Crim Cases Art 9

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-45471 and L-45472
June 15, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
FRANCISCO MERCADO, defendant-appellee.
Office of the Solicitor-General Tuason for appellant.
Mariano Sta. Romana for appellee.
DIAZ, J.:
This is an appeal by the prosecution form an order of the Court of First Instance of
Pampanga whereby said court declared itself without jurisdiction to take cognizance of and
decided two criminal cases pending before it, for theft of large cattle, against the appellee
Francisco Mercado, on the ground that, although the stolen animals were afterwards brought
by the appellee to the municipality of Candaba, Pampanga, where they were found in his
possession, said crimes had taken place and had been committed in the municipality of
Gapan, of the Province of Nueva Ecija.
The informations which gave rise to the criminal cases above-mentioned are of the following
tenor:
That on or about the 21st day of June, 1936, in the municipality of Candaba,
Province of Pampanga, Philippine Islands, and within the jurisdiction of this court, the
abovenamed accused, Francisco Mercado, with intent of gain, did, then and there,
voluntarily, maliciously, illegally and criminally, take, steal, and carry away two male
carabaos branded as ................. and ................... with certificates Nos. 7361553,
dated at Pearanda, Nueva Ecija, on October 29, 1929 and 6993322 dated at
Gapan, Nueva Ecija, on June 3, 1933, respectively, both belonging to Pedro A.
Ladores, worth sixty pesos (P60) each and to his damage and prejudice in the total
amount of P120. The commission of the crime having been commenced at Gapan,
Nueva Ecija, and consummated at the municipality of Candaba, Pampanga, and
without the knowledge and consent of the owner.
That on or about the 21st day of June 1936, in the municipality of Candaba, Province
of Pampanga, Philippine Islands, and within the jurisdiction of this court, the
abovenamed accused, Francisco Mercado, with intent of gain, but without the use of
violence upon persons nor force upon things, did, then and there, voluntarily,
maliciously illegally and criminally take, steal, and carry away a male carabao
branded as .............. with certificate No. 6696261, dated at Pearanda, Nueva Ecija,
on April 11, 1928, valued at ninety pesos (P90), owned by Leon Ladores, without his
knowledge and consent, and to his damage and prejudice in the said sum of P90.
The commission of the crime having been commenced at Gapan, Nueva Ecija, and
completed at the municipality of Candaba, Pampanga.
The foregoing informations were filed by the provincial fiscal of Pampanga in the Court of
First Instance of said province after receiving the report of the preliminary inquiries made,
upon complaint, by the justice of the peace court of Candaba, Pampanga, where the case
originated. The appellee waived his right to a preliminary investigation and asked that the
two cases be remanded to the Court of First Instance for trial and final judgment.
Briefly, the question raised by the prosecution on appeal is the following:
Has the Court of First Instance of Pampanga jurisdiction to try and decide the two cases in
question, it being alleged in the informations by which they were commenced that the
accused stole the carabaos described therein in Gapan, in the Province of Nueva Ecija,
which is beyond the jurisdiction of the court, in order to bring them, as he in fact did
afterwards, to Candaba, Pampanga, where they were found in his possession?
The lower court upheld the negative, being of the opinion that the appellee committed the
two thefts in question no in the Province of Pampanga over which its jurisdiction is exclusive
of the Province of Nueva Ecija, but in the latter province.
In criminal proceedings, the rule is that one can not be held to answer for any crime
committed by him except in the jurisdiction where it was committed. Said rule is based on the
legal provision which prescribes the essential requisites of a good complaint or information,
one of which is the allegation that the crime was committed within the jurisdiction of the court
where the complaint or information is filed and that said court has authority to try it. (Sec. 6,
General Orders, No. 58.) As was said in the case of United States vs. Cunanan (26 Phil.,
3760, the jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal
cases, is limited to certain well-defined territory, so that they can not take jurisdiction of
persons charged with an offense alleged to have been committed outside of that limited
territory. Appellant, however, contends that there are crimes which are considered as
continuing, as for instance those whose commission does not terminate where the acts of
execution began, or where they are consummated for the first time, because the execution
or consummation of those crimes continues successively and uninterruptedly until stopped
by a cause independent of the will of the offender. It alleges that certain cases of abduction,
like that of United States vs. Bernabe (23 Phil., 154), partake of this nature because they are
partly executed in one province and partly in another. We can not, in truth, find any similarity
between the Bernabe case and those now under consideration. It was held in that case that
the carrying away of the offended party took place in Manila and that the unchaste designs,
an essential element of abduction, were not made manifest or begun until the offender and
his victim were already in Rizal. For this reason, although the offense was commenced in
Manila, it was held that it was consummated only in said province. Neither do the present
cases bear any similarity with those of estafa which appear in 23 Phil., 207 (U.S. vs. Cardell)
and 27 Phil., 408 (U.S. vs. Santiago), because although the accused in said cases
appropriated their collections in Cebu and in Iloilo. respectively, in compliance with the order
which they had previously received fro their principals, however, they expressly and formally
bound themselves to render an accounting or to deliver their collections in Manila,
wherefore, it could correctly be held in said cases that the crimes committed by the accused
were triable in the City of Manila. To sustain its theory, the appellant invokes the commentary
found on pages 192 and 193 of Volume 16 of Corpus Juris and what Wharton has to say in
his criminal law (11th edition, page 1389), and what Clark, in turn, states in his commentary
on Criminal Law, pages 366, in the following language:
PAR. 1116. Thief carrying goods from county to county may be convicted in either
country. Where a larceny has been committed in one country and the thief
removes the stolen property into another county (animus furandi) he is, in the eye of
the law, guilty of larceny in every country into which the subject may thus have been
carried. The rule applied as well to property which is made the subject of larceny by
statute, as to property which is made the subject of larceny by the common law. (2
Wharton's Criminal Law, 11th ed., p. 1389.)
Again, property may be stolen in one state, and brought into another. Can the latter
state punish the thief? It has been held from the earliest times that if a thief steals
goods in one country, and brings them into another, he may be indicted in either,
because his unlawful carrying in the second is deemed a continuance of the unlawful
taking, and so all the essential elements of larceny exist in the second. (Clark's
Criminal Law, p. 366.)
We do not believe that these American precedents, much as they are entitled to our respect,
apply to the cases in question; for, according to them, "to constitute larceny the first essential
is that the thing which is the subject of the crime should be taken from the possession of the
owner into the possession of the thief, and be carried away by him, for until this is done there
is no larceny, however definite may be the intent of the prospective thief to commit the theft,
and however elaborate his preparations for doing so."
(36 C.J., 747.)
To constitute larceny, there must be a taking and a carrying away of personal
property with intent to steal it. Taking without carrying away is not larceny. (Com. vs.
Adams, 73 Mass., "1 Gra" 43, 44.)" This is so because their definition of larceny is
the following:
"Larceny at common law may be defined to be the taking and carrying away from any place,
at any time, of the personal property of another, without his consent, by a person not entitled
to the possession thereof, feloniously, with intent to deprive the owner of his property
permanently, and to convert it to the use of the taker or of some person other than the
owner." (36 C.J., 734.) It may be inferred from the foregoing definition of "larceny" that the
essential elements of this crime are in a sense distinct from those of theft as the latter
offense is known in this jurisdiction.
In larceny, except in the State of Texas (36 Corpus Juris, 748), it is not only essential that
there must be a taking away or abstracting of personal property belonging to another, but the
person taking must also carry it away. In the aforesaid State, the last requisite is not
indispensable. But in all the other States, the courts have generally held that, "where goods
are stolen in one state and carried into another, there is a larceny in the latter, on the ground
that each moment's continuance of the trespass and felony amounts to a new taking and
asportation, and that the courts of the state into which the goods are brought have
jurisdiction to punish as for larceny in such state." (16 Corpus Juris, p. 167.) This is also the
rule in Texas because an express provision is to be found in its procedural law which
embodies it. Said provision is section 235 of its Code of Criminal Procedural, which says:
Where property is stolen in one county and carried off by the offender to another, he
may be prosecuted either in the country where he took the property or in any other
country through or into which he may have carried the same.
On the other hand, the elements of theft in this jurisdiction are: First, taking away of personal
property; second, that the property belongs to another; third, that the taking must be with
intent to gain; fourth, that it is done without the consent of the owner; and fifth, that there is
no violence or intimidation against persons, or force upon things. It is not an indispensable
requisite of theft that the pickpocket or their carry, more or less far away, the thing taken by
him from its owner. Wherefore, relying upon the provisions of article 308 of the Revised
Penal Code, which reads:
"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 latter's consent," we hold that the thefts charged in the two informations already referred
to were wholly committed in Gapan, Nueva Ecija, and that for their consummation nothing
else remained to be done from the moment that the appellee took away, with intent to gain,
said animals while they were yet in said municipality and province. It was not necessary that
there had been real or actual gain on his party or that he had removed the stolen animals to
the town of Candaba, in the Province of Pampanga, in order to make use of or derive some
benefit from them. It was enough that on taking them in Gapan, he was then actuated by the
desire or intent to gain. This opinion accords completely with that stated in the case of United
States vs. Adiao (38 Phil., 754). In that case a Manila customs inspector took a leather belt
from the baggage of a passenger who had just landed at the port of Manila and kept it in his
office desk where the other employees found it afterwards. He was not able to make use of
said belt, but he was found guilty of theft for the reason that he had performed all the acts of
execution necessary for consummation of the crime. Our opinion is also in conformity with
that expressed by the Supreme Court of Spain in its decisions of December 1, 1897 and
October 14, 1898, referred to in the Adiao case, and that of the same tribunal of November
16, 1895 where it was said that "the crime of theft consists in taking personal property
belonging to another person without his consent and it is no bar to its consummation that the
offender may not have been able to make use of the stolen articles, for it is not the gain
obtained, but his intention which, together with the other elements above-mentioned,
constitutes the crime in question." (II Hidalgo, Codigo Penal, p. 662.) Therefore, in
accordance with the clear provision above-cited of section 6, No. 4, of General Orders, No.
58, the prosecution of the appellee should have been and should be commenced in Nueva
Ecija.
Besides the foregoing, the following observations may also be made: From a reading of the
two information in the two cases in question, it may be seen that the appellee illegally took
the carabaos from the owner thereof in Gapan because the allegation to be found therein,
particularly in one of the informations (C.F.I. No. 5224; G.R. No. 45471), that the appellee
"did, then and there, voluntarily, maliciously, illegally and criminally, take, steal, and carry
away a male carabao branded as ................... with certificate No. 669261, dated at
Pearanda, Nueva Ecija, on April 11, 1928, valued at ninety pesos (P90), owned by Leon
Ladores, without his knowledge and consent, and to his damage and prejudice in the said
sum of P90. The commission of the crime having been commenced at Gapan, Nueva Ecija,
and completed at the municipality of Candaba, Pampanga," it to this effect.
There is not a single allegation or insinuation in the two informations from which it might be
deduced that the desire to gain was not that which led the appellee to steal the animals. It is,
therefore, natural and reasonable to conclude that he took them with intent to gain. In so
holding, we adopt the same rule followed by the Supreme Court of Spain, which we have
seen applied in those cases to which its decisions of October 14, 1898, 18, 1899, January
10, 1900, February 6, 1902, November 15, 1894, and others relate and in which it was held
that:
The intent to gain is the usual motive to be presumed from all furtive taking of useful
property appertaining to another, unless special circumstance reveal a different intent
on the part of the perpetrator. (Decision of October 14, 1898.)
It being stated as a proven fact in the appealed decision that the accused took two
bundles of barley from a farm, it is clear that, without a declaration as also proven
that he did so with a purpose other than to gain and with the authorization of the
owner, the elements constituting the crime of theft are included in the word "take."
(Decision of October 18, 1899.)
The act of taking figs from the tree of another without his consent constitutes
asportation in which the intent to gain is inherent, which intent is made manifest by
the act of carrying them away. (Decision of January 10, 1900.)
Although the asportation of a thing belonging to another without his consent does not
always imply the intent to gain on the part of the perpetrator, who might have some
other purpose in mind, when said purpose is not shown, it is reasonable to believe
that the taking was made with that essential element of the crime of theft. (Decision
of February 6, 1902.)
Although the asportation of a thing appertaining to another without his consent does
not necessarily imply in all cases the intent to gain on the part of its author, since his
purpose might be different; when this is not shown, but on the contrary, in order to
justify his holding and free disposition of the thing taken, he alleges title thereto by
virtue of a contract of purchase and sale which he has not been able to prove beyond
doubt, it is reasonable to infer that the taking was done with intent to gain in the
juridical sense which such concept has for purposes of the crime of theft, whatever
may be the class or condition of the persons doing the illegal taking. (Decision of
November 15, 1894.) (II Hidalgo, Codigo Penal, pp. 664, 665, 667, and 660.)
Practical reasons and considerations, however, require that no pass be opened to the thief
through which he may easily frustrate the right of the owner of a stolen thing to recover it
from him or to go after it, or which may make if difficult, it not impossible, for him to secure
the punishment of the offender. By allowing the owner of the stolen thing to follow the thief no
matter how far from the scene of the crime the latter may have brought it, in order to have
him prosecuted which, surely, will be the effect of sustaining a contrary opinion, is to put
obstacles in his way precisely because this will result in expenses and delay. If this were
done, the thief would contrive in all cases to carry as far as possible what he may have
stolen so that he would have greater chances of getting unpunished.
In conclusion, we are of the opinion and so hold that the sole court possessing jurisdiction
over the cases against the appellee for the theft of the carabaos in question is not that of
Pampanga, but that of Nueva Ecija in which they should have been and must be instituted.
Wherefore, the appealed order is hereby affirmed, with costs de oficio. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial and Concepcion, JJ., concur.
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 116719
January 18, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PATRICIO AMIGO alias "BEBOT", accused-appellant.
DECISION
MELO, J.:
Initially, Patricio Amigo was charged with frustrated murder in an Information reading as
follows:
The undersigned accuses the above-named accused of the crime of FRUSTRATED
MURDER, under Art. 248, in relation to Art. 5 of the Revised Penal Code, committed
as follows:
That on or about December 29, 1989, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a
knife, with treachery and evident premeditation and with intent to kill wilfully,
unlawfully and feloniously attacked, assaulted and stab with said weapon one Benito
Ng Suy, thereby inflicting injuries upon the latter, the following injuries, to wit:
MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND
LEFT THIGH WITH PENETRATION TO LEFT PLEURAL CAVITY,
DIAPHRAGM STOMACH, DUODENUM, PANCREAS AND
MIDTRANVERSE COLON.
thus performing all the acts of execution which should have produced the crime of
murder as a consequence but nevertheless, did not produce it by reason of causes
independent of his will, that is, because of the timely and able medical assistance
immediately rendered to the said Benito Ng Suy.
(p. 1, Rollo.)
to which he pleaded not guilty.
Subsequently, due to the death of the victim, an amended Information was filed charging
now the crime of murder, to wit:
That on or about December 29, 1989, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a
knife, with treachery and evident premeditation and with intent to kill wilfully,
unlawfully and feloniously attacked, assaulted and stabbed with said weapon one
Benito Ng Suy, thereby inflicting upon the latter multiple wounds which caused his
death and the consequent loss and damage to the heirs of the victim.
(p. 3, Rollo.)
After trial on the merits, the court a quo rendered a decision, disposing:
WHEREFORE, finding the accused Patricio Amigo guilty beyond reasonable doubt of
the crime of MURDER punishable under Art. 248 of the Revised Penal Code, with no
modifying circumstance present, the accused is hereby sentenced to the penalty
of reclusion perpetua, which is the medium period of the penalty ofreclusion
temporal in its maximum to death and to pay the cost; to indemnify the offended
party the amount of P93,214.70 as actual damages and P50,000.00 as
compensatory damages and P50,000.00 as moral damages.
(p. 32, Rollo.)
Reversal thereof is now sought, with accused-appellant arguing that error was committed by
the trial court in imposing or meting out the penalty of reclusion perpetua against him despite
the fact that Sec. 19 (1), Article III of the 1987 Constitution was already in effect when the
offense was committed.
The facts of the case, as briefly summarized in the brief submitted by the Office of the
Solicitor General and as borne out by the evidence, are as follows:
On December 29, 1989, at around 1:00 P.M., after having spent half-day at their
store, located at No. 166-A, Ramon Magsaysay Avenue, Davao City, Benito Ng Suy
was driving their gray Ford Fiera back home, situated at the back of Car Asia,
Bajada, Davao City. With him during that time were his daughters, Jocelyn Ng Suy
and a younger one together with his two year old son, who were all seated at the
front seat beside him while a five year old boy was also seated at the back of the
said vehicle. (TSN, April 29, 1991, pp. 3-5; TSN, March 31, 1992)
On their way home and while traversing the National Highway of Bajada, Davao City,
an orange Toyota Tamaraw driven by one Virgilio Abogada, suddenly made a left turn
in front of the Regional Hospital, Bajada, Davao City, without noticing the Ford Fiera
coming from the opposite direction. This Tamaraw was heading for Sterlyn
Kitchenette, which was situated at the comer of the said hospital. (TSN, April 29,
1991, p. 4; TSN, March 31, 1992, pp. 3 and 13)
With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Lingling's vulcanizing
shop owned and operated by a certain Galadua. He was also seated at the right front
seat beside Virgilio.
Due to the unexpected veer made by Virgilio, an accidental head on collision
occurred between the Fiera and the Tamaraw, causing a slight damaged to the right
bumper of the latter. (TSN, March 31, 1992, p. 4)
Right after the collision, Benito immediately alighted from the driver's seat and
confronted Virgilio Abogada who also went down from his vehicle. (TSN, April 29,
1991, p. 5)
Benito, who was a big man with a loud voice told Virgilio, "You were not looking," to
which Virgilio retorted, I did not see you". (TSN, April 29, 1991, p. 16)
While the two drivers where having this verbal confrontation, Patricio who was
merely a passenger of Virgilio also alighted from the front seat of the Tamaraw and
instantaneously approached Benito and advised the latter to leave since it was
merely a small and minor accident. (TSN, April 29, 1991, pp. 16-18)
A bit irritated with the actuation exhibit by Patricio, Benito rebuked the former and told
him not to interfere, since he had nothing to do with the accident. (ibid. p. 7)
Irked by the comment made by Benito, Patricio sarcastically asked; "You are
Chinese, is it you?" With a ready answer Benito said; "Yes, I am a Chinese and
why?" Patricio in turn replied; So, you are a Chinese, wait for a while," then left. (ibid.
pp. 7 and 19)
Immediately thereafter, Benito ordered Jocelyn to call a policeman, but after a lapsed
of about one minute, Patricio returned and arrogantly approached Benito, asking the
latter once again, "You are a Chinese, is it not?" To this Benito calmly responded in
the affirmative. (ibid. pp. 7, 19-20)
Upon hearing the response, Patricio mumbled "Ah, so you are a Chinese," and
suddenly took a five inch knife from his waist and simultaneously stabbed Benito
hitting him twice on the chest. (Ibid. p. 20)
After being hit, Benito wounded and sensing that his life was in peril, tried to evade
his assailant by pushing Patricio away and run around the Tamaraw but Patricio
wielding the same knife and not content with the injuries he had already inflicted, still
chased Benito and upon overtaking the latter embraced him and thrusted his knife on
the victim several times, the last of which hit Benito on the left side of his body. (ibid.
pp. 8, 10, 22)
It was at this juncture that Jocelyn who was still inside the Ford Fiera, pleading for
mercy to spare her father tried to get out of the vehicle but it was very unfortunate
that she could not open its door. (Ibid. p. 10)
Knowing that Patricio was really determined to kill her father by refusing to heed her
pleas, Joselyn shouted for help, since there were already several people around
witnessing that fatal incident, but to her consternation nobody lifted a single finger to
help them. (ibid. pp. 6, 10, 18, 21-22) Only after her father lay seated on the floor of
their Ford Fiera after being hit on the left side of his body that she was able to open
the door of the said vehicle. (Ibid. p 12)
After this precise moment, her younger sister, upon seeing their father bathing with
his own blood, embraced him, causing Patricio to cease from his ferocious assault
and noticing the presence of several people, he fled. (Ibid. p. 22)
Thereafter, an enraged Jocelyn chased him, but since the assailant ran faster than
her, she was not able to overtake him, thus, she instead decided to go back to where
her father was and carried him inside the Tamaraw who bumped them and
consequently brought him to San Pedro Hospital where he was attended to at the
Emergency Room. (ibid. p 13)
While at the Emergency Room, Benito who was on a very critical condition, due to
multiple (13) stabbed wounds, was operated by Dr. Rolando Chiu. After the
operation, he was subsequently brought to the ICU and stayed there for three (3)
weeks. (July 12, 1991, pp. 3 and 4)
In a last ditch effort to save his life, having only 10 to 20 percent survival, Benito was
airlifted to Manila and was directly confined at the Chinese General Hospital. After
three (3) weeks of confinement, Benito expired. CAUSE OF DEATH SEPSIS (an
overwhelming infection). This means that the infection has already circulated in the
blood all over the body. (ibid. pp. 6-7)
(pp. 59-65, Rollo.)

