla visited appellant at Precinct 8. During the visit, Aleine arrived at Precinct 8 and
pointed to appellant and Petronilla. Subsequently, appellant and Petronilla were informed by the police that they were
suspects in the killing of Ramon. Thereafter, they were charged with murder.30
After trial, the RTC rendered a Decision on 29 November 2002 convicting appellant and Petronilla of murder. It held
that appellant and Petronilla conspired in killing Ramon. It also ruled that Ramons killing was attended by the
aggravating circumstances of evident premeditation and nocturnity. In conclusion, it imposed the death penalty on
appellant while Petronilla was merely sentenced to reclusion perpetua "owing to her being a mother and her lesser
degree of participation in the killing of Ramon." The fallo of the decision reads:

Accordingly, based on the evidence presented by the prosecution and the defense and finding both accused guilty
beyond reasonable doubt of the crime of MURDER attended by the aggravating circumstances of evident
premeditation and nocturnity without being offset by any mitigating circumstances, the accused Angelo Zeta is hereby
sentenced to death by lethal injection. The wife and co-accused Petronilla Zeta, although a co-conspirator in the
commission of the offense charged, is hereby sentenced to RECLUSION PERPETUA owing to her being a mother
and her lesser degree of participation in the act of murder.
The accused Angelo Zeta and Petronilla Zeta are also sentenced to indemnify in SOLIDUM the heirs of the victim in
the amount of P50,000.00 for the death of Ramon Garcia; P146,000.00 for the hospital and burial expenses;
and P1,642,440.00 for the lost income of the deceased reckoned at 10 years of productive life, plus costs.
The .45 caliber Llama pistol with Serial Number C-27854 is confiscated in favor of the Government to be kept by the
Philippine National Police as mandated by law.31
On 9 December 2002, the RTC issued an Order forwarding the records of the instant case to Us for automatic review
because of the death penalty imposed on appellant.32
On 24 December 2002, Petronilla filed a Notice of Appeal with the RTC stating that she would appeal her conviction
to this Court.33
On 28 April 2004, Petronilla, through counsel, filed a Motion to Withdraw Appeal before us34 stating that:
After a thorough review of the available stenographic notes obtained by the close relatives of the accused-appellant
from the Regional Trial Court, the undersigned counsel found out that there are no testimonial and/or documentary
evidence presented before the lower Trial Court that could sufficiently serve as justifiable basis to warrant the reversal
of the appealed decision rendered insofar as PETRONILLA ZETA is concerned.
Moreover, the undersigned counsel sustained serious physical injuries that render difficult to further handle the
appeal that will require lengthy preparation of appellants brief and other legal pleadings as may be required under
the Rules of Court.
Consequently, after discussion with accused-appellant PETRONILLA ZETA, the undersigned counsel informed her
that he is now constrained to withdraw his appearance in the above-entitled appealed case.
Upon being informed of the health predicament of the undersigned counsel and after being enlightened about the
weakness of the appeal, accused-appellant PETRONILLA ZETA willfully and voluntarily decided to WITHDRAW the
appeal and do hereby signify to the Honorable Court that she is no longer interested in the further prosecution of her
appeal. She, likewise, has no objection to the withdrawal of the appearance of Atty. Alfredo E. Anasco, as her counsel
in the above-entitled case.
WHEREFORE, it is respectfully prayed that the above-entitled appeal be ordered withdrawn and the MOTION TO
WITHDRAW APPEAL be GRANTED, and the withdrawal of appearance of counsel be given due course.
On 28 September 2004, we issued a Resolution granting Petronillas motion to withdraw appeal.35
On 22 November 2005, we issued a Resolution remanding the instant case to the Court of Appeals for proper
disposition pursuant to our ruling in People v. Mateo.36 On 30 June 2006, the Court of Appeals promulgated its
Decision affirming in toto the Decision of the RTC. Thus:
Thus, after finding that the trial courts conclusions are supported by the evidence presented and in full accord with
existing law and jurisprudence, We find no reason to set it aside.

WHEREFORE, based on the foregoing premises, the appeal is hereby DISMISSED. The November 29, 2002
Decision of the Regional Trial Court of Quezon City, Branch 88 in Criminal Case No. Q-95-63787 is AFFIRMED. 37
Appellant elevated the present case before us on the following grounds:
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
FACT THAT THE PROSECUTION WITNESSES DID NOT POSITIVELY IDENTIFY HIM;
II.
THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF DENIAL AND ALIBI INTERPOSED
BY THE ACCUSED-APPELLANT;
III.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT
HIS GUILT WAS UNDER A SHADOW OF DOUBT.38
Apropos the first issue, appellant claims that although Edwin and Rey positively identified Petronilla as the one who
asked them about Ramon and his address shortly before the incident occurred, the two, nevertheless, failed to
identify appellant as Petronillas companion during the said questioning. He also argues that Aleines testimony
identifying him as the one who shot Ramon during the incident is not morally certain because Aleine narrated that she
saw only the side portion of his face and the color of the shirt he wore during the incident.39
It appears that Edwin and Rey did not actually see appellant shoot Ramon during the incident. Nonetheless, Aleine
saw appellant shoot Ramon on that fateful night. Her positive identification of appellant and direct account of the
shooting incident is clear, thus:
ATTY. A. OLIVETTI (DIRECT EXAMINATION)
Q. Aleine Mercado, are you the same Aleine Mercado who is listed as one of the witnesses in this case?
WITNESS
A. Yes, sir.
Q. Do you know the accused in this case?
A. Yes, sir.
Q. If they are inside the courtroom, will you identify them?
A. Yes, sir.
Q. Will you please look around and point before the Honorable Court the person of the accused in this case?
A. Yes, sir. That man wearing yellow T-shirt and that lady who is also wearing yellow shirt. (witness pointing
to a man who when asked of his name identified himself as Angelo Zeta and to a lady beside Angelo Zeta
who when asked of her name identified herself as Petronilla Zeta.)

xxx
Q. On October 28, 1995, at about 2:15 in the morning, do you remember if there was an unusual incident
that happened?
A. Yes, sir.
Q. Will you please tell the Court briefly what that unusual incident was?
A. Tito Ramon Garcia was shot, Sir.
Q. And who is this Tito Ramon Garcia that you are talking about?
A. He is the live-in partner of my aunt Cristy.
Q. A while ago you mentioned that you have been living with your auntie and Tito Ramon Garcia in Gen.
Tinio, La Loma, Quezon City. Will you please describe before the Honorable Court the residence or your
house at that time where you were living with your auntie and Tito Ramon Garcia?
A. It is a small house we were living in. It has a mezzanine and it measures 4 x 3 meters, sir.
xxxx
Q. Do you know the person who shot your Tito Ramon Garcia?
A. Yes, sir.
Q. Will you please tell the Honorable Court the name of the person who shot Ramon Garcia?
A. Angelo Zeta.
Q. Where in particular did Mr. Angelo Zeta shot Mr. Ramon Garcia?
A. Inside our house, sir.
Q. And how was he able to enter your house?
A. Our door then was opened, sir.
Q. Why was your door opened at that time?
A. I heard a woman calling for my Tito Ramon and so I opened the door, sir.
Q. What time was this Madam Witness?
A. 2:15.
Q. 2:15 in the afternoon?
A. 2:15 in the morning, your honor.

xxxx
ATTY. A. OLIVETTI
Q. And who was that woman that you saw was outside calling Mr. Ramon Garcia?
A. Petronilla Zeta, sir.
Q. When you opened the door and you saw this woman, what happened between you and her?
A. She asked me if a certain Ramon Garcia was there.
Q. What was your reply?
A. I told her he was sleeping. He was upstairs.
Q. And what did the woman do after that if she did anything?
A. She told me to call for my Tito Ramon.
Q. What did you do after she asked you to call Mr. Ramon Garcia?
A. I told her to enter before I call my Tito Ramon but they answered that they will remain outside.
Q. And so after they refused to enter the house, what did you do as they were asking you to call Mr. Ramon
Garcia?
A. I told them to wait and then I went upstairs.
Q. What did you do upstairs?
A. I knocked at the door to wake up my Tito Ramon.
xxxx
Q. And was your Tito Ramon able to wake up?
A. When I felt that they were awakened, I went downstairs.
Q. Where in particular downstairs did you go?
A. Near our dining table, sir.
Q. How long was it from the door? How far was it from the door?
A. Two-arms-length, sir, or "dalawang dipa," sir.
Q. And what happened as you stood by downstairs?

A. While Tito Ramon was going down, sir, Angelo Zeta suddenly entered our house and immediately shot
him several times.
Q. How far were you from Mr. Angelo Zeta when you saw him?
I withdraw that.
How far were you from Mr. Angelo Zeta when you saw him suddenly entered the house and shot Mr. Ramon
Garcia?
A. Less than one meter, sir.
x x x x.
Q. Where was Petronilla Zeta at that time that the shooting occurred?
A. She was outside the door, sir.
xxxx
Q. What did you do as you were standing and while Mr. Angelo Zeta was shooting Mr. Ramon Garcia inside
the house?
A. When I heard two shots, I run to the C.R. or comfort room.
Q. As you were in the C.R., what happened?
A. I heard successive shots, sir.
Q. How long did you stay in the C.R.?
A. Until the shots had stopped . . . Until the firing had stopped, sir.
Q. And you sensed that the firing had stopped, what did you do?
A. I slowly opened the door to take a look if Angelo Zeta and companion were still there.
Q. And what did you see?
A. They were no longer there, sir.
Q. And you saw that they have guns, what did you do?
A. I went out of the C.R. and I returned to the place where I was before where I was previously standing.
Q. And what did you see when you reached that portion that you are talking about?
A. I saw Tito Ramon lying frustrate and blooded.
Q And what did you do when you see (sic) him on that particular condition?

A. I peeped at the door to find out if Angelo Zeta and companion were still there.
Q. And what did you see?
A. They were no longer there.
Q. And what did you do after that?
A. I knocked at the door of the owner of the house to ask for help.40
It should be emphasized that the testimony of a single witness, if positive and credible, as in the case of Aleine, is
sufficient to support a conviction even in the charge of murder.41
Appellants argument that Aleines testimony identifying him as the one who shot Ramon is not morally certain
because she saw only the side portion of his face and the color of the shirt he wore during the incident, deserves
scant consideration. A person can still be properly identified and recognized even by merely looking at the side
portion of his face. To be sure, Aleine recognized and identified appellant in the police line-up and during trial as the
one who shot Ramon. Experience dictates that precisely because of the unusual acts of violence committed right
before their eyes, witnesses can remember with a high degree of reliability the identity of criminals at any given
time.42 A startling or frightful experience creates an indelible impression in the mind that can be recalled vividly.43 It
bears stressing that Aleine was less than one meter away from appellant when the latter shot Ramon. The crime
scene was also well-lighted during the incident because there was a fluorescent bulb inside the house.44
The testimonies of Aleine and of the other prosecution witnesses are in harmony with the documentary and object
evidence submitted by the prosecution. The RTC and the Court of Appeals found their testimonies to be credible and
trustworthy. The rule is that the findings 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
respect if not conclusive effect. This is more true if such findings were affirmed by the appellate court. When the trial
courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court.45
Anent the second and third issues, appellant contends that his conviction is unwarranted based on the following
reasons: (1) the prosecution failed to establish any possible motive for the appellant to kill Ramon; (2) there is an
inconsistency in the testimony of the prosecution witnesses regarding the type and color of the car boarded by
appellant and Petronilla before and after the incident. Edwin testified that appellant and Petronilla left the scene on
board a gold-colored Mitsubishi Lancer; while SPO2 Magundacan narrated that he apprehended appellant while
the latter was about to board a blue Toyota Corona Macho; (3) Jose could have been the one who fatally shot
Ramon and appellant could have been mistakenly identified as Jose because they have the same physical
appearance and facial features; (4) if appellant was indeed the one who shot Ramon, he could have immediately
confessed such crime to the police just like what he did after killing Jose; and (5) there is no proof that appellant is the
husband of a certain "Mely." Ramons dying declaration to Aleine was that it was the husband of "Mely," his former
neighbor in Las Pinas, who shot him. Further, Petronillas nickname could either be "Nellie" or "Nelia" and not "Mely"
as referred to by Ramon.46
Lack of motive does not preclude conviction when the crime and the participation of the accused in the crime are
definitely shown, particularly when we consider that it is a matter of judicial knowledge that persons have killed or
committed serious offenses for no reason at all. Motive gains importance only when the identity of the culprit is
doubtful.47 Where a reliable eyewitness has fully and satisfactorily identified the accused as the perpetrator of the
felony, motive becomes immaterial to the successful prosecution of a criminal case.48 It is obvious from the records
that Aleine positively and categorically identified appellant as the person who shot Ramon during the incident. Her
testimony was corroborated on relevant points by Edwin and Rey.

There is no inconsistency in the testimonies of the prosecution witnesses regarding the car boarded by appellant and
Petronilla in leaving the crime scene and, subsequently, at the time they were apprehended. Edwin testified that
appellant and Petronilla left the scene after the incident which was between 2:15 and 2:30 in the morning on board
a gold-colored Mitsubishi Lancer.49 SPO2 Magundacan told the court that he apprehended appellant at around
10:55 in the morning of the same day while the latter was about to board a blue Toyota Corona Macho.50 In his
affidavit attached to the records, Jan Ryan Zeta, son of Jose, narrated that Jose was shot by appellant at about 4:00
in the morning of the same date.51 Appellant admitted that after shooting Jose on the early morning of 28 October
1995, he took the latters Toyota Corona Macho and left.52 Thus, it is probable that after leaving the crime scene at La
Loma on board a gold Mitsubishi Lancer at about 2:15 or 2:30 in the morning, appellant and Petronilla then
proceeded to Marikina and took Joses blue Toyota Corona Macho. This explains why the car of appellant and
Petronilla used in leaving the crime scene was different from that which they used at the time of their apprehension.
Appellants theory of alibi that it was physically impossible for him to be at the crime scene in La Loma when the
incident occurred because he was in Marikina, and that Jose could have been the one who fatally shot Ramon is
flimsy and cannot prevail over the positive and credible testimony of Aleine. Appellant was mistakenly identified as
Jose because they have the same physical appearance and facial feature. In addition, the empty bullet shells and
slugs recovered from the crime scene were found to have the same characteristics as those of the bullets of
appellants caliber .45 Llama pistol. Further, there is no testimonial or documentary proof showing that it was Jose
who shot Ramon. Appellant himself testified that he met Jose in the latters house in Marikina at about 2:30 in the
morning of 28 October 1995. On the other hand, the shooting of Ramon at La Loma, Quezon City occurred at about
2:15 in the morning of the same date. Hence, it was impossible for Jose to be at La Loma, Quezon City and to have
shot Ramon at such time and place.
It is insignificant whether Petronilla was referred to by Ramon in his dying declaration as "Mely" or "Nellie." As
correctly observed by the Court of Appeals, Ramon sustained twelve gunshot wounds and was catching his breath
when he uttered the name or nickname of Petronilla as the wife of appellant. Thus, understandably, he could not have
spoken clearly in such a difficult situation. Moreover, Ramon referred to "Nellie" or "Mely" as his former neighbor in
Las Pias. Likewise, appellant and Petronilla admitted that Ramon was their former neighbor in Las Pias.53
We now go to the propriety of the penalty imposed and the damages awarded by the RTC which the Court of Appeals
affirmed.
The RTC held that the killing of Ramon qualifies as murder because of the presence of the aggravating
circumstances of evident premeditation and nighttime or nocturnity. It is a rule of evidence that aggravating
circumstances must be proven as clearly as the crime itself.54
Evident premeditation qualifies the killing of a person to murder if the following elements are present: (1) the time
when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit clung to his
resolve; and (3) a sufficient interval of time between the determination or conception and the execution of the crime to
allow him to reflect upon the consequence of his act and to allow his conscience to overcome the resolution of his will
if he desired to hearken to its warning.55
The first two elements of evident premeditation are present in the case at bar.
The time manifesting Petronilla and appellants determination to kill Ramon was when they, at about 2:00 in the
morning of 28 October 1995, repeatedly asked Edwin about Ramon and the latters address, and when they
subsequently proceeded to the house of Ramon.
The fact that appellant and Petronilla waited for Ramon, and appellants subsequent act of shooting him at around
2:15-2:30 in the morning of 28 October 1995 indicate that they had clung to their determination to kill Ramon.

The third element of evident premeditation, however, is lacking in the instant case. The span of thirty minutes or half
an hour from the time appellant and Petronilla showed their determination to kill Ramon (2:00 in the morning of 28
October 1995) up to the time appellant shot to death Ramon (2:15-2:30 in the morning of 28 October 1995) could not
have afforded them full opportunity for meditation and reflection on the consequences of the crime they
committed.56 We have held that the lapse of thirty minutes between the determination to commit a crime and the
execution thereof is insufficient for a full meditation on the consequences of the act.57
The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and
reflection on the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm
judgment. To justify the inference of deliberate premeditation, there must be a period sufficient in a judicial sense to
afford full opportunity for meditation and reflection and to allow the conscience of the actor to overcome the resolution
of his will if he desires to hearken to its warning. Where no sufficient lapse of time is appreciable from the
determination to commit the crime until its execution, evident premeditation cannot be appreciated.58
Nonetheless, we find that treachery attended the killing of Ramon.
There is treachery when the offender commits any of the crimes against a person, employing means, methods or
forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising
from any defensive or retaliatory act which the victim might make.59 The essence of treachery is a deliberate and
sudden attack that renders the victim unable and unprepared to defend himself by reason of the suddenness and
severity of the attack. Two essential elements are required in order that treachery can be appreciated: (1) the
employment of means, methods or manner of execution that would ensure the offenders safety from any retaliatory
act on the part of the offended party who has, thus, no opportunity for self-defense or retaliation; and (2) a deliberate
or conscious choice of means, methods or manner of execution. Further, this aggravating circumstance must be
alleged in the information and duly proven.60
In the case at bar, treachery was alleged in the information and all its elements were duly established by the
prosecution.
It has been established that Ramon, still groggy after having been awakened by Aleine, was walking down the stairs
when appellant suddenly shot him. The suddenness and unexpectedness of the appellants attack rendered Ramon
defenseless and without means of escape. Appellant admitted that he was a member of a gun club and was proficient
in using his caliber .45 Llama pistol.61 In fact, he was good at shooting a moving target during his practice.62 He also
stated that he owned five firearms.63 Evidently, appellant took advantage of his experience and skill in practice
shooting and in guns to exact the death of Ramon. There is no doubt that appellants use of a caliber .45 Llama
pistol, as well as his act of positioning himself in a shooting stance and of shooting Ramon several times on the chest
area and on other parts of body, were obviously adopted by him to prevent Ramon from retaliating or escaping.
Considering that Ramon was unarmed, groggy from sleep, and was casually walking down narrow stairs unmindful of
the danger that lurked behind, there was absolutely no way for him to defend himself or escape.
As regards the appreciation by the RTC of the aggravating circumstance of nocturnity, it should be underscored that
nocturnity or nighttime is, by and of itself, not an aggravating circumstance. It becomes so only when (1) it was
especially sought by the offender; or (2) it was taken advantage of by him; or (3) it facilitated the commission of the
crime by ensuring the offenders immunity from capture.64
Although the crime in the instant case was committed between 2:15 and 2:30 in the morning, no evidence was
presented showing that nighttime was especially and purposely sought by appellant to facilitate the commission of the
crime, or that it was availed of for the purpose of impunity. Moreover, the crime scene was well-lighted by a
fluorescent bulb. We have held that nocturnity is not aggravating where the place of the commission of the crime was
well-illuminated.65

Even if we were to assume that nocturnity was present in the case at bar, this cannot still be appreciated in view of
the presence of treachery that attended the killing of Ramon. Nighttime cannot be considered an aggravating
circumstance separate from treachery, since nighttime is absorbed in treachery.66
Accordingly, the death penalty imposed by the RTC on appellant should be modified. Article 248 of the Revised Penal
Code states that murder is punishable by reclusion perpetua to death. Article 63 of the same Code provides that if the
penalty is composed of two indivisible penalties, as in the instant case, and there are no aggravating or mitigating
circumstances, the lesser penalty shall be applied. Since there is no mitigating or aggravating circumstance in the
instant case, and treachery cannot be considered as an aggravating circumstance as it was already considered as a
qualifying circumstance, the lesser penalty of reclusion perpetua should be imposed.67
The award of damages and its corresponding amount rendered by the RTC should also be modified in line with
current jurisprudence.
In addition to the civil indemnity of P50,000.00 for Ramons death, the award of moral damages amounting
toP50,000.00 is also proper since it is mandatory in murder cases, without need of proof and allegation other than the
death of the victim.68
The heirs of Ramon are also entitled to exemplary damages in the amount of P25,000.00, since the qualifying
circumstance of treachery was firmly established.69
The amount of actual damages should be reduced from P146,000.00 to P115,473.00 per computation of the official
receipts attached to the records.70
1avvphi1

The heirs of Ramon should also be indemnified for loss of earning capacity pursuant to Article 2206 of the New Civil
Code.71 Consistent with our previous decisions,72 the formula for the indemnification of loss of earning capacity is:
Net Earning Capacity

= Life Expectancy x Gross Annual Income (GAI) - Living Expenses

= 2/3 (80 - age of deceased) x (GAI - 50% of GAI).

Ramons death certificate states that he was 37 years old at the time of his demise.73 A certification from Ramons
employer, Philippine Long Distance Telephone Company, shows that Ramon was earning an annual gross income
of P164,244.00.74
Applying the above-stated formula, the indemnity for the loss of earning capacity of Ramon is P2,354,163.99,
computed as follows:
Net Earning Capacity

= 2/3 (43) x (P164,244.00 - P82,122.00)

= 28.66 x P82,122.00
= P2,354,163.99

WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30 June 2006 in CA-G.R. CR-H.C.
No. 02054 is hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on appellant is
lowered to reclusion perpetua; (2) appellant is ordered to pay the heirs of Ramon Garcia the amounts of P50,000.00
as moral damages and P25,000.00 as exemplary damages; (3) the award of actual damages is reduced
to P115,473.00; and (4) the indemnity for Ramons loss of earning capacity is increased toP2,354,163.99. The award
of civil indemnity in the amount of P50,000.00 is maintained.

Appellants caliber .45 Llama pistol with Serial Number C-27854 is hereby confiscated in favor of the Government.
SO ORDERED.
G.R. No. 84163 October 19, 1989
LITO VINO, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.
Frisco T. Lilagan for petitioner.
RESOLUTION

GANCAYCO, J.:
The issue posed in the motion for reconsideration filed by petitioner of the resolution of this Court dated January 18,
1989 denying the herein petition is whether or not a finding of guilt as an accessory to murder can stand in the light of
the acquittal of the alleged principal in a separate proceeding.
At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left their house at Burgos Street, Poblacion,
Balungao, Pangasinan to go to the house of Isidro Salazar to watch television. At around 11:00 P.M., while Ernesto,
the father of Roberto, was resting, he heard two gunshots. Thereafter, he heard Roberto cry out in a loud voice
saying that he had been shot. He saw Roberto ten (10) meters away so he switched on the lights of their house.
Aside from Ernesto and his wife, his children Ermalyn and Julius were also in the house. They went down to meet
Roberto who was crying and they called for help from the neighbors. The neighbor responded by turning on their
lights and the street lights and coming down from their houses. After meeting Roberto, Ernesto and Julius saw Lito
Vino and Jessie Salazar riding a bicycle coming from the south. Vino was the one driving the bicycle while Salazar
was carrying an armalite. Upon reaching Ernesto's house, they stopped to watch Roberto. Salazar pointed his
armalite at Ernesto and his companions. Thereafter, the two left.
Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo Cacananta took his antemortem statement. In the said statement which the victim signed with his own blood, Jessie Salazar was Identified as
his assailant.
The autopsy report of his body shows the followingGunshot wound
POE Sub Scapular-5-6-ICA. Pal
1 & 2 cm. diameter left
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH

Tension Hemathorax 1
Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by PC Sgt. Ernesto N. Ordono in the
Municipal Trial Court of Balungao, Pangasinan. However, on March 22, 1985, the municipal court indorsed the case
of Salazar to the Judge Advocate General's Office (JAGO) inasmuch as he was a member of the military, while the
case against Vino was given due course by the issuance of a warrant for his arrest. Ultimately, the case was indorsed
to the fiscal's office who then filed an information charging Vino of the crime of murder in the Regional Trial Court of
Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then commenced with the presentation of
evidence for the prosecution. Instead of presenting evidence in his own behalf, the accused filed a motion to dismiss
for insufficiency of evidence to which the prosecutor filed an answer. On January 21, 1986, 2 a decision was

rendered by the trial court finding Vino guilty as an accessory to the crime of murder and imposing on him
the indeterminate penalty of imprisonment of 4 Years and 2 months of prision correccional as minimum to
8 years of prision mayor as maximum. He was also ordered to indemnify the heirs of the victim in the sum
of P10,000.00 being a mere accessory to the crime and to pay the costs.
The motion for reconsideration filed by the accused having been denied, he interposed an appeal to the Court of
Appeals. In due course, a Decision was rendered affirming the judgment of the lower court. 3
Hence, the herein petition for review wherein the following grounds are invoked:
1. THAT AN ACCUSED CAN NOT BE CONVICTED AS AN ACCESSORY OF THE CRIME OF
MURDER FOR HAVING AIDED IN THE ESCAPE OF THE PRINCIPAL IF SAID ACCUSED IS
BEING CHARGED SOLELY IN THE INFORMATION AS PRINCIPAL FOR THE SIMPLE REASON
THAT THE CRIME PROVED IS NOT INCLUDED IN THE CRIME CHARGED.
2. THAT "AIDING THE ESCAPE OF THE PRINCIPAL" TO BE CONSIDERED SUFFICIENT IN
LAW TO CONVICT AN ACCUSED UNDER ARTICLE 19, PARAGRAPH 3 OF THE REVISED
PENAL CODE MUST BE DONE IN SUCH A WAY AS TO DECEIVE THE VIGILANCE OF THE LAW
ENFORCEMENT AGENCIES OF THE STATE AND THAT THE "ESCAPE" MUST BE ACTUAL;
3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE PRINCIPAL VIOLATES
PROCEDURAL ORDERLINESS. 4
During the pendency of the appeal in the Court of Appeals, the case against Salazar in the JAGO was remanded to
the civil court as he was discharged from the military service. He was later charged with murder in the same Regional
Trial Court of Rosales, Pangasinan in Criminal Case No. 2027-A. In a supplemental pleading dated November 14,
1988, petitioner informed this Court that Jessie Salazar was acquitted by the trial court in a decision that was
rendered on August 29, 1988.
The respondents were required to comment on the petition. The comment was submitted by the Solicitor General in
behalf of respondents. On January 18, 1989, the Court resolved to deny the petition for failure of petitioner to
sufficiently show that respondent court had committed any reversible error in its questioned judgment. Hence, the
present motion for reconsideration to which the respondents were again required to comment. The required comment
having been submitted, the motion is now due for resolution.
The first issue that arises is that inasmuch as the petitioner was charged in the information as a principal for the crime
of murder, can he thereafter be convicted as an accessory? The answer is in the affirmative.
Petitioner was charged as a principal in the commission of the crime of murder. Under Article 16 of the Revised Penal
Code, the two other categories of the persons responsible for the commission of the same offense are the

accomplice and the accessory. There is no doubt that the crime of murder had been committed and that the evidence
tended to show that Jessie Salazar was the assailant. That the petitioner was present during its commission or must
have known its commission is the only logical conclusion considering that immediately thereafter, he was seen driving
a bicycle with Salazar holding an armalite, and they were together when they left shortly thereafter. At least two
witnesses, Ernesto and Julius Tejada, attested to these facts. It is thus clear that petitioner actively assisted Salazar
in his escape. Petitioner's liability is that of an accessory.
This is not a case of a variance between the offense charged and the offense proved or established by the evidence,
and the offense as charged is included in or necessarily includes the offense proved, in which case the defendant
shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that
which is proved. 5
In the same light, this is not an instance where after trial has begun, it appears that there was a mistake in charging
the proper offense, and the defendant cannot be convicted of the offense charged, or of any other offense necessarily
included therein, in which case the defendant must not be discharged if there appears to be a good cause to detain
him in custody, so that he can be charged and made to answer for the proper offense. 6
In this case, the correct offense of murder was charged in the information. The commission of the said crime was
established by the evidence. There is no variance as to the offense committed. The variance is in the participation or
complicity of the petitioner. While the petitioner was being held responsible as a principal in the information, the
evidence adduced, however, showed that his participation is merely that of an accessory. The greater responsibility
necessarily includes the lesser. An accused can be validly convicted as an accomplice or accessory under an
information charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an accessory right then and there. The degree of
responsibility of petitioner was apparent from the evidence. At any rate, this lapse did not violate the substantial rights
of petitioner.
The next issue that must be resolved is whether or not the trial of an accessory can proceed without awaiting the
result of the separate charge against the principal. The answer is also in the affirmative. The corresponding
responsibilities of the principal, accomplice and accessory are distinct from each other. As long as the commission of
the offense can be duly established in evidence the determination of the liability of the accomplice or accessory can
proceed independently of that of the principal.
The third question is this-considering that the alleged principal in this case was acquitted can the conviction of the
petitioner as an accessory be maintained?
In United States vs. Villaluz and Palermo, 7 a case involving the crime of theft, this Court ruled that

notwithstanding the acquittal of the principal due to the exempting circumstance of minority or insanity
(Article 12, Revised Penal Code), the accessory may nevertheless be convicted if the crime was in fact
established.
Corollary to this is United States vs. Mendoza, 8 where this Court held in an arson case that the acquittal of the

principal must likewise result in the acquittal of the accessory where it was shown that no crime was
committed inasmuch as the fire was the result of an accident. Hence, there was no basis for the
conviction of the accessory.
In the present case, the commission of the crime of murder and the responsibility of the petitioner as an accessory
was established. By the same token there is no doubt that the commission of the same offense had been proven in
the separate case against Salazar who was charged as principal. However, he was acquitted on the ground of
reasonable doubt by the same judge who convicted Vino as an accessory. The trial court held that the identity of the
assailant was not clearly established. It observed that only Julius Tejada identified Salazar carrying a rifle while riding

on the bicycle driven by Vino, which testimony is uncorroborated, and that two other witnesses, Ernesto Tejada and
Renato Parvian who were listed in the information, who can corroborate the testimony of Julius Tejada, were not
presented by the prosecution.
The trial court also did not give due credit to the dying declaration of the victim pinpointing Salazar as his assailant on
the ground that it was not shown the victim revealed the identity of Salazar to his father and brother who came to his
aid immediately after the shooting. The court a quo also deplored the failure of the prosecution and law enforcement
agencies to subject to ballistic examinations the bullet slug recovered from the body of the victim and the two empty
armalite bullet empty shells recovered at the crime scene and to compare it with samples taken from the service rifle
of Salazar. Thus, the trial court made the following observation:
There appears to be a miscarriage of justice in this case due to the ineptitude of the law
enforcement agencies to gather material and important evidence and the seeming lack of concern
of the public prosecutor to direct the production of such evidence for the successful prosecution of
the case. 9
Hence, in said case, the acquittal of the accused Salazar is predicated on the failure of the prosecution to adduce the
quantum of evidence required to generate a conviction as he was not positively identified as the person who was
seen holding a rifle escaping aboard the bicycle of Vino.
A similar situation may be cited. The accessory was seen driving a bicycle with an unidentified person as passenger
holding a carbine fleeing from the scene of the crime immediately after the commission of the crime of murder. The
commission of the crime and the participation of the principal or assailant, although not identified, was established. In
such case, the Court holds that the accessory can be prosecuted and held liable independently of the assailant.
We may visualize another situation as when the principal died or escaped before he could be tried and sentenced.
Should the accessory be acquitted thereby even if the commission of the offense and the responsibility of the
accused as an accessory was duly proven? The answer is no, he should be held criminally liable as an accessory.
Although in this case involving Vino the evidence tended to show that the assailant was Salazar, as two witnesses
saw him with a rifle aboard the bicycle driven by Vino, in the separate trial of the case of Salazar, as above
discussed, he was acquitted as the trial court was not persuaded that he was positively identified to be the man with
the gun riding on the bicycle driven by Vino. In the trial of the case against Vino, wherein he did not even adduce
evidence in his defense, his liability as such an accessory was established beyond reasonable doubt in that he
assisted in the escape of the assailant from the scene of the crime. The identity of the assailant is of no material
significance for the purpose of the prosecution of the accessory. Even if the assailant can not be identified the
responsibility of Vino as an accessory is indubitable.
WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN

ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.

DECISION
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can be
held liable as a principal, not simply as an accessory, where it is proven that
the said victim was actually alive but subsequently died as a direct result of
such concealment and burial. Nonetheless, in the present case, Appellant
Garcia can not be held liable as a principal because the prosecution failed to
allege such death through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his relationship with the
principal killer, Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants Benjamin
Ortega, Jr. and Manuel Garcia from the Decision, dated February 9, 1994
written by Judge Adriano R. Osorio, finding them guilty of murder.
[1]

[2]

Appellants were charged by State Prosecutor Bernardo S. Razon in an

Information dated October 19, 1992, as follows:
[3]

That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines

and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, without any justifiable
cause, with treachery and evident premeditation and with abuse of superior
strenght (sic) and with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab repeatedly with a pointed
weapon on the different parts of the body one ANDRE MAR MASANGKAY
y ABLOLA, thereby inflicting upon the latter serious physical injuries which
directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de
oficio, pleaded not guilty to the charge. Accused John Doe was then at
[4]

[5]

large. After trial in due course, the court a quo promulgated the questioned
Decision. The dispositive portion reads:
[6]

[7]

WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel

Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the
Court hereby sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00
for funeral expenses of deceased Andre Mar Masangkay and death indemnity
of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo
P. Velicaria who took over from the Public Attorneys Office as counsel for the
accused.
[8]

The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses
as follows:
[9]

Diosdado Quitlong substantially testified that on October 15, 1992 at about

5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto,
Romeo Ortega, Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan,
Valenzuela, Metro Manila. That while they were drinking, accused Benjamin
Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined
them. That victim Andre Mar Masangkay answered the call of nature and went
to the back portion of the house. That accused Benjamin Ortega, Jr. followed
him and later they [referring to the participants in the drinking session] heard
the victim Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo
ako!) That he and Ariel Caranto ran towards the back portion of the house and
[they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay
who was lying down in a canal with his face up and stabbing the latter with a
long bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr.,
the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega

in the place where they were having the drinking session [for the latter] to
pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the
stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted
Andre Mar Masangkay from the canal and brought Andre Mar to the well and
dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr.
and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet
in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay
inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody
of what he saw. That he answered in the affirmative and he was allowed to go
home. That his house is about 200 meters from Romeo Ortegas house. That
upon reaching home, his conscience bothered him and he told his mother what
he witnessed. That he went to the residence of Col. Leonardo Orig and
reported the matter. That Col. Orig accompanied him to the Valenzuela Police
Station and some police officers went with them to the crime scene. That
accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were
brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was
presented as witness in this case. That he narrated the incident to his mother
on the night he witnessed the killing on October 15, 1992. That on October 15,
1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay,
Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree
and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia
were not yet in the place. That the stabbing happened between 12:00 midnight
and 12:30 a.m. That they drank gin with finger foods such as pork and shell
fish. That he met the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them
at about 11:00 p.m. That there was no altercation between Benjamin Ortega,
Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the
drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered
the call of nature and went to the back portion of the house. That he cannot see
Andre Mar Masangkay from the place they were having the drinking
session. That he did not see what happened to Andre Mar Masangkay. That he
only heard Masangkay asking for help. That accused Manuel Garcia was still
in the drinking session when he heard Masangkay was asking for help. That
Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That

when he heard Andre Mar Masangkay was asking for help, he and Ariel
Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on
top of Andre Mar Masangkay and stabbing the latter. That Andre Mar
Masangkay was lying down with his back in the canal and Benjamin Ortega,
Jr. on top stabbing the former. That he did not see any injuries on Benjamin
Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin,
Jr. That he did not do anything to separate Benjamin Ortega, Jr. and
Masangkay. That he knows that Andre Mar Masangkay was courting Raquel
Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay
when she left between 8:00 and 9:00 p.m.That there was no trouble that
occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado
Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in
the morning, he was summoned by Diosdado Quitlong and reported to him the
stabbing incident that occurred at Daangbakal near the subdivision he is
living. That he relayed the information to the Valenzuela Police Station and a
police team under police officer Param accompanied them to the place. That
he asked the police officers to verify if there is a body of person inside the
well. That the well was covered with stones and he asked the police officers to
seek the help of theneighbors (sic) to remove the stones inside the well. That
after the stones were removed, the body of the victim was found inside the
well. That the lifeless body was pulled out from the well. That the body has
several stab wounds. That he came to know the victim as Andre Mar
Masangkay. That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well
with several stab wounds. That Diosdado Quitlong told him that he was
drinking with the victim and the assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call
of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October
16, 1992 at the Valenzuela Memorial Homes located at Macarthur
Highway. That he prepared the autopsy report and the sketch of human head
and body indicating the location of the stab wounds. That the cause of death is

multiple stab wounds, contributory, [a]sphyxia by submersion in water. That

there were 13 stab wounds, 8 of which were on the frontal part of the body, 2
at the back and there were contused abrasions around the neck and on the left
arm. There was stab wound at the left side of the neck. That the contused
abrasion could be produced by cord or wire or rope. That there is (an) incised
wound on the left forearm.That the stab wounds which were backward
downward of the body involved the lungs. That the victim was in front of the
assailant. That the stab wound on the upper left shoulder was caused when the
assailant was in front of the victim. That the assailant was in front of the
victim when the stab wound near the upper left armpit was inflicted as well as
the stab wound on the left chest wall. That the stab wound on the back left side
of the body and the stab wound on the back right portion of the body may be
produced when the assailant was at the back of the victim. That the assailant
was in front of the victim when the stab wound[s] on the left elbow and left
arm were inflicted. That the large airway is filled with muddy particles
indicating that the victim was alive when the victim inhaled the muddy
particles. The heart is filled with multiple hemorrhage, loss of blood or
decreased of blood. The lungs is filled with water or muddy particles. The
brain is pale due to loss of blood.The stomach is one half filled with muddy
particles which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of
the victim. That he cannot tell if the assailant or the victim were standing. That
it is possible that the stab wounds was (sic) inflicted when both [referring to
participants] were standing or the victim was lying down and the assailant was
on top. That he cannot tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o clock
in the morning, went home, changed his clothes and went to work. After
office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place
of work. After drinking beer, they left at eight o clock in the evening and
headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac
and Andre Mar Masangkay, who invited them to join their own drinking
[10]

spree. Thereupon, Appellant Garcias wife came and asked him to go home
because their daughter was still sick. To alleviate his daughters illness, he
fetched his mother-in-law who performed a ritual called tawas. After the ritual,
he remained at home and attended to his sick daughter. He then fell asleep
but was awakened by police officers at six o clock in the morning of the
following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos.
[11]

Benjamin Ortega, Jr. likewise substantially corroborated the testimony of

Appellant Manuel Garcia. According to him, between eleven and twelve o
clock in the evening, Masangkay left the drinking session. Thirty (30) minutes
after Masangkay left, he also left the drinking place to urinate. He went
behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating. After he was
through, Masangkay approached him and asked where his sister was. He
answered that he did not know. Without warning, Masangkay allegedly boxed
him in the mouth, an attack that induced bleeding and caused him to fall on
his back. When he was about to stand up, Masangkay drew a knife and
stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay
then gripped his neck with his left arm and threatened to kill him. Unable to
move, Ortega shouted for help. Quitlong came and, to avoid being stabbed,
grabbed Masangkays right hand which was holding the knife. Quitlong was
able to wrest the knife from Masangkay and, with it, he stabbed Masangkay
ten (10) times successively, in the left chest and in the middle of the
stomach. When the stabbing started, Ortega moved to the left side of
Masangkay to avoid being hit. Quitlong chased Masangkay who ran towards
the direction of the well. Thereafter, Ortega went home and treated his injured
left armpit and lips. Then, he slept.
[12]

[13]

[14]

[15]

When he woke up at six o clock the following morning, he saw police

officers in front of his house. Taking him with them, the lawmen proceeded to
the well. From the railroad tracks where he was asked to sit, he saw the police
officers lift the body of a dead person from the well. He came to know the

identity of the dead person only after the body was taken to the police
headquarters.
[16]

The Trial Courts Discussion

The trial court explained its basis for appellants conviction as follows:

[17]

The Court is convinced that the concerted acts of accused Benjamin Ortega,
Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping
the victim Andre Mar Masangkay who was still alive and breathing inside the
deep well filled with water, head first and threw big stones/rocks inside the
well to cover the victim is a clear indication of the community of design to
finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre
Mar Masangkay was in no position to flee and/or defend himself against the
three malefactors. Conspiracy and the taking advantage of superior strength
were in attendance. The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and
manner in which assistance is rendered to the person inflicting the fatal wound
may determine complicity where it would not otherwise be evidence (People
vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the amount
of P35,000.00 for the funeral expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the following:
I. The trial court erred in holding that there is conspiracy on the basis of
the prosecutions evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay
was still alive at the time his body was dropped in the well;

[18]

III. The trial court erred in convicting Manuel Garcia and in not acquitting
the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is
guilty only of homicide alone.
On the basis of the records and the arguments raised by the appellants and the
People, we believe that the question to be resolved could be simplified thus: What are
the criminal liabilities, if any, of Appellants Ortega and Garcia?
The Courts Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of
homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of the crime
and positively identified appellants as the perpetrators. The witnesses for the
defense, on the other hand, attempted to prove denial and alibi. As to which of
the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard,
the trial court held:
[19]

The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their
behavior and demeanor on the witness stand and is convinced that the story of
the prosecution is the more believable version. Prosecution eyewitness
Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to the
police authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses
demeanor and deportment on the stand as they rendered their testimonies, its
evaluation of the credibility of witnesses is entitled to the highest

respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case,
his assessment of credibility must be respected.
[20]

In the instant case, we have meticulously scoured the records and found
no reason to reverse the trial courts assessment of the credibility of the
witnesses and their testimonies insofar as Appellant Ortega is
concerned. The narration of Eyewitness Diosdado Quitlong appears to be
spontaneous and consistent. It is straightforward, detailed, vivid and
logical. Thus, it clearly deserves full credence.
[21]

On the other hand, in asserting alibi and denial, the defense bordered on
the unbelievable. Appellant Ortega claimed that after he was able to free
himself from Masangkays grip, he went home, treated his injuries and slept.
This is not the ordinary reaction of a person assaulted. If Ortegas version of
the assault was true, he should have immediately reported the matter to the
police authorities, if only out of gratitude to Quitlong who came to his
rescue. Likewise, it is difficult to believe that a man would just sleep after
someone was stabbed in his own backyard. Further, we deem it incredible
that Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong. The natural tendency of a person
under attack is to defend himself and not to persist in choking a defenseless
third person.
[22]

[23]

Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength
were alleged in the information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial courts finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take advantage of such
superiority. It must be shown that the accused purposely used excessive force
that was manifestly out of proportion to the means available to the victims

defense. In this light, it is necessary to evaluate not only the physical

condition and weapon of the protagonists but also the various incidents of the
event.
[24]

[25]

In his testimony, Witness Dominador Quitlong mentioned nothing about

Appellant Ortegas availment of force excessively out of proportion to the
means of defense available to the victim to defend himself. Quitlong described
the assault made by Appellant Ortega as follows:
[26]

ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in
the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr.
and the house of his son Benjamin Ortega, Jr. are near each other.

xxx xxx xxx

Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr.,
Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto
San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived
drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer

to a call of nature and went to the back portion of the house, and Benjamin Ortega,
Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature
and after you heard huwag, tulungan nyo ako coming from the mouth of the late
Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was
stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done
telling us the particular position of the late Andrew Masangkay and how Benjamin
Ortega, Jr proceeded with the stabbing against the late victim, Andrew
Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega,
Jr. was nakakabayo and with his right hand with closed fist holding the weapon, he
was thrusting this weapon on the body of the victim, he was making downward and
upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.

It should be noted that Victim Masangkay was a six-footer, whereas

Appellant Ortega, Jr. was only five feet and five inches tall. There was no
[27]

testimony as to how the attack was initiated. The accused and the victim were
already grappling when Quitlong arrived. Nothing in the foregoing testimony
and circumstances can be interpreted as abuse of superior strength.Hence,
Ortega is liable only for homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court is based
on mere assumption and conjecture x x x. Allegedly, the medico-legal finding
that the large airway was filled with muddy particles indicating that the victim
was alive when the victim inhaled the muddy particles did not necessarily
mean that such muddy particles entered the body of the victim while he was
still alive. The Sinumpaang Salaysay of Quitlong stated, Nilubayan lang nang
saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the
prosecution evidence shows Masangkay was already dead when he was lifted
and dumped into the well. Hence, Garcia could be held liable only as an
accessory.
[28]

[29]

We do not agree with the above contention. Article 4, par. 1, of the

Revised Penal Code states that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act done be different
from that which he intended. The essential requisites for the application of this
provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily
caused by the actors wrongful acts. In assisting Appellant Ortega, Jr. carry the
body of Masangkay to the well, Appellant Garcia was committing a felony. The
offense was that of concealing the body of the crime to prevent its
discovery, i.e. that of being an accessory in the crime of homicide. Although
Appellant Garcia may have been unaware that the victim was still alive when
he assisted Ortega in throwing the body into the well, he is still liable for the
direct and natural consequence of his felonious act, even if the resulting
offense is worse than that intended.
[30]

True, Appellant Garcia merely assisted in concealing the body of the

victim. But the autopsy conducted by the NBI medico-legal officer showed that
the victim at that time was still alive, and that he died subsequently of
drowning. That drowning was the immediate cause of death was medically
[31]

demonstrated by the muddy particles found in the victims airway, lungs and
stomach. This is evident from the expert testimony given by the medico-legal
officer, quoted below:
[32]

[33]

ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of Exhibit N,
beginning with tracheo-bronchial tree, that is sentence immediately after
paragraph 10, 2.5 cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular
material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or
receiving of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to the
heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?

A This is due to asphyxia or the loss of blood.

Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs
have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is number
13?
A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate at
the thoraxic cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of the
body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in, in
that particular portion of the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please explain
the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the
abdomen.

Q And what could have cause the same?

A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)

A Filipino authority on forensic medicine opines that any of the following

medical findings may show that drowning is the cause of death:
[34]

1. The presence of materials or foreign bodies in the hands of the

victim. The clenching of the hands is a manifestation
of cadaveric spasm in the effort of the victim to save himself from
drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding to
the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in the
medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It
was proven that his airpassage, or specifically his tracheo-bronchial tree, was
filled with muddy particles which were residues at the bottom of the well. Even
his stomach was half-filled with such muddy particles. The unrebutted
testimony of the medico-legal officer that all these muddy particles were

ingested when the victim was still alive proved that the victim died of drowning
inside the well.
The drowning was the direct, natural and logical consequence of the
felony that Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under
this paragraph, a person may be convicted of homicide although he had no
original intent to kill.
[35]

In spite of the evidence showing that Appellant Garcia could be held liable
as principal in the crime of homicide, there are, however, two legal obstacles
barring his conviction, even as an accessory as prayed for by appellants
counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of
attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on
the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA The
prosecutions evidence itself shows that Garcia had nothing to do with the
stabbing which was solely perpetrated by Appellant Ortega. His responsibility
relates only to the attempted concealment of the crime and the resulting
drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is
that an accused cannot be convicted of an offense, unless it is clearly charged
in the complaint or information. Constitutionally, he has a right to be informed
of the nature and cause of the accusation against him. To convict him of an
offense other than that charged in the complaint or information would be a
violation of this constitutional right. Section 14, par. 2, of the 1987
Constitution explicitly guarantees the following:
[36]

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

In People vs. Pailano, this Court ruled that there can be no conviction for
rape on a woman deprived of reason or otherwise unconscious where the
information charged the accused of sexual assault by using force or
intimidation, thus:
[37]

The criminal complaint in this case alleged the commission of the crime
through the first method although the prosecution sought to establish at the
trial that the complainant was a mental retardate.Its purpose in doing so is not
clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground
that he violated Anita while she was deprived of reason or unconscious, such
conviction could not have been possible under the criminal complaint as
worded. This described the offense as having been committed by Antonio
Pailano, being then provided with a scythe, by means of violence and
intimidation, (who) did, then and there, wilfully, unlawfully and feloniously
have carnal knowledge of the complainant, Anita Ibaez, 15 years of age,
against her will. No mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita
while she was unconscious or otherwise deprived of reason -- and not through
force and intimidation, which was the method alleged -- would have violated
his right to be informed of the nature and cause of the accusation against him.
[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This
right is safeguarded by the Constitution to every accused so he can prepare an
adequate defense against the charge against him. Convicting him of a ground
not alleged while he is concentrating his defense against the ground alleged
would plainly be unfair and underhanded. This right was, of course, available
to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with
rape could not be found guilty of qualified seduction, which had not been
alleged in the criminal complaint against him.In the case of People vs. Montes,
[fn: 122 SCRA 409] the Court did not permit the conviction for homicide of a
person held responsible for the suicide of the woman he was supposed to have
raped, as the crime he was accused of -- and acquitted -- was not homicide but
rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114]

where the accused was charged with the misappropriation of funds held by
him in trust with the obligation to return the same under Article 315, paragraph
1(b) of the Revised Penal Code, but was convicted of swindling by means of
false pretenses, under paragraph 2(b) of the said Article, which was not alleged
in the information. The Court said such conviction would violate the Bill of
Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide
through drowning in an information that charges murder by means of
stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia
assisted in concealing x x x the body of the crime, x x x in order to prevent its
discovery, he can neither be convicted as an accessory after the fact defined
under Article 19, par. 2, of the Revised Penal Code. The records show that
Appellant Garcia is a brother-in-law of Appellant Ortega, the latters sister,
Maritess, being his wife. Such relationship exempts Appellant Garcia from
criminal liability as provided by Article 20 of the Revised Penal Code:
[38]

[39]

ART. 20. Accessories who are exempt from criminal liability. -- The penalties
prescribed for accessories shall not be imposed upon those who are such with
respect to their spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the same degrees
with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.
On the other hand, the next preceding article provides:
ART. 19. Accessories. Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.

2. By concealing or destroying the body of the crime, or the effects

or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of
his public functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt to take the life
of the Chief Executive, or is known to be habitually guilty of
some other crime.
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting
provision of the Revised Penal Code.This Court is thus mandated by law to
acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00
from P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the victim. Of the
expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim. However, in line with
current jurisprudence, Appellant Ortega shall also indemnify the heirs of the
deceased in the sum ofP50,000.00. Indemnity requires no proof other than the
fact of death and appellants responsibility therefor.
[40]

[41]

[42]

[43]

The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE,
premises
considered,
the
joint
appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day

of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is

also ORDERED to pay the heirs of the victim P50,000.00 as indemnity
and P31,790.00
as
actual
damages. Appellant
Manuel
Garcia
is ACQUITTED. His
immediate
release
from
confinement
is ORDERED unless he is detained for some other valid cause.
SO ORDERED.

THE

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
CELERINO CASTROMERO, accused-appellant.

vs.

DECISION
PANGANIBAN, J.:

Rape is consummated by the slightest touching of the lips of the female

organ or of the labia of the pudendum. Complete penetration is not
required. The rapist is likewise liable for the injury suffered by the rape victim
as a result of her attempt to escape the assault.
The Case
This is an appeal from the August 17, 1994 Decision of the Regional Trial
Court, Fourth Judicial Region, Branch 10 stationed in Balayan, Batangas in
Criminal Case No. 3509 finding appellant guilty of rape with serious physical
injuries.
[1]

[2]

The Complaint against Appellant Celerino Castromero reads:

[3]

The undersigned offended party under oath accuses Celerino Castromero of the
Complex Crime of Rape with Serious Physical Injuries, defined and penalized under
Article 335, in relation to Article 48 and 263 of the Revised Penal Code, committed as
follows:
That on or about the 6th day of February, 1993, at about 2:00 oclock in the morning,
at Barangay Tanggoy, Municipality of Balayan, Province of Batangas, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, armed with
a knife (balisong) and by means of force and intimidation did then and there wilfully,

unlawfully and feloniously have carnal knowledge with the offended party Josephine
Baon against her will and consent and as a consequence thereof, the said offended
party suffered serious physical injuries which injuries required medical attendance and
incapacitated her from performing her customary work for a period of more than
ninety (90) days by jumping down through the window of her house.
Contrary to law.
The Complaint was treated as the Information with the approval of
Provincial Prosecutor Carmelo Q. Quizon, after Fourth Asst. Provincial
Prosecutor Rolando E. Silang added his sworn certification that a preliminary
investigation was conducted in accordance with law. When arraigned on July
20, 1993, the accused-appellant, assisted by Counsel de OficioHermogenes
De Castro, pleaded not guilty.
[4]

[5]

After a pre-trial conference, trial ensued in due course. Subsequently, the

trial court rendered the assailed Judgment, the dispositive portion of which
reads:
WHEREFORE, the Court finds the accused Celerino Castromero GUILTY beyond
reasonable doubt of the crime of Rape With Serious Physical Injuries and hereby
sentences him to reclusion perpetua, to indemnify the victim Josephine Baon in the
sum of P40,000.00, to pay Josephine Baon the sum of P20,378.95 representing actual
damages and to pay the costs.
Considering that the accused is a detention prisoner, he shall be credited with the
period of his detention during his preventive imprisonment.
SO ORDERED.

[6]

The Facts
Version of the Prosecution
The prosecution presented three witnesses, namely: (1) Josephine Baon,
the victim; (2) her husband, Esmeraldo Baon, who testified on the medical
expenses for the injuries his wife suffered because of the crime; and (3) Felipa

Baon. The facts gleaned by the trial court from their testimonies are as
follows:
Felipa Baon is the mother-in-law of the alleged victim and was presented to prove
circumstances of the incident which form part of the res gestae. She testified that the
accused is her nephew because the accuseds father is her first cousin. On February 6,
1993 at around 2:00 oclock in the morning while asleep in their house in Barangay
Tangoy, Balayan, Batangas, she was awakened by a scream of her daughter-in-law
whose house is situated just five (5) armslength away from theirs. When she came out
to help her daughter-in-law (Josephine Baon), the latter was lying in front of the
window so, she and her husband carried Josephine into their house. Thereat,
Josephine related what happened to her. According to Josephine, the accused forcibly
entered her room, placed himself on top of her and made his penis touch her vagina
for several times. The accused was then holding a knife. When Josephine was able to
free herself from the accused, she jumped out of the window where she fell into the
ground. Thereafter, the assistance of Barangay Captain Codizal was sought who
reported the incident to the police. Felipa Baon executed a sworn statement when
investigated by one SPO2 William C. Dimaala in the Philippine Orthopedic Hospital
where Josephine was confined for treatment.
The next witness was the private complainant who gave her testimony while lying on
a bamboo bed. She averred that she knows the accused because the latter is the
nephew of her mother-in-law. On February 6, 1993, at around 2:00 oclock in the
morning while asleep, she was awakened by the slam of the kitchen door. She rose
and went out of the bedroom to check what happened and outside the room she met
the accused. The accused pointed a knife at her and warned her not to shout or else
she would be killed. She got scared.
The accused, while holding a knife on the right hand, embraced her behind the neck,
kissed her cheek, and touched her breasts. Then he pulled her panty until the garter
got loose and touched her private parts.Next, accused pulled down his jogging pants
and brief. She kept herself still because of the accuseds threat to kill her. Accused then
removed her skirt, placed himself on top of her, and tried to insert his penis into her
vagina. Because of the accused movement sideways and her struggle, his penis
touched her private parts.

