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CASE LIST

1. YAPYUCO VS SANDIGANBAYAN
2. US VS AH CHONG
3. DUNGO VS PEOPLE
4. YSIDORO VS PEOPLE
5. PEOPLE VS VILLACORTA
6. QUINTO VS ANDRES
7. JACINTO VS PEOPLE
8. INTOD VS CA
9. VALENZUELA VS PEOPLE
10.

BALEROS VS PEOPLE

11.

PEOPLE VS ALMAZAN

12.

PEOPLE VS LISTERIO

13.

PEOPLE VS CAMPUHAN

14.

PEOPLE VS DELA CRUZ

15.

PEOPLE VS ORITA

16.

PEOPLE VS COMADRE

G.R. Nos. 120744-46

June 25, 2012

SALVADOR YAPYUCO y ENRIQUEZ, Petitioner,


vs.
HONORABLE
SANDIGANBAYAN
PHILIPPINES, Respondents.

and

THE

PEOPLE

OF

THE

x-----------------------x
DECISION
PERALTA, J.:
Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton
violence is never justified when their duty could be performed otherwise. A "shoot first,

think later" disposition occupies no decent place in a civilized society. Never has
homicide or murder been a function of law enforcement. The public peace is never
predicated on the cost of human life.
These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing
the June 30, 1995 Decision1 of the Sandiganbayan in Criminal Case Nos. 16612, 16613
and 16614 cases for murder, frustrated murder and multiple counts of attempted
murder, respectively. The cases are predicated on a shooting incident on April 5, 1988 in
Barangay Quebiawan, San Fernando, Pampanga which caused the death of Leodevince
Licup (Licup) and injured Noel Villanueva (Villanueva). Accused were petitioners Salvador
Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno)
who were members of the Integrated National Police (INP) 2 stationed at the Sindalan
Substation in San Fernando, Pampanga; Jose Pamintuan (Pamintuan) and Mario Reyes,
who were barangay captains of Quebiawan and Del Carmen, respectively; Ernesto Puno,
Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David, Ruben Lugtu, Moises
Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David (David), who were
either members of the Civil Home Defense Force (CHDF) or civilian volunteer officers in
Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with
murder, multiple attempted murder and frustrated murder in three Informations, the
inculpatory portions of which read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod
and members of the Civil Home Defense Force (CHDF), respectively, confederating and
mutually helping one another, and while responding to information about the presence
of armed men in said barangay and conducting surveillance thereof, thus committing
the offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with deliberate intent to take the
life of Leodevince S. Licup, attack the latter with automatic weapons by firing directly at
the green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple
gunshot wounds which are necessarily mortal on the different parts of the body, thereby
causing the direct and immediate death of the latter.
CONTRARY TO LAW.3
Criminal Case No. 16613:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod
and members of the Civil Home Defense Force (CHDF), respectively, confederating and
mutually helping one another, and while responding to information about the presence
of armed men in said barangay and conducting surveillance thereof, thus committing
the offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with intent to kill, attack Eduardo
S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with automatic
weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo S.
Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having commenced
the commission of murder directly by overt acts of execution which should produce the
murder by reason of some cause or accident other than their own spontaneous
desistance.

CONTRARY TO LAW.4
Criminal Case No. 16614:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod
and members of the Civil Home Defense Force (CHDF), respectively, confederating and
mutually helping one another, and while responding to information about the presence
of armed men in said barangay and conducting surveillance thereof, thus committing
the offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with intent of taking the life of
Noel C. Villanueva, attack the latter with automatic weapons by firing directly at the
green Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple
gunshot wounds which are necessarily mortal and having performed all the acts which
would have produced the crime of murder, but which did not, by reason of causes
independent of the defendants will, namely, the able and timely medical assistance
given to said Noel C. Villanueva, which prevented his death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the
authorities,6 the accused except Pabalan who died earlier on June 12, 1990, 7 and
Yapyuco who was then allegedly indisposed8 entered individual pleas of not guilty. 9 A
month later, Yapyuco voluntarily surrendered to the authorities, and at his arraignment
likewise entered a negative plea.10 In the meantime, Mario Reyes, Andres Reyes, David,
Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative to Criminal Case
No. 16612.11 Said motion was heard on the premise, as previously agreed upon by both
the prosecution and the defense, that these cases would be jointly tried and that the
evidence adduced at said hearing would automatically constitute evidence at the trial
on the merits.12 On May 10, 1991, the Sandiganbayan granted bail in Criminal Case No.
16612.13Yapyuco likewise applied for bail on May 15, 1991 and the same was also
granted on May 21, 1991.14 Pamintuan died on November 21, 1992, 15 and accordingly,
the charges against him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial
inquest. 16 Hence, joint trial on the merits ensued and picked up from where the
presentation of evidence left off at the hearing on the bail applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores,
Calma, De Vera, Panlican and Licup were at the residence of Salangsang as guests at the
barrio fiesta celebrations between 5:00 and 7:30 p.m.. The company decided to leave at
around 7:30 p.m., shortly after the religious procession had passed. As they were all
inebriated, Salangsang reminded Villanueva, who was on the wheel, to drive carefully
and watch out for potholes and open canals on the road. With Licup in the passenger
seat and the rest of his companions at the back of his Tamaraw jeepney, Villanueva
allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as they were
approaching a curve on the road, they met a burst of gunfire and instantly, Villanueva
and Licup were both wounded and bleeding profusely.17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not
see any one on the road flag them down. 18 In open court, Flores executed a
sketch19 depicting the relative location of the Tamaraw jeepney on the road, the
residence of Salangsang where they had come from and the house situated on the right

side of the road right after the curve where the jeepney had taken a left turn; he
identified said house to be that of a certain Lenlen Naron where the gunmen allegedly
took post and opened fire at him and his companions. He could not tell how many
firearms were used. He recounted that after the shooting, he, unaware that Licup and
Villanueva were wounded, jumped out of the jeepney when he saw from behind them
Pamintuan emerging from the yard of Narons house. Frantic and shaken, he
instantaneously introduced himself and his companions to be employees of San Miguel
Corporation but instead, Pamintuan reproved them for not stopping when flagged. At
this point, he was distracted when Villanueva cried out and told him to summon
Salangsang for help as he (Villanueva) and Licup were wounded. He dashed back to
Salangsangs house as instructed and, returning to the scene, he observed that
petitioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao
jeepney to be taken to the hospital. 20 This was corroborated by Villanueva who stated
that as soon as the firing had ceased, two armed men, together with Pamintuan,
approached them and transferred him and Licup to another jeepney and taken to the
nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire which very rapidly
succeeded each other, and that they were given no warning shot at all contrary to what
the defense would say.22 He professed that he, together with his co-passengers, were
also aboard the Sarao jeepney on its way to the hospital and inside it he observed two
men, each holding long firearms, seated beside the driver. He continued that as soon as
he and his companions had been dropped off at the hospital, the driver of the Sarao
jeepney immediately drove off together with his two armed companions. 23 He further
narrated that the day after the shooting, he brought Licup to the Makati Medical Center
where the latter expired on April 7, 1988. 24 He claimed that all the accused in the case
had not been known to him prior to the incident, except for Pamintuan whom he
identified to be his wifes uncle and with whom he denied having had any rift nor with
the other accused for that matter, which would have otherwise inspired ill motives. 25 He
claimed the bullet holes on the Tamaraw jeepney were on the passenger side and that
there were no other bullet holes at the back or in any other portion of the vehicle. 26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the
presence of his companions at his residence on the subject date and time, and
corroborated Villanuevas and Flores narration of the events immediately preceding the
shooting. He recounted that after seeing off his guests shortly after the procession had
passed his house and reminding them to proceed carefully on the pothole-studded
roads, he was alarmed when moments later, he heard a volley of gunfire from a distance
which was shortly followed by Flores frantic call for help. He immediately proceeded to
the scene on his bicycle and saw Pamintuan by the lamppost just outside the gate of
Narons house where, inside, he noticed a congregation of more or less six people whom
he could not recognize. 27 At this point, he witnessed Licup and Villanueva being loaded
into another jeepney occupied by three men who appeared to be in uniform. He then
retrieved the keys of the Tamaraw jeepney from Villanueva and decided to deliver it to
his mothers house, but before driving off, he allegedly caught a glance of Mario Reyes
on the wheel of an owner-type jeepney idling in front of the ill-fated Tamaraw; it was the
same jeepney which he remembered to be that frequently used by Yapyuco in patrolling
the barangay. He claimed he spent the night at his mothers house and in the morning, a
policeman came looking for him with whom, however, he was not able to talk.28
Salangsang observed that the scene of the incident was dark because the electric post
in front of Narons house was strangely not lit when he arrived, and that none of the
neighboring houses was illuminated. He admitted his uncertainty as to whether it was
Yapyucos group or the group of Pamintuan that brought his injured companions to the

hospital, but he could tell with certainty that it was the Sarao jeepney previously
identified by Villanueva and Flores that brought his injured companions to the hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp
Olivas, affirmed that she had previously examined the firearms suspected to have been
used by petitioners in the shooting and found them positive for gunpowder residue. She
could not, however, determine exactly when the firearms were discharged; neither could
she tell how many firearms were discharged that night nor the relative positions of the
gunmen. She admitted having declined to administer paraffin test on petitioners and on
the other accused because the opportunity therefor came only 72 hours after the
incident. She affirmed having also examined the Tamaraw jeepney and found eleven
(11) bullet holes on it, most of which had punctured the door at the passenger side of
the vehicle at oblique and perpendicular directions. She explained, rather inconclusively,
that the bullets that hit at an angle might have been fired while the jeepney was either
at a standstill or moving forward in a straight line, or gradually making a turn at the
curve on the road.30 Additionally, Silvestre Lapitan, administrative and supply officer of
the INP-Pampanga Provincial Command tasked with the issuance of firearms and
ammunitions to members of the local police force and CHDF and CVO members,
identified in court the memorandum receipts for the firearms he had issued to Mario
Reyes, Andres Reyes, Manguerra, Pabalan and Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the
injuries of Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel
from the occipital region of Villanuevas head as well as from the posterior aspect of his
chest; he noted nothing serious in these wounds in that the incapacity would last
between 10 and 30 days only. He also located a bullet wound on the front lateral portion
of the right thigh, and he theorized that this wound would be caused by a firearm
discharged in front of the victim, assuming the assailant and the victim were both
standing upright on the ground and the firearm was fired from the level of the
assailants waist; but if the victim was seated, the position of his thigh must be
horizontal so that with the shot coming from his front, the trajectory of the bullet would
be upward. He hypothesized that if the shot would come behind Villanueva, the bullet
would enter the thigh of the seated victim and exit at a lower level.32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the
patient, he noted a lacerated wound at the right temporal region of the head one
consistent with being hit by a hard and blunt object and not a bullet. He noted three (3)
gunshot wounds the locations of which suggested that Licup was upright when fired
upon from the front: one is a through-and-through wound in the middle lateral aspect of
the middle portion of the right leg; another, through-and-through wound at the middle
portion of the right forearm; and third one, a wound in the abdomen which critically and
fatally involved the stomach and the intestines. He hypothesized that if Licup was
seated in the passenger seat as claimed, his right leg must have been exposed and the
assailant must have been in front of him holding the gun slightly higher than the level of
the bullet entry in the leg. He found that the wound in the abdomen had entered from
the left side and crossed over to and exited at the right, which suggested that the
gunman must have been positioned at Licups left side. He explained that if this wound
had been inflicted ahead of that in the forearm, then the former must have been fired
after Licup had changed his position as a reaction to the first bullet that hit him. He said
that the wound on the leg must have been caused by a bullet fired at the victims back
and hit the jeepney at a downward angle without hitting any hard surface prior.33
Dr. Solis believed that the wound on Licups right forearm must have been caused by a
bullet fired from the front but slightly obliquely to the right of the victim. Hypothesizing,

he held the improbability of Licup being hit on the abdomen, considering that he might
have changed position following the infliction of the other wounds, unless there was
more than one assailant who fired multiple shots from either side of the Tamaraw
jeepney; however, he proceeded to rule out the possibility of Licup having changed
position especially if the gunfire was delivered very rapidly. He could not tell which of
Licups three wounds was first inflicted, yet it could be that the bullet to the abdomen
was delivered ahead of the others because it would have caused Licup to lean forward
and stoop down with his head lying low and steady.34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission
(NAPOLCOM) affirmed that the accused police officers Yapyuco, Cunanan and Puno had
been administratively charged with and tried for gross misconduct as a consequence of
the subject shooting incident and that he had in fact conducted investigations thereon
sometime in 1989 and 1990 which culminated in their dismissal from service. 35 Dolly
Porquerio, stenographer at the NAPOLCOM, testified that at the hearing of the
administrative case, Yapyuco authenticated the report on the shooting incident dated
April 5, 1988 which he had previously prepared at his office. This, according to her,
together with the sketch showing the relative position of the responding law enforcers
and the Tamaraw jeepney at the scene of the incident, had been forwarded to the
NAPOLCOM Central Office for consideration. 36 The Sandiganbayan, in fact, subpoenaed
these documents together with the joint counter-affidavits which had been submitted in
that case by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself as
the commander of the Sindalan Police Substation in San Fernando, Pampanga and the
superior officer of petitioners Cunanan and Puno and of the accused Yu whose
jurisdiction included Barangays Quebiawan and Telebastagan. He narrated that in the
afternoon of April 5, 1988, he and his men were investigating a physical injuries case
when Yu suddenly received a summon for police assistance from David, who supposedly
was instructed by Pamintuan, concerning a reported presence of armed NPA members in
Quebiawan. Yapyuco allegedly called on their main station in San Fernando for
reinforcement but at the time no additional men could be dispatched. Hence, he decided
to respond and instructed his men to put on their uniforms and bring their M-16 rifles
with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan
who told him that he had earlier spotted four (4) men carrying long firearms. As if sizing
up their collective strength, Pamintuan allegedly intimated that he and barangay captain
Mario Reyes of nearby Del Carmen had also brought in a number of armed men and that
there were likewise Cafgu members convened at the residence of Naron. Moments later,
Pamintuan announced the approach of his suspects, hence Yapyuco, Cunanan and Puno
took post in the middle of the road at the curve where the Tamaraw jeepney conveying
the victims would make an inevitable turn. As the jeepney came much closer, Pamintuan
announced that it was the target vehicle, so he, with Cunanan and Puno behind him,
allegedly flagged it down and signaled for it to stop. He claimed that instead of stopping,
the jeepney accelerated and swerved to its left. This allegedly inspired him, and his
fellow police officers Cunanan and Puno,38 to fire warning shots but the jeepney
continued pacing forward, hence they were impelled to fire at the tires thereof and
instantaneously, gunshots allegedly came bursting from the direction of Narons house
directly at the subject jeepney.39
Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed
at Pamintuan that they were San Miguel Corporation employees. Holding their fire,
Yapyuco and his men then immediately searched the vehicle but found no firearms but

instead, two injured passengers whom they loaded into his jeepney and delivered to
nearby St. Francis Hospital. From there he and his men returned to the scene supposedly
to investigate and look for the people who fired directly at the jeepney. They found no
one; the Tamaraw jeepney was likewise gone.40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the
time was in bad shape, as in fact there were several law enforcement officers in the area
who had been ambushed supposedly by rebel elements, 41 and that he frequently
patrolled the barangay on account of reported sightings of unidentified armed men
therein.42 That night, he said, his group which responded to the scene were twelve (12)
in all, comprised of Cunanan and Puno from the Sindalan Police Substation, 43 the team
composed of Pamintuan and his men, as well as the team headed by Captain Mario
Reyes. He admitted that all of them, including himself, were armed. 44He denied that
they had committed an ambuscade because otherwise, all the occupants of the
Tamaraw jeepney would have been killed. 45 He said that the shots which directly hit the
passenger door of the jeepney did not come from him or from his fellow police officers
but rather from Cafgu members assembled in the residence of Naron, inasmuch as said
shots were fired only when the jeepney had gone past the spot on the road where they
were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the
accused after the incident because he was at the time very confused; yet he did know
that his co-accused had already been investigated by the main police station in San
Fernando, but the inquiries did not include himself, Cunanan and Puno. 47 He admitted an
administrative case against him, Cunanan and Puno at the close of which they had been
ordered dismissed from service; yet on appeal, the decision was reversed and they were
exonerated. He likewise alluded to an investigation independently conducted by their
station commander, S/Supt. Rolando Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga
acknowledged the volatility of the peace and order situation in his jurisdiction, where
members of the police force had fallen victims of ambuscade by lawless elements. He
said that he himself has actually conducted investigations on the Pamintuan report that
rebel elements had been trying to infiltrate the employment force of San Miguel
Corporation plant, and that he has accordingly conducted "clearing operations" in
sugarcane plantations in the barangay. He intimated that days prior to the incident,
Yapyucos team had already been alerted of the presence of NPA members in the area.
Corroborating Yapyucos declaration, he confessed having investigated the shooting
incident and making a report on it in which, curiously, was supposedly attached
Pamintuans statement referring to Flores as being "married to a resident of Barangay
Quebiawan" and found after surveillance to be "frequently visited by NPA members." He
affirmed having found that guns were indeed fired that night and that the chief
investigator was able to gather bullet shells from the scene. 49
Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco
as well as the latters documentary evidence. 50 Mario Reyes, Andres Reyes, Lugtu,
Lacson, Yu and Manguera, waived their right to present evidence and submitted their
memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the
regular and lawful performance of their duties in the maintenance of peace and order
either as barangay officials and as members of the police and the CHDF, and hence,
could take shelter in the justifying circumstance provided in Article 11 (5) of the Revised
Penal Code; or whether they had deliberately ambushed the victims with the intent of

killing them.52 With the evidence in hand, it found Yapyuco, Cunanan, Puno, Manguera
and Mario and Andres Reyes guilty as co-principals in the separate offense of homicide
for the eventual death of Licup (instead of murder as charged in Criminal Case No.
16612) and of attempted homicide for the injury sustained by Villanueva (instead of
frustrated murder as charged in Criminal Case No. 16614), and acquitted the rest in
those cases. It acquitted all of them of attempted murder charged in Criminal Case No.
16613 in respect of Flores, Panlican, De Vera and Calma. The dispositive portion of the
June 30, 1995 Joint Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y
Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY beyond
reasonable doubt as co-principals in the offense of Homicide, as defined and
penalized under Article 249 of the Revised Penal Code, and crediting all of them
with the mitigating circumstance of voluntary surrender, without any aggravating
circumstance present or proven, each of said accused is hereby sentenced to
suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1) DAY
of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE (1) DAY
of reclusion temporal, as the maximum; to indemnify, jointly and severally, the
heirs of the deceased victim Leodevince Licup in the amounts of P77,000.00 as
actual damages and P600,000.00 as moral/exemplary damages, and to pay their
proportionate shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged
in the information, namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y
Basco, Ernesto Puno y Tungol, Mario Reyes y David, Carlos David y Baez, Ruben
Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y Barrera, Andres Reyes y
Salangsang and Virgilio Manguerra y Adona are hereby acquitted of the offense of
Multiple Attempted Murder charged therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y
Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY beyond
reasonable doubt as co-principals in the offense Attempted Homicide, as defined
and penalized under Article 249, in relation to Article 6, paragraph 3, both of the
Revised Penal Code, and crediting them with the mitigating circumstance of
voluntary surrender, without any aggravating circumstance present or proven,
each of said accused is hereby sentenced to suffer an indeterminate penalty
ranging from SIX (6) MONTHS and ONE (1) DAY of prision correccional as the
minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as the maximum; to
indemnify, jointly and severally, the offended party Noel Villanueva in the amount
of P51,700.00 as actual and compensatory damages, plusP120,000.00 as
moral/exemplary damages, and to pay their proportionate share of the costs of
said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva and
which brought the eventual death of Licup has been committed by petitioners herein
willfully under the guise of maintaining peace and order; 54 that the acts performed by
them preparatory to the shooting, which ensured the execution of their evil plan without
risk to themselves, demonstrate a clear intent to kill the occupants of the subject

vehicle; that the fact they had by collective action deliberately and consciously intended
to inflict harm and injury and had voluntarily performed those acts negates their defense
of lawful performance of official duty; 55 that the theory of mistaken belief could not
likewise benefit petitioners because there was supposedly no showing that they had
sufficient basis or probable cause to rely fully on Pamintuans report that the victims
were armed NPA members, and they have not been able by evidence to preclude
ulterior motives or gross inexcusable negligence when they acted as they did; 56 that
there was insufficient or total absence of factual basis to assume that the occupants of
the jeepney were members of the NPA or criminals for that matter; and that the shooting
incident could not have been the product of a well-planned and well-coordinated police
operation but was the result of either a hidden agenda concocted by Barangay Captains
Mario Reyes and Pamintuan, or a hasty and amateurish attempt to gain
commendation.57
These findings obtain context principally from the open court statements of prosecution
witnesses Villanueva, Flores and Salangsang, particularly on the circumstances prior to
the subject incident. The Sandiganbayan pointed out that the Tamaraw jeepney would
have indeed stopped if it had truly been flagged down as claimed by Yapyuco especially
since as it turned out after the search of the vehicle they had no firearms with them,
and hence, they had nothing to be scared of. 58 It observed that while Salangsang and
Flores had been bona fide residents of Barangay Quebiawan, then it would be impossible
for Pamintuan, barangay captain no less, not to have known them and the location of
their houses which were not far from the scene of the incident; so much so that the
presence of the victims and of the Tamaraw jeepney in Salangsangs house that evening
could not have possibly escaped his notice. In this regard, it noted that Pamintuans
Sworn Statement dated April 11, 1988 did not sufficiently explain his suspicions as to
the identities of the victims as well as his apparent certainty on the identity and
whereabouts of the subject Tamaraw jeepney. 59 It surmised how the defense, especially
Yapyuco in his testimony, could have failed to explain why a large group of armed men
which allegedly included Cafgu members from neighboring barangays were assembled
at the house of Naron that night, and how petitioners were able to identify the Tamaraw
jeepney to be the target vehicle. From this, it inferred that petitioners had already
known that their suspect vehicle would be coming from the direction of Salangsangs
house such knowledge is supposedly evident first, in the manner by which they
advantageously positioned themselves at the scene to afford a direct line of fire at the
target vehicle, and second, in the fact that the house of Naron, the neighboring houses
and the electric post referred to by prosecution witnesses were deliberately not lit that
night.60
The Sandiganbayan also drew information from Flores sketch depicting the position of
the Tamaraw jeepney and the assailants on the road, and concluded that judging by the
bullet holes on the right side of the jeepney and by the declarations of Dr. Solis
respecting the trajectory of the bullets that hit Villanueva and Licup, the assailants were
inside the yard of Narons residence and the shots were fired at the jeepney while it was
slowly moving past them. It also gave weight to the testimony and the report of Dabor
telling that the service firearms of petitioners had been tested and found to be positive
of gunpowder residue, therefore indicating that they had indeed been discharged.61
The Sandiganbayan summed up what it found to be overwhelming circumstantial
evidence pointing to the culpability of petitioners: the nature and location of the bullet
holes on the jeepney and the gunshot wounds on the victims, as well as the trajectory of
the bullets that caused such damage and injuries; particularly, the number, location and
trajectory of the bullets that hit the front passenger side of the jeepney; the strategic
placement of the accused on the right side of the street and inside the front yard of

Narons house; the deliberate shutting off of the lights in the nearby houses and the
lamp post; and the positive ballistic findings on the firearms of petitioners. 62
This evidentiary resum, according to the Sandiganbayan, not only fortified petitioners
admission that they did discharge their firearms, but also provided a predicate to its
conclusion that petitioners conspired with one another to achieve a common purpose,
design and objective to harm the unarmed and innocent victims. Thus, since there was
no conclusive proof of who among the several accused had actually fired the gunshots
that injured Villanueva and fatally wounded Licup, the Sandiganbayan imposed
collective responsibility on all those who were shown to have discharged their firearms
that night petitioners herein.63 Interestingly, it was speculated that the manner by
which the accused collectively and individually acted prior or subsequent to or
contemporaneously with the shooting indicated that they were either drunk or that
some, if not all of them, had a grudge against the employees of San Miguel
Corporation;64 and that on the basis of the self-serving evidence adduced by the
defense, there could possibly have been a massive cover-up of the incident by Philippine
Constabulary and INP authorities in Pampanga as well as by the NAPOLCOM. 65 It likewise
found very consequential the fact that the other accused had chosen not to take the
witness stand; this, supposedly because it was incumbent upon them to individually
explain their participation in the shooting in view of the weight of the prosecution
evidence, their invocation of the justifying circumstance of lawful performance of official
duty and the declaration of some of them in their affidavits to the effect that they had
been deployed that evening in the front yard of Narons residence from which the volley
of gunfire was discharged as admitted by Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the qualifying
circumstance of treachery has not been proved because first, it was supposedly not
shown how the aggression commenced and how the acts causing injury to Villanueva
and fatally injuring Licup began and developed, and second, this circumstance must be
supported by proof of a deliberate and conscious adoption of the mode of attack and
cannot be drawn from mere suppositions or from circumstances immediately preceding
the aggression. The same finding holds true for evident premeditation because between
the time Yapyuco received the summons for assistance from Pamintuan through David
and the time he and his men responded at the scene, there was found to be no sufficient
time to allow for the materialization of all the elements of that circumstance.67
Finally as to damages, Villanueva had testified that his injury required leave from work
for 60 days which were all charged against his accumulated leave credits; 68 that he was
earning P8,350.00 monthly;69 and that he had spent P35,000.00 for the repair of his
Tamaraw jeepney.70 Also, Teodoro Licup had stated that his family had spent P18,000.00
for the funeral of his son, P28,000.00 during the wake, P11,000.00 for the funeral plot
andP20,000.00 in attorneys fees for the prosecution of these cases. 71 He also submitted
a certification from San Miguel Corporation reflecting the income of his deceased
son.72 On these bases, the Sandiganbayan ordered petitioners, jointly and severally, to
indemnify (a) Villanueva P51,700.00 as actual and compensatory damages
and P120,000.00 as moral/exemplary damages, plus the proportionate costs of the
action, and (b) the heirs of deceased Licup in the amount of P77,000.00 as actual
damages and P600,000.00 as moral/exemplary damages, plus the proportionate costs of
the action.
Petitioners motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayans finding of conspiracy and
labels the same to be conjectural. He points out that the court a quo has not clearly

established that he had by positive acts intended to participate in any criminal object in
common with the other accused, and that his participation in a supposed common
criminal object has not been proved beyond reasonable doubt. He believes the finding is
belied by Flores and Villanueva, who saw him at the scene only after the shooting
incident when the wounded passengers were taken to the hospital on his jeepney. 73 He
also points out the uncertainty in the Sandiganbayans declaration that the incident
could not have been the product of a well-planned police operation, but rather was the
result of either a hidden agenda concocted against the victims by the barangay officials
involved or an amateurish attempt on their part to earn commendation. He theorizes
that, if it were the latter alternative, then he could hardly be found guilty of homicide or
frustrated homicide but rather of reckless imprudence resulting in homicide and
frustrated homicide. 74 He laments that, assuming arguendo that the injuries sustained
by the victims were caused by his warning shots, he must nevertheless be exonerated
because he responded to the scene of the incident as a bona fide member of the police
force and, hence, his presence at the scene of the incident was in line with the
fulfillment of his duty as he was in fact in the lawful performance thereof a fact which
has been affirmed by the NAPOLCOM en banc when it dismissed on appeal the
complaint for gross misconduct against him, Cunanan and Puno. 75 He also invokes the
concept of mistake of fact and attributes to Pamintuan the responsibility why he, as well
as the other accused in these cases, had entertained the belief that the suspects were
armed rebel elements.76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the
Sandiganbayan has not proved their guilt beyond reasonable doubt, and the assailed
decision was based on acts the evidence for which has been adduced at a separate trial
but erroneously attributed to them. They explain that there were two sets of accused, in
the case: one, the police officers comprised of Yapyuco, Cunanan and Puno and, two, the
barangay officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves
who had waived the presentation of evidence. They question their conviction of the
charges vis-a-vis the acquittal of David, Lugtu, Lacson and Yu who, like them, were
barangay officials and had waived their right to present evidence in their behalf. They
emphasize in this regard that all accused barangay officials and CHDFs did not
participate in the presentation of the evidence by the accused police officers and,
hence, the finding that they too had fired upon the Tamaraw jeepney is hardly based on
an established fact.77 Also, they believe that the findings of fact by the Sandiganbayan
were based on inadmissible evidence, specifically on evidence rejected by the court
itself and those presented in a separate trial. They label the assailed decision to be
speculative, conjectural and suspicious and, hence, antithetical to the quantum of
evidence required in a criminal prosecution. 78 Finally, they lament that the finding of
conspiracy has no basis in evidence and that the prosecution has not even shown that
they were with the other accused at the scene of the incident or that they were among
those who fired at the victims, and neither were they identified as among the
perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They
claim that judging by the uncertainty in the conclusion of the Sandiganbayan as to
whether the incident was the result of a legitimate police operation or a careless plot
designed by the accused to obtain commendation, conspiracy has not been proved
beyond reasonable doubt. This, because they believe the prosecution has not, as far as
both of them are concerned, shown that they had ever been part of such malicious
design to commit an ambuscade as that alluded to in the assailed decision. They
advance that as police officers, they merely followed orders from their commander,
Yapyuco, but were not privy to the conversation among the latter, David and Pamintuan,
moments before the shooting. They posit they could hardly be assumed to have had

community of criminal design with the rest of the accused. 80 They affirm Yapyucos
statement that they fired warning shots at the subject jeepney, 81 but only after it had
passed the place where they were posted and only after it failed to stop when flagged
down as it then became apparent that it was going to speed away as supposedly
shown by bullet holes on the chassis and not on the rear portion of the jeepney. They
also harp on the absence of proof of ill motives that would have otherwise urged them to
commit the crimes charged, especially since none of the victims had been personally or
even remotely known to either of them. That they were not intending to commit a crime
is, they believe, shown by the fact that they did not directly aim their rifles at the
passengers of the jeepney and that in fact, they immediately held their fire when Flores
identified themselves as employees of San Miguel Corporation. They conceded that if
killing was their intent, then they could have easily fired at the victims directly.82
Commenting on these petitions, the Office of the Special Prosecutor stands by the
finding of conspiracy as established by the fact that all accused, some of them armed,
had assembled themselves and awaited the suspect vehicle as though having previously
known that it would be coming from Salangsangs residence. It posits that the manner
by which the jeepney was fired upon demonstrates a community of purpose and design
to commit the crimes charged.83 It believes that criminal intent is discernible from the
posts the accused had chosen to take on the road that would give them a direct line of
fire at the target as shown by the trajectories of the bullets that hit the Tamaraw
jeepney.84 This intent was supposedly realized when after the volley of gunfire, both
Flores and Licup were wounded and the latter died as a supervening consequence. 85 It
refutes the invocation of lawful performance of duty, mainly because there was no
factual basis to support the belief of the accused that the occupants were members of
the NPA, as indeed they have not shown that they had previously verified the
whereabouts of the suspect vehicle. But while it recognizes that the accused had merely
responded to the call of duty when summoned by Pamintuan through David, it is
convinced that they had exceeded the performance thereof when they fired upon the
Tamaraw jeepney occupied, as it turned out, by innocent individuals instead. 86
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence
adduced before the Sandiganbayan as well the findings based thereon should not be
binding on them, the OSP explains that said petitioners, together with Pamintuan, David,
Lugtu, Lacson and Yu, had previously withdrawn their motion for separate trial and as
directed later on submitted the case for decision as to them with the filing of their
memorandum. It asserts there was no denial of due process to said petitioners in view of
their agreement for the reproduction of the evidence on the motion for bail at the trial
proper as well as by their manifestation to forego with the presentation of their own
evidence. The right to present witnesses is waivable. Also, where an accused is jointly
tried and testifies in court, the testimony binds the other accused, especially where the
latter has failed to register his objection thereto.87
The decision on review apparently is laden with conclusions and inferences that seem to
rest on loose predicates. Yet we have pored over the records of the case and found that
evidence nonetheless exists to support the penultimate finding of guilt beyond
reasonable doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs of
the incident on the date and time alleged in the Informations. Yapyuco, in his testimony
which was adopted by Cunanan and Puno as well as Manguerra, Mario Reyes and
Andres Reyes in their affidavits which had been offered in evidence by the