Accused-appellant contends that under the 1987 Constitution and prior to the promulgation
of Republic Act No. 7659, the death penalty had been abolished and hence, the penalty that
should have been imposed for the crime of murder committed by accused-appellant without
the attendance of any modifying circumstances, should bereclusion temporal in its medium
period or 17 years, 4 months and 1 day, to 20 years of reclusion temporal.
Reasons out accused-appellant:
. . . Since the death penalty (or capital punishment) is not imposable when the
stabbing and killing happened, the computation of the penalty should be regarded
from reclusion perpetua down and not from death penalty. Indeed, the appropriate
penalty is deducible from reclusion perpetua down to reclusion temporal in its
medium period. Hence, there being no modifying circumstances present (p. 5
Decision, ibid.), the correct penalty should be in the medium period (Art. 64, par. 1,
Revised Penal Code) which is 17 years, 4 months and 1 day to 20 years of reclusion
temporal.
(p. 10, Appellant's Brief, ff. p. 50, Rollo.)
The question raised by accused-appellant was settled by this Court in People
vs. Muoz (170 SCRA 107 [1989]) thusly:
In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that "in view of
the abolition of the death penalty under Section 19, Article III of the 1987
Constitution, the penalty that may be imposed for murder isreclusion temporal in its
maximum period to reclusion perpetua," thereby eliminating death as the original
maximum period. Later, without categorically saying so, the Court, through Justice
Ameurfina A. Melencio-Herrera in People vs. Masangkay and through Justice Andres
R. Narvasa in People vs. Atencio, divided the modified penalty into three new
periods, the limits of which were specified by Justice Edgardo L. Paras inPeople
vs. Intino, as follows: the lower half of reclusion temporal maximum as the minimum;
the upper half of reclusion temporal maximum as the medium; and reclusion
perpetua as the maximum.
The Court has reconsidered the above cases and, after extended discussion, come
to the conclusion that the doctrine announced therein does not reflect the intention of
the framers as embodied in Article III, Section 19(1) of the Constitution. This
conclusion is not unanimous, to be sure. Indeed, there is much to be said of the
opposite view, which was in fact shared by many of those now voting for its reversal.
The majority of the Court, however, is of the belief that the original interpretation
should be restored as the more acceptable reading of the constitutional provision in
question.
The advocates of the Masangkay ruling argue that the Constitution abolished the
death penalty and thereby limited the penalty for murder to the remaining periods, to
wit, the minimum and the medium. These should now be divided into three new
periods in keeping with the three-grade scheme intended by the legislature. Those
who disagree feel that Article III, Section 19(1) merely prohibits the imposition of the
death penalty and has not, by reducing it to reclusion perpetua, also correspondingly
reduced the remaining penalties. These should be maintained intact.
A reading of Section 19(1) of Article III will readily show that here is really nothing
therein which expressly declares the abolition of the death penalty. The provision
merely says that the death penalty shall not be imposed unless for compelling
reasons involving heinous crimes the Congress hereafter provides for it and, if
already imposed, shall be reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough. And it is a settled rule of legal hermeneutics that if the
language under consideration is plain, it is neither necessary nor permissible to
resort to extrinsic aids, like the records of the constitutional convention, for its
interpretation.
xxx
xxx
xxx
The question as we see it is not whether the framers intended to abolish the death
penalty or merely to prevent its imposition. Whatever the intention was, what we
should determine is whether or not they also meant to require a corresponding
modification in the other periods as a result of the prohibition against the death
penalty.
It is definite that such a requirement, if there really was one, is not at all expressed in
Article III, Section 19(1) of the Constitution or indicated therein by at least clear and
unmistakable implication. It would have been so easy, assuming such intention, to
state it categorically and plainly, leaving no doubts as to its meaning.
One searches in vain for such a statement, express or even implied. The writer of
this opinion makes the personal observation that this might be still another instance
where the framers meant one thing and said another or strangely, considering
their loquacity elsewhere did not say enough.
The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino cases
represented the unanimous thinking of the Court as it was then constituted. All but
two members at that time still sit on the Court today. If we have seen fit to take a
second look at the doctrine on which we were all agreed before, it is not because of a
change in the composition of this body. It is virtually the same Court that is changing
its mind after reflecting on the question again in the light of new perspectives. And
well it might, and can, for the tenets it lays down are not immutable. The decisions of
this Court are not petrified rules grown rigid once pronounced but vital, growing
things subject to change as all life is. While we are told that the trodden path is best,
this should not prevent us from opening a fresh trial or exploring the other side or
testing a new idea in a spirit of continuing inquiry.
Accordingly, with the hope that "as judges, (we) will be equal to (our) tasks,"
whatever that means, we hereby reverse the current doctrine providing for three new
periods for the penalty for murder as reduced by the Constitution. Instead, we return
to our original interpretation and hold that Article III, Section 19(1) does not change
the periods of the penalty prescribed by Article 248 of the Revised Penal Code
except only insofar as it prohibits the imposition of the death penalty and reduces it
to reclusion perpetua. The range of the medium and minimum penalties remains
unchanged.
The Court realizes that this interpretation may lead to certain inequities that would
not have arisen under Article 248 of the Revised Penal Code before its modification.
Thus, a person originally subject to the death penalty and another who committed the
murder without the attendance of any modifying circumstance will now be both
punishable with the same medium period although the former is concededly more
guilty than the latter. True enough. But that is the will not of this Court but of the
Constitution. That is a question of wisdom, not construction. Of some relevance
perhaps is the parable in the Bible of the workman who was paid the stipulated daily
wage of one penny although he had worked longer than others hired later in the day
also paid the same amount. When he complained because he felt unjustly treated by
the hoe jurisdiction of the court over the person. An appearance may be madt agree
with me for a penny?
The problem in any event is addressed not to this Court but to the Congress.
Penalties are prescribed by statute and are essentially and exclusively legislative. As
judges, we can only interpret and apply them and have no authority to modify them
or revise their range as determined exclusively by the legislature. We should not
encroach on this prerogative of the lawmaking body.
Coming back to the case at bar, we find that there being no generic aggravating or
mitigating circumstance attending the commission of the offenses, the applicable
sentence is the medium period of the penalty prescribed by Article 248 of the
Revised Penal Code which, conformably to the new doctrine here adopted and
announced, is still reclusion perpetua. This is the penalty we imposed on all the
accused-appellants for each of the three murders they have committed in conspiracy
with the others. The award of civil indemnity for the heirs of each of the victims is
affirmed but the amount thereof is hereby increased to P30,000.00 in line with the
present policy.
(at pp. 120-125.)
The above ruling was reiterated in People vs. Parominog (203 SCRA 673 [1991]) and
in People vs. De la Cruz(216 SCRA 476 [1992]).
Finally, accused-appellant claims that the penalty of reclusion perpetua is too cruel and
harsh a penalty and pleads for sympathy. Courts are not the forum to plead for sympathy.
The duty of courts is to apply the law, disregarding their feeling of sympathy or pity for an
accused. DURA LEX SED LEX. The remedy is elsewhere clemency from the executive or
an amendment of the law by the legislative, but surely, at this point, this Court can but apply
the law.
WHEREFORE, the appealed decision is hereby AFFIRMED.
EN BANC
G.R. No. L-46530 April 10, 1939
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. CATALINO RABAO,Defendant-Appellant.
Jose F. Oreta for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney
Paredes, Jr. for appellee.
IMPERIAL, J.:
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This is an appeal from a judgment of the Court of First

Instance of Camarines Sur convicting the appellant of the
crime of parricide and sentencing him to an indeterminate
penalty of from eight years and one day of prision mayor to
twenty years of reclusion temporal, to indemnify the heirs of
the deceased in the sum of P1,000 and to pay the costs.
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The information filed by the acting provincial fiscal of said

province charged the defendant with parricide for having killed
his wife Salvacion Agawa on December 15, 1937, in the
municipality of Naga, Province of Camarines Sur, which crime
was committed with evident premeditation and abuse of
superior strength.
The defendant and the deceased Salvacion Agawa were

married before the justice of the peace of Naga on January 15,
1936 and had since been born to the marriage. Since their
marriage they had made their home in the house of Urbano
Rellora, who lived maritally with the mother of the accused. On
the morning of December 15, 1937, when the defendant was
hardly awake after staying up late the previous night on
account of the elections held in the municipality of Naga, he
noticed that his wife was preparing water with which to give
the child a bath. He told his wife not to bathe the child because
it had a cold, but the wife insisted and a quarrel arose in the
heat of which the accused punched his wife on the abdomen.
She fell seated on a sack of rice nearby and immediately
suffered an attack of which she died in spite of the aid
rendered her by the accused himself and other persons who
had arrived. The following morning Dr. Vicente Roxas
performed an autopsy and found that the spleen of the
deceased had been hypertrophied due to an acute and chronic
malaria from which she had been suffering, and that death was
caused by the hemorrhage of the spleen when it was ruptured
as a consequence of an external blow on the abdomen which
might have been that delivered by the accused.
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The defense alleges that the lower court erred in declaring that
the accused hit the deceased on the abdomen, which caused
her death, instead of finding him, at most, guilty of parricide
through reckless imprudence.
After an examination of the evidence, we are of the opinion

that the lower court did not err in finding that the accused hit
the deceased on the abdomen which directly caused the
rupture of her spleen producing thereby an internal
hemorrhage that caused her almost instant death. Urbano
Rellora who, as stated before, was the owner of the house
where the defendant and the deceased lived and who
maintained marital relations with the mother of the accused,
testified positively that he saw the accused punched his wife
on the abdomen, as a result of which she fell seated on a sack
of rice and that very moment she had an attack, became
unconscious and expired. This testimony is corroborated by Dr.
Roxas who performed the autopsy, when he declared that the
death was caused by the hemorrhage produced by the rupture
of the spleen which rupture was caused by an external blow on
the abdomen of the deceased. The defendant himself, in his
sworn declaration (Exhibit C) subscribed before the justice of

the peace of Naga, voluntarily admitted having hit his wife on
the abdomen with his fist when she said things that offended
and made him nervous. The aggression was likewise
corroborated by another eye-witness, Raymundo Hilano, who
declared that he was at that time passing in front of the
defendant's house when he heard and saw him quarrelling with
his wife and that the defendant was delivering blows on his
wife. The testimony of this witness however, seems incredible
and deserves no merit for he testified having seen the
aggression through a window which was three and a half
meters high from the ground where he stood. Considering the
height of the window and the location of the witness, it is clear
that he could not have seen what was happening inside the
house.
The defendant's act is not mere reckless imprudence, as the

defense contends, since under article 365 of the Revised Penal
Code the acts that go to make up reckless imprudence must be
lawful in themselves, and the attack consisting in the blow the
defendant dealt his wife is certainly not lawful, since it
transgresses the Revised Penal Code itself, which expressly
prohibits it under pain of punishment.
The facts proven constitute the crime of parricide defined by

article 246 of the Revised Penal Code, and in its commission
there were present the following mitigating circumstances
considered by the lower court in favor of the defendant: lack of
intention to commit so grave a crime (article 13 [3], Revised
Penal Code); having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation (article 13
[6]); having surrendered himself to the authorities
immediately after the commission of the crime (article 13 [7]);
with no aggravating circumstance. As to the penalty imposed,
we find that it is not in accordance with that prescribed by the
law. Under article 246 of the Revised Penal Code the crime of
parricide is punished with reclusion perpetua to death. These
penalties are indivisible and the Revised Penal Code provides,
in article 63, rule 3, that whenever there is present some
mitigating circumstance with no aggravating one, the lesser
penalty shall be applied. In conformity with this legal
provision, the penalty that should be imposed on the accused
is that of reclusion perpetua.
After reviewing the facts, we are convinced that the defendant

did not really have the intention of committing so grave a
crime as parricide. The quarrel that led to the aggression had
its origin from the natural and justifiable desire of the
defendant, as a father, to prevent his child, which was then ill,
from being given a bath. If, under the circumstances, he
transgressed the law by an unjust attack on his wife, he is,
nevertheless, deserving of the mitigating circumstances
allowed in his favor. We invoke, for this reason, article 5,
paragraph 2, of the Revised Penal Code, and recommended to
his Excellency, the President of the Philippines, the
commutation of the penalty imposed on the defendant in this
decision.
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Modifying the appealed judgment, we declare the defendant

Catalino Rabao guilty of the crime of parricide and hereby
sentenced him to reclusion perpetua, and to the accessory
penalties provided in article 41 of the Revised Penal Code, to
indemnify the heirs of the deceased in the amount of P1,000,
and to pay the costs in both instances. So ordered.
Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcion and
Moran, JJ., concur.
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiffappellee, vs. FREEDIE
LIZADA
@
FREDIE
LIZADA, accused-appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision of the Regional Trial Court of

Manila, Branch 54, finding accused-appellant Freedie Lizada guilty beyond
reasonable doubt of four (4) counts of qualified rape and meting on him the death
penalty for each count.
[1]
I. The Charges
Accused-appellant was charged with four (4) counts of qualified rape under
four separate Informations. The accusatory portion of each of the four
Informations reads:
[2]
That sometime in August 1998 in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of
one ANALIA ORILLOSA y AGOO, by then and there embracing her, kissing
and touching her private parts, thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis into her vagina and
succeeded in having carnal knowledge with the said ANALIA ORILLOSA y

AGOO, against her will and consent.
Contrary to law.
XXX
That on or about November 5, 1998, in the City of Manila, Philippines, the said
one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing
succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y
Contrary to law.
XXX
That on or about October 22, 1998, in the City of Manila, Philippines, the said
Contrary to law.
XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the
said accused, with lewd designs, did then and there willfully, unlawfully and
Contrary to law.
[3]
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390,
99-171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de
parte and entered a plea of not guilty to each of the charges. A joint trial then
ensued.
[4]
II. Evidence of the Prosecution
[5]
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had
three (3) children, namely: Analia, who was born on December 18, 1985; Jepsy,
[6]
who was 11 years old, and Rossel, who was nine years old. However, the couple
decided to part ways and live separately. Rose left Bohol and settled in Manila
with her young children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as
husband and wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo,
Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan,
bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof
to put up a video shop in her house. She sold Avon products from house to
house to augment her income.Whenever she was out of their house, Rossel and
Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant
entered. He laid on top of her, removed her T-shirt and underwear. He then
inserted his finger in her vagina. He removed his finger and inserted his penis in
her vagina. Momentarily, she felt a sticky substance coming out from his
penis. She also felt pain in her sex organ. Satiated, accused-appellant
dismounted but threatened to kill her if she divulged to anyone what he did to
her. Accused-appellant then returned to his room. The incident lasted less than
one hour. Petrified by the threats on her life, Analia kept to herself what
happened to her.
[7]
Sometime in August 1997, accused-appellant entered again the room of

Analia, placed himself on top of her and held her legs and arms. He then inserted
his finger into her sex organ (fininger niya ako). Satiated, accused-appellant left
the room. During the period from 1996 to 1998, accused-appellant sexually
abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their
house studying her assignments. Accused-appellant was also in the sala. Rossel
tended the video shop while his mother was away. Analia went into her room and
lay down in bed. She did not lock the door of the room because her brother might
enter any time. She wanted to sleep but found it difficult to do so. Accusedappellant went to his room next to the room of Analia. He, however, entered the
room of Analia. He was wearing a pair of short pants and was naked from waist
up. Analia did not mind accused-appellant entering her room because she knew
that her brother, Rossel was around. However, accused-appellant sat on the side
of her bed, placed himself on top of her, held her hands and legs and fondled her
breasts. She struggled to extricate herself. Accused-appellant removed her panty
and touched her sex organ. Accused-appellant inserted his finger into her vagina,
extricated it and then inserted his penis into her vagina. Accused-appellant
ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the
room of Analia after drinking water from the refrigerator, and peeped through the
door. He saw accused-appellant on top of Analia. Accused-appellant saw Rossel
and dismounted.Accused-appellant berated Rossel and ordered him to go to his
room and sleep. Rossel did. Accused-appellant then left the room. Analia
likewise left the room, went out of the house and stayed outside for one
hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her
mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accusedappellant was in the sala of the house watching television. Analia tended the
video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant
who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in
the video shop. When Rose returned, a heated argument ensued between
accused-appellant and Analia.Rose sided with her paramour and hit Analia. This
prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and
Analia left the house on board the motorcycle driven by her mother in going to
Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had
not yet been returned. When Rose inquired from her daughter what she meant
by her statement, ayoko na, ayoko na, she told her mother that accusedappellant had been touching the sensitive parts of her body and that he had been
on top of her. Rose was shocked and incensed. The two proceeded
to Kagawad Danilo Santos to have accused-appellant placed under arrest. On
November 10, 1998, the two proceeded to the Western Police District where
Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of
SPO2 Fe H. Avindante. She related to the police investigator that accusedappellant had touched her breasts and arms in August, 1998, September 15,
1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m. Analia then
submitted herself to genitalia examination by Dr. Armie Umil, a medico-legal
officer of the NBI. The medico-legal officer interviewed Analia, told him that she
was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.
[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which
contained her findings during her examination on Analia, thus:
xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,
developed, hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples
brown, protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated.
Fourchette, tense. Vetibular mucosa, pinkish. Hymen, tall, thick,
intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight.
Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the
subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude
complete penetration by an average-sized adult Filipino male organ in full
erection without producing any genital injury.
[9]
Subsequently, Analia told her mother that mabuti na lang iyong panghihipo
lang ang sinabi ko. When Rose inquired from her daughter what she meant by
her statement, Analia revealed to her mother that accused-appellant had sexually
abused her. On December 15, 1998, Analia executed a Dagdag na Salaysay ng
Paghahabla and charged accused-appellant with rape.
[10]
III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of
courtship, he and Rose agreed in 1994 to live together as husband and wife. He
was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer
house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the

children of Rose as if they were his own children. He took care of them, as in fact
he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was
already big. Analia was hard-headed because she disobeyed him whenever he
ordered her to do some errands. Because of Analias misbehavior, accusedappellant and Rose oftentimes quarreled. Rose even demanded that accusedappellant leave their house. Another irritant in his and Roses lives were the
frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment
and received a separation pay of P9,000.00 which he used to put up the VHS
Rental and Karaoke from which he earned a monthly income
of P25,000.00. While living together, accused-appellant and Rose acquired two
colored television sets, two VHS Hi-fi recorders, one VHS player, one washing
machine, one scooter motor, two VHS rewinders, one sala set, one compact disc
player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and
Rossel to testify against him and used them to fabricate charges against him
because Rose wanted to manage their business and take control of all the
properties they acquired during their coverture. Also, Rose was so exasperated
because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accusedappellant finding him guilty beyond reasonable doubt of four (4) counts of rape,
defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised
Penal Code, and meted on him the death penalty for each count. The dispositive
portion of the decision reads:
From all the evidence submitted by the prosecution, the Court concludes that
the accused is guilty beyond reasonable doubt of the crime charged against him
in these four (4) cases, convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the seventh paragraph, no.
1, Article 335 of the Revised Penal Code.
SO ORDERED.
[11]
V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and averred in his
brief that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT
IN ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the