When she noticed that the accused was no longer holding the knife, she pushed him
away. As she rose up, the accused grabbed her hands and was about to stab her. So,
she immediately jumped out of the window. When she fell down, she yelled for help
from her in-laws who responded and carried her to their house because she could not
move her feet. She requested her mother-in-law to bring her to the emergency hospital
because of the intense pain she was then suffering. Her in-laws reported the incident
to the barangay captain who looked for the accused and to whom the accused
surrendered.
From the emergency hospital, she was later transferred to the Philippine Orthopedic
Hospital. Upon examination, it was found out that her spinal column was broken
which required her to undergo surgical operation. (Exhs. E, E-1 to E-5).
On cross-examination, private complainant averred that it is her habit to sleep at night
with lights on in and out of her room especially when her husband is not around. In
the night of February 5, 1993 she slept with the lights on together with her children,
namely: Joanna Marie and Romualdo. It was at around 2:00 oclock the following
morning when she was awakened by a slam of the door, reason for her to rise-up to
check what happened and she met the accused just outside her room as she went
out. The accused then pulled her and pointed a knife on the left side of her neck and
touched her private parts while they were both standing with the accused in front of
her.
When she was already lying down (upon the orders of the accused) the accused went
on top of her embracing her with his right arm which also held a knife and touched
her private parts. The accused tried to insert with his left hand his penis into her
vagina.
As the knife was pointed at her, the accused warned her not to shout or she would be
killed. It was the accuseds left hand that touched her breast because his right hand
held the knife. The accused used both hands in removing her panty with the knife still
on his hand. The accused removed his jogging pants and brief and the knife was still
pointed in her neck. When the accused tried to insert his penis, it touched her vagina
as she put up resistance and as both of them moved sideways.
The next witness was Esmeraldo Baon, the husband of the offended party whose gist
of the testimony relates to the civil aspect of the crime charged. He testified on the

hospital and surgical expenses and cost of medicines incurred on account of the injury
suffered by the offended party caused by her jumping out of the window. The witness
also identified the receipts and other relevant documents in support of the expenses
incurred. Although he claimed having incurred expenses in the amount
of P242,198.00, the witness was able to present receipts covering P20,378.95 only
(Exhs. D-1 to D-25).
[7]

Version of the Defense

Raising denial and alibi, the defense presented two witnesses in the
person of Appellant Celerino Castromero and his wife Juliana. The appellant,
through the Public Attorneys Office, narrated the following version of the facts:
[8]

Juliana Castromero testified that she is the wife of the accused. She said that at around
6 oclock in the evening of February 5, 1993 she was with her husband (accused) and
their three (3) children at their house in Tanggoy, Balayan, Batangas. They took their
dinner. At about 7 oclock of the same night her husband went out. Her husband
returned before midnight and slept right away. She was awake till 1 oclock because
one of their children had a stomach ache. When she woke up at 5 oclock in the
morning, her husband was still sleeping. Her husband woke up at 6:00 A.M. After
taking his breakfast, her husband went to his work in Dalig, Balayan, Batangas. Her
husband is a threshing machine operator. While her husband was on his job, some
policemen came to their house and were looking for him. Her husband was being
suspected of entering others (sic) dwelling. (TSN, pp. 2-8, April 7, 1994 and pp. 2-9,
April 28, 1994)
Celerino Castromero testified that at around 6 oclock in the evening of February 5,
1993 he took his supper together with his wife and children. At about 7 P.M. he left
and played (or gambled) in a nearby house. At 11:30 P.M., he went home. After his
arrival at their house, he went to sleep right away. He woke up at 5 oclock of the
following morning. He reported for work in Dalig, Balayan, Batangas being a
threshing machine operator. When he went home at 12 oclock noon, their barangay
captain arrived and informed him that he was being suspected of having committed a
crime. The police invited him to the police station. And at the police station, the police
did not conduct any investigation. He was merely placed or locked up in the jail. He
went to the police station, together with their barangay captain, to explain his side and

not to surrender. He denied vehemently to have committed any crime. (TSN, pp. 2-18,
May 19, 1994).
Error Assigned
The defense raises one error: the court a quo erred in not acquitting the
accused-appellant of the crime charged. Appellant denies the accusation
against him and insists that he was inside his own house at the time of the
alleged rape.
[9]

The Courts Ruling

The appeal is not meritorious.
Credibility of Witnesses
In his brief, the appellant simply denies the charge of rape with serious
physical injuries and insists on his alibi. He also alludes to the following as
indications of his innocence: he voluntarily went to the police station with the
barangay captain; he pleaded not guilty to the charge; and he vehemently
denied committing the crime. Finally, he adds, if a reasonable doubt exists,
the verdict must be one of acquittal.
[10]

[11]

[12]

[13]

[14]

In deciding this appeal, we are guided by the following principles

formulated specifically for the review of rape cases: (1) an accusation of rape,
while easy to make, is difficult to prove and even harder for the person
accused, though innocent, to disprove; (2) because rape, by its very nature,
involves only two persons, the testimony of the complainant should be
scrutinized with the greatest caution; (3) the evidence for the prosecution must
stand or fall on its own merits and must not be allowed to draw strength from
the weakness of the evidence for the defense. On the other hand, the
complainants credibility assumes paramount importance because her
testimony, if credible, is sufficient to support the conviction of the accused.
[15]

[16]

After a thorough review of the records in the case at bar, we see no

reason to reverse the trial courts factual finding and conclusion on the
credibility of Josephine Baons testimony; we are likewise unpersuaded by
accused-appellants asseverations. Well-settled is the rule that the assessment
[17]

of the credibility of witnesses and their testimonies is a matter best undertaken

by the trial court, because of its unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct and attitude under grilling
examination. Findings of the trial court on such matters are binding and
conclusive on the appellate court, unless some facts or circumstances of
weight and substance have been overlooked, misapprehended or
misinterpreted.
[18]

Josephine Baons testimony on how her honor was defiled by appellant

that early dawn was clear, direct and honest. Josephine never wavered in
her account of the rape in spite of the long browbeating she received during
her cross-examination. Her identification of Appellant Castromero as her
violator cannot be disputed because she personally knew appellant who,
aside from being a neighbor, was also a relative of her mother-inlaw. Moreover, she had the opportunity to identify her assailant, since the
crime scene was illuminated by the lights inside and outside her room which
she usually left on, specially in the absence of her husband as was the case
that night. Besides, it is inconceivable that complainant, a decent 26-year old
married Filipina with two young children, would suffer the embarrassment of
having to reveal intimate details of her violation and to undergo all the
difficulties and indignities of a rape prosecution, if her sole motivation was not
to have the real culprit arrested and punished for the outrage committed
against her. Indeed, a rape victim will not come out in the open if her motive
[is] not to obtain justice. In any event, it was not shown that complainant had
any ill motive to falsely testify against Accused Castromero. The accused
himself and his wife Juliana both admitted during trial that they had no
knowledge of any bad blood between them and Josephine Baon or her family.
[19]

[20]

[21]

[22]

[23]

Hence, Josephines testimony, which we find credible and worthy of belief,

is sufficient to convict the accused-appellant of the crime charged. The
reliability and credibility of her testimony are bolstered by her narration of the
sordid incident immediately thereafter to her mother-in-law, Felipa
Baon. Based on the foregoing, we are convinced that appellant sexually
assaulted Complainant Josephine Baon.

Appellant Castromeros defense of denial and alibi is inherently weak and

certainly insufficient to outweigh Josephines positive and categorical assertion
of her violation by the former. Furthermore, (f)or alibi to serve as basis for
acquittal, it must be established with clear and convincing evidence. The
requisites of time and place must be strictly met. Appellant must convincingly
demonstrate that it was physically impossible for him to have been at the
scene of the crime at the time of its commission. Appellants evidence falls far
short of this requirement because his house, where he was allegedly sleeping
at the time the crime was committed, was a mere fifty meters from the crime
scene. Hence, it was not at all physically impossible or even difficult for
appellant to have been at complainants home at the time of the crime. It
seems to this Court that the defense of denial and alibi was routinely
raised faute de mieux.
[24]

[25]

[26]

Was Rape Committed?

In determining whether the rape was consummated or merely attempted,
we observe that in this case there was no complete or perfect penetration of
the complainants sex organ. The salient portions of her testimony are as
follows:
Q While he was on top of you, what was he doing?
A He tried to insert his penis to my vagina.
Q When he was trying to insert his private part to your private part, what happened?
A His penis touched my vagina.
FISCAL CASTILLO:
May I request Your Honor, that the Tagalog word Ang kanyang pag-aari ay lumapat sa
aking pag-aari).
Q What happened next?
A Because of the movement sideways his penis touched my private parts.
[27]
(Underscoring supplied.)

On cross-examination, Eden stated further:

Q Mrs. witness, you testified that while the accused was on top of you, he tried to insert
his penis, did the accused insert his penis on your private part?
A Yes sir, the opening of my vagina was touched.[28] (Underscoring supplied.)

Felipa Baon, on the other hand, declared:

Q When Josefina Baon asked your help and the first time you see (sic) her at that
morning, what was her physical condition?
A She was lying in front of the window.
Q And what did she tell you if she told you anything?
A Josephine Baon told me that the accused forcibly enter her room and placed himself
on top of her and the penis of the accused was made to touch the vagina for
several times. Idinuldol ng idinuldol ang kanyang pag-aari sa harap ni Josephine
Baon.[29] (Underscoring supplied.)

To consummate rape, perfect or complete penetration of the complainants

private organ is not essential. Even the slightest penetration by the male
organ of the lips of the female organ, or labia of the pudendum, is sufficient.
In People vs. Dela Pena, this Court held that the mere touching of the
external genitalia by a penis capable of consummating the sexual act
constitutes carnal knowledge. Josephines testimony that appellants organ
touched the opening of her vagina can lead to no other conclusion than that
the appellants manhood legally invaded, however slightly, the lips of her
private organ. Clearly, rape was consummated in this case. Because the
sexual assault was perpetrated by force and intimidation, Appellant
Castromero is thus guilty of rape pursuant to Article 335 of the Revised Penal
Code.
[30]

[31]

In relation to the charge that rape was complexed with the crime of serious
physical injuries, we stress the settled principle that a person who creates in
anothers mind an immediate sense of danger that causes the latter to try to
escape is responsible for whatever the other person may consequently suffer.
In this case, Josephine jumped from a window of her house to escape from
Appellant Castromero; as a result, she suffered serious physical injuries,
specifically a broken vertebra which required medical attention and surgery for
more than ninety days. This being the case, the court a quo correctly
[32]

convicted Appellant Castromero of the complex crime of rape with serious

physical injuries.
WHEREFORE, the assailed Decision of the trial court is
hereby AFFIRMED. However, the indemnity in favor of Josephine Baon is
hereby INCREASED to fifty thousand pesos (P50,000.00) in line with current
jurisprudence.
[33]

SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE,

GEORGE COMADRE and DANILO LOZANO, appellants.
DECISION
PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were

charged with Murder with Multiple Frustrated Murder in an information which
reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, with intent to
kill and by means of treachery and evident premeditation, availing of nighttime to
afford impunity, and with the use of an explosive, did there and then willfully,
unlawfully and feloniously lob a hand grenade that landed and eventually exploded at
the roof of the house of Jaime Agbanlog trajecting deadly shrapnels that hit and killed
one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday,
Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog
to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the
latter victims, the accused commenced all the acts of execution that would have
produced the crime of Multiple Murder as consequences thereof but nevertheless did
not produce them by reason of the timely and able medical and surgical interventions
of physicians, to the damage and prejudice of the deceaseds heirs and the other
victims.
CONTRARY TO LAW.

[1]

On arraignment, appellants pleaded not guilty. Trial on the merits then

ensued.
[2]

As culled from the records, at around 7:00 in the evening of August 6,

1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and
Lorenzo Eugenio were having a drinking spree on the terrace of the house of
Roberts father, Barangay Councilman Jaime Agbanlog, situated in Barangay
San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister
of the terrace listening to the conversation of the companions of his son.
[3]

[4]

As the drinking session went on, Robert and the others noticed appellants
Antonio Comadre, George Comadre and Danilo Lozano walking. The three
stopped in front of the house.While his companions looked on, Antonio
suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school.
[5]

The object, which turned out to be a hand grenade, exploded ripping a

hole in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,
Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped
unconscious on the floor. They were all rushed to the San Jose General
Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert
Agbanlog died before reaching the hospital.
[6]

[7]

Dr. Tirso de los Santos, the medico-legal officer who conducted the
autopsy on the cadaver of Robert Agbanlog, certified that the wounds
sustained by the victim were consistent with the injuries inflicted by a grenade
explosion and that the direct cause of death was hypovolemic shock due to
hand grenade explosion. The surviving victims, Jimmy Wabe, Rey Camat,
Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.
[8]

[9]

SPO3 John Barraceros of the Lupao Municipal Police Station, who

investigated the scene of the crime, recovered metallic fragments at the
terrace of the Agbanlog house. These fragments were forwarded to the
Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where
SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as
shrapnel of an MK2 hand grenade.
[10]

Denying the charges against him, appellant Antonio Comadre claimed that
on the night of August 6, 1995, he was with his wife and children watching
television in the house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that he was surprised
when three policemen from the Lupao Municipal Police Station went to his
house the following morning of August 7, 1995 and asked him to go with them
to the police station, where he has been detained since.
[11]

Appellant George Comadre, for his part, testified that he is the brother of
Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied
any involvement in the grenade-throwing incident, claiming that he was at
home when it happened. He stated that he is a friend of Rey Camat and
Jimmy Wabe, and that he had no animosity towards them whatsoever.
Appellant also claimed to be in good terms with the Agbanlogs so he has no
reason to cause them any grief.
[12]

Appellant Danilo Lozano similarly denied any complicity in the crime. He

declared that he was at home with his ten year-old son on the night of August
6, 1995. He added that he did not see Antonio and George Comadre that
night and has not seen them for quite sometime, either before or after the
incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.
[13]

Antonios father, Patricio, and his wife, Lolita, corroborated his claim that
he was at home watching television with them during the night in question.
Josie Comadre, Georges wife, testified that her husband could not have
been among those who threw a hand grenade at the house of the Agbanlogs
because on the evening of August 6, 1995, they were resting inside their
house after working all day in the farm.
[14]

[15]

After trial, the court a quo gave credence to the prosecutions evidence and
convicted appellants of the complex crime of Murder with Multiple Attempted
Murder, the dispositive portion of which states:
[16]

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano

GUILTY beyond reasonable doubt of the complex crime of Murder with
Multiple Attempted Murder and sentencing them to suffer the imposable
penalty of death;
2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly
and severally the heirs of Robert Agbanlog P50,000.00 as indemnification for
his death, P35,000.00 as compensatory damages and P20,000.00 as moral
damages;
3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to
pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and
Jaime Agbanlog P30,000.00 as indemnity for their attempted murder.
Costs against the accused.
SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal
Code, as amended. Appellants contend that the trial court erred: (1) when it
did not correctly and judiciously interpret and appreciate the evidence and
thus, the miscarriage of justice was obviously omnipresent; (2) when it
imposed on the accused-appellants the supreme penalty of death despite the
evident lack of the quantum of evidence to convict them of the crime charged
beyond reasonable doubt; and (3) when it did not apply the law and
jurisprudence for the acquittal of the accused-appellants of the crime charged.
[17]

Appellants point to the inconsistencies in the sworn statements of Jimmy

Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the
perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they did not categorically
state who the culprit was but merely named Antonio Comadre as a
suspect. Gerry Bullanday declared that he suspected Antonio Comadre as
one of the culprits because he saw the latters ten year-old son bring
something in the nearby store before the explosion occurred.

On August 27, 1995, or twenty days later, they went to the police station to
give a more detailed account of the incident, this time identifying Antonio
Comadre as the perpetrator together with George Comadre and Danilo
Lozano.
A closer scrutiny of the records shows that no contradiction actually exists,
as all sworn statements pointed to the same perpetrators, namely, Antonio
Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the
first statement was executed a day after the incident, when Jimmy Wabe, Rey
Camat and Lorenzo Eugenio were still in the hospital for the injuries they
sustained. Coherence could not thus be expected in view of their condition. It
is therefore not surprising for the witnesses to come up with a more
exhaustive account of the incident after they have regained their equanimity.
The lapse of twenty days between the two statements is immaterial because
said period even helped them recall some facts which they may have initially
overlooked.
Witnesses cannot be expected to remember all the details of the
harrowing event which unfolded before their eyes. Minor discrepancies might
be found in their testimony, but they do not damage the essential integrity of
the evidence in its material whole, nor should they reflect adversely on the
witness credibility as they erase suspicion that the same was perjured.
Honest inconsistencies on minor and trivial matters serve to strengthen
rather than destroy the credibility of a witness to a crime, especially so when,
as in the instant case, the crime is shocking to the conscience and numbing to
the senses.
[18]

[19]

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely against
appellants. Absent evidence showing any reason or motive for prosecution
witnesses to perjure, the logical conclusion is that no such improper motive
exists, and their testimony is thus worthy of full faith and credit.
The trial court is likewise correct in disregarding appellants defense of alibi
and denial. For the defense of alibi to prosper, the accused must prove not
only that he was at some other place at the time of the commission of the

crime but also that it was physically impossible for him to be at the locus
delicti or within its immediate vicinity.
[20]

Apart from testifying with respect to the distance of their houses from that
of Jaime Agbanlogs residence, appellants were unable to give any
explanation and neither were they able to show that it was physically
impossible for them to be at the scene of the crime. Hence, the positive
identification of the appellants by eyewitnesses Jimmy Wabe, Jaime
Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi
and denial.
[21]

It was established that prior to the grenade explosion, Rey Camat, Jaime
Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the culprits,
namely, appellants Antonio Comadre, George Comadre and Danilo Lozano
because there was a lamppost in front of the house and the moon was bright.
[22]

Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of

the Regional Trial Court of San Jose City, Branch 38 erred in rendering the
decision because he was not the judge who heard and tried the case is not
well taken.
It is not unusual for a judge who did not try a case to decide it on the basis
of the record for the trial judge might have died, resigned, retired, transferred,
and so forth. As far back as the case of Co Tao v. Court of Appeals we have
held: The fact that the judge who heard the evidence is not the one who
rendered the judgment and that for that reason the latter did not have the
opportunity to observe the demeanor of the witnesses during the trial but
merely relied on the records of the case does not render the judgment
erroneous. This rule had been followed for quite a long time, and there is no
reason to go against the principle now.
[23]

[24]

[25]

However, the trial courts finding of conspiracy will have to be

reassessed. The undisputed facts show that when Antonio Comadre was in
the act of throwing the hand grenade, George Comadre and Danilo Lozano
merely looked on without uttering a single word of encouragement or
performed any act to assist him. The trial court held that the mere presence of

George Comadre and Danilo Lozano provided encouragement and a sense of

security to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. Settled is the rule that
to establish conspiracy, evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.
[26]

A conspiracy must be established by positive and conclusive evidence. It

must be shown to exist as clearly and convincingly as the commission of the
crime itself. Mere presence of a person at the scene of the crime does not
make him a conspirator for conspiracy transcends companionship.
[27]

The evidence shows that George Comadre and Danilo Lozano did not
have any participation in the commission of the crime and must therefore be
set free. Their mere presence at the scene of the crime as well as their close
relationship with Antonio are insufficient to establish conspiracy considering
that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an
act of giving moral assistance to his criminal act. The ratiocination of the trial
court that their presence provided encouragement and sense of security to
Antonio, is devoid of any factual basis. Such finding is not supported by the
evidence on record and cannot therefore be a valid basis of a finding of
conspiracy.
Time and again we have been guided by the principle that it would be
better to set free ten men who might be probably guilty of the crime charged
than to convict one innocent man for a crime he did not commit. There being
no conspiracy, only Antonio Comadre must answer for the crime.
[28]

Coming now to Antonios liability, we find that the trial court correctly ruled
that treachery attended the commission of the crime. For treachery to be
appreciated two conditions must concur: (1) the means, method and form of
execution employed gave the person attacked no opportunity to defend

himself or retaliate; and (2) such means, methods and form of execution was
deliberately and consciously adopted by the accused. Its essence lies in the
adoption of ways to minimize or neutralize any resistance, which may be put
up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the
unsuspecting victims were having a drinking spree. The suddenness of the
attack coupled with the instantaneous combustion and the tremendous impact
of the explosion did not afford the victims sufficient time to scamper for safety,
much less defend themselves; thus insuring the execution of the crime without
risk of reprisal or resistance on their part. Treachery therefore attended the
commission of the crime.
It is significant to note that aside from treachery, the information also
alleges the use of an explosive as an aggravating circumstance. Since both
attendant circumstances can qualify the killing to murder under Article 248 of
the Revised Penal Code, we should determine which of the two
circumstances will qualify the killing in this case.
[29]

[30]

When the killing is perpetrated with treachery and by means of explosives,

the latter shall be considered as a qualifying circumstance. Not only does
jurisprudence support this view but also, since the use of explosives is the
principal mode of attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then be relegated
merely as a generic aggravating circumstance.
[31]

[32]

Incidentally, with the enactment on June 6, 1997 of Republic Act No.

8294 which also considers the use of explosives as an aggravating
circumstance, there is a need to make the necessary clarification insofar as
the legal implications of the said amendatory law vis--vis the qualifying
circumstance of by means of explosion under Article 248 of the Revised Penal
Code are concerned. Corollary thereto is the issue of which law should be
applied in the instant case.
[33]

R.A. No. 8294 was a reaction to the onerous and anachronistic penalties
imposed under the old illegal possession of firearms law, P.D. 1866, which
prevailed during the tumultuous years of the Marcos dictatorship. The

amendatory law was enacted, not to decriminalize illegal possession of

firearms and explosives, but to lower their penalties in order to rationalize
them into more acceptable and realistic levels.
[34]

This legislative intent is conspicuously reflected in the reduction of the

corresponding penalties for illegal possession of firearms, or ammunitions and
other related crimes under the amendatory law. Under Section 2 of the said
law, the penalties for unlawful possession of explosives are also lowered.
Specifically, when the illegally possessed explosives are used to commit any
of the crimes under the Revised Penal Code, which result in the death of a
person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be
considered only as an aggravating circumstance. Section 3 of P.D. No. 1866
as amended by Section 2 of R.A. 8294 now reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further
amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Explosives. The penalty of prision mayor in its maximum period to reclusion
temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be
imposed upon any person who shall unlawfully manufacture, assemble, deal in,
acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives,
including but not limited to pillbox, molotov cocktail bombs, fire bombs, or other
incendiary devices capable of producing destructive effect on contiguous objects or
causing injury or death to any person.
When a person commits any of the crimes defined in the Revised Penal Code or
special law with the use of the aforementioned explosives, detonation agents or
incendiary devises, which results in the death of any person or persons, the use of
such explosives, detonation agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the penalty of death is
DELETED.)
x x x x x x x x x.
With the removal of death as a penalty and the insertion of the term xxx as
an aggravating circumstance, the unmistakable import is to downgrade the

penalty for illegal possession of explosives and consider its use merely as an
aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended RA
No. 8294 to consider as aggravating circumstance, instead of a separate
offense, illegal possession of firearms and explosives when such possession
is used to commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the
definition of murder under Article 248, but merely made the use of explosives
an aggravating circumstance when resorted to in committing any of the crimes
defined in the Revised Penal Code. The legislative purpose is to do away with
the use of explosives as a separate crime and to make such use merely an
aggravating circumstance in the commission of any crime already defined in
the Revised Penal Code. Thus, RA No. 8294 merely added the use of
unlicensed explosives as one of the aggravating circumstances specified in
Article 14 of the Revised Penal Code. Like the aggravating circumstance of
explosion in paragraph 12, evident premeditation in paragraph 13, or
treachery in paragraph 16 of Article 14, the new aggravating circumstance
added by RA No. 8294 does not change the definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot
be made applicable in this case. Before the use of unlawfully possessed
explosives can be properly appreciated as an aggravating circumstance, it
must be adequately established that the possession was illegal or
unlawful, i.e., the accused is without the corresponding authority or permit to
possess. This follows the same requisites in the prosecution of crimes
involving illegal possession of firearm which is a kindred or related offense
under P.D. 1866, as amended. This proof does not obtain in the present
case. Not only was it not alleged in the information, but no evidence was
adduced by the prosecution to show that the possession by appellant of the
explosive was unlawful.
[35]

It is worthy to note that the above requirement of illegality is borne out by

the provisions of the law itself, in conjunction with the pertinent tenets of legal
hermeneutics.

A reading of the title of R.A. No. 8294 will show that the qualifier
illegal/unlawful ...possession is followed by of firearms, ammunition, or
explosives or instruments... Although the term ammunition is separated from
explosives by the disjunctive word or, it does not mean that explosives are no
longer included in the items which can be illegally/unlawfully possessed. In
this context, the disjunctive word or is not used to separate but to signify a
succession or to conjoin the enumerated items together. Moreover, Section 2
of R.A. 8294, subtitled: Section 3.Unlawful Manufacture, Sale, Acquisition,
Disposition
or
Possession
of
Explosives,
clearly
refers
to
the unlawful manufacture, sale, or possession of explosives.
[36]

[37]

[38]

What the law emphasizes is the acts lack of authority. Thus, when the
second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294
speaks of the use of the aforementioned explosives, etc. as an aggravating
circumstance in the commission of crimes, it refers to those explosives, etc.
unlawfully manufactured, assembled, dealt in, acquired, disposed or
possessed mentioned in the first paragraph of the same section. What is per
se aggravating is the use of unlawfully manufactured or possessed
explosives. The mere use of explosives is not.
The information in this case does not allege that appellant Antonio
Comadre had unlawfully possessed or that he had no authority to possess the
grenade that he used in the killing and attempted killings. Even if it were
alleged, its presence was not proven by the prosecution beyond reasonable
doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires
the averment of aggravating circumstances for their application.
[39]

The inapplicability of R.A. 8294 having been made manifest, the crime
committed is Murder committed by means of explosion in accordance with
Article 248 (3) of the Revised Penal Code. The same, having been alleged in
the Information, may be properly considered as appellant was sufficiently
informed of the nature of the accusation against him.
[40]

The trial court found appellant guilty of the complex crime of murder with
multiple attempted murder under Article 48 of the Revised Penal Code, which
provides:

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 of committing the
other, the penalty for the most serious crime shall be imposed, the same to be applied
in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code,
which follows the pro reo principle, is intended to favor the accused by
imposing a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by
different acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade 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.
[41]

Under the aforecited article, when a single act constitutes two or more
grave or less grave felonies the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period irrespective of the
presence of modifying circumstances, including the generic aggravating
circumstance of treachery in this case. Applying the aforesaid provision of
law, the maximum penalty for the most serious crime (murder) is death. The
trial court, therefore, correctly imposed the death penalty.
[42]

Three justices of the Court, however, continue to maintain the

unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty.
Nevertheless, they submit to the ruling of the majority to the effect that the law
is constitutional and that the death penalty can be lawfully imposed in the
case at bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog
civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory
damages and P20,000.00 as moral damages. Pursuant to existing
jurisprudence the award of civil indemnity is proper. However, the actual
[43]

damages awarded to the heirs of Robert Agbanlog should be modified,

considering that the prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.
[44]

The award of moral damages is appropriate there being evidence to show

emotional suffering on the part of the heirs of the deceased, but the same
must be increased to P50,000.00 in accordance with prevailing judicial policy.
[45]

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the
injuries they sustained. We find this award inappropriate because they were
not able to present a single receipt to substantiate their claims. Nonetheless,
since it appears that they are entitled to actual damages although the amount
thereof cannot be determined, they should be awarded temperate damages of
P25,000.00 each.
[46]

WHEREFORE, in view of all the foregoing, the appealed decision of the

Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the
complex crime of Murder with Multiple Attempted Murder and sentenced to
suffer the penalty of death. He is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P18,000.00 as actual damages and likewise ordered to pay the surviving
victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday,
P25,000.00 each as temperate damages for the injuries they sustained.
Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of
evidence to establish conspiracy, and they are hereby ordered immediately
RELEASED from confinement unless they are lawfully held in custody for
another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of
the Revised Penal Code, upon finality of this Decision, let the records of this
case be forwarded to the Office of the President for possible exercise of
pardoning power.
SO ORDERED.

PEOPLE
OF
THE
PHILIPPINES, appellee, vs.
ROBIOS y DOMINGO, appellant.

MELECIO

DECISION
PANGANIBAN, J.:

Where the law prescribes a penalty consisting of two indivisible penalties,

as in the present case for parricide with unintentional abortion, the lesser one
shall be applied in the absence of any aggravating circumstances. Hence, the
imposable penalty here is reclusion perpetua, not death.
The Case
For automatic review by this Court is the April 16, 1999 Decision of the
Regional Trial Court (RTC) of Camiling, Tarlac (Branch 68), in Criminal Case
No. 95-45, finding Melecio Robios y Domingo guilty beyond reasonable doubt
of the complex crime of parricide with unintentional abortion and sentencing
him to death. The decretal portion of the Decision reads as follows:
[1]

[2]

WHEREFORE, finding accused Melecio Robios guilty beyond reasonable doubt of

the complex crime of parricide with unintentional abortion, this Court hereby renders
judgment sentencing him to suffer the penalty of DEATH by lethal injection. He is
also ordered to pay P50,000.00 as civil indemnity for the death of the victim;
and P22,800.00 as actual damages.[3]
In an Information dated May 31, 1995, appellant was accused of killing
his pregnant wife and the fetus inside her. It reads thus:
[4]

That on or about March 25, 1995 at around 7:00 a.m. in Brgy. San Isidro,
Municipality of Camiling, Province of Tarlac, Philippines and within the jurisdiction
of this Honorable Court, the said accused Melecio Robinos, did then and there
willfully, unlawfully and feloniously stab by means of a bladed knife 8 inches long,
his legitimate wife Lorenza Robinos, who was, then six (6) months pregnant causing
the instantaneous death of said Lorenza Robinos, and the fetus inside her womb. [5]
When arraigned on July 27, 1995, appellant, with the assistance of his
counsel, pleaded not guilty. After due trial, the RTC convicted him.
[6]

[7]

The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) narrates the prosecutions
version of how appellant assaulted his pregnant wife, culminating in a brutal
bloodbath, as follows:
1. On March 25, 1995, at around seven oclock in the morning, fifteen-year old
Lorenzo Robios was in his parents house at Barangay San Isidro in Camiling, Tarlac.
While Lorenzo was cooking, he heard his parents, appellant Melecio Robios and the
victim Lorenza Robios, who were at the sala, quarrelling.
2. Lorenzo heard his mother tell appellant, Why did you come home, why dont you
just leave? After hearing what his mother said, Lorenzo, at a distance of about five
meters, saw appellant, with a double-bladed knife, stab Lorenza on the right
shoulder. Blood gushed from where Lorenza was hit and she fell down on the
floor. Upon witnessing appellants attack on his mother, Lorenzo immediately left their
house and ran to his grandmothers house where he reported the incident.
3. At around eight oclock in the morning of the same day, Benjamin Bueno, the
brother of the victim Lorenza Robios, was at the house of his mother Remedios Bueno
at Barangay San Isidro. Benjamin, a resident of Barangay Mabilang in Paniqui,
Tarlac, went to his mothers house for the purpose of informing his relatives that on the
evening of March 24, 1995, appellant had killed his uncle, Alejandro Robios, at
Barangay Mabilang. However while Benjamin was at his mothers house, he received
the more distressing news that his own sister Lorenza had been killed by appellant.
4. Upon learning of the attack on his sister, Benjamin did not go to her house because
he was afraid of what appellant might do. From his mothers house, which was about
150 meters away from his sisters home, Benjamin saw appellant who shouted at him,
Its good you would see how your sister died.
5. Benjamin sought the help of Barangay Captain Virgilio Valdez who called the
police station at Camiling, Tarlac. SPO1 Herbert Lugo and SPO3 Tirso Martin,
together with the other members of the PNP Alert Team at Camiling, Tarlac,
immediately went to Barangay San Isidro. The police, together with Benjamin Bueno
and some barangay officials and barangay folk, proceeded to the scene of the crime

where they saw blood dripping from the house of appellant and Lorenza. The police
told appellant to come out of the house. When appellant failed to come out, the police,
with the help of barangay officials, detached the bamboo wall from the part of the
house where blood was dripping. The removal of the wall exposed that section of the
house where SPO1 Lugo saw appellant embracing [his] wife.
6. Appellant and Lorenza were lying on the floor. Appellant, who was lying on his
side and holding a bloodstained double-bladed knife with his right hand, was
embracing his wife. He was uttering the words, I will kill myself, I will kill
myself. Lorenza, who was lying on her back and facing upward, was no longer
breathing. She appeared to be dead.
7. The police and the barangay officials went up the stairs of the house and pulled
appellant away from Lorenzas body. Appellant dropped the knife which was taken by
SPO3 Martin. Appellant tried to resist the people who held him but was overpowered.
The police, with the help of the barangay officials present, tied his hands and feet with
a plastic rope. However, before he was pulled away from the body of his wife and
restrained by the police, appellant admitted to Rolando Valdez, a neighbor of his and
a barangay kagawad, that he had killed his wife, showing him the bloodstained knife.
8. Upon examining Lorenza, SPO1 Lugo found that she was already dead. She was
pale and not breathing. The police thus solicited the services of a funeral parlor to take
Lorenzas body for autopsy.Appellant was brought to the police station at Camiling,
Tarlac. However, he had to be taken to the Camiling District Hospital for the treatment
of a stab wound.
9. After the incident, Senior Inspector Reynaldo B. Orante, the Chief of Police at
Camiling, Tarlac, prepared a Special Report which disclosed that:
The victim Lorenza Robios was six (6) months pregnant. She suffered 41 stab wounds
on the different parts of her body.
That suspect (Melecio Robios) was under the influence of liquor/drunk [who] came
home and argued/quarreled with his wife, until the suspect got irked, [drew] a double
knife and delivered forty one (41) stab blows.
Suspect also stabbed his own body and [was] brought to the Provincial Hospital.

Recovered from the crime scene is a double blade sharp knife about eight (8) inches
long including handle.
10. During the trial of the case, the prosecution was not able to present the doctor who
conducted the autopsy on Lorenza Robios body. Nor, was the autopsy report presented
as evidence.[8]
Version of the Defense
Appellant does not refute the factual allegations of the prosecution that he
indeed killed his wife, but seeks exoneration from criminal liability by
interposing the defense of insanity as follows:
Pleading exculpation, herein accused-appellant interposed insanity. The defense
presented the testimonies of the following:
FEDERICO ROBIOS, 19 years old son of Melecio Robios, testified that his parents
had occasional quarrels[. B]efore March 23, 1995, his father told him that he had seen
a person went [sic] inside their house and who wanted to kill him. On March 23,
1995, he heard his father told the same thing to his mother and because of this, his
parents quarreled and exchanged heated words.
LOURDES FAJARDO, nurse of the Tarlac Penal Colony, testified that she came to
know Melecio Robios only in May to June 1996. Every time she visited him in his
cell, accused isolated himself, laging nakatingin sa malayo, rarely talked, just stared at
her and murmured alone.
BENEDICT REBOLLOS, a detention prisoner of the Tarlac Penal Colony, testified
that he and the accused were seeing each other everyday from 6:00 oclock in the
morning up to 5:30 oclock in the afternoon. He had observed that accused
sometime[s] refused to respond in the counting of prisoners. Sometimes, he stayed in
his cell even if they were required to fall in line in the plaza of the penal colony.
DOMINGO FRANCISCO, another detention prisoner of the Tarlac Penal Colony,
testified that as the accuseds inmate, he had occasion to meet and mingle with the
latter. Accused sometimes was lying down, sitting, looking, or staring on space and
without companion, laughing and sometimes crying.

MELECIO ROBIOS, herein accused-appellant, testified that on March 25, 1995, he

was in their house and there was no unusual incident that happened on that date. He
did not know that he was charged for the crime of parricide with unintentional
abortion. He could not remember when he was informed by his children that he killed
his wife. He could not believe that he killed his wife. [9]
In view of the penalty imposed by the trial court, this case was
automatically elevated to this Court for review.
[10]

The Issues
Appellant submits for our consideration the following assignment of errors:
I

The court a quo erred in not giving probative weight to the testimony and psychiatric
evaluation of Dr. Maria Mercedita Mendoza finding the accused-appellant to be
suffering from psychosis or insanity classified under schizophrenia, paranoid type.
II

The court a quo erred in disregarding accused-appellants defense of insanity.[11]

The Courts Ruling
The appeal is partly meritorious.
Main Issue
Insanity as an Exempting Circumstance
At the outset, it bears noting that appellant did not present any evidence to
contravene the allegation that he killed his wife. Clear and undisputed are the
RTC findings on the identity of the culprit and the commission of the complex
crime of parricide with unintentional abortion. Appellant, however, interposes
the defense of insanity to absolve himself of criminal liability.
Insanity presupposes that the accused was completely deprived of reason
or discernment and freedom of will at the time of the commission of the crime.

A defendant in a criminal case who relies on the defense of mental

incapacity has the burden of establishing the fact of insanity at the very
moment when the crime was committed. Only when there is a complete
deprivation of intelligence at the time of the commission of the crime should
the exempting circumstance of insanity be considered.
[12]

[13]

[14]

The presumption of law always lies in favor of sanity and, in the absence
of proof to the contrary, every person is presumed to be of sound mind.
Accordingly, one who pleads the exempting circumstance of insanity has the
burden of proving it. Failing this, one will be presumed to be sane when the
crime was committed.
[15]

[16]

A perusal of the records of the case reveals that appellants claim of

insanity is unsubstantiated and wanting in material proof. Testimonies from
both prosecution and defense witnesses show no substantial evidence that
appellant was completely deprived of reason or discernment when he
perpetrated the brutal killing of his wife.
As can be gleaned from the testimonies of the prosecution witnesses, a
domestic altercation preceded the fatal stabbing. Thus, it cannot be said that
appellant attacked his wife for no reason at all and without knowledge of the
nature of his action. To be sure, his act of stabbing her was a deliberate and
conscious reaction to the insulting remarks she had hurled at him as attested
to by their 15-year-old son Lorenzo Robios. We reproduce Lorenzos testimony
in part as follows:
Q: Before your father Melecio Robios stabbed your mother, do you recall if they talked
to one and the other?
A: Yes, sir.
ATTY. IBARRA:
Q: Did you hear what they talked about?
A: Yes, sir.
Q: What did you hear?
A: Why did you come home, why dont you just leave?, Sir.

COURT:
In other words, you better go away, you should have not come back home.
ATTY. IBARRA:
Q: After your mother uttered those words, what did your father do?

A: That was the time that he stabbed my mother, sir.[17]

Furthermore, appellant was obviously aware of what he had done to his

wife. He was even bragging to her brother, Benjamin Bueno, how he had just
killed her. Bueno testified thus:
ATTY. JOAQUIN:
Q: Now, from the house of your mother, can you see the house of your sister?
A: Yes, sir.
Q: When you arrived at the house of your mother, Lorenzo Robios was already there in
the house of your mother, is that right, Mr. Witness?
A: Yes, sir.
Q: And he was the one who informed you about your sister already dead?
A: Yes, Sir.
Q: Did you go near the house of your sister upon learning that she was already dead?
A: No, sir.
ATTY. JOAQUIN:
Q: Why?
A: My brother-in-law was still amok, Sir.
COURT:
Q: Why do you know that he was amok?
A: Yes, sir, because he even shouted at me, sir.

Q: How?

A: Its good you would see how your sister died, Sir.[18]

Finally, the fact that appellant admitted to responding law enforcers how
he had just killed his wife may have been a manifestation of repentance and
remorse -- a natural sentiment of a husband who had realized the
wrongfulness of his act. His behavior at the time of the killing and immediately
thereafter is inconsistent with his claim that he had no knowledge of what he
had just done. Barangay Kagawad Rolando Valdez validated the clarity of
mind of appellant when the latter confessed to the former and to the police
officers, and even showed to them the knife used to stab the victim. Valdezs
testimony proceeded as follows:
Q: And what did you discover when you went there at the house of Melecio Robios?
A: When we arrived at the house of Melecio Robios, it was closed. We waited for the
police officers to arrive and when they arrived, that was the time that we started
going around the house and when we saw blood, some of our companions
removed the walling of the house and at that time, we saw the wife of Melecio
Robios lying down as if at that moment, the wife of Melecio Robios was already
dead, Sir.
Q: When you were able to remove this walling, what did you do?
A: We talked to Melecio Robios, Sir.

xxxxxxxxx
Q: What was he doing when you talked to him?
A: When we saw them they were both lying down and when we got near, he said he
killed his wife and showing the weapon he used, sir.
Q: What is that weapon?
A: Double bladed weapon, Sir.
COURT:
What is that, knife?

A: Its a double bladed knife, sir.

xxxxxxxxx
COURT:
He admitted to you that he killed his wife?
A: Yes, sir.
Q: How did he say that, tell the court exactly how he tell you that, in tagalog, ilocano or
what?
A: What I remember Sir he said, Pinatay ko ni baket ko meaning I killed my wife, Sir.[19]

Clearly, the assault of appellant on his wife was not undertaken without his
awareness of the atrocity of his act.
Similarly, an evaluation of the testimonies of the defense witnesses hardly
supports his claim of insanity. The bulk of the defense evidence points to his
allegedly unsound mental condition after the commission of the crime. Except
for appellants 19-year-old son Federico Robios, all the other defense
witnesses testified on the supposed manifestations of his insanity after he had
already been detained in prison.
[20]

To repeat, insanity must have existed at the time of the commission of the
offense, or the accused must have been deranged even prior
thereto. Otherwise he would still be criminally responsible. Verily, his alleged
insanity should have pertained to the period prior to or at the precise moment
when the criminal act was committed, not at anytime thereafter. In People v.
Villa, this Court incisively ratiocinated on the matter as follows:
[21]

[22]

It could be that accused-appellant was insane at the time he was examined at the
center. But, in all probability, such insanity was contracted during the period of his
detention pending trial. He was without contact with friends and relatives most of the
time. He was troubled by his conscience, the realization of the gravity of the offenses
and the thought of a bleak future for him. The confluence of these circumstances may
have conspired to disrupt his mental equilibrium. But, it must be stressed, that an
inquiry into the mental state of accused-appellant should relate to the period

immediately before or at the precise moment of doing the act which is the subject of
the inquiry, and his mental condition after that crucial period or during the trial is
inconsequential for purposes of determining his criminal liability. In fine, this Court
needs more concrete evidence on the mental condition of the person alleged to be
insane at the time of the perpetration of the crimes in order that the exempting
circumstance of insanity may be appreciated in his favor. x x x. [23] (Italics supplied)
Indeed, when insanity is alleged as a ground for exemption from criminal
responsibility, the evidence must refer to the time preceding the act under
prosecution or to the very moment of its execution. If the evidence points to
insanity subsequent to the commission of the crime, the accused cannot be
acquitted.
[24]

The testimony of Dr. Maria Mercedita Mendoza, the psychiatrist who

conducted an examination of the mental condition of appellant, does not
provide much help in determining his state of mind at the time of the killing. It
must be noted that she examined him only on September 11, 1995, or six
months after the commission of the crime. Moreover, she was not able to
make a background study on the history of his mental condition prior to the
killing because of the failure of a certain social worker to gather data on the
matter.
[25]

[26]

Although Dr. Mendoza testified that it was possible that the accused had
already been suffering from psychosis at the time of the commission of the
crime, she likewise admitted that her conclusion was not definite and was
merely an opinion. As correctly observed by the trial court, her declarations
were merely conjectural and inconclusive to support a positive finding of
insanity. According to the RTC:
[27]

[28]

The testimony of Dr. Maria Mercidita Mendoza, who examined accused at the
National Center for Mental Health, Mandaluyong City, that at the time of examination
accused Melecio Robios was still mentally ill; that accused was experiencing
hallucination and suffering from insanity and it is possible that the sickness have
occurred eight (8) to nine (9) months before examination; and in her opinion accused
was suffering from delusion and hallucination. And her opinion that at the time
accused stabbed himself, he was not in his lucid interval, is merely her conclusion.
xxx xxx xxx Aside from being her opinion, she conducted the mental, physical and

neurological examinations on the accused seven (7) months after the commission of
the offense. That span of seven (7) months has given accused an opportunity to
contrive and feign mental derangement. Dr. Mendoza had no opportunity to observed
(sic) and assessed (sic) the behavior of the accused immediately before, during and
immediately after the commission of the offense. Her finding is conjectural,
inconclusive. She did not conduct background examination of the mental condition of
the accused before the incident by interviewing persons who had the opportunity to
associate with him.[29]
Hence, appellant who invoked insanity should have proven that he had
already been completely deprived of reason when he killed the victim. Verily,
the evidence proffered by the defense did not indicate that he had been
completely deprived of intelligence or freedom of will when he stabbed his
wife to death. Insanity is a defense in the nature of a confession or avoidance
and, as such, clear and convincing proof is required to establish its existence.
Indubitably, the defense failed to meet the quantum of proof required to
overthrow the presumption of sanity.
[30]

[31]

Second Issue:
Proper Penalty
Although the RTC correctly rejected the defense of insanity, it nonetheless
erred in imposing the death penalty on appellant. It imposed the maximum
penalty without considering the presence or the absence of aggravating and
mitigating circumstances. The imposition of the capital penalty was not only
baseless, but contrary to the rules on the application of penalties as provided
in the Revised Penal Code. Even the Office of the Solicitor General concedes
this error in the imposition of the death penalty.
[32]

Since appellant was convicted of the complex crime of parricide with

unintentional abortion, the penalty to be imposed on him should be that for the
graver offense which is parricide.This is in accordance with the mandate of
Article 48 of the Revised Penal Code, which states: When a single act
constitutes two or more grave or less grave felonies, x x x, the penalty for the
most serious crime shall be imposed, x x x.

The law on parricide, as amended by RA 7659, is punishable

with reclusion perpetua to death. In all cases in which the law prescribes a
penalty consisting of two indivisible penalties, the court is mandated to impose
one or the other, depending on the presence or the absence of mitigating and
aggravating circumstances. The rules with respect to the application of a
penalty consisting of two indivisible penalties are prescribed by Article 63 of
the Revised Penal Code, the pertinent portion of which is quoted as follows:
[33]

In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
xxxxxxxxx
2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied. (Italics supplied)
Hence, when the penalty provided by law is either of two indivisible
penalties and there are neither mitigating nor aggravating circumstances, the
lower penalty shall be imposed. Considering that neither aggravating nor
mitigating circumstances were established in this case, the imposable penalty
should only be reclusion perpetua.
[34]

[35]

Indeed, because the crime of parricide is not a capital crime per se, it is
not always punishable with death. The law provides for the flexible penalty
of reclusion perpetua to death -- two indivisible penalties, the application of
either one of which depends on the presence or the absence of mitigating and
aggravating circumstances.
[36]

WHEREFORE, the Decision of the Regional Trial Court of Camiling, Tarlac

(Branch 68) in Criminal Case No. 95-45 is hereby AFFIRMED with
the MODIFICATION that
the
penalty
isREDUCED to reclusion
perpetua. Consistent with current jurisprudence, appellant shall pay the heirs
of the victim the amount of P50,000 as civil indemnity and P22,800 as actual
damages, which were duly proven. No pronouncement as to costs.
SO ORDERED.

G.R. No. L-1935, People v. Balotol,

84 Phil. 289
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
August 11, 1949
G.R. No. L-1935
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ELADIO BALOTOL, defendant-appellant.
Baltazar M. Villanueva for the appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Luis R. Feria for
the appellee.
OZAETA, J.:
This is an appeal from a sentence of the Court of First Instance of Samar
convicting the appellant of double murder and sentencing him to suffer life
imprisonment and to indemnify the heirs of the deceased Potenciano Sabasido
and Bernardino Lacambra in the sum of P2,000, respectively, and to pay the
costs.
In 1941 the deceased Potenciano Sabasido wounded the appellant. He was
prosecuted for less serious physical injuries, pleaded guilty, and was sentenced
to suffer fifteen days of imprisonment.
On the afternoon of May 24, 1942, the appellant saw Potenciano Sabasido for
the first time since the latter was released from jail, at a cockpit in the barrio of
Silaga, municipality of Santa Rita, Samar. According to the witnesses for the
prosecution Sabasido was standing outside the ring close behind Bernardino
Lacambra with his two hands holding the shoulders of the latter, witnessing a
cockfight. The appellant approached Sabasido from behind and stabbed him

with a bolo in the back. The weapon pierced thru the body of Sabasido at the
abdominal region and wounded Lacambra also. Sabasido fell face downward and
the appellant stabbed him again in the back near the right shoulder, the bolo
again piercing thru his body. Sabasido died instantaneously and Lacambra,
seven days later.
The appellant admits having cause the death of Potenciano Sabasido but denies
having wounded of Bernardino Lacambra. "I do not know who caused wound of
Bernardino Lacambra," he testified. According to him, while he was walking
around the ring of the cockpit looking for a bet, Potenciano Sabasido saw him
and said to him: "So you are the one who filed a complaint against me. I am
going to kill you." At that very moment, he said, Sabasido stabbed him and hit
him on the left forearm above the elbow; that Sabasido again stabbed him and
hit him on his left buttock; that then he held the right arm of Sabasido with his
left hand and stabbed Sabasido on the right side of his body, "which is a little bit
to the back. Sabasido released my hand which was holding his right arm and
then stabbed me from left to right. Then I held his right wrist with my felt hand
and pushed same towards Sabasido's body and I trust him on his abdomen."
After that he ran away, he said.
The accused called two witnesses, Celso Palo and Basillo Lacambra, to
corroborate his story. These two witnesses testified in substance to the same
effect as the accused, except that they added that it was the deceased
Potenciano Sabasido who wounded Bernardino Lacambra accidentally while the
accused was running away and Sabasido was pursuing him.
The trial court did not believe the testimony of the accused and his witnesses
and believed that of the witnesses for the prosecution.
After a careful and thorough study of the record we agree with the trial court.
The nature and the position of the wounds of Potenciano Sabasido completely
belie the theory of the defense. Both wounds pierced thru the body from back to
front and could not have been inflicted by the accused in the manner claimed by
him, that is to say, in a face-to-face fight. Moreover, the story of the witnesses
for the defense as to how Bernardino Lacambra was wounded, namely, that
Sabasido accidentally hit him while he was pursuing the appellant after the
latter had wounded him twice, is unbelievable. No man with two bolo wounds
thru his body, one thru the abdominal region and the other thru the thorax,
could possibly run in pursuit of another. Those wounds were necessarily so fatal

as to cause instantaneous death. On the other hand, the testimony of the

witnesses for the prosecution as to how both Sabasido and Lacambra were
wounded, is confirmed by the nature and the position of the wounds of the two
victims.
The crime committed by the appellant was double murder, defined and
penalized in article 248, in relation to article 48, of the Revised Penal Code.
Article 48 provides that when a single act constitutes two or more grave or less
grave felonies, the penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period. The penalty for murder is reclusion
temporal in its maximum period to death. Since under article 48 this penalty
must be applied in its maximum period, the appellant should be sentenced to
death. However, in view of the lack of the necessary number of votes to impose
the death penalty, we are constrained to apply the penalty next lower in degree,
which is life imprisonment.
The judgment is affirmed, with costs.
G.R. Nos. 109131-33 October 3, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEONITO MACAGALING y ATILLANO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Sancho F. Ferancullo for accused-appellant.

REGALADO, J.:
On July 19, 1991, two separate informations were filed against accused-appellant Leonito
Macagaling y Atillano for the crimes of murder and homicide and, on October 29, 1991, for an
additional charge of illegal possession of a firearm and ammunition, which were docketed as
Criminal Cases Nos. 1814, 1815 and 1834, respectively, before the Regional Trial Court, Branch 81,
Romblon, Romblon. 1
Assisted by counsel de parte, appellant pleaded not guilty when arraigned in Criminal Cases Nos.
1814 and 1815 on August 28, 1991. 2 Likewise, appellant pleaded not guilty when arraigned in Criminal
Case
No. 1834 on May 28, 1992. 3 The three cases were thereafter consolidated and jointly tried under the
continuous trial system.

On September 14, 1992, the lower court rendered its decision on the aforesaid three indictments
with the following dispositions:
WHEREFORE, this Court finds the accused LEONITO MACAGALING Y ATILLANO
GUILTY beyond reasonable doubt of the crimes of:
1) Homicide under the Information, dated July 19, 1991, in Criminal Case No. 1814,
and sentences him to an indeterminate prison term of from TEN (10) years and ONE
(1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS AND ONE (1) DAY of reclusion temporal, as maximum, with the accessory
penalties therefor. The accused is ORDERED to pay the heirs of DENNIS
MACAGALING then following amounts:
a) P50,000.00 as indemnity for death and
b) P34,000.00 as actual damages
without subsidiary imprisonment in case of insolvency, and to pay the costs.
2) Homicide under the information, dated July 19, 1991, in Criminal Case No. 1815,
and sentences him to an indeterminate prison term of from EIGHT (8) YEARS AND
ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal, as maximum, with the accessory
penalties therefor. The accused is ORDERED to pay the heirs of the deceased
TEOTIMO FAMERONAG the following amounts:
a) P50,000.00 as indemnity for death;
b) P64,000.00 as actual damages; and
c) P350,000.00 by way of lost earnings
without subsidiary imprisonment in case of insolvency, and to pay the costs.
3) Illegal Possession of Firearm and Ammunition under the Information, dated
October 29, 1991, in Criminal Case No. 1834, and sentences him to suffer the
penalty of reclusion perpetua, and to pay the costs.
The .38 caliber revolver (Smith and Wesson original without serial number) (Exh. E);
the five (5) empty shells (Exhs. E-1 to E-5); and the live bullet (Exh. E-6) are
confiscated in favor of the government.
After the judgment has become final, the Clerk of Court is ordered to deliver and
deposit the foregoing Exhibits E, E-1 to E-6, inclusive, to the Provincial Director, PNP,
of the Province of Romblon properly receipted. Thereafter, the receipt must be
attached to the record of the case and shall form part of the record.