prosecution,88 explained that their presence at the scene was in response to the
information relayed by Pamintuan through David that armed rebel elements on board a
vehicle described to be that occupied by the victims were reportedly spotted in
Barangay Quebiawan. It is on the basis of this suspicion that petitioners now appeal to
justification under Article 11 (5) of the Revised Penal Code and under the concept of
mistake of fact. Petitioners admit that it was not by accident or mistake but by
deliberation that the shooting transpired when it became apparent that the suspect
vehicle was attempting to flee, yet contention arises as to whether or not there was
intention to harm or even kill the passengers aboard, and who among them had
discharged the bullets that caused the eventual death of Licup and injured Villanueva.
The first duty of the prosecution is not to present the crime but to identify the
criminal.89 To this end, the prosecution in these cases offered in evidence the joint
counter-affidavit90 of Andres Reyes and Manguerra; the counter-affidavit 91 of Mario
Reyes; the joint counter-affidavit92 of Cunanan and Puno; the counter-affidavit93 of
Yapyuco; and the joint counter-affidavit 94 of Yapyuco, Cunanan and Puno executed
immediately after the incident in question. In brief, Cunanan and Puno stated therein
that "[their] team was forced to fire at the said vehicle" when it accelerated after
warning shots were fired in air and when it ignored Yapyucos signal for it to stop; 95 in
their earlier affidavit they, together with Yapyuco, declared that they were "constrained
x x x to fire directly to (sic) the said fleeing vehicle." 96 Yapyucos open court declaration,
which was adopted by Cunanan and Puno, is that he twice discharged his firearm: first,
to give warning to the subject jeepney after it allegedly failed to stop when flagged
down and second, at the tires thereof when it came clear that it was trying to
escape.97 He suggested substantiating the implication in his affidavit that it was "the
whole team [which fired] at the fleeing vehicle" 98 that the bullets which hit the
passenger side of the ill-fated jeepney could have come only from the CHDFs posted
inside the yard of Naron where Manguerra, Mario Reyes and Andres Reyes admitted
having taken post while awaiting the arrival of the suspect vehicle.99
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only
Manguerra from their group who discharged a firearm but only into the air to give
warning shots,100 and that it was the "policemen [who] directly fired upon" the
jeepney.101 Manguerra himself shared this statement.102 Yet these accounts do not sit
well with the physical evidence found in the bullet holes on the passenger door of the
jeepney which Dabor, in both her report and testimony, described to have come from
bullets sprayed from perpendicular and oblique directions. This evidence in fact supports
Yapyucos claim that he, Cunanan and Puno did fire directly at the jeepney after it had
made a right turn and had already moved past them such that the line of fire to the
passengers thereof would be at an oblique angle from behind. It also bolsters his claim
that, almost simultaneously, gunshots came bursting after the jeepney has passed the
spot where he, Cunanan and Puno had taken post, and when the vehicle was already
right in front of the yard of Narons house sitting on the right side of the road after the
curve and where Manguerra, Mario Reyes and Andres Reyes were positioned, such that
the line of fire would be direct and perpendicular to it.103
While Dabors ballistics findings are open to challenge for being inconclusive as to who
among the accused actually discharged their firearms that night, her report pertaining to
the examination of the ill-fated Tamaraw jeepney affirms the irreducible fact that the
CHDFs posted within the yard of Narons house had indeed sprayed bullets at the said
vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate themselves by
arguing that such finding cannot be applied to them as it is evidence adduced in a
separate trial. But as the OSP noted, they may not evade the effect of their having

withdrawn their motion for separate trial, their agreement to a joint trial of the cases,
and the binding effect on them of the testimony of their co-accused, Yapyuco. 104
Indeed, the extrajudicial confession or admission of one accused is admissible only
against said accused, but is inadmissible against the other accused. But if the declarant
or admitter repeats in court his extrajudicial admission, as Yapyuco did in this case,
during the trial and the other accused is accorded the opportunity to cross-examine the
admitter, the admission is admissible against both accused because then, it is
transposed into a judicial admission.105 It is thus perplexing why, despite the
extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latters testimony
implicating them in the incident, they still had chosen to waive their right to present
evidence when, in fact, they could have shown detailed proof of their participation or
non-participation in the offenses charged. We, therefore, reject their claim that they had
been denied due process in this regard, as they opted not to testify and be crossexamined by the prosecution as to the truthfulness in their affidavits and, accordingly,
disprove the inculpatory admissions of their co-accused.
II.
The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a
right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the
accused acted in the performance of his duty or in the lawful exercise of his right or
office, and (b) the injury caused or the offense committed is the necessary consequence
of the due performance of such duty or the lawful exercise of such right or office. 106 The
justification is based on the complete absence of intent and negligence on the part of
the accused, inasmuch as guilt of a felony connotes that it was committed with criminal
intent or with fault or negligence. 107 Where invoked, this ground for non-liability amounts
to an acknowledgment that the accused has caused the injury or has committed the
offense charged for which, however, he may not be penalized because the resulting
injury or offense is a necessary consequence of the due performance of his duty or the
lawful exercise of his right or office. Thus, it must be shown that the acts of the accused
relative to the crime charged were indeed lawfully or duly performed; the burden
necessarily shifts on him to prove such hypothesis.
We find that the requisites for justification under Article 11 (5) of the Revised Penal Code
do not obtain in this case.
The undisputed presence of all the accused at the situs of the incident is a legitimate
law enforcement operation. No objection is strong enough to defeat the claim that all of
them who were either police and barangay officers or CHDF members tasked with the
maintenance of peace and order were bound to, as they did, respond to information of
a suspected rebel infiltration in the locality. Theirs, therefore, is the specific duty to
identify the occupants of their suspect vehicle and search for firearms inside it to
validate the information they had received; they may even effect a bloodless arrest
should they find cause to believe that their suspects had just committed, were
committing or were bound to commit a crime. While, it may certainly be argued that
rebellion is a continuing offense, it is interesting that nothing in the evidence suggests
that the accused were acting under an official order to open fire at or kill the suspects
under any and all circumstances. Even more telling is the absence of reference to the
victims having launched such aggression as would threaten the safety of any one of the
accused, or having exhibited such defiance of authority that would have instigated the
accused, particularly those armed, to embark on a violent attack with their firearms in
self-defense. In fact, no material evidence was presented at the trial to show that the
accused were placed in real mortal danger in the presence of the victims, except maybe

their bare suspicion that the suspects were armed and were probably prepared to
conduct hostilities.
But whether or not the passengers of the subject jeepney were NPA members and
whether or not they were at the time armed, are immaterial in the present inquiry
inasmuch as they do not stand as accused in the prosecution at hand. Besides, even
assuming that they were as the accused believed them to be, the actuations of these
responding law enforcers must inevitably be ranged against reasonable expectations
that arise in the legitimate course of performance of policing duties. The rules of
engagement, of which every law enforcer must be thoroughly knowledgeable and for
which he must always exercise the highest caution, do not require that he should
immediately draw or fire his weapon if the person to be accosted does not heed his call.
Pursuit without danger should be his next move, and not vengeance for personal
feelings or a damaged pride. Police work requires nothing more than the lawful
apprehension of suspects, since the completion of the process pertains to other
government officers or agencies.108
A law enforcer in the performance of duty is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his
escape, recapture him if he escapes, and protect himself from bodily harm. 109 United
States v. Campo110 has laid down the rule that in the performance of his duty, an agent
of the authorities is not authorized to use force, except in an extreme case when he is
attacked or is the subject of resistance, and finds no other means to comply with his
duty or cause himself to be respected and obeyed by the offender. In case injury or
death results from the exercise of such force, the same could be justified in inflicting the
injury or causing the death of the offender if the officer had used necessary force. 111 He
is, however, never justified in using unnecessary force or in treating the offender with
wanton violence, or in resorting to dangerous means when the arrest could be effected
otherwise.112 People v. Ulep113 teaches that
The right to kill an offender is not absolute, and may be used only as a last resort, and
under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge the
necessity to kill. It may be true that police officers sometimes find themselves in a
dilemma when pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and discretion of
police officers in the performance of their duties must be exercised neither capriciously
nor oppressively, but within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the dictates of a sound
discretion, and within the spirit and purpose of the law. We cannot countenance triggerhappy law enforcement officers who indiscriminately employ force and violence upon
the persons they are apprehending. They must always bear in mind that although they
are dealing with criminal elements against whom society must be protected, these
criminals are also human beings with human rights.114
Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four members
of a family in their home because of suspicions that they were NPA members, and the
accused sought exoneration by invoking among others the justifying circumstance in
Article 11 (5) of the Revised Penal Code, the Court in dismissing the claim and holding
them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the
Revised Penal Code, for the massacre of the Magdasals can by no means be considered
as done in the fulfillment of a duty or in the lawful exercise of an office or in obedience

to an order issued by a superior for some lawful purpose. Other than "suspicion," there
is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children were
members of the NPA. And even if they were members of the NPA, they were entitled to
due process of law. On that fateful night, they were peacefully resting in their humble
home expecting for the dawn of another uncertain day. Clearly, therefore, nothing
justified the sudden and unprovoked attack, at nighttime, on the Magdasals. The
massacre was nothing but a merciless vigilante-style execution. 116
Petitioners rationalize their election to aim their fire directly at the jeepney by claiming
that it failed to heed the first round of warning shots as well as the signal for it to stop
and instead tried to flee. While it is possible that the jeepney had been flagged down but
because it was pacing the dark road with its headlights dimmed missed petitioners
signal to stop, and compound to it the admitted fact that the passengers thereof were
drunk from the party they had just been to, 117 still, we find incomprehensible petitioners
quick resolve to use their firearms when in fact there was at least one other vehicle at
the scene the Sarao jeepney owned by Yapyuco which they could actually have used
to pursue their suspects whom they supposedly perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the
use of force, and it is incumbent on herein petitioners to prove such necessity. We find,
however, that petitioners failed in that respect. Although the employment of powerful
firearms does not necessarily connote unnecessary force, petitioners in this case do not
seem to have been confronted with the rational necessity to open fire at the moving
jeepney occupied by the victims. No explanation is offered why they, in that instant,
were inclined for a violent attack at their suspects except perhaps their over-anxiety or
impatience or simply their careless disposition to take no chances. Clearly, they
exceeded the fulfillment of police duties the moment they actualized such resolve,
thereby inflicting Licup with a mortal bullet wound, causing injury to Villanueva and
exposing the rest of the passengers of the jeepney to grave danger to life and limb all
of which could not have been the necessary consequence of the fulfillment of their
duties.
III.
At this juncture, we find that the invocation of the concept of mistake of fact faces
certain failure. In the context of criminal law, a "mistake of fact" is a misapprehension of
a fact which, if true, would have justified the act or omission which is the subject of the
prosecution.118 Generally, a reasonable mistake of fact is a defense to a charge of crime
where it negates the intent component of the crime. 119 It may be a defense even if the
offense charged requires proof of only general intent. 120 The inquiry is into the mistaken
belief of the defendant,121 and it does not look at all to the belief or state of mind of any
other person.122 A proper invocation of this defense requires (a) that the mistake be
honest and reasonable;123 (b) that it be a matter of fact;124 and (c) that it negate the
culpability required to commit the crime 125 or the existence of the mental state which
the statute prescribes with respect to an element of the offense.126
The leading authority in mistake of fact as ground for non-liability is found in United
States v. Ah Chong,127 but in that setting, the principle was treated as a function of selfdefense where the physical circumstances of the case had mentally manifested to the
accused an aggression which it was his instinct to repel. There, the accused, fearful of
bad elements, was woken by the sound of his bedroom door being broken open and,
receiving no response from the intruder after having demanded identification, believed
that a robber had broken in. He threatened to kill the intruder but at that moment he
was struck by a chair which he had placed against the door and, perceiving that he was

under attack, seized a knife and fatally stabbed the intruder who turned out to be his
roommate. Charged with homicide, he was acquitted because of his honest mistake of
fact. Finding that the accused had no evil intent to commit the charge, the Court
explained:
x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient excuse").
Since evil intent is in general an inseparable element in every crime, any such mistake
of fact as shows the act committed to have proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal liability, provided always there is no fault or
negligence on his part and as laid down by Baron Parke, "The guilt of the accused must
depend on the circumstances as they appear to him." x x x
If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does not
believe them he is legally guiltless of homicide; though he mistook the facts, and so
the life of an innocent person is unfortunately extinguished. In other words, and with
reference to the right of self-defense and the not quite harmonious authorities, it is the
doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus supposes the
facts to be, the law will not punish him though they are in truth otherwise, and he has
really no occasion for the extreme measure. x x x 128
Besides, as held in People v. Oanis129 and Baxinela v. People,130 the justification of an act,
which is otherwise criminal on the basis of a mistake of fact, must preclude negligence
or bad faith on the part of the accused.131Thus, Ah Chong further explained that
The question then squarely presents itself, whether in this jurisdiction one can be held
criminally responsible who, by reason of a mistake as to the facts, does an act for which
he would be exempt from criminal liability if the facts were as he supposed them to be,
but which would constitute the crime of homicide or assassination if the actor had
known the true state of the facts at the time when he committed the act. To this
question we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the alleged ignorance
or mistake of fact was not due to negligence or bad faith.132
IV.
This brings us to whether the guilt of petitioners for homicide and frustrated homicide
has been established beyond cavil of doubt. The precept in all criminal cases is that the
prosecution is bound by the invariable requisite of establishing the guilt of the accused
beyond reasonable doubt. The prosecution must rely on the strength of its own evidence
and not on the evidence of the accused. The weakness of the defense of the accused
does not relieve the prosecution of its responsibility of proving guilt beyond reasonable
doubt.133 By reasonable doubt is meant that doubt engendered by an investigation of the
whole proof and an inability, after such investigation, to let the mind rest easy upon the
certainty of guilt.134 The overriding consideration is not whether the court doubts the
innocence of the accused, but whether it entertains reasonable doubt as to his guilt.135

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by
direct evidence or by circumstantial or presumptive evidence. 136 Corpus delicti consists
of two things: first, the criminal act and second, defendant's agency in the commission
of the act.137 In homicide (by dolo) as well as in murder cases, the prosecution must
prove: (a) the death of the party alleged to be dead; (b) that the death was produced by
the criminal act of some other than the deceased and was not the result of accident,
natural cause or suicide; and (c) that defendant committed the criminal act or was in
some way criminally responsible for the act which produced the death. In other words,
proof of homicide or murder requires incontrovertible evidence, direct or circumstantial,
that the victim was deliberately killed (with malice), that is, with intent to kill. Such
evidence may consist in the use of weapons by the malefactors, the nature, location and
number of wounds sustained by the victim and the words uttered by the malefactors
before, at the time or immediately after the killing of the victim. If the victim dies
because of a deliberate act of the malefactors, intent to kill is conclusively
presumed.138 In such case, even if there is no intent to kill, the crime is homicide
because with respect to crimes of personal violence, the penal law looks particularly to
the material results following the unlawful act and holds the aggressor responsible for all
the consequences thereof. 139 Evidence of intent to kill is crucial only to a finding of
frustrated and attempted homicide, as the same is an essential element of these
offenses, and thus must be proved with the same degree of certainty as that required of
the other elements of said offenses.140
The records disclose no ill motives attributed to petitioners by the prosecution. It is
interesting that, in negating the allegation that they had by their acts intended to kill the
occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose picture
depicted in the defense evidence is certainly an ugly one: petitioners affidavits as well
as Yapyucos testimony are replete with suggestions that it was Pamintuan alone who
harbored the motive to ambush the suspects as it was he who their (petitioners) minds
that which they later on conceded to be a mistaken belief as to the identity of the
suspects. Cinco, for one, stated in court that Pamintuan had once reported to him that
Flores, a relative of his (Pamintuan), was frequently meeting with NPA members and that
the San Miguel Corporation plant where the victims were employed was being
penetrated by NPA members. He also affirmed Yapyucos claim that there had been a
number of ambuscades launched against members of law enforcement in Quebiawan
and in the neighboring areas supposedly by NPA members at around the time of the
incident. But as the Sandiganbayan pointed out, it is unfortunate that Pamintuan had
died during the pendency of these cases even before his opportunity to testify in court
emerged.141
Yet whether such claims suffice to demonstrate ill motives evades relevance and
materiality. Motive is generally held to be immaterial inasmuch as it is not an element of
a crime. It gains significance when the commission of a crime is established by evidence
purely circumstantial or otherwise inconclusive.142 The question of motive is important in
cases where there is doubt as to whether the defendant is or is not the person who
committed the act, but when there is no doubt that the defendant was the one who
caused the death of the deceased, it is not so important to know the reason for the
deed.143
In the instant case, petitioners, without abandoning their claim that they did not intend
to kill anyone of the victims, admit having willfully discharged their service firearms; and
the manner by which the bullets concentrated on the passenger side of the jeepney
permits no other conclusion than that the shots were intended for the persons lying
along the line of fire. We do not doubt that instances abound where the discharge of a
firearm at another is not in itself sufficient to sustain a finding of intention to kill, and

that there are instances where the attendant circumstances conclusively establish that
the discharge was not in fact animated by intent to kill. Yet the rule is that in
ascertaining the intention with which a specific act is committed, it is always proper and
necessary to look not merely to the act itself but to all the attendant circumstances so
far as they develop in the evidence.144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30
caliber carbine.145 While the use of these weapons does not always amount to
unnecessary force, they are nevertheless inherently lethal in nature. At the level the
bullets were fired and hit the jeepney, it is not difficult to imagine the possibility of the
passengers thereof being hit and even killed. It must be stressed that the subject
jeepney was fired upon while it was pacing the road and at that moment, it is not as
much too difficult to aim and target the tires thereof as it is to imagine the peril to which
its passengers would be exposed even assuming that the gunfire was aimed at the tires
especially considering that petitioners do not appear to be mere rookie law enforcers
or unskilled neophytes in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the firearms
employed, the likelihood of the passenger next to the driver and in fact even the driver
himself of being hit and injured or even killed is great to say the least, certain to be
precise. This, we find to be consistent with the uniform claim of petitioners that the
impulse to fire directly at the jeepney came when it occurred to them that it was
proceeding to evade their authority. And in instances like this, their natural and logical
impulse was to debilitate the vehicle by firing upon the tires thereof, or to debilitate the
driver and hence put the vehicle to a halt. The evidence we found on the jeepney
suggests that petitioners actuations leaned towards the latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who was
seated on the passenger side and to Villanueva who was occupying the wheel, together
with all the consequences arising from their deed. The circumstances of the shooting
breed no other inference than that the firing was deliberate and not attributable to sheer
accident or mere lack of skill. Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally
act deliberately and by the determination of their own will, and not from the impulse of
blind passion, the law presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the circumstances
of the homicide do not of themselves show that it was not intended, but was accidental,
it is presumed that the death of the deceased was designed by the slayer; and the
burden of proof is on him to show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the deliberate
intent of killing Licup and Villanueva, hence we dismiss Yapyucos alternative claim in
G.R. No. 120744 that he and his co-petitioners must be found guilty merely of reckless
imprudence resulting in homicide and frustrated homicide. Here is why:
First, the crimes committed in these cases are not merely criminal negligence, the killing
being intentional and not accidental. In criminal negligence, the injury caused to another
should be unintentional, it being the incident of another act performed without
malice.147 People v. Guillen148 and People v. Nanquil 149 declare that a deliberate intent to
do an unlawful act is essentially inconsistent with the idea of reckless imprudence. And

in People v. Castillo,150 we held that that there can be no frustrated homicide through
reckless negligence inasmuch as reckless negligence implies lack of intent to kill, and
without intent to kill the crime of frustrated homicide cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the
Sandiganbayan, likewise militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more
persons agree to commit a felony and decide to commit it. Conspiracy need not be
proven by direct evidence. It may be inferred from the conduct of the accused before,
during and after the commission of the crime, showing that they had acted with a
common purpose and design. Conspiracy may be implied if it is proved that two or more
persons aimed by their acts towards the accomplishment of the same unlawful object,
each doing a part so that their combined acts, though apparently independent of each
other were, in fact, connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment. Conspiracy once found, continues until the
object of it has been accomplished and unless abandoned or broken up. To hold an
accused guilty as a co-principal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the complicity. There must be
intentional participation in the transaction with a view to the furtherance of the common
design and purpose.151
Conspiracy to exist does not require an agreement for an appreciable period prior to the
occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of the
commission of the offense, the accused had the same purpose and were united in its
execution.152 The instant case requires no proof of any previous agreement among
petitioners that they were really bent on a violent attack upon their suspects. While it is
far-fetched to conclude that conspiracy arose from the moment petitioners, or all of the
accused for that matter, had converged and strategically posted themselves at the
place appointed by Pamintuan, we nevertheless find that petitioners had been ignited by
the common impulse not to let their suspect jeepney flee and evade their authority
when it suddenly occurred to them that the vehicle was attempting to escape as it
supposedly accelerated despite the signal for it to stop and submit to them. As
aforesaid, at that point, petitioners were confronted with the convenient yet irrational
option to take no chances by preventing the jeepneys supposed escape even if it meant
killing the driver thereof. It appears that such was their common purpose. And by their
concerted action of almost simultaneously opening fire at the jeepney from the posts
they had deliberately taken around the immediate environment of the suspects,
conveniently affording an opportunity to target the driver, they did achieve their object
as shown by the concentration of bullet entries on the passenger side of the jeepney at
angular and perpendicular trajectories. Indeed, there is no definitive proof that tells
which of all the accused had discharged their weapons that night and which directly
caused the injuries sustained by Villanueva and fatally wounded Licup, yet we adopt the
Sandiganbayans conclusion that since only herein petitioners were shown to have been
in possession of their service firearms that night and had fired the same, they should be
held collectively responsible for the consequences of the subject law enforcement
operation which had gone terribly wrong.153
VI.
The Sandiganbayan correctly found that petitioners are guilty as co-principals in the
crimes of homicide and attempted homicide only, respectively for the death of Licup and
for the non-fatal injuries sustained by Villanueva, and that they deserve an acquittal
together with the other accused, of the charge of attempted murder with respect to the

unharmed victims.154 The allegation of evident premeditation has not been proved
beyond reasonable doubt because the evidence is consistent with the fact that the urge
to kill had materialized in the minds of petitioners as instantaneously as they perceived
their suspects to be attempting flight and evading arrest. The same is true with
treachery, inasmuch as there is no clear and indubitable proof that the mode of attack
was consciously and deliberately adopted by petitioners.
Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion
temporal whereas an attempt thereof, under Article 250 in relation to Article 51,
warrants a penalty lower by two degrees than that prescribed for principals in a
consummated homicide. Petitioners in these cases are entitled to the ordinary
mitigating circumstance of voluntary surrender, and there being no aggravating
circumstance proved and applying the Indeterminate Sentence Law, the Sandiganbayan
has properly fixed in Criminal Case No. 16612 the range of the penalty from six (6) years
and one (1) day, but should have denominated the same as prision mayor, not prision
correccional, to twelve (12) years and one (1) day of reclusion temporal.
However, upon the finding that petitioners in Criminal Case No. 16614 had committed
attempted homicide, a modification of the penalty is in order. The penalty of attempted
homicide is two (2) degrees lower to that of a consummated homicide, which is prision
correccional. Taking into account the mitigating circumstance of voluntary surrender, the
maximum of the indeterminate sentence to be meted out on petitioners is within the
minimum period of prision correccional, which is six (6) months and one (1) day to two
(2) years and four (4) months of prision correccional, whereas the minimum of the
sentence, which under the Indeterminate Sentence Law must be within the range of the
penalty next lower to that prescribed for the offense, which is one (1) month and one (1)
day to six (6) months of arresto mayor.
We likewise modify the award of damages in these cases, in accordance with prevailing
jurisprudence, and order herein petitioners, jointly and severally, to indemnify the heirs
of Leodevince Licup in the amount of P77,000.00 as actual damages and P50,000.00 in
moral damages. With respect to Noel Villanueva, petitioners are likewise bound to pay,
jointly and severally, the amount of P51,700.00 as actual and compensatory damages
andP20,000.00 as moral damages. The award of exemplary damages should be deleted,
there being no aggravating circumstance that attended the commission of the crimes.
WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan
in Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995, are
hereby AFFIRMED with the following MODIFICATIONS:
(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the
indeterminate penalty of six (6) years and one (1) day of prision mayor, as the
minimum, to twelve (12) years and one (1) day of reclusion temporal, as the
maximum; in Criminal Case No. 16614, the indeterminate sentence is hereby
modified to Two (2) years and four (4) months of prision correccional, as the
maximum, and Six (6) months of arresto mayor, as the minimum.
(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of
Leodevince Licup in the amount of P77,000.00 as actual damages, P50,000.00 in
moral damages, as well as Noel Villanueva, in the amount of P51,700.00 as actual
and compensatory damages, and P20,000.00 as moral damages.
SO ORDERED.

G.R. No. L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,


vs.
AH CHONG, defendant-appellant.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to the
testimony of the accused himself, because from the very nature of these facts and from
the circumstances surrounding the incident upon which these proceedings rest, no other
evidence as to these facts was available either to the prosecution or to the defense. We
think, however, that, giving the accused the benefit of the doubt as to the weight of the
evidence touching those details of the incident as to which there can be said to be any
doubt, the following statement of the material facts disclose by the record may be taken
to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort
Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was
employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house
situates some 40 meters from the nearest building, and in August, 19087, was occupied
solely as an officers' mess or club. No one slept in the house except the two servants,
who jointly occupied a small room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch was covered by a
heavy growth of vines for its entire length and height. The door of the room was not
furnished with a permanent bolt or lock, and occupants, as a measure of security, had
attached a small hook or catch on the inside of the door, and were in the habit of
reinforcing this somewhat insecure means of fastening the door by placing against it a
chair. In the room there was but one small window, which, like the door, opened on the
porch. Aside from the door and window, there were no other openings of any kind in the
room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received
for the night, was suddenly awakened by some trying to force open the door of the
room. He sat up in bed and called out twice, "Who is there?" He heard no answer and
was convinced by the noise at the door that it was being pushed open by someone bent
upon forcing his way into the room. Due to the heavy growth of vines along the front of
the porch, the room was very dark, and the defendant, fearing that the intruder was a
robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you."
At that moment he was struck just above the knee by the edge of the chair which had
been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he
supposed to be a burglar, though in the light of after events, it is probable that the chair
was merely thrown back into the room by the sudden opening of the door against which
it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant
struck out wildly at the intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately
wounded condition, followed by the defendant, who immediately recognized him in the
moonlight. Seeing that Pascual was wounded, he called to his employers who slept in
the next house, No. 28, and ran back to his room to secure bandages to bind up
Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the
incident just described, one of which took place in a house in which the defendant was
employed as cook; and as defendant alleges, it was because of these repeated robberies
he kept a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who appear to have on
friendly and amicable terms prior to the fatal incident, had an understanding that when
either returned at night, he should knock at the door and acquiant his companion with
his identity. Pascual had left the house early in the evening and gone for a walk with his
friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters
No. 28, the nearest house to the mess hall. The three returned from their walk at about
10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on
to his room at No. 27. A few moments after the party separated, Celestino and Mariano
heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and
called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded
man.
The defendant then and there admitted that he had stabbed his roommate, but said that
he did it under the impression that Pascual was "a ladron" because he forced open the
door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests
itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese
roommate, and sought to frightened him by forcing his way into the room, refusing to
give his name or say who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military
hospital, where he died from the effects of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by
the trial court of simple homicide, with extenuating circumstances, and sentenced to six
years and one day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate,
Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a
wrongful act, in the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt from criminal liability:
xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided there are the following
attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be
entitle to complete exception from criminal liability for the death of the victim of his fatal
blow, if the intruder who forced open the door of his room had been in fact a dangerous
thief or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and repel such an
intrusion, and the thief having forced open the door notwithstanding defendant's thricerepeated warning to desist, and his threat that he would kill the intruder if he persisted
in his attempt, it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend
himself from such an assault, and in striking promptly, without waiting for the thief to
discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That
neither the defendant nor his property nor any of the property under his charge was in
real danger at the time when he struck the fatal blow. That there was no such "unlawful
aggression" on the part of a thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for the use of the knife to defend his
person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held
criminally responsible who, by reason of a mistake as to the facts, does an act for which
he would be exempt from criminal liability if the facts were as he supposed them to be,
but which would constitute the crime of homicide or assassination if the actor had
known the true state of the facts at the time when he committed the act. To this
question we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the alleged ignorance
or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is
sufficient to negative a particular intent which under the law is a necessary ingredient of
the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes
intent) "cancels the presumption of intent," and works an acquittal; except in those
cases where the circumstances demand a conviction under the penal provisions
touching criminal negligence; and in cases where, under the provisions of article 1 of the
Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for
any wrongful act committed by him, even though it be different from that which he
intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power,
7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question
worthy of consideration is whether malice or criminal intent is an essential element or
ingredient of the crimes of homicide and assassination as defined and penalized in the
Penal Code. It has been said that since the definitions there given of these as well as
most other crimes and offense therein defined, do not specifically and expressly declare
that the acts constituting the crime or offense must be committed with malice or with
criminal intent in order that the actor may be held criminally liable, the commission of
the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the
express provisions of article 8 of the code, which treats of exemption. But while it is true
that contrary to the general rule of legislative enactment in the United States, the
definitions of crimes and offenses as set out in the Penal Code rarely contain provisions

expressly declaring that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly indicate that malice,
or criminal intent in some form, is an essential requisite of all crimes and offense therein
defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and
acts done by one voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And it is to be observed
that even these exceptions are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and indifference whether it is
done or not. Therefore carelessness is criminal, and within limits supplies the place of
the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition
to do harm that one of them may very well be looked upon as the measure of the other.
Since, therefore, the guilt of a crime consists in the disposition to do harm, which the
criminal shows by committing it, and since this disposition is greater or less in
proportion to the harm which is done by the crime, the consequence is that the guilt of
the crime follows the same proportion; it is greater or less according as the crime in its
own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed
the same whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless
the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which he
had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary"
as used in this article, say that a voluntary act is a free, intelligent, and intentional act,
and roundly asserts that without intention (intention to do wrong or criminal intention)
there can be no crime; and that the word "voluntary" implies and includes the words
"con malicia," which were expressly set out in the definition of the word "crime" in the
code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use
in the former code was redundant, being implied and included in the word "voluntary."
(Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said
to exempt from criminal responsibility when the act which was actually intended to be
done was in itself a lawful one, and in the absence of negligence or imprudence,
nevertheless admits and recognizes in his discussion of the provisions of this article of
the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.)
And, as we have shown above, the exceptions insisted upon by Viada are more apparent
than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where
there is no intention there is no crime . . . in order to affirm, without fear of
mistake, that under our code there can be no crime if there is no act, an act which

must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal
Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for
example in its sentence of May 31, 1882, in which it made use of the following
language:
It is necessary that this act, in order to constitute a crime, involve all the malice
which is supposed from the operation of the will and an intent to cause the injury
which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that,
whatever may be the civil effects of the inscription of his three sons, made by the
appellant in the civil registry and in the parochial church, there can be no crime because
of the lack of the necessary element or criminal intention, which characterizes every
action or ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the
following language:
. . . Considering that the moral element of the crime, that is, intent or malice or
their absence in the commission of an act defined and punished by law as
criminal, is not a necessary question of fact submitted to the exclusive judgment
and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential
element of the various crimes and misdemeanors therein defined becomes clear also
from an examination of the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with malice,
would constitute a grave crime, shall be punished with the penalty of arresto
mayor in its maximum degree, to prision correccional in its minimum degrees if it
shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its medium
and maximum degrees.
In the application of these penalties the courts shall proceed according to their
discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for
the crime is equal to or less than those contained in the first paragraph thereof, in
which case the courts shall apply the next one thereto in the degree which they
may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words
"criminal intent," and the direct inference from its provisions is that the commission of
the acts contemplated therein, in the absence of malice (criminal intent), negligence,
and imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate
in meaning the word "willful" as used in English and American statute to designate a
form of criminal intent. It has been said that while the word "willful" sometimes means

little more than intentionally or designedly, yet it is more frequently understood to


extent a little further and approximate the idea of the milder kind of legal malice; that is,
it signifies an evil intent without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or "causelessly;" in another,
"without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes "malice,"
"malicious," "maliciously," and "malice aforethought" are words indicating intent, more
purely technical than "willful" or willfully," but "the difference between them is not
great;" the word "malice" not often being understood to require general malevolence
toward a particular individual, and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the
definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with
malice aforethought," or in one of the various modes generally construed to imply a
criminal intent, we think that reasoning from general principles it will always be found
that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent
must combine with an act. Mr. Bishop, who supports his position with numerous citations
from the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule
as to the intent. In controversies between private parties the quo animo with
which a thing was done is sometimes important, not always; but crime proceeds
only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be. And
neither in philosophical speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty unless his mind was
so. It is therefore a principle of our legal system, as probably it is of every other,
that the essence of an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the modern, is
distinct on this subject. It consequently has supplied to us such maxims as Actus
non facit reum nisi mens sit rea, "the act itself does not make man guilty unless
his intention were so;" Actus me incito factus non est meus actus, "an act done by
me against my will is not my act;" and others of the like sort. In this, as just said,
criminal jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By reference to the
intention, we inculpate or exculpate others or ourselves without any respect to the
happiness or misery actually produced. Let the result of an action be what it may,
we hold a man guilty simply on the ground of intention; or, on the dame ground,
we hold him innocent." The calm judgment of mankind keeps this doctrine among
its jewels. In times of excitement, when vengeance takes the place of justice,
every guard around the innocent is cast down. But with the return of reason
comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by God to man,
no one deems another to deserve punishment for what he did from an upright
mind, destitute of every form of evil. And whenever a person is made to suffer a