decision of the trial court is null and void as it failed to comply with the
requirements of Section 14, Article VIII of the 1987 Constitution and Section 1,
Rule 36 of the 1997 Rules of Civil Procedure, as amended. He avers that the
court a quo made no findings of facts in its decision. The trial court merely
summarized the testimonies of the witnesses of the prosecution and those of
accused-appellant and his witnesses, and forthwith set forth the decretal portion
of said decision. The trial court even failed to state in said decision the factual
and legal basis for the imposition of the supreme penalty of death on him. The
Solicitor General, on the other hand, argues that there should be no mechanical
reliance on the constitutional provision. Trial courts may well-nigh synthesize and
simplify their decisions considering that courts are harassed by crowded dockets
and time constraints. Even if the trial court did not elucidate the grounds as the
legal basis for the penalties imposed, nevertheless the decision is valid. In any
event, the Solicitor General contends that despite the infirmity of the decision,
there is no need to remand the case to the trial court for compliance with the
constitutional requirement as the Court may resolve the case on its merits to
avoid delay in the final disposition of the case and afford accused-appellant his
right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14
of the 1987 Constitution provides that no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it
is based. This requirement is reiterated and implemented by Rule 120, Section 2
of the 1985 Rules on Criminal Procedure, as amended, which reads:
SEC. 2. Form and contents of judgment.The judgment must be written in the

official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the
offense constituted by the acts committed by the accused, and the aggravating
or mitigating circumstances attending the commission thereof, if there are
any; (b) the participation of the accused in the commission of the offense,
whether as principal, accomplice, or accessory after the fact; (c) the penalty
imposed upon the accused; and (d) the civil liability or damages caused by the
wrongful act to be recovered from the accused by the offended party, if there is
any, unless the enforcement of the civil liability by a separate action has been
reserved or waived.
[14]
The purpose of the provision is to inform the parties and the person reading
the decision on how it was reached by the court after consideration of the
evidence of the parties and the relevant facts, of the opinion it has formed on the
issues, and of the applicable laws. The parties must be assured from a reading of
the decision of the trial court that they were accorded their rights to be heard by
an impartial and responsible judge. More substantial reasons for the
requirement are:
[15]
For one thing, the losing party must be given an opportunity to analyze the
decision so that, if permitted, he may elevate what he may consider its errors
for review by a higher tribunal. For another, the decision if well-presented and
reasoned, may convince the losing party of its merits and persuade it to accept
the verdict in good grace instead of prolonging the litigation with a useless
appeal. A third reason is that decisions with a full exposition of the facts and the
law on which they are based, especially those coming from the Supreme Court,
will constitute a valuable body of case law that can serve as useful references
and even as precedents in the resolution of future controversies.
[16]
The trial court is mandated to set out in its decision the facts which had been
proved and its conclusions culled therefrom, as well as its resolution on the
issues and the factual and legal basis for its resolution. Trial courts should not
merely reproduce the respective testimonies of witnesses of both parties and
come out with its decretal conclusion.
[17]
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary
evidence of the parties then concluded that, on the basis of the evidence of the
prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced
him to death, on each count.
The trial court even failed to specifically state the facts proven by the
prosecution based on their evidence, the issues raised by the parties and its
resolution of the factual and legal issues, as well as the legal and factual bases
for convicting accused-appellant of each of the crimes charged. The trial court
rendered judgment against accused-appellant with the curtdeclaration in the
decretal portion of its decision that it did so based on the evidence of the
prosecution. The trial court swallowed hook, line and sinker the evidence of the
prosecution. It failed to explain in its decision why it believed and gave probative
weight to the evidence of the prosecution. Reading the decision of the trial court,
one is apt to conclude that the trial court ignored the evidence of accusedappellant. The trial court did not even bother specifying the factual and legal
bases for its imposition of the supreme penalty of death on accused-appellant for
each count of rape. The trial court merely cited seventh paragraph, no. 1, Article
335 of the Revised Penal Code. The decision of the trial court is a good example
of what a decision, envisaged in the Constitution and the Revised Rules of
Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the
infirmity of the decision of the trial court, for compliance with the constitutional
provision. However, to avert further delay in the disposition of the cases, the
Court decided to resolve the cases on their merits considering that all the records
as well as the evidence adduced during the trial had been elevated to the Court.
The parties filed their respective briefs articulating their respective stances on
the factual and legal issues.
[18]
In reviewing rape cases, this Court is guided by the following principles: (1) to
accuse a man of rape is easy but to disprove it is difficult though the accused
may be innocent; (2) considering the nature of things, and only two persons are
usually involved in the crime of rape, the testimony of the complainant should be
scrutinized with great caution; (3) the evidence for the prosecution must stand or
fall on its own merits and not be allowed to draw strength from the weakness of
the evidence of the defense. By the very nature of the crime of rape, conviction
or acquittal depends almost entirely on the credibility of the complainants
testimony because of the fact that usually only the participants can testify as to
its occurrence. However, if the accused raises a sufficient doubt as to any
material element of the crime, and the prosecution is unable to overcome it with
its evidence, the prosecution has failed to discharge its burden of proving the
guilt of the accused beyond cavil of doubt and hence, the accused is entitled to
an acquittal.
[19]
Anent the second assignment of error, we will resolve the same for
convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime
of rape committed on or about October 22, 1998 and on or about September 15,
1998)
Accused-appellant avers that the prosecution failed to adduce the requisite

quantum of evidence that he raped the private complainant precisely on
September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr.
Armie Umil show that the hymen of the private complainant was intact and its
orifice so small as to preclude complete penetration by an average size adult
Filipino male organ in full erection without producing any genital injury. The
physical evidence belies private complainants claim of having been deflowered
by accused-appellant on four different occasions. The Office of the Solicitor
General, for its part, contends that the prosecution through the private
complainant proved the guilt of accused-appellant for the crime charged on both
counts.
The contention of accused-appellant does not persuade the Court. The
private complainant testified that since 1996, when she was only eleven years
old, until 1998, for two times a week, accused-appellant used to place himself on
top of her and despite her tenacious resistance, touched her arms, legs and sex
organ and inserted his finger and penis into her vagina.In the process, he
ejaculated. Accused-appellant threatened to kill her if she divulged to anyone
what he did to her. Although private complainant did not testify that she was
raped on September 15, 1998 and October 22, 1998, nevertheless accusedappellant may be convicted for two counts of rape, in light of the testimony of
private complainant.
[20]
It bears stressing that under the two Informations, the rape incidents are
alleged to have been committed on or about September 15, 1998 and on or
about October 22, 1998. The words on or about envisage a period, months or
even two or four years before September 15, 1998 or October 22, 1998. The
prosecution may prove that the crime charged was committed on or about
September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan, this Court affirmed the conviction of accusedappellant of five (5) counts of rape, four of which were committed in December
1992 (two counts) and one each in March and April, 1993 and in November, 1995
and one count of acts of lasciviousness committed in December 1992, on a
criminal complaint for multiple rape, viz:
[21]
That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, taking advantage of his superior strength over the person of his own
twelve (12) year old daughter, and by means of force, violence and
intimidation, did, then and there, willfully, unlawfully and feloniously, have
repeated carnal knowledge of Myra M. Gianan, against her will and consent, to
her damage and prejudice.
[22]
On the contention of accused-appellant in said case that his conviction for

rape in December 1992 was so remote from the date (November 1995) alleged
in the Information, so that the latter could no longer be considered as being as
near to the actual date at which the offense was committed as provided under
Section 11, Rule 110 of the Rules on Criminal Procedure, as amended, this Court
held:
Accused-appellant nevertheless argues that his conviction for rape in December

1992 is so remote from the date (November 1995) alleged in the information,
so that the latter could no longer be considered as being as near to the actual
date at which the offense was committed as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a
conviction for ten counts of rape based on an information which alleged that
the accused committed multiple rape from November 1990 up to July 21, 1994,
a time difference of almost four years which is longer than that involved in the
case at bar. In any case, as earlier stated, accused-appellants failure to raise a
timely objection based on this ground constitutes a waiver of his right to object.
[23]
Moreover, when the private complainant testified on how accused-appellant

defiled her two times a week from 1996 until 1998, accused-appellant raised nary
a whimper of protest.Accused-appellant even rigorously cross-examined the
private complainant on her testimony on direct examination. The presentation by
the prosecution, without objection on the part of accused-appellant, of evidence
of rape committed two times a week from 1996 until 1998 (which includes
September 15, 1998 and October 22, 1998) to prove the charges lodged against
him constituted a waiver by accused-appellant of his right to object to any
perceived infirmity in, and in the amendment of, the aforesaid Informations to
conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998
does not preclude her having been repeatedly sexually abused by accusedappellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the
hymen of private complainant was still intact has no substantial bearing on
accused-appellants commission of the crime. Even the slightest penetration of
the labia by the male organ or the mere entry of the penis into the aperture
constitutes consummated rape. It is sufficient that there be entrance of the male
organ within the labia of the pudendum. In People vs. Baculi, cited in People vs.
Gabayron, we held that there could be a finding of rape even if despite
repeated intercourse over a period of four years, the complainant still retained an
intact hymen without injury. In these cases, the private complainant testified that
the penis of accused-appellant gained entry into her vagina:
[24]
[25]
[26]
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong
nya yong ano nya and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was
coming out, sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of

simple rape, instead of qualified rape. The evidence on record shows that
accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old,
and under Article 335 as amended by Republic Act 7659, the minority of the
private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victims mother, is a special qualifying circumstance
warranting the imposition of the death penalty. However, said circumstance was
not alleged in the Informations as required by Section 8, Rule 110 of the Revised
Rules on Criminal Procedure which was given retroactive effect by this Court
[28]
because it is favorable to the accused. Hence, even if the prosecution proved

the special qualifying circumstance of minority of private complainant and
relationship, the accused-appellant being the common-law husband of her
mother, accused-appellant is guilty only of simple rape. Under the given law, the
penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil
indemnity in the amount of P50,000.00 and moral damages in the amount
of P50,000.00 for each count of rape, or a total of P200,000.00.
[29]
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime
committed on or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99171390 is defective because the date of the offense on or about August 1998
alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:
Sec. 11. Date of commission of the offense.It is not necessary to state in the
complaint or information the precise date the offense was committed except
when it is a material ingredient of the offense. The offense may be alleged to
have been committed on a date as near as possible to the actual date of its
commission. (11a)
[30]
Accused-appellant further asserts that the prosecution failed to prove that he

raped private complainant in August 1998. Hence, he argues, he should be
acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date on or about August 1998 is sufficiently definite. After all, the date of
the commission of the crime of rape is not an essential element of the crime. The
prosecution adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her testimony during the
trial.
The Court does not agree with accused-appellant. It bears stressing that the
precise date of the commission of the crime of rape is not an essential element
of the crime. Failure to specify the exact date when the rape was committed
does not render the Information defective. The reason for this is that the
gravamen of the crime of rape is carnal knowledge of the private complainant
under any of the circumstances enumerated under Article 335 of the Revised
Penal Code, as amended. Significantly, accused-appellant did not even bother
to file a motion for a bill of particulars under Rule 116, Section 9 of the
Revised Rules on Criminal Procedure before he was arraigned. Indeed,
accused-appellant was duly arraigned under the Information and entered a plea
of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the
prosecution had rested its case. It was only on appeal to this Court that accusedappellant questioned for the first time the sufficiency of the Information filed
against him. It is now too late in the day for him to do so. Moreover, in People
vs. Salalima, this Court held that:
[31]
Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The
precise date or time when the victim was raped is not an element of the
offense. The gravamen of the crime is the fact of carnal knowledge under any
of the circumstances enumerated under Article 335 of the Revised Penal
Code. As long as it is alleged that the offense was committed at any time as
near to the actual date when the offense was committed an information is
sufficient. In previous cases, we ruled that allegations that rapes were

committed before and until October 15, 1994, sometime in the year 1991 and
the days thereafter, sometime in November 1995 and some occasions prior
and/or subsequent thereto and on or about and sometime in the year
1988constitute sufficient compliance with Section 11, Rule 110 of the Revised
Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates
when the sexual assaults took place, we believe that the allegations therein that
the acts were committed sometime during the month of March 1996 or
thereabout, sometime during the month of April 1996 or thereabout, sometime
during the month of May 1996 or thereabout substantially apprised appellant of
the crimes he was charged with since all the elements of rape were stated in the
informations. As such, appellant cannot complain that he was deprived of the
right to be informed of the nature of the cases filed against him.Accordingly,
appellants assertion that he was deprived of the opportunity to prepare for his
defense has no leg to stand on.
The prosecution proved through the testimony of private complainant that
accused-appellant raped her two times a week in 1998. As in Criminal Cases
Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accusedappellant avers that he is not criminally liable of rape. We agree with accusedappellant. The collective testimony of private complainant and her younger
brother Rossel was that on November 5, 1998, accused-appellant who was
wearing a pair of short pants but naked from waist up, entered the bedroom of
private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ. However, accused-appellant
saw Rossel peeping through the door and dismounted. He berated Rossel for
peeping and ordered him to go back to his room and to sleep. Accused-appellant
then left the room of the private complainant. The testimony of private
complainant on direct examination reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened
to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do
while he was on top of you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - Court:
Same ruling. Let the complainant continue considering that she is crying and
still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of
his body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual
thing that you experienced from the hands of the accused was this that last
time, the one you narrated in November 1998?
A Yes, sir.[32]
On cross-examination, the private complainant testified, thus:

Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not
afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the
one who entered was your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was
around but suddenly I felt that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same
time your legs, is that what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?

A I did not ask for help, I was motioning to resist him, so that he would go out,
sir. I was struggling to free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other
hand was holding your leg, is that what you are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were
trying to extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - Court:
You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated in

part his sisters testimony. He testified on direct examination, thus:
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00
oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your
house at that date, time and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea
Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did
you stay the whole afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and
then he laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?

A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name
Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did
you see this before or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your
elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he
went to the other room and slept, sir.[34]
Rossel testified on cross-examination, thus:
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching
your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your
sister when you said the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where
you were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that
what you are trying to tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the
panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might
be thirsty.
Q So---you said the accused was touching your sister. What part of her body
was touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right
hand? Your sisters body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the
accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand --Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister
--Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty,
is that what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that
not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]
In light of the evidence of the prosecution, there was no introduction of the

penis of accused-appellant into the aperture or within the pudendum of the
vagina of private complainant.Hence, accused-appellant is not criminally liable
for consummated rape.
[36]
The issue that now comes to fore is whether or not accused-appellant is

guilty of consummated acts of lasciviousness defined in Article 336 of the
Revised Penal Code or attempted rape under Article 335 of the said Code, as
amended in relation to the last paragraph of Article 6 of the Revised Penal
Code. In light of the evidence on record, we believe that accused-appellant is
guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
Art. 336. Acts of Lasciviousness.Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional.
[37]
For an accused to be convicted of acts of lasciviousness, the prosecution is

burdened to prove the confluence of the following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age.
[38]
Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form

of immorality which has relation to moral impurity; or that which is carried on a
wanton manner.
[39]
The last paragraph of Article 6 of the Revised Penal Code reads:
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.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the
felony;
3. The offenders act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due
to cause or accident other than his spontaneous desistance.
[40]
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be
committed.
[41]
An overt or external act is 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 spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. The raison detre for the law requiring a direct overt act is that, in a
majority of cases, the conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being equivocal that must be
lacking before the act becomes one which may be said to be a commencement
of the commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty what the intent of the
accused is. It is necessary that the overt act should have been the ultimate step
towards the consummation of the design. It is sufficient if it was the first or some
subsequent step in a direct movement towards the commission of the offense
after the preparations are made. The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime. In the words of Viada, the overt
acts must have an immediate and necessary relation to the offense.
[42]
[43]
[44]
[45]
[46]
Acts constitutive of an attempt to commit a felony should be distinguished

from preparatory acts which consist of devising means or measures necessary
for accomplishment of a desired object or end. One perpetrating preparatory
acts is not guilty of an attempt to commit a felony. However, if the preparatory
acts constitute a consummated felony under the law, the malefactor is guilty of
such consummated offense. The Supreme Court of Spain, in its decision of
March 21, 1892, declared that for overt acts to constitute an attempted offense, it
is necessary that their objective be known and established or such that acts be of
such nature that they themselves should obviously disclose the criminal objective
necessarily intended, said objective and finality to serve as ground for
designation of the offense.
[47]
[48]
[49]
There is persuasive authority that in offenses not consummated as the

material damage is wanting, the nature of the action intended (accion fin) cannot
exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio). Hence, it is necessary that the acts of the accused
must be such that, by their nature, by the facts to which they are related, by
circumstances of the persons performing the same, and by the things connected
therewith, that they are aimed at the consummation of the offense. This Court
emphasized in People vs. Lamahang that:
[50]
[51]
The relation existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct; the intention
must be ascertained from the facts and therefore it is necessary, in order to
avoid regrettable instances of injustice, that the mind be able to cause a

particular injury.
[52]
If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony. The law does
not punish him for his attempt to commit a felony. The rationale of the law, as
explained by Viada:
[53]
[54]
La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en
el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la
conciencia, una gracia un perdon que concede la Ley al arrepentimiento
voluntario.
[55]
As aptly elaborated on by Wharton:
First, the character of an attempt is lost when its execution is voluntarily

abandoned. There is no conceivable overt act to which the abandoned purpose
could be attached. Secondly, the policy of the law requires that the offender, so
long as he is capable of arresting an evil plan, should be encouraged to do so,
by saving him harmless in case of such retreat before it is possible for any evil
consequences to ensue. Neither society, nor any private person, has been
injured by his act. There is no damage, therefore, to redress. To punish him
after retreat and abandonment would be to destroy the motive for retreat and
abandonment.
[56]
It must be borne in mind, however, that the spontaneous desistance of a