The period of preventive imprisonment the accused had undergone shall be credited
in his favor to its full extent and the penalties herein imposed shall be served
successively in accordance with Articles 29 and 70, respectively, of the Revised
Penal Code. 4
The prosecution's version of the incident, as culled from the testimony of its witnesses in open court,
is to the effect that in connection with the barangay fiesta of Calabasahan, Concepcion, Romblon, a
coronation ball was held in the evening of May 2, 1991 at the public plaza. Present on said occasion,
among others, were Antonieto Fabella, barangay captain of San Pedro, Concepcion, Romblon; Anita
Macagaling, mother of the deceased Dennis Macagaling;
Pfc. Roque Fesalbon, investigator of the local police station; and Roger Lacambra, stepson of
Teotimo Fameronag.
At about 10:00 P.M., the aforesaid Antonieto Fabella, who was also the brother-in-law of Dennis
Macagaling, was watching the festivities when all of a sudden he noticed Leonito Macagaling point
and then fire a gun at his own nephew, Dennis Macagaling. The bullet missed Dennis but wounded
Teotimo Fameronag on the right chest causing the latter to collapse in front of Dennis. Dennis, on his
part, tried to escape from Leonito by running away from the scene. 5
At this juncture, Anita saw that her son Dennis was running in a wobbly manner and she embraced
him to prevent him from falling. Leonito grabbed the hair of Dennis and yanked his head, pulling the
latter away from his mother. Anita pleaded to Leonito saying, "Don't, Leonito," but the latter pointed
the gun at the temple of Dennis and shot him point-blank. Dennis fell down ("sumubasob") on the
cement floor. Leonito then shot the prostrate Dennis three times successively on the neck, uttering
the expletive "Putang ina mo," and then tried to leave the vicinity. 6
At that very moment, Pfc. Roque Fesalbon was at the barangay tanod outpost near the plaza,
having been dispatched by his station commander to maintain peace and order there. Hearing a
gunshot, he immediately went out to investigate and, on his way, he saw Teotimo Fameronag fall
down on the floor of the plaza. He proceeded to the place of the incident and saw Dennis
Macagaling lying on the floor while Leonito Macagaling was holding a firearm. At that time, he had
with him his service pistol and he was also holding an M16 armalite rifle. Sensing that Leonito was
about to flee, he fired three warning shots to prevent him from doing so. Initially, Leonito refused to
hand over his gun but he later relented. Together with Pfc. Sofronio Fabregas, Fesalbon arrested
Leonito and took him to the latter's house which was near the scene of the incident. Fesalbon
inspected the gun which he had retrieved from Leonito and found five empty shells and one live
bullet. The serial number of the gun had been erased. 7
Meanwhile, Roger Lacambra, a stepson of Teotimo Fameronag and a member of a dance group,
also heard the gunshots. He noticed that people were screaming and scampering away from the
dance hall. Wanting to know the cause of the commotion, he went near the dance hall and saw
Fameronag staggering towards him. Fameronag fell down on the floor and asked for his help. With
the assistance of his co-dancers, he brought Fameronag to a hospital in Pinamalayan, Oriental
Mindoro and, later, to the provincial hospital of Calapan where the latter expired. 8

On the other hand, after talking to Leonito Macagaling in the latter's residence, Fesalbon decided to
go back to the crime scene to proceed with the investigation. He verified that Fameronag had one
gunshot would while Dennis was shot four times. He also found out that the motive of the killing
might have been Leonito's suspicion that Dennis was divulging information about the former's
participation in illegal fishing. It appears that Leonito was previously charged with illegal fishing but
the case was later dismissed. 9
According to Anita Macagaling, her family incurred funeral and burial expenses in the sum of
P15,000.00. For their trips to and from Corcuera, they spent P2,000.00 for herself and their
witnesses' transportation, aside from P19,000.00 incurred as litigation expenses. 10 On the other
hand, Concepcion Vda. de Fameronag, testified that she spent P40,000.00 for the burial and the wake of
her deceased husband, and incurred litigation, transportation and other incidental expenses in the sum of
P31,500.00. 11
As was to be anticipated, the defense had a different account of the incident. Rosauro Fabreag, Jr.
testified that between 5:30 to 6:00 P.M. of the same day, he saw Dennis Macagaling, together with
Nonoy Fabellon, Roger Lacambra and two others whose names he does not know, drinking in a
store near his house. Dennis asked him to join them and he accepted the invitation. While they were
drinking, Dennis showed him a gun tucked on his waist. At about 6:00 P.M., after having taken a
couple of drinks, he decided to leave the group which appeared to be very drunk at that time. 12
William Ferrancullo, a barangay tanod of Calabasahan and a relative of appellant, was also called to
testify for the defense. He averred that in the evening of May 2, 1991, he and
other barangay officials were assigned byBarangay Captain Feras to oversee the proceedings and
maintain peace and order at the plaza. At about 9:30 o'clock the evening, he was at the gate and
there he noticed a group of five apparently drunken men enter the dance hall. 13
Later, he decided to go to the barangay tanod outpost located a few meters from the gate. Abruptly,
he heard a gunshot coming from the direction where the intoxicated persons were seated. Rushing
towards that area to investigate, he met Teotimo Fameronag who appeared to have been shot. He
saw Fameronag fall to the floor and it was then that he noticed Dennis Macagaling holding a gun
and threatening to shoot anyone who would come near him. Frightened, he did not move from the
spot where he was standing. 14
While all these things were happening, appellant Leonito Macagaling claims that he was in his
residence at Calabasahan, getting ready to rest for the night. He was startled when he heard a
gunshot coming from the direction of the plaza. Still in his short pants and undershirt, he hurried to
the plaza and saw the group of Dennis Macagaling, Willy Ferrancullo, Willito Bruit, and Carlito
Macagaling. He approached them and when he was about two meters from the group, he became
aware of Dennis Macagaling who was intoxicated and holding a gun. Leonito asked Dennis to drop
the gun but the latter retorted, "Isa ka pa." Without warning, Dennis fired at him but missed. Leonito
dashed towards Dennis and tried to wrestle the gun away from him. A struggle for the firearm
ensued and they grappled for it on the floor. While they were thus wrestling for the gun, it went off
and hit Dennis. Leonito then stood up, went home, and informed his wife of what had just
happened. 15

Leonito's wife, after observing that he had some bruises, proceeded to clean them. Shortly
thereafter, policemen Roque Fesalbon and Sofronio Fabregas, together with Ferrancullo, arrived and
inquired if the gun was his. He denied ownership of the firearm. Informed by them that Dennis was
dead, Leonito said it was not his fault. The policemen then left. 16
Fesalbon, Fabregas and Ferrancullo thereafter went back to the crime scene and decided to bring
Fameronag, then still alive, to Pinamalayan for treatment. There being no doctor then available in
the barangay, the body of Dennis Macagaling was examined by a rural health midwife, Avemie F.
Fabroa, who submitted her medical findings. 17
Queried as to what might have motivated the deceased Dennis Macagaling to harbor any ill feelings
against him, Leonito recounted an incident that took place in October, 1990 when he slapped
Diomedes, the younger brother of Dennis Macagaling. It appears that Leonito and Diomedes had a
previous agreement that the latter would work in the former's fishing operations. Due to Diomedes'
commitment to work for him, Leonito advanced him some money but, much to his dismay, Diomedes
decided to join another group. Leonito waited for Diomedes along the shore to demand an
explanation. An argument ensued and Leonito slapped Diomedes when the latter cursed him.
Having learned of the slapping incident ten days later, Dennis confronted Leonito. There was a
heated exchange of words between them, with Dennis later warning him, "You watch out." 18
Seeking to discredit Pfc. Fesalbon's testimony, Leonito told the court that Fesalbon had reason to
hate him. He claimed that in 1976, due to an incident in a dance hall at Sampong, Calabasahan, he
filed an administrative case against Fesalbon, Luvizmindo Fabroa and Sofronio Fabregas before the
National Police Commission. In retaliation, Fesalbon filed a criminal case for less serious physical
injuries against him. However, both cases were dismissed after they decided to settle the matter
among themselves. 19 Appellant opined that
Pfc. Fesalbon continued to hold a grudge against him.
1. In a long line of cases, it has been held that where the accused admits the killing of the victim but
invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he
indeed acted in legitimate defense of himself. 20 As the burden of proof is shifted to him, he must
consequently rely on the strength of his own evidence and not on the weakness of that of the prosecution.
Accordingly, the proverbial bone of contention with respect to a killing under such circumstances, is
whether or not the accused has presented sufficient evidence to support him claim of self-defense. 21
A careful analysis of appellant's version and a thorough evaluation of the evidence presented by the
parties fail to persuade this Court to rule in appellant's favor.
For one, Leonito's version of the incident appears to be too good to be true. Leonito was confronted
by an armed Dennis Macagaling who apparently was prepared to shoot him. In addition, he and
Dennis did not exactly part as good friends when they last saw each other. In fact, the latter had
threatened him to "watch out." Despite all these, Leonito is supposed to have nonchalantly directed
Dennis to hand over his gun. Not heeding his order, Dennis fired at him, whereupon Leonito
heroically rushed towards Dennis and tried to wrestle the gun away from him, seemingly
unconcerned for his safety. And then, after Dennis was shot "accidentally" while they were wrestling
for the gun, Leonito just calmly got up and went home, as if nothing had happened.

If, as Leonito asserted, he had tried to get Dennis to hand over the gun because he was even
concerned that an innocent bystander might be hurt, it baffles the Court why he did not immediately
rush his own nephew Dennis to the hospital for medical care and attention when the latter was shot.
It is a most unusual reaction for one who had accidentally shot another to just leave the vicinity with
the victim unattended to or without even making arrangements for his care. Furthermore, as will
hereafter be discussed, the number of wounds sustained by the victim completely demolishes this
theory of accidental shooting.
Principal defense witness William Ferrancullo, who was presented in court obviously to corroborate
the version of appellant, miserably failed to do so. He is one witness the defense could have done
without, for this star witness could not seem to get his story straight, conveniently changing his
testimony to suit his purpose at the particular moment, without taking into consideration the
statements he had previously made, some instances of which we shall illustrate.
For example, Ferrancullo earlier testified that when he was asked by
Pfc. Roque Fesalbon as to who started the trouble, he pointed to Leonito Macagaling as the
culprit. 22 Later, however, he insisted that he did not inform the policemen as to what he knew, giving the
flimsy reason that "there was no chance for us to talk." 23 How he could justify that excuse is beyond
comprehension since he himself asserted that he was all the while with the policemen when they went to
appellant's residence after the shooting and he also tagged along when they went back to the scene of
the crime where they conducted further investigations.
Evidently, Ferrancullo had definite knowledge that Leonito was a suspect in these cases. His
statements, however, would show that he does not have the uncanny knack for lying and getting
away with it. In an earlier testimony, he said it was only on July 2 or 5, 1992, when so informed by
the wife of Leonito, that he came to know that Leonito was a suspect in the cases. 24 Yet, he
subsequently admitted that as early as June, 1992, he had visited Leonito at
the provincial jail where the latter was detained because of the killings in question. 25
The trial court, posing clarificatory questions, asked Ferrancullo about the persons to whom he had
confided what he knew about the case. He said he first narrated the incident to his mother who lives
in the mountains of San Pedro on the morning of May 3, 1991. 26 Pressed further by the court, he
amended that by saying that he had informed his wife thereof after he left the dance hall of that fateful
night. He also told Atty. Ferrancullo about the incident in November, 1991 and, naturally, when he testified
in court. Asked if he told any other person, he said there was none. Later, he claimed that he also told
Leonito's wife. 27
The court, not satisfied with the answers it was getting from the witness, inquired why Ferrancullo,
being abarangay tanod, did not tell the barangay captain who had assigned him at the plaza as to
what he knew. This time, Ferrancullo suddenly recalled that, from Leonito's house, he did in fact go
to the barangay captain's house purposely to inform the latter of the incident. 28
Ferrancullo's propensity for prevarication is further demonstrated by his varying accounts as to the
wounds sustained by the victim. First, he asserted that while Leonito and Dennis were grappling for
the gun, he heard only two shots 29 which meant that Dennis could have sustained only two gunshot
wounds at the most. Thereafter, he said that he was sure that the victim sustained one shot on the head
and three on the neck, having been present when the photographs of the cadaver of Dennis was taken.

Later, he changed his mind, stating that the victim suffered only one wound on the neck and one of the
head. 30

This brings us to the matter of the number of wounds sustained by the victim, which physical
evidence is vital since it could lend credence to appellant's claim of self-defense. However, as earlier
stated, appellant's version and concomitant claim of self-defense is belied and negated precisely by
the number of wounds sustained by the deceased and the location thereof. Appellant maintains that
while both he and Dennis were struggling for control of the gun, the same accidentally fired, hitting
the latter. If indeed the firing of the gun was merely accidental and it fired only once, it would be
impossible for Dennis to sustain four gunshot wounds, one in the temple and three in the
neck. 31 Furthermore, the number of wounds indicate that the act was no longer an act of self-defense but
a determined effort to kill the victim. 32 Such wounds are indicative of aggression and confirm the theory of
the prosecution that appellant assaulted the deceased. 33
Considering the grave contradictions in Ferrancullo's testimony on issues of serious importance, this
Court agrees with the court a quo which, after chronicling twelve instances undermining the
credibility of said witness, trenchantly concluded that "the principal witness of the defense, William
Ferrancullo, did not see the incident that evening or if he did, he narrated it differently." 34
In his brief, appellant makes an issue of the fact that although Antonieto Fabella categorically
testified in court that it was Leonito Macagaling who shot and killed Dennis Macagaling, he did not
mention their specific names in his affidavit. This argument is misleading and specious, to say the
least. A careful perusal of said affidavit shows that when asked to narrate what happened, Fabella
indeed did not refer to the parties involved by their given names. However, immediately after said
narration, he was asked whether he knew their names and he answered in the affirmative, giving
their first and family names. 35
Appellant, in his desperate bid for acquittal, even questions the fact that the lower court, instead of
granting his own counsel's motion for a postponement, appointed Atty. Cesar M. Madrona of the
Public Attorney's Office as counsel de oficio. Appellant asserts that, in doing so, the trial court
deprived him of his constitutional right to be represented by a counsel of his choice. We reject this
pretension.
The records show that appellant was given the right to choose his own counsel. However, the court
in its desire to finish the case as early as practicable under the continuous trial system made
appropriate arrangements to avoid unnecessary delay and postponements of the trial in case of the
absence of appellant's counsel de parte. Thus, in its December 12, 1991 order, the trial court set out
the specific dates for the presentation of the prosecution witnesses, noting that the prosecution
witnesses were all from the far-flung island municipality of Concepcion in Maestre de Campo Island,
Romblon, which is about seven hours away by boat. It also advised appellant of the availability of
Atty. Madrona as counsel de oficio any time Atty. Sancho Ferancullo was not available. Appellant
was properly forewarned that any legal maneuvers meant to unduly delay these cases wound not be
entertained by the court.
Furthermore, after the presentation of the prosecution witnesses,
Atty. Ferancullo took over the conduct of the defense of appellant. Thus, in all stages of the trial, his

own counsel was in charge except when the prosecution witnesses were testifying. The Court, after
a review of the records, agrees with the Solicitor General's position that "with the demonstrated
strength of the prosecution evidence, it is unlikely that Atty. Ferancullo's presence during the entire
proceedings would have materially affected the result of the cases." 36
Appellant would discredit the prosecution witnesses by adverting to the fact that, except for Pfc.
Roque Fesalbon, they are all very close relatives of the victims. 37 A witness' relation to the victim does
not necessarily mean that he is biased. There is absolutely nothing in our laws to disqualify a person from
testifying in a criminal case in which said person's relative is involved, if the former was really at the scene
of the crime and was a witness to the execution of the criminal act. Precisely, being blood relatives of the
deceased, these witnesses would not just indiscriminately impute the crime to anybody but would
necessarily identify and seek the conviction of the real culprit himself to obtain justice for the death of their
relative.
Still bent on assailing the credibility of the prosecution witnesses, appellant cites alleged
inconsistencies in their testimonies. Firstly, Antonieto Fabella had testified that when he heard the
first gunshot, Leonito was inside the dance hall of the barangay plaza. 38 On the other hand, appellant
claims that Roger Lacambra testified that he saw Leonito on the street at that time. This is, of course, not
an inconsistency on the part of Fabella since the supposed variant version was made by a different
witness, Lacambra. Just to satisfy appellant, however, we have verified from the transcripts that what
Lacambra said was that he saw Leonito on the street before the first shot was fired, to wit:
Q: If you heard the first shot while you were on your way, you did not
see Leonito before the first shot, am I correct?
A: I saw him.
xxx xxx xxx
Q: Where was Leonito?
A: He was in the street. 39
A second flaw, according to appellant, is the fact that Fabella testified that he heard Fesalbon fire
two warning shots, 40 whereas Fesalbon declared that he fired three times. 41 This is clearly an
insignificant and minor detail which would not affect the credibility of the witnesses' testimonies. As long
as the witnesses concur on the material points, slight differences in their remembrance of the details do
not reflect on the essential veracity of their statements, 42 more so where the trivial issue is the number of
shots one hears from rapid gunfire.
Thirdly, appellant insists that Fabella testified that when appellant was running away from the crime
scene after the incident, Fesalbon and Fabregas blocked his path while Fesalbon stated that he was
alone when he approached the suspect. However, nowhere in his testimony did Fesalbon state that
he alone blocked the path of Leonito. In fact, when queried as to what he did
with appellant after he got the gun from him, Fesalbon answered, "We arrested him," 43 thereby
affirming the fact that he was not alone at that time but that Fabregas was working in concert with him.

On the charge of homicide for the killing of Teotimo Fameronag, appellant did not offer any defense.
When Ferrancullo was asked if he knew who killed Fameronag, he said he did not know. 44 Neither
did appellant offer any explanation on the death of Fameronag despite the positive statements of the
prosecution witnesses that while trying to shoot Dennis, appellant instead hit Fameronag. The only
defense, then, of appellant for the death of Fameronag is a complete denial. Denial, like alibi, is inherently
a weak defense and cannot prevail over the positive and credible testimony of the prosecution witnesses
that the accused committed the crime, 45 especially where, as in these cases, such denial is unexplained
and is contradicted by eyewitnesses.
For the death of Dennis Macagaling, although the information in Criminal Case No. 1814 charges
the felony of murder qualified by treachery and aggravated by evident premeditation, the People's
evidence does not prove the attendance of these circumstances. They cannot, therefore, be
appreciated against appellant and the lower court correctly convicted him of homicide in Criminal
Case No. 1814.
For the killing of Teotimo Fameronag, the same cannot be said to be accidental as it was the result
of anaberratio ictus, or miscarriage of the blow. As a matter of law, since such death resulted from a
culpable aberratio ictus, appellant should be punished under Article 48, in relation to Article 4, of the
Revised Penal Code. Having committed attempted homicide as against Dennis Macagaling and
consummated homicide with respect to Teotimo Fameronag when he fired the first shot, appellant
committed two grave felonies with one single act and, accordingly, he would be liable for a complex
crime in the nature of a delito compuesto, or a compound crime. 46However, not having been so
charged, he cannot be convicted of a complex crime, 47 hence the court below did not err in finding him
guilty of simple homicide in Criminal Case No. 1815.
2. The charge of illegal possession of a firearm and ammunition merits a more extended
consideration. It will be recalled that this third accusation was filed as Criminal Case No. 1834 on
October 29, 1991, or more than three months after the filing of the first two indictments in the same
court, under an information which alleged that during the same incident involved in Criminal Case
Nos. 1814 and 1815
. . . the said accused, did then and there, without legal authority therefor, willfully,
unlawfully and feloniously have in his possession and under his custody and control
one Cal. 38 Revolver (Smith and Wesson without serial number) with one live bullet
and five empty shells which he used in shooting Dennis Macagaling and Teotimo
Fameronag. 48
Prefatorily, we note from appellant's brief his position that the lower court erred in holding that the
gun was owned by him without being supported by convincing proof. He asserts that
assuming arguendo that the gun was handed by him to Pfc. Fesalbon immediately after the former
arrived at the scene of the crime, this is not sufficient proof that he owned the gun. 49 Appellant's
theory is off-tangent.
Under Section 1 of Presidential Decree No. 1866, the gravamen of the offense is basically the fact of
possession of a firearm without a license, it being assumed that it was so possessed with animus
possidendi. We have heretofore explained that, in view of the text of said decree, the crime may be
denominated as simple illegal possession, to distinguish it from the aggravated form wherein such

firearm is used in the commission of a homicide or murder. 50 However, to be liable for the aggravated
form of illegal possession of a firearm which entails the capital punishment, such illegal possession must
be the specific and principal offense charged, with the fact of killing being included in the particulars of the
indictment. 51
In either case, the offense is committed not on the basis of ownership but of possession of the
firearm without the requisite license or permit, and this disposes of appellant's objection on this
score. What, however, is of greater concern to the Court is whether the prosecution has discharged
the burden of proof on this charge. Corollarily, the inquiry should be whether there was sufficient
identification of the firearm presented in the trial court and, more importantly, whether there was
sufficient evidence to establish the negative allegation that appellant possessed the gun "without
legal authority therefor."
On the identification of the gun, these exchanges in the courtroom during the cross-examination of
Pfc. Fesalbon, the lone prosecution witness on this issue, give us ground to pause and doubt:
Q You also stated that this was the gun you got from Leonito
Macagaling that evening of May 2?
A Yes sir, that is the gun.
Q How did you know that this is the gun?
A Because it was really the gun I took from him.
Q How do you know that this is really the gun?
A Because at the bottom of the bat (sic, should be butt) there is a
serial number and it was erased by grinding and the serial number
was erased.
Q When did you discover that the serial number here was erased?
A Immediately after my inspection I discovered that there is no
serial number.
Q When did you make your inspection?
A Immediately after his arrest.
xxx xxx xxx
Q But there were many guns like this whose serial number has
been erased, do you think serial number

A I don't know, that is the only gun I saw with erased serial
number, even paltik guns have serial numbers.
Q So that is the only distinguishing mark that you can tell us how
you recognized this gun to be the gun which you took from Leonito
Macagaling that evening?
A Not only that serial number but the whole body of the gun.
COURT:
Did you not place your own personal identification mark in Exhibit E?
A My personal identification is that I could identify paltik and those
genuine guns.
COURT:
You did not answer the question, answer the question.
A I did not put any distinguishing mark.
COURT:
That should be answered that way. That can be answered by yes or no. Next tine
again you should place again your own identification in guns and even ammos. (I)n
Exhibits E-1 to E-6, did you place your own identification mark in each of them?
A No, sir.
COURT:
Next time you place your own mark. Because from apprehension up to this very
moment, it is a long, long time, it crossed the very handle (sic) by many hands.
Proceed.
xxx xxx xxx
ATTY. MADRONA:
Q What I mean with general appearance li(k)e this gun, would you
agree with me that there are thousands of (S)mith and (W)esson
guns with the general appearance like this?
A Yes, sir. 52

It is a curious fact that although the incident took place on May 2, 1991, the information in Criminal
Case No. 1834 for illegal possession of the gun was filed only on October 29, 1991. Pfc. Fesalbon
testified thereon on May 29, 1992 and yet, although the firearm was in the possession of the police
for more than a year, there was no attempt to ensure its positive identification through standard
police procedure of which Pfc. Fesalbon, as a police investigator, could not have been unaware.
For that matter, the efforts exerted to obtain evidence proving that appellant was not a licensed
holder of the firearm was lackadaisical at best. This is the prosecution's only evidence to prove the
allegation in the information that appellant's possession of a firearm was "without legal authority
therefor," again through the bare testimony of Pfc. Fesalbon:
Q You made mention that you conducted an investigation after
taking Exhibit D (sic, should be E) from the accused, did you find out
whether that gun is licensed or not?
A Yes, sir.
Q What did you find out?
A I found out that the gun has no license.
Q Do you mean to tell this Honorable Court that the accused
Leonito Macagaling is not a firearm licensee of your town?
A Yes, sir. 53
This is all. Nor did the witness deign to explain how he arrived at his conclusion. No other evidence
was presented on this serious charge which, in its aggravated form could, at the least, be punished
by reclusion perpetua due to the proscription against the death penalty.* Yet, despite the opportunity and
intervening time to do so, not even a certification that appellant was not a licensed firearm holder was obtained from the Firearms and
Explosives Office or the local command of the Philippine National Police. And this brings us to the question of the necessity and the quantum
of evidence for proving a negative allegation in an information, in this case the lack of a firearms license or permit.

The evidentiary rule on negative averments in the 1940 Rules of Court

of Court 55 in criminal cases was as follows:

54

as adopted in the 1964 Rules

Sec. 2. Burden of proof in criminal case. In criminal cases the burden of proof as
to the offense charged lies on the prosecution. A negative fact alleged by the
prosecution need not be provedunless it is an essential ingredient of the offense
charged. (Emphasis ours.)
While the italicized portion was not carried over to the revised Rules on evidence, there is no reason
to believe that such requirement for proof of a negative element of the offense charged has been
dispensed with, since it is specifically provided therein that the "(b)urden of proof is the duty of a
party to present evidence on the facts in issue necessary to establish his claim or defense by the
amount of evidence required by law." 56

As applied to prosecutions for illegal possession of firearms and ammunition, the present rule on
proving the negative fact of lack of a license actually harks back to the case of People vs.
Quebral, 57 where we find this passage clarifying the seemingly contentious pronouncements on the
matter:
The rule is, and has always been, that, if the subject of the negative averment, like,
for instance, the act of voting without the qualifications provided by law, inheres in
the offense as an essential ingredient thereof, the prosecution has the burden of
proving the same (Sec. 297, Act No. 190; U.S. vs. Tria, 17 Phil., 303, 306, 307). In
view, however, of the difficult office of proving a negative allegation, the prosecution,
under such circumstance, need do no more than make a prima faciecase from the
best evidence obtainable. (U.S. vs. Tria, supra) It would certainly be anomalous to
hold ". . . that mere difficulty in discharging a burden of making proof should displace
it; and as a matter of principle the difficulty only relieves the party having the burden
of evidence from the necessity of creating positive conviction entirely by his own
evidence so that, when he produces such evidence as it is in his power to produce,
its probative effect is enhanced by the silence of his opponent" (22 C.J., pp. 81, 82).
xxx xxx xxx
Section 770 of the Administrative Code provides that "no person shall practice
medicine in the Philippine Islands without having previously obtained the proper
certificate of registration issued by the Board of Medical Examiners. . ." This
provision clearly includes the want of certificate as an essential element of the
offense charged. The negative fact is not separable from the offense as defined. It is,
therefore, incumbent upon the prosecution to prove that negative fact, and failure to
prove it is a ground for acquittal. (Emphasis in the original text.)
While the offenses involved or discussed therein were illegal practice of medicine without the
certificate of registration and the unlawful act of voting without the qualifications required by law, the
rationale evidently applies to illegal possession of firearms without a license. Thus, although there
were some supervening departures from the doctrine announced therein, the principle in Quebral
was adopted in People vs. Pajenado 58 where we held:
Upon the question of whether or not appellant should also be convicted of the crime
of illegal possession of a firearm, We agree with both appellant's counsel and the
Solicitor General that the appealed decision should be reversed.
It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758
could be invoked to support the view that it is incumbent upon a person charged with
illegal possession of a firearm to prove the issuance to him of a license to possess
the firearm, but We are of the considered opinion that under the provisions of Section
2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of
proof as to the offense charged lies on the prosecution and that a negative fact
alleged by the prosecution must be proven if "it is an essential ingredient of the
offense charged", the burden of proof was with the prosecution in this case to prove

that the firearm used by appellant in committing the offense was not properly
licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of
the offense of illegal possession of a firearm. The information filed against appellant .
. . specifically alleged that he had no "license or permit to possess" the .45 caliber
pistol mentioned therein. Thus, is seems clear that it was the prosecution's duty not
merely to allege that negative fact but to prove it. . . . (Emphasis supplied.)
This doctrinal rule was reiterated in People vs. Tiozon, 59 People vs. Caling, supra, People vs. Ramos,
et al., 60People vs. Arce, 61 and People vs. Deunida, 62 and this constitutes the present governing case law
on this question. We cannot see how the rule can be otherwise since it is the inescapable duty of the
prosecution to prove all the ingredients of the offense as alleged against the accused in an information,
which allegations must perforce include any negative element provided by the law to integrate that
offense. We have reiterated quite recently the fundamental mandate that since the prosecution must
allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all
the elements it has thus alleged. 63
Applied to the cases at bar, we cannot conceive of how, under the demonstrated circumstances
herein, we can sustain a judgment of conviction on this particular charge. It may be well to recall that
how the firearm came into appellant's possession is a seriously contested issue, with the prosecution
witnesses merely stating that they saw the gun only when appellant aimed and fired at the victims,
but with appellant contending that he actually wrested it from Dennis Macagaling. As to who in truth
was the possessor of the firearm prior to the incident cannot be determined with certitude due to the
paucity of the evidence thereon. In fine, since all that can be deduced is that appellant was in
possession of the gun only on that occasion for a transitory purpose and for the short moment
coeval therewith, it cannot be concluded that he had the animus possidendi which is required for the
offense charged.
The highly unsatisfactory identification of the gun, coupled with the intervening time between its
retrieval from appellant to its presentation in the court below, increases our misgivings on whether it
was in fact the weapon involved. Indeed, such lack of positive identification is virtually equivalent to
the non-production of the real firearm in court and is analogous to the situation in People vs.
Caling, supra, where the rifle allegedly involved in the case was not presented in evidence. We held
that such failure effectively closed the door to any proof of the negative fact that no license or permit
therefor had been issued to the accused therein.
The foregoing disquisitions in Quebral, Pajenado and other cited cases have inevitably clinched the
case for herein appellant on this accusation, this time by reason of the abject failure of the
prosecution to adduce the requisite evidence on its negative averment. Even on the assumption that
mere prima facie evidence of the lack of a license or permit on the part of appellant would suffice,
still the self-serving, unexplained and undocumented conclusion thereon of Pfc. Roque Fesalbon
could not even assume a rough approximation of that evidential quantum.
WHEREFORE, the judgment of the trial court finding accused-appellant Leonito Macagaling y
Atillano guilty of the crime of homicide in Criminal Case No. 1814 and also of homicide in Criminal
Case No. 1815 is hereby AFFIRMED. However, its judgment in Criminal Case No. 1834 for illegal

possession of a firearm and ammunition is REVERSED and said accused-appellant is hereby

ACQUITTED of the offense charged therein on reasonable doubt, with costs de oficio.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO L.

SANCHEZ, ARTEMIO AVERION, LANDRITO DING PERADILLAS
and LUIS CORCOLON, accused.
ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants.
DECISION
PARDO, J.:

What is before this Court is an appeal from the decision of Regional Trial Court, Branch
160, Pasig City,[1] finding accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito Ding
Peradillas and Artemio Averion guilty beyond reasonable doubt of murder committed against
Nelson Pealosa and Rickson Pealosa, and sentencing each of the accused, as follows:

WHEREFORE, foregoing considered, the Court finds the accused Antonio Sanchez,
Landrito Ding Peradillas, Luis Corcolon, and Artemio Averion GUILTY beyond
reasonable doubt of the crime of MURDER punishable under ART. 48 of the Revised
Penal Code and hereby sentences each of said accused to suffer the penalty
of reclusion perpetua and to pay jointly and severally, the heirs of the victims each the
sum of P100,000.00 for the death of Nelson Pealosa and Rickson Pealosa, P50,000.00
as actual damages and moral damages of P 50,000.00 and exemplary damages of
P30,000.00 and to pay the costs.
SO ORDERED.
City of Pasig.
December 27, 1996.
(s/t) MARIANO M. UMALI
Judge[2]
On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with the Regional Trial
Court, Calamba, Laguna, an information for double murder against accused Antonio L. Sanchez,
Luis Corcolon y Fadialan, Landrito Ding Peradillas and Artemio Averion, the accusatory portion
of which reads:

That on or about April 13, 1991, at about 7:45 p.m. more or less, in Barangay Curba,
Municipality of Calauan, Province of Laguna, and within the jurisdiction of the
Honorable Court, the above-named accused conspiring, confederating, and mutually
aiding one another, with treachery and evident premeditation, and with the use of a
motor vehicle, at night time, all the accused then being armed and committed in
consideration of a price, reward or promise and of superior strength, did then and
there willfully, unlawfully, and feloniously shoot with the use of automatic weapons
inflicting multiple gunshot wounds upon Nelson Pealosa and Rickson Pealosa which
caused their instantaneous deaths to the damage and prejudice of their heirs and
relatives.
CONTRARY TO LAW.[3]
On March 16, 1994, the case was raffled to Branch 34, Regional Trial Court, Calamba,
Laguna.[4] On March 17, 1994, the court ordered the arrest of accused Antonio L. Sanchez, Luis
Corcolon and Ding Peradillas. On the same date, Artemio Averion voluntarily surrendered to the
court, which ordered Averions transfer to the provincial jail, Sta. Cruz, Laguna.[5]
Thereafter, the trial court committed the accused to the custody of proper authorities.[6]
Upon arraignment on April 10, 1995, all the accused pleaded not guilty.[7] The trial of the
case thereby ensued. On December 27, 1996, the trial court convicted all the accused of the
complex crime of double murder, as charged, the dispositive portion of which is set out in the
opening paragraph of this opinion.
On February 27, 1997, all the accused, except Ding Peradillas, were present for the
promulgation of the decision. Peradillas was a member of the Philippine National Police and was
under the custody of his superiors. The trial court ordered his custodian to explain accuseds nonappearance. On March 14, 1997, P/C Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force
Habagat, denied any knowledge of the murder case against Peradillas. Hence, Peradillas was not
suspended from the service pending trial. However, at the time that Peradillas was to be
presented to the court for the promulgation of the decision, he had disappeared and could not be
located by his custodian.[8] The promulgation of the decision as to him was in absentia. Peradillas
and Corcolon did not appeal from the decision.
Accused Antonio L. Sanchez and Artemio Averion filed their respective appeals to this
Court.
The facts are as follows:
On April 13, 1991, at around 10:00 in the morning, state witness Vivencio Malabanan, team
leader of a group of policemen, went to the Bishop Compound in Calauan, Laguna, as part of the
security force of mayor Antonio L. Sanchez. After a while, accused Ding Peradillas arrived and
asked for mayor Sanchez. Peradillas informed mayor Sanchez that there would be a birthday
party that night at Dr. Virvilio Velecinas house in Lanot, Calauan, Laguna, near the abode of
Peradillas. Peradillas assured mayor Sanchez of Nelson Pealosas presence thereat. Dr. Velecina
was a political opponent of mayor Sanchez for the mayoralty seat of Calauan, Laguna. Mayor
Sanchez then replied, Bahala na kayo mga anak. Ayusin lang ninyo ang trabaho, and left the

premises. Peradillas immediately called Corcolon and Averion and relayed the message - Ayos na
ang paguusap at humanap na lang ng sasakyan. All the accused, including Malabanan,
understood it as an order to kill Nelson Pealosa, one of the political leaders of Dr. Velecina.[9]
Afterwards, Peradillas, Corcolon and Averion made arrangements to acquire two-way radios
and a vehicle for the operation. At around 2:30 in the afternoon, Malabanan and the three
accused went their separate ways and agreed to meet at mayor Sanchez house at 6:00 in the
evening. Malabanan returned to his detachment area at Dayap, proceeded to the municipal hall,
then went home where Peradillas fetched him at 6:00 p.m. They proceeded to mayor Sanchez
house where they met Averion and Corcolon, with the car and two-way radios.[10]
At around 7:00 in the evening, Malabanan and the three accused boarded the car and went to
Marpori Poultry Farm in Barangay Lanot, near Dr. Velecinas house. Peradillas alighted and
walked towards his own house, near Dr. Velecinas house, to check whether Nelson Pealosa was
at the party.
Thereafter, using the two-way radio, Peradillas informed the occupants of the car that
Nelson Pealosas jeep was leaving the Velecina compound. Accused Averion immediately drove
the car to the front of Peradillas house and the latter hopped in the cars back seat. Corcolon sat in
the front seat beside him; witness Malabanan sat at the left side of the backseat and Peradillas
stayed at the right side of the back seat. The group pursued Pealosas jeep. When the accuseds car
was passing Victoria Farms, located about 100 meters from Pealosa compound, Corcolon
ordered Averion to overtake Pealosas jeep. As the car overtook the jeep, Peradillas and Corcolon
fired at Pealosas jeep, using M-16 and baby armalite rifles, executed in automatic firing
mode. There were three bursts of gunfire. Based on the sketch prepared by Malabanan,
illustrating the relative position of their car and Nelsons jeep at the time of the shooting, the
assailants were at the left side of the jeep.[11]
Rickson Pealosa, son of Nelson Pealosa, fell from the jeep. The jeep, however, continued
running in a zigzag position until it overturned in front of Irais Farm. After the shooting, the
accused proceeded to the house of mayor Sanchez in Bai, Laguna, and reported to mayor
Sanchez that Pealosa was already dead.[12]
Together with his superior SPO4 Lanorio and photographer Romeo Alcantara, policeman
Daniel Escares went to the crime scene. There, he saw the body of Nelson Pealosa slumped at
the driver seat of the owner-type jeep. They recovered the body of Rickson Pealosa slumped on a
grassy place not far from where they found Nelson Pealosa. After all the evidence and
photographs were taken, they brought the cadavers to Funeraria Seerez. Daniel Escares
submitted his investigation report of the incident to the Provincial Director, Laguna PNP
Command.[13]
Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan, Laguna,
conducted an autopsy on the bodies of Nelson and Rickson Pealosa. Nelson Pealosa suffered
massive intra-cranial hemorrhage and died of cranial injury due to gunshot wounds. Rickson
Pealosa died of massive intra thoracic hemorrhage due to gunshot wounds. [14] Dr. Escueta, as a
defense witness, testified that based on the points of entrance and exit of the wounds sustained
by the Pealosas, it was not possible for the assailants to be at the left side of the victims. [15] It
contradicted Malabanans testimony that they were at the left side of the victims when the
shooting took place. He further stated that based on the wounds inflicted on the victims, the

assailants were either in a sitting or squatting position when they shot the victims.Some of the
wounds indicated an upward trajectory of the bullets.
On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the ballistic tests
conducted on the twelve (12) empty shells found at the crime scene and the M-16 baby armalite
surrendered by Corcolon.[16] She concluded that the 12 empty shells were fired using three (3)
different firearms, one of which was the M-16 baby armalite.[17]
On August 18, 1995, Adelina Pealosa, common law wife of Nelson Pealosa and mother of
Rickson, testified that the whole family was in mourning and could not eat after what happened.
[18]
She testified that the family incurred P250,000.00 for funeral expenses, but failed to present
the appropriate receipts. She also stated that Nelson Pealosa was earning one (1) million pesos
per annum from his businesses.However, no income tax return or other proofs were shown to
substantiate the statement.[19]
The accused interposed the defense of alibi and denial.
Luis Corcolon stated that he spent the whole day of April 13, 1991, until 8:30 in the evening,
supervising the poultry farm of his employers, Edgardo Tanchico and Orlando Dizon. He denied
that he was in the company of Averion and Peradillas that day, and that he participated in the
Pealosa killings. He denied that he was ever assigned as a security guard of mayor Sanchez. He
claimed that the murder charges were concocted against them for his refusal to testify against
mayor Sanchez in the Gomez-Sarmenta case. He alleged that he was maltreated, tortured,
electrocuted and forced to implicate mayor Sanchez in the Gomez-Sarmenta rape-slayings. He
denied that he owned the M-16 baby armalite used in killing the Pealosas.[20]
Detention prisoner George Medialdea corroborated Corcolons statement that they were
implicated in the Pealosa killing for their refusal to testify against mayor Sanchez. He claimed
that Malabanan confessed to him that the latter had killed the Pealosas, but with the aid of
CAFGU men and not herein accused. He averred that Corcolon and Averion were wrongfully
implicated in the murder charges in deference to the wishes of the investigators. [21] Zoilo Ama,
another detention prisoner, claimed that Malabanan confessed that he killed the Pealosas, but did
not mention the involvement of Corcolon, Averion and mayor Sanchez.[22]
Accused Artemio Averion, a godson of mayor Sanchez, denied that he was involved in the
Pealosa slayings. On April 13, 1991, he claimed that he was in Lucena City, attending to his
ailing father. He stayed there until April 15, 1991. He maintained that he was wrongfully
implicated in the Pealosa killings for his refusal to testify against mayor Sanchez regarding the
Gomez-Sarmenta rape-slayings.Malabanan asked for his forgiveness for falsely incriminating
them in the Pealosa case.[23]
Jesus Versoza, PNP Officer, Camp Crame, denied the allegations of Medialdea and Averion
that they were tortured and forced to testify against mayor Sanchez.[24]
Accused mayor Antonio L. Sanchez stated that on April 12, 1991, he went to Anilao,
Batangas, with his family. Around 1:00 in the afternoon of April 13, 1991, his family went to
Tagaytay City and stayed overnight at Taal Vista Lodge. Around 10:00 in the morning of April
14, 1991, they went home to Calauan, Laguna. After reaching his abode in Calauan around 12:00
noon, mayor Sanchez learned of the ambush-slayings of the Pealosas. He immediately ordered
an investigation of the case. He denied any involvement in the killing of the victims.[25]

The trial court ruled that the prosecutions evidence clearly and convincingly established the
participation of the four (4) accused in killing the Pealosas. Malabanan gave a sincere, frank and
trustworthy account of the circumstances surrounding the killing. Furthermore, the trial court
explained the discrepancies between Malabanans recollection of how the victims were shot and
Dr. Escuestas conclusion on what transpired based on the injuries sustained by the victims.
The trial court stated that the doctors conclusion was based on the assumption that the
victims were in a sitting position inside the jeep. However, it was possible that after the first
burst of gunfire, the victims were hit and fell. During the second burst of gunfire, the victims
were lying down or in a crouching position. Thus, the entry-exit points of the bullets did not
entirely correspond to Malabanans account, which was based on the assumption that the victims
did not change their positions during the shooting incident.
The trial court ruled that the accused conspired in committing the crime. Treachery was
present, thereby qualifying the crime to murder. It appreciated the aggravating circumstances of
evident premeditation, nighttime and use of motor vehicle.
The trial court considered the crime as a complex crime of double murder punishable under
Article 48 of the Revised Penal Code. However, at the time of the commission of the offense on
April 13, 1991, there was a constitutional proscription on the imposition of the death
penalty. Thus, each of the accused was sentenced to reclusion perpetua, and to pay damages to
the heirs of the victims, as earlier quoted.
Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed from the decision
to the Supreme Court.
In their sole assignment of error, accused mayor Sanchez and Averion contended that the
trial court failed to recognize the material inconsistencies between Malabanans testimony and the
physical and scientific evidence presented before it. They pointed out the following
inconsistencies, to wit:
1. Malabanan testified that a) when they fired at the victims, they were about the same
elevation;[26] b) they used two (2) guns in killing the vicitms; [27] c) they were at the left side of the
victims when the shooting incident occurred. [28] However, Dr. Escuetas autopsy report revealed
that: 1) the assailants were at a lower elevation; 2) three (3) kinds of guns were used; and 3) based on
the injuries, assailants were on the right side of the victims.

2. Malabanans affidavit Exhibit V made on August 16, 1993, and sworn to on August 17, 1993,
bears two (2) signatures of the affiant Malabanan and dated September 15, 1993. However,
during cross-examination, Malabanan stated that he executed and signed the affidavit on one
occasion only, August 15, 1993.
3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings that Malabanan only
responded to the report that Pealosa had been killed. He averred that contrary to Malabanans
report, the latter was not at the crime scene.

The two accused further averred that the material inconsistencies between Malabanans
testimony and the autopsy and laboratory findings and conclusions seriously affect his
credibility. They stressed that Malabanan has sufficient motive to implicate mayor Sanchez and
Corcolon in the Pealosa killings due to threats of mayor Sanchez. They alleged that although
generally alibi is considered a weak defense, there are times when it is worthy of credence, such
as in this case.

The Solicitor General supports the trial courts ruling that the prosecution adequately
established the guilt of the accused beyond reasonable doubt. Malabanan positively identified the
accused as the perpetrators. He testified in a categorical, straightforward, spontaneous and frank
manner. The defense failed to satisfactorily show that Malabanan had an ill motive to testify
falsely against the accused. The alleged threat to Malabanans life was not adequately established
or sufficient for him to falsely implicate the accused. As regards the supposed inconsistencies
between Malabanans account of the event vis vis the autopsy and ballistic reports, the Solicitor
General pointed out that both vehicles were running at the time of the ambush. It was a matter
of instinct for the victims to shift positions as they were fired upon.Thus, contrary to Dr.
Escuetas conclusion, it was not impossible that the victims were hit from the right side of their
bodies, even if assailants were physically situated at the victims left side. Hence, the apparent
inconsistencies do not affect witness Malabanans credibility.
After a careful scrutiny of the evidence on record, we agree with the trial court that the
prosecution adequately established accuseds guilt beyond reasonable doubt.
Malabanan gave a detailed account of the planning, preparation and the shooting
incident. He narrated the participation of each of the accused, to wit: (1) the order given by
mayor Sanchez to execute Pealosa; (2) Averions acquisition of a vehicle and two-way radios to
be used for the operation and in driving the car; (3) Peradillas act of relaying the information that
Nelson Pealosas jeep was leaving the Velecina compound; 4) the way they pursued the victims;
and 5) Corcolon and Peradillas act of firing and killing the Pealosas.
The accused concentrated mainly on the seeming contradiction between the narration of
Malabanan on how the victims were shot, and the physicians report on the location of injuries
sustained by them.
However, as the Solicitor General stated, both vehicles were running at the time of the
shootout. It was unlikely that the victims drove in a straight line parallel to that of the
assailants. In fact, Malabanan testified that while being fired at, Pealosas jeepney was running in
zigzag manner.[29] It was a natural reaction for Pealosa to evade the assailants as much as possible
and to try to dodge the bullets.Furthermore, the assailants fired the guns in automatic firing
mode. Thus, the bullets burst out in different directions simultaneously. Hence, it was not
impossible for the victims to be hit in different parts of the body.
This Court has held time and again that any minor lapses in the testimony of a witness tend
to buttress, rather than weaken, his or her credibility, since they show that he or she was neither
coached nor were his or her answers contrived. Witnesses are not expected to remember every
single detail of an incident with perfect or total recall.[30]
Furthermore, the fact that the trial court relied on the testimony of a single witness does not
affect the verdict of conviction. Criminals are convicted, not on the number of witnesses against
them, but on the credibility of the testimony of even one witness, who is able to convince the
court of the guilt of the accused beyond a shadow of doubt. [31] What witness can be more credible
than someone who was in the planning, preparation and execution of the crime.
The inconsistency between the affidavit and testimony of Malabanan is too minor to affect
his credibility. At any rate, we have held that affidavits are generally subordinate in importance
to open court declarations. Affidavits are not complete reproductions of what the declarant has in

mind because they are generally prepared by the administering officer and the affiant simply
signs them after the same have been read to him.[32]
Accused-appellants raised that Malabanans delay in reporting the involvement of the
accused in the crime casts doubt on his credibility. However, jurisprudence teaches us that delay
in revealing the identity of the perpetrators of a crime does not necessarily impair the credibility
of a witness, especially where such witness gives a sufficient explanation for the delay.[33] It was
natural for Malabanan to keep silent during that time for, aside from being a co-conspirator,
mayor Sanchez was a powerful opponent.
Consequently, we find that accused-appellants defenses of alibi and denial are bereft of
merit. The defenses of alibi and denial are worthless in the face of positive testimony of a
witness showing the involvement of each of the accused.
However, we disagree with the trial court that the accused committed a single complex
crime of double murder. Article 48 of the Revised Penal Code provides that when a single act
constitutes two or more grave or less grave felonies, or when an offense is a necessary means of
committing the other, the penalty for the more serious crime in its maximum period shall be
imposed.
The question is whether the act of shooting the victims using armalites in automatic firing
mode constitutes a single act and, thus, the felonies resulting therefrom are considered as
complex crimes. We rule in the negative.
In People v. Vargas, Jr., we ruled that several shots from a Thompson sub-machine, in view
of its special mechanism causing several deaths, although caused by a single act of pressing the
trigger, are considered several acts. Although each burst of shots was caused by one single act of
pressing the trigger of the sub-machinegun, in view of its special mechanism the person firing it
has only to keep pressing the trigger of the sub-machinegun, with his finger and it would fire
continually. Hence, it is not the act of pressing the trigger which should be considered as
producing the several felonies, but the number of bullets which actually produced them. [34] In the
instant case, Malabanan testified that he heard three bursts of gunfire from the two armalites used
by accused Corcolon and Peradillas. Thus, the accused are criminally liable for as many offenses
resulting from pressing the trigger of the armalites. Therefore, accused are liable for two counts
of murder committed against the victims, Nelson and Rickson Pealosa, instead of the complex
crime of double murder.
Evidently, treachery was present in the execution of the crimes. The attack against the
victims, who were unarmed, was sudden, catching them unaware and giving them no opportunity
to defend themselves.[35] The presence of treachery qualifies the crimes to murder.
Conspiracy is likewise adequately established. Notwithstanding the fact that mayor Sanchez
was not at the crime scene, we are convinced that he was not only a co-conspirator, he was the
mastermind of the ambush slayings or the principal by inducement. [36] Malabanan testified that
Nelson Pealosa was killed upon order of mayor Sanchez. After the commission of the crime, the
assailants reported to mayor Sanchez. In conspiracy, it is not necessary to show that all the
conspirators actually hit and killed the victim. What is important is that the participants
performed specific acts with such closeness and coordination as unmistakably to indicate a
common purpose or design in bringing about the death of the victim. Conspiracy renders

appellants liable as co-principals regardless of the extent and character of their participation
because in contemplation of law, the act of one conspirator is the act of all.[37]
The trial court properly appreciated the existence of evident premeditation. The prosecution
clearly showed the presence of the following requisites: a) the time when the accused determined
to commit the crime; b) an act manifestly indicating that the accused had clung to their
determination; and c) sufficient lapse of time between such determination and execution to allow
them to reflect upon the consequences of their acts. [38] As early as 10:00 in the morning, the
accused had conspired to kill Nelson Pealosa. They even looked for two-way radios and a
vehicle to be used for the operation. Indeed, sufficient time had lapsed to allow the accused to
reflect upon the consequences of their actions.
Accused specifically used a motor vehicle to execute the crime. Thus, the aggravating
circumstance of use of a motor vehicle must be appreciated.
However, we cannot appreciate the generic aggravating circumstance of nighttime; while the
crime was committed at night, the prosecution failed to show that the malefactors specifically
sought this circumstance to facilitate the criminal design. [39] The fact that the crime happened at
7:00 in the evening does not indicate that accused made use of the darkness to conceal the crime
and their identities.
At the time of the commission of the crime on April 13, 1991, the penalty for murder under
Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to
death. Considering the presence of aggravating circumstances, the accused should be sentenced
to the death penalty for each murder. However, in view of the constitutional proscription of the
death penalty at that time, each of the accused is sentenced to two (2) penalties of reclusion
perpetua.
Regarding the civil liability of the accused, the trial court ordered the accused to pay the
heirs of Nelson and Rickson Pealosa each, the sum of P100,000.00, P50,000.00 as actual
damages, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, and to pay the
costs.
The P50,000.00 award as actual damages should be deemed as indemnity for the untimely
demise of the victims. We have held that only expenses supported by receipts and which appear
to have been actually expended in connection with the death of the victims may be allowed.[40] No
proof was presented to sustain the award of actual damages.
Similarly, we can not award damages for loss of earning capacity. All that was presented in
evidence was the testimony of the common law wife, Adelina Pealosa, that Nelson earned
P1,000,000.00 a year. We have held that for lost income due to death, there must be unbiased
proof of the deceaseds average income. Self-serving, hence unreliable statement, is not enough.
[41]

Considering the attendance of aggravating circumstances, we sustain the award of

exemplary damages of P30,000.00, per victim, in accordance with Article 2230 of the Civil
Code.[42]
As regards moral damages, we affirm the P50,000.00 awarded to the heirs of Rickson
Pealosa. [43] His mother, Adelina Pealosa, testified to the suffering caused by his death. [44] We also
sustain the award of moral damages to the heirs of Nelson Pealosa. His common law wife

testified to the mental anguish suffered by the family due to Nelsons death. [45] Under Article 2206
of the Civil Code, the spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of the
deceased. However, the common law wife is not entitled to share in the award of moral damages.
WHEREFORE, the Court MODIFIES the decision of the Regional Trial Court, Branch
160, Pasig City, and finds accused-appellants Antonio L. Sanchez and Artemio Averion guilty
beyond reasonable doubt of two (2) counts of murder, and sentences each of them to suffer two
(2) penalties of reclusion perpetua, and each to pay jointly and severally the respective heirs of
victims Nelson and Rickson Pealosa, as follows:
1) Indemnity for death - P 50,000.00
2) Moral damages - 50,000.00
3) Exemplary damages - 30,000.00
Total P130,000.00

With costs.
SO ORDERED.
G.R. No. L-37396 April 30, 1979
MARCELINO LONTOK, JR., petitioner,
vs.
HON. ALFREDO GORGONIO, as Presiding Judge of the Municipal Court of San Juan, Rizal, respondent.
Marcelino Lontok, Jr., in his own behalf.
Office of the Solicitor General for respondent.

AQUINO, J.:
This case is about the propriety of an information containing the charge of "reckless imprudence resulting in damage
to property and multiple physical injuries".
On March 29, 1973, Marcelino Lontok, Jr. was charged with that delito compuesto in the municipal court of San Juan,
Rizal. In the information, it was alleged that on November 14, 1972, while Lontok was recklessly driving his Mercedes
Benz car, he bumped a passenger jeep and caused damaged to it in the sum of P780 and that the bumping also
caused physical injuries to three passengers who were incapacitated from performing their customary labor for a
period of less than ten days (Criminal Case No. 26116).
Lontok filed a motion to quash that part of the information wherein the offense of lesiones leves through reckless
imprudence is charged. He contended that, because that offense prescribes in two months and it was committed on
November 14, 1972, the last day of the sixty-day period for filing the charge as to that offense was January 14, 1973.
He prayed that the information be amended by excluding that light offense.
The fiscal opposed the motion to quash. The municipal court denied it. Lontok pleaded not guilty upon arraignment.
But instead of going to trial, he filed in this Court on August 30, 1973 a petition wherein he prayed that the

amendment of the information be ordered by deleting the portion thereof wherein the offense of slight physical injuries
through reckless imprudence discharged.
The Solicitor General in his comment agrees with Lontok's view that damage to property through reckless
imprudence cannot be complexed with a light offense, that the light offense had already prescribed, and that two
informations should have been filed. He manifested that he would ask the prosecuting fiscal to amend the
information. Nevertheless, he concluded that since Lontok did not raise any jurisdictional issue, his petition for
certiorari was not proper and, therefore, it should be dismissed.
The issue is whether Lontok, over his objection, can be tried by the municipal court on an information charging the
complex crime of damage to property in the sum of p780 and lesiones leves through reckless imprudence.
We hold that he should be tried only for damage to property through reckless imprudence, which, being punished by
a maximum fine of P2,340, a correctional penalty, is a less grave felony (Arts. 9, 25 and 26 and 365, Revised Penal
Code). As such, it cannot be complexed with the light offense of lesiones leves through reckless imprudence which,
as correctly contended by Lontok, had already prescribed since that crime prescribes in sixty days.
There is a complex crime when a single act constitutes two or more grave or less grave felonies or when a grave or
less grave offense is a means of committing another grave or less grave offense.
As originally enacted, article 48 of the Revised Penal Code provided that the crime is complex when a single act
constitutes two or more crimes, or when an offense is a necessary means of committing the other. Commonwealth
Act No. 4000 amended article 48 by substituting the words "grave or less grave felonies" for the word "crimes" in the
original version, thus eliminating a light felony as a component part of a complex crime.
Parenthetically, it may be noted in passing that the concept of complex crime was applied in criminal negligence or
quasi offenses (People vs. Lara, 75 Phil. 786 and People vs. Agito, 103 Phil. 526, regarding multiple homicide
through reckless imprudence; People vs. Rodis, 105 Phil. 1294, regarding malversation through falsification by
reckless negligence; Samson vs. Court of Appeals, 103 Phil. 277, regarding estafa through falsification by reckless
negligence; Angeles vs. Jose, 96 Phil. 151; Lapuz vs. Court of Appeals, 94 Phil, 710 and People vs. Vendiola, 115
Phil. 122, regarding homicide, grave physical injuries and grave damage to property, all through reckless
imprudence.).
In all the foregoing cases, it is assumed that reckless imprudence is not a crime in itself but is simply a way of
committing a crime and it merely determines a lower degree of criminal liability. Negligence becomes a punishable
act when it results in a crime (People vs. Faller 67 Phil. 529).
Applying article 48, it follows that if one offense is light. there is no complex crime. The resulting offenses may be
treated as a separate or the light felony may be absorbed by the grave felony. Thus, the light felonies of damage to
property and slight physical injuries, both resulting from a single act of imprudence, do not constitute a complex
crime. They cannot be charged in one information. They are separate offenses subject to distinct penalties (People
vs. Turla, 50 Phil. 1001; See People vs. Estipona, 70 Phil. 513).
Where the single act of imprudence resulted in double less serious physical injuries, damage to property amounting
to P10,000 and slight physical injuries, a chief of police did not err in filing a separate complaint for the slight physical
injuries and another complaint for the lesiones menos graves and damage to property (Arcaya vs. Teleron, L-37446,
May 31, 1974, 5 7 SCRA 363, 365).
A chief of police likewise did not err in filing separate complaints for slight physical injuries and grave oral defamation
committed on the same occasion by one person against the same victim (Manduriao vs. Habana, L- 28069, August
18, 1977,78 SCRA 241).