punishment which the community deems not his due, so far from its placing an
evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what has the
appearance of wrong, with the utmost confidence that the plea, if its truth is
credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the law itself proceeds,
that no man is to be punished as a criminal unless his intent is wrong. (Bishop's
New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from
this doctrine of abstract justice result from the adoption of the arbitrary rule
that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which
justice could not be administered in our tribunals; and compelled also by the same
doctrine of necessity, the courts have recognized the power of the legislature to forbid,
in a limited class of cases, the doing of certain acts, and to make their commission
criminal without regard to the intent of the doer. Without discussing these exceptional
cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without
regard to the intent of the doer is clear and beyond question the statute will not be so
construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that
ignorance of the law excuses no man has been said not to be a real departure from the
law's fundamental principle that crime exists only where the mind is at fault, because
"the evil purpose need not be to break the law, and if suffices if it is simply to do the
thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases
cited.)
But, however this may be, there is no technical rule, and no pressing necessity
therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with
the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a
sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake
of fact as shows the act committed to have proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must
depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207,
209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he
honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake
was made, and the effect which the surrounding circumstances might reasonably be
expected to have on his mind, in forming the intent, criminal or other wise, upon which
he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing or, in terms more nicely
in accord with the principles on which the rule is founded, if without fault or
carelessness he does believe them he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense and
the not quite harmonious authorities, it is the doctrine of reason and sufficiently

sustained in adjudication, that notwithstanding some decisions apparently


adverse, whenever a man undertakes self-defense, he is justified in acting on the
facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus
supposes the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures. (Bishop's
New Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this
rule is the case where a man, masked and disguised as a footpad, at night and on a
lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands
his money or his life, but is killed by his friend under the mistaken belief that the attack
is a real one, that the pistol leveled at his head is loaded, and that his life and property
are in imminent danger at the hands of the aggressor. No one will doubt that if the facts
were such as the slayer believed them to be he would be innocent of the commission of
any crime and wholly exempt from criminal liability, although if he knew the real state of
the facts when he took the life of his friend he would undoubtedly be guilty of the crime
of homicide or assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and (since malice or
criminal intent is a necessary ingredient of the "act punished by law" in cases of
homicide or assassination) overcomes at the same time the presumption established in
article 1 of the code, that the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a
felonious design against him, and under that supposition killed him, although it
should afterwards appear that there was no such design, it will not be murder, but
it will be either manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief. (Charge to the grand jury in
Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with
an outstretched arms and a pistol in his hand, and using violent menaces against
his life as he advances. Having approached near enough in the same attitude, A,
who has a club in his hand, strikes B over the head before or at the instant the
pistol is discharged; and of the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only to terrify A. Will any
reasonable man say that A is more criminal that he would have been if there had
been a bullet in the pistol? Those who hold such doctrine must require that a man
so attacked must, before he strikes the assailant, stop and ascertain how the pistol
is loaded a doctrine which would entirely take away the essential right of selfdefense. And when it is considered that the jury who try the cause, and not the
party killing, are to judge of the reasonable grounds of his apprehension, no
danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a
few of which are here set out in full because the facts are somewhat analogous to those
in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at night,
in company only of his wife, without other light than reflected from the fire, and

that the man with his back to the door was attending to the fire, there suddenly
entered a person whom he did not see or know, who struck him one or two blows,
producing a contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly been struck,
and gave the unknown person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the unknown lying on the floor, and
left the house. It turned out the unknown person was his father-in-law, to whom he
rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused,
who confessed the facts, had always sustained pleasant relations with his fatherin-law, whom he visited during his sickness, demonstrating great grief over the
occurrence. Shall he be considered free from criminal responsibility, as having
acted in self-defense, with all the circumstances related in paragraph 4, article 8,
of the Penal Code? The criminal branch of theAudiencia of Valladolid found that he
was an illegal aggressor, without sufficient provocation, and that there did not
exists rational necessity for the employment of the force used, and in accordance
with articles 419 and 87 of the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon appeal by the accused, he
was acquitted by the supreme court, under the following sentence: "Considering,
from the facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife who was nursing her
child, was attacked, struck, and beaten, without being able to distinguish with
which they might have executed their criminal intent, because of the there was no
other than fire light in the room, and considering that in such a situation and when
the acts executed demonstrated that they might endanger his existence, and
possibly that of his wife and child, more especially because his assailant was
unknown, he should have defended himself, and in doing so with the same stick
with which he was attacked, he did not exceed the limits of self-defense, nor did
he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and
was capable of producing death, and in the darkness of the house and the
consteration which naturally resulted from such strong aggression, it was not
given him to known or distinguish whether there was one or more assailants, nor
the arms which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts that there
existed rational necessity for the means employed, and that it did not apply
paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated in a
retired part of the city, upon arriving at a point where there was no light, heard the
voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you
money!" because of which, and almost at the same money, he fired two shots
from his pistol, distinguishing immediately the voice of one of his friends (who had
before simulated a different voice) saying, "Oh! they have killed me," and
hastening to his assistance, finding the body lying upon the ground, he cried,
"Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been
the victim of a joke, and not receiving a reply, and observing that his friend was a
corpse, he retired from the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted in just self-defense
under the circumstances defined in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga did not so find, but only found in favor
of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore,

condemned the accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this sentence, holding
that the accused was acting under a justifiable and excusable mistake of fact as to
the identity of the person calling to him, and that under the circumstances, the
darkness and remoteness, etc., the means employed were rational and the
shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p.
136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night,
by a large stone thrown against his window at this, he puts his head out of the
window and inquires what is wanted, and is answered "the delivery of all of his
money, otherwise his house would be burned" because of which, and observing
in an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning was
found dead on the same spot. Shall this man be declared exempt from criminal
responsibility as having acted in just self-defense with all of the requisites of law?
The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a
majority of the requisites to exempt him from criminal responsibility, but not that
of reasonable necessity for the means, employed, and condemned the accused to
twelve months of prision correctional for the homicide committed. Upon appeal,
the supreme court acquitted the condemned, finding that the accused, in firing at
the malefactors, who attack his mill at night in a remote spot by threatening
robbery and incendiarism, was acting in just self-defense of his person, property,
and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that the
defendant Chinaman struck the fatal blow alleged in the information in the firm belief
that the intruder who forced open the door of his sleeping room was a thief, from whose
assault he was in imminent peril, both of his life and of his property and of the property
committed to his charge; that in view of all the circumstances, as they must have
presented themselves to the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing no more than exercising his
legitimate right of self-defense; that had the facts been as he believed them to be he
would have been wholly exempt from criminal liability on account of his act; and that he
can not be said to have been guilty of negligence or recklessness or even carelessness
in falling into his mistake as to the facts, or in the means adopted by him to defend
himself from the imminent danger which he believe threatened his person and his
property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be
reversed, and the defendant acquitted of the crime with which he is charged and his bail
bond exonerated, with the costs of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that,
according to the merits of the case, the crime of homicide by reckless negligence,
defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the
victim was wilfully (voluntariomente) killed, and while the act was done without malice
or criminal intent it was, however, executed with real negligence, for the acts committed
by the deceased could not warrant the aggression by the defendant under the erroneous
belief on the part of the accused that the person who assaulted him was a malefactor;
the defendant therefore incurred responsibility in attacking with a knife the person who
was accustomed to enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the
accused should be sentenced to the penalty of one year and one month of prision
correctional, to suffer the accessory penalties provided in article 61, and to pay an
indemnify of P1,000 to the heirs of the deceased, with the costs of both instances,
thereby reversing the judgment appealed from.

G.R. No. 209464

July 1, 2015

DANDY L. DUNGO and GREGORIO A. SIBAL, JR., Petitioners,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
The fraternal contract should not be signed in blood, celebrated with pain, marred by
injuries, and perpetrated through suffering. That is the essence of Republic Act (R.A.) No.
8049 or the Anti-Hazing Law of 1995.
This is a petition for review on certiorari seeking to reverse and set aside the April 26,
2013 Decision1 and the October 8, 2013 Resolution2 of the Court of Appeals (CA) in CAG.R. CR-H.C. No. 05046, which affirmed the February 23, 2011 Decision 3 of the Regional
Trial Court, Branch 36, Calamba City (RTC). The RTC found petitioners Dandy L. Dungo
(Dungo) and Gregorio A. Sibal, Jr. (Sibal), guilty beyond reasonable doubt of the crime of
violation of Section 4 of R.A. No. 8049, and sentenced them to suffer the penalty of
reclusion perpetua.
The Facts
On February 1, 2006, the Office of the City Prosecutor of Calamba, Laguna, filed the
Information4 against the petitioners before the R TC, the accusatory portion of which
reads: That on or about 2:30 in the early morning of January 14, 2006, at Villa
Novaliches, Brgy. Pansol, Calamba ,City, Province of Laguna and within the jurisdiction of
the Honorable Court, the above-named accused, during an initiation rite and being then
members of Alpha Phi Omega fraternity and present thereat, in conspiracy with more or
less twenty other members and officers, whose identity is not yet known, did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one
M4-RLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his admission
to the fraternity, thereby subjecting him to physical harm, resulting to his death, to the
damage and prejudice of the heirs of the victim.
CONTRARY TO LAW.
On February 7, 2006, upon motion, the RTC admitted the Amended Information 5 which
reads:
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy.
Pansol, Calamba City, Province of Laguna and within the jurisdiction of the Honorable
Court, the above-name accused, during a planned initiation rite and being then officers
and members of Alpha Phi Omega fraternity and present thereat, in conspiracy with
more or less twenty other members and officers, whose identity is not yet known, did
then and there willfully, unlawfully and feloniously assault and use personal violence
upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his
admission to the fraternity, thereby subjecting him to physical harm, resulting to his
death, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW.
On February 7, 2006, Dungo filed a motion to quash for lack of probable cause, 6 but it
was denied by the trial court because the ground cited therein was not provided by law

and jurisprudence. When arraigned, the petitioners pleaded not guilty to the crime
charged.7 Thereafter, trial ensued.
Version of the Prosecution
The prosecution presented twenty (20) witnesses to prove the crime charged. Their
testimonies are summarized as follows:
At around 3:20 o'clock in the morning of January 14, 2006, the victim Marlon Villanueva
(Villanueva) was brought to the emergency room of Dr. Jose P. Rizal District Hospital (JP
Rizal Hospital). Dr. Ramon Masilungan (Dr. Masilungan), who was then the attending
physician at the emergency room, observed that Villanueva was motionless, not
breathing and had no heartbeat. Dr. Masilungan tried to revive Villlanueva for about 15
to 30 minutes. Villanueva, however, did not respond to the resuscitation and was
pronounced dead. Dr. Masilungan noticed a big contusion hematoma on the left side of
the victim's face and several injuries on his arms and legs. He further attested that
Villanueva 's face was cyanotic, meaning that blood was no longer running through his
body due to lack of oxygen; and when he pulled down Villanueva's pants, he saw large
contusions on both legs, which extended from the upper portion of the thighs, down to
the couplexial portion, or back of the knees.
Dr. Masilungan disclosed that two (2) men brought Villanueva to the hospital. The two
told him that they found Villanueva lying motionless on the ground at a store in Brgy.
Pansol, Calamba City, and brought him to the hospital. When he asked them where they
came from, one of them answered that they came from Los Baos, Laguna, en route to
San Pablo City. He questioned them on how they found Villanueva, when the latter was
in Brgy. Pansol, Calamba City. One of the men just said that they were headed
somewhere else.
Dr. Masilungan reduced his findings in a medico-legal report. 8 Due to the nature, extent
and location of the injuries, he opined that Villanueva was a victim of hazing. He was
familiar with hazing injuries because he had undergone hazing himself when he was a
student, and also because of his experience in treating victims of hazing incidents.
Dr. Roy Camarillo (Dr. Camarillo), Medico-Legal Officer of the Philippine National Police
Crime Laboratory (PNP-CL) in Region IV, Camp Vicente Lim, Canlubang, Calamba City,
testified that he performed an autopsy on the body of Villanueva on January 14, 2006
and placed down his findings in an autopsy report. 9 Upon examination of the body, he
found various external injuries in the head, trunk and extremities. There were thirtythree (33) external injuries, with various severity and nature. He concluded that the
cause of death was subdural hemorrhage due to head injury contusion-hematoma.
Based on multiple injuries and contusions on the body, and his previous examinations of
hazing injuries, Dr. Camarillo opined that these injuries were hazing-related. During the
autopsy, he retrieved two (2) matchsticks from the cadaver with the marking of Alpha
Phi Omega (APO) Fraternity.10
Susan Ignacio (Ignacio) was the owner of the sari-sari store located at Purok 5, Pansol,
Calamba City, in front of Villa Novaliches Resort, which was barely ten steps away. On
January 13, 2006, at around 8:30 to 9:00 o'clock in the evening, she was tending her
store when she saw a jeepney with more than twenty (20) persons arrive at the resort.
Ignacio identified Dungo as the person seated beside the driver of the jeepney. 11 She
estimated the ages of these persons in the group to be between 20 to 30 years old.
They were in civilian clothes, while the other men wore white long-sleeved shirts. Before

entering the resort, the men and women shook hands and embraced each other. Three
(3) persons, riding on a single motorcycle, also arrived at the resort.
Ignacio saw about fifteen (15) persons gather on top of the terrace of the resort who
looked like they were praying, and then the lights of the resort were turned off. Later
that evening, at least three (3) of these persons went to her store to buy some items.
During her testimony, she was shown photographs and she identified Christopher
Braseros and Sibal as two of those who went to her store. 12 It was only on the morning of
January 14, 2006 that she learned from the policemen visiting the resort that the
deceased person was Villanueva.
Donato Magat (Magat), a tricycle driver plying the route of Pansol, Calamba City,
testified that at around 3:00 o'clock in the morning of January 14, 2006, he was waiting
for passengers at the comer of Villa Novaliches Resort. A man approached him and told
him that someone inside the resort needed a ride. Magat went to the resort and asked
the two (2) men at the gate who needed a ride. Afterwards, he saw three (3) men in
their 20's carrying another man, who looked very weak, like a vegetable, towards his
tricycle. Magat touched the body of the man being carried and sensed it was cold.
Magat asked the men what happened to their companion. They replied that he had too
much to drink. Then they instructed Magat to go to the nearest hospital. He drove the
tricycle to JP Rizal Hospital. Upon their arrival, two of his passengers brought their
unconscious companion inside the emergency room, while their other companion paid
the tricycle fare. Magat then left to go home. Several days after, he learned that the
person brought to the hospital had died.
Abelardo Natividad (Natividad) and Seferino Espina y Jabay (Espina) were the security
guards on duty at JP Rizal Hospital, from 11 :00 o'clock in the evening of January 13,
2006 until 7:00 o'clock in the morning of January 14, 2006. In the early morning of
January 14, 2006, two men, who signed on the logbook 13 under the names Brandon
Gonzales and Jerico Paril, brought the lifeless body of a person. Pursuant to the standard
operating procedure of the hospital, the security guards did not allow the two men to
leave the hospital because they called the police station .so that an investigation could
be conducted. Two policemen arrived later at the hospital. During his testimony,
Natividad identified Sibal and Dupgo as the two persons who brought Villanueva to the
hospital.
PO2 Alaindelon Ignacio (P02 Ignacio). testified that on January 14, 2006 at around 3:30
o'clock in the early morning, Natividad called up the PNP Calamba City Station to report
that a lifeless body of a man was brought to JP Rizal Hospital. When P02 Ignacio arrived,
he saw Villanueva' s corpse with contusions and bite marks all over his body. P02 Ignacio
and his policemen companions then brought Dungo and Sibal to the police station. He
asked them about what happened, but they invoked their right to remain silent. The
policemen then proceeded to Brgy. Pansol at around 9:00 o'clock in the morning. After
finding Villa Novaliches Resort, they knocked on the door and the caretaker, Maricel
Capillan (Capillan), opened it.
The police asked Capillan if there were University of the Philippines Los Baos (UP Los
Baos) students who rented the resort on the evening of January 13, 2006. Capillan said
yes and added that about twenty (20) persons arrived onboard a jeepney and told her
that they would be renting the resort from 9:30 o'clock in the evening up to 7:00 o'clock
the following morning.

Gay Czarina Sunga (Sunga) was a food technology student at UP Los Baos during the
academic year of 2005-2006 and a member of the Symbiosis UPLB Biological Society.
Around 3:00 o'clock in the afternoon of January 13, 2006, she was at their organization's
tambayan in the UPLB Biological Sciences Building, when she noticed three (3) men
seated two meters away from her. She identified the two of the three men as Sibal and
Dungo.14They were wearing black shirts with the logo of APO. Later at 5:00 o'clock in the
afternoon, two more men arrived and, with their heads bowed, approached the three
men. One of them was Villanueva, who was carrying a 5-gallon water container. Dungo
then stood up and asked Villanueva why the latter did not report to him when he was
just at their tambayan. Dungo then punched Villanueva twice, but the latter just kept
quiet with his head bowed. Fifteen minutes later, all the men left.
Joey Atienza (Atienza) had been a good friend of Villanueva since 2004. They were
roommates at the UP Los Baos Men's Dormitory and housemates at the DPS Apartment
in Umali Subdivision, Los Baos, Laguna. According to Atienza, on January 9, 2006,
Villanueva introduced him to Daryl Decena (Decena) as his APO - Theta Chapter
batchmate, who was also to undergo final initiation rites on January 13, 2006.
Severino Cuevas, Director of the Students Affairs at UP Los Baos, testified that Dungo
and Sibal were both members of the APO Fraternity, and that there was no record of any
request for initiation or hazing activity filed by the said fraternity.
McArthur Padua of the Office of the Registrar, UP Los Baos, testified that Villanueva was
a B.S. Agricultural Economics student at the UP Los Baos, 15 as evidenced by his official
transcript of record.16
Atty. Eleno Peralta and Dina S. Carlos, officers of the Student Disciplinary Tribunal (SDT)
of the UP Los Baos, testified that an administrative disciplinary case was filed on March
31, 2006 against the APO Fraternity regarding the death of Villanueva. They confirmed
that Capilla of Villa Novaliches Resort and Irene Tan (Tan) of APO Sorority Theta Chapter
appeared as witnesses for the complainant.17
Roman Miguel De Jesus, UP - Office of the Legal Aid (UP-OLA) supervising student,
testified that he met Tan of the APO Sorority sometime between July and August 2006 in
UP Diliman: to convince her to testify in the criminal case. Tan, however, refused
because she feared for her safety. She said that after testifying in the SDT hearing, her
place in Imus, Cavite was padlocked and vandalized.
Evelyn Villanueva, mother of victim Villanueva, testified that, as a result of the death of
her son, her family incurred actual damages consisting of medical, burial and funeral
expenses in the aggregate amount ofP140,000.00 which were evidenced by
receipts.18 Her husband also incurred travel expenses in the amount ofP7,000.00 in
returning to the Philippines to attend his son's wake and burial, as supported by a plane
ticket.19 She further attested that she experienced mental anguish, sleepless nights,
substantial weight loss, and strained family relationship as a result of her son's death.
Version of the Defense
The defense presented seven (7) witnesses to prove the innocence of the petitioners.
Their testimonies are summarized as follow:
Richard Cornelio (Cornelio), an APO Fraternity member, testified that on January 13,
2006, around 4:00 to 4:30 o'clock in the afternoon, he met Dungo at the UP Los Baos
Graduate School. Dungo asked him if he would attend the initiation ceremony, and

Cornelio answered in the negative because he had other things to do. At 10:00 o'clock in
the evening of the same day, Cornelio again met Dungo and his girlfriend while eating a
hamburger at the Burger Machine along Raymundo Street, Umali Subdivision, Los Baos,
Laguna (Raymundo Street). He asked Dungo if he would attend the initiation ceremony.
Dungo replied that he would not because he and his girlfriend had something to do.
Ana Danife Rivera (Rivera), the girlfriend of Dungo, testified that on January 13, 2006 at
around 1 :00 o'clock in the afternoon, Dungo came and visited her at her boarding house
on Raymundo Street. Around 4:00 o'clock of the same afternoon, they went to the UP
Los Baos Graduate School and saw Cornelio. Afterwards, they went back to her
boarding house and stayed there from 5:00 o'clock in the afternoon to 7:00 o'clock in
the evening. Then, they went to Lacxo Restaurant for dinner and left at around 10:00
o'clock in the evening. On their way back to her boarding house, they encountered
Cornelio again at the Burger Machine. Dungo then stayed and slept at her boarding
house. Around 2:00 o'clock in the early morning of January 14, 2006, they were roused
from their sleep by a phone call from Sibal, asking Dungo to go to a resort in Pansol,
Calamba City. Dungo then left the boarding house.
Dungo testified that around 1:00 o'clock in the early afternoon of January 13, 2006, he
arrived at the boarding house of his girlfriend, Rivera, on Raymundo Street. At around
4:00 o'clock in the afternoon, they went to the UP Los Baos Graduate School and
inquired about the requirements for a master's degree. They walked back to the
boarding house and met Cornelio. They talked about their fraternity's ,final initiation
ceremony for that night in Pansol, Calamba City. Dungo and Rivera then reached the
latter's boarding house around 5:00 o'clock in the afternoon. At around 7:00 o'clock in
the evening, they went out for dinner at the Lacxo Restaurant, near Crossing Junction,
Los Baos. They ate and stayed at the restaurant for at least one and a half hours. Then
they walked back to the boarding house of Rivera and, along the way, they met Cornelio
again at the Burger Machine along Raymundo Street. Cornelio asked Dungo if he would
attend their fraternity's final initiation ceremony, to which he replied in the negative.
Dungo and Rivera reached the boarding house around 9:00 o'clock in the evening and
they slept there.
Around 2:00 o'clock in the early morning of January 14, 2006, Dungo was roused from
his sleep because Sibal was palling him on his cellphone. Sibal asked for his help,
requesting him to go to Villa Novaliches Resort in Pansol, Calamba City. Upon Dungo 's
arrival at the resort, Sibal led him inside. There, he saw Rudolfo Castillo (Castillo), a
fellow APO fraternity brother, and Villanueva, who was unconscious. Dungo told them
that they should bring Villanueva to the hospital. They all agreed, and Castillo called a
tricycle that brought them to JP Rizal Hospital. He identified himself before the security
guard as Jerico Paril because he was scared to tell his real name.
Gilbert Gopez (Gopez) testified that he was the Grand Chancellor of the APO -Theta
Chapter for years 2005-2006. At around 7:00 o'clock in the evening of January 13, 2006,
he was at the tambayan of their fraternity in UP Los Baos because their neophytes
would be initiated that night. Around 8:30 o'clock in the evening, they met their
fraternity brothers in Bagong Kalsada, Los Baos. He noticed that their neophyte,
Villanueva, was with Castillo and that there was a bruise on the left side of his face.
Then they boarded a jeepney and proceeded to Villa Novaliches Resort in Pansol,
Calamba City. There, Gopez instructed Sibal to take Villanueva to the second floor of the
resort. He confronted Castillo as to what happened to Villanueva. Around 11:00 or 11:30
o'clock in the evening, Gopez decided to cancel the final rites. He told Sibal to stay at
the resort and accompany Villanueva and Castillo. Together with the other neophytes,
Gopez left the resort and went back to UP Los Baos.

Sibal testified that he was a DOST Scholar at the UP Los Baos from 2002 to 2006,
taking up B.S. Agricultural Chemistry. He was a Brother Actuary of the APO - Theta
Chapter, and was in charge of fraternity activities, such as tree planting, free medical
and dental missions, and blood donations. On January 13, 2006, at around 6:00 o'clock
in the evening, he was at the fraternity's tambayan for the final initiation rites of their
neophytes. After preparing the food for the initiation rites, Sibal, together with some
neophytes, went to Bagong Kalsada, Los Baos, where he saw fellow fraternity brother
Castillo with their neophyte Villanueva, who had a bruised face. Thereafter, they
boarded a jeepney and proceeded to Villa Novaliches Resort in Pansol, Calamba City.
Once inside the resort, he accompanied Villanueva upstairs for the latter to take a rest.
A few minutes later, he went down and confronted Castillo about the bruises on
Villanueva's face. He was angry and irritated with Castillo. He then stayed outside the
resort until Gopez and the other neophytes came out and told him that the final
initiation rite was cancelled, and that they were returning to UP Los Baos. Sibal wanted
to go with them but ;he was ordered to stay with Villanueva and Castillo.
After the group of Gopez left, Sibal checked on the condition of Villanueva, who was
sleeping on the second; floor of the resort. Then he went outside for one hour, or until
1 :00 o 'dock in the early morning of January 14, 2006. Sibal entered the resort again
and saw Villanueva, who looked unconscious, seated in one of the benc6es on the
ground floor. Sibal inquired about Villanueva's condition but he was ignored by Castillo.
He then called Dungo for help. After Dungo arrived at the resort, they hailed a tricycle
and brought Villanueva to JP Rizal Hospital. There, he gave a false name to the security
guard as he heard that Dungo had done the same.
The RTC Ruling
On February 23, 2011, the RTC found Dungo and Sibal guilty of the crime of violating
Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty of reclusion
perpetua. The trial court stated that the prosecution established the presence of Dungo
and Sibal (1) at the UP Los Banos Campus on January 13, 2006 around 3:00 o'clock in
the afternoon, by the testimony of Sunga and (2) at the Villa Novaliches Resort around
9:00 o'clock in the evening of the same day by the testimony of Ignacio. With the
extensive testimonies of Dr. Masilungan and Dr. Camarillo, the prosecution also proved
that Villanueva died from hazing injuries.
According to the RTC, the evidence of the prosecution undeniably proved that
Villanueva, a UP Los Bafios student, was a neophyte of the APO - Theta Chapter
Fraternity; that Dungo and Sibal were members of the said fraternity; that on the
evening of January 13, 2006, Dungo and Sibal, together with the other fraternity
members, officers and alumni, brought and transported Villanueva and two other
neophytes to Villa Novaliches Resort at Barangay Pansol, Calamba City, for the final
initiation rites; that the initiation rites were conducted inside the resort, performed
under the cover of darkness and secrecy; that due to the injuries sustained by
Villanueva, the fraternity members and the other two neophytes haphazardly left the
resort; and that Dungo and Sibal boarded a tricycle and brought the lifeless body of
Villanueva to JP Rizal Hospital, where Villanueva was pronounced dead.
The RTC explained that even if there was no evidence that Dungo and Sibal participated
to bodily assault and harm the victim, it was irrefutable that they brought Villanueva to
the resort for their final initiation rites. Clearly, they did not merely induce Villanueva to
attend the final initiation rites, but they also brought him to Villa Novaliches Resort.

The RTC held that the defense of denial and alibi were self-serving negative assertions.
The defense of denial and alibi of Dungo, which was corroborated by the testimony of
his girlfriend Rivera and his co-fraternity brother, could not be given credence. The
witnesses presented by the defense were partial and could not be considered as
disinterested parties. The defense of denial of Sibal likewise failed. The corroborative
testimonies of his fraternity brothers were suspect because they had so much at stake in
the outcome of the criminal action.
The decretal portion of the decision reads:
WHEREFORE, the Court finds the accused Dandy Dungo and Gregorio Sibal GUILTY of
violating Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty of
RECLUSION PERPETUA and order them to jointly and severally pay the family /heirs of
Deceased Marlon Villanueva the following sums of money:
1. P141,324.00 for and as actual damages;
2. P200,000.00 for and as moral damages;
3. P100,000.00 for and as exemplary damages; and
4. P50,000.00 for the death of Marlon Villanueva.
SO ORDERED.20
Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the
prosecution failed to establish their guilt beyond reasonable doubt for violating R.A. No.
8049. They also assailed the constitutionality of Section 4 of the said law, which stated
that mere presence in the hazing was prima facie evidence of participation therein,
because it allegedly violated the constitutional presumption of innocence of the
accused.
The CA Ruling
The CA ruled that the appeal of Dungo and Sibal was bereft of merit. It stated that, in
finding them guilty of violating R.A. No. 8049, the RTC properly relied on circumstantial
evidence adduced by the prosecution. The CA painstakingly discussed the unbroken
chain of circumstantial evidence to convict Dungo and Sibal as principals in the crime of
hazing.
It further found that the defense of denial and alibi of Dungo and Sibal failed to cast
doubt on the positive identification made by the prosecution witnesses; and that denial,
being inherently weak, could not prevail over the positive identification of the accused
as the perpetrators of the crime. The CA also stated that Dungo and Sibal were not only
convicted based on their presence in the venue of the hazing, but also in their act of
bringing the victim to Villa Novaliches Resort for the final initiation rites.
The dispositive portion of the decision reads:
WHEREFORE, premises considered, the February 23, 2011 Decision of the Regional Trial
Court, Branch 36 of Calamba City in CRIM. Case No. 13958-2006-C, finding accusedappellant guilty beyond reasonable doubt of Violation of R.A. 8049 is hereby AFFIRMED
in TOTO.