malefactor exempts him from criminal liability for the intended crime but it does
not exempt him from the crime committed by him before his desistance.
[57]
In light of the facts established by the prosecution, we believe that accusedappellant intended to have carnal knowledge of private complainant. The overt
acts of accused-appellant proven by the prosecution were not mere preparatory
acts. By the series of his overt acts, accused-appellant had commenced the
execution of rape which, if not for his spontaneous desistance, will ripen into the
crime of rape. Although accused-appellant desisted from performing all the acts
of execution however his desistance was not spontaneous as he was impelled to
do so only because of the sudden and unexpected arrival of Rossel. Hence,
accused-appellant is guilty only of attempted rape. In a case of similar factual
backdrop as this case, we held:
[58]
Applying the foregoing jurisprudence and taking into account Article 6 of the
Revised Penal Code, the appellant can only be convicted of attempted rape. He
commenced the commission of rape by removing his clothes, undressing and
kissing his victim and lying on top of her. However, he failed to perform all the
acts of execution which should produce the crime of rape by reason of a cause
other than his own spontaneous desistance, i.e., by the timely arrival of the
victims brother. Thus, his penis merely touched Mary Joys private
organ. Accordingly, as the crime committed by the appellant is attempted rape,
the penalty to be imposed on him should be an indeterminate prison term of six
(6) years of prision correccional as minimum to twelve (12) years of prision
mayor as maximum.
The penalty for attempted rape is prision mayor which is two degrees lower
than reclusion perpetua. Accused-appellant should be meted an indeterminate
penalty the minimum of which should be taken from prision correccional which
[59]
has a range of from six months and one day to six years and the maximum of
which shall be taken from the medium period of prision mayor which has a range
of from eight years and one day to ten years, without any modifying
circumstance. Accused-appellant is also liable to private complainant for moral
damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered
as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty
beyond reasonable doubt of simple rape under Article 335 of the Revised Penal
Code as amended and is hereby meted the penalty of reclusion
perpetua. Accused-appellant is also hereby ordered to pay private complainant
Analia Orillosa the amounts of P50,000.00 by way of civil indemnity
and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty
of attempted rape under Article 335 of the Revised Penal Code as amended in
relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as
minimum to ten years of prision mayor in its medium period, as
maximum. Accused-appellant is hereby ordered to pay private complainant
Analia Orillosa the amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is
hereby found guilty beyond reasonable doubt of two counts of simple rape,
defined in Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua for each count. Accused-appellant is
hereby ordered to pay to private complainant Analia Orillosa the amount
of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of
moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, and Azcuna, JJ., concur.
Bellosillo, J., on leave.
SUPREME COURT
Manila
EN BANC
G.R. No. L-5848
April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the
defendant-appellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder
against the person of Tan Siong Kiap, and sentencing him to suffer an indeterminate
sentence of 6 years, 1 month, and 11 days of prision mayor, to 14 years, 8 months, and 1
day of reclusion temporal, to indemnify the offended party Tan Siong Kiap in the sum of
P350, without subsidiary imprisonment in case of insolvency, and to pay the costs. The case
was appealed to the Court of Appeals, but that court certified it to this Court under the
provisions of section 17 (4) of Republic Act No. 296, on the ground that the crime charged
was committed on the same occasion that the defendant-appellant had committed crime of
murder, with which the defendant-appellant was also charged.
The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he
started firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan
Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at
Jose Sy, asked the defendant-appellant, "What is the idea?" Thereupon defendant-appellant
turned around and fired at him also. The bullet fired from defendant-appellant's pistol entered
the right shoulder of Tan Siong Kiap immediately ran to a room behind the store to hide.
From there he still heard gunshot fired from defendant-appellant's pistol, but afterwards
defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated.
He stayed there from September 3 to September 12, 1949, when he was released upon his
request and against the physician's advice. He was asked to return to the hospital for further
treatment, and he did so five times for a period of more than ten days. Thereafter his wound
was completely healed. He spent the sum of P300 for hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of September 3, 1949,
before shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On
September 5 information was received by the Manila Police Department that defendantappellant was in custody of the Constabulary in Tarlac, so a captain of the Manila police by
the name of Daniel V. Lomotan proceeded to Tarlac. There he saw the defendant-appellant
and had a conversation with him. On this occasion defendant-appellant and had a
conversation with him. On this occasion defendant-appellant admitted to Lomotan that his
victims were Tan Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also
delivered to Lomotan the pistol used by the defendant-appellant, marked Exhibit C, and its
magazine, Exhibit C-1, both of which the Constabulary had confiscated from the defendantappellant. The defendant-appellant was thereupon delivered to the custody of Lomotan, and
the latter brought him to Manila, where his statement was taken down in writing. This
declaration was submitted at the time of the trial as Exhibit D, and it contains all the details of
the assaults that defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian,
and Jose Sy. This written statement was taken down on a typewriter and afterwards signed
by the defendant-appellant in both his Chinese and Filipino names, the latter being
Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior to September 3,
1949, he was employed as an attendant in a restaurant belonging to Ong Pian. Defendantappellant's wife by the name of Vicenta was also employed by Ong Pian's partner, Eng
Cheng Suy. Prior to September 3 the relatives of his wife had been asking the latter for help,
because her father was sick. Defendant-appellant asked money from Ong Pian, but the latter
could only give him P1. His wife was able to borrow P20 from her employer, and this was
sent to his wife's parents in Cebu. Afterwards defendant-appellant was dismissed from his
work at the restaurant of Ong Pian, and he became a peddler. Ong Pian presented a list of
the sums that defendant-appellant had borrowed from him, and these sums were deducted
from the salary of his wife. Defendant-appellant did not recognize these sums as his
indebtedness, and so he resented Ong Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before September 3, 1949,
defendant-appellant had been able to realize the sum of P70 from the sales of medicine that
he peddled. He laid his money in a place in his room, but the following morning he found that
it had disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy,
upon the discovery of the loss of money, told defendant-appellant that he must have given
the money to his wife, and that nobody had stolen it. After this incident of the loss, the
defendant-appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that
the money had not been actually stolen, but that he lost it in gambling. Because of these
accusations against him, he nurtured resentment against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol
and tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there
shot Ong Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy
and Tan Siong Kiap were, and there he fired at them. Then he escaped to Legarda Street, in
Sampaloc, where he borrowed P1 from his relatives. From there he went to Malabon, to the
house of his mother, to whom he told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the defendant-appellant in
Exhibit D on September 6, 1949. At the time of the trial, however, he disowned the
confession and explained that he signed it without having read its contents. He declared that
it was not he who shot the three victims, but it was one by the name of Chua Tone, with
whom he had previously connived to kill the three other victims. He introduced no witnesses,
however, to support his denial. Neither did he deny that he admitted before Captain Lomotan
having killed the three persons, or having been found in Tarlac in possession of the caliber .
45 pistol, Exhibit C, and its magazine, Exhibit C-1. In his cross-examination he admitted
many of the incidents mentioned in the confession, especially the cause of his resentment
against his victims Ong Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the crime
charged.
On this appeal counsel for the defendant-appellant claims that the trial court erred in not
finding that Tan Siong Kiap received the shot accidentally from the same bullet that had been
fired at Jose Sy, and in finding that defendant-appellant has committed a crime distinct and
separate from that of murder for the slaying of Jose Sy. We find no merit in this contention.
According to the uncontradicted testimony of the offended party Tan Siong Kiap, when the
latters saw defendant-appellant firing shots he asked him why he was doing so, and the
defendant-appellant, instead of answering him, turned around and fired at him also. It is not
true, therefore, that the shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the judgment of conviction.
We also find no merit in this contention. The evidence submitted to prove the charge consists
of: the uncontradicted testimony of the victim himself; the admissions made verbally by the
defendant-appellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant
had escaped and was found in Tarlac; his possession of the .45 caliber pistol coupled with
the fact, attested to by the testimony of the physician who examined and treated the wounds
of Tan Siong Kiap, that the wounds found in his person must have been caused by the
caliber .45 bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit D,
which he was not able to impugn. As against this mass of evidence, defendant-appellant has
only made a very unbelievable story that it was not he but another that had committed the
crime charged. His admissions at the time of the trial regarding the incidents, as well as the
cause of his having assaulted his victims, coincide exactly with the reasons given in his
written confession. This shows that he had made the confession himself, for nobody but
himself could have known the facts therein stated. The claim that the offense has not been
proved beyond reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay
an indemnity of P350. The offended party testified that he actually spent P300 for hospital
and doctor's fees, and that he was confined in the hospital for nine days. The above facts
stand uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less serious
physical injuries instead of the crime of frustrated murder as defendant-appellant admitted in
his confession in the open court that he had a grudge against the offended party, and that he
connived with another to kill the latter. The intent to kill is also evident from his conduct in
firing the shot directly at the body of the offended party.
But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal,
because it did not touch any of the vital organs of the body. As a matter of fact, the medical
certification issued by the physician who examined the wound of the offended party at the
time he went to the hospital, states that the wound was to heal within a period of fourteen
days, while the offended party actually stayed in the hospital for nine days and continued
receiving treatment thereafter five time for the period of more than ten days, or a total of not
more than thirty days. The question that needs to be determined, therefore, is: Did the
defendant-appellant perform all the acts of execution necessary to produce the death of his
victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People
vs. Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused
actually commit all the acts of execution necessary to produce the death of his victim, but
that it is sufficient that he believes that he has committed all said acts. In the case of People
vs. Dagman, supra, the victim was first knocked down by a stone thrown at him, then
attacked with a lance, and then wounded by bolos and clubs wielded by the accused, but the
victim upon falling down feigned death, and the accused desisted from further continuing in
the assault in the belief that their victim was dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended victim, but the knife with
which he committed the aggression instead of hitting the body of the victim, lodged in the
back of the chair in which he was seated, although the accused believed that he had already
harmed him. In both these cases this Court held that of the crime committed was that of
frustrated murder, because the subjective phase of the acts necessary to commit the offense
had already passed; there was full and complete belief on the part of the assailant that he
had committed all the acts of execution necessary to produce the death of the intended
victim.
In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit,
but he was able to escape and hide in another room. The fact that he was able to escape,
which appellant must have seen, must have produced in the mind of the defendant-appellant
that he was not able to his his victim at a vital part of the body. In other words, the defendantappellant knew that he had not actually all the acts of execution necessary to kill his victim.
Under these circumstances, it can not be said that the subjective phase of the acts of
execution had been completed. And as it does not appear that the defendant-appellant
continued in the pursuit, and as a matter of fact, he ran away afterwards a reasonable doubt
exist in our mind that the defendant-appellant had actually believed that he has committed all
the acts of execution or passed the subjective phase of the said acts. This doubt must be
resolved in favor of the defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as
charged in the information. We only find him guilty of attempted murder, because he did not
perform all the acts of execution, actual and subjective, in order that the purpose and
intention that he had to kill his victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby, modified and the
defendant-appellant is found guilty of the crime of attempted murder, and the sentence
imposed upon him reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day
of prision correccional to 10 years of prision mayor. In all other respects the judgment is
affirmed. With costs against the defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.
EN BANC
ARISTOTEL VALENZUELA y G. R. No. 160188
NATIVIDAD,
Petitioner, Present:
PUNO, C.J.,
QUISUMBING,
SANTIAGO,
- versus - GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:
June 21, 2007

x----------------------------------------------------------------------------x
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result, he
should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a
common theory expounded in two well-known decisions[1] rendered decades
ago by the Court of Appeals, upholding the existence of frustrated theft of
which the accused in both cases were found guilty. However, the rationale
behind the rulings has never been affirmed by this Court.
As far as can be told,[2] the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.[3] A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,

[4]
and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us
to finally and fully measure if or how frustrated theft is susceptible to
commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19 May 1994, at
around 4:30 p.m., petitioner and Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North
EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his
post at the open parking area of the supermarket. Lago saw petitioner, who
was wearing an identification card with the mark Receiving Dispatching
Unit (RDU), hauling a push cart with cases of detergent of the wellknown Tide brand. Petitioner unloaded these cases in an open parking space,
where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramaticand again unloaded these boxes to the same area in the open
parking space.[7]
Thereafter, petitioner left the parking area and haled a taxi. He

boarded the cab and directed it towards the parking space where Calderon
was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who proceeded
to stop the taxi as it was leaving the open parking area. When Lago asked
petitioner for a receipt of the merchandise, petitioner and Calderon reacted
by fleeing on foot, but Lago fired a warning shot to alert his fellow security
guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.[8] The filched items seized
from the duo were four (4) cases ofTide Ultramatic, one (1) case of Ultra 25
grams, and three (3) additional cases of detergent, the goods with an
aggregate value of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security office before
they were transferred on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for investigation. It appears from
the police investigation records that apart from petitioner and Calderon, four
(4) other persons were apprehended by the security guards at the scene and
delivered to police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of the Quezon
City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day
after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner and Calderon
both claimed having been innocent bystanders within the vicinity of the
Super Sale Club on the afternoon of 19 May 1994 when they were haled by
Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he
was at the Super Sale Club to withdraw from his ATM account,
accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the
ATM was long, Calderon and Rosulada decided to buy snacks inside the
supermarket. It was while they were eating that they heard the gunshot fired
by Lago, leading them to head out ofthe building to check what was
transpiring. As they were outside, they were suddenly grabbed by a security

guard, thus commencing their detention.[12] Meanwhile, petitioner testified
during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at the
parking lot, walking beside the nearby BLISS complex and headed to ride a
tricycle going to Pag-asa, when they saw the security guard Lago fire a shot.
The gunshot caused him and the other people at the scene to start running, at
which point he was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until around 9:00
p.m., at which time he and the others were brought to the Baler Police
Station. At the station, petitioner denied having stolen the cartons of
detergent, but he was detained overnight, and eventually brought to the
prosecutors office where he was charged with theft. [14]During petitioners
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 Decision[16] promulgated on 1 February 2000, the Regional Trial Court
(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of
the crime of consummated theft. They were sentenced to an indeterminate
prison term of two (2) years of prision correccional as minimum to seven
(7) years of prision mayor as maximum.[17] The RTC found credible the
testimonies of the prosecution witnesses and established the convictions on
the positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal, [18] but only
petitioner filed a brief[19] with the Court of Appeals, causing the appellate
court to deem Calderons appeal as abandoned and consequently dismissed.
Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was
never placed in a position to freely dispose of the articles stolen. [20] However,
in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this
contention and affirmed petitioners conviction.[22] Hence the present Petition
for Review,[23] which expressly seeks that petitioners conviction be modified
to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively

conceded both his felonious intent and his actual participation in the theft of
several cases of detergent with a total value of P12,090.00 of which he was
charged.[25] As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the
RTC and the Court of Appeals. The only question to consider is whether
under the given facts, the theft should be deemed as consummated or merely
frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites[26] two decisions rendered many years ago by the Court of
Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the
interest of this Court, as they modified trial court convictions from
consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his
appeal to the Court of Appeals, yet the appellate court did not expressly
consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift
to the Dio and Flores rulings since they have not yet been
expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to
pass before us. Yet despite the silence on our part, Dio and Flores have
attained a level of renown reached by very few other appellate court rulings.
They are comprehensively discussed in the most popular of our criminal law
annotations,[29] and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they actually
occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal,
such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that
involves the thief having to exit with the stolen property through a
supervised egress, such as a supermarket checkout counter or a parking area
pay booth, may easily call for the application of Dio and Flores. The fact
that lower courts have not hesitated to lay down convictions for frustrated
theft further validates that Dio and Flores and the theories offered therein on
frustrated theft have borne some weight in our jurisprudential system. The
time is thus ripe for us to examine whether those theories are correct and
should continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative to frustrated theft, it is necessary to first refer to the
basic rules on the three stages of crimes under our Revised Penal Code.[30]
Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated when all the elements
necessary for its execution and accomplishment are present. It is frustrated
when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator. Finally, it is
attempted when the offender commences the commission of a felony
own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or that
portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the
offender which, with prior acts, should result in the consummated crime.
[31]
After that point has been breached, the subjective phase ends and the
objective phase begins.[32] It has been held that if the offender never passes
the subjective phase of the offense, the crime is merely attempted. [33] On the
other hand, the subjective phase is completely passed in case of frustrated
crimes, for in such instances, [s]ubjectively the crime is complete.[34]
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing the
commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised
Penal Code are generally enumerated in the code itself, the task of
ascertaining whether a crime is attempted only would need to compare the
acts actually performed by the accused as against the acts that constitute the
felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was produced after all
the acts of execution had been performed hinges on the particular statutory
definition of the felony. It is the statutory definition that generally furnishes
the elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.
The long-standing Latin maxim actus non facit reum, nisi mens sit
rea supplies an important characteristic of a crime, that ordinarily, evil intent
must unite with an unlawful act for there to be a crime, and accordingly,
there can be no crime when the criminal mind is wanting. [35] Accepted in this
jurisdiction as material in crimes mala in se,[36] mens reahas been defined
before as a guilty mind, a guilty or wrongful purpose or criminal intent,
[37]
and essential for criminal liability.[38] It follows that the statutory
definition of ourmala in se crimes must be able to supply what the mens
rea of the crime is, and indeed the U.S. Supreme Court has comfortably held
that a criminal law that contains no mens rearequirement infringes on
constitutionally protected rights.[39] The criminal statute must also provide
for the overt acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also be
an actus reus.[40]
It is from the actus reus and the mens rea, as they find expression in
the criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental
question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is assigned
the legislative role of defining crimes. Fortunately, our Revised Penal Code
does not suffer from such infirmity. From the statutory definition of any
felony, a decisive passage or term is embeddedwhich attests when the felony
is produced by the acts of execution. For example, the statutory definition of
murder or homicide expressly uses the phrase shall kill another, thus making
it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by
any person who, with intent to gain but without violence against
or intimidation of persons nor force upon things, shall take
personal property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail

to deliver the same to the local authorities or to its
owner;
2. Any person who, after having maliciously damaged
the property of another, shall remove or make use of
the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a
field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall
hunt or fish upon the same or shall gather cereals, or
other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative
and highly idiosyncratic means by which theft may be committed.[41] In the
present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft the taking of
personal property of another. It is also clear from the provision that in order
that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that there
be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon
things.[42]
In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined by Gaius, was
so broad enough as to encompass any kind of physical handling of property
belonging to another against the will of the owner,[43] a definition similar to
that by Paulus that a thief handles (touches, moves) the property of another.
[44]
However, with the Institutes of Justinian, the idea had taken hold that
more than mere physical handling, there must further be an intent of
acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This
requirement of animo lucrandi, or intent to gain, was maintained in both the
Spanish and Filipino penal laws, even as it has since been abandoned
in Great Britain.[46]
In
Spanish
law, animo
lucrandi was
compounded
with apoderamiento, or unlawful taking, to characterize theft. Justice
Regalado notes that the concept of apoderamientoonce had a controversial
interpretation and application. Spanish law had already discounted the belief
that mere physical taking was constitutive of apoderamiento, finding that it
had to be coupled with the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the lawful
owner of the thing.[47] However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the
taking[48] or an intent to permanently deprive the owner of the stolen
property;[49] or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of
the proprietary rights of the owner already constituted apoderamiento.
[50]
Ultimately, as Justice Regalado notes, the Court adopted the latter
thought that there was no need of an intent to permanently deprive the owner
of his property to constitute an unlawful taking.[51]
So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the
operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to
the present case, the moment petitioner obtained physical possession of the
cases of detergent and loaded them in the pushcart, such seizure motivated
by intent to gain, completed without need to inflict violence or intimidation
against persons nor force upon things, and accomplished without the consent
of the SM Super Sales Club, petitioner forfeited the extenuating benefit a
conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft,
we are obliged to apply Article 6 of the Revised Penal Code to ascertain the
answer. Following that provision, the theft would have been frustrated only,
once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, do not produce [such theft] by reason of causes
independent of the will of the perpetrator. There are clearly two
determinative factors to consider: that the felony is not produced, and that
such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular
case. The first, however, relies primarily on a doctrinal definition attaching
to the individual felonies in the Revised Penal Code[52] as to when a
particular felony is not produced, despite the commission of all the acts of
execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is

necessary to inquire as to how exactly is the felony of theft produced.
Parsing through the statutory definition of theft under Article 308, there is
one apparent answer provided in the language of the law that theft is already
produced upon the tak[ing of] personal property of another without the
latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector
was charged with theft after he abstracted a leather belt from the baggage of
a foreign national and secreted the item in his desk at the Custom House. At
no time was the accused able to get the merchandise out of the Custom
House, and it appears that he was under observation during the entire
transaction.[54] Based apparently on those two circumstances, the trial court
had found him guilty, instead, of frustrated theft. The Court reversed, saying
that neither circumstance was decisive, and holding instead that the accused
was guilty of consummated theft, finding that all the elements of the
completed crime of theft are present.[55] In support of its conclusion that the
theft was consummated, the Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the
land of another. As he was in the act of taking the fruit[,] he was
seen by a policeman, yet it did not appear that he was at that
moment caught by the policeman but sometime later. The court
said: "[x x x] The trial court did not err [x x x ] in considering the
crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the adjoining
land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him
for an interval of time." (Decision of the Supreme Court of Spain,
October 14, 1898.)
Defendant picked the pocket of the offended party while
the latter was hearing mass in a church. The latter on account of
the solemnity of the act, although noticing the theft, did not do
anything to prevent it. Subsequently, however, while the
defendant was still inside the church, the offended party got back
the money from the defendant. The court said that the defendant
had performed all the acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house
and by means of a key opened up a case, and from the case took a
small box, which was also opened with a key, from which in turn
he took a purse containing 461 reales and 20 centimos, and then
he placed the money over the cover of the case; just at this
moment he was caught by two guards who were stationed in
another room near-by. The court considered this as consummated

robbery, and said: "[x x x] The accused [x x x] having materially
taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands
with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced;
only the act of making use of the thing having been frustrated,
which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain,
June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension.
The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from sometime later in the 1898
decision; to the very moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882 decision; and before the
thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such
intervals proved of no consequence in those cases, as it was ruled that the
thefts in each of those cases was consummated by the actual possession of
the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is People
v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the
victim when the latter, perceiving the theft, caught hold of the [accused]s
shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards
caught by a policeman.[58] In rejecting the contention that only frustrated
theft was established, the Court simply said, without further comment or
elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the
crime of theft. If the pocket-book was afterwards recovered,
such recovery does not affect the [accuseds] criminal liability,
which arose from the [accused] having succeeded in taking the
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.[65] The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. Before
the Court of Appeals, accused argued in the alternative that he was guilty
only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that
literally frustrated the theft. However, the Court of Appeals, explicitly
relying on Dio, did find that the accused was guilty only of frustrated, and
not consummated, theft.
As noted earlier, the appellate court admitted it found no substantial
variance between Dio and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Dio, citing a traditional
ruling which unfortunately was not identified in the decision itself. However,
the Court of Appeals pointed out that the said traditional ruling was qualified
by the words is placed in a situation where [the actor] could dispose of its
contents at once.[66] Pouncing on this qualification, the appellate court noted
that [o]bviously, while the truck and the van were still within the compound,
the petitioner could not have disposed of the goods at once. At the same
time, the Court of Appeals conceded that [t]his is entirely different from the
case where a much less bulk and more common thing as money was the
object of the crime, where freedom to dispose of or make use of it is
palpably less restricted,[67] though no further qualification was offered what
the effect would have been had that alternative circumstance been present
instead.
Synthesis of the Dio and Flores rulings is in order. The determinative

characteristic as to whether the crime of theft was produced is the ability of
the actor to freely dispose of the articles stolen, even if it were only
momentary. Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining whether
theft had been consummated, es preciso que so haga en circunstancias tales
que permitan al sustractor de aquella, siquiera sea mas o menos
momentaneamente. The qualifier siquiera sea mas o menos
momentaneamente proves another important consideration, as it implies that
if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Dio or Flores, as the stolen items in
both cases were retrieved from the actor before they could be physically
extracted from the guarded compounds from which the items were filched.
However, as implied inFlores, the character of the item stolen could lead to a
different conclusion as to whether there could have been free disposition, as
in the case where the chattel involved was ofmuch less bulk and more
common x x x, [such] as money x x x.[68]
In his commentaries, Chief Justice Aquino makes the following
pointed observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is