Where a complaint for slight physical injuries and grave threats was filed in the justice of the peace court under the
old Judiciary Law, the said court had jurisdiction to try the slight physical injuries case and could only undertake the
preliminary investigation of the latter offense (People vs. Linatoc, 74 Phil. 586. See People vs. Acierto 57 Phil. 614
and People vs. Benitez, 73 Phil. 671).
The case of Angeles vs. Jose, 96 Phil. 151, cited by investigating fiscal, is different from the instant case because in
that case the negligent act resulted in the offenses of lesiones menos graves and damage to property which were
both less grave felonies and which, therefore, constituted a complex crime
In the instant case, following the ruling in the Turla case, the offense of lesiones leves through reckless imprudence
should have been charged in a separate information. And since, as a light offense, it prescribes in two months,
Lontok's criminal liability therefor was already extinguished (Arts. 89151, 90 and 91, Revised Penal Code in relation
to sec. 2[e] and [f] Rule 117, Rules of Court). The trial court committed a grave abuse of discretion in not sustaining
Lontok's motion to quash that part of the information charging him with that light offense.
WHEREFORE, the lower court's orders of May 21 and July 12, 1973 are set aside. It is ordered to try Lontok only for
damage to property through reckless imprudence. The information need not be amended, it being understood that
Lontok has no more culpability for the offense of slight physical injuries through reckless imprudence charged therein.
No costs.
SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDO

TALO, accused-appellant.
DECISION
MENDOZA, J.:

This case is here on appeal from the decision [1] of the Regional Trial Court,
Branch 15, Ozamis City, finding accused-appellant Erlindo Talo guilty of
forcible abduction with rape and sentencing him to death and to pay
complainant Doris Saguindang the amount of P30,000.00 as moral damages
and the costs of the suit.
The information against accused-appellant recited
That on or about the 12th day of May, 1995, at about 2:00 oclock dawn, in barangay
Gata Daku, municipality of Clarin, province of Misamis Occidental, Philippines, and
within the jurisdiction of this Honorable Court, the said accused ERLINDO TALO,
entered the dwelling by destroying some portion of the toilet of the offended party,
armed with a bolo and hunting knife, and by means of force, violence, intimidation
and threats, did then and there, with lewd and unchaste designs, willfully, unlawfully
and feloniously, take and carry away MISS DORIS SAGUINDANG against her will

from the house of her parents, and upon reaching the ricefield, by means of force,
violence, intimidation and threats, did then and there willfully, unlawfully and
feloniously had carnal knowledge of her against her will. [2]
The evidence presented by the prosecution shows the following:
At around 9 oclock in the evening of May 11, 1995, complainant Doris
Saguindang retired for the night in her familys house in Gata Daku, Clarin,
Misamis Occidental. At about 2 oclock in the morning of the following day, she
was awakened by the presence of an intruder in her room, who identified
himself as a rebel and claimed that his commander wanted to see
complainant. The man poked a knife at her and covered her mouth to prevent
her from making an outcry. He was wearing briefs, her fathers overseas cap,
and her sisters shirt. Complainant was led out of the house through the back
door. Outside, the man twice called out, Commander, we are here, but no one
responded. The man dragged Doris towards the ricefield about 800 meters
from their house and there, at knife point, forced Doris to have sexual
intercourse with him. Doris tried to fight back but the man was too strong for
her. Doris noticed that, aside from a knife, the man had a bolo with him.[3]
As the man rolled to his side after consummating the sexual act, Doris
immediately picked her clothes and ran naked as fast as she could towards
the nearby house of her uncle, Margarito Saguindang, who later brought her
home. Complainant was then accompanied by her parents to the Philippine
National Police (PNP) station where she reported the incident. Complainant
described to SPO2 Jesus Macala her attacker. Seven suspects were
presented to her but none was her assailant. For this reason, the incident was
entered in the police blotter of the PNP, but no complaint was filed in court.[4]
Complainant and her mother also sought the help of their pastor, Ponciano
Ayop, Sr., who arranged for the medical examination of complainant by Dr.
Daniel Medina, municipal health officer of Clarin.[5] Dr. Medina conducted the
examination at around 2 oclock that afternoon and later issued the following
report:
PHYSICAL FINDINGS:

- Vagina slightly hyperemic with whitish muco[u]s fluid at base of the vagina[.] [N]o
more hymen found at the vagina.
- 3 cm. l[i]near abrasion at the right lower thigh 2 in numbers.
- 2 cm. hematoma at right postero lateral aspect of the chest posterior axillary line level
5th rib.
- 1.5 cm. hematoma at left posterior chest at med scapular line level 6th rib.
- 1 cm curvel[i]n[e]ar abrasion at right neck above scapula.
....

Conclusions:
1). The above described physical injuries are found in the body of the subject, the age
of which is compatible to the alleged date of infliction.
....

Remarks:
5 slides negative for sperm determination . . . .[6]

Dr. Medina testified that the perforation of complainants hymen could have
been caused by sexual intercourse. As for the mucous found in her genitalia,
he said that although it did not contain any spermatozoa, it was a sign of
recent sexual contact. He stated that the absence of sperm in complainants
genitalia could be due to the fact that she took a bath after the incident.[7]
With regard to his external examination of complainant, Dr. Medina
said that the injury in her neck was caused by a fingernail and is consistent
with complainants claim that she was choked. The abrasion on her right thigh,
on the other hand, was caused by a rough but not hard object, while the
hematomas on it and on her chest were caused by a hard object.[8]
On cross-examination, Dr. Medina admitted that, although forcible sexual
intercourse could produce lacerations in the vaginal orifice, he did not find any
in complainant. With regard to the perforation of complainants hymen, he
stated that the same could be caused by other factors such as riding a

bicycle, horse, or carabao, and that the perforation could have occurred
earlier than May 12, 1995.[9]
Pastor Ayop and his family took complainant to Bukidnon for a vacation
because she was having nightmares, coming back to Clarin after three weeks,
in May 1995.[10]
Then, at around seven oclock in the morning of May 27, 1995, while Doris
and her friends were walking along the road in Tinaclaan, a neighboring
barangay of Gata Daku, she saw accused-appellant in a nearby
ricefield, distributing seedlings to farm workers. Because accused-appellant
was not facing her, complainant could not clearly make out his features but
she could see that his body build resembled that of her attacker. She asked
one of her companions, a certain Enan Undag, accused-appellants name.[11]
A week later, on June 3, 1995, at around 5 oclock in the afternoon, while
complainant and a friend, Grace Endab, were walking along the road in
Tinangay Sur, she again saw accused-appellant coming from the opposite
direction. When accused-appellant saw them, he hurriedly walked past
them. Doris, thoroughly shaken, told Endab, who knew of the rape, that the
man they had just encountered was the one who raped her. The latter
corroborated complainant on this matter.[12]
After consulting Ayop and her parents, Doris, on the following Monday,
June 5, 1995, filed a complaint for rape against accused-appellant. [13] She later
amended her complaint to charge accused-appellant with forcible abduction
with rape.
Doris positively identified accused-appellant in court as the man who,
on May 12, 1995, abducted and later raped her. She said she saw his face
when she was awakened in her room and in the ricefield where the moon was
bright.[14]
Upon cross-examination by the defense, complainant stated that, although
she was born in Gata Daku, she did not know everybody in the barangay
since she stayed in Iligan City for three years to study. Before May 12, 1995,
she admitted she had seen accused-appellant once but she did not know his

name. She added that when she was in high school in Clarin, she had heard
of a peeping tom named Erlindo Talo.[15]
Accused-appellant, 50, denied the charge against him. He testified that he
was a resident of Barangay Gata Daku and that he managed a farm in the
neighboring barangay Tinaclaan.He further stated that until he met
complainant in court, he had never known her.[16]
As to his whereabouts at the time of the incident, accused-appellant said
that at 9 oclock in the evening of May 11, 1995, he was in the house of Otelo
Londera in Barangay Kinangay Sur, playing mahjong. Aside from Londera, the
other mahjong players were Laureano Basaya and Buena Narbay. He said
that except for a few breaks, they played mahjong until 5 oclock in the
morning of May 12, 1995. An hour later, accused-appellant allegedly went
home to Barangay Gata Daku. Afterwards, at around 9:30 in the morning, he
went to Barangay Tinaclaan, to the house of Leonardo Fuentes, whose son,
Celso, wanted him to procure a piglet. It was there that he allegedly heard that
someone had been raped in Gata Daku.[17]
Although he had a farm in Barangay Tinaclaan, accused-appellant denied
that he went there at 7 oclock in the morning of May 27, 1995, when
complainant said she saw him. Accused-appellant said that at that time, he
was in Barangay Kinangay Sur with Celso Fuentes buying a piglet because
the latters son was celebrating his birthday. Accused-appellant said he went to
his farm in Tinaclaan only at around 11 oclock to pay his workers.[18]
Accused-appellant likewise denied that he was in Kinangay Sur at around
5 oclock in the afternoon of June 3, 1995, because at that time he was
allegedly in his farm in Barangay Tinaclaan gathering shells, locally
called kuhol.[19]
On cross-examination, accused-appellant said that Londeras house,
where he was allegedly playing mahjong in the morning of May 12, 1995, is
about 500 meters from Gata Daku. He admitted he used to deliver rice to
complainants house.[20]

Corroborating accused-appellants alibi were his three alleged mahjong

playmates, Otelo Londera, Buena Narbay, and Laureano Basaya. Londera
stated that the distance between his house and Barangay Gata Daku could be
negotiated in 10 minutes by foot. Narbay, for her part, said she cannot
remember whether she played mahjong in Londeras house on the dates in
question.[21]
Other witnesses were presented by the defense, namely, Celso Fuentes,
Angel Saldaa, and Flaviano Narbay, who corroborated accused-appellants
testimony that he was not in his farm in Barangay Tinaclaan at 7 oclock in the
morning of May 27, 1995. On cross-examination, Narbay, who had testified
that he was in accused-appellants farm on the date and time in question and
that the accused-appellant did not arrive therein until about 11 oclock,
admitted that he did not know the year when the events he testified to took
place and that the date May 27 was only supplied to him by the defense
counsel.[22]
The defense likewise presented the then incumbent barangay chairman of
Gata Daku, Joven Japay. He said that at around 4:00 in the morning of May
12, 1995, Cesar and Margarito Saguindang, complainants father and uncle
respectively, went to his house to report that complainant had been raped at
around 2 oclock that morning. Thereafter, the three of them went to the house
of Cesar Saguindang where he and SPO2 Macala questioned complainant.
She allegedly described her attacker to be around 30 years old, curly haired,
bearded, and with a big body build. On the basis of this alleged description,
they did not include accused-appellant among the possible suspects because,
although the latter matches Doris description as to body size and height, he is
not curly haired nor bearded.[23]
The prosecution recalled complainant to rebut Japays testimony. She
denied having told Japay that her attacker was curly haired (kulot) because
what she said was that his hair was close-cropped or kopkop. She also denied
having said that her attacker was bearded, because although she used the
local term bangason, which, loosely translated, means bearded, what she
really meant was that the man had newly-grown facial hair.[24]

The prosecution also presented two other witnesses to refute accusedappellants testimony that he had never been to complainants house and that
there was an all-night mahjong session on May 11, 1995 in the house of Otelo
Londera in Kinangay Sur.
Cesar Saguindang, father of complainant, testified that for three years,
accused-appellant regularly delivered rice to their house in Gata Daku. [25] On
the other hand, Antonina Mutia, whose house in Barangay Kinangay Sur is
about 200 meters from that of Otelo Londera, testified that at around 10
oclock in the evening of May 11, 1995, she passed by the Londera residence
on her way home from Barangay Tinaclaan. She noticed that the house was
very quiet and, although the adjoining nipa hut where the mahjong sessions
were usually played was lighted, there was no mahjong game being played
therein. Before 11 oclock that night, she again passed by Londeras house on
her way back to Barangay Tinaclaan to look for her husband who had gone
there for the barangay fiesta. She again noticed that Londeras house was
quiet.[26]
As sur-rebuttal to Mutias testimony, the defense presented Catalina
Londera, wife of Otelo Londera, who said that at around 8 oclock in the
evening of May 11, 1995, she met Mutia and her husband in the house of a
certain Tagaloguin in Barangay Tinaclaan. The three allegedly went back to
Barangay Kinangay Sur on board the Mutia spouses truck. After arriving home
at around 9 oclock, her husband, Laureano Basaya, Buena Narbay, and
accused-appellant allegedly started playing mahjong.[27]
The case was thereafter submitted for decision. On April 26, 1996, the trial
court rendered its decision, finding accused-appellant guilty of forcible
abduction with rape. The dispositive portion of its decision reads:
WHEREFORE, this Court renders judgment finding accused guilty beyond reasonable
doubt of forcible abduction with rape aggravated by dwelling and nocturnity and
qualified by use of a deadly weapon, sentencing him to DEATH and ordering him to
indemnify the complainant P30,000.00 as moral damages. With cost.[28]
Hence this appeal.

First. Accused-appellant contends that he and complainant had a previous

understanding and that their sexual intercourse was consensual. This
allegedly explains why (1) there was no commotion when he and complainant
went out of the latters house as shown by the fact that not a member of the
household was awakened when he dragged her out of her parents house; and
(2) when he removed her pajamas and underwear, or when he undressed,
she did not push him which would then have allegedly allowed her to escape.
[29]

This contention has no merit.

Accused-appellant never claimed that he and complainant had any
relationship. In fact, he claimed he had never met her before. Thus accusedappellant testified:
Q Do you know the private offended party of this case, Doris Saguindang?
A I dont know her, sir, I have never met her, only here in Court.
Q Do you still remember that time when did you first see or meet her in Court?
A The fourth time I attended the hearing, sir.
....
Q . . . [D]o you know the residence of the parents of Doris Saguindang?
A I dont know, sir.
Q You have not gone there ever since?
A Never, sir.[30]

Indeed, apart from his bare assertion that he and complainant were lovers,
accused-appellant has shown no other evidence of such relationship, such as
love letters, photographs, or other tokens of endearment. On the contrary,
complainant stoutly maintained that she had never known accused-appellant
before and that the latter, at knife point, forced her to go with him and
molested her in a ricefield. Complainants testimony must be quoted to
appreciate her claim:

Q Now, as you were awaken[ed] . . . by the accused, what happened?

A He choked me up.
Q What did he say?
A He ordered me to stand up because he has some questions to ask.
Q Now, what was your reaction?
A I was nervous and shocked.
....
Q Now, after the accused woke you up, choked you and commanded you to stand up, what
happened?
A He covered my mouth.
Q Why did he cover your mouth?
A So that I could not shout.
Q Why, did you try to shout for help?
A I was trying to shout but no voice will come out.
Q So, what happened afterwards?
A He forced me to go outside.
Q How did he force you to go outside?
A He covered my mouth and the other hand has knife pointing near my chest.
....
Q: Despite of the fact that you were led by that man outside you did not resist or make any
noise in order your parents to be awaken?
A I tried my best but he was so strong.
Q You mean he has big muscles?
A Yes, sir. Strong arms.[31]

Accused-appellant makes much of the fact that he was able to take

complainant out of her parents house without rousing the household from their
sleep. That was because complainant was alone in her room, far from where
the other members of her family were sleeping. Her parents, her twin siblings,
and her nephew were the other people in the house when accused-appellant
broke in and abducted complainant. Her parents slept in a separate room
furthest from her room and, while her twin siblings and nephew slept in the
room adjoining hers, their rooms were separated by a concrete wall with an
opening near the roof. Accused-appellant prevented complainant from making
an outcry by covering her mouth and poking a knife at her. She was resisting
but she was overpowered. After all, what could an 19-year old girl do to resist
a 50-year old man? As complainant testified:
Q By that time when you were led to that dry ricefield he was no longer dragging you, am I
correct?
A Still he drag me and he was holding me.
Q He was holding both of your hands?
A He was walking ahead of me and kept on pulling me.
(Witness keep on crying since the beginning of her testimony)
Q If you have resisted at that time when you were brought to the dry land or ricefield you
could have escape him away from the hold of that man?
A How can I escape from him he was holding me so tightly. It was so painful as if my arm will
be broken.
Q But he did not twist your arms?
A I could not remember but that my shoulder was sprained.
....
PROS. MEDINA:
Q Now, when you reached to that ricefield which was harvested together with the accused
Erlindo Talo, forcing you to go there, threatening you, pointing a knife, did you try to
escape?

A Yes, sir.
Q How did you do it?
(While answering, witness was crying)
A I was trying to fight but he was very strong.
....
Q Upon reaching that place, what happened, upon reaching there, did you try to stop him?
A Yes, sir.
Q How did you do it?
(Witness burst into tears continuously)
A I kicked him because he was trying to remove my pajama.
Q And what happened?
A He successfully removed my pajama.
Q How about your panty?
A Including my panty.
Q How about your blouse?
A After removing my panty, he was also removing my blouse.
Q What did you do?
A I was trying to grapple the knife because he kept on threatening to stop me.
Q Afterwards, what happened?
....
A He pushed me to lie down on the ground.
Q Did he remove your clothes when you were standing up or when you were already pushed
down?

A While I was still standing up, he removed my pants, when I was lying down, he removed
my blouse.
Q All the while, when he was removing your pants, panty and blouse, what did you do?
A I slapped him.
Q You mean to say, you fought him?
A Yes, sir.
Q Now, when he successfully removed all your clothes and you were already down, what did
he do next?
A He lowered his brief.
Q And what did he do to you?
A Then, he raped me.
....
Q You mean to say, he placed his penis inside your vagina?
A Yes, sir.
Q Did his penis penetrate your vagina?
A Yes, sir.
Q You mean to say, his penis stayed inside your vagina?
A Yes, sir.
....
Q At that time, did you fight him?
A Yes, sir.
Q How did you fight him?
A I kicked him.
Q When you kicked him, what did he do?

A Again, he attempted to stop me.[32]

It is settled that a rape victim is not required to resist her attacker unto
death.[33] Force, as an element of rape, need not be irresistible; it need only be
present, and so long as it brings about the desired result, all considerations of
whether it was more or less irresistible is beside the point. [34] Indeed, physical
resistance need not be established in rape when, as in this case, intimidation
was exercised upon the victim and she submitted to the rapists lust because
of fear for her life or for her personal safety.[35]
The findings of the medical examination conducted by Dr. Medina a day
after the incident confirm complainants claim that she had been forced to have
sexual intercourse by accused-appellant. Dr. Medina found abrasions on her
neck and right thigh as well as hematomas on her chest, in addition to the
complete perforation of her hymen. These clearly establish that accusedappellant employed force and intimidation to make complainant submit to him.
Finally, complainants conduct after she had been abused negates any
probability that she and accused-appellant had consented sexual
intercourse. After accused-appellant had finished ravishing her, she ran away
naked. She fled to the house of her uncle to whom she reported what had
happened to her. This is not the natural reaction of one who had engaged in
consensual sex. It has been observed that the conduct of a woman following
the alleged assault is of utmost importance as it tends to establish the truth or
falsity of her claim.[36]
Second. In a complete turnabout from his theory that he and complainant
were lovers, accused-appellant contends that complainants failure to file the
criminal complaint renders her claim of abduction with rape suspect.[37]
This contention has no merit, either. Complainant filed this case less than
three weeks after the incident. The delay was due to the fact that accusedappellants identity was not ascertained until June 3, 1995 when complainant
came face to face with accused-appellant and learned that his name was
Erlindo Talo.

While it is true that Cesar Saguindang, complainants father, testified that

accused-appellant had been delivering rice to their house for a period of three
years, there is no evidence to show that complainant knew accused-appellant.
Accused-appellant himself testified that he stayed in Cebu City for sometime
to study college, went back to Data Daku, Clarin, Misamis Occidental in 1982,
and decided to work on the farm. It was probably then that he delivered rice
for the barangay captain of Gata Daku, Japay. At that time, complainant was
only eight years old. Furthermore, complainant studied at the Clarin National
High School in the poblacion of Clarin and went to Iligan City for her college
education. It is probable, therefore, she really did not know accused-appellant.
Moreover, the delay in the identification of accused-appellant was due
mainly to the failure of the Gata Daku police, specifically of SPO2 Jesus
Macala, to include accused-appellant in the lineup of suspects presented to
complainant on May 12, 1995. Macala admitted that complainants description
of her attacker in fact matched that of accused-appellant, but he did not
include the latter in the lineup because he thought that accused-appellant,
whom he admitted was a childhood friend, was innocent.[38]
Accused-appellant points out the alleged inconsistencies in the testimony
of complainant as to his age, type of hair, and whether he is bearded or
not. As complainant explained, however, she did not really say that accusedappellant was curly haired or that he had a beard. She testified:
Q Miss Doris Saguindang, the Barangay Captain of Gata Daku, Joven Japay, have testified
before this Honorable Court that you specifically described to him the person responsible
[for] raping you in the dawn of May 12, 1995, and he said you specifically described . . .
him to be curly hair[ed], and that his face was full of beard, what can you say to that
statement?
A Thats not true.
Q Why do you say thats [a] lie?
A Because what I told . . . the Barangay Captain is that, the hair of the rapist is short to the
scalp. In fact, the Barangay Captain asked, was it curly hair, I said no, his hair is short
and his head is somewhat bald because at that time he was wearing my fathers hat.
Q What about the beard?

A I did not say beard. I did not mention that the face of the man is full of beard because when
we say bangason or bearded he has full of beard. What I told . . . the Barangay Captain
[was] that he has a beard because I have touched the face of the man, not exactly that
he was bearded.
Q Did you mention to the Barrio Captain that the person responsible in raping you that you
were able to touch his face, his mustach[e]?
A I did not tell him that he has mustach[e], I only told him a few beard newly grown in his
face.
Q Did you also mention . . . the age . . . of the person responsible in raping you?
A No, sir. I did not mention to him the age, what I described to him only that the man was
similar to the age of my father.[39]

We find complainants testimony to be credible. As earlier stated, her story

is corroborated by the findings of the medical examination. On the other hand,
the defense has not shown any ill motive on the part of complainant to falsely
implicate accused-appellant in a very serious charge. As we have said in a
number of cases, no woman would concoct a story of defloration, allow an
examination of her private parts and expose herself to the stigma and
humiliation of a public trial if she is not motivated by a desire to seek justice
against the one who had defiled her.[40]
Third. Accused-appellants defense is that on May 12, 1995, he was in the
house of Otelo Londera in Barangay Kinangay Sur. However, Londera himself
said that Barangay Gata Daku could be reached in 10 minutes by foot from
his house. For the defense of alibi to prosper, it must be shown not only that
accused-appellant was somewhere else at the time the crime was committed
but also that it was physically impossible for him to have been at the scene of
the crime at the time it was committed.[41]
The same is true with regard to accused-appellants claim that on May 27,
1995 and June 3, 1995, when complainant said she saw him after the
incident, he was in some other place and could not possibly have been seen
by her. Defense witness Narbay, who was supposed to corroborate accusedappellants testimony that he was not in his farm in Barangay Tinaclaan at
around 7 oclock in the morning of May 27, 1995, admitted on crossexamination that he did not know the year when the events he testified to took

place and that the date May 27 was just given to him by the counsel for the
defense. On the other hand, accused-appellants testimony that he was in his
farm in Barangay Tinaclaan and not in Barangay Kinangay Sur at about 5
oclock in the afternoon of June 3, 1995 is not only uncorroborated but also
self-serving. It cannot prevail over the testimony of complainant which was
corroborated by Grace Endab.
Fourth. The trial court correctly found accused-appellant guilty of the
complex crime of forcible abduction with rape. As provided in Arts. 342 and
335, in relation to Art. 48, of the Revised Penal Code, the elements of this
crime are: (1) that the person abducted is any woman, regardless of her age,
civil status or reputation; (2) that she is taken against her will; (3) that the
abduction is with lewd design; and (4) that the abducted woman is raped
under any of the circumstance provided in Art. 335. [42] The evidence shows
that, at knifepoint, accused-appellant forcibly took complainant from her
parents house and, in a ricefield about 800 meters away, forced her to have
sexual intercourse with him.
In the event of conviction in cases of complex crimes, the penalty for the
most serious crime should be imposed, the same to be applied in its
maximum period.[43] Forcible abduction is punishable by reclusion temporal,
[44]
while rape is punishable by reclusion perpetua, unless it is committed with
the use of deadly weapon, in which case the penalty is reclusion perpetua to
death.[45] Thus, in this case, it is the penalty for rape which should be imposed,
the same to be applied in its maximum period. However, the use of deadly
weapon, being a qualifying circumstance, must be alleged in the information,
otherwise it should be treated only as a generic aggravating circumstance and
the lower penalty (reclusion perpetua) should be imposed.[46]
In the case at bar, the information alleged that armed with a bolo and
hunting knife, and by means of force, violence, intimidation and threats,
accused-appellant, did then and there . . . with lewd and unchaste designs . . .
take and carry away complainant and that, upon reaching the ricefield, by
means of force, violence, intimidation and threats, he had carnal knowledge of
her. The allegation of the use of deadly weapon thus refers not to the rape but
to the crime of forcible abduction. We have affirmed convictions for forcible
abduction with rape qualified by the use of deadly weapon in cases where the

use of deadly weapon was alleged in the information with respect to the crime
of forcible abduction,[47] or with respect to the complex crime of forcible
abduction and rape,[48] or to the portion referring to the crime of rape.
[49]
Accordingly, to justify the imposition of the death penalty in this case, the
use of deadly weapon should be alleged with respect to the rape or with
respect to both the forcible abduction and rape. Since, in this case, this
qualifying circumstance was alleged only with respect to the commission of
the forcible abduction, it cannot be taken to qualify the crime of rape. The use
of a deadly weapon can be appreciated only as a generic aggravating
circumstance.
The trial court correctly appreciated other generic aggravating
circumstances, namely, dwelling and nighttime. Dwelling was correctly taken
into account as an aggravating circumstance as the evidence shows that
complainant was forcibly taken from the house of her parents. Such was the
ruling in People v. Lacanieta,[50] where, similar to the case at bar, the
complainant was forcibly taken from her house, brought to a nearby barangay,
and then raped by the accused.
The aggravating circumstance of nighttime was also correctly held to be
present. Accused-appellant sought the cover of darkness to facilitate the
commission of the crime. In People v. Grefiel,[51] it was held that forcible
abduction with rape, committed at 2 oclock in the morning, was attended by
the aggravating circumstance of nighttime.
The crime was likewise attended by the aggravating circumstance of
unlawful entry. The barangay chairman of Gata Daku, Joven Japay, testified
that when he went to the house of the victim the day after the rape incident,
he noticed that a baluster in the ceiling at the rear part of the house had been
forcibly removed and that there was a ladder propped nearby.[52] There was
thus entry to complainants house through an opening which was one not
intended for that purpose.
The foregoing notwithstanding, the penalty to be imposed on accusedappellant is reclusion perpetua. Under Art. 63, a single indivisible penalty
should be imposed regardless of any mitigating or aggravating circumstance
which may have attended the commission of the deed.

The damages awarded by the trial court should be modified. In

accordance with recent rulings of this Court,[53] complainant Doris Saguindang
must be paid P50,000.00 as civil indemnity, P50,000.00 as moral damages,
and the additional amount of P25,000.00, as exemplary damages, in view of
the attendance of the aggravating circumstances, pursuant to Art. 2229 of the
Civil Code.[54]
WHEREFORE, the decision of the Regional Trial Court, Branch 15,
Ozamis City, is AFFIRMED with the MODIFICATION that accused-appellant is
ordered to pay complainant Doris Saguindang the amounts of P50,000.00, as
civil indemnity, P50,000.00, as moral damages, and P25,000.00, as
exemplary damages.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY SABREDO y
GARBO, accused-appellant.
DECISION
QUISUMBING, J.:
For automatic review is the judgment of the Regional Trial Court of Masbate,
Masbate, Branch 44, dated May 13, 1996, in Criminal Case No. 7454,
imposing the penalty of death on accused-appellant, Jimmy Sabredo y Garbo,
for the complex crime of abduction with rape of complainant Judeliza
Sabredo. Edpsc
The facts of this case on record are as follows:
Appellant is the uncle of complainant. He is the younger brother of her father.
In 1993, Jimmy arrived from Masbate to reside with Judeliza's family in
Cagtagong, Caguyong, Borbon, Cebu, where he stayed with them for more
than a year.
On June 27, 1994, Judeliza went to the well near their house, to take a bath.
There, Jimmy grabbed and forcibly dragged her at knife's point, to the
highway where he made her board a truck for Bogo, Cebu. Impelled by fear,

she complied, since Jimmy continuously poked a knife under cover of his
jacket at her. From Bogo, he took her by passenger motorboat to Placer,
Masbate. Thence he brought her to Estampar, Cataingan, Masbate, where
they stayed at the house of Conchita Tipnit. Conchita was Jimmy's sister and
Judeliza's aunt, though aunt and niece did not know each other. In Estampar,
Judeliza tried to escape but was caught by Jimmy, who severely mauled her
until she lost consciousness. Scedp
Suspecting that Conchita would report the matter to the police, Jimmy took
Judeliza by jeepney to Cagba, Tugbo, Masbate. They stayed with Roberto
Sabredo, his nephew and Judeliza's first cousin. The two cousins, however,
had not met before and Jimmy was able to pass her off as his wife. They
stayed in Cagba from June 29 to July 5, 1994, with Jimmy closely guarding
Judeliza. Calrspped
On July 4, 1994, at around midnight, Jimmy, armed with a blade, sexually
assaulted Judeliza. He covered her mouth to prevent her from shouting. After
satisfying his lust, Jimmy inserted three fingers into her vaginal orifice and
cruelly pinched it. Judeliza screamed and cried for help. Their host, Roberto,
was awakened but could not do anything to assist her. Later, Jimmy struck
Judeliza with a piece of wood, rendering her unconscious. Much later, he
brought her to the house of his sister, Nilda Polloso, also at Cagba.
Nilda noticed the victim's weak and wan condition and offered her medicine.
Catching Jimmy in the act of boiling water, she asked what it was for and was
told that it would be poured over Judeliza to finish her off. Nilda, however,
stopped him. On July 8, 1994, Judeliza recovered sufficiently from her injuries.
Nilda brought her to the police where Judeliza reported her ordeal. That same
day, while Jimmy was sleeping, Nilda managed to take away from him the
blade, made of stainless steel, which he had used in the rape of Judeliza.
After the initial police investigation, Judeliza was brought to Masbate
Provincial Hospital, where she was confined for four days. The medico-legal
officer, Dr. Artemio Capellan, examined her. Sccalr
On August 11, 1994, the Provincial Prosecutor of Masbate filed an information
for forcible abduction with rape, which alleged:

"That on or about June 27, 1994, and days thereafter from sitio
Caglagang, barangay Caguyong, Burbon, Cebu the said accused
with force and intimidation and against the consent of complainant
Judeliza E. Sabredo abduct the latter to sitio Cagba, barangay
Tugbo, Municipality of Masbate, Province of Masbate, Philippines,
within the jurisdiction of this court and on (sic) the house of one
auntie Nilda, accused with a bolo did then and there, willfully,
unlawfully and feloniously have sexual intercourse of (sic) said
Judeliza E. Sabredo on the night of July 4, 1994, against her will
and consent.
"Contrary to law."

[1]

At the arraignment, Jimmy, assisted by counsel, pleaded not guilty. Trial on

the merits then ensued. Calrsc
Jimmy admitted having sexual relations with Judeliza, but insisted that it was
consensual. He claimed that they were lovers and had been engaging in
sexual intimacies for three months before running away. He explained that
they had gone to Masbate after Judeliza had revealed to him that she was not
really her father's daughter. They then lived together as husband and wife. He
admitted having boxed and kicked her but claimed that he got mad at her after
she confided that she really was his niece, contrary to what she earlier told
him. He likewise admitted having pinched the victim's vagina, but only to
punish her for deceiving him about their kinship. He claimed the instant case
was filed against him because of the maltreatment she received. Appellant
likewise admitted that he was facing another rape case before Branch 45 of
the same court, which a certain Juanita Turing had filed against him in 1992.
He, however, denied having fled to Cebu to escape prosecution for said
case. Sppedsc
The trial court found appellant's version of the incident preposterous and his
defense untenable. Choosing to believe the prosecution, the trial judge
convicted appellant, and sentenced him thus:
"WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt of the complex crime of forcible abduction with

rape under Article 48 in relation to Article[s] 335 and 342 of the

Revised Penal Code and is meted the extreme penalty of death.
"The accused is likewise ordered to pay Judeliza Sabredo the
amount of FIFTY THOUSAND PESOS (P50,000.00) by way of
moral damages.
"SO ORDERED."
Before us, on automatic review of the case, appellant assigns the following
errors:
I

THE TRIAL COURT GRAVELY ERRED IN ITS EVALUATION OF

THE HONESTY OF PRIVATE COMPLAINANT, IN EFFECT
GIVING FULL WEIGHT AND CREDENCE TO THE EVIDENCE
OF THE PROSECUTION THAN THAT OF THE DEFENSE.
II

THE TRIAL COURT GRAVELY ERRED IN FINDING THE

ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME CHARGED.
In sum, the issues for resolution now concern the credibility of the testimony of
the offended party; the correctness of appellant's conviction for forcible
abduction with rape, and the propriety of the imposition of the death penalty
on him. Sdjad
Appellant submits that Judeliza was neither a reliable nor credible witness
since both the information and her affidavit showed that the rape took place
in Nilda's residence, while on direct examination, Judeliza testified that she
was raped at Roberto's house. He claims these inconsistencies cast doubt on
Judeliza's credibility.
[2]

However, we have previously held that some discrepancies between the

affidavit and the testimony of the witness in open court do not necessarily
impair credibility of the testimony, for affidavits are generally taken ex parte

and are often incomplete or even inaccurate for lack of searching inquiries by
the investigating officer. Note that here both the affidavit and the testimony of
complainant in open court are consistent as to the fact that Jimmy raped her
while he threatened her with a deadly weapon on July 4, 1994. Her sworn
affidavit and her testimony in open court establish the basic elements of rape.
These are: the commission of sexual intercourse, by the accused against
complainant, with the use of force and intimidation, without her consent and
against her will. Suffice it to stress that the trial court found that the accused
abducted his niece by force, mauled and maltreated her repeatedly, instilling
fear in her, dragged her to different places and any house he pleased, and
ravished her on the night of July 4, 1994. Whether the house belonged to
Nilda or Roberto, both of whom they had stayed with, is not here crucial, for
the houses are both in Cagba, Tugbo, Masbate.
[3]

Here, the trial court's assessment of the credibility of complainant's testimony

is entitled to great weight, absent any showing that some facts were
overlooked which, if considered, would affect the outcome of the case. We
find no reason to overturn the trial court's detailed evaluation of the evidence
for both the prosecution and the defense. Complainant Judeliza's testimony
was given in a straightforward, clear, and convincing manner, which remained
consistent even under cross-examination. The trial court found her testimony
believable and convincing, while appellant's version of events incredible and
outrageous. Moreover, as testified by the medico-legal officer, he found that
her body bore evidences of physical and sexual assault. Appellant's bare
denial could not prevail over said positive evidence.
[4]

Appellant next insists that the intercourse between him and Judeliza was
consensual, since they were sweethearts. A "sweetheart defense" should be
substantiated by some documentary and/or other evidence of the relationship.
In this case, there is no showing of mementos, love letters, notes, pictures,
or any concrete proof of a romantic nature. Besides, as observed by the trial
judge, it is contrary to human experience that a naive rural lass like Judeliza,
barely nineteen years old, would willingly consent to be her uncle's paramour.
Nor, would he if he were indeed her sweetheart maltreat her repeatedly for no
justifiable cause, without over-straining our credulity. Misact
[5]

Was appellant's conviction by the trial court for the complex crime of forcible
abduction with rape correct? The elements of forcible abduction are: (1) that
the person abducted is any woman, regardless of age, civil status, or
reputation; (2) that the abduction is against her will; and (3) that the abduction
is with lewd designs. The prosecution's evidence clearly shows that the victim
was forcibly taken at knifepoint from Borbon, Cebu by appellant and through
threats and intimidation brought to various towns in Masbate, where he
passed her off as his "wife". That appellant was moved by lewd designs was
shown in regard to rape by his having carnal knowledge of private
complainant, against her will, on July 4, 1994 at Cagba, Tugbo, Masbate.
While it may appear at first blush that forcible abduction, as defined and
penalized by Article 342 of the Revised Penal Code was also committed, we
are not totally disposed to convict appellant for the complex crime of forcible
abduction with rape. We note that while the information sufficiently alleges the
forcible taking of complainant from Cebu to Masbate, the same fails to allege
"lewd designs." When a complex crime under Article 48 of the Revised Penal
Code is charged, such as forcible abduction with rape, it is axiomatic that the
prosecution must allege and prove the presence of all the elements of forcible
abduction, as well as all the elements of the crime of rape. When appellant,
using a blade, forcibly took away complainant for the purpose of sexually
assaulting her, as in fact he did rape her, the rape may then absorb forcible
abduction. Hence, the crime committed by appellant is simple rape
only. Acctmis
[6]

[7]

The imposable penalty for rape under Article 335 of the Revised Penal Code,
as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is
committed with the use of deadly weapon or by two or more persons, the
imposable penalty ranges from reclusion perpetua to death. The use of the
bladed weapon already qualified the rape. Under Article 63 of the Revised
Penal Code, the crucial factor in determining whether appellant should be
meted the death penalty is the presence of an aggravating circumstance
which attended the commission of the crime. A perusal of the record shows
that none of the aggravating circumstances enumerated in Article 14 of the
Revised Penal Code was alleged and proven by the prosecution. Where there
is no aggravating circumstance proved in the commission of the offense, the
lesser penalty shall be applied. Newmiso
[8]

[9]

In sentencing appellant to death, the trial court noted that the victim was his
niece, a relative by consanguinity within the third civil degree. Section 11 (1) of
R.A. No. 7659 imposes the death penalty when the rape victim is under 18
years of age and the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim. However, R.A. No. 7659
cannot be made to apply in the instant case for two reasons: First, at the time
the rape was committed, private complainant was already more than eighteen
years of age. Second, the information did not allege that offender and
offended party were relatives within the third degree of consanguinity. We
have held that the seven circumstances in R.A. No. 7659 which warrant the
automatic imposition of the death penalty partake of the nature of qualifying
circumstances and as such should be alleged in the information to be
appreciated as such. In view of the failure of the information to comply with
this requirement, said degree of relation could not be taken into account in
considering the penalty to be imposed. For these reasons, the sentence on
appellant should only be reclusion perpetua. Jjlex
[10]

[11]

We note that the trial court did not award any indemnity ex delicto, which
current jurisprudence has fixed at P50,000.00. Accordingly, appellant is further
sentenced to indemnify private complainant in the amount of P50,000.00 for
the rape he committed against her. As to moral damages, we find the trial
court's award of P50,000.00 in her favor duly supported by evidence on record
and is in order. Misjuris
WHEREFORE, the decision of the Regional Trial Court of Masbate, Masbate,
Branch 44, in Criminal Case No. 7454, is hereby MODIFIED. Appellant Jimmy
Sabredo y Garbo is declared guilty beyond reasonable doubt of simple rape
only as defined and penalized under Article 335 of the Revised Penal Code.
The penalty imposed on him is hereby REDUCED to reclusion perpetua. He is
also ordered to indemnify the victim, Judeliza Sabredo y Espinosa, in the
amount of FIFTY THOUSAND (P50,000.00) PESOS as civil indemnity, and to
pay her FIFTY THOUSAND (P50,000.00) PESOS as moral damages. Costs
against appellant. Jurissc
SO ORDERED.

INTESTATE ESTATE OF G.R. No. 181409

MANOLITA GONZALES VDA.
DE CARUNGCONG, represented
by MEDIATRIX CARUNGCONG, Present:
as Administratrix,
Petitioner, CORONA, J., Chairperson,
VELASCO, JR.,
NACHURA,
- v e r s u s - PERALTA and
MENDOZA, JJ.
PEOPLE OF THE PHILIPPINES
and WILLIAM SATO,
Respondents. Promulgated:
February 11, 2010
x--------------------------------------------------x
DECISION
CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. No criminal,
but only civil liability shall result from the commission of the crime of
theft, swindling, or malicious mischief committed or caused mutually
by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity
in the same line;
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have
passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-

in-law, if living together.

The exemption established by this article shall not be applicable to
strangers participating in the commission of the crime. (emphasis
supplied)

For purposes of the aforementioned provision, is the relationship by

affinity created between the husband and the blood relatives of his wife (as well as
between the wife and the blood relatives of her husband) dissolved by the death of
one spouse, thus ending the marriage which created such relationship by
affinity? Does the beneficial application of Article 332 cover the complex crime of
estafa thru falsification?
Mediatrix G. Carungcong, in her capacity as the duly appointed
administratrix[1] of petitioner intestate estate of her deceased mother Manolita
Gonzales vda. de Carungcong, filed a complaint-affidavit [2] for estafa against her
brother-in-law, William Sato, a Japanese national. Her complaint-affidavit read:
I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of
legal age, single, and resident of Unit 1111, Prince Gregory
Condominium, 105 12th Avenue, Cubao, Quezon City, after being duly
sworn, depose and state that:
1. I am the duly appointed Administratrix of the Intestate Estate
of Manolita Carungcong Y Gonzale[s], docketed as Spec. Procs. No.
[Q]-95-23621[,] Regional Trial Court of Quezon City, Branch 104,
being one (1) of her surviving daughters. Copy of the Letters of
Administration dated June 22, 1995 is hereto attached as Annex A to
form an integral part hereof.
2. As such Administratrix, I am duty bound not only to preserve
the properties of the Intestate Estate of Manolita Carungcong Y
Gonzale[s], but also to recover such funds and/or properties as property
belonging to the estate but are presently in the possession or control of
other parties.

3. After my appointment as Administratrix, I was able to confer

with some of the children of my sister Zenaida Carungcong Sato[,] who
predeceased our mother Manolita Carungcong Y Gonzales, having died
in Japan in 1991.
4. In my conference with my nieces Karen Rose Sato and Wendy
Mitsuko Sato, age[d] 27 and 24 respectively, I was able to learn that
prior to the death of my mother Manolita Carungcong Y Gonzale[s],
[s]pecifically on o[r] about November 24, 1992, their father William
Sato, through fraudulent misrepresentations, was able to secure the
signature and thumbmark of my mother on a Special Power of Attorney
whereby my niece Wendy Mitsuko Sato, who was then only twenty (20)
years old, was made her attorney-in-fact, to sell and dispose four (4)
valuable pieces of land in Tagaytay City. Said Special Power of
Attorney, copy of which is attached as ANNEX A of the Affidavit of
Wendy Mitsuko Sato, was signed and thumbmark[ed] by my mother
because William Sato told her that the documents she was being made
to sign involved her taxes. At that time, my mother was completely
blind, having gone blind almost ten (10) years prior to November, 1992.
5. The aforesaid Special Power of Attorney was signed by my
mother in the presence of Wendy, my other niece Belinda Kiku Sato,
our maid Mana Tingzon, and Governor Josephine Ramirez who later
became the second wife of my sisters widower William Sato.
6. Wendy Mitsuko Sato attests to the fact that my mother signed
the document in the belief that they were in connection with her taxes,
not knowing, since she was blind, that the same was in fact a Special
Power of Attorney to sell her Tagaytay properties.
7. On the basis of the aforesaid Special Power of Attorney,
William Sato found buyers for the property and made my niece Wendy
Mitsuko Sato sign three (3) deeds of absolute sale in favor of (a) Anita
Ng (Doc. 2194, Page No. 41, Book No. V, Series of 1992 of Notary
Public Vicente B. Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68,
Book No. V, Series of 1992 of Notary Public Vicente B. Custodio) and
(c) Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series of
1993 of Notary Public Toribio D. Labid). x x x
8. Per the statement of Wendy Mitsuko C. Sato, the
considerations appearing on the deeds of absolute sale were not the true

and actual considerations received by her father William Sato from the
buyers of her grandmothers properties. She attests that Anita Ng
actually paid P7,000,000.00 for the property covered by TCT No. 3148
and P7,034,000.00 for the property covered by TCT No. 3149. All the
aforesaid proceeds were turned over to William Sato who undertook to
make the proper accounting thereof to my mother, Manolita
Carungcong Gonzale[s].
9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee
Tsai paid P8,000,000.00 for the property covered by Tax Declaration
No. GR-016-0735, and the proceeds thereof were likewise turned over
to William Sato.
10. The considerations appearing on the deeds of sale were
falsified as Wendy Mitsuko C. Sato has actual knowledge of the true
amounts paid by the buyers, as stated in her Affidavit, since she was the
signatory thereto as the attorney-in-fact of Manolita Carungcong Y
Gonzale[s].
11. Wendy was only 20 years old at the time and was not in any
position to oppose or to refuse her fathers orders.
12. After receiving the total considerations for the properties sold
under the power of attorney fraudulently secured from my mother,
which total P22,034,000.00, William Sato failed to account for the same
and never delivered the proceeds to Manolita Carungcong Y Gonzale[s]
until the latter died on June 8, 1994.
13. Demands have been made for William Sato to make an
accounting and to deliver the proceeds of the sales to me as
Administratrix of my mothers estate, but he refused and failed, and
continues to refuse and to fail to do so, to the damage and prejudice of
the estate of the deceased Manolita Carungcong Y Gonzale[s] and of the
heirs which include his six (6) children with my sister Zenaida
Carungcong Sato. x x x[3]

Wendy Mitsuko Satos supporting affidavit and the special power of attorney
allegedly issued by the deceased Manolita Gonzales vda. de Carungcong in favor
of Wendy were attached to the complaint-affidavit of Mediatrix.

In a resolution dated March 25, 1997, the City Prosecutor of Quezon City
dismissed the complaint.[4] On appeal, however, the Secretary of Justice reversed
and set aside the resolution dated March 25, 1997 and directed the City Prosecutor
of Quezon City to file an Information against Sato for violation of Article 315,
paragraph 3(a) of the Revised Penal Code. [5] Thus, the following Information was
filed against Sato in the Regional Trial Court of Quezon City, Branch 87:[6]
INFORMATION
The undersigned accuses WILLIAM SATO of the crime of ESTAFA
under Article 315[,] par. 3(a) of the Revised Penal Code, committed as
follows:
That on or about the 24 th day of November, 1992, in Quezon City,
Philippines, the above-named accused, by means of deceit, did, then and
there, wil[l]fully, unlawfully and feloniously defraud MANOLITA
GONZALES VDA. DE CARUNGCONG in the following manner, to
wit: the said accused induced said Manolita Gonzales Vda. De
Carungcong[,] who was already then blind and 79 years old[,] to sign
and thumbmark a special power of attorney dated November 24, 1992 in
favor of Wendy Mitsuko C. Sato, daughter of said accused, making her
believe that said document involved only her taxes, accused knowing
fully well that said document authorizes Wendy Mitsuko C. Sato, then a
minor, to sell, assign, transfer or otherwise dispose of to any person or
entity of her properties all located at Tagaytay City, as follows:
1. One Thousand Eight Hundred Seven(ty) One (1,871) square
meters more or less and covered by T.C.T. No. 3147;
2. Five Hundred Forty (540) square meters more or less and
covered by T.C.T. No. 3148 with Tax Declaration No. GR016-0722, Cadastral Lot No. 7106;
3. Five Hundred Forty (540) square meters more or less and
covered by T.C.T. No. 3149 with Tax Declaration No. GR016-0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less

with Tax Declaration No. GR-016-1735, Cadastral Lot No.
7062;
registered in the name of Manolita Gonzales Vda. De Carungcong, and
once in the possession of the said special power of attorney and other
pertinent documents, said accused made Wendy Mitsuko Sato sign the
three (3) Deeds of Absolute Sale covering Transfer Certificate of Title
[TCT] No. 3148 for P250,000.00, [TCT] No. 3149 for P250,000.00 and
[Tax Declaration] GR-016-0735 for P650,000.00 and once in possession
of the proceeds of the sale of the above properties, said accused,
misapplied, misappropriated and converted the same to his own personal
use and benefit, to the damage and prejudice of the heirs of Manolita
Gonzales Vda. De Carungcong who died in 1994.
Contrary to law.[7]

Subsequently, the prosecution moved for the amendment of the Information

so as to increase the amount of damages from P1,150,000, the total amount stated
in the deeds of sale, to P22,034,000, the actual amount received by Sato.
Sato moved for the quashal of the Information, claiming that under Article 332 of
the Revised Penal Code, his relationship to the person allegedly defrauded, the
deceased Manolita who was his mother-in-law, was an exempting circumstance.
The prosecution disputed Satos motion in an opposition dated March 29,
2006.
In an order dated April 17, 2006,[8] the trial court granted Satos motion and ordered
the dismissal of the criminal case:
The Trial Prosecutors contention is that the death of the wife of
the accused severed the relationship of affinity between accused and his
mother-in-law. Therefore, the mantle of protection provided to the
accused by the relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised

Penal Code convinces this Court of the correctness of the contention of
the [d]efense. While it is true that the death of Zenaida Carungcong-Sato
has extinguished the marriage of accused with her, it does not erase the
fact that accused and Zenaidas mother, herein complainant, are still son[in-law] and mother-in-law and they remained son[-in-law] and motherin-law even beyond the death of Zenaida.
Article 332(1) of the Revised Penal Code, is very explicit and states no
proviso. No criminal, but only civil liability[,] shall result from the
commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1) spouses, ascendants
and descendants, or relatives by affinity in the same line.
Article 332, according to Aquino, in his Commentaries [to] Revised
Penal Code, preserves family harmony and obviates scandal, hence even
in cases of theft and malicious mischief, where the crime is committed
by a stepfather against his stepson, by a grandson against his grandfather,
by a son against his mother, no criminal liability is incurred by the
accused only civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG
12th Supp. 63; Cristobal, 84 Phil. 473).
Such exempting circumstance is applicable herein.
WHEREFORE, finding the Motion to Quash Original Information
meritorious, the same is GRANTED and, as prayed for, case is hereby
DISMISSED.
SO ORDERED.[9] (underlining supplied in the original)

The prosecutions motion for reconsideration[10] was denied in an order dated June
2, 2006.[11]
Dissatisfied with the trial courts rulings, the intestate estate of Manolita,
represented by Mediatrix, filed a petition for certiorari in the Court of
Appeals[12] which, however, in a decision[13] dated August 9, 2007, dismissed it. It
ruled:

[W]e sustain the finding of [the trial court] that the death of
Zenaida did not extinguish the relationship by affinity between her
husband, private respondent Sato, and her mother Manolita, and does
not bar the application of the exempting circumstance under Article
332(1) of the Revised Penal Code in favor of private respondent Sato.
We further agree with the submission of the [Office of the
Solicitor General (OSG)] that nothing in the law and/or existing
jurisprudence supports the argument of petitioner that the fact of death
of Zenaida dissolved the relationship by affinity between Manolita and
private respondent Sato, and thus removed the protective mantle of
Article 332 of the Revised Penal Code from said private respondent;
and that notwithstanding the death of Zenaida, private respondent Sato
remains to be the son-in-law of Manolita, and a brother-in-law of
petitioner administratrix. As further pointed out by the OSG, the filing
of the criminal case for estafa against private respondent Sato already
created havoc among members of the Carungcong and Sato families as
private respondents daughter Wendy Mitsuko Sato joined cause with her
aunt [Mediatrix] Carungcong y Gonzales, while two (2) other children
of private respondent, William Francis and Belinda Sato, took the side
of their father.
There is a dearth of jurisprudence and/or commentaries
elaborating on the provision of Article 332 of the Revised Penal Code.
However, from the plain language of the law, it is clear that the
exemption from criminal liability for the crime of swindling (estafa)
under Article 315 of the Revised Penal Code applies to private
respondent Sato, as son-in-law of Manolita, they being relatives by
affinity in the same line under Article 332(1) of the same Code. We
cannot draw the distinction that following the death of Zenaida in 1991,
private respondent Sato is no longer the son-in-law of Manolita, so as to
exclude the former from the exempting circumstance provided for in
Article 332 (1) of the Revised Penal Code.
Ubi lex non distinguit nec nos distinguere debemos. Basic is the
rule in statutory construction that where the law does not distinguish,
the courts should not distinguish. There should be no distinction in the
application of law where none is indicated. The courts could only
distinguish where there are facts or circumstances showing that the
lawgiver intended a distinction or qualification. In such a case, the

courts would merely give effect to the lawgivers intent. The solemn
power and duty of the Court to interpret and apply the law does not
include the power to correct by reading into the law what is not written
therein.
Further, it is an established principle of statutory construction that
penal laws are strictly construed against the State and liberally in favor
of the accused. Any reasonable doubt must be resolved in favor of the
accused. In this case, the plain meaning of Article 332 (1) of the
Revised Penal Codes simple language is most favorable to Sato. [14]

The appellate court denied reconsideration.[15] Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the orders of
the trial court. It cites the commentary of Justice Luis B. Reyes in his book on
criminal law that the rationale of Article 332 of the Revised Penal Code exempting
the persons mentioned therein from criminal liability is that the law recognizes the
presumed co-ownership of the property between the offender and the
offended party. Here, the properties subject of the estafa case were owned by
Manolita whose daughter, Zenaida Carungcong-Sato (Satos wife), died on January
28, 1991. Hence, Zenaida never became a co-owner because, under the law, her
right to the three parcels of land could have arisen only after her mothers
death. Since Zenaida predeceased her mother, Manolita, no such right came
about and the mantle of protection provided to Sato by the relationship no
longer existed.
Sato counters that Article 332 makes no distinction that the relationship may not be
invoked in case of death of the spouse at the time the crime was allegedly
committed. Thus, while the death of Zenaida extinguished her marriage with Sato,

it did not dissolve the son-in-law and mother-in-law relationship between Sato and
Zenaidas mother, Manolita.
For his part, the Solicitor General maintains that Sato is covered by the exemption
from criminal liability provided under Article 332. Nothing in the law and
jurisprudence supports petitioners claim that Zenaidas death dissolved the
relationship by affinity between Sato and Manolita. As it is, the criminal case
against Sato created havoc among the members of the Carungcong and Sato
families, a situation sought to be particularly avoided by Article 332s provision
exempting a family member committing theft, estafa or malicious mischief from
criminal liability and reducing his/her liability to the civil aspect only.
The petition has merit.
The resolution of this case rests on the interpretation of Article 332 of the Revised
Penal Code. In particular, it calls for the determination of the following: (1) the
effect of death on the relationship by affinity created between a surviving spouse
and the blood relatives of the deceased spouse and (2) the extent of the coverage of
Article 332.
EFFECT OF DEATH ON RELATIONSHIP
BY AFFINITY AS ABSOLUTORY CAUSE

Article 332 provides for an absolutory cause[16] in the

crimes of theft, estafa (or swindling) and malicious mischief. It limits the
responsibility of the offender to civil liability and frees him from criminal liability
by virtue of his relationship to the offended party.