SO ORDERED.21
Dungo and Sibal moved for reconsideration but their motion was denied by the CA in the
assailed October 8, 2013 Resolution.
Hence, this petition.
SOLE ASSIGNMENT OF ERROR HE JUDGMENTS OF THE RTC AND THE CA A QUO
CONSTITUTE A VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO BE
INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST THEM BECAUSE THE
OFFENSE PROVED AS FOUND AND PRONOUNCED THEREBY IS DIFFERENT FROM THAT
CHARGED IN THE INFORMATION, NOR DOES ONE INCLUDE OR NECESSARILY INCLUDE
THE OTHER.22
Petitioners Dungo and Sibal argue that the amended information charged them as they
"did then and there willfully, unlawfully and feloniously assault and use personal
violence upon one Marlon Villanueva y Mejilla." 23 Yet, both the RTC and the CA found
them guilty of violating R.A. No. 8049 because they "[i]nduced the victim to be
present"24 during the initiation rites. The crime of hazing by inducement does not
necessarily include the criminal charge of hazing by actual participation. Thus, they
cannot be convicted of a crime not stated or necessarily included in the information. By
reason of the foregoing, the petitioners contend that their constitutional right to be
informed of the nature and cause of accusation against them has been violated.
In its Comment,25 filed on May 23, 2014, the Office of the Solicitor General (DSG)
asserted that Dungo and Sibal were charged in the amended information with the proper
offense and convicted for such. The phrases "planned initiation" and "in conspiracy with
more or less twenty members and officers" in the amended information sufficiently
cover "knowingly cooperated in carrying out the hazing by inducing the victim to be
present thereat." The planned initiation rite would not have been accomplished were it
not for the acts of the petitioners in inducing the victim to be present thereat and it was
obviously conducted in conspiracy with the others. 26 In their Reply27filed on September
10, 2014, Dungo and Sibal insisted that there was a variance between the, offense
charged of "actually participated in the infliction of physical harm," and the offense
"knowingly cooperated in carrying out the hazing by inducing the victim to be present
thereat."28 The prosecution, moreover, failed to establish conspiracy because no act or
circumstance was proved pointing to a joint purpose and design between and among
the petitioners and the other twenty accused.
The Court's Ruling
The petition lacks merit.
Procedural Matter
An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a
higher court authority.29The right to appeal is neither a natural right nor is it a
component of due process. It is a mere statutory privilege, and may be exercised only in
the manner and in accordance with the provisions of law.30
Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M.
No. 00-5-03, dated October 15, 2004, governs the procedure on the appeal from the CA
to the Court when the penalty imposed is either reclusion perpetua or life
imprisonment.31 According to the said provision, "[i]n cases where the Court of Appeals

imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and
enter judgment imposing such penalty. The judgment may be appealed to the Supreme
Court by notice of appeal filed with the Court of Appeals."
Hence, an accused, upon whom the penalty of reclusion perpetua or life imprisonment
had been imposed by the CA, can simply file a notice of appeal to allow him to pursue
an appeal as a matter of right before the Court. An appeal in a criminal case opens the
entire case for review on any question including one not raised by the parties. 32 Section
13(c), Rule 124 recognizes the constitutionally conferred jurisdiction of the Court in all
criminal cases in which the penalty imposed is reclusion perpetua or higher.33
An accused, nevertheless, is not precluded in resorting to an appeal by certiorari to the
Court via Rule 45 under the Rules of Court. An appeal to this Court by petition for review
on certiorari shall raise only questions of law. 34Moreover, such review is not a matter of
right, but of sound judicial discretion, and will be granted only when there are special
and important reasons.35 In other words, when the CA imposed a penalty of reclusion
perpetua or life imprisonment, an accused may: (1) file a notice of appeal under Section
13( c ), Rule 124 to avail of an appeal as a matter of right before the Court and open the
entire case for review on any question; or (2) file a petition for review on certiorari under
Rule 45 to resort to an appeal as a matter of discretion and raise only questions of law.
In this case, the CA affirmed the R TC decision imposing the penalty of reclusion
perpetua upon the petitioners. The latter opted to appeal the CA decision via a petition
for certiorari under Rule 45. Consequently, they could only raise questions of law. Oddly,
the petitioners began to assail the existence of conspiracy in their reply, 36 which is a
question of fact that would require an examination of the evidence ;presented. In the
interest of justice, however, and due to the novelty of the issue presented, the Court
deems it proper to open the whole case for review.37 Substantive Matter
In our contemporary society, hazing has been a nightmare of parents who send their
children to college or university. News of deaths and horrible beatings primarily among
college students due to hazing injuries continue to haunt us. Horrid images of eggplantlike buttocks and thighs and pounded arms and shoulders of young men are depicted as
a fervent warning to those who dare undergo the hazing rites. The meaningless death of
these promising students, and the agony, cries and ordeal of their families, resonate
through the very core of our beings. But no matter how modem and sophisticated our
society becomes, these barbaric acts of initiation of fraternities, sororities and other
organizations continue to thrive, even within the elite grounds of the academe.
The history and phenomenon of hazing had been thoroughly discussed in the recent
case of Villareal v. People.38It is believed that the fraternity system and its accompanying
culture of hazing were transported by the Americans to the Philippines in the late 19th
century.39 Thus, a study of the laws and jurisprudence of the United States (US) on
hazing can enlighten the current predicament of violent initiations in fraternities,
sororities and other organizations.
United States Laws and
Jurisprudence on Hazing
There are different definitions of hazing, depending on the laws of the states. 40 In the
case of People v. Lenti,41the defendant therein challenged the constitutionality of the
state law defining hazing on the ground of vagueness. The court rejected such
contention and held that it would have been an impossible task if the legislature had
attempted to define hazing specifically

because fraternal organizations and associations never suffered for ideas in contriving
new forms of hazing. Presently, the acceptable definition of hazing is the practice of
physically or emotionally abusing newcomers to an organization as a means of
initiation.42
Hazing can be classified into various categories including, but not limited to, acts of
violence, acts of humiliation, sexual-related acts, and alcohol-related acts. 43 The physical
form of hazing may include beating, branding, paddling, excessive exercise, drinking,
and using drugs. Sexual hazing have included simulated sex acts, sodomy and forced
kissing.44 Moreover, hazing does not only result in physical injuries and hospitalization,
but also lead to emotional damage and traumatic stress.45
Based on statistics and alarming frequency of hazing, states have attempted to combat
hazing through the passage of state laws that prohibit such acts. 46 Forty-four states, with
the exception of Alaska, Hawaii, Montana, New Mexico, South Dakota, and Wyoming,
have passed anti-hazing laws.47 The severity of these laws can range from minor
penalties to a prison sentence for up to six years. 48 In the states of Illinois, Idaho,
Missouri, Texas, Virginia, Wisconsin, hazing that result in death or "great bodily harm" is
categorized as a felony.49
In Florida, the Chad Meredith Act,50 a law named after a student who died in a hazing
incident, was enacted on July 1, 2005. It provides that a person commits a third degree
felony when he or she intentionally or recklessly commits any act of hazing and the
hazing results in serious bodily injury or death. If a person only creates substantial risk
of physical injury or death, then hazing is categorized as a first degree misdemeanor. A
similar provision can be observed in the Penal Law of New York.51
Interestingly, some states included notable features in their anti-hazing statute to
increase its effectiveness. In Alabama, Arkansas, Massachusetts, New Hampshire, South
Carolina and Texas, the law imposes a duty on school personnel to report hazing. 52 In
fact, in Alabama, no person is allowed to knowingly permit, encourage, aid, or assist any
person in committing the offense of hazing, or willfully acquiesces in its commission.53
Also, some states enacted statutes that have been interpreted to mean that persons are
guilty of hazing even if they have the consent of the victim. 54 In New Jersey, consent is
not a defense to a hazing charge, and its law permits the prosecution of offenders under
other applicable criminal statutes.55 By including these various provisions in their antihazing statutes, these states have removed the subjective inquiry of consent from
consideration, thus, presumably allowing courts to effectively and properly adjudicate
hazing cases.56
In the US, hazing victims can either file a criminal action, based on anti-hazing statutes,
or a civil suit, arising from tort law and constitutional law, against the members of the
local fraternity, the national fraternity and even against the university or college
concerned.57 Hazing, which threatens to needlessly harm students, must be attacked
from whatever legal means are possible.58
In State v. Brown,59 a member of the Alpha Kappa Alpha at Kent State University was
indicted for complicity to hazing. The group physically disciplined their pledges by
forcing them to stand on their heads, beating them with paddles, and smacking and
striking initiates in the face and head. The Ohio court held that evidence presented
therein was more than sufficient to sustain a conviction.

Excessive intake of alcohol in the fraternity initiations can be considered as hazing. In


Oja v. Grand Chapter of Theta Chi Fraternity Inc., 60 a 17-year old college freshman died
as a result of aspirating his own vomit after consuming excessive amounts of alcohol in
a fraternity initiation ritual. The defendants in the said case contended that they only
furnished the alcohol drinks to the victim. The court denied the defense because such
acts of the fraternity effectively contributed to the death of the victim as part of their
hazing.
Even in high school, hazing could exist. In Nice v. Centennial Area School District, 61 a
tenth-grade wrestler at William Tennet High School was subjected to various forms of
hazing, including; a ritual where the victim was forcibly held down, while a teammate
sat on his face with his buttocks exposed. The parents of the student sued the school
because it failed to prevent the incident despite its knowledge of the hazing rites. The
court approved the settlement of the parties in the amount ofUS$151,000.00.
More recently, the case of Yost v. Wabash College 62 involved the hazing of an 18-year old
freshman, who suffered physical and mental injuries in the initiation rites conducted by
the Phi Kappa Psi fraternity. As a pledge, the victim was thrown into a creek and was
placed in a chokehold, until he lost consciousness. The court upheld that action against
the local fraternity because, even if the student consented, the fraternity had the duty
to ensure the safety of its activities.
The US anti-hazing laws and jurisprudence show that victims of hazing can properly
attain redress before the court. By crafting laws and prosecuting offenders, the state can
address the distinct dilemma of hazing.
Anti-Hazing Law in the
Philippines
R.A. No. 8049, or the Anti-Hazing Law .of 1995, has been enacted to regulate hazing and
other forms of initiation rites in fraternities, sororities, and other organizations. It was in
response to the rising incidents of death of hazing victims, particularly the death of
Leonardo "Lenny" Villa.63 Despite its passage, reports of deaths resulting from i hazing
continue to emerge. Recent victims were Guillo Servando of the College of St. Benilde,
Marc Andre Marcos and Marvin Reglos of the San', Beda College - Manila, and Cris
Anthony Mendez of the University of the Philippines - Diliman. With the continuity of
these senseless tragedies, one question implores for an answer: is R.A. No. 8049 a
sufficient deterrent against hazing?
To answer the question, the Court must dissect the provisions of the law and scrutinize
its effect, implication and application.
Criminal law has long divided crimes into acts wrong in themselves called acts mala in
se; and acts which would not be wrong but for the fact that positive law forbids them,
called acts mala prohibita. This distinction is important with reference to the intent with
which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent
governs; but in acts mala prohibita, the only inquiry is, has the law been violated? When
an act is illegal, the intent of the offender is immaterial. 64 When the doing of an act is
prohibited by law, it is considered injurious to public welfare, and the doing of the
prohibited act is the crime itself.65
A common misconception is that all mala in se crimes are found in the Revised Penal
Code (RPC), while all mala prohibita crimes are provided by special penal laws. In reality,
however, there may be mala in se crimes under special laws, such as plunder under R.A.

No. 7080, as amended.66 Similarly, there may be mala prohibita crimes defined in the
RPC, such as technical malversation.67
The better approach to distinguish between mala in se and mala prohibita crimes is the
determination of the inherent immorality or vileness of the penalized act. If the
punishable act or .omission is immoral in itself, then it is a crime mala in se,- on the
contrary, if it is not immoral in itself, but there is a statute prohibiting its commission
b)". reasons of public policy, then it is mala prohibita. In the final analysis, whether or
not a crime involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the statute.68
The crime of hazing under R.A. No. 8049 is malum prohibitum. The Senate deliberations
would show that the lawmakers intended the anti-hazing statute to be ma/um
prohibitum, as follows: SENATOR GUINGONA: Most of these acts, if not all, are already
punished under the Revised Penal Code.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA If hazing is done at present and it results in death, the charge
would be murder or homicide.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or
serious physical injuries.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be
penalized under rape or acts of lasciviousness.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. So, what is the rationale for making a new offense under this
definition of the crime of hazing?
SENATOR LINA. To discourage persons or group of persons either composing a sorority,
fraternity or any association from making this requirement of initiation that has already
resulted in these specific acts or results, Mr. President.
That is the main rationale. We want to send a strong signal across the land that no group
or association can require the act of physical initiation before a person can become a
member without being held criminally liable.
xxx

xxx

xxx

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because
the distinguished Sponsor has said that he is not punishing a mere organization, he is
not seeking the punishment of an initiation into a club or organization, he is seeking the
punishment of certain acts that resulted in death, etcetera as a result of hazing which
are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive
hazing, but it may be a legitimate defense for invoking two or more charges or offenses,
because these very same acts are already punishable under the Revised Penal Code
That is my difficulty, Mr. President.
SENATOR LINA. x x x
Another point, Mr. President, is this, and this is a very telling difference: When a person
or group of persons resort to hazing as a requirement for gaining entry into an
organization, the intent to commit a wrong is not visible or is not present, Mr. President.
Whereas, in these specific crimes, Mr. President, let us say there is death or there is
homicide, mutilation, if one files a case, then the intention to commit a wrong has to be
proven. But if the crime of hazing is the basis, what is important is the result from the
act of hazing.
To me, that is the basic difference and that is what will prevent or deter the sororities or
fraternities; that they should really shun this activity called "hazing." Because, initially,
these fraternities or sororities do not even consider having a neophyte killed or maimed
or that acts of lasciviousness are even committed initially, Mr. President.
So, what we want to discourage, is the so-called initial innocent act. That is why there is
need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang
sorority ay magre-recruit. Wala talaga silang intensiybng makamatay. Hindi ko na
babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong
nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung
maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay
after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong
gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty
sa inyo."
xxx

xxx

xxx

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor.
But I am again disturbed by his statement that the prosecution does not have to prove
the intent that resulted in the death, that resulted in the serious physical injuries, that
resulted in the acts of lasciviousness or deranged mind. We do not have to prove the
willful intent of the accused in proving or establishing the crime of hazing. This seems,
to me, a novel situation where we create the special crime without having to go into the
intent, which is one of the basic elements of any crime.
If there is no intent, there is no crime. If the intent were merely to initiate, then there is
no offense. And even the distinguished Sponsor admits that the organization, the intent
to initiate, the intent to have a new society or a new club is, per se, not punishable at
all. What are punishable are the acts that lead to the result. But if these results are not
going to be proven by intent, but just because there was hazing, I am afraid that it will
disturb the basic concepts of the Revised Penal Code, Mr. President.
SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because
in the context of what is happening in the sororities and fraternities, when they conduct
hazing, no one will admit that their intention is to maim or to kill. So, we are already
criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act and we
want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters intended to
kill or the masters intended to maim. What is important is the result of the act of hazing.
Otherwise, the masters or those who inflict the physical pain can easily escape
responsibility and say, "We did not have the intention to kill. This is part of our initiation
rites. This is normal. We do not have any intention to kill or maim."
This is the lusot, Mr. President. They might as well have been charged therefore with the
ordinary crime of homicide, mutilation, etcetera, where the prosecution will have a
difficulty proving the elements if they are separate offenses.
xxx

xxx

xxx

SENATOR LINA. x x x
I am very happy that the distinguished Minority Leader brought out the idea of intent or
whether it is mala in se or mala prohibita. There can be a radical amendment if that is
the point that he wants to go to.
If we agree on the concept, then, maybe, we can just make this a special law on hazing.
We will not include this anymore under the Revised Penal Code. That is a possibility. I will
not foreclose that suggestion, Mr. President.69
[Emphases Supplied]
Having in mind the potential conflict between the proposed law and the core principle of
mala in se adhered to under the RPC, the Congress did not simply enact an amendment
thereto. Instead, it created a special law on hazing, founded upon the principle of mala
prohibita.70 In Vedana v. Valencia,71 the Court noted that in our nation's very recent
history, the people had spoken, through the Congress, to deem conduct constitutive of
hazing, an act previously considered harmless by custom, as criminal. 72 The act of
hazing itself is not inherently immoral, but the law deems the same to be against public
policy and must be prohibited. Accordingly, the existence of criminal intent is immaterial
in the crime of hazing. Also, the defense of good faith cannot be raised in its
prosecution.73
Section 1 of R.A. No. 8049 defines hazing as an initiation rite or practice as a
prerequisite for admission into membership in a fraternity, sorority or organization by
placing the recruit, neophyte or applicant in some embarrassing or humiliating situations
such as forcing him to do menial, silly, foolish and other similar tasks or activities or
otherwise subjecting him to physical or psychological suffering or injury. From the said
definition, the elements of the crime of hazing can be determined:
1. That there is an initiation rite or practice as a prerequisite for admission into
membership in a fraternity, sorority or organization;
2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or
organization; and
3. That the recruit, neophyte or applicant is placed in some embarrassing or
humiliating situations such as forcing him to do menial, silly, foolish and other
similar tasks or activities or otherwise subjecting him to physical or psychological
suffering or injury.

From the said definition of hazing, it is apparent that there must be an initiation rite or
practice performed by the fraternities, sororities or organization. The law, however, did
not limit the definition of these groups to those formed within academic colleges and
universities.74 In fact, the second paragraph of Section 1 provides that the term
"organization" shall include any club or the Armed Forces of the Philippines (AFP),
Philippine National Police (PNP), Philippine Military Academy (PMA), or officer and cadet
corp of the Citizen's Military Training and Citizen's Army Training. Even the president,
manager, director or other responsible officer of a corporation engaged in hazing as a
requirement for employment are covered by the law. 75 R.A. No. 8049 qualifies that the
physical, mental and psychological testing and training procedure and practices to
determine and enhance the physical, mental and psychological fitness of prospective
regular members of the AFP and the PNP, as approved by the Secretary of National
Defense and the National Police Commission, duly recommended by the Chief of Staff of
the AFP and the Director General of the PNP, shall not be considered as hazing.
And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides
that initiation rites of fraternities, sororities or organizations shall be allowed provided
that the following requisites are met:
1. That the fraternity, sorority or organization has a prior written notice to the
school authorities or head of organization;
2. The said written notice must be secured at least seven (7) days before the
conduct of such initiation;
3. That the written notice shall indicate:
a. The period of the initiation activities, which shall not exceed three (3)
days;
b. The names of those to be subjected to such activities; and
c. An undertaking that no physical violence be employed by anybody during
such initiation rites. Section 3 of R.A. No. 8049 imposes an obligation to the
head of the school or organization or their representatives that they must
assign at least two (2) representatives, as the case may be, to be present
during these valid initiations. The duty of such representative ,is to see to it
that no physical harm of any kind shall be inflicted upon a recruit, neophyte
or applicant.
Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or
organizations that fail to comply with the notice requirements of Section 2. Also, the
school and organization administrators do not have a clear liability for non-compliance
with Section 3.
Any person who commits the crime of hazing shall be liable in accordance with Section 4
of the law, which provides different classes of persons who are held liable as principals
and accomplices.
The first class of principals would be the actual participants in the hazing. If the person
subjected to hazing or other forms of initiation rites suffers any physical injury or dies as
a result thereof, the officers and members of the fraternity, sorority or organization who
actually participated in the infliction of physical harm shall be liable as principals.
Interestingly, the presence of any person during the hazing is prima facie evidence of

actual participation, unless he prevented the commission of the acts punishable


herein.76
The prescribed penalty on the principals depends on the extent of injury inflicted to the
victim.77 The penalties appear to be similar to that of homicide, serious physical injuries,
less serious physical injuries, and slight physical injuries under the RPC, 78 with the
penalties for hazing increased one degree higher. Also, the law provides several
circumstances which would aggravate the imposable penalty. 79
Curiously, although hazing has been defined as consisting of those activities involving
physical or psychological suffering or injury, the penalties for hazing only covered the
infliction of physical harm. At best, the only psychological injury recognized would be
causing insanity to the victim. Conversely, even if the victim only sustained physical
injuries which did not incapacitate him, there is still a prescribed penalty.80
The second class of principals would be the officers, former officers, or alumni of the
organization, group, fraternity or sorority who actually planned the hazing. 81 Although
these planners were not present when the acts constituting hazing were committed,
they shall still be liable as principals. The provision took in consideration the nonresident members of the organization, such as their former officers or alumni.
The third class of principals would ht; officers or members of an organization group,
fraternity or sorority who knowingly cooperated in carrying out the hazing by inducing
the victim to be present thereat.82 These officers or members are penalized, not because
of their direct participation in the infliction of harm, but due to their indispensable
cooperation in the crime by inducing the victim to attend the hazing.
The next class of principals would be the fraternity or sorority's adviser who was present
when the acts constituting hazing were committed, and failed to take action to prevent
them from occurring.83 The liability of the adviser arises, not only from his mere
presence in the hazing, but also his failure to prevent the same.
The last class of principals would be the parents of the officers or members of the
fraternity, group, or organization.84 The hazing must be held in the home of one of the
officers or members. The parents must have actual knowledge of the hazing conducted
in their homes and failed to take any action to avoid the same from occurring.
The law also provides for accomplices in the crime of hazing. The school authorities,
including faculty members, who consented to the hazing or who have actual knowledge
thereof, but failed to take any action to prevent the same from occurring shall be
punished as accomplices.85 Likewise, the owner of the place where the hazing was
conducted can also be an accomplice to the crime. 86 The owner of the place shall be
liable when he has actual knowledge of the hazing conducted therein and he failed to
take any steps to stop the same. Recognizing the malum prohibitum characteristic of
hazing, the law provides that any person charged with the said crime shall not be
entitled to the mitigating circumstance that there was no intention to commit so grave a
wrong.87 Also, the framers of the law intended that the consent of the victim shall not be
a defense in hazing. During the discussion of whether sodomy shall be included as a
punishable act under the law, the issue of consent was tackled: SENATOR LINA x x x
But sodomy in this case is connected with hazing, Mr. President. Such that the act may
even be entered into with consent. It is not only sodomy. The infliction of pain may be
done with the consent of the neophyte. If the law is passed, that does not make the act

of hazing not punishable because the neophyte accepted the infliction of pain upon
himself.
If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed
it upon himself. He consented to it." So, if we allow that reasoning that sodomy was
done with the consent of the victim, then we would not have passed any law at all.
There will be no significance if we pass this bill, because it will always be a defense that
the victim allowed the infliction of pain or suffering. He accepted it as part of the
initiation rites.
But precisely, Mr. President that is one thing that we would want to prohibit. That the
defense of consent will not apply because the very act of inflicting physical pain or
psychological suffering is, by itself, a punishable act. The result of the act of hazing, like
death or physical injuries merely aggravates the act with higher penalties. But the
defense of consent is not going to nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can only aggravate the offense if it is
committed without consent of the victim, then the whole foundation of this proposed law
will collapse.
SENATOR BIAZON. Thank you, Mr. President.
SENATOR LINA. Thank you very much.
THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The
Chair hears none; the same is approved.88
[Emphasis supplied]
Further, the law acknowledges that the offended party in the crime of hazing can seek
different courses of action. n '.'provides that the responsible officials of the school or of
the police, military or citizen's army training organization, may impose the appropriate
administrative sanctions on the person or the persons charged under this provision even
before their conviction.89 Necessarily, the offended party can file either administrative,
civil, or criminal actions against the offenders.90
The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and
robust in penalizing the crime of hazing. It was made malum prohibitum to discount
criminal intent and disallow the defense of good faith. It took into consideration the
different participants and contributors in the hazing activities. While not all acts cited in
the law are penalized, the penalties imposed therein involve various and serious terms
of imprisonment to discourage would-be offenders. Indeed, the law against hazing is
ideal and profound. As to whether the law can be effectively implemented, the Court
begs to continue on the merits of the case.
The Information properly
charged the offense proved
The petitioners claim that the amended ,information avers a criminal charge of hazing
by actual participation, but the only offense proved during the trial was hazing by
inducement. Their1 contention must fail. The Amended Information reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy.
Pansol, Calamba City, Province of Laguna and within the jurisdiction of the Honorable
Court, the above-named accused, during a planned initiation rite and being then officers
and members of Alpha Phi Omega fraternity and present thereat, in conspiracy with
more or less twenty other members and officers, whose identity is not yet known, did
then and there willfully, unlawfully and feloniously assault and use personal violence
upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his
admission to the fraternity, thereby subjecting him to physical harm, resulting to his
death, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW.91
On the manner of how the Information should be worded, Section 9, Rule 110 of the
Rules of Court, is enlightening:
Section 9. Cause of the accusation. The acts or omissions complained of as constituting
the offense and the qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstances and for
the court to pronounce judgment.
It is evident that the Information need not use the exact language of the statute in
alleging the acts or omissions complained of as constituting the offense. The test is
whether it enables a person of common understanding to know the charge against him,
and the court to render judgment properly.92
The Court agrees with the OSG that the "planned initiation rite" as stated in the
information included the act of inducing Villanueva to attend it. In ordinary parlance, a
planned event can be understood to have different phases. Likewise, the hazing activity
had different stages and the perpetrators had different roles therein, not solely inflicting
physical injury to the neophyte. One of the roles of the petitioners in the hazing activity
was to induce Villanueva to be present. Dungo and Sibal not only induced Villanueva to
be present at the resort, but they actually brought him there. They fulfilled their roles in
the planned hazing rite which eventually led to the death of Villanueva. The hazing
would not have been accomplished were it not for the acts of the petitioners that
induced the victim to be present.
Secrecy and silence are common characterizations of the dynamics of hazing. 93 To
require the prosecutor to indicate every step of the planned initiation rite in the
information at the inception of the criminal case, when details of the clandestine hazing
are almost nil, would be an arduous task, if not downright impossible. The law does not
require the impossible (lex non cognit ad impossibilia).
The proper approach would be to require the prosecution to state every element of the
crime of hazing, the offenders, and the accompanying circumstances in the planned
initiation activity which has been satisfied in the present case. Accordingly, the
amended information sufficiently informed the petitioners that they were being
criminally charged for their roles in the planned initiation rite.
Conspiracy of the
offenders was duly proven
The petitioners assail that the prosecution failed to establish the fact of conspiracy.
The Court disagrees.

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. To determine conspiracy, there must be
a common design to commit a felony. 94 The overt act or acts of the accused may consist
of active participation in the actual commission of the crime itself or may consist of
moral assistance to his co-conspirators by moving them to execute or implement the
criminal plan.95
In conspiracy, it need not be shown that the parties actually came together and agreed
in express terms to enter into and pursue a common design. The assent of the minds
may be and, from the secrecy of the crime, usually inferred from proof of facts and
circumstances which, taken together, indicate that they are parts of some complete
whole.96 Responsibility of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts and offenses incident to
and growing out of the purpose intended.97
The lawmakers deliberated on whether the prosecution was still obliged to prove the
conspiracy between the offenders under R.A. 8049, to wit:
SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a
person died. The charge is murder. My question is: Under this bill if it becomes a law,
would the prosecution have to prove conspiracy or not anymore?
SENATOR LINA. Mr. President, if the person is present during hazing x x x
SENATOR GUINGONA. The persons are present. First, would the prosecution have to
prove conspiracy? Second, would the prosecution have to prove intent to kill or not?
SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is
no need to prove intent to kill.
SENATOR GUINGONA. But the charge is murder.
SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr.
President.98
The Court does not categorically agree that, under R.A. No. 8049, the prosecution need
not prove conspiracy. Jurisprudence dictates that conspiracy must be established, not by
conjectures, but by positive and conclusive evidence. Conspiracy transcends mere
companionship and mere presence at the scene of the crime does not in itself amount to
conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough
to constitute one as a party to a conspiracy, absent any active participation in the
commission of the crime with a view to the furtherance of the common design and
purpose.99
R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable
presumption of actual participation; and which modifies the concept of conspiracy.
Section 4, paragraph 6 thereof provides that the presence of any person during the
hazing is prima facie evidence of participation as principal, unless he prevented the
commission of the punishable acts. This provision is unique because a disputable
presumption arises from the mere presence of the offender during the hazing, which can
be rebutted by proving that the accused took steps to prevent the commission of the
hazing.

The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049
before the CA, hut did not succeed. "[A] finding of prima facie evidence x x x does not
shatter the presumptive innocence the accused enjoys because, before prima facie
evidence arises, certain facts have still to be proved; the trial court cannot depend alone
on such evidence, because precisely, it is merely prima facie. It must still satisfy that the
accused is guilty beyond reasonable doubt of the offense charged. Neither can it rely on
the weak defense the latter may adduce."100
Penal laws which feature prima facie evidence by disputable presumptions against the
offenders are not new, and can be observed in the following: (1) the possession of drug
paraphernalia gives rise to prima facie evidence of the use of dangerous drug; 101 (2) the
dishonor of the check for insufficient funds is prima facie evidence of knowledge of such
insufficiency of funds or credit;102 and (3) the possession of any good which has been the
subject of robbery or thievery shall be prima facie evidence of fencing.103
Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy
in the crime of hazing. The common design of offenders is to haze the victim. Some of
the overt acts that could be committed by the offenders would be to (1) plan the hazing
activity as a requirement of the victim's initiation to the fraternity; (2) induce the victim
to attend the hazing; and (3) actually participate in the infliction of physical injuries.
In this case, there was prima facie evidence of the petitioners' participation in the hazing
because of their presence in the venue. As correctly held by the RTC, the presence of
Dungo and Sibal during the hazing at Villa Novaliches Resort was established by the
testimony of Ignacio. She testified that she saw Sibal emerge from the resort and
approach her store, to wit:
MR. DIMACULANGAN
Q: And how many persons from this group did you see again?
WITNESS
A: Three (3), sir.
Q: Where did they come from, did they come out from the resort? Where did this 3
people or this group of people coming from?
A: Inside the resort, sir.
Q: And around what time was this?
A: Around 9:00, sir.
Q: And what did they do if any if they came out of the resort?
A: They went to my store, sir.
xxxx
Q: Did you have any other visitors to your store that night?
xxxx

A: "Meron po".
Q: Who were these visitors?
A: I don't know their names but I recognize their faces, sir.
Q: If I show you pictures of these people, will you be able to identify them before this
Court.
A: Yes, sir.
xxxx
Q: Mrs. Ignacio, I am showing you this picture of persons marked as Exhibit "L" in the
Pre-Trial, can you please look over this document carefully and see if any of the persons
whom you said visited your store is here?
xxxx
A: "Siya rin po."
COURT:
Make it of record that the witness pinpointed to the first picture appearing on the left
picture on the first row.
xxxx
ATIY. PAMAOS:
For the record, your Honor, we manifest that the picture and the name pointed by the
witness has been previously marked as Exhibit "L-3" and previously admitted by the
defense as referring to Gregorio Sibal, Jr., accused in this case104
Ignacio, also positively identified Dungo as among the guests of Villa Novaliches Resort
on the night of the hazing, to wit:
COURT
Q: xx x Now, when you say other people you could identify who are not in the pictures
then how would you know that these people are indeed those people you could identify?
WITNESS
A: "Iyon pong ... di ba po nagkuwento ako na dumating sila tapos nag shake hands at
saka iyong nagyakapan po ... "
Q: And what will be the significance of the alleged embrace and shake hands for you to
say that you could identify those people?
A: "Hindi po. Noong dumating po sila nasa isang jeep, meron pong lalaki doon sa may
tabi ng driver bumaba siya tapos po noong bumaba siya tapos iyong mga kasamahan
nya sa likod nagbaba-an din, iyon po nagbati-an po sila."

Q: And from these greeting, how could you identify these people?
A: "Ngayon ko lang po napag masdan ang taong iyon, hindi ko po alam na akusado po sa
kabila iyon."
Q: And who was that person?
A: "Siya po, iyon po."
Q: Who are you pointing to?
A: "Iyon pong naka-dilaw na ... " (Witness pointing to Dandy Dungo)
Q: So, are you telling the Court that this person you positively saw seated beside the
driver came out and subsequently embraced and shook hands with the other people
from the jeepney, is that your testimony?
A: Yes, your Honor.105
The testimony of Ignacio was direct and straightforward. Her testimony was given great
weight because she was a disinterested and credible witness. The prosecution
indubitably established the presence of Dungo and Sibal during the hazing. Such gave
rise to the prima facie evidence of their actual participation in the hazing of Villanueva.
They were given an opportunity to rebut and overcome the prima facie evidence of the
prosecution by proving that they prevented the commission of the hazing, yet they
failed to do so.
Because of the uncontroverted prima facie evidence against the petitioners, it was
shown that they performed an overt act in the furtherance of the criminal design of
hazing. Not only did they induce the victim to attend the hazing activity, the petitioners
also actually participated in it based on the prima facie evidence. These acts are
sufficient to establish their roles in the conspiracy of hazing.
Hence, generally, mere presence at the scene of the crime does not in itself amount to
conspiracy.106Exceptionally, under R.A. No. 8049, the participation of the offenders in the
criminal conspiracy can be proven by the prima facie evidence due to their presence
during the hazing, unless they prevented the commission of the acts therein.
The guilt of the
petitioners was proven
beyond reasonable doubt
Aside from inducing Villanueva to attend the initiation rites and their presence during
the hazing, the petitioners? guilt was proven beyond reasonable doubt by the sequence
of circumstantial evidence presented by the prosecution. Their involvement in the
hazing of Villanueva is not merely based on prima facie evidence but was also
established by circumstantial evidence.
In considering a criminal case, it is critical to start with the law's own starting
perspective on the status of the accused - in all criminal prosecutions, he is presumed
innocent of the charge laid unless the contrary is proven beyond reasonable doubt. 107 In
criminal law, proof beyond reasonable doubt does not mean such degree of proof that
produces absolute certainty. Only moral certainty is required or that degree of proof
which produces conviction in an unprejudiced mind.108

While it is established that nothing less than proof beyond reasonable doubt is required
for a conviction, this exacting standard does not preclude resort to circumstantial
evidence when direct evidence is not available. Direct evidence is not a condition sine
qua non to prove the guilt of an accused beyond reasonable doubt. For in the absence of
direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under conditions
where concealment is highly probable. If direct evidence is insisted on under all
circumstances, the prosecution of vicious felons who commit heinous crimes in secret or
secluded places will be hard, if not impossible, to prove. 109 Needless to state, the crime
of hazing is shrouded in secrecy. Fraternities and sororities, especially the Greek
organizations, are secretive in nature and their members are reluctant to give any
information regarding initiation rites.110 The silence is only broken after someone has
been injured so severely that medical attention is required. It is only at this point that
the secret is revealed and the activities become public. 111 Bearing in mind the
concealment of hazing, it is only logical and proper for the prosecution to resort to the
presentation of circumstantial evidence to prove it.
The rules on evidence and precedents to sustain the conviction of an accused through
circumstantial evidence require the existence of the following requisites: (1) there are
more than one circumstance; (2) the inference must be based on proven facts; and (3)
the combination of all circumstances produces a conviction beyond reasonable doubt of
the guilt of the accused.112 To justify a conviction upon circumstantial evidence, the
combination of circumstances must be such as to leave no reasonable doubt in the mind
as to the criminal liability of the accused. Jurisprudence requires that the circumstances
must be established to form an unbroken chain of events leading to one fair reasonable
conclusion pointing to the accused, to the exclusion of all others, as the author of the
crime.113
The CA meticulously wrote in detail the unbroken chain of circumstantial evidence which
established the petitioners' gult in the death of Villanueva as follows:
1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his
roommate Joey Atienza.
2. At around 3:00 o'clock in the afternoon of January 13, 2006, Sunga was staying
at their tambayan, talking to her organization mates. Three men were seated two
meters way from her. She identified two of the men as appellants Sibal and Dungo,
while she did not know the third man. The three men were wearing black shirts
with the seal of the Alpha Phi Omega.
3. Later at 5:00 o'clock in the afternoon, two more men coming from the
entomology wing arrived and approached the three men. Among the men who just
arrived was the victim, Marlon Villanueva. One of the men wearing black APO
shirts handed over to the two fraternity neophytes some money and told the men
"Mamalengke na kayo." He later took back the money and said, "Huwag na, kami
na lang."
4. One of the men wearing a black APO shirt, who was later identified as appellant
Dungo, stood up and asked Marlon if the latter already reported to him, and asked
him why he did not report to him when he was just at the tambayan. Dungo then
continuously punched the victim on his arm. This went on for five minutes. Marlon
just kept quiet with his head bowed down. Fifteen minutes later, the men left going
towards the Entomology wing.