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

from Adiao and other cases, also states that [i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing
was frustrated.[72]
There are at least two other Court of Appeals rulings that are at
seeming
variance
with
the Dio and Flores rulings. People
v.
[73]
Batoon involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused
onto a passenger truck where the arrest was made. While the trial court
found the accused guilty of frustrated qualified theft, the Court of Appeals
held that the accused was guilty of consummated qualified theft, finding that
[t]he facts of the cases ofU.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the
crime of theft.[74]
In People v. Espiritu,[75] the accused had removed nine pieces of
hospital linen from a supply depot and loaded them onto a truck. However,
as the truck passed through the checkpoint, the stolen items were discovered
by the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Dio, the Court of Appeals held that
the accused were guilty of consummated theft, as the accused were able to
take or get hold of the hospital linen and that the only thing that was
frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense.[76]
In pointing out the distinction between Dio and Espiritu, Reyes wryly
observes that [w]hen the meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the stage of execution of that
felony.[77] Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact,
given the disputed foundational basis of the concept of frustrated theft itself,
the question can even be asked whether there is really such a crime in the
first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty
of frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Courts 1984 decision in Empelis v.
IAC.[78]
As narrated in Empelis, the owner of a coconut plantation had espied
four (4) persons in the premises of his plantation, in the act of gathering and
tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered.
The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police.
After trial, the accused were convicted of qualified theft, and the issue they
raised on appeal was that they were guilty only of simple theft. The Court
affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,[79] but further held that the accused were guilty only of
frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the parties.
What does appear, though, is that the disposition of that issue was contained
in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified
theft because petitioners were not able to perform all the acts of
execution which should have produced the felony as a
consequence. They were not able to carry the coconuts away from
the plantation due to the timely arrival of the owner.[80]
No legal reference or citation was offered for this averment,

whether Dio, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation
in Empelis.
Empelis held that the crime was only frustrated because the actors were not
able to perform all the acts of execution which should have produced the
felon as a consequence.[81] However, per Article 6 of the Revised Penal
Code, the crime is frustrated when the offender performs all the acts of
execution, though not producing the felony as a result. If the offender was
not able to perform all the acts of execution, the crime is attempted, provided
that
the
nonperformance was by reason of some cause or accident 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 delhurto no lo consume
efectivamente. Otherwise put, it would be difficult to foresee how the
execution of all the acts necessary for the completion of the crime would not
produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept frustrated theft,
as proposed in Dio andFlores. A final ruling by the Court that there is no
crime of frustrated theft in this jurisdiction will not lead to scholastic pariah,
for such a submission is hardly heretical in light of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court
to look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are, to
accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that
must compel us to adopt the Dio and Flores doctrines, the answer has to be
in the negative. If we did so, it would arise not out of obeisance to an
inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a
function that allows breathing room for a variety of theorems in competition
until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that
it lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due respect
for the prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and
breath of the conduct the law forbids.[89]
With that in mind, a problem clearly emerges with
the Dio/Flores dictum. The ability of the offender to freely dispose of the
property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative
element of theft or as the mens rea or actus reus of the felony. To restate
what this Court has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or force upon
things.[90]
Such factor runs immaterial to the statutory definition of theft, which
is the taking, with intent to gain, of personal property of another without the
latters consent. While theDio/Flores dictum is considerate to the mindset of
the offender, the statutory definition of theft considers only the perspective
of intent to gain on the part of the offender, compounded by the deprivation
of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the crime
of theft produced? There would be all but certain unanimity in the position
that theft is produced when there is deprivation of personal property due to
its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has
already ensued from such acts of execution. This conclusion is reflected in
Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or
robbery the crime is consummated after the accused had material possession
of the thing with intent to appropriate the same, although his act of making
use of the thing was frustrated.[91]
It might be argued, that the ability of the offender to freely dispose of
the property stolen delves into the concept of taking itself, in that there could
be no true taking until the actor obtains such degree of control over the
stolen item. But even if this were correct, the effect would be to downgrade
the crime to its attempted, and not frustrated stage, for it would mean that
not all the acts of execution have not been completed, the taking not having
been accomplished. Perhaps this point could serve as fertile ground for
future discussion, but our concern now is whether there is indeed a crime of
frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular
case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period
of time that he was able to drop these off at a spot in the parking lot, and
long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking,
or apoderamiento, is deemed complete from the moment the offender gains
possession of the thing, even if he has no opportunity to dispose of the same.
[92]
And long ago, we asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft is the
taking of the thing to be appropriated into the physical power of
the thief, which idea is qualified by other conditions, such as that
the taking must be effected animo lucrandi and without the
consent of the owner; and it will be here noted that the definition
does not require that the taking should be effected against the will
of the owner but merely that it should be without his consent, a
distinction of no slight importance.[94]
Insofar as we consider the present question, unlawful taking is most

material in this respect. Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article
308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft
can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to
consider that once the offenders therein obtained possession over the stolen
items, the effect of the felony has been produced as there has been
deprivation of property. The presumed inability of the offenders to freely
dispose of the stolen property does not negate the fact that the owners have
already been deprived of their right to possession upon the completion of the
taking.
Moreover, as is evident in this case, the adoption of the rule that the
inability of the offender to freely dispose of the stolen property frustrates the
theft would introduce a convenient defense for the accused which does not
reflect any legislated intent,[95] since the Court would have carved a viable
means for offenders to seek a mitigated penalty under applied circumstances

that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief.
Would this depend on the psychological belief of the offender at the time of
the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual

circumstances such as the size and weight of the property, the location of the
property, the number and identity of people present at the scene of the crime,
the number and identity of people whom the offender is expected to
encounter upon fleeing with the stolen property, the manner in which the
stolen item had been housed or stored; and quite frankly, a whole lot more.
Even the fungibility or edibility of the stolen item would come into account,
relevant as that would be on whether such property is capable of free
disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath
all the colorful detail, the owner was indeed deprived of property by one
who intended to produce such deprivation for reasons of gain. For such will
remain the presumed fact if frustrated theft were recognized, for therein, all
of the acts of execution, including the taking, have been completed. If the
facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the attempted
stage, as not all of the acts of execution have been performed. But once all
these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the
theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in
common sense. Yet they do not align with the legislated framework of the
crime of theft. The Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the free
disposition of the items stolen is in any way determinative of whether the
crime of theft has been produced. Dio itself did not rely on Philippine laws
or jurisprudence to bolster its conclusion, and the later Flores was ultimately
content in relying on Dio alone for legal support. These cases do not enjoy
the weight of stare decisis, and even if they did, their erroneous appreciation
of our law on theft leave them susceptible to reversal. The same holds true
of Empilis, a regrettably stray decision which has not since found favor from
this Court.
We thus conclude that under the Revised Penal Code, there is no

crime of frustrated theft. As petitioner has latched the success of his appeal
on our acceptance of the Dioand Flores rulings, his petition must be denied,
for we decline to adopt said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no frustrated theft under the
Revised Penal Code does not detract from the correctness of this conclusion.
It will take considerable amendments to our Revised Penal Code in order
that frustrated theft may be recognized. Our deference to Viada yields to the
higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724
April 3, 1990

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for 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. 71-75, 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. 89,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. L-37400, April 15,
1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358,
March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be
a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies
deserves a little discussion which is, the testimony of the victim that the accused asked her
to hold and guide his penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an aggressor's advances is
being helped-out by the victim in order that there will be a consumation of the act." (p.
34, Rollo). The allegation would have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the
trial court on the credibility of witnesses should be accorded the highest respect because it
has the advantage of observing the demeanor of witnesses and can discern if a witness is
telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor
the trial court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be
desired as to the sincerity of the offended party in her testimony before the court. Her
answer to every question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication hungry and thirsty for
the immediate vindication of the affront to her honor. It is inculcated into the mind of
the Court that the accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to
show that rape was committed provided her testimony is clear and free from contradiction
and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135
SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The
victim in this case did not only state that she was raped but she testified convincingly on how
the rape was committed. The victim's testimony from the time she knocked on the door of the
municipal building up to the time she was brought to the hospital was corroborated by Pat.
Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio
Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint
marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence
exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house
and was fully satisfied that the narration of the scene of the incident and the conditions
therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry
the weight of both accused and offended party without the slightest difficulty, even in
the manner as narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v.
Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the
ground which was correctly estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued. Common experience will
tell us that in occasion of conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable heights without being
injured. How much more for a frightened barrio girl, like the offended party to whom
honor appears to be more valuable than her life or limbs? Besides, the exposure of
her private parts when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her
mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312),
We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the
latter and managed to gain sanctuary in a house owned by spouses hardly known to
her. All these acts she would not have done nor would these facts have occurred
unless she was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to
corroborate the allegations in the complaint and the non-presentation of the medico-legal
officer who actually examined the victim. Suffice it to say that it is up to the prosecution to
determine who should be presented as witnesses on the basis of its own assessment of their
necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v.
Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal
officer who actually examined the victim, the trial court stated that it was by agreement of the
parties that another physician testified inasmuch as the medico-legal officer was no longer
available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error
fall flat on its face. Some were not even substantiated and do not, therefore, merit
consideration. We are convinced that the accused is guilty of rape. However, We believe the
subject matter that really calls for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief that there is no conclusive
evidence of penetration of the genital organ of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares
the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of
rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
xxx
xxx
xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a
woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies
as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated
stages apply to the crime of rape. Our concern now is whether or not the frustrated stage
applies to the crime of rape.
1wphi1
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. L38968-70, 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.
SUPREME COURT
Manila
EN BANC
G.R. No. L-32624 February 12, 1980
vs.
PACIANO NIERRA alias Pacing, GAUDENCIA NIERRA, FELICISIMO DOBLEN alias