In connection with the relatives mentioned in the first paragraph, it has been held
that included in the exemptions are parents-in-law, stepparents and adopted
children.[17] By virtue thereof, no criminal liability is incurred by the stepfather who
commits malicious mischief against his stepson;[18] by the stepmother who commits
theft against her stepson;[19] by the stepfather who steals something from his
stepson;[20] by the grandson who steals from his grandfather; [21] by the accused who
swindles his sister-in-law living with him;[22] and by the son who steals a ring from
his mother.[23]
Affinity is the relation that one spouse has to the blood relatives of the other
spouse. It is a relationship by marriage or
a familial relation resulting from marriage.[24] It is a fictive kinship, a fiction
created by law in connection with the institution of marriage and family relations.
If marriage gives rise to ones relationship by affinity to the blood relatives of
ones spouse, does the extinguishment of marriage by the death of the spouse
dissolve the relationship by affinity?
Philippine jurisprudence has no previous encounter with the issue that
confronts us in this case. That is why the trial and appellate courts acknowledged
the dearth of jurisprudence and/or commentaries on the matter. In contrast, in the
American legal system, there are two views on the subject. As one Filipino author
observed:
In case a marriage is terminated by the death of one of the spouses,
there are conflicting views. There are some who believe that
relationship by affinity is not terminated whether there are children or
not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial authorities in other
jurisdictions is that, if the spouses have no living issues or children and
one of the spouses dies, the relationship by affinity is dissolved. It
follows the rule that relationship by affinity ceases with the dissolution

of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56

Am Dec. 288). On the other hand, the relationship by affinity is
continued despite the death of one of the spouses where there are living
issues or children of the marriage in whose veins the blood of the
parties are commingled, since the relationship of affinity was continued
through the medium of the issue of the marriage (Paddock vs. Wells, 2
Barb. Ch. 331, 333).[25]

The first view (the terminated affinity view) holds that relationship by affinity
terminates with the dissolution of the marriage either by death or divorce which
gave rise to the relationship of affinity between the parties. [26] Under this view, the
relationship by affinity is simply coextensive and coexistent with the marriage that
produced it. Its duration is indispensably and necessarily determined by the
marriage that created it. Thus, it exists only for so long as the marriage subsists,
such that the death of a spouse ipso facto ends the relationship by affinity of the
surviving spouse to the deceased spouses blood relatives.
The first view admits of an exception. The relationship by affinity continues even
after the death of one spouse when there is a surviving issue. [27] The rationale is
that the relationship is preserved because of the living issue of the marriage in
whose veins the blood of both parties is commingled.[28]
The second view (the continuing affinity view) maintains that relationship by
affinity between the surviving spouse and the kindred of the deceased spouse
continues even after the death of the deceased spouse, regardless of whether the
marriage produced children or not.[29] Under this view, the relationship by affinity
endures even after the dissolution of the marriage that produced it as a result of the
death of one of the parties to the said marriage. This view considers that, where
statutes have indicated an intent to benefit step-relatives or in-laws, the tie of

affinity between these people and their relatives-by-marriage is not to be regarded

as terminated upon the death of one of the married parties.[30]
After due consideration and evaluation of the relative merits of the two views, we
hold that the second view is more consistent with the language and spirit of Article
332(1) of the Revised Penal Code.
First, the terminated affinity view is generally applied in cases of jury
disqualification and incest.[31] On the other hand, the continuing affinity view has
been applied in the interpretation of laws that intend to benefit step-relatives or inlaws. Since the purpose of the absolutory cause in Article 332(1) is meant to be
beneficial to relatives by affinity within the degree covered under the said
provision, the continuing affinity view is more appropriate.
Second, the language of Article 332(1) which speaks of relatives by affinity in the
same line is couched in general language. The legislative intent to make no
distinction between the spouse of ones living child and the surviving spouse of
ones deceased child (in case of a son-in-law or daughter-in-law with respect to his
or her parents-in-law)[32] can be drawn from Article 332(1) of the Revised Penal
Code without doing violence to its language.
Third, the Constitution declares that the protection and strengthening of the family
as a basic autonomous social institution are policies of the State and that it is the
duty of the State to strengthen the solidarity of the family.[33] Congress has also
affirmed as a State and national policy that courts shall preserve the solidarity of
the family.[34] In this connection, the spirit of Article 332 is to preserve family
harmony and obviate scandal.[35] The view that relationship by affinity is not

affected by the death of one of the parties to the marriage that created it is more in
accord with family solidarity and harmony.
Fourth, the fundamental principle in applying and in interpreting criminal
laws is to resolve all doubts in favor of the accused. In dubio pro reo. When in
doubt, rule for the accused.[36] This is in consonance with the constitutional
guarantee that the accused shall be presumed innocent unless and until his guilt is
established beyond reasonable doubt.[37]
Intimately related to the in dubio pro reo principle is the rule of lenity.[38] The
rule applies when the court is faced with two possible interpretations of a penal
statute, one that is prejudicial to the accused and another that is favorable to him.
The rule calls for the adoption of an interpretation which is more lenient to the
accused.
Lenity becomes all the more appropriate when this case is viewed through the lens
of the basic purpose of Article 332 of the Revised Penal Code to preserve family
harmony by providing an absolutory cause. Since the goal of Article 332(1) is to
benefit the accused, the Court should adopt an application or interpretation that is
more favorable to the accused. In this case, that interpretation is the continuing
affinity view.
Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that
the relationship by affinity created between the surviving spouse and the blood
relatives of the deceased spouse survives the death of either party to the marriage
which created the affinity. (The same principle applies to the justifying
circumstance of defense of ones relatives under Article 11[2] of the Revised Penal
Code, the mitigating circumstance of immediate vindication of grave offense
committed against ones relatives under Article 13[5] of the same Code and the

absolutory cause of relationship in favor of accessories under Article 20 also of the

same Code.)
SCOPE OF ARTICLE 332 OF
THE REVISED PENAL CODE

The absolutory cause under Article 332 of the Revised Penal Code only
applies to the felonies of theft, swindling and malicious mischief. Under the said
provision, the State condones the criminal responsibility of the offender in cases of
theft, swindling and malicious mischief. As an act of grace, the State waives its
right to prosecute the offender for the said crimes but leaves the private offended
party with the option to hold the offender civilly liable.
However, the coverage of Article 332 is strictly limited to the felonies
mentioned therein. The plain, categorical and unmistakable language of the
provision shows that it applies exclusively to the simple crimes of theft, swindling
and malicious mischief. It does not apply where any of the crimes mentioned under
Article 332 is complexed with another crime, such as theft through falsification or
estafa through falsification.[39]
The Information against Sato charges him with estafa. However, the real
nature of the offense is determined by the facts alleged in the Information, not by
the designation of the offense.[40] What controls is not the title of the Information or
the designation of the offense but the actual facts recited in the Information. [41] In
other words, it is the recital of facts of the commission of the offense, not the
nomenclature of the offense, that determines the crime being charged in the
Information.[42] It is the exclusive province of the court to say what the crime is or

what it is named.[43] The determination by the prosecutor who signs the Information
of the crime committed is merely an opinion which is not binding on the court.[44]
A reading of the facts alleged in the Information reveals that Sato is being
charged not with simple estafa but with the complex crime of estafa through
falsification of public documents. In particular, the Information states that Sato, by
means of deceit, intentionally defrauded Manolita committed as follows:
(a) Sato presented a document to Manolita (who was already blind at that
time) and induced her to sign and thumbmark the same;
(b) he made Manolita believe that the said document was in connection with
her taxes when it was in fact a special power of attorney (SPA)
authorizing his minor daughter Wendy to sell, assign, transfer or
otherwise dispose of Manolitas properties in Tagaytay City;
(c) relying on Satos inducement and representation, Manolita signed and
thumbmarked the SPA in favor of Wendy Mitsuko Sato, daughter of
Sato;
(d) using the document, he sold the properties to third parties but he neither
delivered the proceeds to Manolita nor accounted for the same and
(d) despite repeated demands, he failed and refused to deliver the proceeds,
to the damage and prejudice of the estate of Manolita.
The above averments in the Information show that the estafa was committed
by attributing to Manolita (who participated in the execution of the document)
statements other than those in fact made by her. Manolitas acts of signing
the SPA and affixing her thumbmark to that document were the very expression of
her specific intention that something be done about her taxes. Her signature and

thumbmark were the affirmation of her statement on such intention as she only
signed and thumbmarked the SPA (a document which she could not have read)
because of Satos representation that the document pertained to her taxes. In signing
and thumbmarking the document, Manolita showed that she believed and adopted
the representations of Sato as to what the document was all about, i.e., that it
involved her taxes. Her signature and thumbmark, therefore, served as her
conformity to Satos proposal that she execute a document to settle her taxes.
Thus, by inducing Manolita to sign the SPA, Sato made it appear that
Manolita granted his daughter Wendy a special power of attorney for the purpose
of selling, assigning, transferring or otherwise disposing of Manolitas Tagaytay
properties when the fact was that Manolita signed and thumbmarked the document
presented by Sato in the belief that it pertained to her taxes. Indeed, the document
itself, the SPA, and everything that it contained were falsely attributed to Manolita
when she was made to sign the SPA.
Moreover, the allegations in the Information that
(1) once in the possession of the said special power of attorney and other
pertinent documents, [Sato] made Wendy Mitsuko Sato sign the three
(3) Deeds of Absolute Sale and
(2) once in possession of the proceeds of the sale of the above properties,
said accused, misapplied, misappropriated and converted the same to
his own personal use and benefit

raise the presumption that Sato, as the possessor of the falsified document and the
one who benefited therefrom, was the author thereof.

Furthermore, it should be noted that the prosecution moved for the

amendment of the Information so as to increase the amount of damages
from P1,150,000 toP22,034,000. This was granted by the trial court and was
affirmed by the Court of Appeals on certiorari. This meant that the amended
Information would now state that, while the total amount of consideration stated in
the deeds of absolute sale was only P1,150,000, Sato actually received the total
amount of P22,034,000 as proceeds of the sale of Manolitas properties.[45] This also
meant that the deeds of sale (which were public documents) were also falsified by
making untruthful statements as to the amounts of consideration stated in the
deeds.
Therefore, the allegations in the Information essentially charged a crime that
was not simple estafa. Sato resorted to falsification of public documents
(particularly, the special power of attorney and the deeds of sale) as a necessary
means to commit the estafa.
Since the crime with which respondent was charged was not simple estafa
but the complex crime of estafa through falsification of public documents, Sato
cannot avail himself of the absolutory cause provided under Article 332 of the
Revised Penal Code in his favor.

EFFECT OF ABSOLUTORY CAUSE UNDER

ARTICLE 332 ON CRIMINAL LIABILITY
FOR THE COMPLEX CRIME OF ESTAFA
THROUGH FALSIFICATION OF PUBLIC
DOCUMENTS

The question may be asked: if the accused may not be held criminally liable
for simple estafa by virtue of the absolutory cause under Article 332 of the Revised
Penal Code, should he not be absolved also from criminal liability for the complex
crime of estafa through falsification of public documents? No.
True, the concurrence of all the elements of the two crimes of estafa and
falsification of public document is required for a proper conviction for the complex
crime of estafa through falsification of public document. That is the ruling
in Gonzaludo v. People.[46] It means that the prosecution must establish that the
accused resorted to the falsification of a public document as a necessary means to
commit the crime of estafa.
However, a proper appreciation of the scope and application of Article
332 of the Revised Penal Code and of the nature of a complex crime would negate
exemption fromcriminal liability for the complex crime of estafa through
falsification of public documents, simply because the accused may not be held
criminally liable for simple estafa by virtue of the absolutory cause under Article
332.
The absolutory cause under Article 332 is meant to address specific crimes
against property, namely, the simple crimes of theft, swindling and malicious
mischief. Thus,all other crimes, whether simple or complex, are not affected by
the absolutory cause provided by the said provision. To apply the absolutory
cause under Article 332 of the Revised Penal Code to one of the component crimes
of a complex crime for the purpose of negating the existence of that complex crime
is to unduly expand the scope of Article 332. In other words, to apply Article 332

to the complex crime of estafa through falsification of public document would be

to mistakenly treat the crime of estafa as a separate simple crime, not as the
component crime that it is in that situation. It would wrongly consider the
indictment as separate charges of estafa and falsification of public document, not
as a single charge for the single (complex) crime of estafa through falsification of
public document.
Under Article 332 of the Revised Penal Code, the State waives its right to
hold the offender criminally liable for the simple crimes of theft, swindling and
malicious mischief and considers the violation of the juridical right to property
committed by the offender against certain family members as a private matter and
therefore subject only to civil liability. The waiver does not apply when the
violation of the right to property is achieved through (and therefore inseparably
intertwined with) a breach of the public interest in the integrity and presumed
authenticity of public documents. For, in the latter instance, what is involved is
no longer simply the property right of a family relation but a paramount
public interest.
The purpose of Article 332 is to preserve family harmony and obviate
scandal.[47] Thus, the action provided under the said provision simply concerns the
private relations of the parties as family members and is limited to the civil aspect
between the offender and the offended party. When estafa is committed through
falsification of a public document, however, the matter acquires a very serious
public dimension and goes beyond the respective rights and liabilities of family
members among themselves. Effectively, when the offender resorts to an act that
breaches public interest in the integrity of public documents as a means to violate

the property rights of a family member, he is removed from the protective mantle
of the absolutory cause under Article 332.
In considering whether the accused is liable for the complex crime of estafa
through falsification of public documents, it would be wrong to consider the
component crimes separately from each other. While there may be two
component crimes (estafa and falsification of documents), both felonies are
animated by and result from one and the same criminal intent for which there is
only one criminal liability.[48] That is the concept of a complex crime. In other
words, while there are two crimes, they are treated only as one, subject to a
single criminal liability.
As opposed to a simple crime where only one juridical right or interest is
violated (e.g., homicide which violates the right to life, theft which violates the
right to property),[49] a complex crime constitutes a violation of diverse juridical
rights or interests by means of diverse acts, each of which is a simple crime in
itself.[50] Since only a single criminal intent underlies the diverse acts, however, the
component crimes are considered as elements of a single crime, the complex
crime. This is the correct interpretation of a complex crime as treated under Article
48 of the Revised Penal Code.
In the case of a complex crime, therefore, there is a formal (or ideal)
plurality of crimes where the same criminal intent results in two or more
component crimes constituting a complex crime for which there is only one
criminal liability.[51] (The complex crime of estafa through falsification of public
document falls under this category.) This is different from a material (or real)
plurality of crimes where different criminal intents result in two or more crimes,

for each of which the accused incurs criminal liability.[52] The latter category is
covered neither by the concept of complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes
(concursus delictuorum or concurso de delitos) gives rise to a single criminal
liability and requires the imposition of a single penalty:
Although [a] complex crime quantitatively consists of two or
more crimes, it is only one crime in law on which a single penalty is
imposed and the two or more crimes constituting the same are more
conveniently termed as component crimes.[53] (emphasis supplied)

In [a] complex crime, although two or more crimes are actually

committed, they constitute only one crime in the eyes of the law as well
as in the conscience of the offender. The offender hasonly one criminal
intent. Even in the case where an offense is a necessary means for
committing the other, the evil intent of the offender is only one. [54]

For this reason, while a conviction for estafa through falsification of public
document requires that the elements of both estafa and falsification exist, it does
not mean that the criminal liability for estafa may be determined and considered
independently of that for falsification. The two crimes of estafa and falsification
of public documents are not separate crimes but component crimes of the
single complex crime of estafa and falsification of public documents.
Therefore, it would be incorrect to claim that, to be criminally liable for the
complex crime of estafa through falsification of public document, the liability for
estafa should be considered separately from the liability for falsification of public

document. Such approach would disregard the nature of a complex crime and
contradict the letter and spirit of Article 48 of the Revised Penal Code. It would
wrongly disregard the distinction between formal plurality and material plurality,
as it improperly treats the plurality of crimes in the complex crime of estafa
through falsification of public document as a mere material plurality where the
felonies are considered as separate crimes to be punished individually.
FALSIFICATION OF PUBLIC DOCUMENTS MAY BE A
NECESSARY MEANS FOR COMMITTING ESTAFA
EVEN UNDER ARTICLE 315 (3[A])

The elements of the offense of estafa punished under Article 315 (3[a]) of
the Revised Penal Code are as follows:
(1) the offender induced the offended party to sign a document;
(2) deceit was employed to make the offended party sign the document;
(3) the offended party personally signed the document and
(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does
not require that the document be falsified for the consummation thereof, it does not
mean that the falsification of the document cannot be considered as a necessary
means to commit the estafa under that provision.
The phrase necessary means does not connote indispensable means for if it
did, then the offense as a necessary means to commit another would be an
indispensable element of the latter and would be an ingredient thereof.[55] In People

v. Salvilla,[56] the phrase necessary means merely signifies that one crime is
committed to facilitate and insure the commission of the other.[57] In this case, the
crime of falsification of public document, the SPA, was such a necessary means as
it was resorted to by Sato to facilitate and carry out more effectively his evil design
to swindle his mother-in-law. In particular, he used the SPA to sell the Tagaytay
properties of Manolita to unsuspecting third persons.
When the offender commits in a public document any of the acts of
falsification enumerated in Article 171 of the Revised Penal Code as a necessary
means to commit another crime, like estafa, theft or malversation, the two crimes
form a complex crime under Article 48 of the same Code. [58] The falsification of a
public, official or commercial document may be a means of committing estafa
because, before the falsified document is actually utilized to defraud another,
the crime of falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of a public, official
or commercial document.[59] In other words, the crime of falsification was
committed prior to the consummation of the crime of estafa.[60] Actually utilizing
the falsified public, official or commercial document to defraud another is estafa.
[61]

The damage to another is caused by the commission of estafa, not by the

falsification of the document.[62]

Applying the above principles to this case, the allegations in the Information
show that the falsification of public document was consummated when Sato
presented a ready-made SPA to Manolita who signed the same as a statement of
her intention in connection with her taxes. While the falsification was
consummated upon the execution of the SPA, the consummation of the estafa
occurred only when Sato later utilized the SPA. He did so particularly when he had

the properties sold and thereafter pocketed the proceeds of the sale. Damage or
prejudice to Manolita was caused not by the falsification of the SPA (as no damage
was yet caused to the property rights of Manolita at the time she was made to sign
the document) but by the subsequent use of the said document. That is why the
falsification of the public document was used to facilitate and ensure (that is, as a
necessary means for) the commission of the estafa.
The situation would have been different if Sato, using the same inducement,
had made Manolita sign a deed of sale of the properties either in his favor or in
favor of third parties. In that case, the damage would have been caused by, and at
exactly the same time as, the execution of the document, not prior
thereto. Therefore, the crime committed would only have been the simple crime of
estafa.[63] On the other hand, absent any inducement (such as if Manolita herself
had been the one who asked that a document pertaining to her taxes be prepared for
her signature, but what was presented to her for her signature was an SPA), the
crime would have only been the simple crime of falsification.[64]
WHEREFORE, the petition is hereby GRANTED. The decision dated
August 9, 2007 and the resolution dated January 23, 2008 of the Court of Appeals
in CA-G.R. S.P. No. 95260 are REVERSED and SET ASIDE. The case is
remanded to the trial court which is directed to try the accused with dispatch for
the complex crime of estafa through falsification of public documents.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. IRINEO TUMLOS,Defendant-Appellant.

Marcelo Nubla for appellant.

Office of the Solicitor-General Ozaeta and Acting Assistant Attorney
Kahn for appellee.
VILLA-REAL, J.:

chanrobles virtual law library

The defendant Irineo Tumlos appeals to this court from the

judgment of the Court of First Instance of Iloilo finding him guilty of
the crime of theft of large cattle defined and punished in article 310,
in relation to article 309, of the Revised Penal Code, and sentencing
him to suffer the indeterminate penalty of from two months and one
day ofarresto mayor to two years, four months and one day
of prision correccional, with the accessories prescribed by law and
costs, by virtue of an information reading as follows:
The undersigned acting provincial fiscal accuses Irineo Tumlos of the
crime of qualified theft committed as follows:
chanroble s virtual law library

That on or about November 21, 1937, in the municipality of Sara,

Province of Iloilo, Philippines, and within the jurisdiction of this
court, said defendant, wilfully and without using force upon things
or violence or intimidation against person, took, with intent to gain
and without the consent of their owner, five cows valued at P39 and
belonging to Ambrosio Pecasis.
chanroble svirtualawlibrary

An act punishable by law.

chanroblesvirtualawlibrary

chanroble s virtual law library

chanrobles virtual law library

Iloilo, July 11, 1938.

In support of his appeal the appellant assigns as the only error
allegedly committed by the lower court in the aforesaid judgment its
failure to sustain the defense of "autrefois convict" or double
jeopardy, interposed by said defendant.
chanroble svirtualawlibrary

chanroble s virtual law library

On or about November 21, 1937, eight cows belonging to

Maximiano Sobrevega and five belonging to his son-in-law,

Ambrosio Pecasis, then grazing together in the barrio of Libongcogon, municipality of Sara, Province of Iloilo, were taken by the
herein defendant without the knowledge or consent of their
respective owners. The deputy fiscal of Iloilo filed on July 11, 1938,
an information against the said defendant for the offense of theft of
the eight cows belonging to Maximiano Sobrevega, which resulted in
his being sentenced on July 15, 1938, to an indeterminate penalty
of from one year, eight months and twenty-one days to five years,
five months and eleven days of prision correccional, with the
accessories prescribed by law and costs. In the information filed in
the present case the same defendant is charged with the theft of
five cows belonging to Ambrosio Pecasis, committed on November
21, 1937, the date of the commission of the theft to the eight cows
of Maximiano Sobrevega charged to the previous information.
chanroble svirtualawlibrary

chanroble s virtual law library

The question to be decided in the present appeal is whether or not

the conviction of the accused for the theft of the eight cows
belonging to Maximiano Sobrevega constitutes a bar to his
conviction for the theft of the five cows belonging to Ambrosio
Pecasis, which were grazing together with the aforesaid eight cows
belonging to Maximiano Sobrevega in the same place from which
they were stolen at the same time, under the legal procedural
principle of "autrefois convict" or double jeopardy.
chanroble svirtualawlibrary

chanroble s virtual law library

The theft of the thirteen cows committed by the defendant took

place at the same time and in the same place; consequently, he
performed but one act. The fact that eight of said cows pertained to
one owner and five to another does not make him criminally liable
for two distinct offenses, for the reason that in such case the act
must be divided into two, which act is not susceptible of division.
chanroble svirtualawlibrary

virtual law library

The intention was likewise one, namely, to take for the purpose of
appropriating or selling the thirteen cows which he found grazing in
the same place. As neither the intention nor the criminal act is
susceptible of division, the offense arising from the concurrence of

chanroble s

its two constituent elements cannot be divided, it being immaterial

that the subject matter of the offense is singular or plural, because
whether said subject matter be one or several animate or inanimate
objects, it is but one.
chanroblesvirtualawlibrary

chanrobles virtual law library

Therefore, as the five cows alleged to be stolen by Irineo Tumlos

were integral parts of the thirteen cows which were the subject
matter of theft, and as he had already been tried for and convicted
of the theft of the other five.
chanroblesvirtualawlibrary

chanrobles virtual law library

Wherefore, as he had already been put in jeopardy of being

convicted of the theft of the five cows in question when he was tried
for and convicted of the theft of the eight which together with the
five from an integral part of the thirteen which were the subject
matter of the offense, the conviction of the herein defendant Irineo
Tumlos for the said five cows in the present case would be the
second, in violation of his constitutional right not to be punished
twice for the same offense; hence, he is acquitted of the charge,
which is dismissed, with costs de oficio. So ordered.
G.R. No. L-28547 February 22, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA,
accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendantsappellants.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Felicisimo R. Rosete
and Solicitor Antonio M. Martinez for plaintiff-appellee.
Sixto P. Dimaisip for defendants-appellants.

AQUINO, J.:p
This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision
of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced
each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos

to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value
of fighting cocks (Criminal Case No. 11082).
The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9,
1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford pickup
truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J.
M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta
who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in another part of
the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home.
Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to
get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck
which Gorriceta drove to Mandurriao.
Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters
from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla
instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval of
about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They
ran to the truck.
Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the
truck to Jaro (another district of the city) on the same route that they had taken in going to
Mandurriao.
It is important to note the positions of Gorriceta and his three companions on the front seat of the
track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next to Suyo
was Brillantes. On the extreme right was Jaranilla.
While the truck was traversing the detour road near the Mandurriao airport, then under construction,
Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running
towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot
and was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the
policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the
occupants of the truck to go down. They did not heed the injunction of the policeman.
Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot
Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck
and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards
Jabatan.
Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside
the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to
his room. After a while, he heard policemen shouting his name and asking him to come down.
Instead of doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the
following day that he decided to come down. His uncle had counselled him to surrender to the

police. The policemen took Gorriceta to their headquarters. He recounted the incident to a police
investigator.
Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street
in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to
the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his
residence, he saw three men emerging from the canal on Taft Street in front of Baylon's house. He
noticed a red Ford pickup truck parked about fifty yards from the place where he saw the three men.
Shortly thereafter, he espied the three men carrying roosters. He immediately repaired to the police
station at Mandurriao. He reported to Patrolmen Jabatan and Castro what he had just witnessed.
The two policemen requested him to take them in his car to the place where he saw the three
suspicious-looking men. Upon arrival thereat, the men and the truck were not there anymore.
Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road
leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their
objective was to intercept the truck. Trespeces turned his car around in order to return to
Mandurriao. At that moment he heard gunshots. He stopped and again turned his car in the direction
where shots had emanated. A few moments later, Patrolman Castro came into view. He was running.
He asked Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and
Trespeces lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that
Jabatan was dead.
Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department,
conducted an autopsy on the remains of Patrolman Jabatan. He found:
(1) Contusion on left eyebrow.
(2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed
diagonally downward to the right, perforating the left upper lobe of the lungs through
and through, bitting the left pulmonary artery and was recovered at the right thoracic
cavity; both thoracic cavity was full of blood.
Cause of death: Shock, hemorrhage, secondary to bullet wound.
Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning of
January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A
and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he
found that six of his fighting cocks were missing. Each coop contained six cocks. The coop was
made of bamboo and wood with nipa roofing. Each coop had a door which was locked by means of
nails. The coops were located at the side of his house, about two meters therefrom.
Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives
came to his house together with the police photographer who took pictures of the chicken coops.
The six roosters were valued at one hundred pesos each. Two days later, he was summoned to the
police station at Mandurriao to identify a rooster which was recovered somewhere at the airport. He
readily identified it as one of the six roosters which was stolen from his chicken coop (Exh. B).

Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating
circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public
authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was
dismissed as to him.
On February 2, 1967, after the prosecution had rested its case and before the defense had
commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The record
does not show that he has been apprehended.
The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19,
1967 when it was read to them in court. They signed at the bottom of the last page of the decision.
There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from jail
(See Sec. 6, Rule 120, Rules of Court).
However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla.
Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed.
His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and
Brillantes will be considered.
In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the
taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on
the occasion of the robbery" within the purview of article 294 of the Revised Penal Code.
In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the
one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was
allegedly drunk. Through their counsel de oficio, they further contend that the taking of roosters was
theft and, alternatively, that, if it was robbery, the crime could not be robbery with homicide because
the robbery was already consummated when Jabatan was killed.
After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who
shot policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's
declaration that he was driving the truck at the time that Jaranilla shot Jabatan.
The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was
responsible for its preservation. He had the obligation to return it to his sister in the same condition
when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he
allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a
truck.
The theory of the defense may be viewed from another angle. If, according to the appellants,
Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that circumstance
would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated,
Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could
not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot

accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must
have been a sober person like Jaranilla.
Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was
Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory
that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible.
Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters
from their coop or cages in the yard of Baylon's house violence against or intimidation of persons
was employed. Hence, article 294 of the Revised Penal Code cannot be invoked.
Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery
in an inhabited house (casa habitada), public building or edifice devoted to worship. The coop was
not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the
Revised Penal Code.
Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the
six roosters is covered by article 302 of the Revised Penal Code which reads:
ART. 302. Robbery in an uninhabited place or in private building.Any robbery committed in an
uninhabited place or in a building other than those mentioned in the first paragraph of article 299, if
the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium
and maximum periods provided that any of the following circumstances is present:
1. If the entrance has been effected through any opening not intended for entrance or
egress.
2. If any wall, roof, floor or outside door or window has been broken.
3. If the entrance has been effected through the use of false keys, picklocks or other
similar tools.
4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has
been broken.
5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has
been removed, even if the same be broken open elsewhere.
xxx xxx xxx
In this connection, it is relevant to note that there is an inaccuracy in the English translation of article
302. The controlling Spanish original reads:
ART. 302. Robo en lugar no habitado o edificio particular.El robo cometido en un
lugar no habitado o en un edificio que no sea de los comprendidos en el parrafo
primero del articulo 299, ... . (Tomo 26, Leyes Publicas 479).

The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be
confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised Penal
Code, which is the translation of despoblado and which is different from the term lugar no habitado in
article 302. The term lugar no habitado is the antonym of casa habitada (inhabited house) in article
299.
One essential requisite of robbery with force upon things under Articles 299 and 302 is that the
malefactor should enter the building or dependency, where the object to be taken is found. Articles
299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar
no habitado o edificio). If the culprit did not enter the building, there would be no robbery with force
upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).
Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue,
Manila and removed forty watches therefrom, the crime was theft and not robbery because he did
not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G.
567, per Montemayor, J., who later became a member of this Court). *
In the instant case, the chicken coop where the six roosters were taken cannot be considered a
building within the meaning of article 302. Not being a building, it cannot be said that the accused
entered the same in order to commit the robbery by means of any of the five circumstances
enumerated in article 302.
The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing
any structure not mentioned in article 299 (meaning not an "inhabited house or public building or
edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of
personal property. As thus construed, a freight car used for the shipment of sugar was considered a
private building. The unnailing of a strip of cloth nailed over the door, the customary manner of
sealing a freight car, was held to constitute breaking by force within the meaning of article 512, now
article 302. (U.S. vs. Magsino, 2 Phil. 710).
The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a
railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car,
does not commit robbery. He is guilty of theft because a railroad car is neither a house nor a
building within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish
Penal Code. Article 302 refers to houses or buildings which, while not actually inhabited, are
habitable. Thus, a pig sty is not a building within the meaning of article 302. The stealing of hogs
from a pig sty is theft and not robbery, although the culprit breaks into it. Article 302 refers to
habitable buildings. (Guevara, Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo
Codigo Penal 636-7, 642, which in turn cites the decisions of the Spanish Supreme Court dated
March 2, 1886 and April 25, 1887). **
As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the
dialect as tangkalor kulungan, is about five yards long, one yard wide and one yard high. It has
wooden stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of
average height like Baylon. It is divided into six compartments or cages. A compartment has an area
of less than one cubic yard. A person cannot be accommodated inside the cage or compartment. It

was not intended that a person should go inside that compartment. The taking was effected by
forcibly opening the cage and putting the hands inside it to get the roosters.
Therefore, the taking of the six roosters from their coop should be characterized as theft and not
robbery. The assumption is that the accused were animated by single criminal impulse. The conduct
of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single
offense of theft. Thus, it was held that the taking of two roosters in the same place and on the same
occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of
Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320;
People vs. Villanueva, 49 O.G. 5448, L-10239, August 7, 1953).
Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the
commission of the theft. The accused intentionally sought the cover of night and used a motor
vehicle so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660;
People vs. Gardon, 104 Phil. 372).
Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of
recidivism which was alleged in the information. They admitted their previous convictions for theft
(130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).
The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its
minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed in
its maximum period because only aggravating circumstances are present (Art. 64[3], Revised Penal
Code).
Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled to
an indeterminate sentence (Sec. 2, Act No. 4103).
With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the
prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer. The killing
was homicide because it was made on the spur of the moment. The treacherous mode of attack was
not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs.
Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).
The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting.
He was wearing his uniform. The killing should be characterized as a direct assault (atentado) upon
an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses
resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People vs.
Lojo, Jr., 52 Phil. 390).
The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla,
Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is
shown by the manner in which they perpetrated the theft. They went to the scene of the crime
together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the
getaway truck driven by Gorriceta.

The theft was consummated when the culprits were able to take possession of the roosters. It is not
an indispenable element of theft that the thief carry, more or less far away, the thing taken by him
from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38 Phil.
754).
It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or
frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no
evidence to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that
they were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo
did not do anything when Jabatan approached the right side of the truck and came in close proximity
to Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 5355 tsn). Mere presence at the scene of the crime does not necessarily make a person a co-principal
thereof.
Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness
stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an
admission of guilt.
The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on
the occasion when the accused took his chickens under the house. It is distinguishable from
the People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by
the Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on
the occasion of the robbery. As already noted, theft, not robbery, was committed in this case.
The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493
where the homicide committed by a member of the band was not a part of the common plan to
commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with
homicide. The others were convicted of robbery only.
There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in
the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed.
Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's
death. Their complicity in the homicide committed by Jaranilla has not been established.
WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco
Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of
reasonable doubt.
As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced
to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two
(2) months ofprision correccional as maximum and (b) ordered to indemnify solidarily the
complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay
one-third of the costs.

As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of
authority, trial court should render a new judgment consistent with this opinion (See Sec. 19, Art. IV,
Constitution).
So ordered.
G.R. No. 109266 December 2, 1993
MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.
The Solicitor General for the People of the Philippines.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the Resolution dated
March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis Garchitorena of the
Sandiganbayan, disqualified from acting in said criminal case; and (b) the Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp. 2-35 and pp. 3694).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with violation of Section
3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly
committed by her favoring "unqualified" aliens with the benefits of the Alien Legalization Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R. No. 99289-99290
(Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with Criminal Case No.
16698 on the ground that said case was intended solely to harass her as she was then a presidential candidate. She
alleged that this was in violation of Section 10, Article IX-C of the Constitution which provides that "(b)ona
fide candidates for any public office shall be free from any form of harassment and discrimination." The petition was
dismissed on January 13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which motion was set
for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is a member, set
the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a pending motion for
inhibition, and that petitioner intended to file a motion for a bill of particulars (Rollo, pp. 43-44).
On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the arraignment (Rollo, p. 45).

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The motion stated that
while the information alleged that petitioner had approved the application or legalization of "aliens" and gave them
indirect benefits and advantages it lacked a list of the favored aliens. According to petitioner, unless she was
furnished with the names and identities of the aliens, she could not properly plead and prepare for trial.
On November 12, 1992 and upon motion of petitioner in G.R.
No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan (First Division) to
reset the arraignment to a later date and to dispose of the two incidents pending before it (Re: disqualification of
Presiding Justice Garchitorena and the motion for the bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated categorically that
they would file only one amended information against petitioner.
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March 11, 1993, denying
the motion for his disqualification (Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32 Amended
Informations and ordering petitioner to post the corresponding bail bonds within ten days from notice (Rollo, pp. 165185). Petitioner's arraignment on the 32 Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March 25, 1993,
ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case until the question of his
disqualification is finally resolved by this Court and from enforcing the resolution dated March 11, 1993, ordering
petitioner to post bail bonds for the 32 Amended Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is letter in the July 29,
1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the conclusions he
has subconsciously drawn in his public statements . . . when he sits in judgment on the merits of the case . . ." (Rollo,
pp. 16-17).
The letter in question was written in response to an item in Teodoro Benigno's column in the July 22, 1992 issue of
the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-departure order against
petitioner. Benigno wrote that said order reflected a "perverse morality" of the Sandiganbayan and the lack of "legal
morality" of its Presiding Justice, thus:
I cannot, for example accept the legal morality of Sandiganbayan Justice Francis Garchitorena who
would stop Miriam Defensor Santiago from going abroad for a Harvard scholarship because of graft
charges against her. Some of the most perfidious Filipinos I know have come and gone, left and
returned to these shores without Mr. Garchitorena kicking any kind of rumpus. Compared to the
peccadilloes of this country's outstanding felons, what Miriam is accused of is kindergarten stuff.
The Sandiganbayan Supremo got a lot of headlines for stopping Miriam but I contend this is the
kind of perverse morality we can do without (Rollo, p. 156).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads as follows:
(c) Mrs. Santiago has never informed any court where her cases are pending of her intention to
travel, whether the Regional Trial Court where she is charged with soliciting donations from people
transacting with her office at Immigration or before the Sandiganbayan where she is charged with
having favored unqualified aliens with the benefits of the Alien Legalization Program nor even the
Supreme Court where her petition is still pending (Rollo, p. 158).
In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena that petitioner had
been charged before the Sandiganbayan "with having favored unqualified aliens with the benefits of the Alien
Legalization Program."
The statement complained of was just a restatement of the Information filed against petitioner in Criminal Case No.
16698 in connection with which the hold-departure order was issued. Said Information specified the act constituting
the offense charged, thus:
That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila,
Philippines, and within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago,
being then the Commissioner of the Commission on Immigration and Deportation, with evident bad
faith and manifest partiality, did then and there willfully, unlawfully and criminally approve the
application for legalization of aliens who arrived in the Philippines after January 1, 1984 in violation
of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same,
thereby causing undue injury to the government and giving unwarranted benefits and advantages
to said aliens in the discharge of the official and administrative functions of said accused (Rollo, p.
36).
It appears that petitioner tried to leave the country without first securing the permission of the Sandiganbayan,
prompting it to issue the hold-departure order which Benigno viewed as uncalled for. The letter of Presiding Justice
Garchitorena, written in defense of the dignity and integrity of the Sandiganbayan, merely stated that all persons
facing criminal charges in court, with no exception, have to secure permission to leave the country. Nowhere in the
letter is the merit of the charge against petitioner ever touched. Certainly, there would have been no occasion for the
letter had Benigno not written his diatribe, unfair at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan sits in three
divisions with three justices in each division. Unanimity among the three members is mandatory for arriving at any
decision of a division (P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan thus renders baseless
petitioner's fear of prejudice and bias on the part of Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA
688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process were violated by reason of the delay in the
termination of the preliminary investigation. According to her, while the offense was allegedly committed "on or before
October 17, 1988", the information was filed only on May 9, 1991 and the amended informations on December 8,
1992 (Rollo, p. 14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an
unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues
involved therein.
In the case at bench, there was a continuum of the investigatory process but it got snarled because of the complexity
of the issues involved. The act complained of in the original information came to the attention of the Ombudsman only

when it was first reported in the January 10, 1989 issue of the Manila Standard. Immediately thereafter, the
investigatory process was set in motion. The investigation was first assigned to Special Prosecutor Gualberto dela
Llana but on request of petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela
Llana but on request of petitioner herself the investigation was re-assigned to the Office of the Deputy Ombudsman
for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft resolution for the filing of the
charges on March 29, 1990. The draft resolution had to undergo the hierarchy of review, normal for a draft resolution
with a dissenting vote, until it reached the Ombudsman in March 1991.
We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos.
99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary investigation
and the filing of the information against her in those petitions. a piece-meal presentation of issues, like the splitting of
causes of action, is self-defeating.
Petitioner next claims that the Amended Informations did not charge any offense punishable under Section 3 (e) of
R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and
that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for
legalization of spouses and unmarried, minor children of "qualified aliens" even though they had arrived in the
Philippines after December 31, 1983. she concludes that the Sandiganbayan erred in not granting her motion to
quash the informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People v. Supnad, 7
SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines
after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and manifest partiality in the execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under Executive Order No. 324, that petitioner merely
followed in good faith the policy adopted by the Board of Commissioners and that the aliens were spouses or
unmarried minor children of persons qualified for legalization of stay, are matters of defense which she can establish
at the trial.
Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue injury to any party,
including the Government," there are two ways of violating Section 3 (e) of R.A. No. 3019. These are: (a) by causing
undue injury to any party, including the Government; and (b) by giving any private party any unwarranted benefit,
advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:
The use of the distinctive term "or" connotes that either act qualifies as a violation of Section 3 (a).
In other words the act of giving any private party any unwarranted benefit, advantage or preference

is not an indispensable element of the offense of "causing any undue injury to any party" as
claimed by petitioners although there may be instances where both elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the allegation in the petition that the public prosecutors filed 32
Amended Informations against petitioner, after manifesting to the Sandiganbayan that they would only file one
amended information (Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the motion to
admit the 32 Amended Informations, the splitting of the original information (Rollo, pp. 127-129). In the furtherance of
justice, we therefore proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with
vigor in her petition.
We find that, technically, there was only one crime that was committed in petitioner's case, and hence, there should
only be one information to be file against her.
The 32 Amended Informations charge what is known as delito continuado or "continued crime" and sometimes
referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the concept ofdelito
continuado has been a vexing problem in Criminal Law difficult as it is to define and more difficult to apply.
According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed during a period
of time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more
violations of the same penal provisions are united in one and same instant or resolution leading to the perpetration of
the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is only one
crime in the mind of the perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and
Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal intent or resolution (Criminal
Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting only one offense the following cases:
(1) The theft of 13 cows belonging to two different owners committed by the accused at the same
time and at the same period of time (People v. Tumlos, 67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different owners from the same coop and at the same
period of time (People v. Jaranillo, 55 SCRA 563 [1974] ).
(3) The theft of two roosters in the same place and on the same occasion (People v. De Leon, 49
Phil. 437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer every time he collects veteran's
benefits on behalf of a client, who agreed that the attorney's fees shall be paid out of said benefits
(People v. Sabbun, 10 SCRA 156 [1964] ). The collection of the legal fees were impelled by the
same motive, that of collecting fees for services rendered, and all acts of collection were made
under the same criminal impulse (People v. Lawas, 97 Phil. 975 [1955] ).
On the other hand, we declined to apply the concept to the following cases:

(1) Two estafa cases, one of which was committed during the period from January 19 to December
1955 and the other from January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961] ). The
said acts were committed on two different occasions.
(2) Several malversations committed in May, June and July, 1936, and falsifications to conceal said
offenses committed in August and October 1936. The malversations and falsifications "were not the
result of only one purpose or of only one resolution to embezzle and falsify . . ." (People v. Cid, 66
Phil. 354 [1938] ).
(3) Two estafa cases, one committed in December 1963 involving the failure of the collector to turn
over the installments for a radio and the other in June 1964 involving the pocketing of the
installments for a sewing machine (People v. Ledesma, 73 SCRA 77 [1976] ).
(4) 75 estafa cases committed by the conversion by the agent of collections from customers of the
employer made on different dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied to crimes
penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up claims for war
veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless the latter
provide the contrary. Hence, legal principles developed from the Penal Code may be applied in a supplementary
capacity to crimes punished under special laws.
The question of whether a series of criminal acts over a period of time creates a single offense or separate offenses
has troubled also American Criminal Law and perplexed American courts as shown by the several theories that have
evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of several things,
whether belonging to the same or different owners, at the same time and place constitutes but one larceny. Many
courts have abandoned the "separate larceny doctrine," under which there is a distinct larceny as to the property of
each victim. Also abandoned was the doctrine that the government has the discretion to prosecute the accused or
one offense or for as many distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule, look at the commission of the different criminal acts as but
one continuous act involving the same "transaction" or as done on the same "occasion" (State v. Sampson, 157 Iowa
257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would violate the constitutional guarantee against putting a man in
jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is a
humane rule, since if a separate charge could be filed for each act, the accused may be sentenced to the penitentiary
for the rest of his life (Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged petitioner with performing a single criminal act that of her
approving the application for legalization of aliens not qualified under the law to enjoy such privilege.
The original information also averred that the criminal act : (i) committed by petitioner was in violation of a law
Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done on a single
day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of the original information, except that instead of
the word "aliens" in the original information each amended information states the name of the individual whose stay
was legalized.
At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they would file only one
amended information embodying the legalization of stay of the 32 aliens. As stated in the Order dated November 12,
1992 of the Sandiganbayan (First Division):
On the matter of the Bill of Particulars, the prosecution has conceded categorically that the
accusation against Miriam Defensor Santiago consists of one violation of the law represented by
the approval of the applications of 32 foreign nationals for availment (sic) of the Alien Legalization
Program. In this respect, and responding directly to the concerns of the accused through counsel,
the prosecution is categorical that there will not be 32 accusations but only one . . . (Rollo, p. 59).
The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e., on or about
October 17, 1988. The strong probability even exists that the approval of the application or the legalization of the stay
of the 32 aliens was done by a single stroke of the pen, as when the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the Government
suffered a single harm or injury. The Sandiganbayan in its Order dated November 13, 1992 stated as follows:
. . . Equally, the prosecution has stated that insofar as the damage and prejudice to the government
is concerned, the same is represented not only by the very fact of the violation of the law itself but
because of the adverse effect on the stability and security of the country in granting citizenship to
those not qualified (Rollo, p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First
Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal Case No. 16698 is MODIFIED in the
sense that the Office of the Special Prosecutor of the Office of the Ombudsman is directed to consolidate the 32
Amended Informations (Criminal Cases Nos. 18371 to 18402) into one information charging only one offense under
the original case number, i.e., No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is
LIFTED insofar as to the disqualification of Presiding Justice Francis Garchitorena is concerned.
SO ORDERED.
SANTIAGO PAERA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
DECISION

CARPIO, J.:

The Case
This resolves the petition for review[1] of the ruling[2] of the Regional Trial Court of Dumaguete City[3] (RTC) finding petitioner
Santiago Paera guilty of three counts of Grave Threats, in violation of Article 282 of the Revised Penal Code (RPC).
The Facts
As punong barangay of Mampas, Bacong, Negros Oriental, petitioner Santiago Paera (petitioner) allocated his constituents' use of
communal water coming from a communal tank by limiting distribution to the residents of Mampas, Bacong. The tank sits on a land
located in the neighboring barangay of Mampas, Valencia and owned by complainant Vicente Darong (Vicente), father of
complainant Indalecio Darong (Indalecio). Despite petitioner's scheme, Indalecio continued drawing water from the tank. On 7 April
1999, petitioner reminded Indalecio of the water distribution scheme and cut Indalecio's access.
The following day, petitioner inspected the tank after constituents complained of water supply interruption. Petitioner discovered a

tap from the main line which he promptly disconnected. To stem the flow of water from the ensuing leak, petitioner, using a
borrowed bolo, fashioned a wooden plug. It was at this point when Indalecio arrived. What happened next is contested by the
parties.
According to the prosecution, petitioner, without any warning, picked-up his bolo and charged towards Indalecio, shouting
"Patyon tikaw!" (I will kill you!). Indalecio ran for safety, passing along the way his wife, Diosetea Darong (Diosetea) who had
followed him to the water tank. Upon seeing petitioner, Diosetea inquired what was the matter. Instead of replying, petitioner
shouted "Wala koy gipili, bisag babaye ka, patyon tikaw!" ("I don't spare anyone, even if you are a woman, I will kill you!").
Diosetea similarly scampered and sought refuge in the nearby house of a relative. Unable to pursue Diosetea, petitioner turned his
attention back to Indalecio. As petitioner chased Indalecio, he passed Vicente, and, recognizing the latter, repeatedly thrust his bolo
towards him, shouting "Bisaggulang ka, buk-on nako imo ulo!" ("Even if you are old, I will crack open your skull!").
According to petitioner, however, it was Indalecio who threatened him with a bolo, angrily inquiring why petitioner had severed his
water connection. This left petitioner with no choice but to take a defensive stance using the borrowed bolo, prompting Indalecio to
scamper.
Except for Vicente, who was seriously ill, the Darongs testified during trial. Petitioner was the defense's lone witness.
The Ruling of the Municipal Circuit Trial Court
The 7th Municipal Circuit Trial Court of Valencia-Bacong, Negros Oriental (MCTC) found petitioner guilty as charged, ordering
petitioner to serve time and pay fine for each of the three counts. [4] The MCTC found the prosecution evidence sufficient to prove
the elements of Grave Threats under Article 282, noting that the Darongs' persistent water tapping contrary to petitioner's directive
"must have angered" petitioner, triggering his criminal behavior.[5] The MCTC rejected petitioner's defense of denial as "self-serving
and uncorroborated."[6]
Petitioner appealed to the RTC, reiterating his defense of denial.
Ruling of the Regional Trial Court
The RTC affirmed the MCTC, sustaining the latter's finding on petitioner's motive. The RTC similarly found unconvincing petitioner's
denial in light of the "clear, direct, and consistent" testimonies of the Darongs and other prosecution witnesses. [7]
Hence, this appeal.
Abandoning his theory below, petitioner now concedes his liability but only for a single count of the "continued complex crime" of
Grave Threats. Further, petitioner prays for the dismissal of the case filed by Vicente as the latter's failure to testify allegedly
deprived him of his constitutional right to confront witnesses. Alternatively, petitioner claims he is innocent of the charges for
having acted in defense of the property of strangers and in lawful performance of duty, justifying circumstances under paragraphs 3
and 5, Article 11 of the RPC.[8]
In its Comment, the Office of the Solicitor General (OSG) finds merit in petitioner's concession of liability for the single count of the
"continued complex crime" of Grave Threats. The OSG, however, rejects petitioner's prayer for the dismissal of Vicente's complaint,
arguing that petitioner's guilt was amply proven by the prosecution evidence, not to mention that petitioner failed to raise this issue
during trial. Further, the OSG finds the claim of defense of stranger unavailing for lack of unlawful aggression on the part of the
Darongs. Lastly, the OSG notes the absence of regularity in petitioner's performance of duty to justify his conduct. [9]
The Issue
The question is whether petitioner is guilty of three counts of Grave Threats.
The Ruling of the Court
We rule in the affirmative, deny the petition and affirm the RTC.
Due Process Mischief in Raising
New Issues on Appeal
Although uncommented, petitioner's adoption of new theories for the first time before this Court has not escaped our attention.
Elementary principles of due process forbid this pernicious procedural strategy - it not only catches off-guard the opposing party, it
also denies judges the analytical benefit uniform theorizing affords. Thus, courts generally refuse to pass upon freshly raised
theories.[10] We would have applied this rule here were it not for the fact that petitioner's liberty is at stake and the OSG partially
views his cause with favor.
Petitioner Liable for Three Counts
of Grave Threats
To limit his liability to one count of Grave Threats, petitioner tries to fit the facts of the case to the concept of "continued crime"
(delito continuado) which envisages a single crime committed through a series of acts arising from one criminal intent or resolution.
[11]
To fix the penalty for his supposed single continued crime, petitioner invokes the rule for complex crime under Article 48 of the
RPC imposing the penalty for the most serious crime, applied in its maximum period.
The nature of the crime of Grave Threats and the proper application of the concepts of continued and complex crimes preclude the

adoption of petitioner's theory.

Article 282 of the RPC holds liable for Grave Threats "any person who shall threaten another with the infliction upon the person x x
x of the latter or his family of any wrong amounting to a crime[.]" This felony is consummated "as soon as the threats come to the
knowledge of the person threatened." [12]
Applying these parameters, it is clear that petitioner's threat to kill Indalecio and Diosetea and crack open Vicente's skull are
wrongs on the person amounting to (at the very least) homicide and serious physical injuries as penalized under the RPC. These
threats were consummated as soon as Indalecio, Diosetea, and Vicente heard petitioner utter his threatening remarks. Having
spoken the threats at different points in time to these three individuals, albeit in rapid succession, petitioner incurred three separate
criminal liabilities.
Petitioner's theory fusing his liability to one count of Grave Threats because he only had "a single mental resolution, a single
impulse, and single intent"[13] to threaten the Darongs assumes a vital fact: that he had foreknowledge of Indalecio, Diosetea, and
Vicente's presence near the water tank in the morning of 8 April 1999. The records, however, belie this assumption. Thus, in the
case of Indalecio, petitioner was as much surprised to see Indalecio as the latter was in seeing petitioner when they chanced upon
each other near the water tank. Similarly, petitioner came across Diosetea as he was chasing Indalecio who had scampered for
safety. Lastly, petitioner crossed paths with Vicente while running after Indalecio. Indeed, petitioner went to the water tank not to
execute his "single intent" to threaten Indalecio, Diosetea, and Vicente but to investigate a suspected water tap. Not having known
in advance of the Darongs' presence near the water tank at the time in question, petitioner could not have formed any intent to
threaten any of them until shortly before he inadvertently came across each of them.
The importance of foreknowledge of a vital fact to sustain a claim of "continued crime" undergirded our ruling in Gamboa v. Court
of Appeals.[14] There, the accused, as here, conceded liability to a lesser crime - one count of estafa, and not 124 as charged theorizing that his conduct was animated by a single fraudulent intent to divert deposits over a period of several months. We
rejected the claim [f]or the simple reason that [the accused] was not possessed of any fore-knowledge of any deposit by any customer on any day or
occasion and which would pass on to his possession and control. At most, his intent to misappropriate may arise only when he
comes in possession of the deposits on each business day but not in futuro, since petitioner company operates only on a day-to-day
transaction. As a result, there could be as many acts of misappropriation as there are times the private respondent abstracted
and/or diverted the deposits to his own personal use and benefit. [15] x x x x (Emphasis supplied)
Similarly, petitioner's intent to threaten Indalecio, Diosetea, and Vicente with bodily harm arose only when he chanced upon each of
his victims.
Indeed, petitioner's theory holds water only if the facts are altered - that is, he threatened Indalecio, Diosetea, and Vicente at
the same place and at the same time. Had this been true, then petitioner's liability for one count of Grave Threats would have
rested on the same basis grounding our rulings that the taking of six roosters[16] or 13 cows[17] found at the same place and taken at
the same time results in the commission of only one count of theft because [t]here is no series of acts committed for the accomplishment of different purposes, but only of one which was consummated, and
which determines the existence of only one crime. The act of taking the roosters [and heads of cattle] in the same place and on
thesame occasion cannot give rise to two crimes having an independent existence of their own, because there are not two distinct
appropriations nor two intentions that characterize two separate crimes.[18] (Emphasis in the original)
Having disposed of petitioner's theory on the nature of his offense, we see no reason to extensively pass upon his use of the notion
of complex crime to avail of its liberal penalty scheme. It suffices to state that under Article 48 of the RPC, complex crimes
encompass either (1) an act which constitutes two or more grave or less grave offenses; or (2) an offense which is a necessary
means for committing another[19] and petitioner neither performed a single act resulting in less or less grave crimes nor committed
an offense as a means of consummating another.
The Prosecution Proved the Commission
of Grave Threats Against Vicente
We find no reversible error in the RTC's affirmance of the MCTC's ruling, holding petitioner liable for Grave Threats against Vicente.
The prosecution's evidence, consisting of the testimonies of Indalecio, Diosetea and two other corroborating
witnesses,20 indisputably show petitioner threatening Vicente with death. [21] Vicente's inability to take the stand, for documented
medical reason,[22] does not detract from the veracity and strength of the prosecution evidence. Petitioner's claim of denial of his
constitutional right to confront witnesses is untenable as he had every opportunity to cross-examine the four prosecution witnesses.
No law requires the presentation of the private complainant as condition for finding guilt for Grave Threats, especially if, as here,
there were other victims and witnesses who attested to its commission against the non-testifying complainant. Significantly,
petitioner did not raise Vicente's non-appearance as an issue during the trial, indicating that he saw nothing significant in the
latter's absence.
No Justifying Circumstances Attended Petitioner's
Commission of Grave Threats
There is likewise no merit in petitioner's claim of having acted to "defend[] and protect[] the water rights of his constituents" in the
lawful exercise of his office as punong barangay.[23] The defense of stranger rule under paragraph 3, Article 11 of the RPC, which
negates criminal liability of -

[a]nyone who acts in the defense of the person or rights of a stranger, provided that the first and second requisites mentioned in
the first circumstance of this article are present and that the person defending be not induced by revenge, resentment or other evil
motive.
requires proof of (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) absence of evil motives such as revenge and resentment. [24] None of these requisites obtain here. Not one of the
Darongs committed acts of aggression against third parties' rights when petitioner successively threatened them with bodily harm.
Indeed, all of them were performing ordinary, peaceful acts - Indalecio was standing near the water tank, Diosetea was walking
towards Indalecio and Vicente was standing in the vegetable garden a few meters away. With the element of unlawful aggression
absent, inquiry on the reasonableness of the means petitioner used to prevent or repel it is rendered irrelevant. As for the third
requisite, the records more than support the conclusion that petitioner acted with resentment, borne out of the Darongs' repeated
refusal to follow his water distribution scheme, causing him to lose perspective and angrily threaten the Darongs with bodily harm.
Lastly, the justifying circumstance of fulfillment of duty or exercise of office under the 5 th paragraph of Article 11 of the RPC lies
upon proof that the offense committed was the necessary consequence of the due performance of duty or the lawful exercise of
office.[25] Arguably, petitioner acted in the performance of his duty to "ensure delivery of basic services" [26] when he barred the
Darongs' access to the communal water tank. Nevertheless, petitioner exceeded the bounds of his office when he successively
chased the Darongs with a bladed weapon, threatening harm on their persons, for violating his order. A number of options
constituting lawful and due discharge of his office lay before petitioner [27] and his resort to any of them would have spared him from
criminal liability. His failure to do so places his actions outside of the ambit of criminally immune official conduct. Petitioner ought to
know that no amount of concern for the delivery of services justifies use by local elective officials of violence or threats of violence.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 28 November 2007 of the Regional Trial Court of Dumaguete
City, Branch 39.
SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AMADO V.