5. The deceased Marlon Villanueva was 'last seen alive by Joey Atienza at 7:00 in
the evening of 13 January 2006, from whom he borrowed the shoes he wore at the
initiation right [sic]. Marlon told Joey that it was his "finals" night.
6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, Susan
Ignacio saw more than twenty (20) persons arrive at the Villa Novaliches Resort
onboard a jeepney.1wphi1 She estimated the ages of these persons to be
between 20 to 30 years old. Three (3) persons riding a single motorcycle likewise
arrived at the resort.
7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort
who looked like they were praying. Later that evening, at least three (3) of these
persons went to her store to buy some items. She did not know their names but
could identity [sic] their faces. After she was shown colored photographs, she
pointed to the man later identified as Herald Christopher Braseros. She also
pointed out the man later identified as Gregorio Sibal, Jr.
8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City,
testified that around 3:00 o'clock in the morning of January 14, 2006, he was
waiting for passengers at the corner of Villa Novaliches Resort when a man
approached him and told him that someone inside the resort needed a ride. Magat
then went to the resort and asked the two (2) men standing by the gate who will
be riding his tricycle.
9. The four (4) men boarded his tricycle but Magat noticed that when he touched
the body of the man who was being carried, it felt cold. The said man looked very
weak like a vegetable.
10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P.
Rizal Hospital and was assigned at the emergency room. At around 3:00 o'clock in
the early morning of January 14, 2006, he was with another security guard,
Abelardo Natividad and hospital helper Danilo Glindo a.k.a. Gringo, when a tricycle
arrived at the emergency room containing four (4) passengers, excluding the
driver. He was an arm's length away from said tricycle. He identified two of the
passengers thereof as appellants Dungo and Sibal. Espina said he and Glinda
helped the passengers unload a body inside the tricycle and brought it to the
emergency room.
11. Afterwards, Espina asked the two meq for identification cards. The latter
replied that they did not bring with them any I.D. or wallet.1wphi1 Instead of
giving their true names, the appellants listed down their names in the hospital
logbook as Brandon Gonzales y Lanzon and Jericho Paril y Rivera. Espina then told
the two men not to leave, not telling them that they secretly called the police to
report the incident which was their standard operating procedure when a dead
body was brought to the hospital.
12. Dr. Ramon Masilungan, who was then the attending physician at the
emergency room, observed that Marlon was motionless, had no heartbeat and
already cyanotic.
13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the
latter did not respond to resuscitation and was pronounced dead. Dr. Masilungan
noticed a big contusion hematoma on the left side of the victim's face and several

injuries on his arms and legs. He further attested that Marlon's face was already
cyanotic.
14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on
both legs which extended from the upper portion of his thigh down to the
couplexial portion or the back of the knee.
15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan
opined that he was a victim of hazing. Dr. Masilungan is familiar with hazing
injuries, having undergone hazing when he was a student and also because of his
experience treating victims of hazing incidents.
16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region
IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he performed an
autopsy on the cadaver of the victim on January 14j 2006; that the victim's cause
of death was blunt head trauma. From 1999 to 2006, he was able to conduct postmortem examination of the two (2) persons whose deaths were attributed to
hazing. These two (2) persons sustained multiple contusions and injuries on
different parts of their body, particularly on the buttocks, on both upper and lower
extremities. Both persons died of brain hemorrhage. Correlating these two cases
to the injuries found on the victim's body, Dr. Camarillo attested that the victim,
Marlon Villanueva, sustained similar injuries to those two (2) persons. Based on
the presence of multiple injuries and contusions on his body, he opined that these
injuries were hazing-related.114
Petitioners Dungo and Sibal, on the other hand, presented the defense of denial and
alibi. These defenses, however, must fail. Time and time again, this Court has ruled that
denial and alibi are the weakest of all defenses, because they are easy to concoct and
fabricate.115 As properly held by the RTC, these defenses cannot prevail over the positive
and unequivocal identification of the petitioners by prosecution witnesses Sunga and
Ignacio. The testimonies of the defense witnesses also lacked credibility and reliability.
The corroboration of defense witness Rivera was suspect because she was the girlfriend
of Dungo, and it was only logical and emotional that she would stand by the man she
loved and cared for. The testimonies of their fellow fraternity brothers, likewise, do not
hold much weight because they had so much at stake in the outcome of the case.
Stated differently, the petitioners did not present credible and. disinterested witnesses
to substantiate their defenses of denial and alibi.
After a careful review of the records, the Court agrees with the CA and the R TC that the
circumstantial evidence presented by the prosecution was overwhelming enough to
establish the guilt of the petitioners beyond a reasonable doubt. The unbroken chain of
events laid down by the CA leaves us no other conclusion other than the petitioners'
participation in the hazing. They took part in the hazing and, together; with their fellow
fraternity officers and members, inflicted physical injuries to Villanueva as a requirement
of his initiation to the fraternity. The physical injuries eventually took a toll on the body
of the victim, which led to his death. Another young life lost.
With the fact of hazing, the identity ,of the petitioners, and their participation therein
duly proven, the moral certainty that produces conviction in an unprejudiced mind has
been satisfied.
Final Note

Hazing has been a phenomenon that has beleaguered the country's educational
institutions and communities. News of young men beaten to death as part of fraternities'
violent initiation rites supposedly to seal fraternal bond has sent disturbing waves to
lawmakers. Hence, R.A. No. 8049 was signed into to law on June 7, 1995. Doubts on the
effectiveness of the law were raised. The Court, however, scrutinized its provisions and
it is convinced that the law is rigorous in penalizing the crime of hazing.
Hopefully, the present case will serve as a guide to the bench and the bar on the
application of R.A. No. 8049. Through careful case-build up and proper presentation of
evidence before the court, it is not impossible for the exalted constitutional presumption
of innocence of the accused to be overcome and his guilt for the crime of hazing be
proven beyond reasonable doubt. The prosecution must bear in mind the secretive
nature of hazing, and carefully weave its chain of circumstantial evidence. Likewise, the
defense must present a genuine defense and substantiate the same through credible
and reliable witnesses. The counsels of both parties must also consider hazing as a
malum prohibitum crime and the law's distinctive provisions.
While the Court finds R.A. No. 8049 adequate to deter and prosecute hazing, the law is
far from perfect. In Villareal v. People, 116 the Court suggested that the fact of intoxication
and the presence of non-resident or alumni fraternity members during hazing should be
considered as aggravating circumstances that would increase the applicable penalties.
Equally, based on the discussion earlier, this Court suggests some further amendments
to the law. First, there should be a penalty or liability for noncompliance with Section 2,
or the written notice requirement, and with Section 3, or the representation
requirement. Second, the penalties under Section 4 should also consider the
psychological harm done to the victim of hazing. With these additional inputs on R.A. No.
8049, the movement against hazing can be invigorated. R.A. No. 8049 is a democratic
response to the uproar against hazing. It demonstrates that there must, and should, be
another way of fostering brotherhood, other than through the culture of violence and
suffering. The senseless deaths of these young men shall never be forgotten, for justice
is the spark that lights the candles of their graves.
WHEREFORE, the petition is DENIED. The April 26, 2013 Decision and the October 8,
2013 Resolution of the Court of Appeals in CAG.R. CR-H.C. No. 05046 are hereby
AFFIRMED in toto. Let copies of this Decision be furnished to the Secretary of the
Department of Justice as guidance for the proper implementation and prosecution of
violators of R.A. No. 8049; and to the Senate President and the Speaker of the House of
Representatives for possible consideration of the amendment of the Anti-Hazing Law to
include the penalty for noncompliance with its Section 2 and 3, and the :penalty for the
psychological harms to the surviving victims of hazing.
SO ORDERED.

G.R. No. 192330

November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a municipal mayor charged with illegal diversion of food intended for
those suffering from malnutrition to the beneficiaries of reconsideration projects
affecting the homes of victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before
the Sandiganbayan in Criminal Case 28228 of violation of illegal use of public propertry
(technical malversation) under Article 220 of the Revised Penal Code.1
The facts show that the Municipal Social Welfare and Development Office (MSWDO) of
Leyte, Leyte, operated a Core Shelter Assistance Program (CSAP) that provided
construction materials to indigent calamity victims with which to rebuild their homes.
The beneficiaries provided the labor needed for construction.
On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay
Tinugtogan, was 70% done, the beneficiaries stopped reporting for work for the reason
that they had to find food for their families. This worried Lolita Garcia (Garcia), the CSAP
Officer-in-Charge, for such construction stoppage could result in the loss of construction
materials particularly the cement. Thus, she sought the help of Cristina Polinio (Polinio),
an officer of the MSWDO in charge of the municipalitys Supplemental Feeding Program
(SFP) that rationed food to malnourished children. Polinio told Garcia that the SFP still
had sacks of rice and boxes of sardines in its storeroom. And since she had already
distributed food to the mother volunteers, what remained could be given to the CSAP
beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal
Mayor, to seek his approval. After explaining the situation to him, Ysidoro approved the
release and signed the withdrawal slip for four sacks of rice and two boxes of sardines
worth P3,396.00 to CSAP.2 Mayor Ysidoro instructed Garcia and Polinio, however, to
consult the accounting department regarding the matter. On being consulted, Eldelissa
Elises, the supervising clerk of the Municipal Accountants Office, signed the withdrawal
slip based on her view that it was an emergency situation justifying the release of the
goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards, Garcia
reported the matter to the MSWDO and to the municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte,
filed the present complaint against Ysidoro. Nierna Doller, Alfredo's wife and former
MSWDO head, testified that the subject SFP goods were intended for its target
beneficiaries, Leytes malnourished children. She also pointed out that the Supplemental
Feeding Implementation Guidelines for Local Government Units governed the

distribution of SFP goods.3 Thus, Ysidoro committed technical malversation when he


approved the distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a project also
meant for the poor of the municipality was valid since they came from the savings of the
SFP and the Calamity Fund. Ysidoro also claims good faith, believing that the
municipalitys poor CSAP beneficiaries were also in urgent need of food. Furthermore,
Ysidoro pointed out that the COA Municipal Auditor conducted a comprehensive audit of
their municipality in 2001 and found nothing irregular in its transactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt
of technical malversation. But, since his action caused no damage or embarrassment to
public service, it only fined him P1,698.00 or 50% of the sum misapplied. The
Sandiganbayan held that Ysidoro applied public property to a pubic purpose other than
that for which it has been appropriated by law or ordinance. On May 12, 2010 the
Sandiganbayan denied Ysidoros motion for reconsideration. On June 8, 2010 Ysidoro
appealed the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayans finding that he committed technical
malversation. He particularly raises the following questions:
1. Whether or not he approved the diversion of the subject goods to a public
purpose different from their originally intended purpose;
2. Whether or not the goods he approved for diversion were in the nature of
savings that could be used to augment the other authorized expenditures of the
municipality;
3. Whether or not his failure to present the municipal auditor can be taken against
him; and
4. Whether or not good faith is a valid defense for technical malversation.
The Courts Rulings
One. The crime of technical malversation as penalized under Article 220 of the Revised
Penal Code4 has three elements: a) that the offender is an accountable public officer; b)
that he applies public funds or property under his administration to some public use;
and c) that the public use for which such funds or property were applied is different from
the purpose for which they were originally appropriated by law or ordinance. 5 Ysidoro
claims that he could not be held liable for the offense under its third element because
the four sacks of rice and two boxes of sardines he gave the CSAP beneficiaries were not
appropriated by law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte
enacted Resolution 00-133 appropriating the annual general fund for 2001. 6 This
appropriation was based on the executive budget 7 which allocated P100,000.00 for the
SFP and P113,957.64 for the Comprehensive and Integrated Delivery of Social
Services8 which covers the CSAP housing projects. 9 The creation of the two items shows

the Sanggunians intention to appropriate separate funds for SFP and the CSAP in the
annual budget.
Since the municipality bought the subject goods using SFP funds, then those goods
should be used for SFPs needs, observing the rules prescribed for identifying the
qualified beneficiaries of its feeding programs. The target clientele of the SFP according
to its manual10 are: 1) the moderately and severely underweight pre-school children
aged 36 months to 72 months; and 2) the families of six members whose total monthly
income is P3,675.00 and below.11 This rule provides assurance that the SFP would cater
only to the malnourished among its people who are in urgent need of the governments
limited resources.
Ysidoro disregarded the guidelines when he approved the distribution of the goods to
those providing free labor for the rebuilding of their own homes. This is technical
malversation. If Ysidoro could not legally distribute the construction materials
appropriated for the CSAP housing beneficiaries to the SFP malnourished clients neither
could he distribute the food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and
that, therefore, the same could already be diverted to the CSAP beneficiaries. He relies
on Abdulla v. People12 which states that funds classified as savings are not considered
appropriated by law or ordinance and can be used for other public purposes. The Court
cannot accept Ysidoros argument.
The subject goods could not be regarded as savings. The SFP is a continuing program
that ran throughout the year. Consequently, no one could say in mid-June 2001 that SFP
had already finished its project, leaving funds or goods that it no longer needed. The
fact that Polinio had already distributed the food items needed by the SFP beneficiaries
for the second quarter of 2001 does not mean that the remaining food items in its
storeroom constituted unneeded savings. Since the requirements of hungry mouths are
hard to predict to the last sack of rice or can of sardines, the view that the subject goods
were no longer needed for the remainder of the year was quite premature.
In any case, the Local Government Code provides that an ordinance has to be enacted
to validly apply funds, already appropriated for a determined public purpose, to some
other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. Funds shall be available exclusively
for the specific purpose for which they have been appropriated. No ordinance shall be
passed authorizing any transfer of appropriations from one item to another. However,
the local chief executive or the presiding officer of the sanggunian concerned may, by
ordinance, be authorized to augment any item in the approved annual budget for their
respective offices from savings in other items within the same expense class of their
respective appropriations.
The power of the purse is vested in the local legislative body. By requiring an ordinance,
the law gives the Sanggunian the power to determine whether savings have accrued
and to authorize the augmentation of other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the
diversion of the subject goods, such finding should be respected. The SB ruled, however,

that since Ysidoro failed to present the municipal auditor at the trial, the presumption is
that his testimony would have been adverse if produced. Ysidoro argues that this goes
against the rule on the presumption of innocence and the presumption of regularity in
the performance of official functions.
Ysidoro may be right in that there is no basis for assuming that had the municipal
auditor testified, his testimony would have been adverse to the mayor. The municipal
auditors view regarding the transaction is not conclusive to the case and will not
necessarily negate the mayors liability if it happened to be favorable to him. The Court
will not, therefore, be drawn into speculations regarding what the municipal auditor
would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP
goods for the CSAP beneficiaries came, not from him, but from Garcia and Polinio; and,
second, he consulted the accounting department if the goods could be distributed to
those beneficiaries. Having no criminal intent, he argues that he cannot be convicted of
the crime.1wphi1
But criminal intent is not an element of technical malversation. The law punishes the act
of diverting public property earmarked by law or ordinance for a particular public
purpose to another public purpose. The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes a criminal offense because positive
law forbids its commission based on considerations of public policy, order, and
convenience.13 It is the commission of an act as defined by the law, and not the
character or effect thereof, that determines whether or not the provision has been
violated. Hence, malice or criminal intent is completely irrelevant.14
Dura lex sed lex. Ysidoros act, no matter how noble or miniscule the amount diverted,
constitutes the crime of technical malversation. The law and this Court, however,
recognize that his offense is not grave, warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the
Sandiganbayan in Criminal Case 28228 dated February 8, 2010.
SO ORDERED.

G.R. No. 186412

September 7, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
ORLITO VILLACORTA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.H.C. No. 02550, which affirmed the Decision2 dated September 22, 2006 of the Regional
Trial Court (RTC), Branch 170, of Malabon, in Criminal Case No. 27039-MN, finding
accused-appellant Orlito Villacorta (Villacorta) guilty of murder, and sentencing him to
suffer the penalty of reclusion perpetua and to pay the heirs of Danilo Cruz (Cruz) the
sum ofP50,000.00 as civil indemnity, plus the costs of suit.
On June 21, 2002, an Information3 was filed against Villacorta charging him with the
crime of murder, as follows:
That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a sharpened
bamboo stick, with intent to kill, treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and stab with the said weapon
one DANILO SALVADOR CRUZ, thereby inflicting upon the victim serious wounds which
caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded not guilty.4
During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and Dr.
Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-sari store located
at C-4 Road, Bagumbayan, Navotas. Both Cruz and Villacorta were regular customers at
Mendejas store. At around two oclock in the morning, while Cruz was ordering bread at
Mendejas store, Villacorta suddenly appeared and, without uttering a word, stabbed
Cruz on the left side of Cruzs body using a sharpened bamboo stick. The bamboo stick
broke and was left in Cruzs body. Immediately after the stabbing incident, Villacorta
fled. Mendeja gave chase but failed to catch Villacorta. When Mendeja returned to her
store, she saw her neighbor Aron removing the broken bamboo stick from Cruzs
body.5 Mendeja and Aron then brought Cruz to Tondo Medical Center.6
Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When
Cruz sustained the stab wound on January 23, 2002, he was taken to the Tondo Medical
Center, where he was treated as an out-patient. Cruz was only brought to the San
Lazaro Hospital on February 14, 2002, where he died the following day, on February 15,
2002. While admitting that he did not personally treat Cruz, Dr. Belandres was able to
determine, using Cruzs medical chart and diagnosis, that Cruz died of tetanus infection
secondary to stab wound.7 Dr. Belandres specifically described the cause of Cruzs death
in the following manner:

The wound was exposed x x spurs concerted, the patient developed difficulty of
opening the mouth, spastivity of the body and abdominal pain and the cause of death is
hypoxic encephalopathy neuro transmitted due to upper G.I. bleeding x x x.
Diagnosed of Tetanus, Stage III.8
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who attended
to Cruz at the San Lazaro Hospital, but the prosecution and defense agreed to dispense
with Dr. Matias testimony based on the stipulation that it would only corroborate Dr.
Belandres testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing Cruz.
Villacorta recounted that he was on his way home from work at around two oclock in
the morning of January 21, 2002. Upon arriving home, Villacorta drank coffee then went
outside to buy cigarettes at a nearby store. When Villacorta was about to leave the
store, Cruz put his arm around Villacortas shoulder. This prompted Villacorta to box
Cruz, after which, Villacorta went home. Villacorta did not notice that Cruz got hurt.
Villacorta only found out about Cruzs death upon his arrest on July 31, 2002.9
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder,
qualified by treachery. The dispositive portion of said Decision reads:
WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta guilty
beyond reasonable doubt of the crime of Murder and is hereby sentenced to suffer the
penalty of reclusion perpetua and to pay the heirs of Danilo Cruz the sum of P50,000.00
as civil indemnity for the death of said victim plus the costs of suit.10
Villacorta, through his counsel from the Public Attorneys Office (PAO), filed a notice of
appeal to assail his conviction by the RTC.11 The Court of Appeals directed the PAO to file
Villacortas brief, within thirty days from receipt of notice.
Villacorta filed his Appellants Brief12 on May 30, 2007; while the People, through the
Office of the Solicitor General (OSG), filed its Appellee's Brief13 on October 2, 2007.
On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the RTC
judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as he was
adopting the Appellant's Brief he filed before the Court of Appeals.14 The OSG, likewise,
manifested that it was no longer filing a supplemental brief. 15
In his Appellants Brief, Villacorta raised the following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING


CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE COULD ONLY
BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It
was Mendeja who positively identified Villacorta as the one who stabbed Cruz in the
early morning of January 23, 2002. Villacorta asserts that Mendejas account of the
stabbing incident is replete with inconsistencies and incredulities, and is contrary to
normal human experience, such as: (1) instead of shouting or calling for help when
Villacorta allegedly stabbed Cruz, Mendeja attempted to run after and catch Villacorta;
(2) while, by Mendejas own account, there were other people who witnessed the
stabbing and could have chased after Villacorta, yet, oddly, only Mendeja did; (3) if Cruz
was stabbed so swiftly and suddenly as Mendeja described, then it would have been
physically improbable for Mendeja to have vividly recognized the perpetrator, who
immediately ran away after the stabbing; (4) after the stabbing, both Villacorta and Cruz
ran in opposite directions; and (5) Mendeja had said that the bamboo stick, the alleged
murder weapon, was left at her store, although she had also stated that the said
bamboo stick was left embedded in Cruzs body. Villacorta maintains that the
aforementioned inconsistencies are neither trivial nor inconsequential, and should
engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of the credibility
of witnesses, when affirmed by the appellate court, is accorded full weight and credit as
well as great respect, if not conclusive effect. Such determination made by the trial
court proceeds from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination, thereby placing the
trial court in the unique position to assess the witnesses' credibility and to appreciate
their truthfulness, honesty and candor.17
In this case, both the RTC and the Court of Appeals gave full faith and credence to the
testimony of prosecution witness Mendeja. The Court of Appeals rejected Villacortas
attempts to impugn Mendejas testimony, thus:
Appellants reason for concluding that witness Mendejas testimony is incredible
because she did not shout or call for help and instead run after the appellant, fails to
impress the Court because persons who witness crimes react in different ways.
"x x x the makings of a human mind are unpredictable; people react differently and
there is no standard form of behavior when one is confronted by a shocking incident.
Equally lacking in merit is appellants second reason which is, other persons could have
run after the appellant after the stabbing incident. As explained by witness Mendeja, the
other person whom she identified as Aron was left to assist the appellant who was
wounded. Further, the stabbing occurred at 2:00 oclock in the morning, a time when
persons are expected to be asleep in their house, not roaming the streets.

His [Villacortas] other argument that the swiftness of the stabbing incident rendered
impossible or incredible the identification of the assailant cannot likewise prosper in
view of his admission that he was in the store of witness Mendeja on January 23, 2002 at
2:00 oclock in the morning and that he assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record cannot support
appellants argument. Appellant and the victim were known to witness Mendeja, both
being her friends and regular customers. There was light in front of the store. An
opening in the store measuring 1 and meters enables the person inside to see
persons outside, particularly those buying articles from the store. The victim was in front
of the store buying bread when attacked. Further, immediately after the stabbing,
witness Mendeja ran after the appellant giving her additional opportunity to identify the
malefactor. Thus, authorship of the attack can be credibly ascertained. 18
Moreover, Villacorta was unable to present any reason or motivation for Mendeja to
fabricate such a lie and falsely accuse Villacorta of stabbing Cruz on January 23, 2002.
We have ruled time and again that where the prosecution eyewitness was familiar with
both the victim and accused, and where the locus criminis afforded good visibility, and
where no improper motive can be attributed to the witness for testifying against the
accused, then her version of the story deserves much weight. 19
The purported inconsistencies in Mendejas testimony pointed out by Villacorta are on
matters that have no bearing on the fundamental fact which Mendeja testified on: that
Villacorta stabbed Cruz in the early morning of January 23, 2002, right in front of
Mendejas store.
In the face of Mendejas positive identification of Villacorta as Cruzs stabber, Villacorta
could only muster an uncorroborated denial. Denial, like alibi, as an exonerating
justification, is inherently weak and if uncorroborated, regresses to blatant impotence.
Like alibi, it also constitutes self-serving negative evidence which cannot be accorded
greater evidentiary weight than the declaration of credible witnesses who testify on
affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed by
the Court of Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in the event he
is found to have indeed stabbed Cruz, he should only be held liable for slight physical
injuries for the stab wound he inflicted upon Cruz. The proximate cause of Cruzs death
is the tetanus infection, and not the stab wound.
Proximate cause has been defined as "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."21
In this case, immediately after he was stabbed by Villacorta in the early morning of
January 23, 2002, Cruz was rushed to and treated as an out-patient at the Tondo Medical
Center. On February 14, 2002, Cruz was admitted to the San Lazaro Hospital for
symptoms of severe tetanus infection, where he died the following day, on February 15,
2002. The prosecution did not present evidence of the emergency medical treatment
Cruz received at the Tondo Medical Center, subsequent visits by Cruz to Tondo Medical

Center or any other hospital for follow-up medical treatment of his stab wound, or Cruzs
activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a case of
very similar factual background as the one at bar. During an altercation on October 23,
1980, Urbano hacked Javier with a bolo, inflicting an incised wound on Javiers hand.
Javier was treated by Dr. Meneses. On November 14, 1980, Javier was rushed to the
hospital with lockjaw and convulsions. Dr. Exconde, who attended to Javier, found that
Javiers serious condition was caused by tetanus infection. The next day, on November
15, 1980, Javier died. An Information was filed against Urbano for homicide. Both the
Circuit Criminal Court and the Intermediate Appellate Court found Urbano guilty of
homicide, because Javier's death was the natural and logical consequence of Urbano's
unlawful act. Urbano appealed before this Court, arguing that Javiers own negligence
was the proximate cause of his death. Urbano alleged that when Dr. Meneses examined
Javiers wound, he did not find any tetanus infection and that Javier could have acquired
the tetanus germs when he returned to work on his farm only two (2) weeks after
sustaining his injury. The Court granted Urbanos appeal.
We quote extensively from the ratiocination of the Court in Urbano:
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 tetanus"The 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 disease
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus is 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 symptoms, 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 case 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.23
The incubation period for tetanus infection and the length of time between the hacking
incident and the manifestation of severe tetanus infection created doubts in the mind of
the Court that Javier acquired the severe tetanus infection from the hacking incident. We
explained in Urbano that:
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 basis 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. 931932). (at p. 125)24
We face the very same doubts in the instant case that compel us to set aside the
conviction of Villacorta for murder. There had been an interval of 22 days between the
date of the stabbing and the date when Cruz was rushed to San Lazaro Hospital,
exhibiting symptoms of severe tetanus infection. If Cruz acquired severe tetanus
infection from the stabbing, then the symptoms would have appeared a lot sooner than
22 days later. As the Court noted in Urbano, severe tetanus infection has a short
incubation period, less than 14 days; and those that exhibit symptoms with two to three
days from the injury, have one hundred percent (100%) mortality. Ultimately, we can
only deduce that Cruzs stab wound was merely the remote cause, and its subsequent
infection with tetanus might have been the proximate cause of Cruz's death. The
infection of Cruzs stab wound by tetanus was an efficient intervening cause later or
between the time Cruz was stabbed to the time of his death.
However, Villacorta is not totally without criminal liability.1wphi1 Villacorta is guilty of
slight physical injuries under Article 266(1) of the Revised Penal Code for the stab wound
he inflicted upon Cruz. Although the charge in the instant case is for murder, a finding of
guilt for the lesser offense of slight physical injuries may be made considering that the
latter offense is necessarily included in the former since the essential ingredients of
slight physical injuries constitute and form part of those constituting the offense of
murder.25
We cannot hold Villacorta criminally liable for attempted or frustrated murder because
the prosecution was not able to establish Villacortas intent to kill. In fact, the Court of
Appeals expressly observed the lack of evidence to prove such an intent beyond
reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on
the left side of the body and then immediately fled. The instrument used is not as lethal
as those made of metallic material. The part of the body hit is not delicate in the sense
that instant death can ensue by reason of a single stab wound. The assault was done
only once. Thus, there is doubt as to whether appellant had an intent to kill the victim,
which should be resolved in favor of the appellant. x x x.26

The intent must be proved in a clear and evident manner to exclude every possible
doubt as to the homicidal (or murderous) intent of the aggressor. The onus probandi lies
not on accused-appellant but on the prosecution. The inference that the intent to kill
existed should not be drawn in the absence of circumstances sufficient to prove this fact
beyond reasonable doubt. When such intent is lacking but wounds were inflicted, the
crime is not frustrated murder but physical injuries only.27
Evidence on record shows that Cruz was brought to Tondo Medical Center for medical
treatment immediately after the stabbing incident.1avvphi1 Right after receiving
medical treatment, Cruz was then released by the Tondo Medical Center as an outpatient. There was no other evidence to establish that Cruz was incapacitated for labor
and/or required medical attendance for more than nine days. Without such evidence, the
offense is only slight physical injuries.28
We still appreciate treachery as an aggravating circumstance, it being sufficiently
alleged in the Information and proved during trial.
The Information specified that "accused, armed with a sharpened bamboo stick, with
intent to kill, treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and stab with the said weapon one DANILO
SALVADOR CRUZ x x x."
Treachery exists when an offender commits any of the crimes against persons,
employing means, methods or forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the defense that the offended party
might make. This definition sets out what must be shown by evidence to conclude that
treachery existed, namely: (1) the employment of such means of execution as would
give the person attacked no opportunity for self-defense or retaliation; and (2) the
deliberate and conscious adoption of the means of execution. To reiterate, the essence
of qualifying circumstance is the suddenness, surprise and the lack of expectation that
the attack will take place, thus, depriving the victim of any real opportunity for selfdefense while ensuring the commission of the crime without risk to the
aggressor.29 Likewise, even when the victim was forewarned of the danger to his person,
treachery may still be appreciated since what is decisive is that the execution of the
attack made it impossible for the victim to defend himself or to retaliate. 30
Both the RTC and the Court of Appeals found that treachery was duly proven in this
case, and we sustain such finding. Cruz, the victim, was attacked so suddenly,
unexpectedly, and without provocation. It was two oclock in the morning of January 23,
2002, and Cruz, who was out buying bread at Mendejas store, was unarmed. Cruz had
his guard down and was totally unprepared for an attack on his person. Villacorta
suddenly appeared from nowhere, armed with a sharpened bamboo stick, and without
uttering a word, stabbed Cruz at the left side of his body, then swiftly ran away.
Villacortas treacherous mode of attack left Cruz with no opportunity at all to defend
himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
ART. 266. Slight physical injuries and maltreatment. The crime of slight physical
injuries shall be punished:

1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party from labor from one to nine days, or shall require
medical attendance during the same period.
The penalty of arresto menor spans from one (1) day to thirty (30) days.31 The
Indeterminate Sentence Law does not apply since said law excludes from its coverage
cases where the penalty imposed does not exceed one (1) year.32 With the aggravating
circumstance of treachery, we can sentence Villacorta with imprisonment anywhere
within arresto menor in the maximum period, i.e., twenty-one (21) to thirty (30) days.
Consequently, we impose upon Villacorta a straight sentence of thirty (30) days of
arresto menor; but given that Villacorta has been in jail since July 31, 2002 until present
time, already way beyond his imposed sentence, we order his immediate release.
Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered in
a criminal offense resulting in physical injuries. Moral damages compensate for the
mental anguish, serious anxiety, and moral shock suffered by the victim and his family
as being a proximate result of the wrongful act. An award requires no proof of pecuniary
loss. Pursuant to previous jurisprudence, an award of Five Thousand Pesos (P5,000.00)
moral damages is appropriate for less serious, as well as slight physical injuries.33
WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.H.C. No. 02550, affirming the Decision dated September 22, 2006 of the Regional Trial
Court, Branch 170, of Malabon, in Criminal Case No. 27039-MN, is REVERSED and SET
ASIDE. A new judgment is entered finding Villacorta GUILTY beyond reasonable doubt of
the crime of slight physical injuries, as defined and punished by Article 266 of the
Revised Penal Code, and sentenced to suffer the penalty of thirty (30) days arresto
menor. Considering that Villacorta has been incarcerated well beyond the period of the
penalty herein imposed, the Director of the Bureau of Prisons is ordered to cause
Villacortas immediate release, unless Villacorta is being lawfully held for another cause,
and to inform this Court, within five (5) days from receipt of this Decision, of the
compliance with such order. Villacorta is ordered to pay the heirs of the late Danilo Cruz
moral damages in the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.