Simoy and VICENTE ROJAS, accused-appellants; GASPAR MISA, accused whose death
sentence is under automatic review.
Jose W. Diokno for appellant Nierra.
Sedfrey A. Ordoez for accused Misa.
Alberto Cacnio for appellants Doblen and Rojas.
Solicitor General Estelito P. Mendoza, Assistant Solicitor Octavio R Ramirez and Trial
Attorney Lolita C. Dumlao for appellee.
PER CURIAM:
Felicisimo Doblen, Vicente Rojas and the spouses Pagano Nierra and Gaudencia Nierra
appealed from the decision dated March 4, 1970 of Judge Pedro Samson C. Animas of the
Court of First Instance of South Cotabato, General Santos City Branch II, convicting them of
murder, sentencing each of them to death and ordering them to pay solidarity an indemnity
of twelve thousand pesos to the heirs of the victim Juliana Nierra (Criminal Case No. 2081).
Gaspar Misa, who pleaded guilty to the murder charge, was also sentenced to death and
ordered to pay a similar indemnity (Decision of August 25, 1969, pp. 36-8, Record). His
death sentence is under automatic review.
According to the evidence of the prosecution, Juliana Gadugdug-Nierra, 52, and Pagano
Nierra, 39, her brother-inlaw, were competitors in the businesses of launch transportation
and the sale of soft drinks in Barrio Tinago, General Santos City. Juliana sold coca-cola while
Pagano sold pepsi-cola. Juliana was the owner of two motor launches, Elsa I and II, while
Paciano was the owner of two launches, Sylvania I and II. Juliana was the wife of Aniceto
Nierra, Paciano's elder brother. To mollify Pagano, by diminishing the competition between
their launches, Aniceto sold Elsa II. Nonetheless, Aniceto and Paciano were not on speaking
terms.
In order to monopolize those businesses in the locality, Paciano Nierra conceived the Idea of
liquidating his competitor, Juliana. For that purpose, Felicisimo Doblen, a cousin-in-law of
Paciano, accompanied to Paciano's house in the afternoon of July 4, 1969 Gaspar Misa, 29,
a convicted murderer who in 1965 had escaped from the Davao Penal Colony (Exh. E-4 and
E-5, pp. 10-11, Folder of Exhibits). Misa came to Barrio Tinago in June, 1969. He resided
with his cousin, Silvestre Misa. (See Pareja vs. Gomez and People, 115 Phil. 820.)
Upstairs in the bedroom of Paciano's house, Misa, in the presence of Gaudencia GarridoNierra, the wife of Paciano, agreed to kill Juliana in consideration of three thousand pesos.
Paciano promised that in the morning after the killing he would pay Misa four hundred pesos
near the municipal hall of Tupi, South Cotabato which is about forty kilometers away from
General Santos City. The balance would be paid in the same place on August 12, 1969.
That arrangement was confirmed by Gaudencia. When Misa scheduled the assassination on
July 8, 1969, Pagano said that it was up to Misa since he was the one who would kill Juliana.
In the evening of July 6, 1969, Doblen, in behalf of Pagano Nierra, delivered to Misa at the
beach a package containing a caliber .38 pistol with five bullets. Misa contacted his friend,
Vicente Rojas, and apprised him that he (Misa) had been hired to kill Juliana. Misa asked
Rojas to act as lookout on the night of July 8, 1969 when the killing would be perpetrated.
On that night, Rojas posted himself at the Bernadette store near the creek or canal about
twenty-seven steps from the scene of the crime. Gaudencia was stationed near the house of
Maning Desinorio about eighteen steps from the scene of the crime. Pagano was near the
house of Juanito Desinorio about twenty-seven steps from the scene of the crime. The
houses of the two Desinorios were separated from the house of Juliana Nierra by an alley.
Misa secluded himself near a warehouse about five steps from the scene of the crime in
close proximity to the back of Juliana's house where. as he had previously observed some
nights before, she used to answer the call of nature. The house was at the back of the Esso
Gas Station near the beach of Sarangani Bay at Barrio Tinago, General Santos City.
Between seven and eight o'clock that night, the unwary Juliana went to the beach where she
was accustomed to void and when she squatted, Misa unexpectedly appeared behind her,
held her hair, thus tilting her face, and while in that posture, he inserted into her mouth the
muzzle of the pistol and fired it. Paciano and Gaudencia, who were near the beach,
witnessed the actual killing.
The postmortem examination disclosed that Juliana sustained a gunshot wound in the
tongue. The bullet passed through the buccal cavity down to the spinal column where the
slug was extracted.
Aniceto Nierra, on hearing the gunshot and the ensuing commotion, went down from the
house and saw his prostrate wife with blood oozing from her mouth and nose. Her panty was
pulled down, her dress was raised up to her waist, and her genital organ was exposed. At the
hospital, the doctor pronounced her dead.
After firing the gun, Misa walked slowly on the beach in front of Paciano and Gaudencia,
passed by the alley between the houses of Tony Desinorio and Francisco Desinorio,
emerged at the back of the Esso Gas Station crossed the creek or canal on the west,
reached the Lagao road, threw the gun into the dense talahib grass and rode on a bus. He
proceeded to the Saint Elizabeth Hospital. Then, he changed his mind and returned to the
beach near the victim's house.
The Nierra spouses left the scene of the crime by passing through the alley between the
house of the victim and the Desinorio houses, which alley separated the building of the
Northern Lines and the Matutum Hotel from the Esso Gas Station, and emerged on A.
Morrow Boulevard which intersects Saguing Street where Paciano and Gaudencia resided.
Their residence was about two hundred meters away from the scene of the crime.
A witness, residing at Morrow Boulevard, who happened to be at the Villa Bus Terminal at
around eight-thirty in the evening of July 8, 1969, when the killing was perpetrated, testified
that she saw Pagano Nierra wearing an underwear and striped T-short running from Saguing
Street to Barrio Tinago. About five minutes later, she saw Pagano the boulevard and running
towards Saguing Street. He was wearing long pants. The witness made a statement to the
police about what she had seen.
Early in the morning of the next day, Misa took a bus bound for Tupi and alighted near the
municipal building. Paciano Nierra arrived in that place and gave him four hundred pesos.
Misa returned to General Santos City, gave fifty pesos to Rojas, and proceeded to the
victim's house where he mingled with the persons playing cards and domino. He kept vigil
there, staying there for four nights.
He resumed his old job of looking for passengers for the , buses and the pumpboat of Rojas.
He received a commission of one peso per passenger. Policemen arrested him and Rojas as
for questioning but they were later released. He left the city and brought his family to Barrio
Luan, Maitum South Cotabato. There, he was arrested again, this time by Constabulary
soldiers.
On August 7, 1969, Misa was interrogated by Patrolman A.B. Vencer Jr. of the city police
department. He signed a confession admitting the killing of Juliana Nierra and implicating the
other accused therein. The statement was sworn to before the fiscal. Two days later, he
reenacted the killing. Photographs were taken of the reenactment. A sketch of the scene of
the crime was prepared.
On August 11, 1969, Misa testified at the preliminary in-vestigation. In his testimony, he
admitted again the killing and confirmed his confession implicating Paciano Nierra, his wife
Gaudencia, Doblen and Rojas. He executed another confession on August 12, 1969 which
was sworn to before the city judge.
Thirty-seven days after the killing or on August 14, 1969, Misa, Doblen, Rojas and the Nierra
spouses, as co-conspirators, were charged with murder aggravated by reward, treachery,
evident premeditation, nocturnity, ignominy and abuse of superiority and, as to Misa,
recidivism, since he had been sentenced to reclusion perpetuafor the murder of Antonio
Abad Tormis in Cebu City.
As already stated, Misa pleaded guilty. At the trial of his co accused, his confessions and
testimony were offered by the prosecution and were the main bases of the judgment of
conviction and the imposition of the death penalty.
As separate briefs were filed for the defendants, their individual cases will be separately
reviewed.
Misa's case. His counsel de oficio contends that Misa made an improvident plea because
the trial court allegedly failed to explain thoroughly to him the gravity of the offense and the
consequences of his plea of guilty.
That contention is not well-taken. Misa, as an escaped prisoner, had acquired some
experience in criminal procedure. Not only that. He executed two extrajudicial confessions.
He reenacted the crime as the triggerman He testified at the preliminary investigation, and,
after he was sentenced to death, he was the prosecution star witness during the trial of his
co-accused. His testimony against his co-accused, delineating their roles in the commission
of the killing, which he had perpetrated, fortified his plea of guilty and removed any scintilla of
doubt as to his culpability and as to his understanding of the consequences of his mea
culpa (See People vs. Duaban, L-31912, August 24, 1979).
Under the circumstances, we cannot grant counsel de oficio's prayer that the judgment of
conviction be set aside and that the case be remanded to the lower court for new trial To hold
a new trial. wherein Misa himself would again be the star prosecution witness, would be a
repetitious and preposterous ceremony.
The case of the Nierra spouses. They denied any complicity in the killing of Juliana Nierra.
Their version is that in the evening of July 8, 1969, at about eight o'clock in the evening,
Paciano Nierra was inside a room of his house. Gaudencia Nierras was in her room, writing
something. Eduardo Nierra, the couple's son, was alone in the sala while Encarnacion
Sabihon a housemaid, was somewhere in the house premises.
Paciano heard somebody coming up the house. When he came out of the room, he met
Nolasco Docallos who said that Juliana Nierra was shot. Paciano Nierra asked who shot her.
Docallos answered that he did not know.
Docallos asked Paciano for permission to use the latter's motorcycle in going to the hospital.
Paciano instructed his son Eduardo to render assistance. Paciano could not go out because
two years before he had undergone a surgical operation in Cebu City. Gaudencia could not
leave the children alone in the house. Eduardo phoned from the funeral parlor that Juliana
was already dead.
At about five-thirty in the morning of the following day, Gaudencia went to the funeral parlor.
She talked with Rodelio, the son of Juliana. Aniceto Nierra, her brother-in-law and husband
of the victim, did not answer when she tried to talk with him.
Paciano woke up at six o'clock that morning. He and his wife and their Muslim friend Pandita
E. Saguil and Fernando Erro, the uncle of Paciano, boarded a bus and went to Tupi
ostensibly to buy bamboos for the outrigger of a vinta, a trip which the Nierra spouses had
previously agreed upon with Saguil. They arrived in Tupi at past ten o'clock. They were not
able to buy bamboos. They ate lunch at the Fernandez Restaurant.
The group returned to General Santos City, arriving there at two o'clock in the afternoon.
They went to the funeral parlor. They were not able to talk with Aniceto Nierra. In the evening
of that day, Gaudencia led the prayers for the repose of the soul of Juliana and she
performed that task on the second, third and fourth nights. She did not lead the prayers on
the succeeding nights because she was advised that it was bad for her to do so. Their child
attended the novena Paciano could not attend the novena because he had kidney trouble.
They gave one hundred pesos to Juliana's family as contribution to the funeral expenses.
The Nierra spouses attended the funeral. During the burial, Aniceto lost consciousness and
collapsed Paciano revived him by pressing his abdomen. After the coffin was placed in the
tomb, Paciano closed the niche. The Nierra spouses gave to Aniceto an additional two
hundred pesos (Pars. 5-6 and 9-15, pp. 6-11, Appellants' Brief).
Appellants Nierra contend that Misa was not a credible witness because he was a recidivist
and his testimony is riddled with inconsistencies. That contention is devoid of merit.
Misa testified against his own penal interest. The basic point in his confessions and
testimony was that he was hired by the Nierra spouses, through Doblen to kill Juliana for the
price of three thousand pesos. That is sufficient for the conviction of the Nierra spouses as
the inducers of the assassination of Juliana. The discrepancies in his testimony refer to
minor details.
And the fact that the Nierra spouses did not comply with their contractual commitment to pay
Misa the balance of two thousand six hundred pesos must have impelled him to unmask
them and to reveal the truth even if such a revelation speeled his own destruction.
The contention that there was no proof of conspiracy among the accused is belied by the
facts shown in the record. Misa had no personal motive for killing Juliana Nierra. He was
induced to do so because of the monetary consideration promised by the Nierra spouses.
Doblen (Simoy), married to Paciano's cousin, introduced Misa to the Nierra spouses. Before
Juliana's assassination, Gaudencia had contracted Misa to kill Nene Amador, her former
housemaid, who was allegedly Paciano's mistress. That projected killing did not materialize.
Appellants Nierra contend that Misa's testimony as to the alleged conspiracy is inadmissible
in view of the rule that "the act or declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration" (Sec. 27, Rule 130,
Rules of Court).
It is argued that before Misa's testimony could be admitted as evidence against appellants
Nierra, the alleged conspiracy must first be proven by evidence other than such testimony
and that there is no such independent evidence. This argument is wrong. It is not supported
by action 27 of Rule 130
Section 27 "applies only to extrajudicial acts or declarations but not to testimony given on the
stand at the trial where the defendant has the opportunity to cross-examine the declarant"
(People vs. Serrano, 105 Phil. 531, 541).
Appellants Nierra contend that the trial court erred in finding that the motive for the killing
was to stifle business competition. This argument is refuted by the testimonies of Aniceto
Nierra and his son Rodelio which show that Paciano Nierra was antagonistic to his sister-inlaw, Juliana, the manager or "brains" of Aniceto's transportation and coca-cola distribution
businesses.
In 1967, Paciano attempted to destroy Aniceto's launch, Elsa II, while it was under
construction. Aniceto had to sell that launch because of Paciano's threat that somebody
would be hurt if its operation was continued. Pagano told Rodelio that the latter's mother,
Juliana, who was pockmarked was bad and dominated her husband Aniceto. On two
occasions, Paciano even challenged his brother to a fight.
Another contention of the appellants is that the trial court convicted them on the basis of the
hearsay testimonies of Guillermo Sanchez and Jose Samoya. This argument is misleading.
The judgment of conviction was anchored principally on the confessions and testimony of
Misa, the tool used by the Nierra spouses in encompassing Juliana's death. Misa's evidence
cannot be regarded as hearsay.
The testimonies of Sanchez and Samoya merely proved that Misa, Rojas and Doblen were
implicated in the killing of Juliana Nierra. It was the affidavit of Sanchez, linking Misa to the
killing, that gave the police a breakthrough in the solution of the case. After the connection of
Misa with the crime was established, the police arrested him and obtained his confessions
which implicated appellants Nierra as the investigators.
The Nierras in their fifth assignment of error contend that the trial court erred in admitting as
evidence the affidavit of appellant Vicente Rojas (Exh. J) which was obtained through an
alleged promise of immunity. The record is not clear as to that promise of immunity. Rojas'
statement was taken on August 1, 1969. On August 12, he testified at the pre investigation.
The record of his testimony before the fiscal was signed by him. He was assisted by counsel
at that pre investigation. (Exh. K et seq.) No promise of immunity was shown to have been
made by the fiscal to Rojas.
In any event, his affidavit is a minor piece of evidence and is cumulative in character. As
already stated, the crucial and decisive evidence consists of Misa's testimony and
confessions.
Appellants Nierra complain that lawyer Cornelio Falgui acted acted the preliminary
investigation as counsel of appellant Doblen, having been allegedly hired by the offended
party, Aniceto Nierra, and then at the trial, he acted as counsel de oficio of Misa who pleaded
guilty. He also appeared for Doblen (6 and 19 tsn).
The alleged double role of Falgui cannot be regarded as having unduly prejudiced appellants
Nierra who, as already noted, were convicted on the basis of Misa's confessions and
testimony. The appellants have not successfully overthrown or rebutted Misa's evidence.
It was Doblen who acted as a double agent. He was a tool of Paciano Nierra and at the
same time he posed as a friend on Aniceto Nierra by pretending that he had no hand in the
assassination of Aniceto's wife.
We are convinced that the guilt of appellants Nierra was proven beyond reasonable doubt.
On the night of the shooting, Paciano Nierra and Gaudencia Nierra did not go to the funeral
parlor to view the remains of Juliana.
After Paciano and Gaudencia were charged with murder, there was a confrontation between
the said spouses and Aniceto Nierra in the house of their brother, Alonso, in the presence of
their other brother, Gerundio. The following dialogue took place between Paciano and
Aniceto:
Paciano: Noy, why did you suspect us to be the killers of your
wife?
Aniceto: Will you still deny when Gaspar Misa pointed to you
that you were standing by the post and Paciano (Gaudencia)
was also standing in a another post when he (Misa) killed my
wife. From now on I have no brother by the name of Pacing.
Paciano did not comment on his brother's accusation.
Moreover, Misa wrote the following note to Paciano when they were confined in the city jail
(translation):
My companion Pacing (Paciano):
I am directly telling you and you could be sure that I will do my best that you
will be free. Before the trial of (in) court, I would like that you give me the sum
of P600 even if you give the cash advance of P 500 before Sunday. OK and
you give the same thru the hole.
Your
companion,
(Sgd.) Gaspar
Misa
Believe me that I will free you and burn this immediately. (Exit 1)
The above note clearly proves that Misa and Paciano were co- conspirators. The Nierras
were co-principals by inducement. By acting as lookouts during the perpetration of the killing,
they became co-principals by cooperation as well.
Appeal of Doblen and Rojas. Doblen's alibi was that on the night of the killing, he was
stranded at Margos, Glan, South Cotabato. He returned to General Santos City at ten o'clock
in the morning of the following day. He denied that he accompanied Misa to the house of
Paciano Nierra on July 4, 1969 and that he delivered to Misa the package containing the
murder weapon.
Rojas' alibi was that on the night of the killing he slept in his pumpboat at Lion's Beach,
General Santos City. However, that could not have precluded him from having acted as
lookout on that same beach.
These appellants, like the Nierra spouses, contend that Misa's confessions and testimony
have no probative value because there was no other evidence proving the alleged
conspiracy. As already stated, that rule does not apply to testimony given on the witness
stand where the defendants have the opportunity to cross-examine the declarant (People vs.
Dacanay, 92 Phil. 872).
It is contended that Doblen was not a co-conspirator because he was not present when Misa
and the Nierra spouses discussed the liquidation of Juliana Nierra and that when Doblen
delivered the package to Misa, he (Doblen) did not know that it contained the murder
weapon. As to Rojas, it is contended that he was not present at the said conference between
Misa and the Nierra spouses.
These contentions are not well-taken. The activities of Doblen and Rojas indubitably show
that they had community of design with the Nierra spouses and Misa in the assassination of
Juliana Nierra.
Like appellants Nierra, Rojas' counsel de oficio contends that the trial court erred in admitting
the affidavit of Rojas (Exh. J) because it was obtained under an alleged promise of immunity.
It should be noted that Rojas' affidavit does not contain anything connecting him to the
murder. In that affidavit, he denied that he had any participation in the commission of the
crime and that he conspired with Misa. So, the admission in evidence of that affidavit did not
prejudice him at all.
The killing was correctly characterized by the trial court as murder qualified by treachery and
aggravated by premeditation and price or reward. As to the Nierras, relationship is an
additional aggravating circumstance.
Treachery absorbed nocturnity and abuse of superiority. The manner in which Misa
liquidated Juliana Nierra added shame, disgrace or obloquy to the material injury caused by
the crime. Hence, ignominy is aggravating (U.S. vs. Abaigar 2 Phil. 417).
In Misa's case, recidivism as an aggravating circumstance offset his plea of guilty. That did
not preclude the imposition of the death penalty upon him.
Considering the aggravating circumstances, the death penalty imposed on the Nierra
spouses is in accordance- with law. However, for lack of the requisite ten votes, the death
penalty imposed on Gaudencia Nierra should be commuted to reclusion perpetua.
Doblen's role was that of having introduced Misa to the Nierra spouses and delivering the
murder weapon to Misa. He was not present at the scene of the crime. On the other hand,
Rojas acted as lookout and received fifty pesos for his work.
After a conscientious reflection on the complicity of Doblen and Rojas, we have reached the
conclusion that they should be held guilty as accomplices. It is true, strictly speaking, that as
co-conspirators they should be punished as co-principals. However, since their participation
was not absolutely indispensable to the consummation of the murder, the rule that the court
should favor the milder form of liability may be applied to them (People vs. Tamayo, 44 Phil.
38 and other cases).
In some exceptional situations, having community of design with the principal does not
prevent a malefactor from being regarded as an accomplice if his role in the perpetration of
the homicide or murder was, relatively speaking, of a minor character (See People vs. Ubia,
97 Phil. 515; U.S. vs. Doming 1st, 37 Phil. 446; People vs. Daligdig, 89 Phil. 598; People vs.
Largo, 99 Phil. 1061).
WHEREFORE, (1) the lower court's judgment is affirmed with respect to Gaspar Misa and
Paciano Nierra.
(2) The death sentence imposed on Gaudencia Nierra is communited to reclusion
perpetua. The civil liability imposed upon her by the trial court is affirmed.
(3) Appellants Felicisimo Doblen and Vicente Rojas are convicted as accomplices. They are
each sentenced to an indeterminate penalty of ten years of prision mayor medium as
minimum to seventeen years of reclusion temporalmedium as maximum and to pay solidarily
with the principals an indemnity of six thousand pesos (as their quota) to the heirs of Juliana
Nierra. They are each subsidiarily liable to the extent of six thousand pesos for the principals'
civil liability. Costs against the accused.
Fernando, C.J., Teehankee, Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr.,
Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Abad Santos, J., took no part.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 94065 December 2, 1991

ROBERTO SITON y ENSALADA, petitioner,
vs.
HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PARAS, J.:p
Can there be a conspiracy in a free-for-all fight? This is the issue we are faced with.
At around 11:00 o'clock in the evening of February 9, 1985, Norberto Notar, a barangay
tanod of the place, was outside the Hair Works Beauty Salon located near the corner of A.
Francisco and Chromium Streets, Sta. Ana, Manila. 1 Also in the vicinity were accused-appellant Roberto
Siton, Joey Calip, nephew of Notar, and Andres Borbon, a resident of the area. 2Subsequently, a group of seven to eight young
men, including Roylan Holgado, passed by, walking towards Chromium Street.
A brief exchange of words occurred between Norberto Notar and Holgado. Subsequently, a
free-for-all ensued between the group of Holgado on one hand, and Norberto Notar, Joey
Calip, Andres Borbon, and the accused-appellant, Roberto Siton, on another.
At the end of the melee, both Holgado and Notar suffered stab wounds. Holgado suffered
two stab wounds, one of which was fatal, causing his death. He expired later at the
Philippine General Hospital. 3 Notar was confined at the Manila Doctors Hospital for a stab wound on his left chest but
was later released after recovering. 4
Prosecution witness Bernardo Ferrer testified that at around 10:30 o'clock on the night of
February 9, 1985, he was with Gerry Flores at the corner of Aqua Marina and A. Francisco
Streets when their friends from Tondo, numbering about seven arrived and invited them to a
Valentine's party. When they declined, the group, led by his friend, Roylan Holgado,
proceeded towards Chromium Street. After five minutes, they heard shouts coming from the
direction of Chromium Street. Thus, Ferrer and Flores proceeded to Chromium Street. 5 The
trial court summarized what Bernardo Ferrer saw:
While approaching the place, Bernardo (Ferrer) saw Andres Borbon hit
Roylan with a piece of wood on the head, Roberto Siton, alias "Berting Tura",
who was behind Roylan stabbed Roylan with an icepick on the right hip once.
Thereafter, Joey Calip also stabbed Roylan on the right side of the waistline
with a kitchen knife once. Afterwards, Roylan fell and was taken to Philippine
General Hospital by his companions and Bernardo. The victim, Roylan was
thereafter treated by the doctors but the same proved futile as he died. 6
Mario Pahita, a cashier at the Hair Works Beauty Salon, testified for the defense. He averred
that at around 11: 00 o'clock on the night of February 9, 1985, he was in front of his beauty
parlor with two of his beauticians, Joy and Rolly. Notar was also with them. They then saw a
group of around seven to eight young men, including Roylan Holgado, walk past them,
towards Chromium Street. After a while, they heard sounds of what seems to be stones
being hurled at the roofs of houses. Then, they saw the same group of men retreating
towards their direction. Notar asked Holgado what the noise was all about. The latter replied:
"Wala yon." The group, which appeared to be drunk and heavy-eyed, was advised by Notar
to go home as the police might pass by. 7 The lower court summed up the ensuing events:
The group of Roylan resented the advice of Norberto and suddenly, the latter
was boxed by one of the companions of Roylan. Later on, all of them ganged
up on him. Roylan stabbed Norberto with an icepick. On the other hand, Joey
Calip, nephew of Norberto, stabbed Roylan two (2) times at the right side of
his stomach with a bladed weapon. 8
The defense presented another witness, Mario Baul, a member of Holgado's group which
figured in the free-for-all. He testified that he, together with Roylan Holgado and some five
others, were on their way to his house on Chromium Street when they were met by Norberto
Notar. After uttering some words which he (Baul) did not understand, Notar stood up and
boxed Holgado. Then a free-for-all ensued. He did not see the accused-appellant Roberto
Siton. 9
For his part, accused-appellant Roberto Siton gave an alibi and asseverated that in the
evening of February 9, 1985, he was in Cainta, Rizal, in the house of his sister, Miguela Siton
Soliman, a public school teacher. He was there from February 8, 1986 and stayed until
February 15, 1986, to borrow money from his sister. 10
The trial court gave credence to the positive identification made by Bernardo Ferrer and
disregarded the alibi of Roberto Siton, who was charged to have conspired with others in
murdering the victim, Roylan Holgado. Consequently, the Regional Trial Court of Manila,
Branch XI, 11 in a decision rendered on March 1, 1988, found Roberto Siton guilty beyond reasonable doubt of the crime of
homicide. The dispositive portion of the decision reads:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt
of the crime of homicide and hereby sentences him to suffer the
indeterminate penalty of TWELVE (12) YEARS of prision mayor as a
minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion
temporal as maximum, less preventive period of his confinement, and to pay
the heirs of Roylan Holgado the amount of P30,000.00 as indemnity for the
latter's death.
SO ORDERED. 12
Unsatisfied with the judgment of the trial court, accused-appellant Roberto Siton elevated his
case to the Court of Appeals. The Sixth Division of the Court of Appeals 13 upheld the angle of
conspiracy and in a decision promulgated on March 27, 1990, affirmed in toto the decision of the trial court. The appellate court
disposed:
WHEREFORE, finding the decision of March 1, 1988 of the RTC-Manila,

Branch II, in Criminal Case No. 85-41920, to be in accordance with law and
evidence, the same is hereby AFFIRMED in all respects. Costs against
accused-appellant.
The Office of the City Fiscal of Manila is hereby directed to file the necessary
information against the persons, whose identities are now known, although
their present whereabouts are still unknown, and who, according to the
information filed in the present case, conspired and confederated with each
other and with the accused-appellant Roberto Siton in killing the deceased
Roylan Holgado.
SO ORDERED. 14
Upholding its findings of the existence of a conspiracy, the appellate court
15 denied the accused-
appellant's motion for reconsideration in a

resolution 16 promulgated on June 26, 1990.
Accused-appellant Roberto Siton now comes before us and argues that the Court of Appeals
erred in finding that there is conspiracy in a free-for-all. Consequently, it erred in finding the
accused-appellant guilty beyond reasonable doubt of the crime of homicide.
The accused-appellant contends that in a free-for-all fight, the protagonists do not have the
sole objective of mauling or killing a particular individual. Rather, the protagonists were
excited by their reflexes to face their opponents as the exigency of the fighting demands.
Under Article 8 of the Revised Penal Code, "conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it." In
the case at bar (as testified by the defense witness, Mario Pahita), the deceased was
stabbed by Joey Calip not because of a concerted action but in retaliation only to the act of
the deceased in stabbing his relative, Norberto Notar. Certainly, there was no indication of a
common purpose or design to constitute conspiracy.
The accused-appellant then asserts that even assuming that he had joined in attacking the
victim, "such act alone does not satisfy the requirement of a conspiracy because the rule is
that neither joint nor simultaneous action isper se sufficient proof of conspiracy. It must be
shown to exist as clearly and convincingly as the commission of the offense itself."
There being no conspiracy, the accused-appellant submits that his liability should be limited
to his participation only, assuming arguendo that he indeed participated.
The Solicitor-General, however, maintains that conspiracy was present because the
malefactors, including Roberto Siton, acted in concert pursuant to the same objective, i.e.,
the killing of Roylan Holgado, which objective they were in fact able to attain. Settled is the
rule that for conspiracy to exist, the evidence need not establish the actual agreement which
shows the pre-conceived plan, motive, or interest, or purpose in the commission of the
crime. 17
Conspiracy need not be proved by direct evidence as the same can be inferred from the acts
of the conspirators to the effect that at the time the offense was committed the participants
had the same purpose and were united in its execution. 18 Thus, when the defendants by their acts aimed
at the same object, one performing one part and another performing another part so as to complete it, with a view to the
attainment of the same object, and their acts, though apparently independent, were in fact concerted and cooperative, indicating
closeness of personal association, concerted action, and concurrence of sentiments, conspiracy is present. 19
We modify the findings of the appellate court.