HERNANDEZ, ET AL.,Defendants-Appellants.
RESOLUTION
CONCEPCION, J.:
This refers to the petition for bail filed by Defendant Appellant Amado Hernandez on
June 26, 1954, and renewed on December 22, 1955. A similar petition, filed on
December 28, 1953, had been denied by a resolution of this court dated February 2,
1954. Although not stated in said resolution, the same was due mainly to these
circumstances:
The prosecution maintains that Hernandez is charged with, and
has been convicted of, rebellion complexed with murders, arsons and robberies, for
which the capital punishment, it is claimed, may be imposed, although the lower
court sentenced him merely to life imprisonment. Upon the other hand, the defense
contends, among other things, that rebellion cannot be complexed with murder,
arson, or robbery. Inasmuch as the issue thus raised had not been previously settled
squarely, and this court was then unable, as yet, to reach a definite conclusion
thereon, it was deemed best not to disturb, for the time being, the course of action
taken by the lower court, which denied bail to the movant. After mature
deliberation, our considered opinion on said issue is as follows:
chanroblesv irtuallawlibrary

chanroblesvirt uallawlibrary

The first two paragraphs of the amended information in this case read:

chanroblesv irtuallawlibrary

The undersigned accuses (1) Amado V. Hernandez alias Victor alias Soliman alias
Amado alias AVH alias Victor Soliman, (2) Guillermo Capadocia alias Huan Bantiling
alias Cap alias G. Capadocia, (3) Mariano P. Balgos alias Bakal alias Tony Collantes
alias Bonifacio, (4) Alfredo Saulo alias Elias alias Fred alias A.B.S. alias A.B., (5)
Andres Baisa, Jr. alias Ben alias Andy (6) Genaro de la Cruz alias Gonzalo alias Gorio
alias Arong, (7) Aquilino Bunsol alias Anong, (8) Adriano Samson alias Danoy, (9)
Juan J. Cruz alias Johnny 2, alias Jessie Wilson alias William, (10) Jacobo Espino, (11)
Amado Racanday, (12) Fermin Rodillas, and (13) Julian Lumanog alias Manue, of the
crime of rebellion with multiple murder, arsons and robberies committed as
follows:
chanroblesvirt uallawlibrary

That on or about March 15, 1945, and for some time before the said date and
continuously thereafter until the present time, in the City of Manila, Philippines, and
the place which they had chosen as the nerve center of all their rebellious activities
in the different parts of the Philippines, the said accused, conspiring, confederating,
and cooperating with each other, as well as with the thirty-one
(31) Defendants charged in criminal cases Nos. 14071, 14082, 14270, 14315, and
14344 of the Court of First Instance of Manila (decided May 11, 1951) and also with
others whose whereabouts and identities are still unknown, the said accused and
their co-conspirators, being then officers and/or members of, or otherwise
associated with the Congress of Labor Organizations (CLO) formerly known as the
Committee on Labor Organization (CLO), an active agency, organ, and
instrumentality of the Communist Party of the Philippines (P.K.P.), with central offices
in Manila and chapters and affiliated or associated labor unions and other mass
organizations in different places in the Philippines, and as such agency, organ, and
instrumentality, fully cooperates in, and synchronizes its activities with the
rebellious activities of the Hukbong Magpalayang Bayan, (H.M.B.) and other organs,
agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.) to
thereby assure, facilitate, and effect the complete and permanent success of the
armed
rebellion
against
the
Republic
of
the
Philippines,
as
the
herein Defendants and their co-conspirators have in fact synchronized the activities
of the CLO with the rebellious activities of the HMB and other agencies, organs and
instrumentalities of the Communist Party of the Philippines and have otherwise
master- minded or promoted the cooperative efforts between the CLO and HMB and
other agencies, organs, and instrumentalities of the P.K.P. in the prosecution of the
rebellion against the Republic of the Philippines, and being then also high ranking
officers and/or members of, or otherwise affiliated with, the Communist Party of the
Philippines (P.K.P.), which is now actively engaged in an armed rebellion against the
Government of the Philippines through acts therefor committed and planned to be
further committed in Manila and other places in the Philippines, and of which party
the Hukbong Mapagpalaya ng Bayan (HMB), otherwise or formerly known as the
Hukbalahaps (Huks), is the armed force, did then and there willfully, unlawfully and
feloniously help, support, promote, maintain, cause, direct and/or command the
Hukbong Mapagpalaya ng Bayan (HMB) or the Hukbalahaps (Huks) to rise
publicly and take arms against the Republic of the Philippines, or otherwise
participate in such armed public uprising, for the purpose of removing the territory
of the Philippines from the allegiance to the government and laws thereof as in fact
the said Hukbong Mapagpalaya ng Bayan or Hukbalahaps have risen publicly and
taken arms to attain the said purpose by then and there making armed raids, sorties
and ambushes, attacks against police, constabulary and army detachments as well
as innocent civilians, and as a necessary means to commit the crime of rebellion, in
connection therewith and in furtherance thereof, have then and there committed
acts of murder, pillage, looting, plunder, arson, and planned destruction of private
and public property to create and spread chaos, disorder, terror, and fear so as to
facilitate the accomplishment of the aforesaid purpose, as follows, to wit:
chanroblesvirt uallawlibrary

Then follows a description of the murders, arsons and robberies allegedly

perpetrated by the accused as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof.
Article 48 of the Revised Penal Code provides that:

chanroblesvirt uallawlibrary

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.
It is obvious, from the language of this article, that the same presupposes the
commission of two (2) or more crimes, and, hence, does not apply when the culprit
is guilty of only one crime.
Article 134 of said code reads:

chanroblesvirt uallawlibrary

The crime of rebellion or insurrection is committed by rising publicly and taking

arms against the Government for the purpose of removing from the allegiance to
said Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, or of depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.
Pursuant to Article 135 of the same code any person, merely participating or
executing the commands of others in a rebellion shall suffer the penalty of prision
mayor in its minimum period.
The penalty is increased to prision mayor and a fine not to exceed P20,000 for any
person who promotes, maintains or heads a rebellion or insurrection or who, while
holding any public office or employment, takes part therein:
chanroblesv irtuallawlibrary

1. engaging in war against the forces of the government,

2. destroying property, or
3. committing serious violence,
4. exacting contributions or
5. diverting public funds from the lawful purpose for which they have been
appropriated.
Whether performed singly or collectively, these five (5) classes of acts constitute
only one offense, and no more, and are, altogether, subject to only one penalty
prision mayor and a fine not to exceed P20,000. Thus for instance, a public officer
who assists the rebels by turning over to them, for use in financing the uprising, the
public funds entrusted to his custody, could neither be prosecuted for malversation
of such funds, apart from rebellion, nor accused and convicted of the complex crime
of rebellion with malversation of public funds. The reason is that such malversation
is inherent in the crime of rebellion committed by him. In fact, he would not be
guilty of rebellion had he not so misappropriated said funds. In the imposition, upon
said public officer, of the penalty for rebellion it would even be improper to consider
the aggravating circumstance of advantage taken by the offender of his public
position, this being an essential element of the crime he had perpetrated. Now,
then, if the office held by said offender and the nature of the funds malversed by
him cannot aggravate the penalty for his offense, it is clear that neither may it
worsen the very crime committed by the culprit by giving rise, either to an
independent crime, or to a complex crime. Needless to say, a mere participant in
the rebellion, who is not a public officer, should not be placed at a more
disadvantageous position than the promoters, maintainers or leaders of the
movement, or the public officers who join the same, insofar as the application of
Article 48 is concerned.

One of the means by which rebellion may be committed, in the words of said Article
135, is by engaging in war against the forces of the government and committing
serious violence in the prosecution of said war. These expressions imply
everything that war connotes, namely;
resort to arms, requisition of property and
services, collection of taxes and contributions, restraint of liberty, damage to
property, physical injuries and loss of life, and the hunger, illness and unhappiness
that war leaves in its wake except that, very often, it is worse than war in the
international sense, for it involves internal struggle, a fight between brothers, with a
bitterness and passion or ruthlessness seldom found in a contest between
strangers. Being within the purview of engaging in war and committing serious
violence, said resort to arms, with the resulting impairment or destruction of life
and property, constitutes not two or more offense, but only one crime that of
rebellion plain and simple. Thus, for instance, it has been held that the crime of
treason may be committed by executing either a single or similar intentional overt
acts, different or similar but distinct, and for that reason, it may be considered one
single continuous offense. (Guinto vs. Veluz, 77 Phil., 801, 44 Off. Gaz., 909.)
(People vs. Pacheco, 93 Phil., 521.)
chan roblesvirt ualawlibrary

Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single
crime, it follows necessarily that said acts offer no occasion for the application of
Article 48, which requires therefor the commission of, at least, two crimes. Hence,
this court has never in the past, convicted any person of the complex crime of
rebellion with murder. What is more, it appears that in every one of the cases of
rebellion published in the Philippine Reports, the Defendantswere convicted of
simple rebellion, although they had killed several persons, sometimes peace officers
(U. S. vs. Lagnason, 3 Phil., 472;
U. S. vs. Baldello, 3 Phil., 509, U. S. vs. Ayala, 6
Phil., 151;
League vs. People, 73 Phil., 155).
chan roblesv irtualawlibrary

chan roblesv irtualawlibrary

Following a parallel line are our decisions in the more recent cases of treason,
resulting from collaboration with the Japanese during the war in the Pacific. In fact,
said cases went further than the aforementioned cases of rebellion, in that the
theory of the prosecution to the effect that the accused in said treason cases were
guilty of the complex crime of treason with murder and other crimes was expressly
and repeatedly rejected therein. Thus, commenting on the decision of the Peoples
Court finding the accused in People vs. Prieto (80 Phil., 138, 45 Off. Gaz., 3329)
guilty of the crime of treason complexed by murder and physical injuries and
sentencing him to death, and on the contention of the Solicitor General that Prieto
had committed the complex crime of treason with homicide, this court, speaking
through Mr. Justice Tuason, said:
cralaw

chanroblesvirt uallawlibrary

The execution of some of the guerrilla suspects mentioned in these counts and the
infliction of physical injuries on others are not offenses separate from treason.
Under the Philippine treason law and under the United States constitution defining
treason, after which the former was patterned, there must concur both adherence to
the enemy and giving him aid and comfort. One without the other does not make
treason.
In the nature of things, the giving of aid and comfort can only be accomplished by
some kind of action. Its very nature partakes, of a deed or physical activity as
opposed to a mental operation. (Cramer vs. U.S., ante.) This deed or physical
activity may be, and often is, in itself a criminal offense under another penal statute
or provision. Even so, when the deed is charged as an element of treason it

becomes identified with the latter crime and cannot be the subject of a separate
punishment, or used in combination with treason to increase the penalty as Article
48 of the Revised Penal Code provides. Just as one cannot be punished for
possessing opium in a prosecution for smoking the identical drug, and a robber
cannot be held guilty of coercion or trespass to a dwelling in a prosecution for
robbery, because possession of opium and force and trespass are inherent in
smoking and in robbery respectively, so may not a Defendant be made liable for
murder as a separate crime or in conjunction with another offense where, as in this
case, it is averred as a constitutive ingredient of treason . Where murder or
physical injuries are charged as overt acts of treason they cannot be regarded
separately under their general denomination. (Italics supplied.)
cralaw

cralaw

Accordingly, we convicted the accused of simple treason and sentenced him to life
imprisonment.
In People vs. Labra, 81 Phil., 377, 46 Off. Gaz., Supp. No. 1, p. 159, we used the
following language:
chanroblesvirt uallawlibrary

The lower court found Appellant guilty not only of treason, but of murder, for the
killing of Tomas Abella, and, following the provisions of Article 48 of the Revised
Penal Code sentenced him to death, the maximum penalty provided by article 114.
The lower court erred in finding Appellant guilty of the murder of Tomas Abella. The
arrest and killing of Tomas Abella for being a guerilla, is alleged in count 3 of the
information, as one of the elements of the crime of treason for which Appellant is
prosecuted. Such element constitute a part of the legal basis upon
which Appellant stands convicted of the crime of treason. The killing of Tomas Abella
cannot be considered as legal ground for convicting Appellant of any crime other
than treason. The essential elements of a given crime cannot be disintegrated in
different parts, each one stand as a separate ground to convict the accused of a
different crime or criminal offense. The elements constituting a given crime are
integral and inseparable parts of a whole. In the contemplation of the law, they
cannot be used for double or multiple purposes. They can only be used for the sole
purpose of showing the commission of the crime of which they form part. The
factual complexity of the crime of treason does not endow it with the functional
ability of worm multiplication or amoeba reproduction. Otherwise, the accused will
have to face as many prosecutions and convictions as there are elements in the
crime of treason, in open violation of the constitutional prohibition against double
jeopardy. (Italics supplied.)
The same conclusion was reached in People vs. Alibotod 82 Phil., 164, 46 Off. Gaz.,
1005, despite the direct participation of the Defendant therein in the maltreatment
and killing of several persons.
In People vs. Vilo 82 Phil., 524, 46 Off. Gaz., 2517, we held:

chanroblesvirt uallawlibrary

The Peoples Court, however, erred in classifying the crime as treason with murder.
The killing of Amado Satorre and one Segundo is charged as an element of treason,
and it therefore becomes identified with the latter crime, and cannot be the subject
of a separate punishment or used in combination with treason to increase the
penalty as Article 48 of the Revised Penal Code provides. (People vs. Prieto, L-399,
45 Off. Gaz. 3329. See, also People vs. Labra, L-886, 46 Off. Gaz., [Supp. to No. 1],
159.) (Italics supplied.)

To the same effect was our decision in People vs. Roble 83 Phil., 1, 46 Off. Gaz.,
4207. We stated therein:
chanroblesvirt uallawlibrary

The court held that the facts alleged in the information is a complex crime of
treason with murders, with the result that the penalty provided for the most serious
offense was to be imposed on its maximum degree. Viewing the case from the
standpoint of modifying circumstances, the court believed that the same result
obtained. It opined that the killings were murders qualified by treachery and
aggravated by the circumstances of evident premeditation, superior strength,
cruelty, and an armed band.
We think this is error. The tortures and murders set forth in the information are
merged in and formed part of the treason. They were in this case the overt acts
which, besides traitorous intention supplied a vital ingredient in the crime. (Italics
supplied.)
The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213, had been
convicted by the Peoples Court of the crime of treason complexed with the crime
of murder and sentenced to the extreme penalty. In our decision, penned by Mr.
Justice Montemayor, we expressed ourselves as follows:
chanroblesvirt uallawlibrary

The Appellant herein was and is a Filipino citizen. His adherence to the Japanese
forces of occupation and giving them aid and comfort by acting as their spy,
undercover man, investigator, and even killer when necessary to cow and compel
the inhabitants to surrender their firearms and disclose information about the
guerrillas has been fully established. His manner of investigation and maltreatment
of some of his victims like Tereso Sanchez and Patricio Suico, was so cruel, brutal
and inhuman that it is almost unbelievable that a Filipino can commit and practice
such atrocities especially on his own countrymen. But, evidently, war, confusion and
opportunism can and do produce characters and monster unknown during peace
and normal times.
The Peoples Court found the Appellant guilty of treason complexed with murder.
The Solicitor General, however, maintains that the offense committed is simple
treason, citing the doctrine laid down by this court in the case of People vs. Prieto,
(L-399, 45 Off. Gaz., 3329) but accompanied by the aggravating circumstance under
Article 14, paragraph 21, of the Revised Penal Code, and not compensated by any
mitigating circumstance, and he recommends the imposition of the penalty of
death. We agree with the Solicitor General that on the basis of the ruling of this
court in the case of People vs. Prieto, supra, the Appellant may be convicted only a
treason, and that the killing and infliction of physical injuries committed by him may
not be separated from the crime of treason but should be regarded as acts
performed in the commission of treason, although, as stated in said case, the
brutality with which the killing or physical injuries were carried out may be taken as
an aggravating circumstance. (Italics supplied.)
and reduced the penalty from death to life imprisonment and a fine of P20,000.
Identical were the pertinent features of the case of People vs. Adlawan, 83 Phil.,
194, 46 Off. Gaz., 4299, in which, through Mr. Justice Reyes (A), we declared:
chanroblesvirt uallawlibrary

we find merit in the contention that Appellant should have not been convicted of
the so called Complex crime of treason with murder, robbery, and rape. The
killings, robbery, and raping mentioned in the information are therein alleged not as
cralaw

specific offenses but as mere elements of the crime of treason for which the
accused is being prosecuted. Being merged in and identified with the general
charged they cannot be used in combination with the treason to increase the
penalty under Article 48 of the Revised Penal Code. (People vs. Prieto, L-399,
January 29, 1948, 45 Off. Gaz., 3329.) Appellant should, therefore, be held guilty of
treason only. (Italics supplied.)
In People vs. Suralta, 85 Phil., 714, 47 Off. Gaz., 4595, the language used was:

chanroblesvirt uallawlibrary

But the Peoples Court erred in finding the Appellant guilty of the complex crime
of treason with murder, because murder was an ingredient of the crime of treason,
as we have heretofore held in several cases. (Italics supplied.)
cralaw

This was reiterated in People vs. Navea, 87 Phil., 1, 47 Off. Gaz., Supp. No. 12, p.
252:
chanroblesvirt uallawlibrary

The Solicitor General recommends that the Appellant be sentenced for the complex
crime of treason with murder. We have already ruled, however, that where, as in the
present case, the killing is charged as an element of treason, it becomes identified
with the latter crime and cannot be the subject of a separate punishment, or used in
combination with treason to increase the penalty as Article 48 of the Revised Penal
Code provides. (Italics supplied.)
The question at bar was, also, taken up in the case of Crisologo vs. People and
Villalobos (94 Phil., 477), decided on February 26, 1954. The facts and the rule
therein laid down are set forth in our unanimous decision in said case, from which
we quote:
chanroblesv irtuallawlibrary

The Petitioner Juan D. Crisologo, a captain in the USAFFE during the last world war
and at the time of the filing of the present petition a lieutenant colonel in the Armed
Forces of the Philippines, was on March 12, 1946, accused of treason under Article
114 of the Revised Penal Code in an information filed in the Peoples Court. But
before the accused could be brought under the jurisdiction of the court, he was on
January 13, 1947, indicted for violations of Commonwealth Act No. 408, otherwise
known as the Articles of War, before a military court created by authority of the
Army Chief of Staff, the indictment containing three charges, two of which, the first
and third, were those of treason consisting in giving information and aid to the
enemy leaving to the capture of USAFFE officers and men and other persons with
anti-Japanese reputation and in urging members of the USAFFE to surrender and
cooperate with the enemy, while the second was that of having certain civilians
filled in time of war. Found innocent of the first and third charges but guilty of the
second, he was on May, 8, 1947, sentenced by the military court to life
imprisonment.
With the approval on June 17, 1948, of Republic Act No. 311 abolishing the Peoples
Court, the criminal case in that court against the Petitioner was, pursuant to the
provisions of said Act, transferred to the Court of First Instance of Zamboanga and
there the charges of treason were amplified. Arraigned in that court upon the
amended information, Petitioner presented a motion to quash, challenging the
jurisdiction of the court and pleading double jeopardy because of his previous
sentence in the military court. But the court denied the motion and,
after Petitioner had pleaded not guilty, proceeded to trial, whereupon, the present
petition for certiorari and prohibition was filed in this court to have the trial judge
desist from proceeding with the trial and dismiss the case.

It is, however, claimed that the offense charged in the military court different from
that charged in the civil court and that even granting that the offense was identical
the military court had no jurisdiction to take cognizance of the same because the
Peoples Court had previously acquired jurisdiction over the case with the result that
the conviction in the court martial was void. In support of the first point, it is urged
that the amended information filed in the Court of First Instance of Zamboanga
contains overt acts distinct from those charged in the military court. But we note
that while certain overt acts specified in the amended information in the
Zamboanga court were not specified in the indictment in the court martial, they all
are embraced in the general charge of treason, which is a continuous offense and
one who commits it is not criminally liable for as many crimes as there are overt
acts, because all overt act he has done or might have done for that purpose
constitute but a single offense. (Guinto vs. Veluz, 44. Off. Gaz., 909;
People vs.
Pacheco, L-4750, promulgated July 31, 1953.) In other words, since the offense
charged in the amended information in the Court of First Instance of Zamboanga is
treason, the fact that the said information contains an enumeration of additional
ovart acts not specifically mentioned in the indictment before the military court is
immaterial since the new alleged overt acts do not in themselves constitute a new
and distinct offense from that of treason, and this court has repeatedly held that a
person cannot be found guilty of treason and at the same time also guilty of overt
acts specified in the information for treason even if those overt acts, considered
separately, are punishable by law, for the simple reason that those overt acts are
not separate offenses distinct from that of treason but constitute ingredients
thereof. (Italics supplied.)
chan

roblesv irtualawlibrary

Thus, insofar as treason is concerned, the opinion of this court, on the question
whether said crime may be complexed with murder, when the former was
committed through the latter, and it is so alleged in the information, had positively
and clearly crystalized itself in the negative as early as January 29, 1948.
We have not overlooked the decision in People vs. Labra (L-1240, decided on May
12, 1949), the dispositive part of which partly reads:
chanroblesv irtuallawlibrary

Wherefore, the verdict of guilty must be affirmed. Articles 48, 114 and 248 of the
Revised Penal Code are applicable to the offense of treason with murder. However
for lack of sufficient votes to impose the extreme penalty, the Appellant will be
sentenced to life imprisonment ..
cralaw

Although it mentions Articles 48 and 248 of the Revised Penal Code and the
offense of treason with murder, it should be noted that we affirmed therein the
action of the Peoples Court, which, according to the opening statement of our
decision, convicted Labra of treason aggravated with murder. Besides, the
applicability of said articles was not discussed in said decision. It is obvious, from a
mere perusal thereof, that this court had no intention of passing upon such
question. Otherwise, it would have explained why it did not follow the rule laid down
in the previous cases of Prieto, Labra (August 10, 1948), Alibotod, Vilo, Roble,
Delgado and Adlawan (supra), in which the issue was explicitly examined and
decided in the negative. Our continued adherence to this view in the subsequent
cases of Suralta, Navea, Pacheco and Crisologo, without even a passing reference to
the second Labra case, shows that we did not consider the same as reflecting the
opinion of the court on said question. At any rate, insofar as it suggests otherwise,

the position taken in the second Labra case must be deemed reversed by our
decisions in said cases of Suralta, Navea, Pacheco and Crisologo.
It is true that treason and rebellion are distinct and different from each other. This
does not detract, however, from the rule that the ingredients of a crime form part
and parcel thereof, and, hence, are absorbed by the same and cannot be punished
either separately therefrom or by the application of Article 48 of the Revised Penal
Code. Besides there is more reason to apply said rule in the crime of rebellion than
in that of treason, for the law punishing rebellion (Article 135, Revised Penal Code)
specifically mentions the act of engaging in war and committing serious violence
among its essential elements thus clearly indicating that everything done in the
prosecution of said war, as a means necessary therefor, is embraced therein
unlike the provision on treason (Article 114, Revised Penal Code) which is less
explicit thereon.
It is urged that, if the crime of assault upon a person in authority or an agent of a
person in authority may be committed with physical injuries (U. S. vs. Montiel, 9
Phil., 162), homicide (People vs. Lojo, 52 Phil., 390) and murder (U. S. vs.
Ginosolongo, 23 Phil., 171;
U. S. vs. Baluyot, 40 Phil., 385), and rape may be
perpetrated with physical injuries (U. S. vs. Andaya, 34 Phil., 690), then rebellion
may, similarly, be complexed with murder, arson, or robbery. The conclusion does
not follow, for engaging in war, serious violence, physical injuries and destruction of
life and property are inherent in rebellion, but not in assault upon persons in
authority or agents of persons in authority or in rape. The word rebellion evokes,
not merely a challenge to the constituted authorities, but, also, civil war, on a
bigger or lesser scale, with all the evils that go with it, whereas, neither rape nor
assault upon persons in authority connotes necessarily, or even generally, either
physical injuries, or murder. 1
chan

roblesvirt ualawlibrary

In support of the theory that a rebel who kills in furtherance of the insurrection is
guilty of the complex crime of rebellion with murder, our attention has been called
to Article 244 of the old Penal Code of the Philippines, reading:
chanroblesvirt uallawlibrary

Los delitos particulares cometidos en una rebelion o sedicion, o con motivo de

ellas, seran castigados respectivamente segun las disposiciones de este Codigo.
Cuando no puedan descubrirse sus autores seran penados como tales los jefes
principales de la rebelion o sedicion.
and to the following observations of Cuello Calon (Derecho Penal, Vol. II, p. 110), in
relation thereto:
chanroblesvirt uallawlibrary

Se establece aqui que el en una rebelion o sedicion, o con motivo de ellas, comete
otros delitos (v.g., roba, mata o lesiona), sera responsable de estos ademas de los
delitos de rebelion o sedicion. La dificultad consiste en estos casos en separar los
accidentes de la rebelion o sedicion de los delitos independientes de estas, y como
las leyes no contienen en este punto precepto alguno aplicable, su solucion ha
quedado encomendada a los tribunales. La jurisprudencia que estos han sentado
considera como accidentes de la rebelion o sedicion cuya criminalidad queda
embedida en la de estos delitos, y, por tanto, no son punibles especialmente los
hechos de escasa gravedad (v.g., atentados, desacatos, lesiones menos graves);
por el contrario, las infracciones graves, como el asesinato o las lesiones graves,
se consideran como delitos independientes de la rebelion o de la sedicion.

chan

roblesv irtualawlibrary

It should be noted, however, that said Article 244 of the old Penal Code of the
Philippines has not been included in our Revised Penal Code. If the applicability of
Article 48 to rebellion was determined by the existence of said Article 244, then the
elimination of the latter would be indicative of the contrary.
Besides, the crime of rebellion, referred to by Cuello Calon, was that punished in the
Spanish Penal Code, Article 243 of which provides:
chanroblesvirt uallawlibrary

Son reos de rebelion los que se alzaren publicamente y en abierta hostilidad contra
el Gobierno para cualquiera de los objetossiguientes:
chanroblesv irtuallawlibrary

1. Destronar al Rey, deponer al Regente o Regencia del Reino, o privarles de su

libertad personal u obligarles a ejecutar un acto contrario a su voluntad.
2. Impedir la celebracion dc las elecciones para Diputados a Cortes o Senadores
en todo el Reino, o la reunion legitima de las mismas.
3. Disolver las Cortes o impedir la deliberacion de alguno de los Cuerpos
Colegisladores o arrancarles alguna resolucion.
4. Ejecutar cualquiera de los delitos previstos en el articulo 165.
5. Sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de mar, o
cualquiera otra clase de fuerza armada, de la obediencia del Supremo Gobierno.
6. Usar y ejercer por si o despojar a los Ministros de la Corona de sus facultades
constitucionales, o impedirles o coartarles su libre ejercicio. (Articulo 167, Codigo
Penal de 1850. Veanse las demas concordancias del articulo 181.)
Thus, the Spanish Penal Code did not specifically declare that rebellion includes the
act of engaging in war against the forces of the Government and of using serious
violence for the purposes stated in Article 134 of the Revised Penal Code. In view of
this express statutory inclusion of the acts of war and serious violence among the
ingredients of rebellion in the Philippines, it is clear that the distinction made by
Cuello Calon between grave and less grave offenses committed in the course of an
insurrection cannot be accepted in this jurisdiction. Again, if both classes of offenses
are part and parcel of a rebellion, or means necessary therefor, neither law nor logic
justifies the exclusion of the one and the inclusion of the other. In fact, Cuello Calon
admits that the difficulty lies in separating the accidents of rebellion or sedition
from the offenses independent therefrom. Ergo, offenses that are not independent
therefrom, but constituting an integral part thereof committed, precisely, to carry
out the uprising to its successful conclusion are beyond the purview of Article
244. Indeed, the above quoted statement of Cuello Calon to the effect that grave
felonies committed in the course of an insurrection are independent therefrom
was based upon a decision of the Supreme Court of Spain of February 5, 1872,
which we find reported in the Codigo Penal de Filipinas, by Jose Perez Rubio, as
follows:
chanroblesvirt uallawlibrary

El Tribunal Supremo de Justicia en sentencia de 5 de Febrero de 1872, tiene

declarado:
Que segun los articulos 184 del Codigo Penal de 1830, y 259 del
reformado (1870), los delitos particulares cometidos en una rebelion o sedicion o
con motivo de ellas se castigan respectivamente segun las disposiciones de los
mismos Codigos;
y con arreglo al decreto de amnistia de 9 de Agosto de 1876
estan solo comprendidos en aquella gracia las personas sentenciadas, procesadas o
sujatas a responsabilidad por delitos politicos de cualquiera especie -cometidos
chanroblesvirt uallawlibrary

chan

roblesvirt ualawlibrary

desde el 29 de Septiembre de 1868;

Que el asesinato del Gobernador Civil de
Burgos no fue resultado de movimiento alguno politico, sino de un mero tumulto
que imprimio el fanatismo, y cuya unica aparente tendencia era impedir que aquel
funcionario inventariase ciertos objetos artisticos que se decian existentes en la
Catedral:
Que esto lo demuestran las salvajes voces de muerte proferidas por los
asesinos contra la persona del Gobernador;
sin que al ejecutar en el mismo
recinto del templo los horrorosos hechos que aparecen en la causa, alzasen bandera
politica alguna ni dieran otro grito que el, en aquel momento sacrilego e impio, de
Viva la religion: Que la apreciar la Sala sentenciadora los hechos referentes al
Gobernador Civil de delito de asesinato, penarlo con arreglo al Codigo y declarar
inaplicable el citado Decreto de Amnistia, no ha cometido el error de derecho
sealado en los casos 1. 3. del articulo 4. de la ley sobre establecimiento de la
casacion criminal, ni infringido los articulos 250 y 259 del Codigo Penal de 1870.
(Page 239;
Italics supplied.) (See, also, El Codigo Penal, by Hidalgo Garcia, Vol.
I, p. 623.)
chan

roblesvirt ualawlibrary

chanroblesv irtuallawlibrary

chan

roblesvirt ualawlibrary

chanroblesv irtuallawlibrary

chan

roblesv irtualawlibrary

It is apparent that said case is not in point. There was no issue therein on whether
murder may be complexed with rebellion or sedition. The question for determination
was whether the killers of the victim were guilty of the common crime of murder, or
should have been convicted only of rebellion or sedition. The court adopted the first
alternative, not because of the gravity of the acts performed by the accused, but
because they had no political motivation. Moreover, theEndnote:
to said
quotation from Cuello Calon reads:
chanroblesvirtuallawlibrary

chanroblesv irtuallawlibrary

Los atentados desacatos y lesiones a la autoridad u otros delitos contra el orden

publico cometidos en la sedicion o con motivo de ella, no son delitos distintos de la
sedicion, 3 octubre 1903, 19 noviembre 1906;
la resistencia o acometimiento a la
fuerza publica por los sediciosos es accidente de la rebelion, 23 mayo 1890.
chan roblesvirt ualawlibrary

El asesinato de un gobernador cometido en el curso de un tumulto debe penarse

como un delito comun de asesinato, 5 febrero 1872. Sin embargo, la jurisprudencia,
tratandose de ciertos delitos, es vacilante;
asi, v. g., el acometimiento al teniente
de alcalde se ha declarado en un fallo independiente de la perturbacion tumultuaria
promovida para impedir al alcalde el cumplimiento de sus providencias, 16 marzo
1885, mientras que un hecho analogo se ha considerado en otra sentenda ya citada
como accidente de la rebelion, 3 Octubre 1903. El acometimiento de los sediciosos
a la fuerza publica es accidente de la sedicion y no uno de los delitos particulares a
que se refiere este articulo, 23 de mayo 1890. Entre estos delitos a que alude el
precepto se hallan las lesiones que puedan causar los sediciosos, 19 noviembre
1906. (Endnote:
21, II Cuelo Calon, Derecho Penal, pp. 110-111.) (Italics
supplied.)
chan roblesvirt ualawlibrary

chanroblesvirtuallawlibrary

Thus in a decision, dated May 2, 1934, the Supreme Court of Spain held:

chanroblesvirt uallawlibrary

Considerando que la nota deferencial entre los delitos de rebelion y sedicion, de

una parte, y el de atentado, esta constituida por la circunstancia de alzamiento
publico que caracteriza a los primeros, los cuales, por su indole generica, absorben
a los de atentado y demas infracciones que durante su comision y con su motivo se
cometan, y afirmandose como hecho en la sentencia recurrida que el procesado
Mariano Esteban Martinez realizo, en union de otros, el atendado que se le imputa
sin alzarse publicamente, cae por su base el recurso fundado en supuesto distinto.
(Jurisprudencia Criminal, Tomo 130, p. 551.) (Italics supplied.)

To the same effect are, likewise, the following:

chanroblesvirt uallawlibrary

La provocacion y el ataque a la Guardia Civil por paisanos alzadoz

tumultuariamente para impedir al Delegado de un Gobernador civil el cumplimiento
de sus providencias, no pueden estimarse constitutivos de un delito distinto del de
sedicion, ni ser, por tanto, perseguidos y penados separadamente.
La resistencia o el acometimiento de los sublevados a la fuerza publica constituye,
en su caso, una circunstancia o accidente de la sedicion y no es delito de los que el
Codigo Penal en este articulo (formerly Article 244, now Article 227) supone que
pueden cometerse en ella o con su motivo, los cuales denomina delitos particulares,
y manda que se penen conforme a las disposiciones del propio Codigo. (S. 23-5890;
G. 23-6-890;
t. 44;
pagina 671) (II Doctrina Penal del Tribunal Supremo,
p. 2411.) (Italics supplied.)
chan roblesvirt ualawlibrary

chan roblesvirt ualawlibrary

chan roblesvirt ualawlibrary

La Audiencia condeno como autores de atentado a dos de los amotinados que

agredieron al alcalde, e interpuesto recurso de casacion contra la sentencia, el
Tribunal Supremo la casa y anula, teniendo en cuenta lo dispuesto en el articulo 250
(numero 3.) del Codigo Penal;
Considerando que el acto llevado a cabo por el grupo constituye una verdadera
sedicion, sin que sea licito el dividir este hecho y calificarlo de atentado respecto a
las personas que agredieron a dicho alcalde, porque el acometimiento fue un
accidente de la sedicion, de la cual eran todos responsables, ya se efectuara por los
agrupados en conjunto o por uno solo, por ser comun el objeto que se proponian y
no individual;
y al calificar y penar este hecho la Audencia de Gerona, de
atentado , ha incurrido en error de derecho e infringido los articulos 250 y
siguientes del Codigo Penal, por no haberlos aplicado, y el 263, numero 2., en
relacion con el 264, numeros 1. y 3., por su aplicacion (Sent. 3 octubre 1903.
Gac. 12 Diciembre) (Enciclopedia Juridica Espaola, Tomo xxviii p. 250).
chan

roblesvirt ualawlibrary

cralaw

cralaw

These cases are in accord with the text of said Article 244, which refers, not to all
offenses committed in the course of a rebellion or on the occasion thereof, but only
to delitos particulares or common crimes. Now, what are delitos particulares as
the phrase is used in said article 244? We quote from Viada:
chanroblesv irtuallawlibrary

Las disposicion del primer parrafo de este articulo no puede ser mas justa;
con
arreglo a ella, los delitos particulares o comunes cometidos en una rebelion er
sedicion no deberan reputarse como accidentes inherentes a estas, sino como
delitos especiales, a dicha rebelion y sedicion ajenos, los que deberan ser
respectivamente castigados con las penas que en este Codigo se las sealan. Pero,
que delitos deberan considerarse como comunes, y cuales como constitutivos de la
propia rebelion o sedicion? En cuanto a la rebelion, no ofrece esta cuestion
dificultad alguna, pues todo hecho que no este comprendido en uno y otro de los
objetos especificados en los seis numeros del articulo 243 sera extrao a la
rebelion, y si se hallare definido en algun otro articulo del Codigo, con arreglo a este
debera ser castigado como delito particular. Pero tratandose de la sedicion,
comprendiendose como objetos de la misma, en los numeros 3., 4. y 5. del
articulo 250, hechos que constituyen otros tantos ataques a las personas o a la
propiedad, cuales se consideran como accidentes inherentes a la propria sedicion, y
cuales deberan reputarse como delitos particulares o comunes? En cuanto a los
casos de los numeros 4. y 5., estimanos que el objeto politico y social que se
requiera para la realizacion de los actos en aquellos comprendidos es el que debe
chan

roblesvirt ualawlibrary

servirnos de norma y guia para distinguir lo inherente a la sedicion de lo que es

ajeno o extrao a ella. Cuando no exista ese objeto politico y social, el acto de odio
o venganza ejercido contra los particulares o cualquiera clase del Estado, y el
atentado contra las propiedades de los ciudadanos o corporaciones mentados en el
numero 5. del articulo 250, no seran constitutivos del delito de sedicion, sino que
deberan ser apreciados y castigados como delitos comunes, segun las disposiciones
respectivas de este Codigo y por lo que toca a los actos de odio o venganza
ejercidos en la persona o bienes de alguna Autoridad o sus agentes, estimamos que
deberan reputarse como delitos comunes todos aquellos hechos innecesarios 2
para la consecucion del fin particular que se propusieran los sediciosos y como
esenciales, constitutivos de la propia sedicion todos aquellos actos de odio o
venganza que sean medio racionalmente necesario para el logro del objeto especial
a que se encaminaran los esfuerzos de los sublevados. Asi, en el caso de la
Cuestion 1 expuesta en el comentario del articulo 258, es evidente que el fin que se
propusieron los sediciosos fue no pagar el impuesto a cuya cobranza iba a proceder
el comisionado;
pero para lograr este objeto, como lo lograron, fue preciso hacer
salir del pueblo al ejecutor, y a este efecto, lo amenazaron, lo persiguieron y
llegaron hasta lesionarle. Esas amenazas y lesiones no pudieron apreciarse, ni las
aprecio tampoco la Sala sentenciadora, como delito comun, sino como accidente
inherente a la misma sedicion, por cuanto fueron un medio racionalmente necesario
para la consecucion del fin determinado que se propusieron los culpables.
chan roblesv irtualawlibrary

Pero cuando tal necesidad desaparece, cuando se hiere por herir, cuando se mata
por matar, el hecho ya, no puede ser considerado como un accidente propio de la
sedicion, sino como un delito especial, al que debe aplicarse la pena al mismo
correspondiente. (III Viada, pp. 311-312.) (Italics supplied.)
Cuello Calon is even more illuminating. He says:

chanroblesvirt uallawlibrary

La doctrina cientifica considera los delitos llamados politicos como infracciones de

un caracter especial distintas de los denominados delitos comunes. De esta
apreciacion ha nacido la division de los delitos, desde el punto de vista de su
naturaleza intrinseca, en delitos politicos y delitos comunes o de derecho comun.
Se reputan delitos comunes aquellos que lesionan bienes juridicos individuales (v.
gr., los delitos contra la vida, contra la honestidad, contra la propiedad, etc.)
La nocion del delito politico no parece tan clara. Desde luego revisten este caracter
los que atentan contra el orden politico del Estado, contra su orden externo
(independencia de la nacion, integridad del territorio, etc.), o contra el interno
(delitos contra el Jefe del Estado, contra la forma de Gobierno, etc.). Pero tambien
pueden ser considerados como politicos todos los delitos, cualesquiera que sean
incluso los de derecho comun, cuando fueron cometidos por moviles politicos.
Deben, por tanto, estimarse como infracciones de esta clase, no solo las que
objetivamente tengan tal caracter por el interes politico que lesionan, sino tambien
las que, apreciadas subjetivamente, manifiestan una motivacion de caracter
politico.
Asi podria formulares esta definicion:
es delito politico el cometido contra el
orden politico del Estado, asi como todo delito de cualquiera otra clase determinado
por moviles politicos. (Cuello Calon, Derecho Penal, Tomo I, pp. 247-249.)
chanroblesv irtuallawlibrary

In short, political crimes are those directly aimed against the political order, as well
as such common crimes as may be committed to achieve a political purpose. The

decisive factor is the intent or motive. If a crime usually regarded as common like
homicide, is perpetrated for the purpose of removing from the allegiance to the
Government the territory of the Philippines Islands or any part thereof, then said
offense becomes stripped of its common complexion, inasmuch as, being part and
parcel of the crime of rebellion, the former acquires the political character of the
latter.
Conformably with the foregoing, the case of murder against the Defendant in U. S.
vs. Lardizabal (1 Phil., 729) an insurgent who killed a prisoner of war because he
was too weak to march with the retreating rebel forces, and could not be left behind
without endangering the safety of the latter was dismissed upon the ground that
the execution of said prisoner of war formed part of, and was included in, the crime
of sedition, which, in turn, was covered by an amnesty, to the benefits of which
said Defendant was entitled.
True, in U. S. vs. Alfont (1 Phil., 115), the commander of an unorganized group of
insurgents was, pursuant to Article 244 of our old Penal Code, convicted of homicide
for having shot and killed a woman who was driving a vehicle. But the complex
crime of rebellion with homicide was not considered in that case. Apart from this,
the accused failed to established the relation between her death and the
insurrection. What is more, it was neither proved nor alleged that he had been
prompted by political reasons. In other words, his offense was independent from the
rebellion. The latter was merely the occasion for the commission of the former.
It is noteworthy that the aforementioned decisions of this court and the Supreme
Court of Spain in cases of treason, rebellion and sedition, are in line with the trend
in other countries, as well as in the field of international relations. Referring to the
question as to what offenses are political in nature, it was said in In re Ezeta (62
Fed. Rep., 972):
chanroblesv irtuallawlibrary

What constitutes an offense of a political character has not yet been determined
by judicial authority. Sir James Stephens, in his work, History of the Criminal Law of
England (Volume 2, p. 71), thinks that it should be interpreted to mean that fugitive
criminals are not to be surrendered for extradition crimes if those crimes were
incidental to and formed a part of political disturbances. Mr. John Stuart Mill, in the
house of commons, in 1866, while discussing an amendment to the act of
extradition, on which the treaty between England and France was founded, gave
this definition:
Any offense committed in the course of or furthering of civil war,
insurrection, or political commotion. Hansards Debates Vol. 184, p. 2115. In the
Castioni Case, supra, decided in 1891, the question was discussed by the most
eminent counsel at the English bar, and considered by distinguished judges, without
a definition being framed that would draw a fixed and certain line between a
municipal or common crime and one of political character. I do not think, said
Denman, J., it is necessary or desirable that we should attempt to put into
language, in the shape of an exhaustive definition, exactly the whole state of things,
or every state of things, which might bring a particular case within the description
of an offense of a political character. In that case, Castioni was charged with the
murder of one Rossi, by shooting him with a revolver, in the town of Bellinzona, in
the canton of Ticino, in Switzerland. The deceased, Rossi, was a member of the
state council of the canton of Ticino. Castioni was a citizen of the same canton. For
some time previous to the murder, much dissatisfaction had been felt and
expressed by a large number of inhabitants of Ticino at the mode in which the
chanroblesv irtuallawlibrary

political party then in power were conducting the government of the canton. A
request was presented to the government for a revision of the constitution of the
canton and, the government having declined to take a popular vote on that
question, a number of the citizens of Bellinzona, among whom was Castioni, seized
the arsenal of the town, from which they took rifles and ammunition, disarmed the
gendarmes, arrested and bound or handcuffed several persons connected with the
government, and forced them to march in front of the armed crowd to the municipal
palace. Admission to the palace was demanded in the name of the people, and was
refused by Rossi and another member of the government, who were in the palace.
The crowd then broke open the outer gate of the palace, and rushed in, pushing
before them the government officials whom they had arrested and bound. Castioni,
who was armed with a revolver, was among the first to enter. A second door, which
was locked, was broken open, and at this time, or immediately after, Rossi, who was
in the passage, was shot through the body with a revolver, and died, very soon
afterwards. Some other shots were fired, but no one else was injured. Castioni fled
to England. His extradition was requested by the federal council of Switzerland. He
was arrested and taken before a police magistrate, as provided by the statute, who
held him for extradition. Application was made by the accused to the high court of
justice of England for a writ of habeas corpus. He was represented by Sir Charles
Russell, now lord chief justice. The attorney general, Sir Richard Webster, appeared
for the crown, and the solicitor general, Sir Edward Clarke, and Robert Woodfal, for
the federal council of Switzerland. This array of distinguished counsel, and the high
character of the court, commends the case as one of the highest authority. It
appeared from an admission by one of the parties engaged in the disturbances that
the death of Rossi was a misfortune, and not necessary for the rising. The opinions
of the judges as to the political character of the crime charged against Castioni,
upon the facts stated, is exceedingly interesting, but I need only refer to the
following passages. Judge Denman says:
chanroblesvirt uallawlibrary

The question really is whether, upon the facts, it is clear that the man was acting
as one of a number of persons engaged in acts of violence of a political character
with a political object, and as part of the political movement and rising in which he
was taking part.
Judge Hawkins, in commenting upon the character of political offenses, said:

chanroblesvirt uallawlibrary

I cannot help thinking that everybody knows there are many acts of a political
character done without reason, done against all reason;
but at the same time one
cannot look too hardly, and weigh in golden scales the acts of men hot in their
political excitement. We know that in heat, and in heated blood, men often do
things which are against and contrary to reason;
but none the less an act of this
description may be done for the purpose of furthering and in furtherance of a
political rising, even though it is an act which may be deplored and lamented, as
even cruel and against all reason, by those who can calmly reflect upon it after the
battle is over.
chan roblesv irtualawlibrary

chan

roblesv irtualawlibrary

Sir James Stephens, whose definition as an author has already been cited, was one
of the judges, and joined in the views taken as to the political character of the crime
charged against Castioni. The prisoner was discharged. Applying, by analogy, the
action of the English court in that case to the four cases now before me, under
consideration, the conclusion follows that the crimes charged here, associated as
they are with the actual conflict of armed forces, are of a political character.

The draft of a treaty on International Penal Law, adopted by the congress of

Montevideo in 1888, and recommended by the International American Conference
to the governments of the Latin-American nations in 1890, contains the following
provisions (Article 23):
chanroblesvirt uallawlibrary

Political offenses, offenses subversive of the internal and external safety of a state
or common offenses connected with these, shall not warrant extradition. The
determination of the character of the offense is incumbent upon the nations upon
which the demand for extradition is made;
and its decision shall be made under
and according to the provisions of the law which shall prove to be most favorable to
the accused:
chan

roblesvirt ualawlibrary

chanroblesv irtuallawlibrary

I am not aware that any part of this Code has been made the basis of treaty
stipulations between any of the American nations, but the article cited may be at
least accepted as expressing the wisdom of leading jurists and diplomats. The
article is important with respect to two of its features:
(1) provides that a fugitive
shall not be extradited for an offense connected with a political offense, or with an
offense subversive of the internal or external safety of the state;
and (2) the
decision as to the character of the offense shall be made under and according to the
provisions of the law which shall prove most favorable to the accused. The first
provision is sanctioned by Calvo, who, speaking of the exemption from extradition of
persons charged with political offenses, says:
chanroblesv irtuallawlibrary

chan

roblesv irtualawlibrary

chanroblesvirt uallawlibrary

The exemption even extends to acts connected with political crimes or offenses,
and it is enough, as says Mr. Fuastin Helio;
that a common crime be connected
with a political act, that it be the outcome of or be in the outcome of or be in the
execution of such, to be covered by the privilege which protects the latter Calvo,
Droit Int. (3me ed.) p. 413, section 1262.
chan

roblesv irtualawlibrary

The second provision of the article is founded on the broad principles of humanity
found everywhere in the criminal law, distinguishing its administration with respect
to even the worst features of our civilization from the cruelties of barbarism. When
this article was under discussion in the international American conference in
Washington, Mr. Silva, of Colombia, submitted some observations upon the difficulty
of drawing a line between an offense of a political character and a common crime,
and incidentally referred to the crime of robbery, in terms worthy of some
consideration here. He said:
chanroblesvirt uallawlibrary

In the revolutions, as we conduct them in our countries, the common offenses are
necessarily mixed up with the political in many cases. A colleague General Caamao
(of Ecuador) knows how we carry on wars. A revolutionist needs horses for moving,
beef to feed his troops, etc.;
and since he does not go into the public markets to
purchase these horses and that beef, nor the arms and saddles to mount and equip
his forces, he takes them from the first pasture or shop he find at hand. This is
called robbery everywhere, and is a common offense in time of peace, but in time of
war it is a circumstance closely allied to the manner of waging it. International
American Conference, Vol. 2, p. 615. (Italics supplied.)
chan roblesv irtualawlibrary

We quote the following from Endnote:

(23) on pages 249-250, Vol. I, of Cuello
Calons aforesaid work on Derecho Penal.
chanroblesvirtuallawlibrary

En algunos Codigo y leyes de fecha proxima ya se halla una definicion de estos

delitos. El Codigo penal ruso, en el articulo 58, define como delitos contra
revolucionarios los hechos encaminados a derrocar o debilitar el poder de los

Consejos de trabajadores y campesinos y de los gobiernos de la Union de

Republicas socialistas sovieticas, a destruir o debilitar la seguridad exterior de la
Union de Republicas Sovieticas y las conquistas economicas, politicas y nacionales
fundamentales de la revolucion proletaria. El Codigo Penal italiano de 1930
considera en eu articulo 8. como delito politico todo delito que ofenda un interes
politico del Estado o un derecho politico del ciudadano. Tambien se reputa politico
el delito comun deteminado, en todo o en parte por motivos politicos. En la ley
alemana de extradicion de 25 diciembre 1929 se definen asi:
Son delitos
politicos los atentados punibles directamente ejecutados contra la existencia o la
seguridad del Estado, contra el jefe o contra un miembro del gobierno del Estado
como tal, contra una corporacion constitucional, contra los derechos politicos las
buenas relaciones con el extranjero. parrafo 3., 2.
chanroblesvirt uallawlibrary

La 6a. Conferencia para la Unificacion del Derecho penal (Copenhague, 31 agosto

3 septiembre 1935) adopto la siguiente nocion del delito politico:
chanroblesv irtuallawlibrary

1. Por delitos politicos se entienden los dirigidos contra la organizacion y

funcionamiento del Estado o contra los derechos que de esta organizacion y
funcionamiento provienen para el culpable.
2. Tambien se consideran como delitos politicos los delitos de derecho comun que
constituyen hechos conexos con la ejecucion de los delitos previstos en seccion
1.:
como los hechos dirigidos a favorecer la ejecucion de un delito politico o a
permitir al autor de este delito sustraerse a la aplicacion de la ley penal.
chanroblesvirt uallawlibrary

3. No se consideraran delitos politicos aquellos a los que su autor sea inducido por
un motivo egoista y vil.
4. No se consideraran delitos los que creen un peligro para la comunidad o un
estado de terror. (Italics supplied.)
Thus, national, as well as international, laws and jurisprudence overwhelmingly
favor the proposition that common crimes, perpetrated in furtherance of a political
offense, are divested of their character as common offenses and assume the
political complexion of the main crime of which they are mere ingredients, and,
consequently, cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty.
There is one other reason and a fundamental one at that why Article 48 of our
Penal Code cannot be applied in the case at bar. If murder were not complexed with
rebellion, and the two crimes were punished separately (assuming that this could be
done), the following penalties would be imposable upon the movant, namely:
(1)
for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances present, but
never exceeding 12 years of prision mayor;
and (2) for the crime of murder,
reclusion temporal in its maximum period to death, depending upon the modifying
circumstances present. In other words, in the absence of aggravating
circumstances, the extreme penalty could not be imposed upon him. However,
under Article 48, said penalty would have to be meted out to him, even in the
absence of a single aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would be unfavorable to the movant.
chanroblesv irtuallawlibrary

chan

roblesvirt ualawlibrary

Upon the other hand, said Article 48 was enacted for the purpose of favoring the
culprit, not of sentencing him to a penalty more severe than that which would be

proper if the several acts performed by him were punished separately. In the word
of Rodriguez Navarro:
chanroblesvirt uallawlibrary

La unificacion de penas en los casos de concurso de delitos a que hace referencia

este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro
reo. (II Doctrina Penal del Tribunal Supremo de Espaa, p. 2168.) 3
We are aware of the fact that this observation refers to Article 71 (later 75) of the
Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and
then in 1932, reading:
chanroblesv irtuallawlibrary

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo
hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario
para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave en su
grado maximo, hasta el limite que represente la suma de las que pudieran
imponerse, penando separadamente los delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran los delitos
por separado. (Rodriguez Navarro, Doctrino Penal del Tribunal Supremo, Vol. II, p.
2163.)
and that our Article 48 does not contain the qualification inserted in said
amendment, restricting the imposition of the penalty for the graver offense in its
maximum period to the case when it does not exceed the sum total of the penalties
imposable if the acts charged were dealt with separately. The absence of said
limitation in our Penal Code does not, to our mind, affect substantially the spirit of
said Article 48. Indeed, if one act constitutes two or more offenses, there can be no
reason to inflict a punishment graver than that prescribed for each one of said
offenses put together. In directing that the penalty for the graver offense be, in such
case, imposed in its maximum period, Article 48 could have had no other purpose
than to prescribe a penalty lower than the aggregate of the penalties for each
offense, if imposed separately. The reason for this benevolent spirit of Article 48 is
readily discernible. When two or more crimes are the result of a single act, the
offender is deemed less perverse than when he commits said crimes thru separate
and distinct acts. Instead of sentencing him for each crime independently from the
other, he must suffer the maximum of the penalty for the more serious one, on the
assumption that it is less grave than the sum total of the separate penalties for
each offense.
Did the framers of Article 48 have a different purpose in dealing therein with an
offense which is a means necessary for the commission of another? To begin with,
the culprit cannot, then, be considered as displaying a greater degree of malice
than when the two offenses are independent of each other. On the contrary, since
one offense is a necessary means for the commission of the other, the evil intent is
one, which, at least, quantitatively, is lesser than when the two offenses are
unrelated to each other, because, in such event, he is twice guilty of having
harbored criminal designs and of carrying the same into execution. Furthermore, it
must be presumed that the object of Article 48, in its entirety, is only one. We
cannot assume that the purpose of the lawmaker, at the beginning of the single
sentence of which said article consists, was to favor the accused, and that, before
the sentence ended, the former had a change of heart and turned about face
against the latter. If the second part of Article 48 had been meant to be unfavorable

to the accused and, hence, the exact opposite of the first part each would
have been placed in, separate provisions, instead of in one single article. If the first
part sought to impose, upon the culprit, a penalty less grave than that which he
would deserve if the two or more offenses resulting from his single act were
punished separately, then this, also, must be the purpose of the second part, in
dealing with an offense which is a necessary means for the commission of another.
The accuracy of this conclusion is borne out by the fact that, since 1850, when the
counterpart of our Article 48 was inserted in the Penal Code of Spain, or for over a
century, it does not appear to have been applied by the Supreme Court thereof to
crimes of murder committed in furtherance of an insurrection.
Incidentally, we cannot accept the explanation that crimes committed as a means
necessary for the success of a rebellion had to be prosecuted separately under the
provisions of Article 259 of the Penal Code of Spain, which is the counterpart of
Article 244 of our old Penal Code. To begin with, these articles are part of a
substantive law. They do not govern the manner or method of prosecution of the
culprits. Then again, said precepts ordain that common crimes committed during a
rebellion or sedition, or on the occasion thereof, shall be respectively punished
according to the provisions of this Code. Among such provisions was Article 90
(later Article 71, then Article 75) of the Spanish Penal Code, and Article 89 of our old
Penal Code, of which Article 48 of the Revised Penal Code of the Philippines is a
substantial reproduction. Hence, had the Supreme Court of Spain or the Philippines
believed that murders committed as a means necessary to attain the aims of an
uprising were common crimes, the same would have been complexed with the
rebellion or sedition, as the case may be.
The cases of People vs. Cabrera (43 Phil., 64) and People vs. Cabrera (43 Phil., 82)
have not escaped our attention. Those cases involved members of the constabulary
who rose publicly, for the purpose of performing acts of hate and vengeance upon
the police force of Manila, and in an encounter with the latter, killed some members
thereof. Charged with and convicted of sedition in the first case, they were accused
of murder in the second case. They pleaded double jeopardy in the second case,
upon the ground that the facts alleged in the information were those set forth in the
charge in the first case, in which they had been convicted. This plea was rejected
upon the ground that the organic law prohibited double jeopardy for the same
offense, and that the offense of sedition is distinct and different from that of
murder, although both were the result of the same act.
The question whether one offense was inherent in, or identified with, the other was
not discussed or even considered in said cases. Besides, the lower court applied, in
the murder case Article 89 of the old Penal Code which is the counterpart of
Article 48 of the Revised Penal Code but this Court refused to do so. Again, simply
because one act may constitute two or more offenses, it does not follow necessarily
that a person may be prosecuted for one after conviction for the other, without
violating the injunction against double jeopardy. For instance, if a man fires a
shotgun at another, who suffers thereby several injuries, one of which produced his
death, may he, after conviction for murder or homicide, based upon said fatal injury,
be accused or convicted, in a separate case, for the non-fatal injuries sustained by
the victim? Or may the former be convicted of the complex crime of murder or
homicide with serious and/or less serious physical injuries? The mere formulation of
these questions suffices to show that the limitation of the rule on double jeopardy to

a subsequent prosecution for the same offense does not constitute a license for the
separate prosecution of two offenses resulting from the same act, if one offense is
an essential element of the other. At any rate, as regards this phase of the issue,
which was not touched in the Cabrera cases, the rule therein laid down must
necessarily be considered modified by our decision in the cases of People vs. Labra
(46 Off. Gaz., Supp. No. 1, p. 159) and Crisologo vs. People and Villalobos (supra),
insofar as inconsistent therewith.
The main argument in support of the theory seeking to complex rebellion with
murder and other offenses is that war within the purview of the laws on
rebellion and sedition may be waged or levied without killing. This premise
does not warrant, however, the conclusion drawn therefrom that any killing
done in furtherance of a rebellion or sedition is independent therefrom, and may be
complexed therewith, upon the ground that destruction of human life is not
indispensable to the waging or levying of war. A person may kill another without
inflicting physical injuries upon the latter, such, for instance, as by poisoning,
drowning, suffocation or shock. Yet it is admitted that he who fatally stabs another
cannot be convicted of homicide with physical injuries. So too, it is undeniable that
treason may be committed without torturing or murdering anybody. Yet, it is wellsettled that a citizen who gives aid and comfort to the enemy by taking direct part
in the maltreatment and assassination of his (citizens) countrymen, in furtherance
of the wishes of said enemy, is guilty of plain treason, not complexed with murder or
physical injuries, the later being as charged and proven mere ingredients of
the former. Now then, if homicide may be an ingredient of treason, why can it not be
an ingredient of rebellion? The proponents of the idea of rebellion complexed with
homicide,. etc., have not even tried to answer this question. Neither have they
assailed the wisdom of our aforementioned decisions in treason cases.
The Court is conscious of the keen interest displayed, and the considerable efforts
exerted, by the Executive Department in the apprehension and prosecution of those
believed to be guilty of crimes against public order, of the lives lost, and the time
and money spent in connection therewith, as well as of the possible implications or
repercussions in the security of the State. The careful consideration given to said
policy of a coordinate and co-equal branch of the Government is reflected in the
time consumed, the extensive and intensive research work undertaken, and the
many meetings held by the members of the court for the purpose of elucidating on
the question under discussion and of settling the same.
The role of the judicial department under the Constitution is, however, clear to
settle justiceable controversies by the application of the law. And the latter must be
enforced as it is with all its flaws and defects, not affecting its validity not as
the judges would have it. In other words, the courts must apply the policy of the
State as set forth in its laws, regardless of the wisdom thereof.
It is evident to us that the policy of our statutes on rebellion is to consider all acts
committed in furtherance thereof as specified in Articles 134 and 135 of the
Revised:
Penal Code as constituting only one crime, punishable with one single
penalty namely, that prescribed in said Article 135. It is interesting to note, in this
connection, that the penalties provided in our old Penal Code (Articles 230 to 232)
were much stiffer, namely:
chanroblesv irtuallawlibrary

chanroblesvirt uallawlibrary

1. Life imprisonment to death for the promoters, maintainers and leaders of the
rebellion, and, also, for subordinate officers who held positions of authority, either

civil or ecclesiastical, if the purpose of the movement was to proclaim the

independence of any portion of the Philippine territory;
2. Reclusion temporal in its maximum period for said promoters, maintainers and
leaders of the insurrection, and for its subordinate officers, if the purpose of the
rebellion was any of those enumerated in Article 229, except that mentioned in the
preceding paragraph;
3. Reclusion temporal:
(a) for subordinate officers other than those already
adverted to;
and (b) for mere participants in the rebellion falling under the first
paragraph of No. 2 of Article 174;
and
chanroblesv irtuallawlibrary

chan

roblesv irtualawlibrary

chan roblesvirt ualawlibrary

4. Prision mayor in its medium period to reclusion temporal in its minimum period
for participants not falling under No. 3.
After the cession of the Philippines to the United States, the rigors of the old Penal
Code were tempered. Its aforementioned provisions were superseded by section 3
of Act No. 292, which reduced the penalty to imprisonment for not more than ten
(10) years and a fine not exceeding $10,000, or P20,000, for every person who
incites, sets on foot, assists or engages in any rebellion or insurrection or who
gives aid and comfort to any one so engaging in such rebellion or insurrection.
Such liberal attitude was adhered to by the authors of the Revised Penal Code. The
penalties therein are substantially identical to those prescribed in Act 292. Although
the Revised Penal Code increased slightly the penalty of imprisonment for the
promoters, maintainers and leaders of the uprising, as well as for public officers
joining the same, to a maximum not exceeding twelve (12) years of prision mayor,
it reduced the penalty of imprisonment for mere participants to not more than eight
(8) years of prision mayor, and eliminated the fine.
cralaw

This benign mood of the Revised Penal Code becomes more significant when we
bear in mind it was approved on December 8, 1930 and became effective on
January 1, 1932. At that time the communists in the Philippines had already given
ample proof of their widespread activities and of their designs and potentialities.
Prior thereto, they had been under surveillance by the agents of the law, who
gathered evidence of their subversive movements, culminating in the prosecution of
Evangelista, Manahan (57 Phil., 354;
57 Phil., 372), Capadocia (57 Phil., 364),
Feleo (57 Phil., 451), Nabong (57 Phil., 455), and others. In fact, the first information
against the first two alleged that they committed the crime of inciting to sedition
on and during the month of November, 1930, and for sometime prior and
subsequent thereto.
chan

roblesvirt ualawlibrary

As if this were not enough, the very Constitution adopted in 1935, incorporated a
formal and solemn declaration (Article II, section 5) committing the Commonwealth,
and, then the Republic of the Philippines, to the promotion of social justice. Soon
later, Commonwealth Act No. 103, creating the Court of Industrial Relations, was
passed. Then followed a number of other statutes implementing said constitutional
mandate. It is not necessary to go into the details of said legislative enactments.
Suffice it to say that the same are predicated upon a recognition of the fact that a
good many of the problems confronting the State are due to social and economic
evils, and that, unless the latter are removed or, least minimized, the former will
keep on harassing the community and affecting the well-being of its members.
Thus, the settled policy of our laws on rebellion, since the beginning of the century,
has been one of decided leniency, in comparison with the laws enforce during the

Spanish regime. Such policy has not suffered the slightest alteration. Although the
Government has, for the past five or six years, adopted a more vigorous course of
action in the apprehension of violators of said law and in their prosecution the
established policy of the State, as regards the punishment of the culprits has
remained unchanged since 1932. It is not for us to consider the merits and demerits
of such policy. This falls within the province of the policy-making branch of the
government the Congress of the Philippines. However, the following quotation from
Cuello Calon indicates the schools of thought on this subject and the reason that
may have influenced our lawmakers in making their choice:
chanroblesvirt uallawlibrary

Durante muchos siglos, hasta tiempos relativamente cercanos, se reputaban los

hechos que hoy llamamos delitos politicos como mas graves y peligrosos que los
crimenes comunes. Se consideraba que mientras estos solo causan un dao
individual, aquellos producen profundas perturbaciones en la vida collectiva
llegando a poner en peligro la misma vida del Estado. En consonancia con estas
ideas fueron reprimidos con extraordinaria severidad y designados con la
denominacion romana de delitos de lesa majestad se catalogaron en las leyes
penales como los crimenes mas temibles.
Pero desde hace poco mas de un siglo se ha realizado en este punto una
transformacion profunda merced a la cual la delincuencia politica dejo de apreciarse
con los severos criterios de antao quedando sometida a un regimen penal, por
regla general suave y benevolo.
El origen de este cambio se remonta, segun opinion muy difundida, a la revolucion
que tuvo lugar en Francia en el ao 1830. El gobierno de Luis Felipe establecio una
honda separacion entre los delitos comunes y los politicos, siendo estos sometidos
a una penalidad mas suave y sus autores exceptuados de la extradicion. Irradiando
a otros paises tuvieron estas tan gran difusion que en casi todos los de regimen
liberal-individualista se ha llegado a crear un tratamiento desprovisto de severidad
para la represion de estos hechos. No solo las penas con que se conminaron
perdieron gran parte de su antigua dureza, sino qua en algunos paises se creo un
regimen penal mas suave para estos delicuentes, en otros se abolio para ellos la
pena de muerte. Tan profundo contraste entre el antiguo y el actual tratamiento de
la criminalidad politica en la mayoria de los paises solo puede ser explicado por las
ideas nacidas y difundidas bajo los regimenes politicos liberalesacerca de estos
delitos y delincuentes. Por una parte se ha afirmado que la criminalidad da estos
hechos no contiene la misma inmoralidad que la delincuencia comun, que es tan
solo relativa, qua depende del tiempo, del lugar, da las circumstancias, de las
instituciones del pais. Otros invocan la elevacion de los moviles y sentimientos
determinantes de estos hechos, el amor a la patria, la adhesion ferviente a
determinadas ideas o principios, el espiritu de sacrificio por el triunfo de un ideal.
Contra su trato benevolo, del que no pocas veces se han beneficiado peligrosos
malhechores, se ha iniciado hace algun tiempo una fuerte reaccion (vease Cap. XV,
3., b), que llego a alcanzar considerable severidad en las legislaciones de tipo
autoritario, y que tambien ha hallado eco, en forma mas suave, en las de otros
paises de constitucion democratica en los que, especialmente en los ultimos aos,
la frecuencia de agitaciones politicas y sociales ha originado la publicacion de
numerosas leyes encaminadas a la proteccion penal del Estado. (Cuello Calon,
Derecho Penal, Tomo 1, pp. 250-252.)