[G.R. No. 155791. March 16, 2005]


MELBA QUINTO, petitioner, vs. DANTE ANDRES and RANDYVER
PACHECO, respondents.
DECISION
CALLEJO, SR., J.:
At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a Grade
4 elementary school pupil, and his playmate, Wilson Quinto, who was also about eleven
years old, were at Barangay San Rafael, Tarlac, Tarlac. They saw respondents Dante
Andres and Randyver Pacheco by the mouth of a drainage culvert. Andres and Pacheco
invited Wilson to go fishing with them inside the drainage culvert. [1] Wilson assented.
When Garcia saw that it was dark inside, he opted to remain seated in a grassy area
about two meters from the entrance of the drainage system.[2]
Respondent Pacheco had a flashlight. He, along with respondent Andres and Wilson,
entered the drainage system which was covered by concrete culvert about a meter high
and a meter wide, with water about a foot deep. [3] After a while, respondent Pacheco,
who was holding a fish, came out of the drainage system and left [4] without saying a
word. Respondent Andres also came out, went back inside, and emerged again, this
time, carrying Wilson who was already dead. Respondent Andres laid the boys lifeless
body down in the grassy area. [5] Shocked at the sudden turn of events, Garcia fled from
the scene.[6] For his part, respondent Andres went to the house of petitioner Melba
Quinto, Wilsons mother, and informed her that her son had died. Melba Quinto rushed to
the drainage culvert while respondent Andres followed her.[7]
The cadaver of Wilson was buried without any autopsy thereon having been
conducted. The police authorities of Tarlac, Tarlac, did not file any criminal complaint
against the respondents for Wilsons death.
Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation
(NBI) investigators took the sworn statements of respondent Pacheco, Garcia and
petitioner Quinto.[8] Respondent Pacheco alleged that he had never been to the drainage
system catching fish with respondent Andres and Wilson. He also declared that he saw
Wilson already dead when he passed by the drainage system while riding on his
carabao.
On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of
the NBI performed an autopsy thereon at the cemetery and submitted his autopsy
report containing the following postmortem findings:
POSTMORTEM FINDINGS
Body in previously embalmed, early stage of decomposition, attired with white long
sleeves and dark pants and placed inside a wooden coffin in a niche-apartment style.
Hematoma, 14.0 x 7.0 cms., scalp, occipital region.

Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.
Laryngo tracheal lumina congested and edematous containing muddy particles
with bloody path.
Lungs hyperinflated, heavy and readily pits on pressure; section contains bloody
froth.
Brain autolyzed and liquefied.
Stomach partly autolyzed.
CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory. [9]
The NBI filed a criminal complaint for homicide against respondents Andres and
Pacheco in the Office of the Provincial Prosecutor, which found probable cause for
homicide by dolo against the two.
An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac,
charging the respondents with homicide. The accusatory portion reads:
That at around 8 oclock in the morning of November 13, 1995, in the Municipality of
Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court,
the said accused Dante Andres and Randyver Pacheco y Suliven @ Randy, conspiring,
confederating, and helping one another, did then and there willfully, unlawfully, and
feloniously attack, assault, and maul Wilson Quinto inside a culvert where the three were
fishing, causing Wilson Quinto to drown and die.
CONTRARY TO LAW.[10]
After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified
on direct examination that the hematoma at the back of the victims head and the
abrasion on the latters left forearm could have been caused by a strong force coming
from a blunt instrument or object. The injuries in the larynx and trachea also indicated
that the victim died of drowning, as some muddy particles were also found on the
lumina of the larynx and trachea (Nakahigop ng putik). Dr. Aguda stated that such injury
could be caused when a person is put under water by pressure or by force. [11] On crossexamination, Dr. Aguda declared that the hematoma on the scalp was caused by a
strong pressure or a strong force applied to the scalp coming from a blunt instrument.
He also stated that the victim could have fallen, and that the occipital portion of his
head could have hit a blunt object.
Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of Wilsons
head could have rendered the latter unconscious, and, if he was thrown in a body of
water, the boy could have died by drowning.
In answer to clarificatory questions made by the court, the doctor declared that the
4x3-centimeter abrasion on the right side of Wilsons face could have also been caused
by rubbing against a concrete wall or pavement, or by contact with a rough surface. He
also stated that the trachea region was full of mud, but that there was no sign of
strangulation.[12]

After the prosecution had presented its witnesses and the respondents had admitted
the pictures showing the drainage system including the inside portions thereof, [13] the
prosecution rested its case.
The respondents filed a demurer to evidence which the trial court granted on the
ground of insufficiency of evidence, per its Order dated January 28, 1998. It also held
that it could not hold the respondents liable for damages because of the absence of
preponderant evidence to prove their liability for Wilsons death.
The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil
aspect of the case was concerned. In her brief, she averred that
THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO
PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-APPELLEES CIVILLY LIABLE FOR
THE DEATH OF THE VICTIM WILSON QUINTO.[14]
The CA rendered judgment affirming the assailed order of the RTC on December 21,
2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt but rather on a
finding that the accused-appellees did not commit the criminal acts complained of. Thus,
pursuant to the above rule and settled jurisprudence, any civil action ex delicto cannot
prosper. Acquittal in a criminal action bars the civil action arising therefrom where the
judgment of acquittal holds that the accused did not commit the criminal acts imputed
to them. (Tan v. Standard Vacuum Oil Co., 91 Phil. 672)[15]
The petitioner filed the instant petition for review and raised the following issues:
I
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL LIABILITY, LIKEWISE,
CARRIES WITH IT THE EXTINCTION OF THEIR CIVIL LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS CIVILLY
LIABLE FOR THE DEATH OF WILSON QUINTO.[16]
The petitioner avers that the trial court indulged in mere possibilities, surmises and
speculations when it held that Wilson died because (a) he could have fallen, his head
hitting the stones in the drainage system since the culvert was slippery; or (b) he might
have been bitten by a snake which he thought was the prick of a fish fin, causing his
head to hit hard on the top of the culvert; or (c) he could have lost consciousness due to
some ailment, such as epilepsy. The petitioner also alleges that the trial court erred in
ruling that the prosecution failed to prove any ill motive on the part of the respondents
to kill the victim, and in considering that respondent Andres even informed her of
Wilsons death.
The petitioner posits that the trial court ignored the testimony of the Medico-Legal
Expert, Dr. Aguda; the nature, location and number of the injuries sustained by the
victim which caused his death; as well as the locus criminis. The petitioner insists that

the behavior of the respondents after the commission of the crime betrayed their guilt,
considering that respondent Pacheco left the scene, leaving respondent Andres to bring
out Wilsons cadaver, while respondent Andres returned inside the drainage system only
when he saw Garcia seated in the grassy area waiting for his friend Wilson to come out.
The petitioner contends that there is preponderant evidence on record to show that
either or both the respondents caused the death of her son and, as such, are jointly and
severally liable therefor.
In their comment on the petition, the respondents aver that since the prosecution
failed to adduce any evidence to prove that they committed the crime of homicide and
caused the death of Wilson, they are not criminally and civilly liable for the latters death.
The petition has no merit.
Every person criminally liable for a felony is also civilly liable. [17] The civil liability of
such person established in Articles 100, 102 and 103 of the Revised Penal Code includes
restitution, reparation of the damage caused, and indemnification for consequential
damages.[18] When a criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted with the criminal
action unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action. [19] With the implied
institution of the civil action in the criminal action, the two actions are merged into one
composite proceeding, with the criminal action predominating the civil.[20]
The prime purpose of the criminal action is to punish the offender in order to deter
him and others from committing the same or similar offense, to isolate him from society,
to reform and rehabilitate him or, in general, to maintain social order. [21] The sole
purpose of the civil action is the restitution, reparation or indemnification of the private
offended party for the damage or injury he sustained by reason of the delictual or
felonious act of the accused.[22] While the prosecution must prove the guilt of the
accused beyond reasonable doubt for the crime charged, it is required to prove the
cause of action of the private complainant against the accused for damages and/or
restitution.
The extinction of the penal action does not carry with it the extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished if there is
a finding in a final judgment in the civil action that the act or omission from where the
civil liability may arise does not exist.[23]
Moreover, a person committing a felony is criminally liable for all the natural and
logical consequences resulting therefrom although the wrongful act done be different
from that which he intended.[24] Natural refers to an occurrence in the ordinary course of
human life or events, while logical means that there is a rational connection between
the act of the accused and the resulting injury or damage. The felony committed must
be the proximate cause of the resulting injury. Proximate cause is that cause which in
natural and continuous sequence, unbroken by an efficient intervening cause, produces
the injury, and without which the result would not have occurred. 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.[25]
There must be a relation of cause and effect, the cause being the felonious act of the
offender, the effect being the resultant injuries and/or death of the victim. The cause
and effect relationship is not altered or changed because of the pre-existing conditions,
such as the pathological condition of the victim (las condiciones patologica del
lesionado); the predisposition of the offended party (la predisposicion del ofendido); the
physical condition of the offended party (la constitucion fisica del herido); or the
concomitant or concurrent conditions, such as the negligence or fault of the doctors (la
falta de medicos para sister al herido); or the conditions supervening the felonious act
such as tetanus, pulmonary infection or gangrene.[26]
The felony committed is not the proximate cause of the resulting injury when:
(a) there is an active force that intervened between the felony committed and
the resulting injury, and the active force is a distinct act or fact absolutely
foreign from the felonious act of the accused; or
(b) the resulting injury is due to the intentional act of the victim.[27]
If a person inflicts a wound with a deadly weapon in such a manner as to put life in
jeopardy and death follows as a consequence of their felonious act, it does not alter its
nature or diminish its criminality to prove that other causes cooperated in producing the
factual result. The offender is criminally liable for the death of the victim if his delictual
act caused, accelerated or contributed to the death of the victim. [28] A different doctrine
would tend to give immunity to crime and to take away from human life a salutary and
essential safeguard.[29] This Court has emphasized that:
Amid the conflicting theories of medical men, and the uncertainties attendant upon the
treatment of bodily ailments and injuries, it would be easy in many cases of homicide to
raise a doubt as to the immediate cause of death, and thereby to open a wide door by
which persons guilty of the highest crime might escape conviction and punishment. [30]
In People v. Quianzon,[31] the Supreme Court held:
The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar to the
present, the following: 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.[32]
In the present case, the respondents were charged with homicide by dolo. In People
v. Delim,[33] the Court delineated the burden of the prosecution to prove the guilt of the
accused for homicide or murder:
In the case at bar, the prosecution was burdened to prove the corpus delicti which
consists of two things: first, the criminal act and second, defendants agency in the

commission of the act. Wharton says that corpus delicti includes two things: first, the
objective; second, the subjective element of crimes. In homicide (by dolo) and in murder
cases, the prosecution is burdened to prove: (a) the death of the party alleged to be
dead; (b) that the death was produced by the criminal act of some other than the
deceased and was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally responsible for the
act which produced the death. To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed
(with malice); in other words, that there was intent to kill. Such evidence may
consist inter alia in the use of weapons by the malefactors, the nature, location and
number of wounds sustained by the victim and the words uttered by the malefactors
before, at the time or immediately after the killing of the victim. If the victim dies
because of a deliberate act of the malefactor, intent to kill is conclusively presumed.[34]
Insofar as the civil aspect of the case is concerned, the prosecution or the private
complainant is burdened to adduce preponderance of evidence or superior weight of
evidence. Although the evidence adduced by the plaintiff is stronger than that presented
by the defendant, he is not entitled to a judgment if his evidence is not sufficient to
sustain his cause of action. The plaintiff must rely on the strength of his own evidence
and not upon the weakness of that of the defendants.[35]
Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance of
evidence is determined:
Section 1. Preponderance of evidence, how determined. In civil cases, the party having
the burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and circumstance of the case, the
witnesses manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same may legitimately appear upon the trial. The court
may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.[36]
In the present case, we rule that, as held by the trial court and the CA, the
prosecution failed to adduce preponderant evidence to prove the facts on which the civil
liability of the respondents rest, i.e., that the petitioner has a cause of action against the
respondents for damages.
It bears stressing that the prosecution relied solely on the collective testimonies of
Garcia, who was not an eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy Report of Dr.
Dominic Aguda, the deceased sustained a 14x7-centimeter hematoma on the scalp. But
as to how the deceased sustained the injury, Dr. Aguda was equivocal. He presented two
possibilities: (a) that the deceased could have been hit by a blunt object or instrument
applied with full force; or (b) the deceased could have slipped, fell hard and his head hit
a hard object:

COURT:
The Court would ask questions.
Q So it is possible that the injury, that is the hematoma, caused on the back of
the head might be due to the victims falling on his back and his head hitting a
pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong
enough and would fall from a high place and hit a concrete pavement, then it
is possible.
Q Is it possible that if the victim slipped on a concrete pavement and the head hit
the pavement, the injury might be caused by that slipping?
A It is also possible.
Q So when the victim was submerged under water while unconscious, it is
possible that he might have taken in some mud or what?
A Yes, Sir.
Q So it is your finding that the victim was submerged while still breathing?
A Yes, Your Honor, considering that the finding on the lung also would indicate
that the victim was still alive when he was placed under water.[37]
The doctor also admitted that the abrasion on the right side of the victims face could
have been caused by rubbing against a concrete wall or pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face, would it be
caused by the face rubbing against a concrete wall or pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud, were there no signs that
the victim was strangled?
A There was no sign of strangulation, Your Honor.[38]
The trial court gave credence to the testimony of Dr. Aguda that the deceased might
have slipped, causing the latter to fall hard and hit his head on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have been caused when the
victim fell down and that portion of the body or occipital portion hit a blunt
object and might have been inflicted as a result of falling down?

A - If the fall if the victim fell and he hit a hard object, well, it is also possible. [39]
The trial court took into account the following facts:
Again, it could be seen from the pictures presented by the prosecution that there were
stones inside the culvert. (See Exhibit D to D-3). The stones could have caused the
victim to slip and hit his head on the pavement. Since there was water on the culvert,
the portion soaked with water must be very slippery, aside from the fact that the culvert
is round. If the victim hit his head and lost consciousness, he will naturally take in some
amount of water and drown.[40]
The CA affirmed on appeal the findings of the trial court, as well as its conclusion
based on the said findings.
We agree with the trial and appellate courts. The general rule is that the findings of
facts of the trial court, its assessment of probative weight of the evidence of the parties,
and its conclusion anchored on such findings, affirmed no less by the CA, are given
conclusive effect by this Court, unless the trial court ignored, misapplied or
misconstrued cogent facts and circumstances which, if considered, would change the
outcome of the case. The petitioner failed to show any justification to warrant a reversal
of the findings or conclusions of the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed because even Garcia
testified that the drainage culvert was dark, and that he himself was so afraid that he
refused to join respondents Andres and Pacheco inside. [41] Respondent Andres had no
flashlight; only respondent Pacheco had one.
Moreover, Dr. Aguda failed to testify and explain what might have caused the
abrasion on the left forearm of the deceased. He, likewise, failed to testify whether the
abrasions on the face and left forearm of the victim were made ante mortem or post
mortem.
The petitioner even failed to adduce preponderance of evidence that either or both
the respondents hit the deceased with a blunt object or instrument, and, consequently,
any blunt object or instrument that might have been used by any or both of the
respondents in hitting the deceased.
It is of judicial notice that nowadays persons have killed or committed serious crimes
for no reason at all. [42] However, the absence of any ill-motive to kill the deceased is
relevant and admissible in evidence to prove that no violence was perpetrated on the
person of the deceased. In this case, the petitioner failed to adduce proof of any illmotive on the part of either respondent to kill the deceased before or after the latter
was invited to join them in fishing. Indeed, the petitioner testified that respondent
Andres used to go to their house and play with her son before the latters death:
Q Do you know this Dante Andres personally?
A Not much but he used to go to our house and play with my son after going
from her mother who is gambling, Sir.
Q But you are acquainted with him, you know his face?

A Yes, Sir.
Q Will you please look around this courtroom and see if he is around?
A (Witness is pointing to Dante Andres, who is inside the courtroom.)[43]
When the petitioners son died inside the drainage culvert, it was respondent Andres
who brought out the deceased. He then informed the petitioner of her sons death. Even
after informing the petitioner of the death of her son, respondent Andres followed the
petitioner on her way to the grassy area where the deceased was:
Q Did not Dante Andres follow you?
A He went with me, Sir.
Q So when you went to the place where your son was lying, Dante Andres was
with you?
A No, Sir. When I was informed by Dante Andres that my son was there at the
culvert, I ran immediately. He [was] just left behind and he just followed, Sir.
Q So when you reached the place where your son was lying down, Dante Andres
also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir.[44]
In sum, the petitioner failed to adduce preponderance of evidence to prove a cause
of action for damages based on the deliberate acts alleged in the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No
costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

G.R. No. 162540

July 13, 2009

GEMMA T. JACINTO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto
seeking the reversal of the Decision1 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 Resolution2 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) of Caloocan 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 co-employee 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. 4Baby 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 crossexamination 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 ofQUALIFIED 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, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.
(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 dated March
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 Appeals9 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 theinherent 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 Intod10 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 of
qualified 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.1avvphi1
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. People12 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,
are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTYof 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.

G.R. No. 103119 October 21, 1992


SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:


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 son-in-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
the void in the Old Penal Code where:

of the Revised Penal Code. This seeks to remedy

. . . 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 ofarresto mayor, together
with the accessory penalties provided by the law, and to pay the costs.
SO ORDERED.

G. R. No. 160188

June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
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
Information6 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 well-known "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 Ultramatic and 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 of Tide 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 of the 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 cross-examination, he admitted that he had
been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though
not at SM.15
In a Decision16 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
brief19 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 rea has 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 our mala 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 rea requirement 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 embedded which 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 apoderamiento
once 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 Code52 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. Adiao53 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 pocket-book.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. 65The 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 in Flores, 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 of "much 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 of U.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 non-performance was by reason of some

cause or accident other than 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 del hurto 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 and Flores. 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
the Dio/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 effectedanimo 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 Dio
and 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. 138033

February 22, 2006

RENATO BALEROS, JR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks
the reversal of the January 13, 1999 decision 1 of the Court of Appeals (CA) in CA-G.R. CR
No. 17271 as reiterated in its March 31, 1999 resolution 2 denying petitioners motion for
reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of
Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y
David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner
with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila
and within the jurisdiction of this Honorable Court, the above-named accused, by
forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in
chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have
carnal knowledge with her but was unable to perform all the acts of execution by reason
of some cause or accident other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not
Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were
private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph
Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their
testimonies, as narrated in some detail in the decision of the CA, established the
following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along
A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid,
Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST]
in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30.
Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a
piece of cloth pressed on her face. She struggled but could not move. Somebody was
pinning her down on the bed, holding her tightly. She wanted to scream for help but the

hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5,
1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last
her right hand got free. With this the opportunity presented itself when she was able
to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou.
xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko
pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing
she had made out during their struggle was the feel of her attackers clothes and
weight. His upper garment was of cotton material while that at the lower portion felt
smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and shorts Original
Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista,
Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek help.
xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with
blue (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had
originally left opened, another window inside her bedroom was now open. Her attacker
had fled from her room going through the left bedroom window (Ibid, Answers to
Question number 5; Id), the one without iron grills which leads to Room 306 of the
Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate , was
friendly until a week prior to the attack. CHITO confided his feelings for her, telling her:
"Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5,
1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building
at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt with a
marking on the front of the T-shirt T M and a Greek letter (sic) and below the quoted
letters the word 1946 UST Medicine and Surgery (TSN, October 9, 1992, p. 9) and
black shorts with the brand name Adidas (TSN, October 16, 1992, p.7) and requested
permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that
time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the
room.
He asked CHITO to produce the required written authorization and when CHITO could
not, S/G Ferolin initially refused [but later, relented] . S/G Ferolin made the following
entry in the security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request
letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason
that he will be our tenant this coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated
by Joseph Bernard Africa (Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991.
xxx by the time CHITOs knocking on the door woke him up, . He was able to fix the
time of CHITOs arrival at 1:30 A.M. because he glanced at the alarm clock beside the
bed when he was awakened by the knock at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p.
23) when he let the latter in. . It was at around 3 oclock in the morning of December
13, 1991 when he woke up again later to the sound of knocking at the door, this time,
by Bernard Baptista (Bernard), .
xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by
Bernard the open window through which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able
to talk to CHITO . He mentioned to the latter that something had happened and that
they were not being allowed to get out of the building. Joseph also told CHITO to follow
him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx.
None was in Room 310 so Joseph went to their yet another classmate, Renato Alagadan
at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 oclock that same morning . They likewise
invited CHITO and Joseph to go with them to Camp Crame where the two (2) were
questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the
afternoon of December 13, 1991, after their 3:30 class, he and his roommates, Bernard
Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the
CIS people to look for anything not belonging to them in their Unit. While they were
outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another
roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p.
6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they
did not know was there and surrender the same to the investigators. When he saw the
gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had
seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a
white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a
handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"),
and the handkerchief (Exhibit "D-3) to be CHITOs because CHITO had lent the very

same one to him . The t-shirt with CHITOs fraternity symbol, CHITO used to wear on
weekends, and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was
what consisted mainly of Renato R. Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and
appeared to be full but was closed with a zipper when Renato saw it then (Ibid, pp. 1920). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around
3 to 4 oclock that afternoon along with some CIS agents, they saw the bag at the same
place inside the bedroom where Renato had seen CHITO leave it. Not until later that
night at past 9 oclock in Camp Crame, however, did Renato know what the contents of
the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime
Laboratory in Camp Crame, having acted in response to the written request of PNP
Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original
Records, p. 109.) conducted laboratory examination on the specimen collated and
submitted. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part,
thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the
above stated specimens.
FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following
results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied
committing the crime imputed to him or making at any time amorous advances on
Malou. Unfolding a different version of the incident, the defense sought to establish the
following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of (UST). With Robert Chan and
Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity . MALOU,
, was known to him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong
tagalog over dark pants and leather shoes, arrived at their Fraternity house located at
Dos Castillas, Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991.
He was included in the entourage of some fifty (50) fraternity members scheduled for a
Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No.
3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool . Soon after,
the four (4) presidential nominees of the Fraternity, CHITO included, were being dunked
one by one into the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants
when he was dunked. Perla Duran, , offered each dry clothes to change into and
CHITO put on the white t-shirt with the Fraternitys symbol and a pair of black shorts
with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the
symbol TAU Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25,
1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1
A.M. of December 13, 1991 and proceeded to the Building which they reached at about
1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt,
sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon
of the previous day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch,
approached. Because of this, CHITO also looked at his own watch and saw that the time
was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten
(10) minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie
window and for five (5) minutes vainly tried to open the door until Rommel Montes,
approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang
pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 but was likewise
unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, , at last
answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned
his back on CHITO and went inside the bedroom. CHITO , changed to a thinner shirt
and went to bed. He still had on the same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in
his school uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up.
He asked the latter why this was so and, without elaborating on it, Joseph told him that
something had happened and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not
able to identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p.
36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building .
When two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented
himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to
Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up
and the two (2) of them, CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room
and talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to
undergo physical examination at the Camp Crame Hospital .. At the hospital, CHITO
and Joseph were physically examined by a certain Dr. de Guzman who told them to strip
.
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent
to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at
more/less 6:30 to 7 oclock in the morning of December 13, 1991. The next time that he
saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis
for inquest. One of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of Fiscal
Abesamis who, however, made no effort to ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his
gray bag which he had left at Room 306 in the early evening of December 12, 1991
before going to the fraternity house. He likewise disavowed placing said black Adidas
short pants in his gray bag when he returned to the apartment at past 1:00 oclock in
the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he
dressed up at about 6 oclock in the morning to go to school and brought his gray bag to
Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that
his gray bag ever contained any black short Adidas pants (Ibid). He only found out for
the first time that the black Adidas short pants was alluded to be among the items inside
his gray bag late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity brothers,
Alberto Leonardo and Robert Chan, who both testified being with CHITO in the December
12, 1991 party held in Dr. Durans place at Greenhills, riding on the same car going to
and coming from the party and dropping the petitioner off the Celestial Marie building
after the party. Both were one in saying that CHITO was wearing a barong tagalog, with
t-shirt inside, with short pants and leather shoes at the time they parted after the
party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing
CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open
the door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants
with stripes after the dunking party held in her fathers house. 8 Presented as defense
expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual
demonstration in open court showed that chloroform, being volatile, evaporates in thirty
(30) seconds without tearing nor staining the cloth on which it is applied. 9
On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of
attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds
the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the
crime of attempted rape as principal and as charged in the information and hereby
sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of
Prision Mayor as Maximum, with all the accessory penalties provided by law, and for the
accused to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by
way of Moral and exemplary damages, plus reasonable Attorneys fees of P30,000.00,
without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as
CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13,
1999, affirmed the trial courts judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court
a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally
assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have committed the
attempted rape imputed to him, absent sufficient, competent and convincing
evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial
evidence since the prosecution failed to satisfy all the requisites for conviction
based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are
unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the
award was improper and unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence
and that moral certainty has not been met, hence, he should be acquitted on the
ground that the offense charged against him has not been proved beyond
reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not
the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond
reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioners acquittal, but not necessarily
because there is no direct evidence pointing to him as the intruder holding a chemicalsoaked cloth who pinned Malou down on the bed in the early morning of December 13,
1991.
Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identify a suspect or accused as the offender as an
eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have
actually witnessed the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim
immediately before and right after the commission of the crime. This is the second type
of positive identification, which forms part of circumstantial evidence. 13 In the absence
of direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all circumstances,

the prosecution of vicious felons who committed heinous crimes in secret or secluded
places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial
evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient
for conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of
circumstantial evidence, which, when taken together with the other pieces of evidence
constituting an unbroken chain, leads to only fair and reasonable conclusion, which is
that petitioner was the intruder in question.
We quote with approval the CAs finding of the circumstantial evidence that led to the
identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the
room of MALOU as Room 307 where he slept the night over had a window which allowed
ingress and egress to Room 306 where MALOU stayed. Not only the Building security
guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing
a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at
1:30 in the morning of December 13, 1991. Though it was dark during their struggle,
MALOU had made out the feel of her intruders apparel to be something made of cotton
material on top and shorts that felt satin-smooth on the bottom.
From CHITOs bag which was found inside Room 310 at the very spot where witness
Renato Alagadan saw CHITO leave it, were discovered the most incriminating evidence:
the handkerchief stained with blue and wet with some kind of chemicals; a black
"Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A
different witness, this time, Christian Alcala, identified these garments as belonging to
CHITO. As it turned out, laboratory examination on these items and on the beddings and
clothes worn by MALOU during the incident revealed that the handkerchief and MALOUs
night dress both contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the chemical-soaked
cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution
has established beyond reasonable doubt the guilt of the petitioner for the crime of
attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous face the piece
of cloth soaked in chemical while holding her body tightly under the weight of his own,
had commenced the performance of an act indicative of an intent or attempt to rape the

victim. It is argued that petitioners actuation thus described is an overt act


contemplated under the law, for there can not be any other logical conclusion other than
that the petitioner intended to ravish Malou after he attempted to put her to an induced
sleep. The Solicitor General, echoing what the CA said, adds that if petitioners intention
was otherwise, he would not have lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has
carnal knowledge or intercourse with a woman under any of the following
circumstances: (1) By using force or intimidation; (2) When the woman is deprived of
reason or otherwise unconscious; and (3) When the woman is under twelve years of age
or is demented. Under Article 6, in relation to the aforementioned article of the same
code, rape is attempted when the offender commences the commission of rape directly
by overt acts and does not perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other than his own spontaneous
desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro
M. Recto in People vs. Lamahang,17 stated that "the attempt which the Penal Code
punishes is that which has a logical connection to a particular, concrete offense; that
which is the beginning of the execution of the offense by overt acts of the perpetrator,
leading directly to its realization and consummation." Absent the unavoidable
connection, like the logical and natural relation of the cause and its effect, as where the
purpose of the offender in performing an act is not certain, meaning the nature of the
act in relation to its objective is ambiguous, then what obtains is an attempt to commit
an indeterminate offense, which is not a juridical fact from the standpoint of the Penal
Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal
knowledge in the present case. The next question that thus comes to the fore is whether
or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top
of Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which
if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to
construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou
which would induce her to sleep as an overt act that will logically and necessarily ripen
into rape. As it were, petitioner did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It cannot be overemphasized that
petitioner was fully clothed and that there was no attempt on his part to undress Malou,
let alone touch her private part. For what reason petitioner wanted the complainant
unconscious, if that was really his immediate intention, is anybodys guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top
of the complainant. Plodding on, the appellate court even anticipated the next step that
the petitioner would have taken if the victim had been rendered unconscious. Wrote the
CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later.
His sexual organ is not yet exposed because his intended victim is still struggling. Where
the intended victim is an educated woman already mature in age, it is very unlikely that
a rapist would be in his naked glory before even starting his attack on her. He has to
make her lose her guard first, or as in this case, her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice disfavored
under the rule on evidence in criminal cases. For, mere speculations and probabilities
cannot substitute for proof required to establish the guilt of an accused beyond
reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of
attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the
felony. Thus, for there to be an attempted rape, the accused must have commenced the
act of penetrating his sexual organ to the vagina of the victim but for some cause or
accident other than his own spontaneous desistance, the penetration, however, slight, is
not completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing her, mashing
her breasts, inserting his hand inside her panty and touching her sexual organ, while
admittedly obscene and detestable acts, do not constitute attempted rape absent any
showing that petitioner actually commenced to force his penis into the complainants
sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the
alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we
were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The information filed against petitioner
contained an allegation that he forcefully covered the face of Malou with a piece of cloth
soaked in chemical. And during the trial, Malou testified about the pressing against her
face of the chemical-soaked cloth and having struggled after petitioner held her tightly
and pinned her down. Verily, while the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed, they constitute unjust vexation
punishable as light coercion under the second paragraph of Article 287 of the Revised
Penal Code. In the context of the constitutional provision assuring an accused of a crime
the right to be informed of the nature and cause of the accusation, 24 it cannot be said
that petitioner was kept in the dark of the inculpatory acts for which he was proceeded
against. To be sure, the information against petitioner contains sufficient details to
enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino,
there is no need to allege malice, restraint or compulsion in an information for unjust
vexation. As it were, unjust vexation exists even without the element of restraint or
compulsion for the reason that this term is broad enough to include any human conduct
which, although not productive of some physical or material harm, would unjustly annoy

or irritate an innocent person.25 The paramount question is whether the offenders act
causes annoyance, irritation, torment, distress or disturbance to the mind of the person
to whom it is directed.26 That Malou, after the incident in question, cried while relating to
her classmates what she perceived to be a sexual attack and the fact that she filed a
case for attempted rape proved beyond cavil that she was disturbed, if not distressed by
the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised
Penal Code is arresto menor or a fine ranging from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional
Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered
ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape.
Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to
30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties
thereof and to pay the costs.
SO ORDERED.