We affirm the assailed decision with respect to the findings that an alibi, when faced with
positive identification, deserves scant consideration. Be that as it may, we believe conspiracy
was absent.
Well-entrenched is the doctrine that when an accused has been positively identified by clear,
explicit, and convincing evidence, his defense of alibi can not be given weight. Accordingly,
we affirm the presence of the accused-appellant in the free-for-all fight which resulted in the
death of Roylan Holgado.
Alibi, as we have repeatedly held, must yield to and can not prevail over the positive
identification made by the prosecution's witness. 20 The testimony of defense witness Mario Baul as to the
absence of accused-appellant can not likewise be given credence as he testified that he was somewhat drunk during the
incident. 21
On the issue of conspiracy, we hold that it was not established beyond reasonable doubt.
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 22 In the present case, there is no showing that there was a
previous agreement relating to the commission of the crime, it appearing that the meeting between the group of Notar and the
group of Holgado was casual and unarranged, and the aggression ensued at the spur of the moment. 23 Although proof of the
agreement may be inferred from the acts and conduct of the conspirators disclosing a common understanding among them with
respect to the commission of the offense, 24 we have also invariably ruled that like the offense itself, conspiracy must be proved
beyond reasonable doubt. 25
Conspiracy, like any other ingredient of the offense, must be shown by clear and convincing
evidence. 26 Indeed, conspiracy was not established since the attack on Roylan Holgado was not agreed upon beforehand.
The meeting between the two groups was not planned in advance. It was unexpected and unarranged; the fracas was
instantaneous, perhaps caused by the arrogance of Notar and the intoxication of Holgado (since the three alleged eyewitnesses
gave conflicting testimonies on what exactly precipitated the free-for-all).
It is evident from the records that there could not have been a pre-conceived plan to attack
Holgado as there was a free-for-all. This is very clear. Prosecution witness Bernardo Ferrer
testified thus:
WITNESS:
There was a free-for-all, sir, "Naglabu-labo."
COURT:
The companions of Roylan Holgado, numbering six (6) also

engaged with [sic] the fistcuff fight with the group of Norberto
Notar?
WITNESS:
Yes, Your Honor. 27
In fact, the attack on Holgado could not have been pre-planned as Holgado had with
him six other men compared to Notar's company which was comprised of only the
accused-appellant Siton, Calip, and Borbon. For Notar's group to intentionally single
out Holgado would be dangerous as it would expose them to the probable assault of
Holgado's six other companions. The attack on Holgado was a spontaneous reaction
in response to a situation the Notar group found itself in.
As early as 1929, this Court has ruled in People of the Philippine Islands v. Caballero, et
al. 28 that it is not enough that the attack be joint and simultaneous; it is necessary that the assailants be animated by one and
the same purpose. A conspiracy must be shown to exist as clearly and convincingly as the crime itself.
We reiterated this ruling in People v. Bartolay (1971) 29 and in People v. Dorico (1973). 30 Once more, we
rely on it. Consequently, we hold that conspiracy was not established beyond reasonable doubt.
Since conspiracy has not been proven, the responsibility of the accused is individual and the
accused must be dealt with individually. 31
Going back to the testimony of prosecution witness, Bernardo Flores, it is plain and clear that
accused-appellant Roberto Siton stabbed the victim, Roylan Holgado on the latter's right hip.
The record speaks for itself:
ATTY. SEBASTIAN:
Mr. Witness, you stated that Roberto Siton alias Berting Tura stabbed Roylan
Holgado with an icepick, will you please inform the Honorable Court what
part of the body of Roylan Holgado was stabbed by Roberto
Siton alias Berting Tura?
WITNESS: (Bernardo Flores):
The right hip, sir. 32
But the stab wound inflicted by Roberto Siton was non-fatal.
This was confirmed by the medico-legal officer of the Western Police District:
COURT:
Wound No. 1 (referring to the penetrating stab wound slashing the right lobe
of the liver, piercing the right kidney and grazing the 1st lumbar vertebra,
inflicted by Joey Calip as per the testimony of Bernardo Ferrer), will you show
again where the vital organ is affected.
WITNESS:
The right lobe of the liver piercing the kidney.
xxx xxx xxx
COURT:
That wound No. 1 could be the cause of death?
WITNESS:
Yes, Your Honor.
xxx xxx xxx
COURT:
Could this kind of injury (referring to wound No. 2, a stab wound on the right
hip region inflicted by accused-appellant Roberto Siton) cause the death of
the victim?
WITNESS:
No, sir. This is non-fatal (references, supplied).
33
Absent any evidence proving conspiracy, accused-appellant Roberto Siton can not be held
liable for homicide but merely for less serious physical injuries, considering the extent of the
stab wound he inflicted on the victim. It would be safe to presume that the offended party
would have been incapacitated for labor for ten days or more, or would have required
medical attendance of the same period, by reason of the stab wound on his hip should he
have not suffered any other injury (Article 265 of the Revised Penal Code).
WHEREFORE, the appealed decision is hereby MODIFIED by finding accused-appellant
Roberto Siton y Ensalada guilty of less serious physical injuries and sentencing him to suffer
the penalty of imprisonment of four (4) months of arresto mayor with the accessory penalties
provided by law and to pay the costs. If he has been detained for a period longer than four
(4) months, his immediate release from custody is hereby ordered, unless he is being held to
answer for some other offense or offenses.
SO ORDERED.
THIRD DIVISION
LEONILO SANCHEZ alias NILO,
Appellant,
G.R. No. 179090

Present:
YNARES-SANTIAGO, J.,
Chairperson,
CARPIO,*
CORONA,**
NACHURA, and
PERALTA, JJ.
- versus -
PEOPLE OF THE PHILIPPINES and

COURT OF APPEALS,
Appellees.
Promulgated:
____________________
x------------------------------------------------------------------------------------x
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of

the Rules of Civil Procedure seeking the reversal of the Court of Appeals
(CA) Decision[2] dated February 20, 2007 which affirmed the
Decision[3] dated July 30, 2003 of the Regional Trial Court (RTC) of
Tagbilaran City, Bohol, convicting appellant Leonilo Sanchez alias
Nilo (appellant) of the crime of Other Acts of Child Abuse punishable under
Republic Act (R.A.) No. 7610[4] in relation to Presidential Decree (P.D.) No.
603,[5] with a modification of the penalty imposed.
The Facts
Appellant was charged with the crime of Other Acts of Child Abuse in an
Information[6] dated August 29, 2001 which reads:
The undersigned, Second Assistant Provincial Prosecutor, hereby
accuses Leonilo Sanchez alias Nilo of Lajog, Clarin, Bohol of the
crime of Other Acts of Child Abuse, committed as follows:
That on or about the 2nd day of September, 2000 in the
municipality of Clarin, province of Bohol, Philippines, and within
the jurisdiction of this Honorable Court, acting as a Family Court,
the above-named accused, with intent to abuse, exploit and/or to
inflict other conditions prejudicial to the child's development, did
then and there willfully, unlawfully and feloniously abuse
physically one [VVV],[7] a sixteen (16) year old minor, by hitting
her thrice in the upper part of her legs, and which acts are
prejudicial to the child-victim's development which acts are not
covered by the Revised Penal Code, as amended, but the same are
covered by Art. 59, par. 8 of P.D. No. 603 as amended; to the
damage and prejudice of the offended party in the amount to be
proved during the trial.
Acts committed contrary to the provisions of Section 10(a) in
relation to Sections 3(a) and 3(b) No. 1 of Rep. Act No. 7610 and
Sec. 59(8) of PD 603, amended.
Upon arraignment, appellant pleaded not guilty. Trial on the merits ensued.
In the course of the trial, two varying versions emerged.
Version of the Prosecution
Private complainant VVV was born on March 24, 1984 in Mentalongon,
Dalaguete, Cebu to FFF and MMM.[8]
On September 24, 1997, VVV's father, FFF, started leasing a portion of the
fishpond owned by Escolastico Ronquillo (Escolastico), located at Lajog,
Clarin, Bohol. FFF and his family occupied the house beside the fishpond
which was left by the former tenant.[9]
On September 2, 2000 at around 7:00 in the morning, while VVV was
cutting grass in their yard, appellant arrived looking for FFF who was then at
another fishpond owned by Nilda Parilla located in Boacao,
Clarin, Bohol. VVV knew appellant because he is the husband of
Bienvenida Ronquillo (Bienvenida), one of the heirs of Escolastico. [10] She
noticed that appellant had a sanggot (sickle) tucked in his waist.
Appellant then went to VVVs house and inquired from VVVs younger
brother, BBB, the whereabouts of the latters father. BBB did not answer but
his mother, MMM, told appellant that FFF was not around. Right then and
there, appellant told them to leave the place and started destroying the house
with the use of his sickle. As a result, appellant destroyed the roof, the wall
and the windows of the house.[11] MMM got angry and told appellant that he
could not just drive them away since the contract for the use of the fishpond
was not yet terminated. VVV was then sent by MMM to fetch
a barangay tanod. She did as ordered but barangay tanod Nicolas Patayon
refused to oblige because he did not want to interfere in the problem
concerning the fishpond. On her way back to their house, VVV saw
appellant coming from his shop with a gallon of gasoline, headed to their
house. Appellant warned VVV to better pack up her familys things because
he would burn their house.[12]
Upon reaching their house, VVV saw her brother, BBB, get a piece of wood
from the back of their house to defend themselves and their house from
appellant. However, appellant approached BBB, grabbed the piece of wood
from the latter and started beating him with it. [13] At the sight, VVV
approached appellant and pushed him. Irked by what she did, appellant
turned to her and struck her with the piece of wood three (3) times, twice on
the left thigh and once below her right buttocks. As a result, the wood broke
into several pieces. VVV picked up some of the broken pieces and threw
them back at appellant. MMM restrained BBB, telling him not to fight
back. After which, appellant left, bringing with him the gallon of gasoline.[14]
FFF arrived at about 10:00 in the morning of that day. When he learned
about what had happened, FFF brought his daughter to
the Clarin Health Center for medical attention and treatment.[15] Dr. Vicente
Manalo (Dr. Manalo) attended to VVV and issued her a medical
certificate[16] dated September 2, 2000, stating that VVV sustained the
following:
CONTUSION WITH HEMATOMA PROXIMAL
LATERAL PORTION OF THIGH, RIGHT

TIME
TO
HEAL:
3-4
DAYS,
COMPLICATIONS
BARRING
From the health center, FFF and VVV went to the Clarin Police Station
where they had the incident blottered. [17] Thereafter, FFF requested Eliezer
Inferido to take pictures of the injuries sustained by VVV.[18]
Version of the Defense
Appellant and his wife, Bienvenida, developed and operated the fishpond
from 1982 to 1987. Sometime in 1997, FFF occupied the fishpond and
the nipa hut beside the same, by virtue of a Memorandum of
Agreement[19] (MOA) entered into by FFF with the Heirs of Escolastico, as
represented by Segundino Ronquillo. After the MOA expired in 1998,
appellant and his wife, Bienvenida, decided to discontinue the lease because
they did not understand the management and accounting of FFF. They made
several demands on him to return possession of the fishpond but FFF
refused, asking for a written termination of the contract from all the heirs of
Escolastico. To solve the problem, appellant and Bienvenida engaged the
services of FFF as caretaker of the fishpond, providing him with fingerlings,
fertilizers and all necessary expenses.
This notwithstanding, FFF still failed to make an accounting. Thus, on
September 2, 2000, at around 7:00 in the morning, after pasturing his cattle,
appellant dropped by the house of FFF to ask him to make a detailed
accounting because he and his wife were not satisfied with the harvest in
August of 2000. MMM, however, retorted, saying that they would no longer
make any accounting, as Benny Ronquillo, brother of appellants wife, would
finance the next cropping. Displeased with MMM's statement, appellant got
angry and demanded that they leave the fishpond. FFF's family resented this
demand and a commotion ensued. BBB got a piece of wood and struck
appellant but the latter was able to parry the blow. Appellant got hold of the
piece of wood which actually broke. Intending not to hurt anybody, appellant
threw the same behind him. Suddenly from behind, VVV appeared, got hold
of the said piece of wood and hit appellant once at the back of his shoulder.
Appellant testified that the blow was not strong enough to injure him.[20]
Appellant claimed that he was surprised that a criminal case was filed by
VVV against him for allegedly beating her. Appellant denied that he beat
VVV, saying that the instant case was fabricated and was being used as a
means to extort money from him.[21] Moreover, appellant asseverated that
Ronald Lauren[22] (Ronald) witnessed the incident.
Ronald testified that he saw BBB strike appellant with a piece of wood but
appellant was able to parry the blow; that appellant threw away the piece of
wood; that when appellant threw the piece of wood, there was no one there
at the time; and that appellant left the place immediately.[23]
The RTC's Ruling
On July 30, 2003, the RTC found that at the arraignment, appellant, through
former counsel Atty. Theodore Cabahug (Atty. Cabahug), admitted that he
hit VVV, although unintentionally. Thus, appellant had the burden of
proving that, at the time VVV was hit, appellant was performing a lawful
act. The RTC ruled that the evidence did not favor appellant because his
demand for FFF's family to vacate the fishpond, coupled with threats and
punctuated with actual use of force, exceeded the limits allowed by law. The
RTC also held that the injuries sustained by VVV were distinguishable,
indicating that the blow was forceful, and that the force used was
strong. Thus, the RTC disposed in this wise:
WHEREFORE, premises considered, this Court finds LEONILO
SANCHEZ y Aranas guilty beyond reasonable doubt of violating
paragraph (a), Section 10 of Republic Act No. 7610, and applying
in his favor the Indeterminate Sentence Law, this Court imposes
on him the indeterminate sentence of an imprisonment of Six (6)
years of prision [correccional] as minimum to seven (7) years and
four (4) months of prision mayor as maximum, with costs against
him. The Court orders him to pay [VVV] the sum of TEN
THOUSAND PESOS (P10,000.00) for civil indemnity and the
sum of TEN THOUSAND PESOS (P10,000.00) for damages; the
awards for civil indemnity and damages are without subsidiary
penalties in case of insolvency.
IN ACCORDANCE with letter (f) of Section 31 of Republic Act
No. 7610, the Court exercising its discretion also imposes on
Leonilo Sanchez y Aranas the penalty of a fine of Two Thousand
Pesos (P2,000.00) without subsidiary penalty in case of
insolvency.
SO ORDERED.[24]
Appellant filed a Motion for Reconsideration[25] contending that appellant

never admitted that he hit VVV. The RTC, however, denied the motion in its
Order[26] dated August 8, 2003 for being pro forma. Aggrieved, appellant
appealed to the CA.[27]
The CA's Ruling
On February 20, 2007, the CA held that the record of the proceedings taken
during appellant's arraignment before the RTC belied appellant's contention
that his defense was one of absolute denial. The CA pointed to a
manifestation of appellant's counsel, Atty. Cabahug, in open court that
appellant was putting up an affirmative defense because the act of hitting

VVV was unintentional. Furthermore, the defense of absolute denial
interposed by appellant cannot prevail over the positive and categorical
statements of VVV and her witnesses, giving full credence to the factual
findings of the RTC. The CA also ruled that the Information filed against
appellant was not defective inasmuch as the allegations therein were
explicit. In sum, the CA held that the prosecution had fully established the
elements of the offense charged, i.e., Other Acts of Child Abuse under R.A.
No. 7610 and P.D. No. 603. However, the CA opined that the RTC erred in
applying the Indeterminate Sentence Law because R.A. No. 7610 is a special
law. Lastly, the CA deleted the award of civil indemnity and damages for
utter lack of basis. The fallo of the CA decision reads:
WHEREFORE, all the foregoing considered, the appealed
Judgment dated July 30, 2003 of the Regional Trial Court of
Bohol, Branch 1, Tagbilaran City in Criminal Case No. 11110
finding accused-appellant guilty beyond reasonable doubt of
Other Acts of Child Abuse under Republic Act No. 7610 and
Presidential
Decree
No.
603
is
hereby UPHELD with MODIFICATION as to the penalty
imposed. Accused-appellant is sentenced to suffer an
indeterminate penalty of six (6) years and one (1) day as
minimum to eight (8) years as maximum of prision mayor. The
fine imposed is retained.
The Order dated August 8, 2003 denying appellant's motion for
reconsideration is hereby AFFIRMED.
The award of civil indemnity and damages in the assailed
Decision is deleted.
With costs.
SO ORDERED.[28]
Appellant filed a Motion for Reconsideration[29] which the CA denied in its

Resolution[30] dated July 11, 2007.
[G.R. No. 99838. October 23, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO

ENRIQUEZ y ROSALES and WILFREDO ROSALES y
YUCOT, accused-appellants.
DECISION
VITUG, J.:
Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were

charged with having violated Section 4, Article II, of Republic Act
("R.A.") No. 6425 (Dangerous Drugs Act of 1972), as amended, in an
information that read:
That on or about June 5, 1990, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and mutually helping each
other, not being authorized by law to sell, deliver, give away to another or
distribute any prohibited drug, did then and there wilfully and unlawfully sell
or offer for sale six (6) kgrms of dried flowering tops of marijuana stuffed in a
plastic sack, which is a prohibited drug.
"Contrary to law.
[1]
The antecedent facts leading to the filing of the information,

according to the prosecution, are hereunder narrated.
At around eleven oclock in the morning of 05 June 1990, Sgt. Pedro
I. Cerrillo, Jr., the Officer-in-Charge of the Intelligence and Drug Law
Enforcement Unit of Police Station No. 2 (located in Tondo, Manila) of
the Western Police District, was in the vicinity of North Harbor routinely
scouting for information from his civilian informants. Near the gate
fronting Pier 10, Danny, a porter and member of the Anti-Drug Abuse
Movement ("ADAM"), approached and informed Sgt. Cerrillo that a freelance porter at the North Harbor, a.k.a. Bulag, was looking for
prospective buyers of marijuana. Sgt. Cerrillo instructed Danny to say
that he had come across a couple who would be interested in buying
the prohibited drug. Sgt. Cerrillo had then in mind a possible buy-bust
operation.
The buy-bust plan was broached to Patrolwoman Shirley Maramot
who was manning Police Station No. 2. Fellow police officers were at
the time on duty at the U.S. Embassy where a "rally" by certain activists
was in progress. Using his own owner-type jeep, Sgt. Cerrillo repaired
to his house at 727 Moriones St., Tondo, Manila, to procure ten (10)
pieces of one hundred peso bills to be used in the projected buy-bust
operation. He thereupon had, at a store near the police station, xerox
copies made of the bills that can readily show the serial numbers which
he had also noted down in his personal notebook.
[2]
[3]
[4]
Back at the police station, Sgt. Cerrillo handed the buy-bust money
to Pat. Maramot. Since there were no other "operatives" at the station
available for the operation, Sgt. Cerrillo sought the assistance of ADAM
members Joseph Mendoza, Amado Betita and Alex Trinidad. The team,
including "Danny," were briefed by Sgt. Cerrillo. The plan called for Pat.
Maramot and Mendoza to pose as the couple interested in buying
marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-
up" men. Pat. Maramot was to nod her head as soon as the sale was
consummated.
[5]
At about 11:35 a.m., the group, using two vehicles, proceeded to the
vicinity of Pier 10 at the North Harbor. At the corner of Moriones Street
and Radial Road 10, Pat. Maramot and Mendoza sat on a bench by a
store to wait for the return of Danny, who had meanwhile left to
fetch Bulag, while Sgt. Cerrillo, Trinidad and Betita strategically
positioned themselves at a billiard hall, mingling with spectators and
pretending to be bystanders. The billiard hall was only about ten meters
away from Pat. Maramots group, and it afforded a good view of the
place.
[6]
Moments later, Danny arrived with accused Wilfredo Rosales,

a.k.a. Bulag. Rosales talked with the poseur-buyers. After about five
minutes, the poseur-buyers, Rosales and the informant entered an alley,
walking along shanties, until they reached a house numbered 1349.
A half-naked man in green shorts emerged from one of the doors of
the house. The man, later identified to be accused Ernesto Enriquez,
a.k.a. Nene, asked Pat. Maramot in Visayan accent, Dala mo ba ang
pera? Pat. Maramot took out from her pocket the bundle of the marked
money and showed it to Enriquez. The latter allowed Maramots group to
enter the house. Minutes later, as so pre-arranged, Sgt. Cerrillo
followed and proceeded to house No. 1349. Finding the door closed, he
went around the house. Sgt. Cerrillo saw Pat. Maramot, Mendoza and
the informant exit through the back door. Rosales, carrying a plastic
bag, was with them. Again, Sgt. Cerrillos group followed Pat. Maramot
and Rosales until the latter reached a nearby waiting shed for jeepney
passengers. At this point, Pat. Maramot announced that she was a
policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt. Cerrillo
opened the sack, and inside it was another sack containing marijuana
wrapped in plastic.
[7]
The group hurriedly returned to house No. 1349 only to find that
Enriquez had by then left the premises. The team boarded the police
service jeep and moved on to Kagitingan Street at the Lakandula
detachment. Sgt. Cerrillo interviewed Rosales. Upon being informed
that Enriquez would usually visit the Pier 10 area, Sgt. Cerrillo
proceeded to the place. After scouring the area, a security guard
supervisor at the pier, who accompanied the group, spotted Enriquez
walking near the pier. Sgt. Cerrillo picked up Enriquez and brought him
to the Lakandula detachment for investigation. Later, Minda, the wife of
Enriquez, arrived. Someone, at the request of Enriquez, had fetched her
to "bring the money." Enriquez told her to return the amount to Sgt.
Cerrillo. She took out from her wallet its contents three of which were
the 100-peso marked bills. Minda became hysterical. She embraced
[8]
Sgt. Cerrillo and begged him to forgive her husband. Sgt. Cerrillo told
her to instead see the station commander.
[9]
Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional

rights. Sgt. Cerrillo advised Enriquez, in front of the latters wife, that he
should look for a lawyer so that his statement could be taken. Sgt.
Cerrillo prepared the request for the examination of the evidence taken
from the accused and the affidavit of the latter's arrest.
[10]
[11]
On the evening of 05 June 1990, Minda and other relatives of