Such evils as may result from the failure of the policy of the law punishing the
offense to dovetail with the policy of the law enforcing agencies in the apprehension
and prosecution of the offenders are matters which may be brought to the attention
of the departments concerned. The judicial branch cannot amend the former in
order to suit the latter. The Court cannot indulge in judicial legislation without
violating the principle of separation of powers, and, hence, undermining the
foundation of our republican system. In, short, we cannot accept the theory of the
prosecution without causing much bigger harm than that which would allegedly
result from the adoption of the opposite view.
In conclusion, we hold that, under the allegations of the amended information
against Defendant-Appellant Amado V. Hernandez, the murders, arsons and
robberies described therein are mere ingredients of the crime of rebellion allegedly
committed by said Defendants, as means necessary 4 for the perpetration of said
offense of rebellion;
that the crime charged in the aforementioned amended
information is, therefore, simple rebellion, not the complex crime of rebellion with
multiple murder, arsons and robberies;
that the maximum penalty imposable
under such charge cannot exceed twelve (12) years of prision mayor and a fine of
P20,000;
and that, in conformity with the policy of this court in dealing with
accused persons amenable to a similar punishment, said Defendant may be allowed
bail.
chan

roblesv irtualawlibrary

chan

chan

roblesv irtualawlibrary

roblesvirt ualawlibrary

It is urged that, in the exercise of its discretion, the Court should deny the motion
under consideration, because the security of the State so requires, and because the
judgment of conviction appealed from indicates that the evidence of guilt of Amado
V. Hernandez is strong. However, as held in a resolution of this court, dated January
29, 1953, in the case of Montano vs. Ocampo (G.R. L-6352):
chanroblesv irtuallawlibrary

to deny bail it is not enough that the evidence of guilt is strong;

it must also
appear that in case of conviction the Defendants criminal liability would probably
call for a capital punishment. No clear or conclusive showing before this Court has
been made.
cralaw

chan

roblesv irtualawlibrary

In fact, in the case at bar, Defendant Amado V. Hernandez was sentenced by the
lower court, not to the extreme penalty, but to life imprisonment. Furthermore,
individual freedom is too basic, too transcendental and vital in a republican state,
like ours, to be denied upon mere general principles and abstract consideration of
public safety. Indeed, the preservation of liberty is such a major preoccupation of
our political system that, not satisfied with guaranteeing its enjoyment in the very
first paragraph of section (1) of the Bill of Rights, the framers of our Constitution
devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17),
(18), and (21) of said section (1) to the protection of several aspects of freedom.
Thus, in line with the letter and spirit of the fundamental law, we said in the
aforementioned case of Montano vs. Ocampo:
chanroblesvirt uallawlibrary

Exclusion from bail in capital offenses being an exception to the otherwise absolute
right guaranteed by the constitution, the natural tendency of the courts has been
toward a fair and liberal appreciation, rather than otherwise, of the evidence in the
determination of the degree of proof and presumption of guilt necessary to warrant
a deprivation of that right.
xxx

xxx

xxx

In the evaluation of the evidence the probability of flight is one other important
factor to be taken into account. The sole purpose of confining accused in jail before
conviction, it has been observed, is to secure his presence at the trial. In other
words, if denial of bail is authorized in capital cases, it is only on the theory that the
proof being strong, the Defendant would flee, if he has the opportunity, rather than
face the verdict of the jury. Hence, the exception to the fundamental right to be
bailed should be applied in direct ratio to the extent of the probability of evasion of
prosecution.
The possibility of escape in this case, bearing in mind the Defendants official and
social standing and his other personal circumstances, seem remote if not nil.
This view applies fully to Amado V. Hernandez, with the particularity that there is an
additional circumstance in his favor he has been detained since January 1951, or
for more than five (5) years, and it may still take some time to dispose of the case,
for the same has not been, and is not in a position to be, included, as yet, in our
calendar, inasmuch as the briefs for some Appellants other than Hernandez as
well as the brief for the Government, are pending submission. It should be noted,
also, that the decision appealed from the opposition to the motion in question do
not reveal satisfactorily and concrete, positive act of the accused showing,
sufficiently, that his provincial release, during the pendency of the appeal, would
jeopardize the security of the State.
Wherefore, the aforementioned motion for bail of Defendant- Appellant Amado V.
Hernandez is hereby granted and, upon the filing of a bond, with sufficient sureties,
in the sum of P30,000, and its approval by the court, let said DefendantAppellant be provisionally released. It is SO ORDERED.
Paras, C.J., Reyes, A., Bautista Angelo and Reyes. J.B.L., JJ., concur.
Bengzon, J., concurs in the result.
Separate Opinions
PADILLA, J., dissenting:

chanroblesvirtuallawlibrary

Amado V. Hernandez and others were charged in the Court of First Instance of
Manila with the crime of rebellion with multiple murder, arsons and robberies. The
body of the information charged that he and his co-Defendants conspired and that
as a necessary means to commit the crime of rebellion, in connection therewith
and in furtherance thereof, have then and there committed acts of murder,
pillage, looting, plunder, arson, and planned destruction of private and public
property to create and spread chaos, disorder, terror, and fear so as to facilitate the
accomplishment of the aforesaid purpose, and recited the different crimes
committed by theDefendants. After trial Amado V. Hernandez was found guilty and
sentenced to suffer life imprisonment from which judgment and sentence he
appealed. The appeal is pending in this Court.
Upon the ground that there is no complex crime of rebellion with murder, the
penalty provided for to be imposed upon persons found guilty of rebellion being
prision mayor and a fine not to exceed P20,000 only, 1 the majority grants the
petition for bail filed by the Appellant.
Section 1, paragraph 16, Article III, of the Constitution provides:

chanroblesvirt uallawlibrary

All persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong. Excessive bail shall
not be required. (Italics supplied.)
The pertinent sections of Rule 110 provide:

chanroblesvirt uallawlibrary

SEC. 3. Offenses less than capital before conviction by the Court of First Instance.
After judgment by a justice of the peace and before conviction by the Court of
First Instance, theDefendant shall be admitted to bail as of right.
SEC. 4. Noncapital offenses after conviction by the Court of First Instance. After
conviction by the Court of First Instance Defendant may, upon application, be bailed
at the discretion of the court.
SEC. 5. Capital offenses defined. A capital offense, as the term is used in this rule,
is an offense which, under the law existing at the time of its commission, and at the
time of the application to be admitted to bail, may be punished by death.
SEC. 6. Capital offenses not bailable. No person in custody for the commission of
a capital offense shall be admitted to bail if the evidence of his guilt is strong.
SEC. 7. Capital offenses - burden of proof. On the hearing of an application for
admission to bail made by any person who is in custody for the commission of a
capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution.
SEC. 13. Bail on appeal. Bail upon appeal must conform in all respects as
provided for in other cases of bail.
According to this Rule, a Defendant in a criminal case after a judgment of conviction
by the Justice of the Peace Court and before conviction by the Court of First Instance
is entitled to bail. After conviction by the Court of First Instance he, upon
application, may still be bailed in non-capital offenses but at the discretion of the
court. When the information charges a capital offense theDefendant is not entitled
to bail if the evidence of his guilt is strong. Of course this means before conviction.
After conviction for a capital offense, the Defendant has absolutely no right to bail,
because even before conviction a Defendant charged with capital offense is not
entitled to bail if the evidence of guilt is strong. So that should a Defendant charged
with a capital offense apply for bail before conviction, the prosecution must
establish and show that the evidence of theDefendants guilt is strong if the
application for bail be objected to. After conviction of aDefendant charged with a
capital offense there is no stronger evidence of his guilt than the judgment rendered
by the trial court. The judgment is entitled to full faith and credit. Until after the
evidence shall have been reviewed and the reviewing court shall have found that
the trial court committed error in convicting the Defendant of the crime charged,
the judgment and sentence of the trial court in such criminal case must be taken at
its face value and be given full faith and credit by this Court.
Without a review of the evidence presented in the case, the majority has taken up
and discussed the question whether, under and pursuant to the provisions of article
135 of the Revised Penal Code, the complex crime of rebellion with murder may
arise or exist or be committed and has reached the conclusion that murder as an
incident to rebellion, is integrated, imbibed, incorporated, or absorbed in, or part
and parcel of, the last mentioned crime. For that reason it is of the opinion that, as

the information filed against Amado V. Hernandez does not charge a capital offense,
he may be admitted to bail at the discretion of the Court.
Even if the majority opinion that the crime charged in the information is rebellion
only a non-capital offense be correct, still the granting of bail after conviction
is discretionary, and I see no plausible reason for the reversal of this Courts
previous stand, because the security of the State is at stake.
For these reasons I dissent.
MONTEMAYOR, J., dissenting:

chanroblesvirtuallawlibrary

Unable to agree to the resolution of the majority, I am constrained to dissent

therefrom, not so much from the part thereof granting the motion for bail, as where
it holds not only that there can be no complex crime of rebellion with multiple
murder, robbery, arson, etc., but that these crimes when committed during and on
the occasion of a rebellion, are absorbed by the latter. The new doctrine now being
laid down besides being, to my mind, quite radical and in open and clear
contravention of public policy, is fundamental and of far-reaching consequences,
and I feel it my duty not only to voice my dissent but also to state the reasons in
support thereof.
The resolution cites and quotes Article 135 of the Revised Penal Code to support its
theory that the five acts enumerated therein particularly those of engaging in war
against the forces of the government, destroying property and committing serious
violence, cover all the murders, robberies, arsons, etc., committed on the occasion
of or during a rebellion;
and it proceeds to assert that the expressions used in
said article, such as engaging in war against the forces of the government and
committing serious violence imply everything that war connotes such as physical
injuries and loss of life. In this connection, it is of profit and even necessary to refer
to Article 134 of the Revised Penal Code defining and describing how the crime of
rebellion is committed.
chan

roblesvirt ualawlibrary

Art. 134. Rebellion or insurrection How committed. The crime of rebellion or

insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said Government or
its laws, the territory of the Philippine Islands or any part thereof, of any body of
land, naval or other armed forces, or of depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.
According to the above article, rebellion is committed by rising publicly and taking
arms against the government for the purpose or purposes enumerated in said
article. In other words, the commission of rebellion is complete and consummated if
a group of persons for the purposes enumerated in the article, rise publicly, take up
arms and assemble. It is not necessary for its consummation that anybody be
injured or killed, be it a government soldier or civilian, or that innocent persons be
forcibly deprived of their properties by means of robbery or that their stores and
houses be looted and then burned to the ground. Stated differently, murders,
robberies, arsons, etc., are not necessary or indispensable in the commission of
rebellion and, consequently, are not ingredients or elements of the latter.
Article 48 of the Revised Penal Code providing for Penalty for complex crimes
reads thus:
chanroblesvirt uallawlibrary

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. (As amended by Act No. 4000.)
For better understanding, I deem it advisable to ascertain and explain the meaning
of the phrase necessary means used in Article 48. Necessary means as
interpreted by criminologists, jurists and legal commentators, does not mean
indispensable means, because if it did, then the offense as a necessary means to
commit another would be an indispensable element of the latter and would be an
ingredient thereof. That would be true in the offense of trespass to dwelling to
commit robbery in an inhabited house, or the infliction of physical injuries to commit
homicide or murder. The phrase necessary means used in Article 48, merely
signifies that for instance, a crime such as simple estafa can be and ordinarily is
committed in the manner defined and described in the Penal Code;
but, if the
estafador resorts to or employs falsification, merely to facilitate and insure his
committing the estafa, then he is guilty of the complex crime of estafa thru
falsification. So, if one desiring to rape a certain woman, instead of waiting for an
opportunity where she could be alone or helpless, in the fields or some isolated
place, abducts her by force and takes her to a forest to ravish her;
or he enters
her home through a window at night and rapes her in her room, then he is guilty of
the complex crime of abduction with rape or rape with trespass to dwelling. The
reason is that the commission of abduction of trespass to dwelling are not
indispensable means or ingredients of the crime of rape. They are but means
selected by the culprit to facilitate and carry out perhaps more quickly his evil
designs on his victim. Says the eminent Spanish commentator, Groizard, on this
point:
chan

chan

roblesv irtualawlibrary

roblesv irtualawlibrary

chanroblesvirt uallawlibrary

Una cosa analoga acontece respecto de los delitos conexionados con una relacion
de medio a fin. Tambien en ellos la unidad de acto moral, que da vida al delito, hace
logica la imposicion de una sola pena. Preciso es, sin embargo, distinguir el caso en
que el delito medio sea medio necesario de realizar el delito fin, del caso en que sea
puramente medio, pero no medio indispensable. En aquel, el delito medio no es, en
realidad, sino una condicion precisa, una circumstancia sine qua non, un elemento
integral de la accion punible concebida como fin. Sin pasar por uno, seria imposible
llegar al otro. La voluntad, libre e inteligente, tiene entonces por unico objeto llegar
al delito fin. Si al recorrer su camino ha de pasar, indispensablemante, por la
comision de otro hecho punible, no dos, sino un delito habra que castigar, toda ves
que uno fue el mal libremente querido, no siendolo el otro por si, sino en tanto que
era necesario para obtener, la realizacion del mal proposito concebido.
xxx

xxx

xxx

Asi, hay que reconocer que es plausible que, cuando un delito es medio de realizar
otro, se imponga al culpable la pena correspondiente al mayor en su grado
maximo;
pero que no los es si resulta que ha sido medio necesario. Por lo
contrario, para que sea justo el aumento de pena, con arreglo a la doctrina general
acerca del delito y las circunstancia agravantes, es preciso que existan y no se
aprovechen otros procedimientos, otros recursos, mas o menos faciles para
consumar el delito. Entonces la responsibilidad se hace mayor eligiendo un medio
que sea un delito en si. El que puede, haciendo uso de su libertad y de su
inteligencia, escoger entre varios procedimientos para llegar a un fin, y se decide
chan

roblesvirt ualawlibrary

por uno que por si solo constituye delito, de este delito no necessario para la
realizacion del proyectado como fin, debe responder tambien.
xxx

xxx

xxx

Ejemplo:
el allanamiento de domicilio como medio de llegar al delito de
violacion. No es condicion necesaria, para que la violacion pueda realizarse, el
entrar en la morada ajena contra la voluntad de su dueo. Sin esa circunstancia, el
delito puede existir. Ahora bien;
si el criminal acepta como medio de llegar a la
violacion el allanamiento de domicilio, este delito y el de violacion deben ser
castigados observandose en la aplicacion del castigo una unidad de penalidad que
guarde cierta analogia con la unidad de pensamiento que llevo en culpable a la
ralizacion de ambos delitos. Para estos y analogos casos, la razon aprueba la
imposicion de la mas grave de las penas en su grado maximo. (Groizard, El Codigo
Penal de 1870, Tomo II, pp. 495-496.)
chanroblesvirt uallawlibrary

chan

roblesvirt ualawlibrary

Applying the above observations to the crime of rebellion as defined in Article 134,
the same may be committed by merely rising publicly and taking arms against the
government, such as was done on several occasions as alleged in the information
for rebellion in the present case where a group of Hukbalahaps, entered towns,
overpowered the guards at the Presidencia confiscated firearms and the contents of
the municipal treasurers safe, exacted contributions in the form of money, foodstuffs and clothing from the residents and maintained virtual control of the town for
a few hours. That is simple but consummated rebellion. Murder, robbery, arson,
etc., are not necessary or indispensable to consummate the crime of rebellion.
But in other cases, this group or other groups of dissidents in order to facilitate
achieving their objective to overthrow the government, according to the findings of
the trial courts in several cases of rebellion, resorted to looting and robberies to
raise funds to finance their movement, sometimes killing civilians who refused to
contribute or to be recruited to augment the forces of the rebels or who were
suspected of giving information to the government forces of the movements of the
dissidents. Sometimes, homes of town and barrio residents are set on fire and
burned to the ground in reprisal or in order to strike terror into the hearts of the
inhabitants, so that they would be more amenable to the rule and the demands of
the rebels. At other times, civilians were kidnapped for purposes of ransom, and
some hostages killed when the ransom was not paid or was not forthcoming. In the
raid on Camp Macabulos in Tarlac, besides shooting down soldiers and officers,
buildings were set on fire, inducing the hospital, as a result of which, patients
including a Red Cross nurse were killed. In another case, a passenger bus containing
about forty civilian passengers in Sta. Cruz, Zambales, was held up by these armed
dissidents;
the passengers were robbed of their money and jewelry and fourteen
of them were shot to death. The party of Mrs. Aurora Quezon while on its way to the
town of Baler, was ambushed in Bongabong, Nueva Ecija by the dissidents and
several members of the party, including herself, her daughter, her son-in-law, Mayor
Bernardo of Quezon City, and others were killed, and their persons despoiled of
jewelries and belongings. It is clear that all these acts of murder, vandalism,
banditry and pillage cannot be regarded as ingredients and indispensable elements
of the crime of rebellion. The aforecited acts and cases, the enumeration of which is
far from complete, are not based on mere suspicion or hearsay. They are alleged as
facts in the numerous counts contained in complaints or informations for rebellion
with multiple murder, robbery, arson, kidnapping, etc. in several separate cases in
chan

roblesvirt ualawlibrary

the Courts of First Instance, some still pending trial-but quite a number already
decided and now pending appeal before us. There must be much truth to these
charges and counts because in the case against Huk Supremo Luis Taruc, William
Pomeroy et al., (criminal case No. 19166 C.F.I., Manila) Pomeroy pleaded guilty to all
the thirty counts against him;
so did Taruc after seven counts had been
eliminated from the thirty contained in the information. Among the twenty three
counts remaining to which Taruc pleaded guilty were the holding up of forty civilians
in a passenger bus in Sta. Cruz, Zambales, and the night raid on Camp Macabulos
where hospital patients and a Red Cross nurse were killed.
chan

roblesv irtualawlibrary

Since the above mentioned crimes of multiple murder, robbery, kidnapping, etc.,
are not ingredients of rebellion nor indispensable to its commission but only means
selected and employed by the offenders to commit rebellion and achieve their goal,
a complex crime is committed under Article 48 of the Revised Penal Code.
Going back to the theory of the majority in the resolution that the phrase engaging
in war and committing serious violence used in Article 134, covers the crimes of
murder, robbery, arson, etc., committed during a rebellion, I emphatically disagree.
Engaging in war and levying war, against the government, are general terms
employed in the United States statutes to define rebellion and treason. They are
used interchangeably and have the same meaning in our law on rebellion and
treason, (Articles 114, 134, 135, Revised Penal Code) which are based on Act 292 of
American origin. They do not necessarily mean actual killing of government troops,
much less of innocent civilians.
Levying War. The assembling of a body of men for the purpose of effecting by
force a treasonable object;
and all who perform any part, however, minute, or
however remote from the scene of action, and who are leagued in the general
conspiracy, are considered as engaged in levying war, within the meaning of the
constitution. (Bouviers Law Dictionary, Vol. 2, p. 1938.)
chan

roblesvirt ualawlibrary

This Tribunal defines levying war in the case of U.S. vs. Lagnason, 3 Phil., 478-9,
thus:
chanroblesvirt uallawlibrary

Whatever differences there may have been among the early judges as to whether
an armed resistance to the enforcement of a public law (see Act No. 292, section 5,
1) constituted a levying of war or not, and war or was not treason, yet they were all
unanimous in holding that acts of violence committed by an armed body of men
with the purpose of overthrowing the Government was levying war against the
United States, and was therefore treason, whether it was done by ten men or ten
thousand. (See United States vs. Hanway, 2 Wall., jr., 139;
26 Fed. Cases, 105.)
chan roblesv irtualawlibrary

xxx

xxx

xxx

As the act of engaging in a rebellion is levying war, and therefore treason, the
same act seems to be punished by both sections and in different ways. (U. S. vs.
Lagnason, 3 Phil., 48-9.)
Just as a citizen can commit treason by adhering to the enemy and committing
treasonable overt acts such as pointing out and helping arrest guerrillas,
accompanying enemy soldiers on patrol and giving valuable information to the
enemy, without himself killing anyone of his countrymen, this although Article 114
uses the phrase levying war to define-treason, so, although Article 135 uses the
phrase engaging in war, a group of individuals may also commit rebellion by

merely rising publicly and taking arms against the government without firing a
single shot or inflicting a single wound.
But the majority says that serious violence mentioned in Article 134 may include
murder. To me, this view is untenable. From serious violence to the capital offense of
murder, certainly, is a far cry. Besides, serious violence can also be on things. In my
opinion, the different acts mentioned in Article 135, among them, destroying
property, committing serious violence, exacting contributions or diverting public
funds, instead of giving license and unlimited leave to rebels and dissidents to
engage in mass murder, looting and wholesale destruction of property, on the
contrary, serve to limit and restrict the violations of law that may be included in and
absorbed by rebellion. Article 135 mentions those acts which generally accompany
a public armed uprising. When rebels raid a town or barrio, manhandling of civilians
who obstruct their movements or fail to carry out their orders such as to lend their
carabaos and carts for transportation purposes, or to contribute food, clothes,
medicines, money etc., may be expected. The rebels may employ force to disarm
the policeman guarding the Presidencia and if he offers resistance beat him up or,
once inside, break down the door of the treasurers office, blow up his safe and
carry away the money contents thereof. All these acts involve violence, even serious
violence on persons and things, including diversion of public funds. But knowing
that these law violations, relatively not serious, are generally unavoidable in public
armed uprisings involving hastily assembled persons and groups with little
discipline the law tolerates them, considering them as part of the rebellion. But
when rebels rob innocent civilians, kidnap them for purposes of ransom, even kill
them merely because they fail to pay the ransom, and civilian houses are put to the
torch, endangering the lives of the inmates;
when civilians are killed for refusing
to contribute, or on mere suspicion of their giving information to the government, I
cannot believe that these brutal act are condoned by the law and are to be included
in the crime of rebellion.
chan

roblesv irtualawlibrary

The majority leans heavily on our decisions in several treason cases wherein we
refused or failed to convict of the complex crime of treason with multiple murder. To
me, those cases are neither controlling nor applicable for several reasons. Almost
invariably, indictment in those treason cases alleged the killings committed by the
indictees as ingredients and elements of treason. They are mentioned as the overt
acts to establish and prove treason. Naturally, the court held that being ingredients
of the crime of treason they cannot be considered as distinct and separate offenses
for the purpose of applying Article 48 of the Revised Penal Code. Another reason is
that, treason being a capital offense, this court did not see any immediate necessity
for considering and applying the theory of complex crime because the result would
in many cases be practically the same. In other words, treason might yet be said to
absorb the crime of homicide, even of murder, because as regards the penalty, they
are of the same category. Still another reason, not an unimportant one is that at
that time, opinion among the members of this Tribunal on the question of complex
crime of treason with homicide, sedition with murder and rebellion with murder,
arson, robbery, etc., had not yet crystalized, one way or the other. So, we preferred
to avoid ruling on the issue, specially since by considering the commission of
murder, robbery, etc., in treason as aggravating the crime, we would achieve the
same result as regards the penalty to be imposed.
But in the case of People vs. Perfecto Labra, G.R. No. 1240, May 12, 1949, this court
through Mr. Justice Bengzon, accepted the view of the Solicitor General that under

Article 48 of the Revised Penal Code, Labra was guilty of the complex crime of
treason with murder, as shown by the dispositive part of our decision in that case,
which is quoted below:
chanroblesv irtuallawlibrary

Wherefore, the verdict of guilt must be affirmed. Article 48, 114 and 248 of the
Revised Penal Code are applicable to the offense of treason with murder. However,
for lack of sufficient votes to impose the extreme penalty, the Appellant will be
sentenced to life imprisonment.
The only reason why the death penalty was not imposed in said case was because
of lack of sufficient votes but evidently, the Justices were agreed as to the
application of Article 48 of the Penal Code regarding complex crimes.
Then in the treason case of People vs. Barrameda, 85 Phil., 789, 47 Off. Gaz., 5082,
on the strength of our decision in the case of Labra, the Solicitor General
recommended that Barrameda be also convicted of the complex crime of treason
with multiple murder and sentenced to death. This Tribunal accepted the Solicitor
Generals recommendation and imposed the death penalty in the following
language:
chanroblesv irtuallawlibrary

We entertain not the least doubt as to the guilt of the Appellant. His very counsel
de oficio who made an analysis of the testimonies of the witnesses for the
prosecution and painstakingly stated them in detail in his brief, agrees that his
client is guilty although he prays that the sentence of life imprisonment be affirmed.
The Solicitor General, however, recommends that the penalty of death be imposed
upon the Appellant. Considering that the treason committed by the Appellantwas
accompanied not only by the apprehension of Americans (U. S. citizens) and their
delivery to the Japanese forces which evidently later executed them, but also by
killing with his own hands not only one but several Filipinos, his own countrymen,
and that in addition to this, he took part in the mass killing and slaughter of many
other Filipinos, we are constrained to agree to said recommendation. However,
unpleasant, even painful is the compliance with our duty, we hereby impose upon
the Appellant Teodoro Barrameda the penalty of death which will be carried out on a
day to be fixed by the trial court within thirty (30) days after the return of the record
of the case to said court.
With the two aforecited cases, it may not be said that the Supreme Court has
always held that there can be no complex crime of treason with murder.
The theory of the majority is that the crime of rebellion with the maximum penalty
of twelve years and fine, absorbs the other crimes of murder, robbery, arson,
kidnapping, etc., as long as the latter are committed in the course and in
furtherance of the former. The idea of one crime absorbing a more serious one with
a more severe penalty does not readily appeal to the reasonable and logical mind
which can only comprehend a thing absorbing another smaller or less than itself in
volume, in importance, in value or in category. That is why Judge Montesa in the
three cases, People vs. Hernandez, People vs. Espiritu, and People vs. Medina,
criminal cases Nos. 15481, 15479 and 1411 respectively, of the Court of First
Instance, Manila, in his decision convicting the accused therein, in disposing of the
theory of absorption, urged upon him by counsel for the defense to the effect that
the crime of rebellion absorbs the crime of murder, robbery, arson, etc., made the
following observations:
chanroblesvirt uallawlibrary

The theory of absorption tenaciously adhered to by the defense to the effect that
rebellion absorbs all these more serious offenses is preposterous to say the least,
considering that it is both physically and metaphysically imposible for a smaller unit
or entity to absorb a bigger one. (Montesa, J., People vs. Hernandez G.R. No.
15481, P. 78.)
We need not go into an academic discussion of this question because as a matter of
law, my opinion, criminal jurisprudence, expounding the criminal law namely the
Penal Code and the Penal Code of Spain, on which it is based, expressly and clearly
declare that the common crimes of murder, robbery, arson, etc., committed in the
course or by reason of rebellion, are separate crimes, not to be merged in or
absorbed by rebellion and should be prosecuted separately. Article 259 of the Penal
Code of Spain, of 1870 on which our Penal Code promulgated in 1887, was based,
provides as follow:
chanroblesvirt uallawlibrary

Los delitos particulares cometidos en una rebellion o sedicion o con motivo de

ellas, seran castigados respectivamente, segun las disposiciones de este Codigo.
Cuando no puedan descubrirse sus autores, seran penados como tales los jefes
principales de la rebelion o sedicion. (Groiazrd, El Codigo Penal de 1870, Tomo III,
Articulo 259, p. 649.)
In commenting on Article 259 of the Spanish Penal Code, Viada says:

chanroblesvirt uallawlibrary

La disposicion del primer parrafo de este articulo no puede ser mas justa;
con
arreglo a ella, los delitos particulares o comunes cometidos en una rebellion o
sedicion no deberan reputarse como accidentes inherentes a estas, sino como
delitos especiales a dicha rebellion y sedicion ajenos, los que deberan ser
respectivamente castigados con als penas que en este Codigo se les sealan. Pero
que delitos deberan considerarse como comunes, y cuales como constitutivos de la
propia rebelion o sedicion? En cuanto a la rebelion, no ofrece este cuestion
dificultad alguna, pues todo hecho que no este comprendido en uno u otro de los
objetos especificados en los seis numeros del Articulo 243 sera extrao a la
rebelion, y si se este debera ser castigado como delito particular. (Viada, Codigo
Penal, Tomo II, 198-199.)
chan

roblesv irtualawlibrary

Pea, another commentator, referring to Article 259 of the Spanish Penal Gode, has
the following to say:
chanroblesv irtuallawlibrary

La disposicion de este articulo es sobradamente justa, pero cuando se entendera

que el hecho es independiente de la insurgencia? Tratandose de la rebelion no hay
problema, pues todos los fines que se indican en el Articulo 214 se distinguen
facilmente de un asesinato, un robo, una violacion, etc. El problema puede surgir
con la sedicion, en cuyos tres ultimos numeros, dice un autor, se tipifican conductas
que muy bien pueden ser subsimidas en otros lugares del Codigo. El T.S. parece que
sigue este principio general:
las infracciones graves se consideran como delitos
independientes, en cambio los hechos de menor gravedad puedan ser considerados
como accidentes de la rebelion. En este sentido, el T.S. ha declarado que son
accidentes de la rebelion, los desacatos y lesiones a la autoridad y otros delitos
contra el orden publico, asi como la resistencia o acometiendo a la fuerza publica
(23 Mayo 1890). El abuso de superioridad tambien es inherente el alzamiento
tumultuario (19 noviembre 1906.) (Pea Deredes Penal, Tomo II pp. 89-90.)
chanroblesv irtuallawlibrary

Another commentator, A. Quintano Ripolles, says of Article 259 of the Spanish Penal
Code, counterpart of Article 244 of our old Penal Code:
chanroblesv irtuallawlibrary

La concurrencia de delitos consignada en este articulo no puede ser mas justa,

bien que la dificultad persista siempre para determinar cuales han de ser los
particulares accidentales y cuales los integrantes de la propia subversion. Una
doctrina demasiado simplista, que ha sido a menudo seguida por la Jurisprudencia,
es la de estimar que, absorbiendo el delito mas grave al que lo es menos, todo el
que por debajo del de rebelion o sedicion sera anulado por este. Para los del la
misma naturaleza, la cosa es incuestionable, pero no para los que la tengan diversa,
entendiendo por la estraa e imprecisa expresion de (particulares) a las infracciones
comunes o no politicas. (A. Quintano Ripolles, Comentarios al Codigo Penal Vol. II,
pp. 101-102;
cursivas con neustras.)
chan roblesv irtualawlibrary

Another distinguished legal commentator gives his view on the same Article 259:

chanroblesvirt uallawlibrary

Se establece aqui que en una rebelion o sedicion, o con motivo de ellas, comente
otros delitos (v. g., roba, mata o lesiona), sera responsable de estos ademas de los
delitos de rebelion o sedicion. La dificultad consiste en estos casos en separar los
accidentes de la rebelion o sedicion de los delitos independientes de estas, y como
las leyes no contienen en este punto precepto alguno aplicable, su solucion ha
quedado encomendada a los tribunales. La jurisprudencia que estos han sentado
considera como accidentes de la rebelion o sedicion cuya criminalidad queda
embebida en la de estos delitos, y, por tanto, no son punibles especialmente los
hechos de escasa gravedad (v: g., atentados, desacatos, lesiones menos graves);
por el contrario, las infracciones graves, como el asesinato o las lesiones graves,
se consideran como delitos independientes de la rebelion o del la sedicion. (Cuello
Calon, Vol. 2 Derecho Penal p. 110.)
chanroblesvirt uallawlibrary

chan

roblesv irtualawlibrary

Finally, Groizard, another eminent commentator of the Penal code of Spain, in

commenting on the same Article 259 of the Spanish Penal Code of 1870, says the
following:
chanroblesvirt uallawlibrary

No necesita ninguno el parrafo primero de este articulo. Aunque no se hubiera

escrito en el Codigo, harian los Tribunales lo que dice. Seria necesario para que asi
no sucediera el que fuera la rebelion un motivo de exencion de responsabilidad
criminal para las demas clases de delitos. (Groizard Tomo 3, 650.)
It will be seen that Spanish jurists and legal commentators are, with reference to
Article 259 of the Spanish Penal Code of 1870, unanimous in the opinion that this
provision of the Criminal Law is just and fair because one should not take advantage
of his committing the crime of rebellion by committing other more serious crime
such as murder, robbery, arson, etc., with impunity. The above much commented
Article 259 of the Spanish Penal Code has its counterpart in Article 244 of our old
Penal Code in practically the same wording and phraseology:
chanroblesvirt uallawlibrary

ART. 24. All other crimes committed in the course of a rebellion of seditious
movement, or on occasion thereof, shall be punished in accordance with the rules of
this Code.
If the perpetrators of such crimes cannot be discovered, the principal leaders of
the rebellion or sedition shall be punished therefore as principals.
In this jurisdiction, we have faithfully observed and applied this penal provision. In
the cases of U. S. vs. Cabrera, et al., 43 Phil., page 64 and page 82 for sedition and

multiple murder respectively, wherein members of the Philippine constabulary

attacked and killed several policemen in the City of Manila, this Court convicted said
soldiers, first, of sedition and later, of multiple murder, clear proof that the murders
committed in the course of and by reason of the sedition were not included in and
absorbed by sedition, this despite the fact that our law on sedition then, section 5 of
Act No. 292, uses the words rise publicly and tumultuously, in order to attain by
force or outside of legal methods any of the following objects are guilty of sedition.
In the multiple murder case, the sergeants and corporals of the constabulary, who
took part in the killing of the city policemen, were sentenced to death. This court in
that case said:
chanroblesv irtuallawlibrary

It is merely stating the obvious to say that sedition is not the same offense as
murder. Sedition is a crime against public order;
murder is a crime against
persons. Sedition is a crime directed against the existence of the State, the
authority of the government, and the general public tranquility;
murder is a crime
directed against the lives of individuals. (U. S. vs. Abad (1902) 1 Phil. 437.) Sedition
in its more general sense is the raising of commotions or disturbances in the state;
murder at common law is where a person of sound mind and discretion unlawfully
kills any human being, in the peace of the sovereign, with malice aforethought,
express or implied.
chan

roblesv irtualawlibrary

chan roblesv irtualawlibrary

chan

roblesv irtualawlibrary

The offenses charged in the two informations for sedition and murder are perfectly
distinct in point of law, however, nearly they may be connected in point of fact. Not
alone are the offenses eo nomine different, but the allegations in the body of the
informations are different. The gist of the information for sedition is the public and
tumultuous uprising of the constabulary in order to attain by force and outside of
legal methods the object of indicting an act of hate and revenge upon the persons
of the police force of the city of Manila by firing at them in several places in the city
of Manila;
the gist of the information in the murder case is that the constabulary,
conspiring together, illegally and criminally killed eight persons and gravely
wounded three others. The crimes of murder and serious physical injuries were not
necessarily included in the information for sedition;
and the Defendants could not
have been convicted of these crimes under the first information. (Phil. Vol. 43,
pages 99-100.)
chan roblesvirt ualawlibrary

chan roblesvirt ualawlibrary

There is an insinuation made in the majority resolution, that the American Law on
sedition and rebellion, the origin of our present law on the subject, is more benign
and liberal than its counterpart in the Spanish Penal Code, defining and penalizing
sedition and rebellion, and that under American jurisprudence, rebellion and
sedition include crimes like murder, robbery, arson, etc., committed in the course
thereof. But it will be noticed that of the nine Justices who signed the decision in the
case of People vs. Cabrera for multiple murder, five, including Mr. Justice Malcolm,
who penned the decision, were Americans, supposed to be steeped in American Law
and the common law, and yet they all held that sedition where force is expected to
be used, did not, include murder. It is evident that the insinuation made in the
majority resolution is not exactly borne out by the Cabrera case.
The majority asks why in the past, especially up to 1932, when our Revised Penal
Code was promulgated no one had ever been prosecuted, much less convicted of
rebellion or sedition complexed with murder, robbery, etc., if it is true that there is
such a complex crime of rebellion with murder. For that matter, one may even ask
why the constabulary soldiers in the Cabrera case were not charged with the

complex crime of sedition with murder. The reason and the answer are obvious.
Until 1932, the year of the promulgation of our Revised Penal Code, our old Penal
Code included Article 244, the counter-part of Article 259 of the Spanish Penal Code,
to the effect that common crimes like murder, robbery, arson, committed on the
occasion or by reason of a rebellion or sedition, are to be prosecuted separately.
That was why insurgents who committed rebellion or insurrection with homicide or
murder during the first days of the American regime in the Philippines, could not be
charged with the complex crime of rebellion with murder;
and that explains why
Cabrera and his co-accused could not be charged with the complex crime of sedition
with multiple murder, but were prosecuted separately for multiple murder.
chan

roblesvirt ualawlibrary

The majority also asks why the insurgents in the year 1901 and 1902 were charged
only with rebellion but never with murder despite the fact that there was proof that
they also had committed murder in the course of the rebellion or insurrection. The
reason to my mind was that, shortly thereafter, came the proclamation of amnesty
issued by President McKinley of the United States, which amnesty covered not only
the crime of rebellion but also other violations of the law committed in the course of
the rebellion.
Then came our Revised Penal Code promulgated in 1932. It is a revision of our old
Penal Code of 1887. One of the purposes of the revision was simplification, and
elimination of unnecessary provisions. In proof of this, while our Penal Code of 1887
contained 611 articles, our Revised Penal Code contains only 367 articles. Among
the articles of the old Penal Code not included in the Revised Penal Code, is Article
244. Does the omission or elimination of Article 244 mean that now, common
crimes like murder, robbery, arson, etc., committed in the course of a rebellion or
sedition are absorbed by rebellion or sedition? Hardly. It cannot be that the
committee on revision and our legislators abandoned the idea and the theory
contained in said Article 244, because as I have already explained, all the Spanish
commentators and jurists commenting on this particular provision of the Spanish
Penal Code are agreed that it is a just and reasonable provision, so that sedition and
rebellion may not be utilized as a cloak of immunity in the commission of other
serious crimes. To me, the reason for the omission is that it was really unnecessary.
As Groizard said in his commentary already reproduced, even if that provision were
not embodied in the penal code, the court would still apply said provision:
chanroblesv irtuallawlibrary

No necesita ninguno el parrafo primero de este articulo. Aunque no se hubiera

excrito en el Codigo, harian los Tribunales lo que dice. Seria necesario para que asi
no sucediera el que fuera la rebelion un motivo de exencion de responsabilidad
criminal para las demas clases de delitos. (Groizard Tomo 3, 650.)
The members of the committee on revision of our old Penal Code who must have
been familiar with the opinion and comments of eminent Spanish jurists, particularly
the above comment of Groizard undoubtedly, deemed the provision of Article 244
superfluous and unnecessary, and so omitted it in the revision. However, this
omission of Article 244 of our Penal Code in the new, has an important effect. No
longer shall we be obliged to prosecute murder, robbery, arson, kidnapping, etc.,
committed in the course of and by reason of a sedition or a rebellion, separately.
The prosecution is now free to combine these common crimes with the crimes of
sedition or rebellion and charge a complex crime. And that is what has been done in
the prosecution of the numerous cases of rebellion.

This idea, this theory of complex crime of rebellion with multiple murder, etc., is not
such a strange, extravagant or fantastic proposition or idea. We are not the only
ones holding this view. Out of seven separate cases, all involving the complex crime
of rebellion with multiple murder and etc., decided in the Court of First Instance, not
long ago, cases No. 14070 People vs. Lava;
No. 15841 People vs.
Hernandez;
No. 2878 People vs. Capadocia;
No. 10400 People vs.
Salvador No. 2704 People vs. Nava;
No. 19166 People vs. Pomeroy and the
same case 19166 People vs. Taruc, only one judge, Hon. Gregorio Narvasa, of the
Court of First Instance of Manila, held that there is no complex crime of rebellion
with murder, and his holding was based mainly if not entirely on the decisions of
this Tribunal in the treason cases which as I have already explained, are not
controlling or applicable. In the other cases, five judges of Courts of First Instance,
Judges Ocampo, Castelo, Barcelona, Gatmaitan, and Montesa, held that there is
such a complex crime of rebellion with murder and actually convicted the accused
of said complex crime. Again, in the case of People vs. Umali, et al., criminal case
No. 11037 of the Court of First Instance of Quezon Province, Judge Gustavo
Victoriano, convicted the accused of the complex crime of rebellion with multiple
murder, etc. Recently, in several criminal cases pending in Pangasinan, involving
the complex crimes of rebellion with multiple murder, etc., Judge Morfe of the Court
of First Instance of that province acting upon motions to quash the informations on
the ground that there was no such complex crime of rebellion with murder and
consequently, the informations were not in accordance with law, for charging more
than one offense, in a well reasoned and considered order, denied the same and
held that there is a complex crime of rebellion with murder. Of course, these
opinions of judges of the lower courts are not binding on this tribunal but surely,
they are persuasive and cannot be ignored. At least, they show that there are
others, learned in the law, who subscribe to the theory of complex crime of rebellion
with murder, arson, etc.
chan

chan

roblesv irtualawlibrary

chan

chan

roblesvirt ualawlibrary

roblesv irtualawlibrary

roblesv irtualawlibrary

Our decision in the case of People vs. Umali, (96 Phil., 185), promulgated on
November 29, 1954, is another proof that murders committed in the course of
sedition or rebellion are not absorbed by the latter. In said case, this court in a
unanimous decision found the Defendants therein guilty of sedition, multiple
murder, arson, frustrated murder and physical injuries and sentenced them
accordingly. The question may again be asked, if there is such a complex crime of
sedition with murder, arson, etc., why were Umali and his co-accused not convicted
of this complex crime? The answer is found in a portion of our decision in that case
which we quote:
chanroblesvirt uallawlibrary

The last point to be determined is the nature of the offense or offenses

committed. Appellantswere charged with and convicted of the complex crime of
rebellion with multiple murder, frustrated murder, arson and robbery. Is there such a
complex crime of rebellion with multiple murder, etc.? While the Solicitor General in
his brief claims that Appellants are guilty of said complex crime and in support of
his stand asks for leave to incorporate by reference his previous arguments in
opposing Umalis petition for bail, counsel for Appellants considered it unnecessary
to discuss the existence or non- existence of such complex crime, saying that the
nature of the crime committed is of no moment to herein Appellants because they
had absolutely no part in it whatsoever. For the present, and with respect to this
particular case, we deem it unnecessary to decide this important and controversial
question, deferring its consideration and determination to another case or occasion

more opportune, when it is more directly and squarely raised and both parties given
an opportunity to discuss and argue the question more adequately and
exhaustively. Considering that, assuming for the moment that there is no such
complex
crime
of
rebellion
with
murder;
etc.,
and
that
consequentlyAppellants could not have been legally charged with it, much less
convicted of said complex crime, and the information should therefore, be regarded
as having charged more than one offense, contrary to Rule 106, section 12 and Rule
113, section 2(e), of the Rules of Court, but that Appellants having interposed no
objection thereto, they were properly tried for and lawfully convicted if guilty of the
several and separate crimes charged therein, we have decided and we rule that
the Appellants may properly be convicted of said several and separate crimes, as
hereinafter specified. We feel particularly supported and justified in this stand that
we take, by the result of the case, namely, that the prison sentence we impose does
not exceed, except perhaps in actual duration, that meted out by the court below,
which is life imprisonment.
chan

roblesvirt ualawlibrary

The majority resolution invokes and applies the principle of the so called pro reo in
connection with Article 48 of our Revised Penal Code on complex crimes, to the
effect that said article should not be applied when the resulting penalty exceeds the
sum total of the several crimes committed constituting the complex crime.
According to the majority, the theory of pro reo is that the principle of complex
crime was adopted for the benefit of the accused and not to his prejudice;
so, it is
to be applied when the maximum of the penalty for the more serious crime is less in
severity or duration of imprisonment than the sum total of the several crimes
committed, but not otherwise. This is a novel theory in this jurisdiction. To my
knowledge it has never been advanced before. All along and during all these years,
the courts of this country not excluding this august tribunal had been applying the
provisions of Article 48 of the Revised Penal Code, and its source, Article 89 of our
Penal Code of 1887, regardless of whether or not the resulting penalty was
prejudicial to the accused. As a matter of fact, in most cases the resulting penalty
imposed by this tribunal in complex crimes was much more severe and of longer
duration (imprisonment) than the sum total of the two or more crimes committed. In
the numerous cases decided by this court involving the complex crime of estafa
through falsification, the maximum of the penalty for the more serious crime of
falsification was imposed although it exceeded the total of the penalties for estafa
and for falsification. In cases of rape with physical injuries the maximum of the
penalty for the crime of rape was imposed although it exceeded in duration and
severity the total of the penalty for rape and that for the relatively light penalty for
physical injuries. In the case of People vs. Parulan (88 Phil., 615), involving the
complex crime of kidnapping with murder, this tribunal applied the provision of
Article 48 of the Revised Penal Code and would have sentenced the accused to
death, were it not for one dissenting vote based not on the applicability of Article
48, but on the question of jurisdiction. Said this court:
chan roblesv irtualawlibrary

chanroblesvirt uallawlibrary

La pena que debe imponerse al acusado Parulan es la del delito mas grave de
secuestro en su grado maximo, o sea, pena capital. Pero el Magistrado Sr. Tuason,
consecuente con su opinion disidente en Parulan contra Rodas, supra, no puede
confirmar la pena capital impuesta por el Juzgado de Primera Instancia de Manila
que segun el no tenia jurisdiccion sobre la presente causa. En vista de este voto
disidente, el presidente del tribunal Sr. Paras y tres magistrados aunque creen que
el acusado Parulan, por las pruebas presentadas, merece pena capital, con todo no

pueden votar por la comfirmacion porque el delito se cometio antes de la

aprobacion de la Ley de la Republica No. 296, que solo exige ocho votos para la
imposicion de la pena capital. Antomaticamente, por ministerio de la ley debe
imponerse a Parulan la pena inmediatamente inferior a la de muerte, que es la de
reclusion perpetua con las accesorias. (88 Phil., p. 624.)
Then in the case of People vs. Guillen * 47 Off. Gaz., 3433, involving the complex
crime of murder and multiple attempted murder committed by the accused with a
single act of hurling a hand grenade at President Roxas, this tribunal in a per curiam
decision, ignoring the aggravating circumstances that attended the commission of
the crime, applied the maximum of the penalty for the more serious crime of
murder in accordance with Article 48 of the Revised Penal Code and sentenced the
accused to death. Other instances and cases may be cited ad libitum to show that
in this jurisdiction and in this tribunal, the principle of pro reo was never
entertained, much less accepted.
Origin of pro reo principle
Up to the year 1908, the Spanish Penal Code had the following provisions for
complex crimes:
chanroblesvirt uallawlibrary

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo
hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario
para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave,
aplicandola en su grado maximo.
The above provisions were copied in our Penal Code of 1887 under Article 89 which
reads thus:
chanroblesvirt uallawlibrary

The provisions of the next preceding article are not applicable to cases in which a
single act constitutes two or more crimes, or when one offense is a necessary
means for committing the other.
In these cases, only the penalty of the more serious crime shall be imposed, the
same to be applied in its maximum degree.
On January 3, 1908, the Spanish Penal Code was amended, particularly paragraph 2
of Article 90 thereof so as to add to said paragraph the following clause:
chanroblesv irtuallawlibrary

Hasta el limite que represente la suma de las dos que pudieran imponerse,
penando separadamente ambos delitos.
so that since January 1908, Article 90 of the Spanish Penal Code reads:

chanroblesvirt uallawlibrary

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo
hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario
para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave,
aplicandola en eu grado maximo hasta el limite que represente la suma de las dos
que pudieran imponerse, penando separadamente ambos delitos.
The amendment is the provision for the so called pro reo rule. But we never
accepted much less followed said innovation in the Philippines. We did not amend
Article 89 of our old Penal Code particularly paragraph 2 thereof so as to add the
clause:
chanroblesv irtuallawlibrary

Hasta el limite que represente la suma de las dos que pudieran imponerse,
penando separadamente ambos delitos.
inserted by the amending Spanish Law of January 3, 1908 to the second paragraph
of Article 90 of the Spanish Penal Code. Furthermore, when we drafted and
promulgated our Revised Penal Code in 1932 (Article No. 3815) we ignored and did
not accept the amendment to the Spanish Penal Code that favored one accused of a
complex crime as regards the penalty, so that now our law on the subject is
contained in Article 48 of the Revised Penal Code which as amended by Act No.
4000, reads as follows:
chanroblesvirt uallawlibrary

ART. 48. Penalty for complex crimes. When a single act constitutes two or more
grave or less 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. (As amended by Act No. 4000.)
The majority resolution makes a more or less extensive dissertation and citation of
authorities on the law of extradition, intended to show that common crimes such as
murder, etc., committed on the occasion of or in the course of the commission of
political crimes like sedition and rebellion, are not subject to extradition. We believe
that these citations and these arguments are neither relevant nor applicable. All we
can say is that a murder committed in the course of a rebellion or sedition may be
considered a political crime in contemplation of the extradition law and that a
person accused of said murder is not subject to extradition. But a crime may be
considered political from the standpoint of the extradition law and yet may be
regarded by the country where committed as a common crime separate and distinct
from the rebellion or sedition in the course of which it was committed, and,
consequently, subject to prosecution. Moreover, the fact that a murder committed
in the course of a sedition or rebellion is excluded from the scope of the extradition
agreement between nations, is proof and argument that were it not for its exclusion,
the member nations of the extradition agreement, where murders are committed in
the course of a rebellion or sedition may and would extradite the offenders, on the
theory that said murders are separate from and are not absorbed by the rebellion or
sedition;
otherwise, there would be no need for excluding such crimes of murder,
arson, etc., committed during a rebellion or sedition, from the scope of the
extradition law. And among such nations which consider these common crimes of
murder, etc., as separate from rebellion or sedition during which they were
committed, are Spain, as shown by Article 259 of its Penal Code, and the Philippines
as illustrated in the cases of U.S. vs. Cabrera and People vs. Umali, supra. Groizard
lists down several countries that consider common crimes committed during a
rebellion or sedition as subject to prosecution:
chan roblesvirt ualawlibrary

chanroblesvirt uallawlibrary

Codigo del Canton de Zurich.