G.R. Nos. 138943-44

September 17, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
HENRY ALMAZAN, accused-appellant.
BELLOSILLO, J.:
This is an appeal from the Joint Decision1 of the trial court declaring accused-appellant
Henry Almazan guilty of murder and frustrated murder. It traces its origin to two
(2) Informations charging Henry Almazan with shooting Noli S. Madriaga with a handgun,
aggravated by treachery and evident premeditation, which caused the latter's death;
and with shooting Noel Madriaga with the same handgun which would have produced
the latter's death if not for timely medical attendance, docketed as Crim. Cases Nos. C51276 and C-51277 respectively. These cases were tried jointly pursuant to Sec. 14, Rule
119, of the 1985 Rules on Criminal Procedure.
On 28 September 1996, at about 4:00 o'clock in the afternoon, Vicente Madriaga and a
certain Allan played chess in front of the former's house at Pag-asa, Camarin, Caloocan
City. Spectators were Vicente's son Noli, who was carrying his 2-year old daughter,
Vicente's grandson Noel, and a neighbor named Angel Soliva. While the game was
underway, Henry Almazan unexpectedly arrived and brandished a .38 caliber revolver in
front of the group. Almazan's fighting cocks had just been stolen and he suspected
Angel, one of the spectators, to be the culprit. Thus he said, "manos-manos na lang
tayo,"2 aimed his gun at Angel and pulled the trigger. It did not fire. He tried again, but
again it failed.
At this juncture, Vicente Madriaga stood up and tried to calm down Henry, but the latter
refused to be pacified("ayaw paawat"). Angel ran away and Henry aimed his gun instead
at Noli. Noli cried for mercy, for his life and that of his daughter, but to no avail. 3 Henry
shot Noli at the left side of his stomach sending him immediately to the ground. His
daughter, unscathed, held on to Noli, crying. Henry then turned on Noel and shot him on
the left thigh. Noel managed to walk lamely ("paika-ika") but only to eventually fall to
the ground. Thereafter, Vicente Madriaga called on his neighbors who brought Noli and
Noel to the hospital. Noli however died before reaching the hospital, while Noel survived
his injuries.
Dr. Ma. Cristina Freyra of the PNP Crime Laboratory Service conducted an autopsy on the
body of Noli which revealed that the cause of the victim's death was a gunshot at the
trunk from a .38 caliber revolver. Dr. Misael Jonathan Ticman, attending physician of
Noel, in turn declared that the gunshot wound on the left thigh of Noel was a minor
injury that would heal in a week. 4 Noel was never admitted in the hospital as his doctor
sent him home the same day. 5 On cross-examination, Dr. Ticman testified that if not
medically treated the wound might get infected or lead to the victim's death.6
Witnesses for the defense narrated a different version. They pointed to Angel Soliva
instead as the person to blame for Noli Madriaga's death while justifying Noel Madriaga's
wound as a result of self-defense.
Henry Almazan testified that at about 4:00 o'clock in the afternoon of 28 September
1996 he went home accompanied by his friend Johnald Molina. Henry's wife informed

him upon his return that his fighting cocks, twelve (12) in number, had been stolen. He
went out of the house to inquire from neighbors as to who could have taken his cocks.
He was followed by Johnald. On their way they saw Vicente Madriaga and Allan playing
chess surrounded by Noli, Noel, Angel and other persons. They were drinking liquor. As
he (Almazan) and Johnald were passing by, Angel called Henry and asked if he was
looking for his fighting cocks. The group then burst into laughter and pointed to
their pulutan. Someone in the group advised Henry not to look anymore for his fighting
cocks as he would only be courting trouble ("naghahanap ka lang ng sakit ng katawan").
To this advice Henry replied, "Bakit naman ganoon?" Suddenly, Angel pulled out his gun
and shot Henry twice but the gun did not fire. Seizing the opportunity Henry grappled
with Angel for the possession of his gun. During the scuffle Angel pulled the trigger
which hit Noli. Henry finally succeeded in wresting the gun from Angel and aimed it at
him. Suddenly, he received a blow from behind and he fell. As he raised his head from
the ground, he saw Noel poised to attack him with a broken bottle, so that he had to
train his gun at the lower part of Noel's body and fired. The bullet hit Noel on the thigh
which sent him reeling down his knees ("napaluhod"). Shocked and afraid that he hit
Noel, Henry ran home.
Johnald Molina corroborated Henry Almazan's statement in all material points. Johnald
testified that the group mocked Henry when they told him not to look for his cocks
anymore as they had already been cooked for pulutan, and to insist in his search would
only cause him physical trouble. Henry could only reply, "Tila nga may nagnakaw ng
mga manok ko . . . . Bakit naman ganoon?" As he made his remarks, someone from the
group suddenly pulled out a gun and aimed at Henry. Henry grappled with the gunwielder who pressed the trigger twice but the gun misfired each time. When the gunwielder pulled the trigger for the third time it fired, hitting a person who was carrying a
small child and standing within the vicinity. He was obviously referring to Noli. Johnald
immediately ran towards Henry's house to report the incident to his wife and asked for
help. Then he heard another shot, but in his haste to reach Henry's house he ignored it.
Upon reaching Henry's house, Henry also arrived. To avoid being involved and out of
fear, Johnald did not report the incident to the police. Later however, bothered by his
conscience and being the friend of Henry, Johnald volunteered to testify on what he
knew of the incident.
The court a quo found Henry Almazan's defense devoid of merit. Apart from being
positively identified by the prosecution witnesses as the person responsible for the
violence and the injuries inflicted, the trial court declared that the theft of Henry's
fighting cocks constituted sufficient motive for the killing and that as a
cockfightafficionado he must have found it imperative to exact vengeance on his
suspected culprits.7 The trial court held that the testimony of Johnald failed to create
reasonable doubt on the guilt of Henry since as a friend he was expected to extend
succor to a friend, especially one in need. 8 Thus, the trial court held Henry Almazan
guilty of murder and frustrated murder as charged.
In imposing the penalty for each offense, the lower court appreciated the qualifying
circumstance of treachery against accused-appellant on the ground that the victims
were completely defenseless when attacked and did not commit the slightest
provocation, but found no justification for evident premeditation as there was no proof
as to the manner and time during which the plan to kill was hatched. On the contrary,
the trial court found in favor of accused-appellant the mitigating circumstance of

passion and obfuscation. Thus, in Crim. Case No. C-51276, accused-appellant was
sentenced to the reduced penalty of reclusion perpetua instead of death, with all the
accessory penalties according to law, and ordered to pay the heirs of the
victim P50,000.00 as death indemnity,P8,000.00 as funeral expenses, and to pay the
costs; while in Crim. Case No. C-51277, he was sentenced to an indeterminate prison
term of eight (8) years of prision mayor, as minimum, to fourteen (14) years and eight
(8) months of reclusion temporal, as maximum, with all the accessory penalties provided
by law, and to payP20,000.00 as civil indemnity, without subsidiary imprisonment in
case of insolvency, and to pay the costs.9
Accused-appellant now prays to be absolved of murder in Crim. Case No. C-51276 on the
ground that the prosecution has failed to prove his guilt beyond reasonable doubt. He
assails the testimony of Shirley Abordo, common-law wife of Nilo Madriaga, for being
hearsay, as well as the testimony of Vicente Madriaga for its alleged inconsistencies in
various vital points. Significantly, accused-appellant impugns the veracity of the
prosecution's evidence for its failure to present Angel Soliva who was primarily involved
in the incident and whom the defense points to as the real transgressor. Thus, accusedappellant contends that evidence sufficient to establish the absolute and moral certainty
of his guilt being absent he should be acquitted.
As for Crim. Case No. C-51277, accused-appellant contends that the trial court erred in
holding him guilty of frustrated murder as the wound sustained by Noel Madriaga was
not fatal that could have caused his death if not for timely medical assistance.
Moreover, accused-appellant claims that he shot Noel only to forestall any attack on him
and not to kill Noel intentionally.
Appellate courts are doctrinally bound by the trial court's assessment of the credibility of
witnesses given the clear advantage of a trial judge in the appreciation of testimonial
evidence. The trial court is in the best position to assess the credibility of witnesses and
their testimonies because of its unique opportunity to observe the witnesses first-hand
and to note their demeanor, conduct and attitude under grueling examination - factors
which are significant in the evaluation of the sincerity of witnesses and in unearthing the
truth.10 We see no reason to depart from this doctrine.
The witnesses for the prosecution were consistent in their narration of the manner by
which the events transpired, and they remained steadfast in their identification of
accused-appellant as the author of the violence. Despite attempts to confound them,
Vicente Madriaga and Noel Madriaga were relentless in their declaration that it was
accused-appellant, armed with a .38 caliber revolver, who pounced upon them without
warning thereby killing Noli Madriaga and wounding Noel Madriaga in the process. They
were one in their assertion that accused-appellant was inflamed by his suspicion that
Angel Soliva and Noel Madriaga had stolen his fighting cocks and was intent on getting
even with them, thus he fired at them. Efforts to pass the blame on the group by
claiming that in their inebriated state they mocked accused-appellant and thus initiated
the violence were actually set to naught as Vicente and Noel Madriaga unfailingly denied
the same.
True, Shirley Abordo's testimony was spattered with inconsistencies bordering at times
on incoherence. As she herself admitted, her narration was merely derived from the
accounts of the other prosecution witnesses and not from her own perception of the

events. This constitutes hearsay, which we then reject. Be that as it may, these alleged
inconsistencies are immaterial and irrelevant as they do not alter the determination of
the Court that murder was committed and accused-appellant was the assailant. For a
discrepancy to serve as basis for acquittal, it must refer to significant facts vital to the
guilt or innocence of the accused. An inconsistency, which has nothing to do with the
elements of the crime, cannot be a ground to reverse a conviction. 11
In the same vein, the testimony of Angel Soliva or of Allan, with whom Vicente Madriaga
was playing chess, is unnecessary as the facts on record are clear enough for judicial
assessment and verdict.
The defense suggests that it could be Angel Soliva instead who shot Noli Madriaga. This
is unacceptable in the face of the positive identification of the accused by the
prosecution witnesses. The allegation that the shooting was the accidental consequence
of the struggle between accused-appellant and Angel Soliva does not inspire belief as no
substantial evidence was presented to prove it. It is highly improbable that a struggle
even occurred as accused-appellant and Angel Soliva were surrounded by the latter's
friends who would have easily ganged up on accused-appellant. Testimonial evidence to
be credible should not only come from the mouth of a credible witness but should also
be credible, reasonable and in accord with human experience, 12 failing in which, it
should be rejected.
Indeed, Johnald Molina corroborated the statement of accused-appellant pointing at
Angel Soliva as the real culprit; however, we are inclined to agree with the observation
of the court a quo that it was natural for an individual to exert effort in liberating his
friend from confinement or execution, even to the extent of distorting the truth.
It is significant to note that accused-appellant went into hiding after the shooting
incident and was only collared by the agents from the Western Police District eight (8)
months later. Flight indeed is an indication of guilt, especially when accused-appellant
failed to sufficiently explain why he left his residence and resurrected only several
months after.
The trial court properly appreciated the presence of treachery as the attack was made
upon the unarmed victims who had not committed the slightest provocation and who
were totally unaware of the murderous designs of accused-appellant. Contrary to the
finding of the court a quo, treachery in this case qualifies the offense to murder, hence,
may not be considered a generic aggravating circumstance to increase the penalty
from reclusion perpetua to death. In other words, while the imposable penalty for
murder is reclusion perpetua to death, in the absence of any mitigating or aggravating
circumstance, the lesser penalty of reclusion perpetua shall be imposed. The mitigating
circumstance of passion and obfuscation cannot be appreciated in favor of accusedappellant as this was never proved during the trial.
As for Crim. Case No. C-51277, accused-appellant admits responsibility for the injuries
inflicted on Noel but reasons out that he did so only to defend himself. Accusedappellant therefore pleads self-defense, a justifying circumstance that could acquit him
of the charge but which we are not disposed to grant as the elements necessary to
qualify his actions13 were not present. In alleging that the killing arose from an impulse
to defend oneself, the onus probandi rests upon accused-appellant to prove by clear and

convincing evidence the elements thereof: (a) that there was unlawful aggression on the
part of the victim; (b) that there was reasonable necessity for the means employed to
prevent or repel it; and, (c) that there was lack of sufficient provocation on the part of
the defendant.14 This, it has failed to discharge.
Nevertheless, we find that the accused-appellant should be held liable for attempted
murder, not frustrated murder. For the charge of frustrated murder to flourish, the victim
should sustain a fatal wound that could have caused his death were it not for timely
medical assistance. This is not the case before us. The court a quoanchored its ruling on
the statement of Dr. Ticman on cross-examination that the wound of Noel could catch
infection or lead to his death if not timely and properly treated. However, in his direct
testimony, Dr. Ticman declared that the wound was a mere minor injury for which Noel,
after undergoing treatment, was immediately advised to go home. 15 He even referred to
the wound as a slight physical injury that would heal within a week 16and for which the
victim was in no danger of dying.17 Clear as the statement is, coupled with the fact that
Noel was indeed immediately advised to go home as he was not in any danger of death,
we have no reason to doubt the meaning and implications of Dr. Ticman's statement. His
statement that Noel could catch infection was based on pure speculation rather than on
the actual nature of the wound which was a mere minor injury, hence, not fatal.
According to jurisprudence, if the victim was wounded with an injury that was not fatal,
and could not cause his death, the crime would only be attempted. 18 The observation
that the conviction should be for slight physical injuries only is likewise improper as the
accused-appellant was motivated by the same impetus and intent, i.e., to exact
vengeance and even kill, if necessary, when he shot Noel Madriaga. The fact that the
wound was merely a minor injury which could heal in a week becomes inconsequential.
In the final analysis, there being no mitigating nor aggravating circumstance and the
more appropriate offense being attempted murder, accused-appellant should be meted
a penalty two (2) degrees lower than the prescribed penalty of reclusion perpetua,
which is prision mayor the range of which is six (6) years and one (1) day to twelve (12)
years. Applying the Indeterminate Sentence Law in the case for attempted murder, the
maximum shall be taken from the medium period of prision mayor, which is eight (8)
years and one (1) day to ten (10) years, while the minimum shall be taken from the
penalty next lower in degree, or prision correccional, in any of its periods, the range of
which is six (6) months and one (1) day to six (6) years.
WHEREFORE, the Joint Decision of the trial court of 15 June 1999 finding accusedappellant HENRY ALMAZAN guilty of Murder in G.R. No. 138943 (Crim. Case No. C-51276)
and sentencing him to reclusion perpetua with its accessory penalties, and to pay the
heirs of Noli Madriaga P50,000.00 as death indemnity, P8,000.00 as funeral expenses,
and to pay the costs, is AFFIRMED. However, his conviction for Frustrated Murder in G.R.
No. 138944 (Crim. Case No. C-51277) is MODIFIED by lowering the crime to Attempted
Murder and he is sentenced accordingly to an indeterminate prison term of two (2)
years, four (4) months and ten (10) days of prision correccional medium as minimum, to
eight (8) years two (2) months and twenty (20) days of prision mayormedium as
maximum, and to pay the offended party Noel Madriaga the amount of P20,000.00 as
civil indemnity, and to pay the costs.
SO ORDERED.

G.R. No. 122099

July 5, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito
Listerio y Prado, Samson dela Torre y Esquela, Marlon dela Torre, George dela Torre,
Bonifacio Bancaya and several others who are still at large were charged in two (2)
separate Amended Informations with Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information1 for Murder alleges
That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping and aiding one
another, all armed with bladed weapons and GI lead pipes, with intent to kill, treachery
and evident premeditation with abuse of superior strength did then and there willfully,
unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel at the
back of his body, thereby inflicting upon the latter mortal wounds which directly caused
his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information 2 for Frustrated Homicide
charges:
That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro
Manila, Philippines and within the jurisdiction this Honorable Court, the above-named
accused, conspiring, confederating together, mutually helping and aiding one another,
with intent to kill did then and there willfully, unlawfully and feloniously stab and hit with
a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital portions of his
body, thereby inflicting serious and mortal wounds which would have cause[d] the death
of the said victim thus performing all the acts of execution which should have
produce[d] the crime of Homicide as a consequence but nevertheless did not produce it
by reason of causes independent of their will, that is by timely and able medical
attendance rendered to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela
pleaded not guilty to the crimes charged. Their other co-accused have remained at
large.
Trial thereafter ensued after which the court a quo rendered judgment only against
accused Agapito Listerio because his co-accused Samson dela Torre escaped during the

presentation of the prosecutions evidence and he was not tried in absentia. The
dispositive portion of the decision3 reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is
sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 915842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he
is sentenced to six (6) months and one (1) day as minimum, to four (4) years as
maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y
Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay
Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.4
Dissatisfied, accused Agapito Listerio interposed this appeal alleging that
I
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED
BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND
ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND
AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of August 14, 1991
culled from the eyewitness account of Marlon Araque discloses that at around 5:00 p.m.
of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to
collect a sum of money from a certain Tino. 5 Having failed to collect anything from
Tino, Marlon and Jeonito then turned back.6 On their way back while they were passing

Tramo near Tinos place,7 a group composed of Agapito Listerio, Samson dela Torre,
George dela Torre, Marlon dela Torre and Bonifacio Bancaya 8 blocked their path9 and
attacked them with lead pipes and bladed weapons.10
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed
weapons, stabbed Jeonito Araque from behind. 11 Jeonito sustained three (3) stab wounds
on the upper right portion of his back, another on the lower right portion and the third
on the middle portion of the left side of his back 12 causing him to fall down.13 Marlon
Araque was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes
and momentarily lost consciousness.14 When he regained his senses three (3) minutes
later, he saw that Jeonito was already dead. 15 Their assailants then fled after the
incident.16 Marlon Araque who sustained injuries in the arm and back, 17 was thereafter
brought to a hospital for treatment.18
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal
Division of the UP-PGH, 19who thereafter issued a Medical Certificate 20 indicating that
Marlon Araque sustained two (2) lacerated wounds, one measuring 5 centimeters in
length located in the center (mid-parietal area) of the ear. 21 The second lacerated wound
measuring 2 centimeters in length is located at the mid-frontal area commonly known as
the forehead.22 A third lacerated wound measuring 1.5 centimeters long is located at the
forearm23 and a fourth which is a stab wound measuring 3 centimeters is located at the
right shoulder at the collar. 24 Elaborating on the nature of Marlon Araques injuries, Dr.
Manimtim explained in detail during cross-examination that the two (2) wounds on the
forearm and the shoulder were caused by a sharp object like a knife while the rest were
caused by a blunt instrument such as a lead pipe.25
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of
Jeonito Araque26 and prepared an Autopsy Report 27 of his findings. The report which
contains a detailed description of the injuries inflicted on the victim shows that the
deceased sustained three (3) stab wounds all of them inflicted from behind by a sharp,
pointed and single-bladed instrument like a kitchen knife, balisong or any similar
instrument.28 The first stab wound, measuring 1.7 centimeters with an approximate
depth of 11.0 centimeters, perforated the lower lobe of the left lung and the thoracic
aorta.29 Considering the involvement of a vital organ and a major blood vessel, the
wound was considered fatal. 30 The second wound, measuring 2.4 centimeters, affected
the skin and underlying soft tissues and did not penetrate the body cavity. 31 The third
wound measuring 2.7 centimeters was like the second and involved only the soft
tissues.32 Unlike the first, the second and third wounds were non-fatal.33 Dr. Munoz
averred that of the three, the first and second wounds were inflicted by knife thrusts
delivered starting below going upward by assailants who were standing behind the
victim.34
On the other hand, accused-appellants version of the incident is summed thus in his
brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a resident of
Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living by selling
vegetables.35

2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-Appellant


was in the store of Nimfa Agustin having a little fun with Edgar Demolador and
Andres Gininao drinking beer. At around 2:00 oclock Accused-appellant went to
his house and slept.36
3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao woke
him up and told him there was a quarrel near the railroad track.37
4. At around 6:00 oclock two (2) policemen passed by going to the house of
Samson de la Torre while Accused-appellant was chatting with Edgar Remolador
and Andres Gininao. These two (2) policemen together with co-accused Samson de
la Torre came back and invited Accused-appellant for questioning at the
Muntinlupa Police Headquarters together with Edgar Demolador and Andres
Gininao. Subsequently, Edgar Demolador and Andres Gininao were sent home. 38
5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay
executed by Marlon Araque, implicating him for the death of Jeonito Araque and
the frustrated murder of Marlon Araque. Accused-Appellant confronted Marlon
Araque as to why he was being included in the case. Marlon Araque answered
"because you eject[ed] us from your house."39
Professing his innocence, accused-appellant claims that Marlon Araques uncorroborated
testimony failed to clearly and positively identify him as the malefactor responsible for
his brothers death. In fine, he insists that Marlons testimony is insufficient to convict
him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered, such that the
testimony of a single, trustworthy and credible witness could be sufficient to convict an
accused.40 More explicitly, the well entrenched rule is that "the testimony of a lone
eyewitness, if found positive and credible by the trial court is sufficient to support a
conviction especially when the testimony bears the earmarks of truth and sincerity and
had been delivered spontaneously, naturally and in a straightforward manner. It has
been held that witnesses are to be weighed not numbered; hence, it is not at all
uncommon to reach a conclusion of guilt on the basis of the testimony of a single
witness."41
The trial court found Marlon Araques version of what transpired candid and
straightforward. We defer to the lower courts findings on this point consistent with the
oft-repeated pronouncement that: "the trial judge is the best and the most competent
person who can weigh and evaluate the testimony of witnesses. His firsthand look at the
declarants demeanor, conduct and attitude at the trial places him in a peculiar position
to discriminate between the true and the false. Consequently appellate courts will not
disturb the trial courts findings save only in cases where arbitrariness has set in and
disregard for the facts important to the case have been overlooked."42
The account of Marlon Araque as to how they were assaulted by the group of accusedappellant was given in a categorical, convincing and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?

A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you
know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and
Bonifacio.
Q Now if these persons [are] inside the courtroom, could you identify them?
A They (sic) are only two persons but the three persons is (sic) not around.
Q Could you please point to this Honorable Court who are these two persons in side the
courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as]
Agapito Listerio and Samson dela Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you recall where
were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?

A Yes, sir.
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir "Hinarang po kami."
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these
persons?
A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe thats why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?

A I cannot recall, sir. Because I already painted (sic).


Q Do you know the reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall (sic) down?
xxx

xxx

xxx

A Yes, sir, because he was stabbed.


Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the lower right
portion and another on the middle portion of the left side at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead.

Q How about you, what did you do?


A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened to them?
A From what I know, they ran away.43
Persistent efforts by defense counsel to establish that the attack was provoked, by
eliciting from Marlon Araque an admission that he and the deceased had a drinking
spree with their attackers prior to the incident, proved futile as Marlon steadfastly
maintained on cross examination that he and his brother never drank liquor on that
fateful day:
Q After your work, was there an occasion when you drink something with your borther
(sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari
Store at 4:00 p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14,
1991 at 4:00 p.m. that you did not take a sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT

Ask another question.


Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre,
Marlon dela Torre and a certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to
Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.44
That Marlon was able to recognize the assailants can hardly be doubted because
relatives of the victim have a natural knack for remembering the faces of the attackers
and they, more than anybody else, would be concerned with obtaining justice for the
victim by the felons being brought to the face of the law. 45 Indeed, family members who
have witnessed the killing of a loved one usually strive to remember the faces of the
assailants.46 Marlons credibility cannot be doubted in this case because as a victim
himself and an eyewitness to the incident, it can be clearly gleaned from the foregoing
excerpts of his testimony that he remembered with a high degree of reliability the
identity of the malefactors.47
Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to
falsely testify against accused-appellant. Being a victim himself, he is expected to seek
justice. It is settled that if the accused had nothing to do with the crime, it would be
against the natural order of events to falsely impute charges of wrongdoing upon
him.48 Accused-appellant likewise insists on the absence of conspiracy and treachery in
the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do
not write down their lawless plans and plots. 49 Conspiracy may be inferred from the acts
of the accused before, during and after the commission of the crime which indubitably
point to and are indicative of a joint purpose, concert of action and community of
interest.50 Indeed
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. To establish the existence of a
conspiracy, direct proof is not essential since it may be shown by facts and
circumstances from which may be logically inferred the existence of a common design
among the accused to commit the offense charged, or it may be deduced from the
mode and manner in which the offense was perpetrated.51
More explicitly

conspiracy 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. Previous agreement to commit a
crime is not essential to establish a conspiracy, it being sufficient that the condition
attending to its commission and the acts executed may be indicative of a common
design to accomplish a criminal purpose and objective. If there is a chain of
circumstances to that effect, conspiracy can be established.52
Thus, the rule is that conspiracy must be shown to exist by direct
or circumstantial evidence, as clearly and convincingly as the crime itself. 53 In the
absence of direct proof thereof, as in the present case, it may be deduced from
the mode, method, and manner by which the offense was perpetrated, or inferred from
the acts of the accused themselves when such acts point to a joint purpose and design,
concerted action and community of interest. 54 Hence, it is necessary that a conspirator
should have performed some overt acts as a direct or indirect contribution in the
execution of the crime planned to be committed. The overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of moral
assistance to his con-conspirators by being present at the commission of the crime or by
exerting moral ascendancy over the other co-conspirators.55
Conspiracy transcends mere companionship, it denotes an intentional participation in
the transaction with a view to the furtherance of the common design and
purpose.56 "Conspiracy to exist does not require an agreement for an appreciable period
prior to the occurrence.57 From the legal standpoint, conspiracy exists if, at the time of
the commission of the offense, the accused had the same purpose and were united in its
execution."58 In this case, the presence of accused-appellant and his colleagues, all of
them armed with deadly weapons at the locus criminis, indubitably shows their criminal
design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and his cohorts
blocked the path of the victims and as a group attacked them with lead pipes and
bladed weapons. Accused-appellant and his companions acted in concert during the
assault on the victims. Each member of the group performed specific and coordinated
acts as to indicate beyond doubt a common criminal design or purpose. 59 Thus, even
assumingarguendo that the prosecution eyewitness may have been unclear as to who
delivered the fatal blow on the victim, accused-appellant as a conspirator is equally
liable for the crime as it is unnecessary to determine who inflicted the fatal wound
because in conspiracy, the act of one is the act of all.60
As to the qualifying circumstances here present, the treacherous manner in which
accused-appellant and his group perpetrated the crime is shown not only by the sudden
and unexpected attack upon the unsuspecting and apparently unarmed victims but also
by the deliberate manner in which the assault was perpetrated. In this case, the
accused-appellant and his companions, all of them armed with bladed weapons and lead
pipes, blocked (hinarang) the path of the victims effectively cutting off their escape. 61 In
the ensuing attack, the deceased was stabbed three (3) times from behind by a sharp,
pointed and single-bladed instrument like a kitchen knife,balisong or similar
instrument62 while Marlon Araque sustained lacerated wounds in the head caused by
blows inflicted by lead pipes as well as stab wounds on the shoulder and forearm which
were caused by a sharp object like a knife.63

It must be noted in this regard that the manner in which the stab wounds were inflicted
on the deceased were clearly meant to kill without posing any danger to the malefactors
considering their locations and the fact that they were caused by knife thrusts starting
below going upward by assailants who were standing behind the victim. 64Treachery is
present 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.65 That circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of superior strength on
account of the fact that accused-appellant and his companions were not only
numerically superior to the victims but also because all of them, armed with bladed
weapons and lead pipes, purposely used force out of proportion to the means of defense
available to the persons attacked. However, this aggravating circumstance is already
absorbed in treachery.66 Furthermore, although alleged in the information, evident
premeditation was not proved by the prosecution. In the light of the finding of
conspiracy, evident premeditation need not be further appreciated, absent concrete
proof as to how and when the plan to kill was hatched or what time had elapsed before
it was carried out.67
In stark contrast to the evidence pointing to him as one of the assailants of the victims,
accused-appellant proffers the defense of alibi. At the risk of sounding trite, it must be
remembered that alibi is generally considered with suspicion and always received with
caution because it can be easily fabricated.68 For alibi to serve as a basis for acquittal,
the accused must establish that: a.] he was present at another place at the time of the
perpetration of the offense; and b.] it would thus be physically impossible for him to
have been at the scene of the crime.69
Suffice it to state that accused-appellant failed to discharge this burden. The positive
identification of the accused as one of the perpetrators of the crime by the prosecution
eyewitness, absent any showing of ill-motive, must prevail over the weak and obviously
fabricated alibi of accused-appellant.70 Furthermore, as aptly pointed out by the trial
court "[t]he place where the accused was at the time of the killing is only 100 meters
away. The distance of his house to the place of the incident makes him physically
possible to be a participant in the killing [of Jeonito] and [the] wounding of Marlon." 71
All told, an overall scrutiny of the records of this case leads us to no other conclusion
than that accused-appellant is guilty as charged for Murder in Criminal Case No. 915842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated
Homicide, the trial court convicted accused-appellant of Attempted Homicide only on the
basis of Dr. Manimtims testimony that none of the wounds sustained by Marlon Araque
were fatal.
The reasoning of the lower court on this point is flawed because it is not the gravity of
the wounds inflicted which determines whether a felony is attempted or frustrated
but whether or not the subjective phase in the commission of an offense has been
passed. By subjective phase is meant "[t]hat 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 the prior acts, should result in the consummated
crime. From that time forward, the phase is objective. It may also be said to be that
period occupied by the acts of the offender over which he has control that period
between the point where he begins and the point where he voluntarily
desists. If between these two points the offender is stopped by reason of any cause
outside of his own voluntary desistance, the subjective phase has not been passed and
it is an attempt. If he is not so stopped but continues until he performs the last act, it is
frustrated."72
It must be remembered that a felony is frustrated when: 1.] the offender has performed
all the acts of execution which would produce the felony; 2.] the felony is not produced
due to causes independent of the perpetrators will. 73 On the other hand, in an
attempted felony: 1.] the offender commits overt acts to commence the perpetration of
the crime; 2.] he is not able to perform all the acts of execution which should produce
the felony; and 3.] his failure to perform all the acts of execution was due to some cause
or accident other than his spontaneous desistance. 74 The distinction between an
attempted and frustrated felony was lucidly differentiated thus in the leading case
of U.S. v. Eduave:75
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 the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it cannot 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 crime and the moment when all 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.
To put it another way, in case of an attempt the offender never passes the subjective
phase of the offense. He is interrupted and compelled to desist by the intervention of
outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is completely
passed. Subjectively the crime is complete. Nothing interrupted the offender while he
was passing through the subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the offender. He did all
that was necessary to commit the crime. If the crime did not result as a consequence it
was due to something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines whether the
infliction of injuries should be punished as attempted or frustrated murder, homicide,
parricide or consummated physical injuries.76Homicidal intent must be evidenced by acts
which at the time of their execution are unmistakably calculated to produce the death of

the victim by adequate means.77 Suffice it to state that the intent to kill of the
malefactors herein who were armed with bladed weapons and lead pipes can hardly be
doubted given the prevailing facts of the case. It also can not be denied that the crime is
a frustrated felony not an attempted offense considering that after being stabbed and
clubbed twice in the head as a result of which he lost consciousness and fell, Marlons
attackers apparently thought he was already dead and fled.
An appeal in a criminal case throws the whole case wide open for review 78 and the
reviewing tribunal can correct errors, though unassigned in the appealed judgement 79 or
even reverse the trial courts decision on the basis of grounds other than those that the
parties raised as errors.80 With the foregoing in mind, we now address the question of
the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that

ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of
the facts of the case, may impose upon the person guilty of the frustrated crime of
parricide, murder or homicide, defined and penalized in the preceding articles, a penalty
lower by one degree than that which should be imposed under the provisions of article
50.81
The courts, considering the facts of the case, may likewise reduce by one degree the
penalty which under article 51 should be imposed for an attempt to commit any of such
crimes.
The penalty for Homicide is reclusion temporal82 thus, the penalty one degree lower
would be prision mayor.83With the presence of the aggravating circumstance of abuse of
superior strength and no mitigating circumstances, the penalty is to be imposed in its
maximum period.84 Prision mayor in its maximum period ranges from ten (10) years and
one (1) day to twelve (12) years. Applying further the Indeterminate Sentence Law, 85 the
minimum of the imposable penalty shall be within the range of the penalty next lower in
degree, i.e. prision correccional in its maximum period which has a range of six (6)
months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made by the trial
court with regard to the civil aspect of the case for the death of Jeonito Araque and the
injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only substantiated and
proven expenses or those which appear to have been genuinely incurred in connection
with the death, wake or burial of the victim will be recognized by the courts. 86 In this
case, the expenses incurred for the wake, funeral and burial of the deceased are
substantiated by receipts.87 The trial courts award for actual damages for the death of
Jeonito Araque should therefore be affirmed.
In line with current jurisprudence, 88 the award of P50,000.00 as civil indemnity ex
delicto must also be sustained as it requires no proof other than the fact of death of the
victim and the assailants responsibility therefor. 89 The award for moral damages for the
pain and sorrow suffered by the victims family in connection with his untimely death
must likewise be affirmed. The award is adequate, reasonable and with sufficient basis

taking into consideration the anguish and suffering of the deceaseds family particularly
his mother who relied solely upon him for support. 90 The award of exemplary damages
should likewise be affirmed considering that an aggravating circumstance attended the
commission of the crime.91
The trial court, however, correctly ignored the claim for loss of income or earning
capacity of the deceased for lack of factual basis.1wphi1 The estimate given by the
deceaseds sister on his alleged income as a pre-cast businessman is not supported by
competent evidence like income tax returns or receipts. It bears emphasizing in this
regard that compensation for lost income is in the nature of damages 92 and as such
requires due proof thereof.93 In short, there must be unbiased proof of the deceaseds
average income.94 In this case, the victims sister merely gave an oral, self-serving and
hence unreliable statement of her deceased brothers income.
As for the awards given to Marlon Araque, the award for actual damages must be
affirmed as the same is supported by documentary evidence. 95 With regard to moral and
exemplary damages, the same being distinct from each other require separate
determination.96 The award for moral damages must be struck down as the victim
himself did not testify as to the moral suffering he sustained as a result of the assault on
his person. For lack of competent proof such an award is improper. 97 The award for
exemplary damages must, however, be retained considering that under Article 2230 of
the Civil Code, such damages may be imposed "when the crime is committed with one
or more aggravating circumstances."98
Finally, this Court has observed that the trial court did not render judgment against
accused Samson dela Torre, notwithstanding that he was arraigned and pleaded not
guilty to both charges. Under the circumstances, he should be deemed to have been
tried in absentia and, considering the evidence presented by the prosecution against
him, convicted of the crime charged together with appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal
Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case
No. 91-5843 of Frustrated Homicide and is sentenced to suffer an indeterminate
penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and
One (1) Day of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of
Makati City, which is directed to render judgment based on the evidence against
Samson dela Torre y Esquela.
G.R. No. 135022

July 11, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
BIENVENIDO DELA CRUZ, accused-appellant.
DAVIDE, JR., C.J.:

A man descends into the depths of human debasement when he inflicts his lechery upon
a minor, and all the more when he imposes such lasciviousness upon a woman whose
capacity to give consent to a sexual union is diminished, if not totally lacking. Such is
the case of Jonalyn Yumang (hereafter JONALYN).
Upon a complaint1 dated 5 July 1996 signed by JONALYN with the assistance of her aunt
Carmelita Borja, two informations were filed by the Office of the Provincial Prosecutor
before the Regional Trial Court of Malolos, Bulacan, charging Bienvenido Dela Cruz
(hereafter BIENVENIDO) with rape allegedly committed on 3 and 4 July 1996. The
informations were docketed as Criminal Cases Nos. 1274-M-96 and 1275-M-96. The
accusatory portion of the information docketed as Criminal Case No. 1275-M-96, which is
the subject of this appellate review, reads:
That on or about the 3rd day of July 1996, in the Municipality of Calumpit, Province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused [Bienvenido dela Cruz @ Jun] did then and there wilfully,
unlawfully and feloniously with lewd design have carnal knowledge of one Jonalyn
Yumang y Banag, a mentally deficient female person, against her will and without
her consent.
Contrary to law.2
Upon arraignment on 14 October 1996, BIENVENIDO entered a plea of not guilty. 3 The
cases were consolidated, and joint trial on the merits ensued thereafter.
When JONALYN was presented as its first witness, the prosecution sought to obtain from
the trial court an order for the conduct of a psychiatric examination on her person to
determine her mental and psychological capability to testify in court. The purpose was
that should her mental capacity be found to be below normal, the prosecution could
propound leading questions to JONALYN. The defense, through Atty. Jesus M. Pamintuan,
vigorously opposed the prosecution's manifestation. Nonetheless, the trial court allowed
the prosecutor to conduct direct examination on JONALYN so that if in its perception she
would appear to be suffering from mental deficiency, the prosecutor could be permitted
to ask leading questions. JONALYN was then made to identify her signature in her sworn
statement and to identify the accused, and was asked about her personal
circumstances. Thereafter, noticing that JONALYN had difficulty in expressing herself, the
trial court decided to suspend the proceedings to give the prosecution sufficient time to
confer with her.4
At the next hearing, the trial court allowed the prosecution to put on the witness stand
Dr. Cecilia Tuazon, Medical Officer III of the National Center for Mental Health,
Mandaluyong City. Dr. Tuazon testified that she conducted a psychiatric examination on
JONALYN on 12 July 1996. She found that JONALYN was suffering from a moderate level
of mental retardation and that although chronologically the latter was already 20 years
of age (at the time of the examination), she had the mental age of an 8-year-old child
under the Wechsler Adult Intelligence Scale. Dr. Tuazon also found that JONALYN could
have attained a higher degree of intelligence if not for the fact that she was unschooled
and no proper motivation was employed on her, and that she had the capacity to make
her perception known to others. She, however, observed that she had to "prompt"
JONALYN most of the time to elicit information on the sexual harassment incident. She

then narrated that JONALYN was able to relate to her that she (JONALYN) was
approached by a tall man named Jun-Jun who led her to a house that supposedly
belonged to her cousin, and that Jun-Jun disrobed JONALYN and raped her twice. 5
After said testimony or on 11 March 1997, the trial court issued an order 6 allowing
leading questions to be propounded to JONALYN in accordance with Section 10(c), Rule
132 of the Rules on Evidence.7 Thus, JONALYN took the witness stand. She again
identified her signature and that of her aunt on her Sinumpaang Salaysay. She also
identified BIENVENIDO as the person against whom she filed a complaint for rape. She
declared in open court that BIENVENIDO raped her twice inside the house of a certain
Mhel located at Barangay Gatbuca, Calumpit, Bulacan. She stated that BIENVENIDO
placed himself on top of her and inserted his private part into her womanhood.8
Dr. Edgardo Gueco, Chief and Medico-Legal Officer of the Philippine National Police
Crime Laboratory, Camp Olivas, Pampanga, testified that he examined JONALYN on 8 July
1996, and the results of the examination were indicated in his Medico-Legal Report. 9 He
found that she was in "a non-virgin state physically," as her hymen bore deep fresh and
healing lacerations at 3, 8 and 11 o'clock positions. He then opined that the hymenal
lacerations were sustained a week before the examination and, therefore, compatible
with the time the rapes were allegedly committed.10
Carmelita Borja, aunt of JONALYN, testified that on 5 July 1996, she accompanied
JONALYN to the Philippine National Police (PNP) Office in Calumpit, Bulacan, to lodge a
complaint against BIENVENIDO. With them were JONALYN's mother Conchita Yuson and
Barangay Councilman Roberto Dungo. Carmelita testified that in instituting this case,
their family incurred expenses amounting to P30,000.11
After the prosecution rested its case and formally offered its exhibits, the defense filed a
motion for leave of court to file a demurrer to evidence, which was granted. Thus, the
defense filed on 5 December 1997 a Demurrer to Evidence12 on the following grounds:
(a) That the court had no jurisdiction to take cognizance of the cases; and
(b) The presumption of accused's innocence had not even [sic] been overcome by
the prosecution due to the insufficiency of its evidence.
Expounding its theory, the defense first admitted that it could have moved to quash the
information but it did not because the complaint on which the information was based
was on its face valid, it having been signed by JONALYN as the offended party. However,
the undeniable truth is that JONALYN had no capacity to sign the same considering her
mental deficiency or abnormality. The assistance extended to JONALYN by her aunt
Carmelita Borja did not cure the defect, as the enumeration in Article 344 of the Revised
Penal Code of the persons who could file a complaint for rape is exclusive and
successive and the mother of JONALYN was still very much alive.
The defense also insisted on assailing the competency of JONALYN as a witness. It
claimed that JONALYN's testimony, considering her mental state, was coached and
rehearsed. Worse, she was not only asked leading questions but was fed legal and
factual conclusions which she was made to admit as her own when they were in fact
those of the prosecution.

In its Order of 26 January 1998,13 the trial court denied the Demurrer to Evidence and set
the dates for the presentation of the evidence for the defense. However, BIENVENIDO
filed a Motion for Judgment, stating in part as follows:
[A]fter going over the Records and carefully analyzing the proceedings as
well as meticulously evaluating the evidence presented and offered [by] the
private complainant, in consultation with his parents, and assisted by undersigned
counsel, [he] had decided to submit the cases for judgment without the need
of presenting any evidence to explain his terse PLEA OF NOT GUILTY to the
charges upon his arraignment.14
Noting this new development, the trial court, in its Order of 17 February 1998,
considered the case submitted for decision.15
In its Joint Decision of 3 April 1998,16 the trial court convicted BIENVENIDO of the crime
of rape in Criminal Case No. 1275-M-96, but acquitted him in Criminal Case No. 1274-M96 for insufficiency of evidence. While conceding that JONALYN's narration of how she
was sexually abused by BIENVENIDO was not "detailed," the trial court, nonetheless,
concluded that it was candidly related by one who had the mental age of an 8-year-old
child. The trial court was convinced that JONALYN was able to show in her "own peculiar
way" that she was indeed raped by BIENVENIDO on 3 July 1996. Finally, the trial court
ruled that BIENVENIDO's culpability was further bolstered by his choice not to offer any
evidence for his defense despite ample opportunity to do so. Accordingly, it sentenced
him to suffer the penalty of reclusion perpetua and to pay JONALYN the amount
of P60,000 by way of civil indemnity.
In his Appellant's Brief,17 BIENVENIDO asserts that the trial court committed the
following errors:
1. ... in having taken the fatally defective criminal complaint for a valid conferment
upon it of jurisdiction to try and dispose of said two (2) charges of rape.
2. ... in having accepted as competent the mentally deficient private complainant
even without first requiring any evidence of her capacity as such a witness.
3. ... in having considered the narration read to the complaining witness from
prepared statements and asked of her simply to confirm as true, as her own.
4. ... in having given full credence and weight to complainant's conclusions of facts
merely put to her mouth by leading questions of the prosecutor.
5. ... in having convicted the accused-appellant in Criminal Case No. 1275-M-96,
but acquitting in Criminal Case No. 1274-M-96, on the basis of private
complainant's purported sworn versions supposedly given in both charges.
BIENVENIDO reiterates the issues he raised in his Demurrer to Evidence. He assails the
competency of JONALYN as signatory to the complaint she filed. He adds that the defect
in the complaint was not cured by his failure to interpose a motion to quash nor by the
assistance lent by JONALYN's aunt, which contravened Article 344 of the Revised Penal
Code. Consequently, BIENVENIDO asserts that the trial court had no jurisdiction to try
the case.

BIENVENIDO also stresses the incompetency of JONALYN as a trial witness for the reason
that the prosecution failed to prove her competency. Further, JONALYN was merely asked
to affirm the legal and factual conclusions of the prosecution which evinced quite clearly
the girl's lack of comprehension of the court proceedings and the nature of her oath.
Besides, her statements concerning the alleged sexual penetration were elicited a
month after her initial offer as a witness, which reinforces the rehearsed and coached
nature of her testimony.
Finally, he wonders why he was convicted in Criminal Case No. 1275-M-96 but acquitted
in Criminal Case No. 1274-M-96 when it was a joint trial and the evidence was the same.
He insists that he should also be acquitted in the case at bar.
In the Appellee's Brief,18 the Office of the Solicitor General (OSG) counters that the trial
court had jurisdiction over the case, since the complaint and information filed were
valid. JONALYN's mental retardation does not render her incompetent for initiating the
prosecution of the crime committed against her and for testifying in court. If minors are
allowed not only to initiate the prosecution of offenses under Article 344 of the Revised
Penal Code and Section 5, Rule 110 of the 1985 Rules of Criminal Procedure, but also to
testify under the Rules on Evidence, JONALYN, who had the mentality of an 8-year-old
child, was competent to sign the criminal complaint and to be a witness in court.
JONALYN's competency as a court witness was aptly proved when she was able to
answer the leading questions asked of her as allowed by Section 10(c), Rule 132 of the
Rules on Evidence. Moreover, the OSG asseverates that JONALYN's testimony on the fact
of rape is corroborated by medical and physical evidence. As to BIENVENIDO's quandary
that he should be acquitted also in this case, it is convinced that he should have been
convicted for two counts of rape, as JONALYN expressly testified that she was raped
twice by BIENVENIDO. Finally, the OSG seeks an award of moral damages in the amount
of P50,000 for JONALYN, as well as a reduction of the award of civil indemnity to P50,000
in conformity with current jurisprudence.
We shall discuss the issues in seriatim.
I. Validity of the Complaint for Rape
We agree with the disputation of the OSG that the trial court validly took cognizance of
the complaint filed by JONALYN. The pertinent laws existing at the time the crimes were
committed were Article 344 of the Revised Penal Code (prior to its amendment by R.A.
No. 835319 otherwise known as "The Anti-Rape Law of 1997," which took effect on 22
October 199720) and Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure.
Article 344 of the Revised Penal Code provides:
Article 344. Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. --

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be


prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be.

Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure states:


Section 5. Who must prosecute criminal actions.All criminal actions either
commenced by complaint or by information shall be prosecuted under the
direction and control of the fiscal. However, in Municipal Trial Courts or Municipal
Circuit Trial Courts when there is no fiscal available, the offended party, any peace
officer or public officer charged with the enforcement of the law violated may
prosecute the case. This authority ceases upon actual intervention of the fiscal or
upon elevation of the case to the Regional Trial Court.

The offenses of seduction, abduction, rape or acts of lasciviousness shall not be


prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be. In case the offended
party dies or becomes incapacitated before she could file the complaint and has
no known parents, grandparents, or guardian, the State shall initiate the criminal
action in her behalf.
The offended party, even if she were a minor, has the right to initiate the
prosecution for the above offenses, independently of her parents, grandparents or
guardian, unless she is incompetent or incapable of doing so upon grounds other
than her minority. Where the offended party who is a minor fails to file the
complaint, her parents, grandparents or guardian may file the same. The right to
file the action granted to the parents, grandparents or guardians shall be exclusive
of all other persons and shall be exercised successively in the order herein
provided, except as stated in the immediately preceding paragraph.
A complaint of the offended party or her relatives is required in crimes against chastity
out of consideration for the offended woman and her family, who might prefer to suffer
the outrage in silence rather than go through with the scandal of a public trial. The law
deems it the wiser policy to let the aggrieved woman and her family decide whether to
expose to public view or to heated controversies in court the vices, fault, and disgraceful
acts occurring in the family.21
It has been held that "[w]hen it is said that the requirement in Article 344 (that there
shall be a complaint of the offended party or her relatives) is jurisdictional, what is
meant is that it is the complaint that starts the prosecutory proceeding. It is not the
complaint which confers jurisdiction on the court to try the case. The court's jurisdiction
is vested in it by the Judiciary Law."22
The complaint in the instant case has complied with the requirement under the Revised
Penal Code and the Rules of Criminal Procedure, which vest upon JONALYN, as the
offended party, the right to institute the criminal action. As signed by JONALYN, the
complaint started the prosecutory proceeding. The assistance of JONALYN's aunt, or
even of her mother, was a superfluity. JONALYN's signature alone suffices to validate the
complaint.
We agree with the OSG that if a minor under the Rules of Court can file a complaint for
rape independently of her parents, JONALYN, then 20 years of age who was found to

have the mentality of an 8-year-old girl, could likewise file the complaint independently
of her relatives. Her complaint can be rightfully considered filed by a minor.
The overriding intention of BIENVENIDO is to challenge the validity of the complaint by
assailing the competency of JONALYN to file the complaint. But even he admits in his
Demurrer to Evidence that the complaint is proper and valid on its face for which reason
he did not move to quash the information. Thus, even he admits and recognizes the
futility of his argument.
II. Competence of JONALYN to Testify
The determination of the competence of witnesses to testify rests primarily with the trial
judge who sees them in the witness stand and observes their behavior or their
possession or lack of intelligence, as well as their understanding of the obligation of an
oath.23
The prosecution has proved JONALYN's competency by the testimony of Dr. Tuazon. The
finding of the trial court, as supported by the testimony of Dr. Tuazon that JONALYN had
the understanding of an 8-year-old child, does not obviate the fact of her competency.
Its only effect was to consider her testimony from the point of view of an 8-year-old
minor. Even a mental retardate is not, per se, disqualified from being a
witness.24 JONALYN, who may be considered as a mental retardate but with the ability to
make her perceptions known to others, is a competent witness under Section 20 of Rule
130 of the Rules on Evidence.25
JONALYN's competency is also better established in the answers she gave under direct
examination relative to the harrowing defilement she suffered in the hands of
BIENVENIDO, thus:
Q
And the nature of your complaint was that you were abused or you were
raped by the herein accused Bienvenido de la Cruz y Santiago, is that correct?
A

Yes, sir.

...
Q
And do you know in what place where you raped by the accused,
Bienvenido dela Cruz y Santiago?
A

Inside the house, sir.

Whose house?

In the house of Mhel, sir.26

Q
How many times were you raped by the herein accused Bienvenido dela
Cruz y Santiago alias Jun Jun?
A

Twice, sir.

Court: Where?
Fiscal: Where?
Witness: On top of the wooden bed, sir.27
Q
You said you were raped twice by the herein accused, Bienvenido dela Cruz
alias Jun-Jun on a "papag" inside the house of Mhel at Barangay Gatbuca,
Calumpit, Bulacan, how did Jun Jun the herein accused rape[] you?
Court: On the first time?
A

He layed [sic] me to bed, sir.

After you were layed [sic] on the bed what happened next?

He went on top of me, sir.28

Q
Last time, you stated that the herein accused whom you called "Jun" laid
you on top of a bed and after that, he went on top of you. My question is, when he
went on top of you, what did he do to you, if any?
A:

Pumaloob sa akin.29

Q
Now, when the accused, which you called "Jun", pumaloob sa iyo, what did
you feel at that time?
A

I felt a hard object, sir.

Q
Now since you said it [was] a hard object, you could now tell the Court,
what that hard object [was]?

I cannot remember.30

Public Prosecutor:
Q
When you said the last time around, you were asked about, what you mean
by "pumaloob siya sa akin" and then you said that there was a hard object
inserted and after that, the follow-up question was asked on you, you said you
cannot remember, what is that hard object, what do you mean when you say " I
cannot remember? "
Atty. Pamintuan:

Leading.
Court:
Witness may answer, subject to your objection.
Witness:
His private part was inserted in my private part, sir.31

Court: But there was an answer a while ago. Witness may answer.
Witness:
A

Yes, sir.

Public Pros.:
Q
And, when you say he did the same to you, he inserted his penis to your
vagina?
A

Yes, sir.

Public Pros.:
No further question, Your Honor.32
III. Credibility of JONALYN as a Witness
The foregoing narrative has established not only JONALYN's competency but also her
credibility. Moreover, considering her feeble mind, she could not have fabricated or
concocted her charge against BIENVENIDO. This conclusion is strengthened by the fact
that no improper motive was shown by the defense as to why JONALYN would file a case
or falsely testify against BIENVENIDO. A rape victim's testimony as to who abused her is
credible where she has absolutely no motive to incriminate and testify against the
accused.33 It has been held that 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 if she is not motivated solely by the desire to
have the culprit apprehended and punished.34
We, therefore, affirm the trial court's decision to lend full credence to the testimony of
JONALYN on the circumstances of the rape, thus:
In so few a word, complainant has made herself clear about the sexual
molestation she suffered in the hands of the accused. Plain and simple her
testimony may have been, unembellished, as it is, with details, yet, it is in its
simplicity that its credence is enhanced. Certainly, we cannot expect complainant,
in her present state of mind, to come out with a full account of her misfortune with
all its lurid details. That, to this Court, is simply beyond the reach of her enfeebled

mind. She came to talk on her sad plight from the viewpoint of an 8-year-old child,
and she must, by all means, be understood in that light.35
Absent any cogent reason warranting a disturbance of the findings of the trial court on
the credibility and competency of JONALYN, this Court has to give these findings utmost
respect, if not complete affirmation. Settled is the rule that the trial court's evaluation of
the testimonies of witnesses is accorded the highest respect, for it has an untrammeled
opportunity to observe directly the demeanor of witnesses on the stand and, thus, to
determine whether they are telling the truth.36
IV. Propriety of Propounding Leading Questions to JONALYN
We likewise agree with the trial court's conclusion that JONALYN's testimony should be
taken and understood from the point of view of an 8-year-old child. JONALYN's testimony
is consistent with the straightforward and innocent testimony of a child. Thus, the
prosecution's persistent, repetitious and painstaking effort in asking leading questions
was necessary and indispensable in the interest of justice to draw out from JONALYN's
lips the basic details of the grave crime committed against her by BIENVENIDO.
The trial court did not err in allowing leading questions to be propounded to JONALYN. It
is usual and proper for the court to permit leading questions in conducting the
examination of a witness who is immature; aged and infirm; in bad physical condition;
uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced;
unsophisticated; feeble-minded; of sluggish mental equipment; confused and agitated;
terrified; timid or embarrassed while on the stand; lacking in comprehension of
questions asked or slow to understand; deaf and dumb; or unable to speak or
understand the English language or only imperfectly familiar therewith. 37
The leading questions were neither conclusions of facts merely put into the mouth of
JONALYN nor prepared statements which she merely confirmed as true. The questions
were indeed carefully phrased and sometimes based on her Sinumpaang Salaysay to
make JONALYN understand the import of the questions. In the same vein, the
prosecution's referral to JONALYN's Sinumpaang Salaysay to refresh her memory was
also reasonable. The purpose of refreshing the recollection of a witness is to enable both
the witness and her present testimony to be put fairly and in their proper light before
the court.38
Thus, JONALYN's behavior merely conformed to Dr. Tuazon's clinical and expert
observation that JONALYN had to be "continuously and repetitiously prompted" so that
she could answer and recount a terrible experience. JONALYN's constant eyeball fixature
towards her aunt and mother does not by itself indicate coaching, in the face of a dearth
of other evidentiary bases that the latter did coach her. There was nothing in the
behavior of JONALYN which was indicative of her failure to understand the import of the
trial proceedings. Her identification of BIENVENIDO as her assailant is quite telling on
how simple, yet unassuming, her grasp of the situation was. Thus:
Stenographer:
Reading back the question.

Q
Because you understand that this was explained to you, I would like to read
to you particularly question number 3.
Tanong: Sino naman ang ibig mong idemanda?
Answer: Si Bienvenido dela Cruz y Santiago alias Jun Jun po.
Was this explain[ed] to you?
Atty. Pamintuan:
I stand correct[sic].
Witness:
Yes, sir.
Fiscal:
(to the witness)
Q
Now, this Bienvenido dela Cruz y Santiago alias Jun Jun, which was the
person whom you are filing the complaint of [sic], will you kindly look around to
this Court and tell us whether or not he is inside.
A

Yes, sir.

Would you mind to point him?

Interpreter:
Witness pointing to a man wearing orange T-shirt and when asked his name
answered Bienvenido dela Cruz.39
V. Sufficiency of Prosecution's Evidence
It is, therefore, beyond doubt that JONALYN's lone testimony, which was found to be
credible by the trial court, is enough to sustain a conviction. 40 At any rate, medical and
physical evidence adequately corroborated JONALYN's testimony. Time and again we
have held that the laceration of the hymen is a telling, irrefutable and best physical
evidence of forcible defloration.41
On the basis of the foregoing, we agree with the trial court's conviction of BIENVENIDO
under Criminal Case No. 1275-M-96. His acquittal under Criminal Case No. 1274-M-96 is,
at this point, beyond the review powers of this Court.
Since the information charges BIENVENIDO with simple rape only and no other
modifying circumstances has been proved, the penalty of reclusion perpetua, which is
the lesser of the penalties prescribed by Article 335 of the Revised Penal Code, as
amended by R.A. No. 7659, was correctly imposed by the trial court.

We rectify the error of the trial court in granting JONALYN the amount of P60,000 as civil
indemnity. In conformity with current jurisprudence, we hereby reduce it
to P50,000.42 An award of moral damages in the amount ofP50,000 is also just under the
circumstances.43
WHEREFORE, the decision of the Regional Trial Court, Branch 11, Malolos, Bulacan, in
Criminal Case No. 1275-M-96 finding accused-appellant BIENVENIDO DELA CRUZ guilty
of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua is
hereby AFFIRMED, with the modification that accused-appellant is ordered to pay the
victim JONALYN YUMANG civil indemnity in the reduced amount of P50,000 and moral
damages in the amount of P50,000.
Costs de oficio.
SO ORDERED.

G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,


vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and
allowed only attempted rape and consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation of the stages of execution of
rape by considering almost every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be adopted. The danger there is
that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and
punished as such. A mere strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the
offense were already present and nothing more was left for the offender to do, having
performed all the acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the female organ by the
male organ, however slight, was sufficient. The Court further held that entry of the labia
or lips of the female organ, even without rupture of the hymen or laceration of the
vagina, was sufficient to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt acts. 3 The inference that may
be derived therefrom is that complete or full penetration of the vagina is not required for
rape to be consummated. Any penetration, in whatever degree, is enough to raise the
crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into
the labia or lips of the female organ, even if there be no rupture of the hymen or
laceration of the vagina, to warrant a conviction for consummated rape. While the entry
of the penis into the lips of the female organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial
doctrinal bottom line is that touching must be inextricably viewed in light of, in relation
to, or as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked to the
penetration itself. The importance of the requirement of penetration, however slight,
cannot be gainsaid because where entry into the labia or the lips of the female genitalia
has not been established, the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been
committed either in its attempted or in its consummated stage; otherwise, no
substantial distinction would exist between the two, despite the fact that penalty-wise,
this distinction, threadbare as it may seem, irrevocably spells the difference between life

and death for the accused a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of life on the other. And,
arguing on another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape? Must our field of
choice be thus limited only to consummated rape and acts of lasciviousness since
attempted rape would no longer be possible in light of the view of those who disagree
with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and
sentenced by the court a quo to the extreme penalty of death, 5 hence this case before
us on automatic review under Art. 335 of the Revised Penal Code as amended by RA
7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in
the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel
Pamintuan, went down from the second floor of their house to prepare Milo chocolate
drinks for her two (2) children. At the ground floor she met Primo Campuhan who was
then busy filling small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As
Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko,
ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan
inside her children's room kneeling before Crysthel whose pajamas or "jogging pants"
and panty were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she
cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to
block his path. Corazon then ran out and shouted for help thus prompting her brother, a
cousin and an uncle who were living within their compound, to chase the
accused. 8Seconds later, Primo was apprehended by those who answered Corazon's call
for help. They held the accused at the back of their compound until they were advised
by their neighbors to call the barangay officials instead of detaining him for his misdeed.
Physical examination of the victim yielded negative results. No evident sign of extragenital physical injury was noted by the medico-legal officer on Crysthel's body as her
hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his
innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly
harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in
truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was in this fallen
position that Corazon chanced upon them and became hysterical. Corazon slapped him
and accused him of raping her child. He got mad but restrained himself from hitting
back when he realized she was a woman. Corazon called for help from her brothers to
stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo.
Vicente punched him and threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but Vicente followed him there.
Primo pleaded for a chance to explain as he reasoned out that the accusation was not

true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall
instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997
found him guilty of statutory rape, sentenced him to the extreme penalty of death, and
ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary
damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan.
He argues that her narration should not be given any weight or credence since it was
punctured with implausible statements and improbabilities so inconsistent with human
nature and experience. He claims that it was truly inconceivable for him to commit the
rape considering that Crysthel's younger sister was also in the room playing while
Corazon was just downstairs preparing Milo drinks for her daughters. Their presence
alone as possible eyewitnesses and the fact that the episode happened within the family
compound where a call for assistance could easily be heard and responded to, would
have been enough to deter him from committing the crime. Besides, the door of the
room was wide open for anybody to see what could be taking place inside. Primo insists
that it was almost inconceivable that Corazon could give such a vivid description of the
alleged sexual contact when from where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He asserts that the
absence of any external signs of physical injuries or of penetration of Crysthel's private
parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of
Corazon that she saw Primo with his short pants down to his knees kneeling before
Crysthel whose pajamas and panty were supposedly "already removed" and that Primo
was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory
rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3),
of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested,
thus raising the penalty, from reclusion perpetua to death, to the single indivisible
penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took
place, full penetration of the vaginal orifice is not an essential ingredient, nor is the
rupture of the hymen necessary; the mere touching of the external genitalia by the
penis capable of consummating the sexual act is sufficient to constitute carnal
knowledge. 10 But the act of touching should be understood here as inherently part of
the entry of the penis into the labias of the female organ and not mere touching alone of
the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if
the attacker's penis merely touched the external portions of the female genitalia were
made in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the victim's testimony
that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in
all likelihood reached the labia of her pudendum as the victim felt his organ on the lips

of her vulva, 12 or that the penis of the accused touched the middle part of her
vagina. 13 Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis
on the external layer of the victim's vagina, or the mons pubis, as in this case. There
must be sufficient and convincing proof that the penis indeed touched the labias or slid
into the female organ, and not merely stroked the external surface thereof, for an
accused to be convicted of consummated rape. 14 As the labias, which are required to
be "touched" by the penis, are by their natural situs or location beneath the mons pubis
or the vaginal surface, to touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that touching the labia majora or
the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the
clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia
majora or the outer lips of the female organ composed of the outer convex surface and
the inner surface. The skin of the outer convex surface is covered with hair follicles and
is pigmented, while the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the labia
minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to stroke the surface of the female organ.
Thus, a grazing of the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape. Absent any showing of the
slightest penetration of the female organ, i.e., touching of either labia of the pudendum
by the penis, there can be no consummated rape; at most, it can only be attempted
rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted
"touching of the female organ,"17 but has also progressed into being described as "the
introduction of the male organ into the labia of the pudendum," 18 or "the bombardment
of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of
the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge
its onus of proving that Primo's penis was able to penetrate Crysthel's vagina however
slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that she saw the
inter-genital contact between Primo and Crysthel. When asked what she saw upon
entering her children's room Corazon plunged into saying that she saw Primo poking his
penis on the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and Crysthel, the former was
allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is
pinning down the victim, while his right hand is holding his penis and his left hand
is spreading the legs of the victim).

It can reasonably be drawn from the foregoing narration that Primo's kneeling position
rendered an unbridled observation impossible. Not even a vantage point from the side of
the accused and the victim would have provided Corazon an unobstructed view of
Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia
minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his
movements from Corazon's sight, not to discount the fact that Primo's right hand was
allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of
the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she
claims that she saw what was done to her daughter. It is required that her claim be
properly demonstrated to inspire belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution
but to run roughshod over the constitutional right of the accused to be presumed
innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention
despite her timely appearance, thus giving her the opportunity to fully witness his
beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to
remain where he is and persist in satisfying his lust even when he knows fully well that
his dastardly acts have already been discovered or witnessed by no less than the
mother of his victim. For, the normal behavior or reaction of Primo upon learning of
Corazon's presence would have been to pull his pants up to avoid being caught literally
with his pants down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to
the question of the court
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No."
Thus
Q: But did his penis penetrate your organ?
A: No, sir.

20

This testimony alone should dissipate the mist of confusion that enshrouds the question
of whether rape in this case was consummated. It has foreclosed the possibility of
Primo's penis penetrating her vagina, however slight. Crysthel made a categorical
statement denying penetration, 27 obviously induced by a question propounded to her
who could not have been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)year old child, whose vocabulary is yet as underdeveloped as her sex and whose
language is bereft of worldly sophistication, an adult interpretation that because the
penis of the accused touched her organ there was sexual entry. Nor can it be deduced

that in trying to penetrate the victim's organ the penis of the accused touched the
middle portion of her vagina and entered the labia of her pudendum as the prosecution
failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22Corazon
did not say, nay, not even hint that Primo's penis was erect or that he responded with an
erection. 23 On the contrary, Corazon even narrated that Primo had to hold his penis with
his right hand, thus showing that he had yet to attain an erection to be able to penetrate
his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied
by the child's own assertion that she resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but just felt "not happy"
about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko,
aray ko!" In cases where penetration was not fully established, the Court had anchored
its conclusion that rape nevertheless was consummated on the victim's testimony that
she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina,
or the labia minora was already gaping with redness, or the hymenal tags were no
longer visible. 26 None was shown in this case. Although a child's testimony must be
received with due consideration on account of her tender age, the Court endeavors at
the same time to harness only what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Thus, we have to conclude that even on the
basis of the testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.1wphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there
were no external signs of physical injuries on complaining witness' body to conclude
from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena
explained, although the absence of complete penetration of the hymen does not negate
the possibility of contact, she clarified that there was no medical basis to hold that there
was sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both
should in all respects complement each other; otherwise, to rely on the testimonial
evidence alone, in utter disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results. It is necessary to
carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was consummated.
Failing in this, the thin line that separates attempted rape from consummated rape will
significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when
the offender commences the commission of rape directly by overt acts, and does not
perform all the acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance. All the elements of
attempted rape and only of attempted rape are present in the instant case, hence,
the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of
death for the offense charged, which is statutory rape of a minor below seven (7) years.
Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the

absence of any mitigating or aggravating circumstance, the maximum of the penalty to


be imposed upon the accused shall be taken from the medium period of reclusion
temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to
seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is from six (6)
years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay
damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to
an indeterminate prison term of eight (8) years four (4) months and ten (10) days
of prision mayor medium as minimum, to fourteen (14) years ten (10) months and
twenty (20) days ofreclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.1wphi1.nt

G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
CEILITO ORITA alias "Lito," defendant-appellant.
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 T-shirt. 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. L37400, 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. 5253, 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 medicolegal 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.

G.R. No. 153559

June 8, 2004

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".2 Trial on the merits then ensued.
As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert
Agbanlog, Jimmy Wabe, Gerry Bullanday,3 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.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. 6 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.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. 8 The surviving victims,
Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel
injuries.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. 14 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.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, 16 the
dispositive portion of which states:
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.18 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.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. 23 As far
back as the case of Co Tao v. Court of Appeals24we 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.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. 28 There being no conspiracy, only Antonio Comadre
must answer for the crime.
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"29 as an aggravating circumstance. Since both attendant circumstances can
qualify the killing to murder under Article 248 of the Revised Penal Code, 30 we should
determine which of the two circumstances will qualify the killing in this case.
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 31 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.32
Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294 33 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. 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.)
xxx

xxx

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 35 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.
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 title36 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.37 Moreover, Section 2 of R.A. 8294,38 subtitled: "Section 3. Unlawful
Manufacture, Sale, Acquisition, Disposition or Possession of Explosives", clearly refers to
theunlawful manufacture, sale, or possession of explosives.
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. 42Applying 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.
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 43 the award of civil
indemnity is proper. However, the actual 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. L-16(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.

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