Enriquez approached Sgt. Cerrillo for the possibility of "settling" the
case. During the trial, another relative, a senior supervising agent of the
Napolcom, also approached and requested Sgt. Cerrillo to help out.
[12]
Patrolwoman Shirley Maramot, 37 years old, assigned at Police

Station No. 2, corroborated Sgt. Cerrillo. She testified that she was
requested by Sgt. Cerrillo to be the poseur-buyer in the buy-bust
operation conducted in the morning of 05 June 1990 along Alinian
Street, Tondo, Manila. After Sgt. Cerrillo had conducted a briefing and
provided her with the buy-bust money, Pat. Maramot went with
Mendoza, who portrayed the role of her husband, and the informer to
Radial 10 at Pier 14. When Wilfredo Rosales turned up, he asked if she
had cash with her.After being shown the money, Rosales led her to a
house numbered 1349. The poseur-buyers were made to wait
momentarily while Rosales talked to Ernesto Enriquez. Rosales later
signaled Pat. Maramot, who was around four (4) meters away, to again
show her money. Forthwith, Pat. Maramot was led to the house of
Enriquez. Once inside a small room, Enriquez locked the door. Enriquez
asked Pat. Maramot how much money she had. She replied that she
only had P1,000.00 since she was not sure that she could get as much
as the one-half sack of the contraband shown to her. Pat. Maramot was
told she could get the lot for P4,500.00. She said she was willing to get
the lot if she could be trusted with the balance of the price.Enriquez
agreed. Pat. Maramot handed over the P1,000.00 to Enriquez. The
latter was about to hand over the marijuana when he decided to,
instead, have Rosales personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally introduced
herself as a policewoman. Rosales posthaste attempted to board a
passing passenger jeep but Pat. Maramot and Sgt. Cerrillo, who had
rushed in, were able to timely get hold of Rosales.
[13]
NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a

certification to the effect that the specimen submitted to him was
positive for marijuana. Sgt. Cerrillo prepared a case report and the
respective booking sheet and arrest report. The official report of the
[14]
[15]
[16]
NBI forensic chemist, dated 07 June 1990, disclosed the following

findings:
Weight of specimen = 6.00 kilograms (before examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic examinations made on the abovementioned specimen gave POSITIVE RESULTS for MARIHUANA.
[17]
On the same day, Station Commander Benjamin de Jesus endorsed the

case against Enriquez and Rosales to the City Prosecutor for further
proceedings. The inquest fiscal recommended that the two accused be
charged with violation of Section 4, Article II, Republic Act No. 6425, as
amended.
[18]
The defense gave a different version of the incident.

Accused Rosales testified that he had come from Bohol to Manila in
April of 1990 and stayed with accused Enriquez, his cousin, while
working as an extra porter of William Lines. At around 11:30 in the
morning of 05 June 1990, he was on his way home from work when a
male person whom he recognized only by face sought his assistance in
carrying a sack to a place where jeepney commuters would take their
ride. The sack was colored white and emitted the smell of dried fish. He
was promised P20 in exchange for his help. At a junction, a security
guard whom he later identified to be Homer Ciesta, blocked and pushed
him inside a vehicle where he was promptly handcuffed. During the
commotion, the owner of the sack disappeared. Rosales was brought
to a house near the slum area in Parola where P20,000 was quoted for
his release by Sgt. Cerrillo. When Rosales did not heed the demand,
he was brought first to the Lakandula detachment and then to Station
No. 2 of the Western Police District.
[19]
[20]
On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo,

Manila, claimed that he was in the business of purchase and sale of oil
at the North Harbor, under the business name of Nie-Men R. Enriquez
Enterprises, being the grantee of a permit to operate an oil sludge
collection service. He was under contract by the Lorenzo Shipping
Corporation from January 1983 to April 1984. He was also the VicePresident of the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a
civic organization and a recipient of a certification of merit from the
National Steel Corporation.
[21]
[22]
[23]
Recounting his whereabouts in the morning of 05 June 1990,

Enriquez said he left his house at around 11:45 a.m. for Pier 10 of the
North Harbor, barely a thirty-minute walk away from his residence, to
meet his brother, Victor Enriquez, at the pier. He had with him P2,000
in P100 denominations stacked in his wallet. Robinson Lumbis, a

neighbor who was road testing his cab along North Harbor, saw and
greeted Enriquez. Betty Quimbo, another neighbor, later saw Enriquez
with his brother. Appellant took his lunch at home and thereafter
hurriedly returned to the pier. He was not able to spend the night in his
house. The following day, 06 June 1990, at around two oclock in the
afternoon, Enriquez went to the maintenance section of the Lorenzo
Shipping Lines to pay for the oil he had obtained from its vessels.
Homer Ciesta, the officer-in-charge of the security guards of the
shipping line, invited Enriquez, and the latter agreed, to join him (Ciesta)
earn some "extra money." The two left for the squatters area in Parola
and, once there, Ciesta told Enriquez to approach a certain person, later
identified to be Sgt. Cerrillo, who instantly handcuffed him. Sgt. Cerrillo
demanded P20,000 in exchange for his freedom. When he refused to
give in to the demand, Enriquez was brought to the Lakandula
detachment where the P2,000 he had in his wallet was taken and
presented in evidence as the amount used in the buy-bust operation. He
was brought to Station No. 2 of the WPD for investigation. Homer
Ciesta went to tell Arminda, the wife of Enriquez, to bring some money
to the Lakandula police detachment. Arriving at the detachment,
someone approached Arminda and asked her whether she had the
money. She replied in the affirmative. The person then grabbed her
wallet, took its contents and later returned the empty wallet.
[24]
[25]
[26]
[27]
On 24 January 1991, the trial court, giving credence to the evidence

submitted by the prosecution, found both accused guilty beyond
reasonable doubt of the crime charged and sentenced each of them to
life imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez have filed
separate briefs.
Appellant Enriquez insists on his innocence and faults the trial court
for giving too much credence to the testimony of Sgt. Cerrillo and Pat.
Maramot who, Enriquez asserts, have merely framed them up for selfish
motives. He theorizes that it would seem incredible for either Pat.
Maramot or Sgt. Cerrillo to have left and abandoned Station No. 2
considering that the Station Commander and his men have all been
posted in the then on-going rally at the U.S. Embassy. He downgrades
the prosecutions asseveration that Pat. Maramot, being unarmed, could
not effect his immediate arrest, and that Sgt. Cerrillo has so used his
personal funds as marked money. Enriquez also questions the six-day
delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of the

two prosecution witnesses. Almost always, the evaluation made by the
trial court on the credibility of witnesses is viewed with respect. The trial
judge, who has the distinct advantage of being able to observe closely
the demeanor and deportment of witnesses on the stand as well as the
manner in which they testify, undoubtedly can better determine than
anyone else if such witnesses are telling or are not telling the truth. He
is in an ideal position to weigh conflicting testimonies and unless, as so
repeatedly said, he has obviously discarded or missed certain facts of
substance and significance that, otherwise, would have altered his
judgment, an assessment on credibility made by him should indeed
deserve approbation by an appellate court.
[28]
The Court, in the case at bench, has scrutinized the records, and it
finds no justification for holding differently from the findings made by the
trial court.
In drug related cases, particularly in a buy-bust operation, the
contention that the accused has merely been framed up by law
enforcement personnel for selfish motives is quite often raised by the
defense. For this claim to prosper, the evidence adduced must be clear
and convincing in order to overcome the presumption that government
officials have performed their duties in a regular and proper manner.
Appellant, regrettably, has miserably failed to substantiate his
allegations in this respect.
[29]
[30]
Enriquez questions the six-day delay in the filing of the information

against him which he attributes to an extortion attempt made on
him. Like an alleged frame-up, a supposed extortion by police officers
has, too, been a standard defense in drug cases. Appellants failure to
offer evidence, independently of his bare claim of extortion, suggests
that this defense could either be a fabrication or an afterthought. If, truly,
the arresting police officers have tried to extort money from him, it
should have behooved Enriquez to come forward with the proper
charges against the erring police officers. No criminal or administrative
charges appear to have been filed by him. It is equally strange that the
supposed extortions neither appeared in appellant's counteraffidavit nor in his affidavit both prepared by his counsel of choice. In
any event, the Court does not see any real undue delay on the part of
the police. The station commander filed the case with the prosecutor on
07 June 1990, the same day that the NBI forensic chemists official
report was released. The transmittal letter, of the station commander,
bears the recommendation, likewise dated 07 June 1990, of the inquest
fiscal finding a violation of Section 4, Article II, of R.A. No. 6425.
[31]
[32]
[33]
[34]
Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and
Pat. Maramot to have left the police station unmanned just to conduct a
buy-bust operation. Sgt. Cerrillo explained that, being the Intelligence

Officer in Station No. 2, he would spend most of his duty hours in the
field. He chose Pat. Maramot to be the poseur-buyer because she was
not well known in the place of operation. While she had a desk job she
could also be assigned elsewhere when the situation would
demand. Furthermore, the buy-bust operation was conducted in an area
not far from the police station (testified to be at an approximate distance
of between the Manila City Hall and the Luneta Park ).
[35]
[36]
On cross-examination, Pat. Maramot explained why she could not

arrest Enriquez when he received the money. She testified:
ATTY. ESMERO:
"During the time that you were in that room together with Enriquez
and you said that Enriquez took up a half sack of marijuana under the
table, did it not occur to your mind to arrest him immediately during that
time and introduced yourself as a policewoman together with your
husband?
"WITNESS:
"If you will place yourself in my situation, I am so small to arrest a
person and I am not so big so I have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun because they are
outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic) out of the door and after that
contacted Cerrillo. You could have told him immediately because he was
about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:
"You could have knocked at the door if you want to call him?
"WITNESS:
"It could not be heard because in that alley there were adjacent
rooms, sir, `kuwarto-kuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through the back door. Who was
together with you when you went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He could not meet them
immediately because when you go out at that door, it is already a street.[37]
The use of Sgt. Cerrillos own money in the buy-bust operation could
be expected. Police Station No. 2 was not logistically funded. In the
buy-bust operation, only three 100-peso bills of the marked money were
recovered which, unfortunately, were lost to thieves when Sgt. Cerrillo
had momentarily parked his jeep within the vicinity of the police station
on 11 July 1990. He reported this loss along with the loss of an
ammunition belt pack with six (6) live cal. .38 bullets and his Parker
ballpen. At any rate, the non-presentation of the buy-bust money could
not adversely affect the case against appellants.
[38]
[39]
[40]
[41]
Alibi is definitely a weak defense although it may occasionally prove

to be a good plea. In order to be effective, however, this defense
requires proof that it would be physically impossible for the accused to
be at the locus criminis at the time of the commission of the
crime. Where there is even the least chance for the accused to be
present at the crime scene, thealibi seldom will hold water. Most
significantly, the defense of alibi crumbles in the face of a positive
identification of the malefactor.
[42]
[43]
In his case, appellant Rosales argues that to sustain a conviction for

the crime of selling marijuana, the sale must be clearly established
which, he asserts, the prosecution has failed to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425, as amended, the law
penalizes not only the sale but also the delivery of prohibited drugs.
[44]
Section 4. Sale, Administration, Delivery, Distribution and Transportation of

Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging
from twenty thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any prohibited drug, or
shall act as a broker in any of such transactions. If the victim of the offense is a
minor, or should a prohibited drug involved in any offense under this Section
be the proximate cause of the death of a victim thereof, the maximum penalty
herein provided shall be imposed. (Italics supplied.)
Selling is only one of the acts covered by the statutory
provision. The law defines the word deliver as a persons act of
knowingly passing a dangerous drug to another personally or otherwise,
and by any manner with or without consideration. Delivery, although not
incidental to a sale, is a punishable act by itself; while sale may involve
money or any other material consideration, delivery may be with or
without consideration.
[45]
Appellant Rosales contends that while criminal intent need not

generally be proved in crimes that are mala prohibita, knowledge that
the sack in his possession contained a prohibited drug must
nevertheless be established. Indeed, Section 2(f) of the Dangerous
Drugs Law requires that a person who delivers a prohibited drug must
knowingly pass such contraband to another person. Thus, in one case,
the Court has said:
x x x. While it is true that the non-revelation of the identity of an informer is a
standard practice in drug cases, such is inapplicable in the case at bar as the
circumstances are different. The would-be buyers testimony was absolutely
necessary because it could have helped the trial court in determining whether or
not the accused-appellant had knowledge that the bag contained marijuana,
such knowledge being an essential ingredient of the offense for which he was
convicted. The testimony of the poseur-buyer (not as an informer but as a
`buyer) as to the alleged agreement to sell therefore became indispensable to
arrive at a just and proper disposition of this case.
[46]
In this case, the trouble appears to be that appellant Rosales incorrectly

assumes to be, or gives an impression of being, unaware of the
prohibited drug involved in the questioned transaction with appellant
Enriquez; in point of fact, however, it is sufficiently shown that Rosales
has known all along that the deal between Enriquez and the poseurbuyers had only to do with marijuana.
Appellant Rosales believes that his act of carrying the sack of
marijuana is a mere attempt to deliver the prohibited drug. In other
words, the sack being still within his control, he could, he states, have
easily refused to deliver the item to the poseur-buyer. Here, he seeks to
capitalize on his being supposedly still in the subjective phase of the
crime. Appellant Rosales thus submits that, if found guilty, he should
only be held accountable for attempted delivery of a prohibited drug.
Article 6 of the Revised Penal 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
own spontaneous desistance."
The subjective phase in the commission of a felony is that portion of its
execution starting from the point where the offender begins by overt acts
to pursue the crime until he is prevented, against his will, by some
outside cause from performing all of the acts which would produce the
offense. If the subjective phase has not yet passed, then the crime is
only attempted. If that phase has been done but the felony is not
produced, the crime is frustrated. The crime is consummated if,
following the subjective phase, the last of the elements of the felony
meets to concur. These rules are inapplicable to offenses governed by
special laws.
[47]
[48]
Unfortunately for appellant, the crime with which he is being charged

is penalized by a special law. The incomplete delivery claimed by
appellant Rosales, granting that it is true, is thus inconsequential. The
act of conveying prohibited drugs to an unknown destination has been
held to be punishable, and it is immaterial whether or not the place of
destination of the prohibited drug is reached.
[49]
[50]
In sum, the facts proven beyond reasonable doubt in this case were
that: (a) Two police officers, one of them a woman, conceived of and
executed a buy-bust operation; (b) the operation led to the red-handed
apprehension of appellant Rosales just as he delivered the illegal drug;
and (c) appellant Enriquez who had peddled the same to the poseurbuyer was himself later arrested shortly thereafter. The sale and delivery
of marijuana constituted punishable acts under Section 4, Article II, of
R.A. No. 6425, as amended. Appellants Enriquez and Rosales should
bear the consequences of their trifling with the law. The two evidently
confederated towards the common purpose of selling and delivering
marijuana. Conspiracy could be inferred from the acts of the accused,
whose conduct before, during and after the commission of the crime
would show its existence. It was appellant Rosales who brought the
poseur-buyer to appellant Enriquez for the purchase of marijuana. It
was upon the instruction of appellant Enriquez, apparently to retain
control of the unpaid portion of the six-kilogram contraband, that
appellant Rosales was to carry the sack to the supposed residence of
the poseur-buyers. In conspiracy, the act of one conspirator could be
held to be the act of the other.
[51]
[52]
R.A. No. 7659, amending the Dangerous Drugs Law, now provides
that if the quantity of drugs involved in any of the punishable acts is
more than any of the amounts specified in the law, the penalty
of reclusion perpetua to death must be imposed. Considering that the
marijuana involved here weighed more than 750 grams, the maximum
specified amount for marijuana, appellants, ordinarily, are to be meted
that penalty. An amendatory law, however, may only be applied
retroactively if it proves to be beneficial to the appellants. In this case, it
would not be that favorable to them; hence, like in People vs. Ballagan,
the Court could only impose the penalty of life imprisonment upon
appellants. The penalty of reclusion perpetuawould mean that the
accused would also have to suffer the accessories carried by that
penalty, as well as the higher fine, provided for by R.A. No. 7659.
Appellants must, accordingly, still bear the penalty imposed on them
by the trial court.
[53]
[54]
[55]
WHEREFORE, the questioned Decision of 21 January 1991 of the

Regional Trial Court of Manila, finding appellants Ernesto Enriquez and
Wilfredo Rosales guilty beyond reasonable doubt of the crime punished
by Section 4, Article II, of R.A. No. 6425, as amended, and imposing on
them the penalty of life imprisonment and the payment of the fine
of P30,000 is AFFIRMED. Costs against appellants.
SO ORDERED.

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Republic of the Philippines

June 15, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

January 18, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

(pp. 59-65, Rollo.)

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This is an appeal from a judgment of the Court of First

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The information filed by the acting provincial fiscal of said

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The defendant and the deceased Salvacion Agawa were

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After an examination of the evidence, we are of the opinion

sworn declaration (Exhibit C) subscribed before the justice of

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The defendant's act is not mere reckless imprudence, as the

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The facts proven constitute the crime of parricide defined by

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After reviewing the facts, we are convinced that the defendant

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Modifying the appealed judgment, we declare the defendant

CALLEJO, SR., J.:

This is an automatic review of the Decision of the Regional Trial Court of

succeeded in having carnal knowledge with the said ANALIA ORILLOSA y

II. Evidence of the Prosecution

Sometime in August 1997, accused-appellant entered again the room of

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant denied having raped Analia. He claimed that he loved the

V. Assigned Errors of the Trial Court

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the

SEC. 2. Form and contents of judgment.The judgment must be written in the

Accused-appellant avers that the prosecution failed to adduce the requisite

On the contention of accused-appellant in said case that his conviction for

Accused-appellant nevertheless argues that his conviction for rape in December

Moreover, when the private complainant testified on how accused-appellant

We agree with accused-appellant that he is guilty only of two counts of

because it is favorable to the accused. Hence, even if the prosecution proved

Accused-appellant further asserts that the prosecution failed to prove that he

sufficient. In previous cases, we ruled that allegations that rapes were

On cross-examination, the private complainant testified, thus:

Q When this happened, did you not shout for help?

Rossel, the nine-year old brother of the private complainant corroborated in

Q Do you see your stepfather inside the courtroom now?

In light of the evidence of the prosecution, there was no introduction of the

The issue that now comes to fore is whether or not accused-appellant is

For an accused to be convicted of acts of lasciviousness, the prosecution is

a. By using force or intimidation; or

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form

The last paragraph of Article 6 of the Revised Penal Code reads:

There is an attempt when the offender commences the commission of a felony

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

An overt or external act is defined as some physical activity or deed,

Acts constitutive of an attempt to commit a felony should be distinguished

There is persuasive authority that in offenses not consummated as the

avoid regrettable instances of injustice, that the mind be able to cause a

As aptly elaborated on by Wharton:

First, the character of an attempt is lost when its execution is voluntarily

It must be borne in mind, however, that the spontaneous desistance of a

April 30, 1954