S. 75. Si con motivo de la sedicion o como consecuencia fueren cometidos otros
delitos, estos seraan castigados conforme a las disposiciones penales para los
mismos fijadas.
Codigo de Peru.
ART. 145. Los reos de rebelion, sedicion o asonada son responsables de los delitos
especiales que cometen, observandose lo dispuesto en el Articulo 45.

ART. 146. Si no pudiese averiguarse quien de los sublevados cometio el delito

especial, se hara responsable a los autores del tumulto.
Codigo del Chile.
ART. 131. Los delitos particulares cometidos en un sublevacion o con motivo de
ella, seran castigados respectavamente con las penad designadas para ellos, no
obstante le dispuesto en el articulo 129. Si no pueden decubrirse los autores,
seran considerados y penados como complices de tales delitos los jefes principales
o subalternos de los sublevados que hallandose en la posibilidad de impedirlos no lo
hubieren hecho.
Codigo del Paraguay.
ART. 380. Los delitos particulares cometidos en la sedicion o con motivo de ella,
seran castigados con la pena que les corresponda por las leyes respectivas.
Codigo de la Republica Argentina.
ART. 231. Los que cometen delitos comunes con motivo de la rebelion motin o
asonada o con ocasion de ella, seran castigados con la pena que corresponde a
esos delitos.
Codigo de Honduras.
ART. 224. (Como el nuestro.)
(Groizard, El Codigo Penal de 1870, Vol. 3, Articulo 259, p. 650.)
In justice to the Defendants-Appellants in the present case, I wish to explain and
make clear that in mentioning and describing the serious crimes of murder, robbery,
arson, kidnapping, etc., alleged to have been committed in the course of the
rebellion or by reason thereof, I am not referring particularly to the charge or
charges and counts alleged against them. Their case is now pending appeal in this
tribunal and their guilt or innocence of said charges or counts will be decided in due
time. And so, I am not imputing or attributing to them the serious violations of law I
have mentioned in this opinion. Rather, I am making general reference to the
informations filed in other cases, especially in the informations against Luis Taruc
and William Pomeroy which case is not only decided but also is closed.
In conclusion, I hold that under the law and under general principles rebellion
punished with a maximum penalty of twelve (12) years and fine cannot possibly
absorb a much more serious crimes like murder or kidnapping which are capital
offenses and carry the maximum penalty of death. It is hard for the mind to grasp
the idea that a person committing one lone murder may be headed for the electric
chair;
but if perpetrates several murders, kidnappings, arsons, and robberies and
during their perpetration, was still committing another crime, that of trying to
overthrow his own government by force, then all he gets is twelve years and fine.
Since, the serious crimes like multiple murder, robbery, arson, kidnapping, etc.,
committed during the rebellion are not ingredients of, nor are they indispensable to
the commission of rebellion, and were but means freely selected by the rebels to
facilitate their commission of rebellion or to achieve and speed up their realization
of their object, which was to overthrow the government and implant their own
system said to be of communistic ideology, then under Article 48 of the Revised
Penal Code, the complex crime of rebellion with murder, etc., was committed.
chan roblesvirt ualawlibrary

Judging by the numerous acts of atrocity contained in the several informations filed
against the rebels in different cases, not only government soldiers and officers, but
innocent civilians by the hundreds were murdered. Stores and homes were looted;
not only public buildings, like presidencias and government hospitals, but also
private buildings and homes were burned to the ground. And as a result of these
acts of terrorism, entire barrios were abandoned and landowners, especially owners
of landed estates, evacuated to the provincial capitals or to the cities for personal
security. And it seems that these acts of banditry and pillage still continue though
on a smaller scale.

chan

roblesv irtualawlibrary

Settled public policy or the policy of the Government as regards rebellion and the
crimes against persons and property committed by the rebels is clear. With their
taxes, the citizens are maintaining a large army to put down the rebellion.
Substantial rewards ranging from P500 to P100,000 are offered for the apprehension
of the rebels, specially the leaders. A rebel leader with a P100,000 price on his
head, after a campaign of several years by the army, and after the loss of lives of
many soldiers and civilian guides, is finally captured. The government pays down
the P100,000 to those responsible for the capture and charges him with the
complex crime of rebellion with multiple murder, kidnapping, etc., a capital
offense. Pending trial, he asks to be released on bail and under the doctrine being
laid down by us, he is set at liberty, free to go back to the hills to resume his
dissident activities where he left off, by merely posting a bond corresponding to a
maximum imprisonment of twelve years (P12,000) and a fine the amount of which
is left to the discretion of the trial court. If he jumps his bail and assuming that the
full amount of the bond is confiscated, still, the Government which paid P100,000
for his capture is the loser. It will have to wage another campaign to recapture him
and perhaps offer another reward for his apprehension. This would illustrate the
wide divergence between the policy of the Government and the present ruling of
the Court. That is not as it should be. The three departments of the Government,
the Executive, the Legislative and the Judicial Department, though independent of
each other, should function as a team, harmoniously, and in cooperation, all for the
public welfare. They cannot work at cross purposes. All three should be guided by
the settled public policy of the state and this applies to the courts. In the case of
Rubi vs. provincial board of Mindoro, 39 Phil., pp. 718-19, this court speaking about
the relation between interpretation of the law by the courts and public policy,
said:
chanroblesv irtuallawlibrary

As a point which has been left for the end of this decision and which, in case of
doubt, would lead to the determination that section 2145 is valid, is the attitude
which the courts should assume towards the settled policy of the Government. In a
late decision with which we are in full accord, Gamble vs. Vanderbilt University (200
Southwestern Reporter 510) the Chief of Justice of the Supreme Court of Tennessee
writes:
chanroblesvirt uallawlibrary

We can see no objection to the application of public policy as a ratio decidendi.

Every really new question that comes before the courts is, in the last analysis,
determined on the theory, when not determined by differentiation of the principle of
a prior case or line of cases, or by the aid of analogies furnished by such prior cases.
In balancing conflicting solutions, that one is perceived to tip the scales which the
court believes will best promote the public welfare in its probable operation as a
general rule or principle.

Justice Holmes, in one of the aphorisms for which he is justly famous, said that
constitutional law, like other mortal contrivances, has to take some chances. (Blinn
vs. Nelson [1911] 222 U.S., 1.) If in the final decision of the many grave questions
which this case presents, the court must take a chance, it should be, with a view
to upholding the law, with a view to the effectuation of the general governmental
policy, and with a view to the courts performing its duty in no narrow and bigoted
sense, but with that broad conception which will make the courts as progressive and
effective a force as are the other departments of the Government.
Now, by the majority resolution, this Court would spread the mantle of immunity
over all these serious crimes against persons and property on the theory that they
are all covered by, included in, and absorbed by the crime of rebellion. Under this
protective mantle extended by us, instead of curbing and discouraging the
commission of these common serious crimes in accordance with public policy, the
commission of said crimes would be encouraged. No longer would evil-minded men,
outlaws, bandits, hesitate to kill and rob and kidnap, because by pretending to be
rebels or to be engaged in rebellion, their acts of atrocity would be covered by
rebellion, for which they would get, at most, twelve (12) years and fine. No longer
would the spectre of the death penalty and the electric chair hang sword of
Damocles-like over the heads of would be kidnappers, murderers and arsonists
because by merely claiming to have committed another additional crime, rebellion,
under the doctrine laid down by the majority resolution, capital punishment for all
capital crimes they have committed or may commit, is automatically reduced to
twelve (12) years and fine. It is evident that the effect of the interpretation by this
Court of the law on complex crimes, in relation to rebellion and the common serious
crimes committed during and in the course thereof, runs counter to the settled
public policy on the subject.
Sad, indeed, is the role being played by this Tribunal in laying down a doctrine of
such far reaching consequences and in my opinion of such baneful not to say
disastrous effects on peace and order and personal security, diametrically and
utterly opposed to settled public policy, when after all, we have now the opportunity
and the choice of accepting and adopting another view, another interpretation of
the law on complex crimes, to be more reasonable, more logical and certainly, more
in accordance with public policy, and more in keeping with peace and order,
personal security and the public welfare.
For the foregoing reasons, I dissent.
Endencia, JJ., concurs.
G.R. No. 92163 June 5, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br.
103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R.
ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL
BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES
(Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY
HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents.

G.R. No. 92164 June 5, 1990

SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,
vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS,
AND EULOGIO C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as
Presiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.

NARVASA, J.:
Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once
more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of
its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar
cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where
season and circumstance had more effectively conspired to attract wide public attention and excite
impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of
arguments that are now brought to bear on the same question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader
Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the
National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the
Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had
issued on an information signed and earlier that day filed by a panel of prosecutors composed of
Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant
City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda
Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated
murder allegedly committed during the period of the failed coup attempt from November 29 to
December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft
Avenue, Manila, without bail, none having been recommended in the information and none fixed in
the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas
Karingal in Quezon City where he was given over to the custody of the Superintendent of the
Northern Police District, Brig. Gen. Edgardo Dula Torres. 3
On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition
for habeas corpusherein (which was followed by a supplemental petition filed on March 2, 1990),
alleging that he was deprived of his constitutional rights in being, or having been:
(a) held to answer for criminal offense which does not exist in the statute books;
(b) charged with a criminal offense in an information for which no complaint was
initially filed or preliminary investigation was conducted, hence was denied due
process;
(c) denied his right to bail; and

(d) arrested and detained on the strength of a warrant issued without the judge who
issued it first having personally determined the existence of probable cause. 4
The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March
6, 1990. 5On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this
case and in G.R. No. 921647 Which had been contemporaneously but separately filed by two of Senator
Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return
urged that the petitioners' case does not fall within the Hernandezruling because-and this is putting it very
simply-the information in Hernandez charged murders and other common crimes committed as a
necessary means for the commission of rebellion, whereas the information against Sen. Enrile et
al.charged murder and frustrated murder committed on the occasion, but not in furtherance, of
rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito
complejo") arising from an offense being a necessary means for committing another, which is referred to
in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and
the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less
grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not
concerned and to which, therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court
issued its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional
liberty conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for
Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued
without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners
and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the
Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's
petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the following options:
(a) abandon Hernandez and adopt the minority view expressed in the main dissent of
Justice Montemayor in said case that rebellion cannot absorb more serious crimes,
and that under Article 48 of the Revised Penal Code rebellion may properly be
complexed with common offenses, so-called; this option was suggested by the
Solicitor General in oral argument although it is not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in furtherance, or as a
necessary means for the commission, of rebellion, but not to acts committed in the
course of a rebellion which also constitute "common" crimes of grave or less grave
character;
(c) maintain Hernandez as applying to make rebellion absorb all other offenses
committed in its course, whether or not necessary to its commission or in furtherance
thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2)
Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling
remains good law, its substantive and logical bases have withstood all subsequent challenges and no
new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced
by the fact that not too long ago, the incumbent President, exercising her powers under the 1986
Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime
which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the
Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes
penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses
upon which graver penalties are imposed by law are committed, the penalty for the most serious offense
in its maximum period shall be imposed upon the offender."' 11In thus acting, the President in effect by
legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less
than accord it the same recognition, absent any sufficiently powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should
be, limited in its application to offenses committed as a necessary means for the commission of
rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with
other common crimes committed on the occasion, but not in furtherance, thereof. While four
Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the
consensus was that they were not sufficient to overcome what appears to be the real thrust
of Hernandez to rule out the complexing of rebellion with any other offense committed in its course
under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the
majority opinion in that case:
There is one other reason-and a fundamental one at that-why Article 48 of our Penal
Code cannot be applied in the case at bar. If murder were not complexed with
rebellion, and the two crimes were punished separately (assuming that this could be
done), the following penalties would be imposable upon the movant, namely: (1) for
the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances present, but
never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion
temporal in its maximum period to death, depending upon the modifying
circumstances present. in other words, in the absence of aggravating
circumstances, the extreme penalty could not be imposed upon him. However, under
Article 48 said penalty would have to be meted out to him, even in the absence of a
single aggravating circumstance. Thus, said provision, if construed in conformity with
the theory of the prosecution, would be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the
culprit, not of sentencing him to a penalty more severe than that which would be
proper if the several acts performed by him were punished separately. In the words
of Rodriguez Navarro:
La unificacion de penas en los casos de concurso de delitos a que
hace referencia este articulo (75 del Codigo de 1932), esta basado
francamente en el principio pro reo.' (II Doctrina Penal del Tribunal
Supremo de Espana, p. 2168.)

We are aware of the fact that this observation refers to Article 71 (later 75) of the
Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and
then in 1932, reading:
Las disposiciones del articulo anterior no son aplicables en el caso
de que un solo hecho constituya dos o mas delitos, o cuando el uno
de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito
mas grave en su grado maximo, hasta el limite que represents la
suma de las que pudieran imponerse, penando separadamente los
delitos.
Cuando la pena asi computada exceda de este limite, se
sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina
Penal del Tribunal Supremo, Vol. II, p. 2163)
and that our Article 48 does not contain the qualification inserted in said amendment,
restricting the imposition of the penalty for the graver offense in its maximum period
to the case when it does not exceed the sum total of the penalties imposable if the
acts charged were dealt with separately. The absence of said limitation in our Penal
Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if
one act constitutes two or more offenses, there can be no reason to inflict a
punishment graver than that prescribed for each one of said offenses put together. In
directing that the penalty for the graver offense be, in such case, imposed in its
maximum period, Article 48 could have had no other purpose than to prescribe a
penalty lower than the aggregate of the penalties for each offense, if imposed
separately. The reason for this benevolent spirit of article 48 is readily discernible.
When two or more crimes are the result of a single act, the offender is deemed less
perverse than when he commits said crimes thru separate and distinct acts. Instead
of sentencing him for each crime independently from the other, he must suffer the
maximum of the penalty for the more serious one, on the assumption that it is less
grave than the sum total of the separate penalties for each offense. 12
The rejection of both options shapes and determines the primary ruling of the Court, which is
that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any
other offense committed on the occasion thereof, either as a means necessary to its commission or
as an unintended effect of an activity that constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired
into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely
provides a take-off point for the disposition of other questions relevant to the petitioner's complaints
about the denial of his rights and to the propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in
fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with

murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion.
Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the amended information against
defendant-appellant Amado V. Hernandez, the murders, arsons and robberies
described therein are mere ingredients of the crime of rebellion allegedly committed
by said defendants, as means "necessary" (4) for the perpetration of said offense of
rebellion; that the crime charged in the aforementioned amended information is,
therefore, simple rebellion, not the complex crime of rebellion with multiple murder,
arsons and robberies; that the maximum penalty imposable under such charge
cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that,
in conformity with the policy of this court in dealing with accused persons amenable
to a similar punishment, said defendant may be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute
books, while technically correct so far as the Court has ruled that rebellion may not be complexed
with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight
of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with
a crime defined and punished by the Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed and/or preliminary
investigation conducted? The record shows otherwise, that a complaint against petitioner for simple
rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of
said complaint a preliminary investigation was conducted by the respondent prosecutors,
culminating in the filing of the questioned information. 14 There is nothing inherently irregular or contrary
to law in filing against a respondent an indictment for an offense different from what is charged in the
initiatory complaint, if warranted by the evidence developed during the preliminary investigation.
It is also contended that the respondent Judge issued the warrant for petitioner's arrest without
first personallydetermining the existence of probable cause by examining under oath or affirmation
the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has
already ruled, however, that it is not the unavoidable duty of the judge to make such a personal
examination, it being sufficient that he follows established procedure by personally evaluating the report
and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest
issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which
hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary
investigation. 17 Merely because said respondent had what some might consider only a relatively brief
period within which to comply with that duty, gives no reason to assume that he had not, or could not
have, so complied; nor does that single circumstance suffice to overcome the legal presumption that
official duty has been regularly performed.
Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation
of Hernandezas applicable to petitioner's case, and of the logical and necessary corollary that the
information against him should be considered as charging only the crime of simple rebellion, which is
bailable before conviction, that must now be accepted as a correct proposition. But the question
remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court
the appropriate vehicle for asserting a right to bail or vindicating its denial?

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's
right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny
bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by
filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the
evidence against him. Only after that remedy was denied by the trial court should the review
jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges
a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one
offense, would not excuse or justify his improper choice of remedies. Under either hypothesis, the
obvious recourse would have been a motion to quash brought in the criminal action before the
respondent Judge. 18
There thus seems to be no question that All the grounds upon which petitioner has founded the
present petition, whether these went into the substance of what is charged in the information or
imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing
with the charges against him, were originally justiciable in the criminal case before said Judge and
should have been brought up there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of these questions was beyond the
ability or competence of the respondent Judge-indeed such an assumption would be demeaning and
less than fair to our trial courts; none whatever to hold them to be of such complexity or
transcendental importance as to disqualify every court, except this Court, from deciding them; none,
in short that would justify by passing established judicial processes designed to orderly move
litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of
four Members of the Court against the grant of bail to petitioner: the view that the trial court should
not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that
matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge
here issued a warrant of arrest fixing no bail. Immemorial practice sanctions simply following the
prosecutor's recommendation regarding bail, though it may be perceived as the better course for the
judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event,
incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail
hearing and thereby put to proof the strength or weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush to this Court of other parties in
a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of
seeking recourse in the regular manner just outlined. The proliferation of such pleas has only
contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court.
Not only because popular interest seems focused on the outcome of the present petition, but also
because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that
it has already gone through, the Court now decides the same on the merits. But in so doing, the
Court cannot express too strongly the view that said petition interdicted the ordered and orderly
progression of proceedings that should have started with the trial court and reached this Court only if

the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on
review.
Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift
to, pleas like the present, that clearly short-circuit the judicial process and burden it with the
resolution of issues properly within the original competence of the lower courts. What has thus far
been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No.
92164) which is virtually Identical to that of petitioner Enrile in factualmilieu and is therefore
determinable on the same principles already set forth. Said spouses have uncontestedly
pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case
No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1,
1990, they were taken into custody and detained without bail on the strength of said warrants in violationthey claim-of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany
quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that
present-day rebels are less impelled by love of country than by lust for power and have become no
better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand
in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly
senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days,
as often perpetrated against innocent civilians as against the military, but by and large attributable to,
or even claimed by so-called rebels to be part of, an ongoing rebellion.
It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of
our capital City seem safe from such unsettling violence that is disruptive of the public peace and
stymies every effort at national economic recovery. There is an apparent need to restructure the law
on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to
be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for
every sort of illegal activity undertaken in its name. The Court has no power to effect such change,
for it can only interpret the law as it stands at any given time, and what is needed lies beyond
interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this
matter, which is properly within its province.
WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs.
Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses
Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners
are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to
petitioners being merely provisional in character, the proceedings in both cases are ordered
REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once
bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this
Court shall become functus oficio. No pronouncement as to costs.
SO ORDERED.
Cruz, Gancayco and Regalado, JJ., concur.

Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.
Cortes and Grio-Aquino, JJ., are on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past
three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges
to it that, ironically, have only served to strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the proper remedy.
Had the Information filed below charged merely the simple crime of Rebellion, that proposition could
have been plausible. But that Information charged Rebellion complexed with Murder and Multiple
Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously
intended to make the penalty for the most serious offense in its maximum period imposable upon the
offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the
Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower
Court would not have brought about the speedy relief from unlawful restraint that petitioner was
seeking. During the pendency of said Motion before the lower Court, petitioner could have continued
to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy,
which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a
process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this case, the Court below must
be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas
corpus is thus available.
The writ of habeas corpus is available to relieve persons from unlawful restraint. But
where the detention or confinement is the result of a process issued by the court or
judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed
of. It may still be invoked though if the process, judgment or sentence proceeded
from a court or tribunal the jurisdiction of which may be assailed. Even if it had
authority to act at the outset, it is now the prevailing doctrine that a deprivation of

constitutional right, if shown to exist, would oust it of jurisdiction. In such a case,

habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31
SCRA 391) [Emphasis emphasis].
The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional
right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the
crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.
While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this
Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any
procedural flaw notwithstanding.
The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42
Phil. 805), the writ of habeas corpus being the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action. The
scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its
ability to cut through barriers of form and procedural mazes-have always been
emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of
Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of this Petition, was brought
about by the insistence of the prosecution to charge the crime of Rebellion complexed with other
common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that
charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion
perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D.
No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly
provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full
force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is
bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature
unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court
for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion
may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into
existence nor prescribe a penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising from these cases,
especially on how the defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to
assert the right to bail. Under the special circumstances of this case, however, the petitioners had no
other recourse. They had to come to us.
First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956)
that there is no such crime in our statute books as rebellion complexed with murder, that murder
committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to
arms resulting in the destruction of life or property constitutes neither two or more offenses nor a
complex crime but one crime-rebellion pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational
cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine reexamined have been consistently rejected by this Court.
Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942,
thereby installing the new crime of rebellion complexed with offenses like murder where graver
penalties are imposed by law. However, President Aquino using her then legislative powers
expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion
complexed with murder and made it clear that theHernandez doctrine remains the controlling rule.
The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by
the President. The prosecution, in effect, questions the action of the President in repealing a
repressive decree, a decree which, according to the repeal order, is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the
picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may
be complexed with murder, our declaration can not be made retroactive where the effect is to
imprison a person for a crime which did not exist until the Supreme Court reversed itself.
And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings
charged in the information were committed "on the occasion of, but not a necessary means for, the
commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers
results in simple rebellion because the act is a necessary means to make the rebellion succeed.
However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb
becomes rebellion complexed with murder because the killing of civilians is not necessary for the
success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary
means for' the commission of rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a
separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of
thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if
each bomb or each bullet happens to result in the destruction of life and property. The same act
cannot be punishable by separate penalties depending on what strikes the fancy of prosecutorspunishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also

loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying
waste of civilian economies, the massacre of innocent people, the blowing up of passenger
airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and
should not try to ascertain the intent of rebels for each single act unless the act is plainly not
connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- beenacted legislation. The killing of civilians during a rebel attack on military facilities furthers the
rebellion and is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot understand why the trial
Judge issued the warrant of arrest which categorically states therein that the accused was not
entitled to bail. The petitioner was compelled to come to us so he would not be arrested without
bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme
Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a wellknown Supreme Court ruling.
All courts should remember that they form part of an independent judicial system; they do not belong
to the prosecution service. A court should never play into the hands of the prosecution and blindly
comply with its erroneous manifestations. Faced with an information charging a manifestly nonexistent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible,
make it conform to the law.
A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision
consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free
to express his reservations in the body of his decision, order, or resolution. However, any judgment
he renders, any order he prescribes, and any processes he issues must follow the Supreme Court
precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In
this particular case, it should have been the Solicitor General coming to this Court to question the
lower court's rejection of the application for a warrant of arrest without bail. It should have been the
Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed
from their arrest for a non-existent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at all. It could not have
ruled in any other way on the legal question raised. This Tribunal having spoken, its
duty was to obey. It is as simple as that. There is relevance to this excerpt from
Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of
ascertaining the significance that attaches to a constitutional or statutory provision,
an executive order, a procedural norm or a municipal ordinance is committed to the
judiciary. It thus discharges a role no less crucial than that appertaining to the other
two departments in the maintenance of the rule of law. To assure stability in legal
relations and avoid confusion, it has to speak with one voice. It does so with finality,
logically and rightly, through the highest judicial organ, this Court. What it says then
should be definitive and authoritative, binding on those occupying the lower ranks in
the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of
Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing

paragraph of the opinion in Barrera further emphasizes the point: Such a thought
was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these
words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by
tradition and in our system of judicial administration, has the last word on what the
law is; it is the final arbiter of any justifiable controversy. There is only one Supreme
Court from whose decisions all other courts should take their bearings. (Ibid. Justice
J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA
226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and VirJen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more
inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of
rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the
case.
I have gone over the records and pleadings furnished to the members of the Supreme Court. I
listened intently to the oral arguments during the hearing and it was quite apparent that the
constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any
other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would
be submitted in due time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for decades. Under the
records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a coconspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that
rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the
vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses
and church services and otherwise mix with people in various gatherings. Even if the hosts
recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former
are co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that
the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or
three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing
of probable cause must be shown.
In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a
conspirator in the heinous bombing of innocent civilians because the man who planted the bomb
had, sometime earlier, appeared in a group photograph taken during a birthday party in the United
States with the Senator and other guests. It was a case of conspiracy proved through a group
picture. Here, it is a case of conspiracy sought to proved through the catering of food.
The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public

accusation of crime, from the trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA
241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation
is a statutory grant, and to withhold it would be to transgress constitutional due
process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the
due process clause it is not enough that the preliminary investigation is conducted in
the sense of making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State. More important, it
is a part of the guarantees of freedom and fair play which are birthrights of all who
live in our country. It is, therefore, imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going through a trial once it is
ascertained that the evidence is insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to the guilt of the accused.
Although there is no general formula or fixed rule for the determination of probable
cause since the same must be decided in the light of the conditions obtaining in
given situations and its existence depends to a large degree upon the finding or
opinion of the judge conducting the examination, such a finding should not disregard
the facts before the judge nor run counter to the clear dictates of reason (See La
Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore,
should not go on with the prosecution in the hope that some credible evidence might
later turn up during trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary lives up to its
mission by vitalizing and not denigrating constitutional rights. So it has been before. It
should continue to be so. (id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia which will read the
informations as charging simple rebellion. This case did not arise from innocent error. If an
information charges murder but its contents show only the ingredients of homicide, the Judge may
rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge
the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted
Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our
rulings, does not exist, those informations should be treated as null and void. New informations
charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made
to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.
The Court is not, in any way, preventing the Government from using more effective weapons to
suppress rebellion. If the Government feels that the current situation calls for the imposition of more
severe penalties like death or the creation of new crimes like rebellion complexed with murder, the
remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void
informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of
law, could stand reexamination or clarification. I have in mind in particular matters such as the
correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code.
This is a matter which relates to the legal concept of rebellion in our legal system. If one examines
the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear
that this Article specifies both the overt acts and the criminal purpose which, when put together,
would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is
committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising
rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the
allegiance to said government or its laws the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135
(entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures
which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces
of the Government, destroying property or committing serious violence, exacting contributions or
diverting public funds from the lawful purpose for which they have been appropriated." Are these
modalities of rebellion generally? Or are they particular modes by which those "who promote [ ],
maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of
participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of
rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of
the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional
modes of seeking to carry out the political or social objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even the above threshold
questions is that the results of such re-examination may well be that acts which under
the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete
offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted
under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2
thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a
conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article
8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but
rather bear upon the lives of people with the specific form given them by judicial decisions
interpreting their norms. Judicial decisions construing statutory norms give specific shape and
content to such norms. In time, the statutory norms become encrusted with the glosses placed upon
them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA
247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as
of the date that the law was originally enacted, I believe this theory is not to be applied rigorously
where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine
of long standing (here, 36 years) and most specially not where the statute construed is criminal in
nature and the new doctrine is more onerous for the accused than the pre-existing one (People v.
Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of

Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative
acts or judicial decisions has constitutional implications. The prevailing rule in the United States is
that a judicial decision that retroactively renders an act criminal or enhances the severity of the
penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule
against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L.
Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico
Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does not present any real
problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of
the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of
Article 48 that the Government here invokes. It is, however, open to serious doubt
whether Hernandez can reasonably be so simply and sharply characterized. And assuming
the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms
which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g.,
People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it
appears to me that the critical question would be whether a man of ordinary intelligence would have
necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second
clause. Put in slightly different terms, the important question would be whether the new doctrine here
proposed by the Government could fairly have been derived by a man of average intelligence (or
counsel of average competence in the law) from an examination of Articles 134 and 135 of the
Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To
formulate the question ill these terms would almost be to compel a negative answer, especially in
view of the conclusions reached by the Court and its several Members today.
Finally, there appears to be no question that the new doctrine that the Government would have us
discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more
onerous for the respondent accused than the simple application of the Hernandez doctrine that
murders which have been committed on the occasion of and in furtherance of the crime of rebellion
must be deemed absorbed in the offense of simple rebellion.
I agree therefore that the information in this case must be viewed as charging only the crime of
simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956
ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs.
Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of
said doctrine so as to make it conformable with accepted and well-settled principles of criminal law
and jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the
rule that all common crimes committed on the occasion, or in furtherance of, or in connection with,

rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in
the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of
rebellion with any other offense committed on the occasion thereof, either as a means necessary to
its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956
during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34
years since then have far-reaching effects on the all-embracing applicability of the doctrine
considering the emergence of alternative modes of seizing the powers of the duly constituted
Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their
consequent effects on the lives of our people. The doctrine was good law then, but I believe that
there is a certain aspect of the Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant
case, should have further considered that distinction between acts or offenses which
are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that
are merely necessary but not indispensable in the commission of rebellion, on the other. The
majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an
offense perpetrated as a necessary means of committing another, which is an element of the latter,
the resulting interlocking crimes should be considered as only one simple offense and must be
deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal
Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what
is indispensable from what is merely necessary in the commission of an offense, resulting thus in the
rule that common crimes like murder, arson, robbery, etc. committed in the course or on the
occasion of rebellion are absorbed or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to contemporaneous
events happening in our country today. Theoretically, a crime which is indispensable in the
commission of another must necessarily be an element of the latter; but a crime that is merely
necessary but not indispensable in the commission of another is not an element of the latter, and if
and when actually committed, brings the interlocking crime within the operation of the complex crime
provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed
against Government forces and property in the course of rebellion are properly considered
indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or
elements thereof, but common crimes committed against the civilian population in the course or on
the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in
committing the latter, and may, therefore, not be considered as elements of the said crime of
rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between
government forces and the rebels are absorbed in the rebellion, and would be those resulting from
the bombing of military camps and installations, as these acts are indispensable in carrying out the
rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos
among the people, although done in the furtherance of the rebellion, should not be absorbed in the
crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case,
Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the dulyconstituted government by staging surprise attacks or occupying centers of powers, of which this
Court should take judicial notice, has introduced a new dimension to the interpretation of the
provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing
the powers of the duly constituted government, it falls within the contemplation of rebellion under the
Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of
its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup
d'etat from the traditional definition and modes of commission attached by the Revised Penal Code
to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A
coup d'etat may be executed successfully without its perpetrators resorting to the commission of
other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of
surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and
other common crimes are committed on the occasion of a coup d' etat, the distinction referred to
above on what is necessary and what is indispensable in the commission of the coup d'etat should
be painstakingly considered as the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but I take exception to the
vote of the majority on the broad application of the Hernandez doctrine.
BIDIN, J., concurring and dissenting:
I concur with the majority opinion except as regards the dispositive portion thereof which orders the
remand of the case to the respondent judge for further proceedings to fix the amount of bail to be
posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge for the purpose of
fixing bail since we have construed the indictment herein as charging simple rebellion, an offense
which is bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an
accused who had been charged with simple rebellion, a bailable offense but who had been denied
his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view
thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon
us, if complete relief is to be accorded to petitioner in the instant proceedings.
It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused
before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and
Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others,
for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits
of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas
corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to
bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems
reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith
be certified to the respondent trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional
release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his
bail bond for his provisional release in the case (simple rebellion) pending before the respondent

judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's)
appearance before the trial court to abide its order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it
has firmly settled in the tomes of our jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which
implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint
of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness
that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary means for the
commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense,
in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder,
among other possible crimes.
I also agree that the information may stand as an accusation for simple rebellion. Since the acts
complained of as constituting rebellion have been embodied in the information, mention therein of
murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left
fully described. 4
At any rate, the government need only amend the information by a clerical correction, since an
amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I
take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty"
upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional
liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we ourselves have been satisfied that
the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil.
515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense
committed on the occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion."
I dissent, however, from the majority opinion insofar as it holds that the information in question, while
charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as
charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material
respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez
had been convicted by the trial court of the complex crime of rebellion with murder, arson and
robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to
the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and
robbery does not exist. In the present cases, on the other hand, the Court is confronted with
an original case, i.e., where an information has been recently filed in the trial court and the
petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of
whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the
other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law),
but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to
bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple
frustrated murder does not exist.
And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court
laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has
persisted in hearing, an information charging the petitioners with rebellion complexed with murder an
multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head
should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise
to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on
which they are anchored. And, since the entire question of the information's validity is before the
Court in these habeas corpus cases, I venture to say that the information is fatally defective,even
under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of
Court).
I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information
by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file
an entirely new and properinformation, for this entire exercise to merit the serious consideration of
the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the
information for rebellion complexed with murder and multiple frustrated murder in Criminal Case
Nos. 90-10941, RTC of Quezon City, DISMISSED.
Consequently, the petitioners should be ordered permanently released and their bails cancelled.
Paras, J., concurs.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past
three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges
to it that, ironically, have only served to strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the proper remedy.
Had the Information filed below charged merely the simple crime of Rebellion, that proposition could
have been plausible. But that Information charged Rebellion complexed with Murder and Multiple
Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously
intended to make the penalty for the most serious offense in its maximum period imposable upon the
offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the
Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower
Court would not have brought about the speedy relief from unlawful restraint that petitioner was
seeking. During the pendency of said Motion before the lower Court, petitioner could have continued
to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy,
which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a
process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this case, the Court below must
be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas
corpus is thus available.
The writ of habeas corpus is available to relieve persons from unlawful restraint. But
where the detention or confinement is the result of a process issued by the court or
judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed
of. It may still be invoked though if the process, judgment or sentence proceeded
from a court or tribunal the jurisdiction of which may be assailed. Even if it had
authority to act at the outset, it is now the prevailing doctrine that a deprivation of
constitutional right, if shown to exist, would oust it of jurisdiction. In such a case,
habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31
SCRA 391) [Emphasis emphasis].
The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional
right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the
crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.
While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this
Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any
procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42

Phil. 805), the writ of habeas corpus being the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action. The
scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its
ability to cut through barriers of form and procedural mazes-have always been
emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of
Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of this Petition, was brought
about by the insistence of the prosecution to charge the crime of Rebellion complexed with other
common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that
charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion
perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D.
No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly
provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full
force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is
bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature
unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court
for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion
may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into
existence nor prescribe a penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising from these cases,
especially on how the defective informations filed by the prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to
assert the right to bail. Under the special circumstances of this case, however, the petitioners had no
other recourse. They had to come to us.
First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956)
that there is no such crime in our statute books as rebellion complexed with murder, that murder
committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to
arms resulting in the destruction of life or property constitutes neither two or more offenses nor a
complex crime but one crime-rebellion pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational
cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine reexamined have been consistently rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942,
thereby installing the new crime of rebellion complexed with offenses like murder where graver
penalties are imposed by law. However, President Aquino using her then legislative powers
expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion
complexed with murder and made it clear that theHernandez doctrine remains the controlling rule.
The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by
the President. The prosecution, in effect, questions the action of the President in repealing a
repressive decree, a decree which, according to the repeal order, is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the
picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may
be complexed with murder, our declaration can not be made retroactive where the effect is to
imprison a person for a crime which did not exist until the Supreme Court reversed itself.
And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings
charged in the information were committed "on the occasion of, but not a necessary means for, the
commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers
results in simple rebellion because the act is a necessary means to make the rebellion succeed.
However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb
becomes rebellion complexed with murder because the killing of civilians is not necessary for the
success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary
means for' the commission of rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a
separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of
thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if
each bomb or each bullet happens to result in the destruction of life and property. The same act
cannot be punishable by separate penalties depending on what strikes the fancy of prosecutorspunishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also
loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying
waste of civilian economies, the massacre of innocent people, the blowing up of passenger
airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and
should not try to ascertain the intent of rebels for each single act unless the act is plainly not
connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- beenacted legislation. The killing of civilians during a rebel attack on military facilities furthers the
rebellion and is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot understand why the trial
Judge issued the warrant of arrest which categorically states therein that the accused was not
entitled to bail. The petitioner was compelled to come to us so he would not be arrested without
bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme
Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a wellknown Supreme Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong
to the prosecution service. A court should never play into the hands of the prosecution and blindly
comply with its erroneous manifestations. Faced with an information charging a manifestly nonexistent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible,
make it conform to the law.
A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision
consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free
to express his reservations in the body of his decision, order, or resolution. However, any judgment
he renders, any order he prescribes, and any processes he issues must follow the Supreme Court
precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In
this particular case, it should have been the Solicitor General coming to this Court to question the
lower court's rejection of the application for a warrant of arrest without bail. It should have been the
Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed
from their arrest for a non-existent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at all. It could not have
ruled in any other way on the legal question raised. This Tribunal having spoken, its
duty was to obey. It is as simple as that. There is relevance to this excerpt from
Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of
ascertaining the significance that attaches to a constitutional or statutory provision,
an executive order, a procedural norm or a municipal ordinance is committed to the
judiciary. It thus discharges a role no less crucial than that appertaining to the other
two departments in the maintenance of the rule of law. To assure stability in legal
relations and avoid confusion, it has to speak with one voice. It does so with finality,
logically and rightly, through the highest judicial organ, this Court. What it says then
should be definitive and authoritative, binding on those occupying the lower ranks in
the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of
Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing
paragraph of the opinion in Barrera further emphasizes the point: Such a thought
was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these
words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by
tradition and in our system of judicial administration, has the last word on what the
law is; it is the final arbiter of any justifiable controversy. There is only one Supreme
Court from whose decisions all other courts should take their bearings. (Ibid. Justice
J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA
226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and VirJen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more
inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of
rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the
case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I
listened intently to the oral arguments during the hearing and it was quite apparent that the
constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any
other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would
be submitted in due time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for decades. Under the
records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a coconspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that
rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the
vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses
and church services and otherwise mix with people in various gatherings. Even if the hosts
recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former
are co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that
the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or
three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing
of probable cause must be shown.
In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a
conspirator in the heinous bombing of innocent civilians because the man who planted the bomb
had, sometime earlier, appeared in a group photograph taken during a birthday party in the United
States with the Senator and other guests. It was a case of conspiracy proved through a group
picture. Here, it is a case of conspiracy sought to proved through the catering of food.
The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA
241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation
is a statutory grant, and to withhold it would be to transgress constitutional due
process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the
due process clause it is not enough that the preliminary investigation is conducted in
the sense of making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State. More important, it
is a part of the guarantees of freedom and fair play which are birthrights of all who
live in our country. It is, therefore, imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going through a trial once it is
ascertained that the evidence is insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to the guilt of the accused.
Although there is no general formula or fixed rule for the determination of probable
cause since the same must be decided in the light of the conditions obtaining in
given situations and its existence depends to a large degree upon the finding or

opinion of the judge conducting the examination, such a finding should not disregard
the facts before the judge nor run counter to the clear dictates of reason (See La
Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore,
should not go on with the prosecution in the hope that some credible evidence might
later turn up during trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary lives up to its
mission by vitalizing and not denigrating constitutional rights. So it has been before. It
should continue to be so. (id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia which will read the
informations as charging simple rebellion. This case did not arise from innocent error. If an
information charges murder but its contents show only the ingredients of homicide, the Judge may
rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge
the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted
Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our
rulings, does not exist, those informations should be treated as null and void. New informations
charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made
to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.
The Court is not, in any way, preventing the Government from using more effective weapons to
suppress rebellion. If the Government feels that the current situation calls for the imposition of more
severe penalties like death or the creation of new crimes like rebellion complexed with murder, the
remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void
informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of
law, could stand reexamination or clarification. I have in mind in particular matters such as the
correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code.
This is a matter which relates to the legal concept of rebellion in our legal system. If one examines
the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear
that this Article specifies both the overt acts and the criminal purpose which, when put together,
would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is
committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising
rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the
allegiance to said government or its laws the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135
(entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures

which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces
of the Government, destroying property or committing serious violence, exacting contributions or
diverting public funds from the lawful purpose for which they have been appropriated." Are these
modalities of rebellion generally? Or are they particular modes by which those "who promote [ ],
maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of
participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of
rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of
the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional
modes of seeking to carry out the political or social objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even the above threshold
questions is that the results of such re-examination may well be that acts which under
the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete
offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted
under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2
thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a
conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article
8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but
rather bear upon the lives of people with the specific form given them by judicial decisions
interpreting their norms. Judicial decisions construing statutory norms give specific shape and
content to such norms. In time, the statutory norms become encrusted with the glosses placed upon
them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA
247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as
of the date that the law was originally enacted, I believe this theory is not to be applied rigorously
where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine
of long standing (here, 36 years) and most specially not where the statute construed is criminal in
nature and the new doctrine is more onerous for the accused than the pre-existing one (People v.
Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of
Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative
acts or judicial decisions has constitutional implications. The prevailing rule in the United States is
that a judicial decision that retroactively renders an act criminal or enhances the severity of the
penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule
against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L.
Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico
Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does not present any real
problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of
the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of
Article 48 that the Government here invokes. It is, however, open to serious doubt
whether Hernandez can reasonably be so simply and sharply characterized. And assuming
the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms
which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g.,

People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it
appears to me that the critical question would be whether a man of ordinary intelligence would have
necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second
clause. Put in slightly different terms, the important question would be whether the new doctrine here
proposed by the Government could fairly have been derived by a man of average intelligence (or
counsel of average competence in the law) from an examination of Articles 134 and 135 of the
Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To
formulate the question ill these terms would almost be to compel a negative answer, especially in
view of the conclusions reached by the Court and its several Members today.
Finally, there appears to be no question that the new doctrine that the Government would have us
discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more
onerous for the respondent accused than the simple application of the Hernandez doctrine that
murders which have been committed on the occasion of and in furtherance of the crime of rebellion
must be deemed absorbed in the offense of simple rebellion.
I agree therefore that the information in this case must be viewed as charging only the crime of
simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956
ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs.
Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of
said doctrine so as to make it conformable with accepted and well-settled principles of criminal law
and jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the
rule that all common crimes committed on the occasion, or in furtherance of, or in connection with,
rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in
the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of
rebellion with any other offense committed on the occasion thereof, either as a means necessary to
its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956
during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34
years since then have far-reaching effects on the all-embracing applicability of the doctrine
considering the emergence of alternative modes of seizing the powers of the duly constituted
Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their
consequent effects on the lives of our people. The doctrine was good law then, but I believe that
there is a certain aspect of the Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant
case, should have further considered that distinction between acts or offenses which

are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that
are merely necessary but not indispensable in the commission of rebellion, on the other. The
majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an
offense perpetrated as a necessary means of committing another, which is an element of the latter,
the resulting interlocking crimes should be considered as only one simple offense and must be
deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal
Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what
is indispensable from what is merely necessary in the commission of an offense, resulting thus in the
rule that common crimes like murder, arson, robbery, etc. committed in the course or on the
occasion of rebellion are absorbed or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to contemporaneous
events happening in our country today. Theoretically, a crime which is indispensable in the
commission of another must necessarily be an element of the latter; but a crime that is merely
necessary but not indispensable in the commission of another is not an element of the latter, and if
and when actually committed, brings the interlocking crime within the operation of the complex crime
provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed
against Government forces and property in the course of rebellion are properly considered
indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or
elements thereof, but common crimes committed against the civilian population in the course or on
the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in
committing the latter, and may, therefore, not be considered as elements of the said crime of
rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between
government forces and the rebels are absorbed in the rebellion, and would be those resulting from
the bombing of military camps and installations, as these acts are indispensable in carrying out the
rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos
among the people, although done in the furtherance of the rebellion, should not be absorbed in the
crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case,
Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the powers of the dulyconstituted government by staging surprise attacks or occupying centers of powers, of which this
Court should take judicial notice, has introduced a new dimension to the interpretation of the
provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing
the powers of the duly constituted government, it falls within the contemplation of rebellion under the
Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of
its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup
d'etat from the traditional definition and modes of commission attached by the Revised Penal Code
to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A
coup d'etat may be executed successfully without its perpetrators resorting to the commission of
other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of
surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and
other common crimes are committed on the occasion of a coup d' etat, the distinction referred to
above on what is necessary and what is indispensable in the commission of the coup d'etat should
be painstakingly considered as the Court should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the
vote of the majority on the broad application of the Hernandez doctrine.
BIDIN, J., concurring and dissenting:
I concur with the majority opinion except as regards the dispositive portion thereof which orders the
remand of the case to the respondent judge for further proceedings to fix the amount of bail to be
posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge for the purpose of
fixing bail since we have construed the indictment herein as charging simple rebellion, an offense
which is bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an
accused who had been charged with simple rebellion, a bailable offense but who had been denied
his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view
thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon
us, if complete relief is to be accorded to petitioner in the instant proceedings.
It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused
before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and
Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others,
for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits
of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas
corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to
bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems
reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith
be certified to the respondent trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional
release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his
bail bond for his provisional release in the case (simple rebellion) pending before the respondent
judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's)
appearance before the trial court to abide its order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it
has firmly settled in the tomes of our jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which
implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint
of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness
that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary means for the
commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense,
in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder,
among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts
complained of as constituting rebellion have been embodied in the information, mention therein of
murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left
fully described. 4
At any rate, the government need only amend the information by a clerical correction, since an
amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I
take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty"
upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional
liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we ourselves have been satisfied that
the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil.
515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense
committed on the occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion."
I dissent, however, from the majority opinion insofar as it holds that the information in question, while
charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as
charging simple rebellion."
The present cases are to be distinguished from the Hernandez case in at least one (1) material
respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez
had been convicted by the trial court of the complex crime of rebellion with murder, arson and
robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to
the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and
robbery does not exist. In the present cases, on the other hand, the Court is confronted with
an original case, i.e., where an information has been recently filed in the trial court and the
petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of
whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the
other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law),
but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to
bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple
frustrated murder does not exist.
And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court
laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has

persisted in hearing, an information charging the petitioners with rebellion complexed with murder an
multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head
should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise
to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on
which they are anchored. And, since the entire question of the information's validity is before the
Court in these habeas corpus cases, I venture to say that the information is fatally defective,even
under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of
Court).
I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information
by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file
an entirely new and properinformation, for this entire exercise to merit the serious consideration of
the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the
information for rebellion complexed with murder and multiple frustrated murder in Criminal Case
Nos. 90-10941, RTC of Quezon City, DISMISSED.
Consequently, the petitioners should be ordered permanently released and their bails cancelled.
Paras, J., concurs.
G.R. No. 93335 September 13, 1990
JUAN PONCE ENRILE, petitioner,
vs.
HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON. IGNACIO M.
CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL
COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS
and Asst. City Prosecutor EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents.
Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion
complexed with murder 1 with the Regional Trial Court of Quezon City, government prosecutors filed another

information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of
Makati. The second information reads:
That on or about the 1st day of December 1989, at Dasmarias Village, Makati, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused, having reasonable
ground to believe or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did
then and there unlawfully, feloniously, willfully and knowingly obstruct, impede, frustrate or delay
the apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in
his house.

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant of arrest
pending personal determination by the court of probable cause, and (b) to dismiss the case and expunge the
information from the record.
On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin, denied
Senator Enrile's Omnibus motion on the basis of a finding that "there (was) probable cause to hold the accused Juan
Ponce Enrile liable for violation of PD No. 1829."
On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information on the
grounds that:
(a) The facts charged do not constitute an offense;
(b) The respondent court's finding of probable cause was devoid of factual and legal basis; and
(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as alleged
co-conspirator of Col. Honasan, on the basis of their alleged meeting on December 1, 1989 preclude the prosecution
of the Senator for harboring or concealing the Colonel on the same occasion under PD 1829.
On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged lack of
merit and setting Senator Enrile's arraignment to May 30, 1990.
The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack or excess of
jurisdiction committed by the respondent court in refusing to quash/ dismiss the information on the following grounds,
to wit:
I. The facts charged do not constitute an offense;
II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1
December 1989 is absorbed in, or is a component element of, the "complexed" rebellion presently
charged against Sen. Enrile as alleged co-conspirator of Col. Honasan on the basis of the same
meeting on 1 December 1989;
III. The orderly administration of Justice requires that there be only one prosecution for all the
component acts of rebellion;
IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential
Decree No. 1829;
V. No preliminary investigation was conducted for alleged violation of Presidential Decree No.
1829. The preliminary investigation, held only for rebellion, was marred by patent irregularities
resulting in denial of due process.
On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting further
proceedings in Criminal Case No. 90-777 until otherwise directed by this Court.
The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD No. 1829
notwithstanding the rebellion case earlier filed against him.

Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case filed
against the petitioner on the theory that the former involves a special law while the latter is based on the Revised
Penal Code or a general law.
The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956]) the rulings
of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar,(G.R. Nos.
92163 and 92164, June 5, 1990). The Enrile case gave this Court the occasion to reiterate the long standing
proscription against splitting the component offenses of rebellion and subjecting them to separate prosecutions, a
procedure reprobated in the Hernandez case. This Court recently declared:
The rejection of both options shapes and determines the primary ruling of the Court, which
thatHernandez remains binding doctrine operating to prohibit the complexing of rebellion with any
other offense committed on the occasion thereof, either as a means to its commission or as an
unintended effect of an activity that commutes rebellion. (Emphasis supplied)
This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime of rebellion for
the greater penalty to be applied, neither can he be charged separately for two (2) different offenses where one is a
constitutive or component element or committed in furtherance of rebellion.
The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which states:
SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000
to 6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution
of criminal cases by committing any of the following acts:
xxx xxx xxx
(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable
ground to believe or suspect has committed any offense under existing penal laws in order to
prevent his arrest, prosecution and conviction.
xxx xxx xxx
The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan by
giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive from
justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended. And because of such
failure the petitioner prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of PD No. 1829.
The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by three (3)
employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some
100 rebel soldiers attended the mass and birthday party held at the residence of the petitioner in the evening of
December 1, 1989. The information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1 December,
1989, Col. Gregorio "Gringo" Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about
100 fully armed rebel soldiers wearing white armed patches". The prosecution thereby concluded that:
In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his
house in the presence of about 100 uniformed soldiers who were fully armed, can be inferred that
they were co-conspirators in the failed December coup. (Annex A, Rollo, p. 65; Emphasis supplied)
As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very incident
which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the Department of Justice

resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with murder and multiple frustrated
murder but there could be 101 separate and independent prosecutions for harboring and concealing" Honasan and
100 other armed rebels under PD No. 1829. The splitting of component elements is readily apparent.
The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan. Necessarily,
being in conspiracy with Honasan, petitioners alleged act of harboring or concealing was for no other purpose but in
furtherance of the crime of rebellion thus constitute a component thereof. it was motivated by the single intent or
resolution to commit the crime of rebellion. As held in People v. Hernandez, supra:
In short, political crimes are those directly aimed against the political order, as well as such
common crimes as may be committed to achieve a political purpose. The decisive factor is the
intent or motive. (p. 536)
The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net of
intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in furtherance of
the rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion. (People v.
Geronimo, 100 Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960];
People v. Lava, 28 SCRA 72 [1969]). In this case, the act of harboring or concealing Col. Honasan is clearly a mere
component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the
basis of a separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:
In the nature of things, the giving of aid and comfort can only be accomplished by some kind of
action. Its very nature partakes of a deed or physical activity as opposed to a mental operation.
(Cramer v. U.S., ante) This deed or physical activity may be, and often is, in itself a criminal offense
under another penal statute or provision. Even so, when the deed is charged as an element of
treason it becomes Identified with the latter crime and can not be the subject of a separate
punishment, or used in combination with treason to increase the penalty as article 48 of the
Revised Penal Code provides. Just as one can not be punished for possessing opium in a
prosecution for smoking the Identical drug, and a robber cannot be held guilty of coercion or
trespass to a dwelling in a prosecution for robbery, because possession of opium and force and
trespass are inherent in smoking and in robbery respectively, so may not a defendant be made
liable for murder as a separate crime or in conjunction with another offense where, as in this case,
it is averred as a constitutive ingredient of treason.
The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a
special law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law will not
bar a prosecution under the other. This argument is specious in rebellion cases.
In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the same. All crimes,
whether punishable under a special law or general law, which are mere components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate
crimes in themselves. Thus:
This does not detract, however, from the rule that the ingredients of a crime form part and parcel
thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom
or by the application of Article 48 of the Revised Penal Code. ... (People v. Hernandez, supra, at p.
528)
The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These
common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in the
Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of
absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which
are perpetrated in furtherance of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too intimately
tied up with his allegedly harboring and concealing Honasan for practically the same act to form two separate crimes
of rebellion and violation of PD No. 1829.
Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of conspiring with
Honasan was committed in connection with or in furtherance of rebellion and must now be deemed as absorbed by,
merged in, and Identified with the crime of rebellion punished in Articles 134 and 135 of the RPC.
Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the
proposition that common crimes, perpetrated in furtherance of a political offense, are divested of
their character as "common" offenses, and assume the political complexion of the main crime of
which they are mere ingredients, and consequently, cannot be punished separately from the
principal offense, or complexed with the same, to justify the imposition of a graver penalty. (People
v. Hernandez, supra, p. 541)
In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of the
crime of rebellion, faced an independent prosecution for illegal possession of firearms. The Court ruled:
An examination of the record, however, discloses that the crime with which the accused is charged
in the present case which is that of illegal possession of firearm and ammunition is already
absorbed as a necessary element or ingredient in the crime of rebellion with which the same
accused is charged with other persons in a separate case and wherein he pleaded guilty and was
convicted. (at page 662)
xxx xxx xxx
[T]he conclusion is inescapable that the crime with which the accused is charged in the present
case is already absorbed in the rebellion case and so to press it further now would be to place him
in double jeopardy. (at page 663)
Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had the
occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of the New
Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in furtherance of subversion
under Section 1 of PD 1866. In his motion to quash the information, the petitioner based his arguments on
the Hernandez and Geronimo rulings on the doctrine of absorption of common in rebellion. The Court, however,
clarified, to wit:
... in the present case, petitioner is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE
COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER
IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION
OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no
application in this case.
The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because no
separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind

whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him
with murder and multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion
with murder and multiple frustrated murder. Neither can it prosecute him for rebellion in Quezon City and
violation of PD 1829 in Makati. It should be noted that there is in fact a separate prosecution for rebellion
already filed with the Regional Trial Court of Quezon City. In such a case, the independent prosecution
under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with
rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate,
the motive for the act is completely different. But if the act is committed with political or social motives, that is in
furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished
separately.
In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being prosecuted
in the rebellion case. With this ruling, there is no need for the Court to pass upon the other issues raised by the
petitioner.
WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ of
preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777, Regional Trial
Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting further proceedings
therein is made permanent.
SO ORDERED.